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KOTCH et al. v. BOARD OF RIVER PORT PILOT COMMISSIONERS FOR THE PORT OF NEW ORLEANS et al.
No. 291.
Argued February 5, 6, 1947.
Decided March 31, 1947.
M. A. Grace and Charles A. O’Niell, Jr. argued the cause and filed a brief for appellants.
Arthur A. Moreno argued the cause for appellees. With him on the brief was Selim B. Lemle.
Mr. Justice Black
delivered the opinion of the Court.
Louisiana statutes provide in general that all seagoing vessels moving between New Orleans and foreign ports must be navigated through the Mississippi River approaches to the port of New Orleans and within it exclusively by pilots who are State officers. New State pilots are appointed by the governor only upon certification of a State Board of River Pilot Commissioners, themselves pilots. Only those who have served a six-month apprenticeship under incumbent pilots and who possess other specific qualifications may be certified to the governor by the board. Appellants here have had at least fifteen years experience in the river, the port, and elsewhere, as pilots of vessels whose pilotage was not governed by the State law in question. Although they possess all the statutory qualifications except that they have not served the requisite six months apprenticeship under Louisiana officer pilots, they have been denied appointment as State pilots. Seeking relief in a Louisiana state court, they alleged that the incumbent pilots, having unfettered discretion under the law in the selection of apprentices, had selected, with occasional exception, only the relatives and friends of incumbents; that the selections were made by electing prospective apprentices into the pilots’ association, which the pilots have formed by authority of State law; that since “membership . . . has been closed ... to all except those having the favor of the pilots” the result is that only their relatives and friends have and can become State pilots. The Supreme Court of Louisiana has held that the pilotage law so administered does not violate the equal protection clause of the Fourteenth Amendment, 209 La. 737, 25 So. 2d 527. The case is here on appeal from that decision under 28 U. S. C. § 344 (a).
The constitutional command for a state to afford “equal protection of the laws” sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the Fourteenth Amendment. See e. g., Tigner v. Texas, 310 U. S. 141, 147. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be. For it is axiomatic that the consequence of regulating by setting apart a classified group is that those in it will be subject to some restrictions or receive certain advantages that do not apply to other groups or to all the public. Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 106. This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. Clearly, it might offend that constitutional safeguard if it rested on grounds wholly irrelevant to achievement of the regulation’s objectives. An example would be a law applied to deny a person a right to earn a living or hold any job because of hostility to his particular race, religion, beliefs, or because of any other reason having no rational relation to the regulated activities. See American Sugar Rfg. Co. v. Louisiana, 179 U. S. 89, 92.
The case of Yick Wo v. Hopkins, 118 U. S. 356, relied on by appellants, is an illustration of a type of discrimination which is incompatible with any fair conception of equal protection of the laws. Yick Wo was denied the right to engage in an occupation supposedly open to all who could conduct their business in accordance with the law’s requirements. He could meet these requirements, but was denied the right to do so solely because he was Chinese. And it made no difference that under the law as written Yick Wo would have enjoyed the same protection as all others. Its unequal application to Yick Wo was enough to condemn it. But Yick Wo’s case, as other cases have demonstrated, was tested by the language of the law there considered and the administration there shown. Cf. Crowley v. Christensen, 137 U. S. 86, 93, 94; Gundling v. Chicago, 177 U. S. 183; New York ex rel. Lieberman v. Van de Carr, 199 U. S. 552; Engel v. O’Malley, 219 U. S. 128, 137. So here, we must consider the relationship of the method of appointing pilots to the broad objectives of the entire Louisiana pilotage law. See Grainger v. Douglas Park Jockey Club, 148 F. 513, and cases there cited. In so doing we must view the appointment system in the context of the historical evolution of the laws and institution of pilotage in Louisiana and elsewhere. Cf. Otis Co. v. Ludlow Mfg. Co., 201 U. S. 140, 154; Jackman v. Rosenbaum, 260 U. S. 22, 31; Bayside Fish Flour Co. v. Gentry, 297 U. S. 422, 428-430. And an important factor in our consideration is that this case tests the right and power of a state to select its own agents and officers. Taylor v. Beckham, 178 U. S. 548; Snowden v. Hughes, 321 U. S. 1, 11-13.
Studies of the long history of pilotage reveal that it is a unique institution and must be judged as such. In order to avoid invisible hazards, vessels approaching and leaving ports must be conducted from and to open waters by persons intimately familiar with the local waters. The pilot’s job generally requires that he go outside the harbor’s entrance in a small boat to meet incoming ships, board them and direct their course from open water to the port. The same service is performed for vessels leaving the port. Pilots are thus indispensable cogs in the transportation system of every maritime economy. Their work prevents traffic congestion and accidents which would impair navigation in and to the ports. It affects the safety of lives and cargo, the cost and time expended in port calls, and, in some measure, the competitive attractiveness of particular ports. Thus, for the same reasons that governments of most maritime communities have subsidized, regulated, or have themselves operated docks and other harbor facilities and sought to improve the approaches to their ports, they have closely regulated and often operated their ports’ pilotage systems.
The history and practice of pilotage demonstrate that, although inextricably geared to a complex commercial economy, it is also a highly personalized calling. A pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves. This seems to be particularly true of the approaches to New Orleans through the treacherous and shifting channel of the Mississippi River. Moreover, harbor entrances where pilots can most conveniently make their homes and still be close to places where they board incoming and leave outgoing ships are usually some distance from the port cities they serve. These “pilot towns” have begun, and generally exist today, as small communities of pilots, perhaps near but usually distinct from the port cities. In these communities young men have an opportunity to acquire special knowledge of the weather and water hazards of the locality and seem to grow up with ambitions to become pilots in the traditions of their fathers, relatives, and neighbors. We are asked, in effect, to say that Louisiana is without constitutional authority to conclude that apprenticeship under persons specially interested in a pilot’s future is the best way to fit him for duty as a pilot officer in the service of the State.
The States have had full power to regulate pilotage of certain kinds of vessels since 1789 when the first Congress decided that then existing state pilot laws were satisfactory and made federal regulation unnecessary. 1 Stat. 53, 54 (1789), 46 U. S. C. § 211; Olseny. Smith, 195 U. S. 332, 341; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187. Louisiana legislation has controlled the activities and appointment of pilots since 1805—even before the Territory was admitted as a State. The State pilotage system, as it has evolved since 1805, is typical of that which grew up in most seaboard states and in foreign countries. Since 1805 Louisiana pilots have been State officers whose work has been controlled by the State. That Act forbade all but a limited number of pilots appointed by the governor to serve in that capacity. The pilots so appointed were authorized to select their own deputies. But pilots, and through them, their deputies, were literally under the command of the master and the wardens of the port of New Orleans, appointed by the governor. The master and wardens were authorized to make rules governing the practices of pilots, specifically empowered to order pilots to their stations, and to fine them for disobedience to orders or rules. And the pilots were required to make official bond for faithful performance of their duty. Pilots’ fees were fixed; ships coming to the Mississippi were required to pay pilotage whether they took on pilots or not. The pilots were authorized to organize an association whose membership they controlled in order “to enforce the legal regulations, and add to the efficiency of the service required thereby.” Moreover, efficient and adequate service was sought to be insured by requiring the Board of Pilot Commissioners to report to the governor and authorizing him summarily to remove any pilot guilty of “neglect of duty, habitual intemperance, carelessness, incompetency, or any act or conduct . . . showing” that he “ought to be removed.” La. Act No. 113, § 20 (1857). These provisions have been carried over with some revision into the present comprehensive Louisiana pilotage law. 6 La. Gen. Stat., tit. 59, cc. 6, 8 (1939). Thus in Louisiana, as elsewhere, it seems to have been accepted at an early date that in pilotage, unlike other occupations, competition for appointment, for the opportunity to serve particular ships and for fees, adversely affects the public interest in pilotage.
It is within the framework of this long-standing pilotage regulation system that the practice has apparently existed of permitting pilots, if they choose, to select their relatives and friends as the only ones ultimately eligible for appointment as pilots by the governor. Many other states have established pilotage systems which make the selection of pilots on this basis possible. Thus it was noted thirty years ago in a Department of Commerce study of pilotage that membership of pilot associations “is limited to persons agreeable to those already members, generally relatives and friends of the pilots. Probably in pilotage more than in any other occupation in the United States the male members of a family follow the same work from generation to generation.”
The practice of nepotism in appointing public servants has been a subject of controversy in this country throughout our history. Some states have adopted constitutional amendments or statutes to prohibit it. These have reflected state policies to wipe out the practice. But Louisiana and most other states have adopted no such general policy. We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot’s training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those with whom they would serve.
The number of people, as a practical matter, who can be pilots is very limited. No matter what system of selection is adopted, all but the few occasionally selected must of necessity be excluded. Cf. Olsen v. Smith, supra, 344, 345. We are aware of no decision of this Court holding that the Constitution requires a state governor, or subordinates responsible to him and removable by him for cause, to select state public servants by competitive tests or by any other particular method of selection. The object of the entire pilotage law, as we have pointed out, is to secure for the State and others interested the safest and most efficiently operated pilotage system practicable. We cannot say that the method adopted in Louisiana for the selection of pilots is unrelated to this objective. See Olsen v. Smith, supra; cf. Carmichael v. Southern Coal Co., 301 U. S. 495, 509-510. We do not need to consider hypothetical questions concerning any similar system of selection which might conceivably be practiced in other professions or businesses regulated or operated by state governments. It is enough here that considering the entirely unique institution of pilotage in the light of its history in Louisiana, we cannot say that the practice appellants attack is the kind of discrimination which violates the equal protection clause of the Fourteenth Amendment.
Affirmed.
A ship entering the Mississippi River from the Gulf of Mexico is piloted the twenty mile distance from the mouth of the river to “Pilot Town” by one of a group of pilots specially familiar with the “entrance” to the Mississippi through the so-called “passes.” La. Acts 1880, No. 99, § 2, La. Acts 1908, No. 55, § 1, La. Acts 1910, No. 26, § 1, 6 La. Gen. Stat. §§ 9141, 9163 (1939). Between Pilot Town and New Orleans, a distance of approximately ninety miles, ships are piloted exclusively by so-called river port pilots. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat., tit. 59, c. 8 (1939). By an amendment in 1942 the exclusive jurisdiction of the river port pilots was extended to the piloting of seagoing vessels within the port of New Orleans. La. Acts 1942, No. 134, 6 La. Gen. Stat. § 9155 (Supp. 1946). Appellants here sought appointment as river port pilots.
Sections 2 and 3 of the Act of 1908 provided for the appointment and commissioning of twenty-eight pilots by the governor and prescribed that thereafter there should not be less than twenty. 6 La. Gen. Stat. §§ 9155, 9156 (1939).
The statement of the Louisiana court in this case that pilots so appointed are considered State officers has long been the established State rule. Williams v. Payson, 14 La. Ann. Rep. 7, 8 (1859); Louisiana v. Follett, 33 La. Ann. Rep. 228, 230 (1881); Levine v. Michel, 35 La. Ann. Rep. 1121, 1124 (1883).
From among the pilots the governor was required to appoint three River Port Pilot Commissioners. La. Acts 1908, No. 54, § 1, 6 La. Gen. Stat. § 9154 (1939).
“Whenever there exists a necessity for more pilots . . . the . . . board of river port pilot commissioners shall hold examinations, under such rules and regulations, and with such requirements as they shall have provided, with the governor’s approval, provided that no applicant shall be considered by said board, unless he submits proper evidence of moral character and is a voter of this state, and shall have served six months’ apprenticeship in his proposed calling, and upon the certificate of the board to the governor that the applicant has complied with the provisions of this act, the governor may, in his discretion, appoint to existing vacancies.” La. Acts 1908, No. 54, § 4. 6 La. Gen. Stat. § 9157 (1939).
Appellants were licensed to pilot coastwise vessels to and through the port under federal law which excludes states from controlling pilotage of coastal shipping. Rev. Stat. §§ 4401, 4444, 46 U. S. C. §§ 215, 364. Also prior to the passage of La. Acts 1942, No. 134, they had piloted all classes of vessels within the port of New Orleans. That Act deprived appellants of authority to pilot within the port and conferred it exclusively upon State river port pilots. Thus appellants allege they have been deprived of an opportunity to make a living unless they can obtain appointment as river port pilots under the pilotage law.
While the Act does not specifically require that the apprenticeships be performed under incumbent officer pilots, the State Supreme Court has so construed it.
La. Rev. Stat. § 2707 (1869), reenacted in § 4 of La. Acts 1928, No. 198, 6 La. Gen. Stat. § 9149 (1939).
Appellants’ complaint was dismissed for failure to state a cause of action. Therefore we consider their allegations as facts for the purpose of this decision.
Appellants’ prayer had sought an injunction against interference with their serving as pilots, and, in the alternative, sought mandamus to compel the Board to examine appellants as required by law and to certify them to the Governor. The Louisiana Supreme Court affirmed the trial court’s refusal to compel the board to examine appellants because they did not possess the qualifications required to take examinations—specifically, they had not served apprenticeships.
See generally, Report of Departmental Committee on Pilotage (London, 1911); Pilotage in the United States, Special Agents Series, Department of Commerce (1917).
See Cooley v. Board of Wardens, 12 How. 299, 308, 312, 316, 326; Ex parte McNiel, 13 Wall. 236, 238, 239.
For an excellent description of a pilot’s life and duty, see Kane, Deep Delta Country, c. 10 (1944).
See Kane, op. cit. supra, note 10. See also Hearings before House Committee on the Merchant Marine and Fisheries on H. R. 9678, 64th Cong., 1st Sess., 106, 214, 229, 279 (1916) (compulsory barge pilotage).
See Giesecke, American Commercial Legislation before 1789 (1910) 118; Kane, op. cit. supra, note 10.
See Kane, op. cit. supra, note 10. A Louisiana statute provides that “no license shall be granted any person to keep a tavern . . . at the Balize, South West Pass or any other station for pilots, nor within three miles of such station, unless the person applying for such license shall be recommended in writing by a majority of the branch pilots.” La. Rev. Stat. § 2704 (1869), 6 La. Gen. Stat. § 9166 (1939).
See Kane op. cit. supra, note 10, 128; see also Pilotage in the United States, op. cit. supra, note 8, 8, 16.
La. Acts (Territory of New Orleans) 1805, c. 24; see also Surrey, Commerce of Louisiana, 1699-1763, a. III (1916).
Almost all the maritime states, some as colonies before the Revolution, adopted comprehensive pilotage laws which included unrestricted apprenticeship provisions. Mass. Laws, c. 13 (1783); Mass. Rev. Stat. c. 32, §§ 5-42 (1836); New York Laws, c. XVIII, §§ I, VII, X, XII (1819); Pa. Stats, at Large, c. 536, § VI (1767); N. J. Rev. Laws, tit. 37, c. 7, § 18 (1847); 1 Laws of Md. (Dorsey) c. 63, §§ 2, 20, 23 (1803); Code of Virginia, c. 92, §§ 4, 9 (1849); N. C. Rev. Stat. c. 88, §§ 1, 5, 14 (1837). See also Report of Departmental Committee on Pilotage, op. cit. supra, note 8, Part I.
See note 2 supra.
The 1805 Act required deputies to obtain a certificate from the master and wardens as a condition precedent to their appointment. But § 1 of La. Acts 1806, c. 26, gave pilots blanket authority to appoint their own deputies. Pilots were, however, made responsible for the neglect or misconduct of their deputies.
La. Acts 1805, c. 24, § 20; La. Acts 1837, No. 106, § 9.
La. Acts 1805, c. 24, § 17.
Levine v. Michel, supra, at 1125; see also note 6 supra.
See Kane, op. cit. supra, n. 10, at 126-128; all of the State and colonial statutes set out in note 10, supra, provided for limitation on the number of pilots and fixed the fees they might charge. This is generally true today. See n. 23 infra.
The Department of Commerce Report, supra, n. 8, at 28 observed that: “The formation of pilots' associations was largely a result of the intense competition that formerly prevailed among the pilots, .... Little effort was made to maintain definite pilot stations. Instead, the desire to be the first to speak a ship frequently led the pilots to cruise great distances from the port.
“One of the unfortunate results of the intense competition of pilots was the fact that frequently pilots could not be had when wanted, although they might be far out to sea in quest of business. Another drawback was that pilots unnecessarily exposed themselves to danger. And a third important disadvantage was that it made the earnings precarious; a pilot might earn a great deal this month and very little the next. . . .
“The pilots themselves were the first to see the disadvantages of the free or competitive system and to take steps toward the organization of associations. These associations soon developed into strong working combinations that eliminated competition and placed on an amicable basis matters that formerly produced much sharp rivalry.
“From the evidence at hand it would appear that the shipping interests as well as the insurance and commercial interests of the ports encouraged the pilots in the formation of these associations. The advantages of a well-organized pilotage system were as apparent to these interests as to the pilots themselves, for the commerce of the port was not only facilitated and expedited but made much safer by reason of the better organization of the pilotage system, which came with the elimination of competition.
“Since associations have been formed along the present lines pilot-age grounds have been established . . . These grounds are well known to mariners, who may safely count on finding there at practically all times and in all conditions of weather a pilot boat with a sufficient number of pilots aboard to accommodate any reasonable number of vessels that may come. There is little chance nowadays that a vessel will fail to find a pilot when needed. . . .
“Still another advantage of the present organization of pilotage systems is that it permits the maintenance of a central office which is in constant touch with the pilot boat and arranges for the rotation of pilots. The association generally employs an agent to look after the routine business of the office.”
See N. J. Laws 1898, c. 31, N. J. Stat. Ann. Title 12, c. 8 (1939); Pa. P. L. 542 of 1803, Pa. Stats. Ann. (Purdon) Title 55, c. 2 (1930); Md. Ann. Code (Flack), Art. 74 (1939); Del. Rev. Code, c. 35 (1935); Va. Code, c. 142 (1942); Ala. Laws, 1931, p. 154, Ala. Code, Title 38, c. 2 (1940); Ore. Comp. Laws Ann., Title 105, c. 2 (1940). See also note 16, supra.
Pilotage in the United States, supra, note 8, p. 8.
See e. g., Mo. Const., Art. 14, § 13 (1924).
See e. g., Idaho Sess. Laws, 1915, c. 10, Idaho Code Ann., § 57-701 (1932); Fla. Laws, 1933, c. 16088, Fla. Stats. Ann. §§ 116.10, 116.11 (1943); Neb. Laws 1919, c. 190, § 6, Neb. Rev. Stat. § 81-108 (1943); Tex. Acts 1909, p. 85, Tex. Penal Code (Vernon) Arts. 432-438 (1938).
In Olsen v. Smith, the constitutionality of a Texas statute forbidding all but pilots appointed by the governor to serve was challenged by one who had not been appointed and had been enjoined from serving as a pilot. Yick Wo v. Hopkins, supra, was relied on as authority for a contention that he had been denied rights protected by the Fourteenth Amendment including equal protection of the laws. Id. 334. But this Court in sustaining the constitutionality of the statute, did not specifically discuss the question here raised. Therefore we do not depend upon Olsen v. Smith as a necessarily controlling authority for our decision here.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
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GONDECK v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
No. 919,
October Term, 1961.
Certiorari denied June 11, 1962.— Rehearing denied October 8, 1962
Rehearing and certiorari granted and case decided October 18, 1965.
Arthur Roth for petitioner.
Leo M. Alpert for respondents.
Per Curiam.
Petitioner’s husband, Frank J. Gondeck, was killed as a result of a jeep accident on San Salvador Island outside a defense base at which he was employed. The accident took place in the evening as Gondeck and four others were returning from a nearby town. The Deputy Commissioner of the Bureau of Employees’ Compensation, United States Department of Labor, awarded death benefits to petitioner in accordance with the terms of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U. S. C. § 1651 et seq. (1958 ed.). In support of the award, the Deputy Commissioner found, among other things, that, although Gondeck had completed his day’s work, he was subject to call for emergencies while off duty and was returning from reasonable recreation when the accident occurred. The District Court set aside the Deputy Commissioner’s order, and the Court of Appeals for the Fifth Circuit affirmed. United States v. Pan American World Airways, Inc., 299 F. 2d 74. The Court of Appeals acknowledged that Gondeck was subject to call, id., at 75, but found no benefit to the employer in Gondeck’s trip, and “no evidence that furnishes a link by which the activity in which Gondeck was engaged was related to his employment.” Id., at 77.
On June 11, 1962, we denied certiorari. 370 U. S. 918. On October 8, 1962, we denied a petition for rehearing. 371 U. S. 856. We are now apprised, however, of “intervening circumstances of substantial . . . effect,” justifying application of the established doctrine that “the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., 353 U. S. 98,99. Subsequent to our orders in the present case, the Court of Appeals for the Fourth Circuit upheld an award to the survivors of another employee killed in the same accident. Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70. In upholding the award, the court cited our decision in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. In a subsequent case the Court of Appeals for the Fifth Circuit itself expressed doubt whether its decision in the present case had been consistent with Brown-Pacific-Maxon. O’Keeffe v. Pan American World Airways, 338 F. 2d 319, 325. The court also noted that, “The Gondeck case stands alone, except for a per curiam opinion.” Id., at 325. This Court reversed that per curiam judgment last Term, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359, so that the present case now stands completely alone.
In O’Keeffe we made clear that the determinations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim’s employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the obligations or conditions of employment create the “zone of special danger” out of which the injury or death arose. Since the Court of Appeals for the Fifth Circuit misinterpreted the Brown-Pacific-Maxon standard in this case, and since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, “the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., supra, at 99.
We therefore grant the motion for leave to file the petition for rehearing, grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certio-rari, and reverse the judgment of the Court of Appeals.
It is so ordered.
Mr. Justice Fortas took no part in the consideration or decision of this case.
Mr. Justice Clark,
joining in the judgment.
I fully agree with my Brother Harlan “that litigation must at some point come to an end” and “that this decision holds seeds of mischief for the future orderly administration of justice . . . .” But with Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183 (1956), on our books, no other conclusion can be reached.
Up until Cahill I thought that successive petitions for rehearing would not be received by the Court under its Rule 58 (4). This rule took the place of the old “end of Term” rule of Bronson v. Schulten, 104 U. S. 410, 415 (1882), abolished by the Congress in 1948, 28 U. S. C. § 452 (1958 ed.). Indeed, I doubted that the Court had the power to grant a successive petition for rehearing under a factual situation, as here, where a petition for certiorari had been denied over three years ago, 370 U. S. 918 (1962); a petition for rehearing had been denied, 371 U. S. 856 (1962); the mandate had issued more than three years before; and where petitioner had, about the same date, cancelled her appeal bond and been discharged of all liability thereunder. In Cahill, however, the Court through the device of a “motion to recall and amend the judgment” permitted a successive petition not only to be received but granted, despite the fact that the judgment thereby reopened had been previously paid. This paved the way for the grant of a successive petition for rehearing in United States v. Ohio Power Co., 353 U. S. 98 (1957), to make its judgment conform with this Court’s decision that same Term in United States v. Allen-Bradley Co., 352 U. S. 306 (1957), a companion case of Ohio Power in the Court of Claims.
The vice, of course, is the granting of successive petitions for rehearing in violation of Rule 58 (4), which was done for the first time in Cahill. It makes no difference that the rejection of finality be to correct alleged errors of our own or those below. Nor does it matter that the errors be corrected in the same Term, as in Cahill, or four Terms later, as here. In each instance the action violates Rule 58 (4) and that is the basis of my position.
I, too, as my Brother Harlan said in Ohio Power, “can think of nothing more unsettling to lawyers and litigants, and more disturbing to their confidence in the evenhand-edness of the Court’s processes, than to be left in . . . uncertainty ... as to when their cases may be considered finally closed in this Court.” At p. Ill (dissenting opinion). However, Cahill opened up this practice. It may be that Ohio Power and the present case are more objectionable on their facts, but they merely condone Cahill’s original vice. Until we can gain the vote of the majority to the contrary we are stuck with the practice. The outlook for this appears dim. We can only hope that this rule of “no finality,” which the Court varnishes with the charms of reason, will be sparingly used, or overruled by Congress, as was the “end of Term” rule. I, therefore, join in the judgment of the Court.
U. S. Supreme Ct. Rule 58 (2).
“Consecutive petitions for rehearings, and petitions for rehearing that are out of time under this rule, will not be received.”
Mr. Justice Black, joined by The Chief Justice, Mr. Justice Douglas and myself, dissented.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
30
] |
RICE, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA v. REHNER
No. 82-401.
Argued March 21, 1983 —
Decided July 1, 1983
Alan S. Meth, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van De Kamp, Attorney General, and George Deukmejian, former Attorney General.
Stephen V. Quesenberry argued the cause for respondent. With him on the brief were David J. Rapport and Charles Scott.
Joshua I. Schwartz argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, Robert L. Klarquist, and Anne S. Almy
Briefs of amici curiae urging reversal were filed by Warren Spannaus, Attorney General of Minnesota, and James M. Schoessler, Special Assistant Attorney General, David Albert Mustone, Tom D. Tobin, Mark V. Meierhenry, Attorney General of South Dakota, Robert L. Timm, Chief Deputy Attorney General, and Harold F. X. Purnell for the State of Minnesota et al.; by Michael T. Greely, Attorney General of Montana, and Helena S. Maclay and Deirdre Boggs, Special Assistant Attorneys General, for the State of Montana; and by James M. Goldberg for the National Alcoholic Beverage Control Association.
Briefs of amici curiae urging affirmance were filed by Art Bunce for the Agua Caliente Band of Cahuilla Indians; by George E. Fettinger and Kathleen A. Miller for the Mescalero Apache Tribe; by Kim Jerome Gottschalk for the Pala Band of Mission Indians; by Harry R. Sachse for the Shoshone Tribe of the Wind River Indian Reservation et al.; and by Douglas L. Bell, Allen H. Sanders, and Jeffrey Schuster for the Tulalip and Muckleshoot Indian Tribes.
Justice O’Connor
delivered the opinion of the Court.
The question presented by this case is whether the State of California may require a federally licensed Indian trader, who operates a general store on an Indian reservation, to obtain a state liquor license in order to sell liquor for off-premises consumption. Because we find that Congress has delegated authority to the States as well as to the Indian tribes to regulate the use and distribution of alcoholic beverages in Indian country, we reverse the judgment of the Court of Appeals for the Ninth Circuit.
l-H
The respondent Rehner is a federally licensed Indian trader who operates a general store on the Pala Reservation in San Diego, Cal. The Pala Tribe had adopted a tribal ordinance
permitting the sale of liquor on the reservation providing that the sales conformed to state law, and this ordinance was approved by the Secretary of the Interior. See 25 Fed. Reg. 3343 (1960). Rehner then sought from the State an exemption from its law requiring a state license for retail sale of distilled spirits for off-premises consumption. When she was refused an exemption, Rehner filed suit seeking a declaratory judgment that she did not need a license from the State, and an order directing that liquor wholesalers could sell to her. The District Court granted the State’s motion to dismiss, ruling that Rehner was required to have a state license under 18 U. S. C. § 1161, which provides that liquor transactions in Indian country are not subject to prohibition under federal law provided those transactions are “in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country . . . .”
The Court of Appeals reversed the District Court, holding that § 1161 did not confer jurisdiction on the States to require liquor licenses. The court held that “18 U. S. C. § 1161 preempts state licensing and distribution jurisdiction over tribal liquor sales in Indian country.” 678 F. 2d 1340, 1351 (1982). In deciding the pre-emption issue, the court focused on two aspects of §1161. First, it held that “there is insufficient evidence to show that Congress intended section 1161 to confer on the states regulatory jurisdiction over on-reservation liquor traffic.” Id., at 1343. The court reasoned that the liquor transactions at issue were governed exclusively by federal law, and that if Congress wished to remove “its veil of preemption,” it needed to do so by an express statement that the State had jurisdiction to impose its licensing requirement. Ibid. Second, the court held that “section 1161 has preemptive effect” because Congress provided for tribal ordinances that were to be certified by the Secretary of the Interior and published in the Federal Register. Id., at 1348-1349,1349, n. 18. In this way, “the regulatory authority of the tribes ... was safeguarded by federal supervision.” Id., at 1349.
II
The decisions of this Court concerning the principles to be applied in determining whether state regulation of activities in Indian country is pre-empted have not been static. In Worcester v. Georgia, 6 Pet. 515, 560 (1832), Chief Justice Marshall wrote that an Indian reservation “is a distinct community, occupying its own territory, with boundaries accurately described, in which [state laws] can have no force . . . .” Despite this early statement emphasizing the importance of tribal self-government, “Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall,” Organized Village of Kake v. Egan, 369 U. S. 60, 74 (1962). “[E]ven on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law.” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973).
Although “[f]ederal treaties and statutes have been consistently construed to reserve the right of self-government to the tribes,” P. Cohen, Handbook of Federal Indian Law 273 (1982 ed.) (hereafter Cohen), our recent cases have established a “trend .. . away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172 (1973) (footnote omitted). The goal of any pre-emption inquiry is “to determine the congressional plan,” Pennsylvania v. Nelson, 350 U. S. 497, 504 (1956), but tribal sovereignty may not be ignored and we do not necessarily apply “those standards of pre-emption that have emerged in other areas of the law.” White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143 (1980). We have instead employed a pre-emption analysis that is informed by historical notions of tribal sovereignty, rather than determined by them. “[Cjongressional authority and the ‘semi-independent position’ of Indian tribes . . . [are] two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members.” Bracker, 448 U. S., at 142. Although “[t]he right of tribal self-government is ultimately dependent on and subject to the broad power of Congress/’ id., at 143, we still employ the tradition of Indian sovereignty as a “backdrop against which the applicable treaties and federal statutes must be read” in our pre-emption analysis. McClanahan, supra, at 172. We do not necessarily require that Congress explicitly pre-empt assertion of state authority insofar as Indians on reservations are concerned, but we have recognized that “any applicable regulatory interest of the State must be given weight” and “ ‘automatic exemptions “as a matter of constitutional law” ’ are unusual.” Bracker, supra, at 144 (quoting Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 481, n. 17 (1976)).
The role of tribal sovereignty in pre-emption analysis varies in accordance with the particular “notions of sovereignty that have developed from historical traditions of tribal independence.” Bracker, supra, at 145. These traditions themselves reflect the “accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 156 (1980). However, it must be remembered that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.” Id., at 154. “The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.” United States v. Wheeler, 435 U. S. 313, 323 (1978) (emphasis added). See also Confederated Tribes, supra, at 178-179 (opinion of Rehnquist, J.).
When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect “ ‘except where Congress has expressly provided that State laws shall apply.’” McClanahan, supra, at 171 (quoting U. S. Dept, of the Interior, Federal Indian Law 845 (1958) (hereafter Indian Law)). Repeal by implication of an established tradition of immunity or self-governance is disfavored. Bryan v. Itasca County, 426 U. S. 373, 392 (1976). If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interests so requires, our pre-emption analysis may accord less weight to the “backdrop” of tribal sovereignty. See Confederated Tribes, supra, at 154-159; Mescalero Apache Tribe, supra.
A
We first determine the nature of the “backdrop” of tribal sovereignty that will inform our pre-emption analysis. The “backdrop” in this case concerns the licensing and distribution of alcoholic beverages, and we must determine whether there is a tradition of tribal sovereign immunity that may be repealed only by an explicit directive from Congress.
We begin by noting that there is nothing in the record to indicate that a federally licensed Indian trader like Rehner may sell liquor for off-premises consumption only to members of the Pala Tribe. Indeed, the State contends, and Rehner does not dispute, that Rehner, or any other federally licensed trader, may sell liquor to Indian and non-Indian buyers alike. See Brief for Petitioner 81; Tr. of Oral Arg. 14. To the extent that Rehner seeks to sell to non-Indians, or to Indians who are not members of the tribe with jurisdiction over the reservation on which the sale occurred, the decisions of this Court have already foreclosed Rehner’s argument that the licensing requirements infringe upon tribal sovereignty.
If there is any interest in tribal sovereignty implicated by imposition of California’s alcoholic beverage regulation, it exists only insofar as the State attempts to regulate Rehner’s sale of liquor to other members of the Pala Tribe on the Pala Reservation. The only interest that Rehner advances in this regard is that freedom to regulate alcoholic beverages is important to Indian self-governance. To the extent California limits the absolute number of licenses that it distributes, state regulation may effectively preclude this aspect of self-governance. See Brief for Respondent 63-74. Rehner relies on our statement in United States v. Mazurie, 419 U. S. 544, 557 (1975), that the distribution and use of intoxicants is a “matte [r] that affect[s] the internal and social relations of tribal life.”
Rehner’s reliance on Mazurie as establishing tribal sovereignty in the area of liquor licensing and distribution is misplaced. In Mazurie, we held that “independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of [Congress'] own authority” to regulate commerce with the Indians. Ibid, (emphasis added). We expressly declined to base our holding on whether “independent [tribal] authority is itself sufficient for the tribes to impose” their own liquor regulations. Ibid, (emphasis added).
The reason that we declined is apparent in the light of the history of federal control of liquor in this context, which must be characterized as “one of the most comprehensive [federal] activities in Indian affairs . . . .” Cohen, at 307. Unlike the authority to tax certain transactions on reservations that we have characterized as “a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status,” Confederated Tribes, 447 U. S., at 152, tradition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians. The colonists regulated Indian liquor trading before this Nation was formed, and Congress exercised its authority over these transactions as early as 1802. See Indian Law, at 381. Congress imposed complete prohibition by 1832, and these prohibitions are still in effect subject to suspension conditioned on compliance with state law and tribal ordinances.
Although in Indian matters Congress usually acts “upon the assumption that the States have no power to regulate the affairs of Indians on a reservation,” Williams v. Lee, 358 U. S. 217, 220 (1959), that assumption would be unwarranted in the narrow context of the regulation of liquor. In addition to the congressional divestment of tribal self-government in this area, the States have also been permitted, and even required, to impose regulations related to liquor transactions. As a condition of entry into the United States, Arizona, New Mexico, and Oklahoma were required by Congress to enact prohibitions against the sale of liquor to Indians and introduction of liquor into Indian country. Several States, including California, pursuant to state police power, long prohibited liquor transactions with Indians. These state prohibitions indicate that “ ‘absolute’ federal jurisdiction is not invariably exclusive jurisdiction.” Kake Village, 369 U. S., at 68. Indeed, we have recognized expressly that “[t]he federal prohibition against taking intoxicants into this Indian colony does not deprive the State of Nevada of its sovereignty over the area in question. The Federal Government does not assert exclusive jurisdiction within the colony. Enactments of the Federal Government passed to protect and guard its Indian wards only affect the operation, within the colony, of such state laws as conflict with the federal enactments.” United States v. McGowan, 302 U. S. 535, 539 (1938) (footnote omitted; emphasis added).
This historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country is justified by the relevant state interests involved. See Confederated Tribes, supra, at 156. Rehner’s distribution of liquor has a significant impact beyond the limits of the Pala Reservation. The State has an unquestionable interest in the liquor traffic that occurs within its borders, and this interest is independent of the authority conferred on the States by the Twenty-first Amendment. Crowley v. Christensen, 137 U. S. 86, 91 (1890). Liquor sold by Rehner to other Pala tribal members or to nonmembers can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the State does not wish to possess alcoholic beverages, or to possess them through a distribution network over which the State has no control. This particular “spillover” effect is qualitatively different from any “spillover” effects of income taxes or taxes on cigarettes. “A State’s regulatory interest will be particularly substantial if the State can point to off-reservation effects that necessitate state intervention.” New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 336 (1983).
There can be no doubt that Congress has divested the Indians of any inherent power to regulate in this area. In the area of liquor regulation, we find no “congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.” Bracker, 448 U. S., at 143 (footnote omitted). With respect to the regulation of liquor transactions, as opposed to the state income taxation involved in McClanahan, Indians cannot be said to “possess the usual accoutrements of tribal self-government.” McClanahan, 411 U. S., at 167-168.
The court below erred in thinking that there was some single notion of tribal sovereignty that served to direct any pre-emption analysis involving Indians. See 678 F. 2d, at 1348. Because we find that there is no tradition of sovereign immunity that favors the Indians in this respect, and because we must consider that the activity in which Rehner seeks to engage potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case.
B
We must next determine whether the state authority to license the sale of liquor is pre-empted by federal law. Bracker, supra, at 142; McClanahan, supra, at 172. The court below held that § 1161 pre-empted state regulation of licensing and distribution, and that the reference to state law in § 1161 was not sufficiently explicit to permit application of the state licensing law.
We disagree with both aspects of the court’s analysis. As we explained in Part II-A above, the tribes have long ago been divested of any inherent self-government over liquor regulation by both the explicit command of Congress and as a “necessary implication of their dependent status.” Confederated Tribes, 447 U. S., at 152. Congress has also historically permitted concurrent state regulation through the imposition of criminal penalties on those who supply Indians with liquor, or who introduce liquor into Indian country. Therefore, this is not a case in which we apply a presumption of a lack of state authority.
The presumption of pre-emption derives from the rule against construing legislation to repeal by implication some aspect of tribal self-government. See Bryan v. Itasca County, 426 U. S., at 391-392; Morton v. Mancari, 417 U. S. 535, 549-551 (1974). Because there is no aspect of exclusive tribal self-government that requires the deference reflected in our requirement that Congress expressly provide for the application of state law, we have only to determine whether application of the state licensing laws would “impair a right granted or reserved by federal law.” Mescalero Apache Tribe, 411 U. S., at 148; Kake Village, 369 U. S., at 75. Our examination of § 1161 leads us to conclude that Congress authorized, rather than pre-empted, state regulation over Indian liquor transactions.
The legislative history of § 1161 indicates both that Congress intended to remove federal prohibition on the sale and use of alcohol imposed on Indians in 1832, and that Congress intended that state laws would apply of their own force to govern tribal liquor transactions as long as the tribe itself approved these transactions by enacting an ordinance. It is clear that by 1953, federal law curtailing liquor traffic with the Indians came to be “viewed as discriminatory.” Indian Law, at 382. As originally introduced, the bill that was later to become § 1161 was intended only to “[t]o terminate Federal discriminations against the Indians of Arizona.” See Hearings on H. R. 1055 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 83d Cong., 1st Sess. (Jan. 6, 1953) (Hearings), reprinted in App. to Brief for Petitioner A-4. In hearings on this original bill, Representative Rhodes of Arizona, speaking on behalf of Representative Patten, who introduced the bill, stated that the sole purpose of the bill was to eliminate federal prohibition because it was discriminatory and had a detrimental effect on the Indians. He also commented that the bill would permit Arizona to amend its Constitution to remove the state prohibitions on sale of liquor to Indians and on introduction of liquor into Indian country. At these same hearings, Dillon S. Myer, Commissioner of the Bureau of Indian Affairs of the Department of the Interior, submitted a revision of the bill proposed by Representative Patten. This revision was different from the original bill in a number of respects, the most important of which for present purposes is that the revision applied to all States, and not just to Arizona. In the context of discussing the bill, Commissioner Myer stated: “We certainly do not intend to try to revise State laws regarding Indians or anyone else, and it should be clear that is provided. .. . [The revision] is intended to eliminate all of the sections in the statutes which discriminate against Indians and at the same time not interfere with State laws, and at the same time provide opportunity for the tribes to have prohibition on the reservation if they wish to, if it is not covered by State law.” Id., at A-26 — A-27.
In a later hearing, the Department of the Interior submitted an unofficial report in which it was again urged that federal Indian liquor prohibition be ended generally, and not just in Arizona, as long as liquor “transactions are in conformity with the ordinances of the tribes concerned and are not contrary to state law.” See Hearings (May 6, 1953), reprinted in App. to Brief for Petitioner A-54. Representative D’Ewart read into the record a telegram sent by the Chairman of the Navajo Tribal Council. The telegram indicated that the Navajo people supported the “anti-discrimination bill” as a measure to ensure “equal rights.” Id., at A-59.
Representative Patten, the sponsor of the original bill, stated that “if this bill were passed to remove all discrimination, the Indians would still have to comply with State law in every regard . . . .” See Hearings (June 2, 1953), reprinted in App. to Brief for Petitioner A-69. Representative Patten’s remarks are particularly valuable in determining the meaning of § 1161. As the sponsor of the bill, Representative Patten’s interpretation is an “'authoritative guide to the statute’s construction.’” Bowsher v. Merck & Co., 460 U. S. 824, 832 (1983) (quoting North Haven Board of Education v. Bell, 456 U. S. 512, 527 (1982).
The House Report explained the bill as eliminating discrimination caused by legislation “applicable only to Indians.” H. R. Rep. No. 775, 83d Cong., 1st Sess., 2 (1953). It included an official report of the Department of the Interior stating that federal prohibition would be lifted only if liquor “transactions are in conformity with the ordinances of the tribes concerned and are not contrary to State law.” Id., at 3. The Senate Report also expressed these sentiments: “if this bill is enacted, a State or local municipality or Indian tribes, if they desire, by the enactment of proper legislation or ordinance, to restrict the sales of intoxicants to Indians, they may do so.” S. Rep. No. 722, 83d Cong., 1st Sess., 1 (1953) (emphasis added).
It is clear then that Congress viewed § 1161 as abolishing federal prohibition, and as legalizing Indian liquor transactions as long as those transactions conformed both with tribal ordinances and state law. It is also clear that Congress contemplated that its absolute but not exclusive power to regulate Indian liquor transactions would be delegated to the tribes themselves, and to the States, which historically shared concurrent jurisdiction with the Federal Government in this area. Early administrative practice and our prior decision in United States v. Mazurie, 419 U. S. 544 (1975), confirm this understanding of § 1161.
As noted above, the Bureau of Indian Affairs of the Department of the Interior was heavily involved in drafting the revised bill that eventually became § 1161. In a 1954 administrative opinion, ironically rendered in response to California’s interpretation of § 1161, the Department’s Solicitor stated plainly that the Bureau contemplated that liquor transactions on reservations would be subject to state laws, including state licensing laws. Specifically, the Solicitor stated:
“The fact that a tribe in California may by ordinance authorize the sale of liquor on its reservation in packages for consumption only off the premises where it is sold would not, in my opinion, impinge upon the foregoing authority of the State Board of Equalization to license sales of liquor on such reservation for consumption both on and off the premises where the liquor is sold. In such circumstances, if any person so licensed by the State were to sell liquor on the reservation for on-premises consumption in accordance with his license, presumably he would he immune from State prosecution and, thus, the license issued by the State agency would be fully effective insofar as State law is concerned” Memo. Sol. M-36241 (Sept. 22, 1954), Liquor — Tribal Ordinance Regulating Traffic Within Reservation, 2 Op. Solicitor of Dept, of Interior Relating to Indian Affairs 1917-1974, pp. 1648, 1650 (emphasis added).
In the Department of the Interior’s Indian Law, at 382-383, the Solicitor, citing the 1954 opinion, stated that “if a tribal ordinance permits only package sales on a reservation for consumption off the premises, a State license to sell for consumption on the premises will give protection only against State'prosecutions, but not against Federal prosecutions under section 1156.” (Footnote omitted; emphasis added.)
Both Rehner and the court below believed that § 1161 was merely an exemption from federal criminal liability, and affirmatively empowered neither Indian tribes nor the State to regulate liquor transactions. See 678 F. 2d, at 1345; Brief for Respondent 9. Our decision in Mazurie, supra, at 554, rejected this argument with respect to Indian tribes, and there is no reason to accept it with respect to the State. In Mazurie we held that in enacting § 1161 Congress intended to delegate to the tribes a portion of its authority over liquor transactions on reservations. Since we found this delegation on the basis of the statutory language requiring that liquor transactions conform “both with the laws of the State . . . and with an ordinance duly adopted” by the governing tribe (emphasis added), we would ignore the plain language of the statute if we failed to find this same delegation in favor of the States. Rehner argues that Mazurie merely acknowledged that Indian tribes “possessed independent authority” over liquor transactions. Brief for Respondent 67. As we noted in the context of our discussion of the doctrine of tribal sovereignty, we expressly declined to base our holding in Mazurie on the doctrine of tribal self-government; rather, we held merely that the tribal authority was sufficient to protect the congressional decision to delegate licensing authority. See 419 U. S., at 557. It cannot be doubted that the State’s police power over liquor transactions within its borders is broad enough to protect the same congressional decision in favor of the State.
The thrust of Rehner’s argument, and the primary focus of the court below, is that state authority in this area is preempted because such authority requires an express statement by Congress in the light of the canon of construction that we quoted in McClanahan: “‘State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.’” 411 U. S., at 170-171 (quoting Indian Law, at 845). As we have established above, because of the lack of a tradition of self-government in the area of liquor regulation, it is not necessary that Congress indicate expressly that the State has jurisdiction to regulate the licensing and distribution of alcohol.
Even if this canon of construction were applicable to this case, our result would be the same. The canon is quoted from Indian Law, at 845. In that same volume, the Solicitor of the Interior Department assumed that § 1161 would result in state prosecutions for failing to have a state license. See id., at 382-383. Whatever Congress had to do to provide “expressly” for the application of state law, the Solicitor obviously believed that Congress had done it in § 1161. Indeed, even in McClanahan, we suggested that § 1161 satisfied the canon of construction requiring that Congress expressly provide for application of state law. In discussing statutes that did satisfy the canon, we cited § 1161 and stated that “state liquor laws may be applicable within reservations.” 411 U. S., at 177, n. 16. More important, we have consistently refused to apply such a canon of construction when application would be tantamount to a formalistic disregard of congressional intent. “We give this r,ule [resolving ambiguities in favor of Indians] the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.” De-Coteau v. District County Court, 420 U. S. 425, 447 (1975). See also Andrus v. Glover Construction Co., 446 U. S. 608, 619 (1980). In the present case, congressional intent is clear from the face of the statute and its legislative history.
We conclude that § 1161 was intended to remove federal discrimination that resulted from the imposition of liquor prohibition on Native Americans. Congress was well aware that the Indians never enjoyed a tradition of tribal self-government insofar as liquor transactions were concerned. Congress was also aware that the States exercised concurrent authority insofar as prohibiting liquor transactions with Indians was concerned. By enacting §1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be created by the absence of the discriminatory federal prohibition. Congress did not intend to make tribal members “super citizens” who could trade in a traditionally regulated substance free from all but self-imposed regulations. See 678 F. 2d, at 1352 (Goodwin, J., dissenting). Rather, we believe that in enacting § 1161, Congress intended to recognize that Native Americans are not “weak and defenseless,” and are capable of making personal decisions about alcohol consumption without special assistance from the Federal Government. Application of the state licensing scheme does not “impair a right granted or reserved by federal law.” Kake Village, 369 U. S., at 75. On the contrary, such application of state law is “specifically authorized by . . . Congress . . . and [does] not interfere with federal policies concerning the reservations.” Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685, 687, n. 3 (1965).
H-I
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.
Title 18 U. S. C. § 1151 defines “Indian country” as “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”
There is some confusion among the parties and amici as to whether the court below held that the tribes had exclusive jurisdiction over the licensing and distribution of liquor on reservations irrespective of the identity of the vendor. Although we acknowledge that the decision below is somewhat ambiguous in this respect, we construe the opinion as applying only to vendors, like Rehner, who are members of the governing tribe.
The California licensing scheme is found in Cal. Bus. & Prof. Code Ann. § 23000 et seq. (West 1964 and Supp. 1983).
Section 1161 provides in full:
“The provisions of sections 1154,1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.”
Rehner appealed to the Court of Appeals for the Ninth Circuit, and, before a three-judge panel of that court rendered a decision on the appeal, two more cases arose presenting similar issues. The Ninth Circuit then scheduled argument en banc for all three cases. The companion cases were Muckleshoot Indian Tribe v. Washington, No. 79-4403, and Tulalip Tribes v. Washington, No. 79-4404 (CA9). These cases involved, inter alia, state sales taxes imposed on reservation liquor transactions, an issue not discussed or relied upon by the court below in this case. The court remanded these two companion cases to the District Court in the light of Washington v. Confederated, Tribes of Colville Indian Reservation, 447 U. S. 134 (1980).
The court also rejected the argument, made by one of the parties in the companion cases, that the Twenty-first Amendment permitted the States to exercise regulatory jurisdiction over liquor transactions on reservations. Because we base our holding on § 1161, we do not reach the issue whether the Twenty-first Amendment permits the State to exercise jurisdiction over liquor transactions on reservations. We also do not consider whether the State effectively has authority to regulate licensing and distribution of liquor transactions on reservations under any other statute. See 28 U. S. C. § 1360 (1976 ed. and Supp. V); 18 U. S. C. § 1162. At oral argument, both Rehner’s attorney and counsel for the United States as amicus curiae suggested that the State had broad powers to enforce “substantive” state liquor laws on reservations through 18 U. S. C. § 1162. See Tr. of Oral. Arg. 31-32, 40. See n. 18, infra.
Finally, we reject Rehner’s suggestion that this case has become moot because California now permits wholesalers to sell to unlicensed persons on Indian reservations. See Cal. Bus. & Prof. Code Ann. §23384 (West Supp. 1983). At oral argument, the State confirmed that despite this statutory change, the licensing requirement is still in effect. Tr. of Oral Arg. 19.
In Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), we held that a State may impose a nondiscriminatory tax on non-Indian customers of Indian retailers who conducted their businesses on the reservation, and that the State may require that the Indian retailer enforce and collect this tax. We upheld the tax on non-Indians in Moe even though we recognized that in “ ‘the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation ....”’ Id., at 475-476 (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973)). In Confederated Tribes, we said of the tax upheld in Moe that “[s]uch a tax may be valid even if it seriously disadvantages or eliminates the Indian retailer’s business with non-Indians. . .. [because] the Tribes have no vested right to a certain volume of sales to non-Indians, or indeed to any such sales at all.” 447 U. S., at 151, and n. 27. In Confederated Tribes, we also held that Indians resident on the reservation but nonmembers of the governing tribe “stand on the same footing as non-Indians resident on the reservation” insofar as imposition of tax on cigarette sales is concerned. Id., at 161. Regulation of sales to non-Indians or nonmembers of the Pala Tribe simply does not “contravene the principle of tribal self-government,” ibid., and, therefore, neither Rehner nor the Pala Tribe has any special interest that militates against state regulation in this case, providing that Congress has not pre-empted such regulation.
As Cohen notes: “Restriction on traffic in liquor with the Indians began in early colonial times. The tribes themselves at various times have sought to control liquor use, and it is worthy of note that the first federal control measure was enacted, at least in part, in response to the verbal plea of an Indian chief to President Jefferson in 1802. That measure was not a criminal law and depended on civil regulation of trafficking. The first prohibitions were enacted in 1822 and 1832, monetary penalties were added in the Trade and Intercourse Act of 1834, and imprisonment was added in 1862.
“Since 1834 federal law has specifically penalized both the introduction of liquor into Indian country and the operation of a distillery therein. Possession of liquor in Indian country has been a separate crime since 1918. . . .
“The 1834 Act also prohibited selling (or otherwise conveying) liquor to an Indian in Indian country; the 1862 replacement of this statute broadened the sale prohibition to include all Indians under the superintendence of a federal agent, even outside Indian country. This provision is still in the code as part of 18 U. S. C. § 1854, but is confined to Indian country by 18 U. S. C. § 1161 and can be conditionally suspended by enactment of a tribal ordinance pursuant to the latter section.” Cohen, at 306-307 (footnotes omitted).
See Ariz. Const., Art. 20, ¶3 (prohibition removed in 1954); N. M. Const., Art. XXI, §1 (1911) (prohibition removed in 1953); Okla. Const., Art. I, § 7 (1907) (prohibition removed in 1959).
See, e. g., State v. Rorvick, 76 Idaho 58, 277 P. 2d 566 (1954); State v. Lindsey, 133 Wash. 140, 233 P. 327 (1925); Dagan v. State, 162 Wis. 353, 156 N. W. 153 (1916); State v. Justice, 44 Utah 484, 141 P. 109 (1914); State v. Mamlock, 58 Wash. 631, 109 P. 47 (1910); People v. Gebhard, 151 Mich. 192, 115 N. W. 54 (1908); Tate v. State, 58 Neb. 296, 78 N. W. 494 (1899); State v. Wise, 70 Minn. 99, 72 N. W. 843 (1897); People v. Bray, 105 Cal. 344, 38 P. 731 (1894); Territory v. Guyott, 9 Mont. 46, 22 P. 134 (1889); Territory v. Coleman, 1 Ore. 191 (1855). See also G. Colby, Digest of the Excise Laws of Some of the States of the Union and Foreign Countries 9, 36, 43 (1888) (describing similar laws in Colorado, Missouri, and Nevada).
The court stated that it did not reach the sovereignty issue in the light of its holding that § 1161 had pre-emptive effect. See 678 P. 2d, at 1348, and 1349, n. 18. However, the court did acknowledge that it was obligated “to incorporate the principle of tribal sovereignty into our preemption analysis.” Id., at 1348.
In dissent, Justice Blackmun argues that the Court’s analysis of tribal sovereignty has “never turned on whether the particular area being regulated is one traditionally within the tribe’s control.” Post, at 739 (emphasis in original). As support for this proposition, Justice Blackmun relies on Ramah Navajo School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832 (1982), Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), and Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973). These cases fail to support Justice Blackmun’s position. In Ramah, we held that federal law pre-empted state regulation. In Moe, we found that the state regulation was a taxing measure prohibited by federal statute. In Mescalero Apache Tribe, we held that the State could not impose a tax on personalty because it was “ ‘permanently attached to the realty’. . . . [and] would certainly be immune from the State’s ad valorem property tax.” 411 U. S., at 158. Contrary to Justice Blackmun’s suggestion, none of these eases involved a situation where the Court recognized tribal immunity in a historical context in which the Indians were divested of the inherent power to regulate.
This hearing, as well as those hearings on May 6, 1953, and June 2, 1953, is not officially published, and all the hearings are reprinted in the petitioner’s brief.
Although administrative interpretation changed in 1971, see Applicability of the Liquor Laws of the State of Montana on the Rocky Boy’s Reservation, 78 I. D. 39 (1971), it is clear that the early interpretation by the Bureau of Indian Affairs favors the State’s position. As that early position is consistent with the view of Commisioner Myer, whose Bureau revised H. R. 1055, it is surely more indicative of congressional intent in 1953 than a 1971 opinion to the contrary.
In addition, we note that the 1971 opinion of the Solicitor appears to be based on his view that in Warren Trading Post Co. v. Arizona Tax Comrn’n, 380 U. S. 685 (1965), we drew a distinction between state licensing requirements and state “substantive” liquor laws, and found only the latter to be applicable under § 1161. See 78 I. D., at 40, n. 1. In Warren Trading Post Co., we actually described § 1161 as “permitting application of state liquor law standards within an Indian reservation under certain conditions.” 380 U. S., at 687, n. 3. We fail to understand how our description of § 1161 in that opinion can be interpreted as creating a distinction between “substantive” and “regulatory” laws. To the extent that the Solicitor’s new interpretation owes anything to our decision in Warren Trading Post Co., we reject the interpretation.
In dissent, Justice Blackmun accepts the distinction between substantive and licensing laws that he believes was articulated in Warren Trading Post Co. For the reasons explained in this note and n. 18, infra, Justice Blackmun’s arguments are not successful.
Indeed, given the history of concurrent state jurisdiction and the tradition of complete prohibition imposed on the Indians, the delegation to the States is more readily apparent than the delegation to the tribes.
This canon is based, in part, on the notion that we normally resolve any doubt in a pre-emption analysis in favor of the Indians because of their status as “‘wards of the nation.’” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 174 (1973) (quoting Carpenter v. Shaw, 280 U. S. 363, 367 (1930)). Even if this canon properly informed a pre-emption analysis that involved a historic tradition of federal and state regulation, its application in the context of liquor licensing and distribution would be problematic. Liquor trade has been regulated among the Indians largely due to early attempts by the tribes themselves to seek assistance in controlling Indian access to liquor. See talk delivered by Little Turtle to President Thomas Jefferson on January 4, 1802, reprinted in 4 American State Papers, Indian Affairs, Vol. 1, p. 655 (1832). In many respects, the concerns about liquor expressed by the tribes were responsible for the development of the dependent status of the tribes. When the substance to be regulated is that primarily responsible for “dependent” status, it makes no sense to say that the historical position of Indians as federal “wards” militates in favor of giving exclusive control over licensing and distribution to the tribes.
In three other cases, we have assumed that § 1161 delegated the authority that we now find that it so delegated. In Organized Village of Kake v. Egan, 369 U. S. 60, 74 (1962), we stated that “the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself.” In United States v. Mazurie, 419 U. S. 544, 547 (1975), we stated that § 1161 permitted “Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated.” Finally, in Warren Trading Post Co., 380 U. S., at 687, n. 3, we described § 1161 as “permitting application of state liquor law standards within an Indian reservation under certain conditions.”
The court below held that “[t]he Termination Acts, Pub. L. 280 [28 U. S. C. § 1360(a)] and section 1161 are statutes regarding the applicability of state law in Indian country and must therefore be considered in pari materia and construed together.” 678 F. 2d, at 1346, n. 9. In the court’s view, § 1161 did not contain language regarding state authority expressed as clearly as in the other statutes. We reject this argument in the light of the clear congressional intent in this case.
Rehner also argues that in the context of passing Pub. L. 280, Congress rejected the view that repeal of federal prohibition was contingent upon applicability of state liquor law. See Brief for Respondent 41-44. Rehner neglects to note that what Congress originally contemplated was that federal prohibition would be lifted in return for Indian acquiescence to broad state civil and criminal jurisdiction over reservations. See Hearings on H. R. 459, H. R. 3235, and H. R. 3624 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 82d Cong., 2d Sess., 30, 48 (1952).
The Court of Appeals appeared to accept the argument that Congress delegated to the tribes the exclusive right to license liquor distribution. According to this argument, the reference to state law in § 1161 refers only to the fact that for purposes of determining whether a violation of federal law has occurred, state substantive law, and not regulatory law, is to be incorporated by reference into the federal scheme. The difficulty with this argument is apparent. Nowhere in the text of § 1161, or in the legislative history, is there any distinction between “substantive” and “regulatory” laws. The distinction cannot be found in our decision in Warren Trading Post Co., supra. See n. 13, supra. In the absence of a context that might possibly require it, we are reluctant to make such a distinction. Cf. Bryan v. Itasca County, 426 U. S. 373, 390 (1976) (grant of civil jurisdiction in 28 U. S. C. § 1360 does not include regulatory jurisdiction to tax in light of tradition of immunity from taxation). We also note that it appears as though the court was interpreting the reach of federal criminal jurisdiction under § 1161 as much as it was deciding the scope of state jurisdiction. In the light of the fact that the Federal Government was not a party below, we do not understand this aspect of the court’s holding.
The court also held that because tribal ordinances must be approved by the Secretary of the Interior, Congress has shown its intention to occupy the field. We reject this argument on the basis of the plain language of the statute and its legislative history. That Rehner is. a licensed federal trader is also insufficient to show that Congress intended to occupy the field to the exclusion of state laws. Rehner relies on our decision in Warren Trading Post Co., supra, in which we held that Arizona could not impose a tax on a federally licensed trader for income earned through trading with reservation Indians on the reservation. In Warren Trading Post Co., we held that Congress did not authorize any additional burden on the licensed trader while in this case we think that Congress did authorize the regulation. In addition, we recognized in Warren Trading Post Co. itself the difference between § 1161 and the income tax. See n. 13, supra. Our decision in Central Machinery Co. v. Arizona State Tax Comm’n, 448 U. S. 160 (1980), upon which Rehner also relies in this respect, is based on Warren Trading Post Co., and similarly fails to support Rehner’s point.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
25
] |
SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES v. GUERNSEY MEMORIAL HOSPITAL
No. 93-1251.
Argued October 31, 1994
Decided March 6, 1995
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Scalia, Souter, and Thomas, JJ., joined, post, p. 102.
Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Anthony J. Steinmeyer, and John P. Schnitker.
Scott W. Taebel argued the cause for respondent. With him on the brief was Diane M. Signoracci.
Briefs of amici curiae urging affirmance were filed for the American Hospital Association et al. by Robert A. Klein and Charles W. Bailey; for the hospitals participating in St. John Hospital v. Shalala by William G. Christopher, Chris Rossman, and Kenneth R. Marcus; and for the Mother Frances Hospital et al. by Dan M. Peterson.
Justice Kennedy
delivered the opinion of the Court.
In this case a health care provider challenges a Medicare reimbursement determination by the Secretary of Health and Human Services. What begins as a rather conventional accounting problem raises significant questions respecting the interpretation of the Secretary’s regulations and her authority to resolve certain reimbursement issues by adjudication and interpretive rules, rather than by regulations that address all accounting questions in precise detail.
The particular dispute concerns whether the Medicare regulations require reimbursement according to generally accepted accounting principles (GAAP), and whether the reimbursement guideline the Secretary relied upon is invalid because she did not follow the notice-and-comment provisions of the Administrative Procedure Act (APA) in issuing it. We hold that the Secretary’s regulations do not require reimbursement according to GAAP and that her guideline is a valid interpretive rule.
I
Respondent Guernsey Memorial Hospital (hereinafter Hospital) issued bonds in 1972 and 1982 to fund capital improvements. In 1985, the Hospital refinanced its bonded debt by issuing new bonds. Although the refinancing will result in an estimated $12 million saving in debt service costs, the transaction did result in an accounting loss, sometimes referred to as an advance refunding or defeasance loss, of $672,581. The-Hospital determined that it was entitled to Medicare reimbursement for about $314,000 of the loss. The total allowable amount of the loss is not in issue, but its timing is. The Hospital contends it is entitled to full reimbursement in one year, the year of the refinancing; the Secretary contends the loss must be amortized over the life of the old bonds.
The Secretary’s position is in accord with an informal Medicare reimbursement guideline. See U. S. Dept. of Health and Human Services, Medicare Provider Reimbursement Manual §233 (Mar. 1993) (PRM). PRM §233 does not purport to be a regulation and has not been adopted pursuant to the notice-and-comment procedures of the Administrative Procedure Act. The fiscal intermediary relied on § 233 and determined that the loss had to be amortized. The Provider Reimbursement Review Board disagreed, see App. to Pet. for Cert. 54a, but the Administrator of the Health Care Financing Administration reversed the Board’s decision, see id., at 40a. In the District Court the Secretary’s position was sustained, see Guernsey Memorial Hospital v. Sullivan, 796 F. Supp. 283 (SD Ohio 1992), but the Court of Appeals reversed, see Guernsey Memorial Hospital v. Secretary of Health and Human Services, 996 F. 2d 830 (CA6 1993). In agreement with the Hospital, the court interpreted the Secretary’s own regulations to contain a “flat statement that generally accepted accounting principles ‘are followed’ ” in determining Medicare reimbursements. Id., at 833 (quoting 42 CFR § 413.20(a)). Although it was willing to accept the argument that PRM § 233’s treatment of advance refunding losses “squares with economic reality,” 996 F. 2d, at 834, the Court of Appeals concluded that, because PRM §233 departed from GAAP, it “effects a substantive change in the regulations [and is] void by reason of the agency’s failure to comply with the Administrative Procedure Act in adopting it.” Id., at 832. Once the court ruled that GAAP controlled the timing of the accrual, it followed that the Hospital, not the Secretary, was correct and that the entire loss should be recognized in the year of refinancing.
We granted certiorari, 511 U. S. 1016 (1994), and now reverse.
II
Under the Medicare reimbursement scheme at issue here, participating hospitals furnish services to program beneficiaries and are reimbursed by the Secretary through fiscal intermediaries. See 42 U. S. C. §§ 1395g and 1395h (1988 and Supp. V). Hospitals are reimbursed for “reasonable costs,” defined by the statute as “the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services.” § 1395x(v)(1)(A). The Medicare Act, 79 Stat. 290, as amended, 42 U. S. C. § 1395 et seq., authorizes the Secretary to promulgate regulations “establishing the method or methods to be used” for determining reasonable costs, directing her in the process to “consider, among other things, the principles generally applied by national organizations or established prepayment organizations (which have developed such principles) in computing” reimbursement amounts. § 1395x(v)(l)(A).
The Secretary has promulgated, and updated on an annual basis, regulations establishing the methods for determining reasonable cost reimbursement. See Good Samaritan Hospital v. Shalala, 508 U. S. 402,404-407 (1993). The relevant provisions can be found within 42 CFR pt. 413 (1994). Respondent contends that two of these regulations, §§ 413.20(a) and 413.24, mandate reimbursement according to GAAP, and the Secretary counters that neither does.
A
Section 413.20(a) provides as follows:
“The principles of cost reimbursement require that providers maintain sufficient financial records and statistical data for proper determination of costs payable under the program. Standardized definitions, accounting, statistics, and reporting practices that are widely accepted in the hospital and related fields are followed. Changes in these practices and systems will not be required in order to determine costs payable under the principles of reimbursement. Essentially the methods of determining costs payable under Medicare involve making use of data available from the institution’s basis accounts, as usually maintained, to arrive at equitable and proper payment for services to beneficiaries.”
Assuming, arguendo, that the “[standardized definitions, accounting, statistics, and reporting practices” referred to by the regulation refer to GAAP, that nevertheless is just the beginning, not the end, of the inquiry. The decisive question still remains: Who is it that “foliow[s]” GAAP, and for what purposes? The Secretary’s view is that § 413.20(a) ensures the existence of adequate provider records but does not dictate her own reimbursement determinations. We are persuaded that the Secretary’s reading is correct.
Section 413.20(a) sets forth its directives in an ordered progression. The first sentence directs that providers must maintain records that are sufficient for proper determination of costs. It does not say the records are conclusive of the entire reimbursement process. The second sentence makes it clear to providers that standardized accounting practices are followed. The third sentence reassures providers that changes in their recordkeeping practices and systems are not required in order to determine what costs the provider can recover when principles of reimbursement are applied to the provider’s raw cost data. That sentence makes a distinction between recordkeeping practices and systems on one hand and principles of reimbursement on the other. The last sentence confirms the distinction, for it contemplates that a provider’s basic financial information is organized according to GAAP as a beginning point from which the Secretary “arrive [s] at equitable and proper payment for services.” This is far different from saying that GAAP is by definition an equitable and proper measure of reimbursement.
The essential distinction between recordkeeping requirements and reimbursement principles is confirmed by the organization of the regulations in 42 CFR pt. 413 (1994). Sub-part A sets forth introductory principles. Subpart B, containing the regulation here in question, is entitled “Accounting Records and Reports.” The logical conclusion is that the provisions in subpart B concern recordkeeping requirements rather than reimbursement, and closer inspection reveals this to be the case. Section 413.20 is the first section in subpart B, and is entitled “Financial data and reports.” In addition to § 413.20(a), the other paragraphs in §413.20 govern the “[f]requency of cost reports,” “[r]ecordkeeping requirements for new providers,” “ [continuing provider recordkeeping requirements,” and “[sjuspension of program payments to a provider . . . [who] does not maintain . . . adequate records.” Not until the following subparts are cost reimbursement matters considered. Subpart C is entitled “Limits on Cost Reimbursement,” subpart D “Apportionment [of Allowable Costs],” subpart E “Payments to Providers,” and subparts F through H address reimbursement of particular cost categories. The logical sequence of a regulation or a part of it can be significant in interpreting its meaning.
It is true, as the Court of Appeals said, that § 413.20(a) “does not exist in a vacuum” but rather is a part of the overall Medicare reimbursement scheme. 996 F. 2d, at 835. But it does not follow from the fact that a provider’s cost accounting is the first step toward reimbursement that it is the only step. It is hardly surprising that the reimbursement process begins with certain recordkeeping requirements.
The regulations’ description of the fiscal intermediary’s role underscores this interpretation. The regulations direct the intermediary to consult and assist providers in interpreting and applying the principles of Medicare reimbursement to generate claims for reimbursable costs, § 413.20(b), suggesting that a provider’s own determination of its claims involves more than handing over its existing cost reports. The regulations permit initial acceptance of reimbursable cost claims, unless there are obvious errors or inconsistencies, in order to expedite payment. § 413.64(f)(2). When a subsequent, more thorough audit follows, it may establish that adjustments are necessary. Ibid.; see also §§ 421.100(a), (c). This sequence as well is consistent with the Secretary’s view that a provider’s cost accounting systems are only the first step in the ultimate determination of reimbursable costs.
The Secretary’s position that § 413.20(a) does not bind her to reimburse according to GAAP is supported by the regulation’s text and the overall structure of the regulations. It is a reasonable regulatory interpretation, and we must defer to it. Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994); see also Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 151 (1991) (“Because applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers”); Lyng v. Payne, 476 U. S. 926, 939 (1986) (“agency’s construction of its own regulations is entitled to substantial deference”).
Respondent argues that, even if § 413.20(a) does not mandate reimbursement according to GAAP, §413.24 does. This contention need not detain us long. Section 413.24 requires that a provider’s cost data be based on the accrual basis of accounting, under which “revenue is reported in the period when it is earned, regardless of when it is collected, and expenses are reported in the period in which they are incurred, regardless of when they are paid.” §413.24(b)(2). But GAAP is not the only form of accrual accounting; in fact, both the GAAP approach and PRM §233 reflect different methods of accrual accounting. See Accounting Principles Board (APB) Opinion No. 26, ¶ ¶ 5-8, reprinted at App. 64-66 (describing alternative accrual methods of recognizing advance refunding losses, including the one adopted in PRM §233). Section 413.24 does not, simply by its accrual accounting requirement, bind the Secretary to make reimbursements according to GAAP.
B
The Secretary’s reading of her regulations is consistent with the Medicare statute. Rather than requiring adherence to GAAP, the statute merely instructs the Secretary, in establishing the methods for determining reimbursable costs, to “consider, among other things, the principles generally applied by national organizations or established prepayment organizations (which have developed such principles) in computing the amount of payment... to providers of services.” 42 U. S. C. § 1395x(v)(1)(A).
Nor is there any basis for suggesting that the Secretary has a statutory duty to promulgate regulations that, either by default rule or by specification, address every conceivable question in the process of determining equitable reimbursement. To the extent the Medicare statute’s broad delegation of authority imposes a rulemaking obligation, see ibid., it is one the Secretary has without doubt discharged. See Good Samaritan Hospital v. Shalala, 508 U. S., at 418, and n. 13, 419, n. 15. The Secretary has issued regulations to address a wide range of reimbursement questions. The regulations are comprehensive and intricate in detail, addressing matters such as limits on cost reimbursement, apportioning costs to Medicare services, and the specific treatment of numerous particular costs. As of 1994, these regulations consumed some 640 pages of the Code of Federal Regulations.
As to particular reimbursement details not addressed by her regulations, the Secretary relies upon an elaborate adjudicative structure which includes the right to review by the Provider Reimbursement Review Board, and, in some instances, the Secretary, as well as judicial review in federal district court of final agency action. 42 U. S. C. § 1395oo(f)(1); see Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 400-401 (1988). That her regulations do not resolve the specific timing question before us in a conclusive way, or “could use a more exact mode of calculating,” does not, of course, render them invalid, for the “methods for the estimation of reasonable costs” required by the statute only need be “generalizations [that] necessarily will fail to yield exact numbers.” Good Samaritan, supra, at 418. The APA does not require that all the specific applications of a rule evolve by further, more precise rules rather than by adjudication. See NLRB v. Bell Aerospace Co., 416 U. S. 267 (1974); SEC v. Chenery Corp., 332 U. S. 194 (1947). The Secretary’s mode of determining benefits by both rulemaking and adjudication is, in our view, a proper exercise of her statutory mandate.
Ill
We also believe it was proper for the Secretary to issue a guideline or interpretive rule in determining that defeasance losses should be amortized. PRM § 233 is the means to ensure that capital-related costs allowable under the regulations are reimbursed in a manner consistent with the statute’s mandate that the program bear neither more nor less than its fair share of costs. 42 U. S. C. § 1395x(v)(1)(A)(i) (“[T]he necessary costs of efficiently delivering covered services to individuals covered by [Medicare] will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by [Medicare]”). The Secretary has promulgated regulations authorizing reimbursement of capital-related costs such as respondent’s that are “appropriate and helpful in . . . maintaining the operation of patient care facilities,” 42 CFR § 413.9(b)(2) (1994); see generally §§413.130-413.157, including “[Necessary and proper interest” and other costs associated with capital indebtedness, § 413.153(a)(1); see also §§ 413.130(a)(7) and (g). The only question unaddressed by the otherwise comprehensive regulations on this particular subject is whether the loss should be recognized at once or spread over a period of years. It is at this step that PRM § 233 directs amortization.
Although one-time recognition in the initial year might be the better approach where the question is how best to portray a loss so that investors can appreciate in full a company’s financial position, see APB Opinion 26, ¶¶4-5, reprinted at App. 64, the Secretary has determined in PRM §233 that amortization is appropriate to ensure that Medicare only reimburse its fair share. The Secretary must calculate how much of a provider’s total allowable costs are attributable to Medicare services, see 42 CFR §§ 413.5(a), 413.9(a), and (c)(3) (1994), which entails calculating what proportion of the provider’s services were delivered to Medicare patients, §§413.50 and 413.53. This ratio is referred to as the provider’s “Medicare utilization.” App. to Pet. for Cert. 49a. In allocating a provider’s total allowable costs to Medicare, the Secretary must guard against various contingencies. The percentage of a hospital’s patients covered by Medicare may change from year to year; or the provider may drop from the Medicare program altogether. Either will cause the hospital’s Medicare utilization to fluctuate. Given the undoubted fact that Medicare utilization will not be an annual constant, the Secretary must strive to assure that costs associated with patient services provided over time be spread, to avoid distortions in reimbursement. As the provider’s yearly Medicare utilization becomes ascertainable, the Secretary is able to allocate costs with accuracy and the program can bear its proportionate share. Proper reimbursement requires proper timing. Should the Secretary reimburse in one year costs in fact attributable to a span of years, the reimbursement will be determined by the provider’s Medicare utilization for that one year, not for later years. This leads to distortion. If the provider’s utilization rate changes or if the provider drops from the program altogether the Secretary will have reimbursed up front an amount other than that attributable to Medicare services. The result would be cross-subsidization, id., at 50a, which the Act forbids. 42 U. S. C. § 1395x(v)(1)(A)(i).
That PRM §233 implements the statutory ban on cross-subsidization in a reasonable way is illustrated by the Administrator’s application of §233 to the facts of this case. The Administrator found that respondent’s loss “did not relate exclusively to patient care services rendered in the year of the loss .... [but were] more closely related to [patient care services in] the years over which the original bond term extended.” App. to Pet. for Cert. 49a. Because the loss was associated with patient services over a period of time, the Administrator concluded that amortization was required to avoid the statutory ban on cross-subsidization:
“The statutory prohibition against cross-subsidization [citing the provision codified at 42 U. S. C. § 1395x (v)(1)(A)], requires that costs recognized in one year, but attributable to health services rendered over a number of years, be amortized and reimbursed during those years when Medicare beneficiaries use those services.” Id., at 50a (footnote omitted).
“By amortizing the loss to match it to Medicare utilization over the years to which it relates, the program is protected from any drop in Medicare utilization, and the provider is likewise assured that it will be adequately reimbursed if Medicare utilization increases. Further, the program is protected from making a payment attributable to future years and then having the provider drop out of the Program before services are rendered to Medicare beneficiaries in those future years.” Id., at 49a (footnote omitted).
As an application of the statutory ban on cross-subsidization and the regulatory requirement that only the actual cost of services rendered to beneficiaries during a given year be reimbursed, 42 U. S. C. § 1395x(v)(1)(A)(i); 42 CFR §413.9 (1994), PRM §233 is a prototypical example of an interpretive rule “ ‘issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.’ ” Chrysler Corp. v. Brown, 441 U. S. 281, 302, n. 31 (1979) (quoting Attorney General’s Manual on the Administrative Procedure Act 30, n. 3 (1947)). Interpretive rules do not require notice and comment, although, as the Secretary recognizes, see Foreword to PRM, they also do not have the force and effect of law and are not accorded that weight in the adjudicatory process, ibid.
We can agree that APA rulemaking would still be required if PRM §233 adopted a new position inconsistent with any of the Secretary’s existing regulations. As set forth in Part II, however, her regulations do not require reimbursement according to GAAP. PRM §233 does not, as the Court of Appeals concluded it does, “effec[t] a substantive change in the regulations.” 996 F. 2d, at 832.
IV
There is much irony in the suggestion, made in support of the Hospital’s interpretation of the statute and regulations, that the Secretary has bound herself to delegate the determination of any matter not specifically addressed by the regulations to the conventions of financial accounting that comprise GAAP. The Secretary in effect would be imposing upon herself a duty to go through the time-consuming rulemaking process whenever she disagrees with any announcements or changes in GAAP and wishes to depart from them. Examining the nature and objectives of GAAP illustrates the unlikelihood that the Secretary would choose that course.
Contrary to the Secretary’s mandate to match reimbursement with Medicare services, which requires her to determine with some certainty just when and on whose account costs are incurred, GAAP “do[es] not necessarily parallel economic reality.” R. Kay & D. Searfoss, Handbook of Accounting and Auditing, ch. 5, p. 7 (2d ed. 1989). Financial accounting is not a science. It addresses many questions as to which the answers are uncertain and is a “process [that] involves continuous judgments and estimates.” Id., ch. 5, at 7-8. In guiding these judgments and estimates, “financial accounting has as its foundation the principle of conservatism, with its corollary that ‘possible errors in measurement [should] be in the direction of understatement rather than overstatement of net income and net assets.’ ” Thor Power Tool Co. v. Commissioner, 439 U. S. 522, 542 (1979) (citation omitted). This orientation may be consistent with the objective of informing investors, but it ill serves the needs of Medicare reimbursement and its mandate to avoid cross-subsidization. Cf. id., at 543 (“[T]he accountant’s conservatism cannot bind the Commissioner [of the IRS] in his efforts to collect taxes”).
GAAP is not the lucid or encyclopedic set of pre-existing rules that the dissent might perceive it to be. Far from a single-source accounting rulebook, GAAP “encompasses the conventions, rules, and procedures that define accepted accounting practice at a particular point in time.” Kay & Searfoss, ch. 5, at 7 (1994 Update). GAAP changes and, even at any one point, is often indeterminate. “[T]he determination that a particular accounting principle is generally accepted may be difficult because no single source exists for all principles.” Ibid. There are 19 different GAAP sources, any number of which might present conflicting treatments of a particular accounting question. Id., ch. 5, at 6-7. When such conflicts arise, the accountant is directed to consult an elaborate hierarchy of GAAP sources to determine which treatment to follow. Ibid. We think it is a rather extraordinary proposition that the Secretary has consigned herself to this process in addressing the timing of Medicare reimbursement.
The framework followed in this case is a sensible structure for the complex Medicare reimbursement process. The Secretary has promulgated regulations setting forth the basic principles and methods of reimbursement, and has issued interpretive rules such as PRM §233 that advise providers how she will apply the Medicare statute and regulations in adjudicating particular reimbursement claims. Because the Secretary’s regulations do not bind her to make Medicare reimbursements in accordance with GAAP, her determination in PRM § 233 to depart from GAAP by requiring bond defeasance losses to be amortized does not amount to a substantive change to the regulations. It is a valid interpretive rule, and it was reasonable for the Secretary to follow that policy here to deny respondent’s claim for full reimbursement of its defeasance loss in 1985.
The judgment of the Court of Appeals is reversed.
It is so ordered.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
62
] |
BETHESDA HOSPITAL ASSOCIATION et al. v. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES
No. 86-1764.
Argued February 29, 1988
Decided April 4, 1988
Kennedy, J., delivered the opinion for a unanimous Court.
Leonard C. Homer argued the cause for petitioners. With him on the briefs was Carel T. Hedlund.
Andrew J. Pincus argued the cause for respondent. With him on the brief were Acting Solicitor General Wallace, Assistant Attorney General Willard, and Deputy Solicitor General Merrill.
Linda A. Tomaselli and Stuart M. Gerson filed a brief for the American Hospital Association as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
Under the Medicare program, Title XVÍII of the Social Security Act, 79 Stat. 291, 42 U. S. C. § 1395 et seq. (1982 ed. and Supp. III), certain qualified providers of health care services are reimbursed by the Secretary of Health and Human Services for the reasonable cost of providing covered services to Medicare beneficiaries. Each such provider submits a cost report at the end of the year to a fiscal intermediary, usually a private insurance company acting as an agent for the Secretary. The fiscal intermediary audits the cost report and issues a Notice of Program Reimbursement specifying the amount of reimbursement due to the provider and explaining any adjustments.
A provider may appeal the intermediary’s final determination to the Provider Reimbursement Review Board and, under certain circumstances, may obtain a hearing from the Board. The Board is authorized to affirm, modify, or reverse intermediary decisions. The Secretary, either on his own motion or on request of the provider, may review the matter further, and any provider that remains dissatisfied with a final decision of the Board or Secretary may seek review in a United States district court. §§ 1395oo(a), (d), (f).
This case requires us to decide whether the Board may decline to consider a provider’s challenge to one of the Secretary’s regulations on the ground that the provider failed to contest the regulation’s validity in the cost report submitted to its fiscal intermediary.
I
Petitioners Bethesda Hospital Association and Deaconess Hospital of Cincinnati are Ohio entities that operate hospitals in that State. Bethesda and Deaconess joined with some 27 other hospitals to challenge a 1979 regulation promulgated by the Secretary, which disallowed certain claims for malpractice insurance premium costs. We are not concerned here with the merits of the challenge to the 1979 regulation; rather, we must decide whether the Board had jurisdiction to consider the issue.
In their cost reports for 1980, petitioners followed the 1979 regulation in their apportionment of malpractice insurance costs and thereby effected, in the lexicon of the Medicare program, a “self-disallowance” of malpractice insurance costs in excess of those allowed by the 1979 regulation. Petitioners later filed a timely request for a hearing before the Board, challenging the validity of the malpractice regulation and seeking reimbursement for malpractice costs in accordance with the pre-1979 methodology. Because the amounts had been self-disallowed in the reports filed with the fiscal intermediary, however, the Board determined that it was without jurisdiction to hear petitioners’ claims. The Board held, in essence, that a statutory condition to its jurisdiction had not been met, stating that its authority to grant hearings is limited to cases in which the provider is “dissatisfied with a final determination of the . . . fiscal intermediary,” and reasoning that petitioners could not be dissatisfied when they had effected a self-disallowance of the claims. The District Court, in disagreement with the Board’s reasoning, held that the Board should have exercised jurisdiction over the matter. Bethesda Hospital v. Heckler, 609 F. Supp. 1360, 1368 (SD Ohio 1985).
The Secretary appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the District Court. The Court of Appeals stated that “[w]ere we considering this issue as a matter of first impression, we may well haye reached a different conclusion as to the advisability of requiring submission of statutory and/or constitutional challenges to a private insurance company as a condition precedent to further administrative as well as judicial review of the Secretary’s regulations.” Bethesda Hospital v. Secretary of Health and Human Services, 810 F. 2d 558, 562 (1987). The court found itself bound, however, by the decision of a prior panel in Baptist Hospital East v. Secretary of Health and Human Services, 802 F. 2d 860 (1986), where it was held that the Board had properly “refused to exercise jurisdiction over those claims by providers who had self-disallowed reimbursement and had failed to challenge the Secretary’s regulations before the fiscal intermediary.” Bethesda Hospital v. Secretary of Health and Human Services, supra, at 561. We granted certiorari, 484 U. S. 813 (1987), to resolve a conflict among the Courts of Appeals. We now reverse.
II
The plain meaning of the statute decides the issue presented. See INS v. Cardoza-Fonseca, 480 U. S. 421, 432, and n. 12 (1987); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). The parties agree that §1395oo(a) addresses the circumstances in which a provider may invoke the Board’s jurisdiction. To the extent pertinent here, § 1395oo(a) states that a provider may obtain a hearing before the Board with respect to its cost report if
“(1) such provider—
“(A)(i) is dissatisfied with a final determination of . . . its fiscal intermediary ... as to the amount of total program reimbursement due the provider... for the period covered by such report. . .
“(2) the amount in controversy is $10,000 or more, and
“(3) such provider files a request for a hearing within 180 days . . . 42 U. S. C. §1395oo(a) (1982 ed. and Supp. III).
The Secretary contends that the requirement that a provider be “dissatisfied with a final determination of. . . its fiscal intermediary” necessarily incorporates an exhaustion requirement. In the Secretary’s view, a provider’s right to a hearing before the Board extends only to claims presented to a fiscal intermediary because the provider cannot be “dissatisfied” with the intermediary’s decision to award the amounts requested in the provider’s cost report. Petitioners counter that it would have been improper, or at least irregular, to submit a claim for cost reimbursement in a manner prohibited by the regulations, and that it was correct to raise their challenge in the first instance by presenting the matter to the Board.
The strained interpretation offered by the Secretary is inconsistent with the express language of the statute. We agree that, under subsection (a)(1)(A)(i), a provider’s dissatisfaction with the amount of its total reimbursement is a condition to the Board’s jurisdiction. It is clear, however, that the submission of a cost report in full compliance with the unambiguous dictates of the Secretary’s rules and regulations does not, by itself, bar the provider from claiming dissatisfaction with the amount of reimbursement allowed by those regulations. No statute or regulation expressly mandates that a challenge to the validity of a regulation be submitted first to the fiscal intermediary. Providers know that, under the statutory scheme, the fiscal intermediary is confined to the mere application of the Secretary’s regulations, that the intermediary is without power to award reimbursement except as the regulations provide, and that any attempt to persuade the intermediary to do otherwise would be futile. Thus, petitioners stand on different ground than do providers who bypass a clearly prescribed exhaustion requirement or who fail to request from the intermediary reimbursement for all costs to which they are entitled under applicable rules. While such defaults might well establish that a provider was satisfied with the amounts requested in its cost report and awarded by the fiscal intermediary, those circumstances are not presented here. We conclude that petitioners could claim dissatisfaction, within the meaning of the statute, without incorporating their challenge in the cost reports filed with their fiscal intermediaries.
While the express language of subsection (a) requires the result we reach in the present case, our conclusion is also supported by the language and design of the statute as a whole. Cf. Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 220-221 (1986). Section 1395oo(d), which sets forth the powers and duties of the Board once its jurisdiction has been invoked, explicitly provides that in making its decision whether to affirm, modify, or reverse the intermediary’s decision, the Board can “make any other revisions on matters covered by such cost report . . . even though such matters were not considered by the intermediary in making such final determination.” This language allows the Board, once it obtains jurisdiction pursuant to subsection (a), to review and revise a cost report with respect to matters not contested before the fiscal intermediary. The only limitation prescribed by Congress is that the matter must have been “covered by such cost report,” that is, a cost or expense that was incurred within the period for which the cost report was filed, even if such cost or expense was not expressly claimed.
Neither the fiscal intermediary nor the Board has the authority to declare regulations invalid. It does not follow, however, that the statute treats the two entities alike or that it requires the provider to announce its regulatory challenge at each level; for the Board has a statutory function that the fiscal intermediary does not have. Subsection (f)(1) grants providers the right to obtain judicial review of an action of the fiscal intermediary, but the predicate is that the Board must first make a determination that it is without authority to decide the matter because the provider’s claim involves a question of law or regulations. It is this determination of the Board, or alternatively the Board’s failure to act, that triggers the right of judicial review.
The Secretary notes that subsection (f)(1) posits review of an “action of the fiscal intermediary,” and argues that without presenting the intermediary with the challenge to the regulation there can be no action to review. The statute provides, however, that the intermediary has no authority to deviate from the rules and regulations and that the Board, not the fiscal intermediary, is to make the determination that it lacks the requisite authority to consider the validity of the regulation. Under this statutory scheme, requiring submission of the regulatory challenge to the fiscal intermediary is quite unnecessary. The Board has a role in shaping the controversy that is subject to judicial review; the fiscal intermediary does not.
Finally, the Secretary’s proffered requirement of notice to the fiscal intermediary is internally inconsistent. The Secretary cannot maintain, on the one hand, that it is of vital importance to present challenges to the Secretary’s regulations in the first instance to the fiscal intermediary and, on the other, acknowledge that a mere cover letter would suffice because the fiscal intermediary lacks authority to rule on the challenge. By objecting to the regulation in the first instance in proceedings before the Board, the petitioners protected their right to judicial review.
We hold that the plain language of the statute demonstrates that the Provider Reimbursement Review Board had jurisdiction to entertain this action. 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.
Compare Bethesda Hospital v. Secretary of Health and Human Services, 810 F. 2d 558 (CA6 1987) (case below) (finding there is no Board jurisdiction); North Broward Hospital Dist. v. Bowen, 808 F. 2d 1405 (CA11 1987) (same), cert. pending, No. 86-1986; Community Hospital of Roanoke Valley v. Health and Human Services, 770 F. 2d 1257 (CA4 1985) (same); Athens Community Hospital, Inc. v. Schweiker, 222 U. S. App. D. C. 363, 686 F. 2d 989 (1982), modified, 240 U. S. App. D. C. 1, 743 F. 2d 1 (1984) (same), with Adams House Health Care v. Heckler, 817 F. 2d 587 (CA9 1987) (finding there is mandatory Board jurisdiction), cert. pending, No. 87-443; St. Mary of Nazareth Hospital Center v. Department of Health and Human Services, 698 F. 2d 1337 (CA7 1983) (same), cert. denied sub nom. St. James Hospital v. Heckler, 464 U. S. 830 (1983), with St. Luke’s Hospital v. Secretary of Health and Human Services, 810 F. 2d 325 (CA1 1987) (finding there is Board jurisdiction, but that it is discretionary), and with Tallahassee Memorial Regional Medical Center v. Bowen, 815 F. 2d 1435 (CA11 1987) (finding there is jurisdiction in the situation at issue here, but not for appeals that do not involve a challenge to a regulation), cert. pending, No. 87-380.
See 42 CFR § 421.100 (1987) (stating that the intermediary can only pay claims that are “covered under Medicare Part A or Part B.”); § 421.120 (directing that the Secretary shall periodically review an intermediary’s audit procedures to ensure it is making “[e]orrect coverage and payment determinations” and is guarding the “proper management of administrative funds”); 42 CFR § 405.460(a)(2) (1985) (“Reimbursable provider costs may not exceed the costs estimated by HCFA [Health Care Financing Administration] to be necessary for the efficient delivery of needed health services. HCFA may establish estimated cost limits for direct or indirect overall costs or for costs of specific items or services or groups of items or services”).
Subsection (d) provides:
“A decision by the Board shall be based upon the record made at such hearing, which shall include the evidence considered by the intermediary and such other evidence as may be obtained or received by the Board, and shall be supported by substantial evidence when the record is viewed as a whole. The Board shall have the power to affirm, modify, or reverse a final determination of the fiscal intermediary with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determination.”
Section 1395oo(d) only allows the Board to “affirm, modify, or reverse a final determination of the fiscal intermediary . . . Subsection (f)(1) recognizes that this limitation does not allow Board decisions with regard to the validity of rules or regulations. The subsection provides for judicial review of a challenged regulation when the Board determines it is “without authority to decide the question.” See also n. 3, supra.
Subsection (f)(1) provides:
“A decision of the Board shall be final unless the Secretary, on his own motion, and within 60 days after the provider of services is notified of the Board’s decision, reverses, affirms, or modifies the Board’s decision. Providers shall have the right to obtain judicial review of any final decision of the Board, or of any reversal, affirmance, or modification by the Secretary, by a civil action commenced within 60 days of the date on which notice of any final decision by the Board or of any reversal, affirmance, or modification by the Secretary is received. Providers shall also have the right to obtain judicial review of any action of the fiscal intermediary which involves a question of law or regulations relevant to the matters in controversy whenever the Board determines (on its own motion or at the request of a provider of services as described in the following sentence) that it is without authority to decide the question, by a civil action commenced within sixty days of the date on which notification of such determination is received. If a provider of services may obtain a hearing under subsection (a) of this section and has filed a request for such a hearing, such provider may file a request for a determination by the Board of its authority to decide the question of law or regulations relevant to the matters in controversy (accompanied by such documents and materials as the Board shall require for purposes of rendering such determination). The Board shall render such determination in writing within thirty days after the Board receives the request and such accompanying documents and materials, and the determination shall be considered a final decision and not subject to review by the Secretary. If the Board fails to render such determination within such period, the provider may bring a civil action (within sixty days of the end of such period) with respect to the matter in controversy contained in such request for a hearing. Such action shall be brought in the district court of the United States for the judicial district in which the provider is located (or, in an action brought jointly by several providers, the judicial district in which the greatest number of such providers are located) or in the District Court for the District of Columbia and shall be tried pursuant to the applicable provisions under chapter 7 of title 5 notwithstanding any other provisions in section 405 of this title. Any appeal to the Board or action for judicial review by providers which are under common ownership or control or which have obtained a hearing under subsection (b) of this section must be brought by such providers as a group with respect to any matter involving an issue common to such providers.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
62
] |
HALLIBURTON OIL WELL CEMENTING CO. v. REILY, COLLECTOR OF REVENUE OF LOUISIANA.
No. 24.
Argued March 26-27, 1962.—Restored to calendar for reargument April 2, 1962.—Reargued December 3, 1962.
Decided May 13, 1963.
Benjamin B. Taylor, Jr. reargued the cause for appellant. With him on the briefs were Robert 0. Brown, C. Vernon Porter, Robert E. Rice, Laurance W. Brooks, Frank W. Middleton, Jr. and Tom F. Phillips.
Chapman L. Sanford reargued the cause and filed a brief for appellee. With him on a motion to dismiss were John B. Smullin and Emmett E. Batson.
Ftírrest M. Darro.ugh filed a brief for the Humble Oil & Refining Company, Albert L. Hopkins for the Chicago Bridge & Iron.Company, and Charles D. Marshall for Thomas Jordan, Inc., as amid curiae, urging reversal.
Ben R. Miller filed a.brief for the American Can Company, Cicero C. Sessions for Sperry Rand Corporation, and Robert E. Leake, Jr. for the Rosson-Richards Processing. Company, as amici curiae.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The sole issue before us is whether the Louisiana úse tax, as applied to the appellant, discriminates against interstate commerce in violation of the Commerce Clause of the Constitution.
The Louisiana sales and use taxes follow the basic pattern approved by this Court in Henneford v. Silas Mason Co., 300 U. S. 577. Louisiana Revised Statutes, Tit. 47, § 302, provides for the imposition of a tax “[a]t the rate of two per centum (2%) of the sales price of each item or article of .tangible personal property .when sold at retail in this state . It imposes another tax “[a]t the rate of two per centum (2%) of the’cost'price of each item or article of tangible personal property- when the same is not sold but is used.. . . in this state . . . This latter tax, commonly known as a use tax, is to be reduced by the amount of.any similar sales or use tax paid on the item in a different State. La. Rev.-Stat. Ann. §47:305. As noted by the Louisiana Supreme Court below and approved in Silas Mason, the purpose of such á sales-use tax scheme is to make all tangible property .used or consumed in the State subject to a uniform tax burden irrespective of whether it is acquired within the State, making it subject to the sales tax, or from without the State, making it subject to a use tax at the same rate. The appellant admits' the validity of such a scheme. It contends, however, that in this case Louisiana has departed'from the norm of tax equality and imposes on the appellant a greater tax burden solely because the property it uses in Louisiana is brought from out-of-state. The difference in tkx burden is admitted by.the appellee.
The facts were stipulated by the parties. The appellant is engaged in- the business of servicing oil wells in a number of oil producing States, including Louisiana. Its business requires the use of specialized equipment including oil well cementing trucks and electrical well logging trucks. These trucks and their equipment are not generally available on the retail market, but are manufactured by the appellant at its principal place of business in Duncan, Oklahoma. The raw materials and semifinished and finished articles necessary for the manufacture of these units are acquired on the open market by the appellant and assembled by its employees. The completed units are tested at Duncan and then assigned to specific field camps maintained by the appellant. The assignment is-permanent unless better use of the unit can.be made at another camp. None of these units is manufactured or held for sale to third parties.
Between January 1, 1952, and May 31,1955, the appellant: shipped new and used units of its specialized equipment to field camps in Louisiana. In its Louisiana tax-returns filed for these years, the appellant calculated, and paid use taxes upon the value of the raw materials and semifinished and finished articles used in manufacturing the units. The appellant did not include in its calculations the value of labor and shop overhead attributable to assembling the units. It is admitted that this cost factor would not have been taxed had the appellant assembled its units in Louisiana rather than in Oklahoma. The stipulation of facts stated:
“If Halliburton had purchased its materials, operated its shops, and incurred its Labor and Shop Overhead expenses at a location within the State of Louisiana, there would have been a sales tax due to. the State of Louisiana upon the cost of materials purchased in Louisiana and a Use Tax on materials ■ purchased outside of Louisiana; but there would have been no Louisiana sales tax or use tax due upon the Labor and Shop Overhead.”
Nevertheless, in September 1955, the Louisiana Collector of Revenue, the appellee-, assessed a deficiency , of $36,238.43 in taxes, including interest, on the labor and shop overhead cost of assembling the units. The Collector held that this was required by the language of the use tax section of the statute which levies the 2% use tax on the “cost price” of the item, “cost price” being defined in an earlier section as'the actual cost without deductions on account of “labor or service cost, . . ..or ány other expenses whatsoever.” La. Rev. Stat. Ann. § 47:301 (3).
Also during this period, the appellant purchased 14 oil well cementing service units from the Spartan Tool-and Service Company of Houston, Texas. Spartan was not regularly engaged in the sale of such equipment and-made the sale after deciding to liquidate its oil well servicing business. The appellant transferred these units to Louisiana. On one other occasion, the appellant purchased an airplane from the Western Newspaper Union of New York, a company not regularly engaged in the business of selling airplanes. The appellant, acquired the plane for use in Louisiana. No Louisiana use tax was declared or paid subsequent to the transfer of these items to Louisiana. It is admitted in the stipulation of facts that had these acquisitions been made within Louisiana, they would have not been taxed. This is occasioned by the fact that the sales tax section of the. statute applies only to sales made at retail and not to isolated sales by those not regularly engaged in the business of selling the item involved. Nevertheless, the Collector assessed a deficiency of $4,404.22 on the value of these items since the use tax on goods imported from out-of-state contains no equivalent distinction between- isolated and retail sales.
The appellant paid the deficiency under protest and brought an action in the Louisiana District Court for the Nineteenth. District for a refund pursuant to La. Rev. Stat. Ann. § 47:1576, alleging that this unequal tax burden is a discrimination against interstate commerce. The •District Court, found the assessment discriminatory. On appeal, the Louisiana Supreme Court reversed, holding that’ since no unreasonable distinctions or classifications had been drawn in the Louisiana sales and use tax statute, the incidental discrepancy in tax burden did not amount to a discrimination against interstate commerce. 241 La. 67, 127 So. 2d 502. On appeal to this Court, we noted probable jurisdiction. 368 U. S. 809. The case was first argued during the October Term 1961. We subsequently ordered it reargued. 369 U. S. 835.
I.
This is another in a long line of cases attacking state taxation as-unduly burdening interstate commerce. As this Court stated in Best & Co. v. Maxwell, 311 U. S. 454, 455-456: “In each case it is our duty to determine whéther the statute under attack, whatever its name may be, will in its practical operation work discrimination- against interstate commerce.” This concern with the actuality of operation, a dominant theme running through all state taxation cases, extends to every aspect of the tax operations. Thus, in Nippert v. Richmond; 327 U. S. 416, the City of Richmond placed a fixed fee and earnings tax on itinerant solicitors.of sales within the city. Omits face, the ordinance applied to in-state as well as out-of-state distributors doing business by means of' itinerant-solicitors. The- Coürt noted, however, the very fact that a distributor is out-of-state makes his use of, and dependence on, solicitors more likely. Thus, “the very difference between interstate and local trade, taken in-conjunction with the inherent character of the tax, makes equality of application as between those, two classes of commerce, generally speaking, impossible.” Id., at 432. The Court concluded that the tax was “discriminatory in favor of the local merchant as against the out-of-state one.” ■ Id., at' 431. Considered in isolation, the Louisiana use tax is discriminatory; it was intended to apply primarily to-goods acquired out-of-state and used in Louisiana. If it stood alone, it would -fye-invalid. However, a proper, analysis must take “the whole scheme of taxation into account.” Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 227; Gregg Dyeing Co. v. Query, 286 U. S. 472, 479-480. Thús, in Best & Co. v. Maxwell, supra,, the Court compared the' solicitation tax with the equivalent tax on local retail merchants before finding it discriminatory. 311 U. S., at 456. See Memphis Steam Laundry Cleaner, Inc., v. Stone, 342 U. S. 389, 394-395; cf. Phillips Chemical Co. v. Dumas School District, 361 U. S. 376.
When Henneford v. Silas Mason Co., 300 U. S. 577, reached this . Court on appeal, the Court considered the Washington use tax in the context of the tax scheme of which it was a part, as a “compensating tax” intended to complement the state sales tax. So considered, the Court concluded: “Equality is the theme that runs through all the sections of the statute. . . . No one who uses property in Washington after buying it at retail is to be exempt from a tax upon the privilege of enjoyment-except-to the extent that he has paid a use or sales tax somewhere.” The use tax is “upon one activity or incident,” and the sales tax is “upon another, but the sum is the same when the reckoning is closed.” The burden on the out-of-state acquisition “is balanced by an equal burden where the sale is strictly local.” 300 U. S., at 583-584.
The conclusion is inescapable: equal treatment for instate and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.
The inequality of the Louisiana tax burden between instate and out-of-state manufacturer-users is admitted. Although the rate is the same, the appellant’s tax base is . increased through the inclusion of its product’s labor and shop overhead. The Louisiana Supreme Court characterized this discrepancy as incidental. However, equality for the purposes of competition and the flow of commerce is measured in dollars and cénts, not legal abstractions. In this case the “incidental discrepancy”- — the labor and shop overhead for the units in dispute — amounts to $1,547,109.70. The use tax rate in Louisiana is 2% and has risen in some States toA%. The'resulting tax inequality is clearly substantial.
But even accepting this, the Louisiana Supreme Court concluded that the comparison between in-state and out-of-state manufacturer-users is not the proper way to frame the issue of equality. It stated: “The proper comparison would be between the use tax on the assembled equipment and a sales tax on the same equipment if it were sold.” On the basis of such a comparison, the óut-of-state manufacturer-user is on the same tax footing with respect to the item used as the retailer of a similar item,. or the .competitor who buys from the retailer rather than manufacture his own.. However, such a'comparison excludes from consideration, without any explanation, the very in-state taxpayer who is most similarly situated to the appellant, the local manufacturer-user. If the Louisiana Legislature were in fact concerned over any tax break the manufacturer-user obtains, it. would surely have made special arrangements to take care of the in-state as.well as out-of-state loophole — unless, of course, -it intended to. discriminate. We can only conclude, therefore, that the proper comparison on the basis, of this record is between in-state ‘and out-of-státe' manufacturer-users. And if this comparison- discloses discriminatory, effects, it could be ignored only after a showing of adequate justification.
While the inequality in question may have been an accident of statutory drafting, it does in fact strike at a significant segment of economic activity and carries eco-' nomic effects of a type proscribed by many previous cases. The appellant manufactures equipment specially adapted to its oil servicing business. The equipment is expensive ; because of its limited and custom production, the labor and shop overhead, is necessarily a-significant cost factor. Activity of this character is often on the forefront of economic development where equipment and methods have yet to reach the standardization and acceptance necessary for mass production. If Louisiana were, the only State to impose an additional tax burden for such out-of-state operations, the disparate treatment would be ah incentive to .locate within .Louisiana; it would tend “to neutralize advantages belonging to the place of origin.” Baldwin v. Seelig, Inc., 294 U. S. 511, 527. Disapproval of such a result is implicit in all cases dealing with tax discrimination, since a tax which is “discriminatory - in favor of the local merchant,” Nippert v. Richmond, supra, also encourages an out-of-state operator to. become a resident in order to compete on equal terms. If similar unequal tax structures were adopted' in other States, a not unlikely result of affirming here, the effects would be more widespread. The economic advantages of a single assembly plant for the appellant’s multistate activities would be decreased for units sent to every State other than the State of residence. At best, this would encourage the appellant to locate his assembly operations in the State of largest’use for the units. At worst, it would encourage their actual fractionalization or discontinuance. Clearly, approval of the Louisiana .use tax in this case would “invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause.” Dean Milk Co. v. Madison, 340 U. S. 349, 356.
In light of these considerations we see no reason to depart from the strict rule of equality adopted in Silas-Mason, and we conclude that the Louisiana use tax as applied to the appellant’s specialized equipment discriminates against interstate commerce.
A similar disposition of the tax on the isolated sales follows as a mátter of course; The disparate treatment is baldly admitted by the Louisiana Supreme Court: ‘'The exemption of an isolated sale from the provisions of the sales tax applies strictly to sales within the State of Louisiana; it has no effect whatsoever on any transaction without the state.” The out-of-state isolated sale, it concludes, must therefore be treated “as if”, it were a sale at retail. As the facts of this' case indicate-, isolated sales involve primarily the acquisition of second-hand equipment from previous users. The effect of the.'tax is to favor local users who wish to dispose of equipment over out-of-state users similarly situated.. Whatever the Louisiana Legisláture’s reasons for granting such an exemption to this segment of the local second-hand market, no attempt has been made to justify it or 'to show how its purpose would be defeated by extending the same exemption to similar out-of-state transactions. We therefore conclude that the use tax on isolated sales in this case departs from the equality required by Silas Mason and discriminates against interstate commerce.
Thirty-five States other than Louisiana have sales and use tax statutes. At this juncture, Louisiana, according to the parties, is the only State to adopt the constructions presented for decision in this case. Those few States which have considered these issues at all appear to have rejected the Louisiana position for reasons in accord with our opinion here. Both Ohio and North Dakota have by administrative regulations excluded labor and shop overhead from the tax báse of the out-of-state manufacturer-user on the ground that its inclusion might violate the Commerce Clause. In Chicago Bridge & Iron Co. v. Johnson, 19 Cal. 2d 162, 119 P. 2d 945, the California Supreme Court upheld the application of its use tax to an out-of-state manufacturer-user, expressly pointing .out that because labor and shop overhead had been excluded from its tax base, .the taxpayer was in no different position from its in-state competitor.' The parties have been able to find only one state cash passing directly on either question. In State v. Bay Towing & Dredging Co., Inc., 265 Ala. 282, 90 So. 2d 743, the Alabama Supreme Court held that the in-state exemption for.isolated sales had to be extended to out-of-state isolated sales to avoid discrimination against interstate commerce.
The judgment of the Supreme Court of Louisiana is reversed and the case remanded for further proceedings not inconsistent with this.'opinion.
Reversed and remanded.
Emphasis added.
Emphasis added.
In fact, it was just such isolated consideration that led the trial court in Silas Mason Co. v. Henneford, 15 F. Supp. 958, 962, rev’d, 300 U. S. 577, to strike down the State of Washington.use tax. •
Thus in Memphis Steam Laundry Cleaner, Inc., v. Stone, supra, and Best & Co. v. Maxwell, supra, the Court compared the actual tax bills of the local arid out-of-state taxpayers. In the former, the Court found discriminatory a $50 license tax on each truck used by an out-of-state'laundry business soliciting and picking up laundry in Mississippi because resident laundries were required to pay only. $8 per truck. In the latter, the Court found • determinative a similar discrepancy between the $1 tax paid by local merchants and the $250 tax paid by the itinerant solicitor.
Michigan, Pennsylvania, and Washington each has 4% sales and use taxes. 2 -P-H 1963 Fed. Tax Serv. ¶ 13,299.
See cases collected in Memphis Steam Laundry Cleaner, Inc., v. Stone, supra, p. 392, n. 7.
In Dean Milk .Co., the City of Madison passed an ordinance requiring milk pasteurization plants to locate'within a- live mile radius of Madison to ease thé problem of local' health inspection. The Court held that where there were adequate alternative methods for insuring health standards, the locational requirement was a burden on interstate commerce. The dissent saw no problem in this restriction:
“As a practical matter, so far as the record shows, D.ean can easily comply with the ordinance whenever it wants to. Therefore, Dean’s •personal preference to pasteurize in Illinois, not the ordinance, keeps Dean’s milk out of Madison.” 340 U. S., at 357.
However, this “personal preference” is the essence of a national unrestricted market. If, before striking down a burden on interstate commerce, this Court hád to look to the record for economic justifications for Dean’s location in Illinois, for the appellant’s location in Oklahoma, for single rather than multipasteurization or assembly operations, the free flow of commerce would disappear before our .very eyes. Justification for the system is presumed in the Commerce Clause itself.
The appellee argues that the reason for the exemption is that any item sold in a local isolated sale has already been-subjected to either a saies tax if it was originally acquired in Louisiana or a use tax if it was imported, whereas there is no assurance that an item acquired in an out-of-state isolated sale has ever sustained such a tax burden. The appellee further maintains that the taxes here in question could have been reduced by any such previous taxation. If the record supported the appellee’s position, it would be carefully considered. However, the appellee has shown us no regulations providing for the deduction of sales or use taxes paid on the item prior to the out-of-state isolated sale; the appellee stated in the stipulation of facts that all evidence showing an isolated sale was irrelevant; and the above-quoted statement of the Louisiana Supreme Court leaves little room for such modification.
Although no evidence was presented on the issue, one. reason for not taxing local isolated sales and the labor and shop overhead of the local manufacturer-user may be the difficult administrative burden in either calculating or enforcing the tax. However, such a local administrative problem would not justify a different treatment of the similar out-of-state transaction, since the mere extension of the special treatment to the out-of-state transaction would satisfy both the local problem and the Commerce Clause. ■
We fail to see a similar admiijistrative problem in calculating the appellant’s labor and shop overhead, since the tax base under either approach is calculated on the basis of the cost factors recorded in the appellant’s books.
CCH Ohio State Rep., Cir. No. 18, Mar. 1, 1954, ¶ 60371.70; North Dakota Tax Commission, Rules Nos. 55 and 113.
Moreover, as this Court noted in Henneford v. Silas Mason Co., 300 U. S. 577, 581, the State of Washington, recognizing the latent inequality, made special arrangements for the manufacturer-user:
“The tax presupposes everywhere a retail purchase by the user before the time of use. If he has manufactured the chattel for himself, . . . he is exempt from the use tax, whether title was acquired in Washington or elsewhere.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
RAILWAY EXPRESS AGENCY, INC., v. VIRGINIA.
No. 38.
Argued October 15, 1958. —
Decided February 24, 1959.
Thomas B. Gay argued the cause for appellant. With him on the brief were Robert J. Fletcher, William H. Waldrop, Jr. and H. Merrill Pasco.
Frederick T. Gray, Special Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief was Albertis S. Harrison, Jr., Attorney General.
Mr. Justice Clark
delivered the opinion of the Court.
Once again the effort of the Commonwealth of Virginia to levy a tax against express agencies is before us for decision. Nearly five years ago this Court struck down as a “privilege tax” violative of the Commerce Clause of the Federal Constitution its tax statute under which was laid an assessment on appellant’s “privilege of doing business” in Virginia. Railway Express Agency v. Virginia, 347 U. S. 359 (1954). Subsequently the Virginia General Assembly enactéd the Act here involved levying a “franchise tax” on express companies, measured by gross receipts from operations within Virginia, in lieu of all other property taxes on intangibles and rolling stock. In due course an assessment against appellant was made thereunder for 1956. Both the State Corporation Commission, which has jurisdiction of such levies in Virginia, and the Commonwealth’s highest court have upheld the validity of the new law as well as the assessment made thereunder, Railway Express Agency v. Virginia, 199 Va. 589, 100 S. E. 2d 785. Appellant levels a dual attack, the first being that the statute is a “privilege tax” and like the former one violates the Commerce Clause; or, secondly, that in any event the assessment under it is calculated in such a manner as to deprive appellant of its property without due process of law in violation of the Fourteenth Amendment. On appeal we noted probable jurisdiction, 356 U. S. 929 (1958). We believe that Virginia has eliminated the Commerce Clause objections sustained against its former tax law. While the tax is in lieu of other property taxes which Virginia can legally assess and should be their just equivalent in amount, Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 696 (1895), we will not inquire into the exactitudes of the formula where appellant has not shown it to be so baseless as to violate due process. Nashville, C. & St. L. R. v. Browning, 310 U. S. 362 (1940). The failure of the appellant to furnish, in its return, certain necessary information showing its gross receipts allocated to Virginia, called for under the statute and requested by the Commonwealth, has left the correct amount unobtainable by the latter except by some method of approximation and places the burden on appellant to come forward with affirmative evidence of extraterritorial assessment.
Background and Activity of Appellant in Virginia.
Since the opinion in the former appeal, supra, at pp. 360-361, relates the factual details concerning appellant’s operations in Virginia, we believe it sufficient to say here that it is a Delaware corporation, owned by 68 of the railroads of the United States. It is engaged in both an interstate and intrastate express business throughout the Nation, save in Virginia, where a constitutional provision bars foreign corporations from possessing or exercising any of the powers or functions of public service corporations. There it operates a wholly owned subsidiary, a Virginia corporation, which carries on its intrastate functions within the Commonwealth. Appellant’s Virginia business is thus of an exclusively interstate nature. Through exclusive contract arrangements with 177 of the railroads of the Nation appellant is the sole operator of express facilities on their lines, including Virginia. It pays therefor all of its net income, thus achieving one of the stated purposes of the agreement — that appellant . . shall have no net taxable income.” In turn, appellant’s Virginia subsidiary pays all of its net income over to it for the privilege of exercising appellant’s exclusive contracts in intrastate business in the Commonwealth. Appellant owns property within Virginia, its return filed with the Commonwealth for tax purposes showing $120,110.70 in cash on deposit; automotive equipment and trucks $262,719.63; real estate of the value of $32,850; and office equipment listed at $42,884.83.
Virginia’s General Taxing System.
The Commonwealth has a comprehensive tax structure covering public service corporations. It empowers local governments to levy ad valorem taxes on the “dead” value of all real property and tangible personal property, except rolling stock, located within their respective jurisdictions. This leaves free for state purposes taxes on rolling stock, money and other intangibles, and the “live” or “going-concern” value of the business in Virginia. We are concerned only with the state tax which is levied on the franchises of express companies. It provides in pertinent part that
“[e]ach express company . . . shall . . . pay to the State a franchise tax which shall be in lieu of taxes upon all of its other intangible property and in lieu of property taxes on its rolling stock.”
The franchise tax is measured by “the gross receipts derived from operations within” Virginia which is deemed
“to be all receipts on business beginning and ending within this State and all receipts derived from the transportation within this State of express transported through, into, or out of this State.”
The State Corporation Commission is directed, after notice, to assess the franchise tax on the basis of a report to be filed by the company involved or, in case of its failure to file such report, the Commission is to base the assessment “upon the best and most reliable information that it can procure.”
The Issues Under the Statute.
First, let us clear away the dead underbrush of the old law. The new tax is not denominated a license tax laid on the “privilege of doing business in Virginia”; nor is it “in addition to the property tax” levied against appellant, nor a condition precedent to its engaging in interstate commerce in the Commonwealth. The General Assembly has made crystal-clear that the tax is now a franchise tax laid on the intangible property of appellant, and is levied “in lieu of taxes upon all of its other intangible property and . . . rolling stock.” The measure of the tax is on gross receipts, fairly apportioned, and, as to appellant, is laid only on those “derived from the transportation within this State of express transported through, into, or out of this State.”
Appellant concedes that the Commerce Clause does not prohibit the States from levying a tax on property owned by a concern doing an interstate business. It agrees that it has rolling stock and money in the Commonwealth, as well as intangibles, including its exclusive express privileges with the railroads. It readily admits that the latter agreements are “valuable contract rights” and contribute a principal element to the “going concern value” of its business in the Commonwealth. Subsuming that a valid tax levy might be levied on such intangibles, it argues, however, that the incidence of the tax is on appellant’s privilege to carry on an exclusively interstate business in Virginia rather than on intangible property. Our sole question under the Commerce Clause is whether the tax in practical operation is on property or on privilege.
The due process issue is entangled with appellant’s failure to file, in its report, data covering its gross receipts allocated to Virginia. Failing to do this the State Corporation Commission used a formula which in effect ascribed to Virginia the proportion of such receipts as the mileage of carriers within Virginia bore to the total national mileage of the same lines. Appellant contends that the assessment made in this manner is violative of due process and that the resulting amount of tax levied was confiscatory.
In any event, appellant argues, the “in lieu” provisions of the law, as applied to it, are invalid. Admitting that it had cash, intangibles and rolling stock that were subject to a state tax but which suffered none because of the “in lieu” provisions of this law, it contends that the tax assessed under the latter was no just equivalent of the “in lieu” taxes but was greatly in excess thereof and violative of due process.
Validity of the Law Under the Commerce Clause.
As we have pointed out, the statute levies a franchise tax in lieu of all taxes on “other intangible property” and rolling stock. (Emphasis added.) This leaves no room for doubt that the General Assembly intended to levy a tax upon appellant’s intangibles. Moreover, supporting this interpretation, both the State Commission and the Supreme Court of Appeals have construed it as a tax on appellant’s intangible property and “going concern” value. This trinity of agreement by three state agencies, though not conclusive, has great weight in our determination of the natural and reasonable effect of the statute. Railway Express v. Virginia, supra; Spector Motor Service v. O’Connor, 340 U. S. 602 (1951); Cudahy Packing Co. v. Minnesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335, 346 (1912). This is not to say that a legislature may effect a validation of a tax, otherwise unconstitutional, by merely changing its descriptive words. Lawrence v. State Tax Commission, 286 U. S. 276, 280 (1932); Galveston, H. & San Antonio R. Co. v. Texas, 210 U. S. 217, 227 (1908). One must comprehend, however, the difference between the use of magic words or labels validating an otherwise invalid tax and their use to disable an otherwise constitutional levy. The latter this Court has said may sometimes be done. Railway Express Agency v. Virginia, supra, at 364; Spector Motor Service v. O’Connor, supra, at 607; McLeod v. Dilworth Co., 322 U. S. 327, 330 (1944).
Appellant buttresses its argument with reasoning that a tax on “going concern” value just cannot be measured by fairly apportioned gross receipts. While it may be true that gross receipts are not the best measure, it is too late now to question its constitutionality. Illinois Cent. R. Co. v. Minnesota, 309 U. S. 157 (1940); Great Northern R. Co. v. Minnesota, 278 U. S. 503 (1929); Pullman Co. v. Richardson, 261 U. S. 330 (1923); Cudahy Packing Co. v. Minnesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Wisconsin & M. R. Co. v. Powers, 191 U. S. 379 (1903). These decisions are still in good standing on our books. Even on the former appeal this Court used the following language:
“Of course, we have held, and it is but common sense to hold, that a physical asset may fluctuate in value according to the income it can be made to produce. A live horse is worth more than a dead one, though the physical object may be the same, and a smooth-going automobile is worth more than an unassembled collection of all its parts. The physical facilities used in carrying on a prosperous business are worth more than the same assets in bankruptcy liquidation or on sale by the sheriff. No one denies the right of the State, when assessing tangible property, to use any fair formula which will give effect to the intangible factors which influence real values. Adams Express Co. v. Ohio State Auditor 166 U. S. 185. But Virginia has not done this.” 347 U. S., at 364.
We feel that Virginia has now done just that.
We are not convinced by appellant’s “boot strap” argument that the express privileges it enjoys have no value to it because all of its net income by agreement with the railroads is paid over to them. We believe it more accurate to rely on its admission that “No one would question the fact that Appellant’s exclusive express privileges on the railroads are valuable contract rights.” This concession, when taken in the light of the expressed purpose of appellant that the payment of its net income for the use of the express privileges was solely to make certain “that the Express Company shall have no net taxable income,” exposes the frivolous nature of this contention. We are not so blinded to business realities as to permit such a manipulation of the finances of appellant, the railroads’ wholly owned subsidiary, to frustrate the Commonwealth in its effort to collect an otherwise fair tax.
Nor is there any substance to the contention that since Virginia could not prohibit appellant from engaging in its exclusively interstate business, it therefore may not tax “good will” or “going concern” value which is built up thereby. We need only cite some of the cases of this Court holding to the contrary: Great Northern R. Co. v. Minnesota, 278 U. S. 503 (1929); Pullman Co. v. Richardson, 261 U. S. 330 (1923); Cudahy Packing Co. v. Min nesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Adams Express Co. v. Ohio, 165 U. S. 194 (rehearing 166 U. S. 185 (1897)); Western Union Telegraph Co. v. Taggart, 163 U. S. 1 (1896); Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U. S. 439 (1894).
Validity of the Tax Under the Due Process Clause.
In view of the fact that appellant failed to file the required information as to its gross receipts, thus placing an almost insurmountable burden on the Commonwealth to ascertain them, it is necessary that appellant make an affirmative showing that the mileage method used by Virginia is so palpably unreasonable that it violates due process. This it has failed to do. Appellant rests its argument not on facts and figures covering its actual gross income in Virginia but on comparative statistics based on tangible assets. It points out that during the taxable year the value of its tangible assets in Virginia ($475,065) was only 0.6% of its total assets ($79,700,426), while the amount of gross receipts apportioned to Virginia by the State Corporation Commission was 1.7% ($6,499,519) of its total gross receipts ($387,241,764).
The difference in the two percentages, appellant contends, must represent intangible values on which Virginia cannot operate because located outside of its jurisdiction. This syllogism does not take into account the facts of business life. Tangible assets in Virginia may produce much more income than like assets elsewhere. Death Valley Scotty generated much less gross from his desert sightseeing wagon than did his counterpart in Central Park. The utter fallacy of using tangible assets as the test of going-concern value here is demonstrated by the fact that appellant’s tangible assets in Virginia depend entirely on whether it elects to retain title to tangible property or place it in the name of its subsidiary, the Virginia company. By placing them in the Virginia company it could thus, on a tangible asset formula, escape all tax on its intangibles.
There is nothing in the record even to indicate that the tangible assets that appellant carries in its own name in Virginia did not actually generate the amount of gross receipts attributed to it by the State Corporation Commission. In this connection, we note that 1.9% of appellant's total contract mileage was located there. Even where taxpayers have attempted to show through evidence, as this appellant has not, that a given apportionment formula effected an appropriation of more than that to which the State was entitled, this Court has required “ 'clear and cogent evidence’ that it results in extraterritorial values being taxed.” Butler Bros. v. McColgan, 315 U. S. 501, 507 (1942); Norfolk & Western R. Co. v. North Carolina, 297 U. S. 682, 688 (1936); cf. Bass, Ratcliff & Gretton, Ltd., v. Tax Comm’n, 266 U. S. 271, 282-284 (1924). As this Court said in Nashville, C. & St. L. R. v. Browning, 310 U. S. 362, 365-366 (1940):
“In basing its apportionment on mileage, the Tennessee Commission adopted a familiar and frequently sanctioned formula. Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18; Maine v. Grand Trunk Ry. Co., 142 U. S. 217; Pittsburgh, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 421; Branson v. Bush, 251 U. S. 182. See 2 Cooley on Taxation, pp. 1660-64. Its asserted inapplicability to the particular situation is rested on petitioner’s evidence as to the comparative revenue-producing capacity of its lines in and out of Tennessee. But both the Commission and the Supreme Court of the state thought that this evidence, however weighty, was insufficient to displace the relevance of the formula. In a matter where exactness is concededly unobtainable and the feel of judgment so important a factor, we must be on guard lest unwittingly we displace the tax officials’ judgment with our own. Certainly we cannot say that the combined judgment of Commission, Board, and state courts is baseless.” (Emphasis added.)
Appellant’s final argument is to the effect that the tax in question, in the amount of $139,739.66, is “no just equivalent” of the tax “in lieu of which” it was levied, and therefore violates the Due Process Clause. This argument is based upon a false premise which can be quickly disposed of. Appellant states that under Virginia’s system of segregation of property for state and local taxation the only property which the Commonwealth had the power to tax was cash on hand and on deposit and appellant’s rolling stock, which, under the old rates, would have yielded a tax of $679.77. Appellant is clearly in error. As we read the Virginia statutes, and as they were construed below, the Commonwealth (as contrasted with the local) government also had the power to tax the “going concern” value of all of appellant’s Virginia property, as well as its other intangible property rights such as its valuable express privileges. Thus, the new tax is not only in lieu of the previous tax on rolling stock and cash on hand, but also reaches intangible rights of great value which since Railway Express, supra, had escaped taxation altogether.
It follows from what we have said that the tax is valid, and the judgment below is therefore
Affirmed.
Mr. Justice Frankfurter concurs in the result.
Va. Code, 1950, § 58-547.
See Va. Const., § 170; and Va. Code, 1950, §§ 58-9, 58-10.
Va. Code, 1950, § 58-546, et seq., as amended by Va. Acts 1956, c. 612.
In its return, appellant stated that it was “unable” to ascertain its gross receipts from express transported “through, into or out of” the Commonwealth. The record contains testimony to this effect by one of appellant’s officers. The record also shows, from one of appellant’s own exhibits, that since 1931 the tax year in question is the only year in which appellant has been “unable” to report this information. From 1931 to 1953, appellant managed to find a way of compiling or computing and reporting such data, and in only 7 of these 23 years did the Commonwealth disagree with appellant’s figures. Due to the downfall of the old tax in Railway Express Agency v. Virginia, supra, there was no reporting requirement for 1954 and 1955. Under the new tax, for 1956, appellant made no attempt to present evidence to show what reductions should be made in the Commission’s figures, nor did it explore the possibility of an agreement about it as it apparently had in prior years. Cf. Cohan v. Commissioner of Internal Revenue (C. A. 2d Cir. 1930), 39 F. 2d 540, 543-544. Instead, it relied completely upon its claim that the tax was unconstitutional.
Actually, the amounts paid to such carriers for Virginia traffic were ascertained by that method. Since the carrier payments represent only net receipts, the Virginia gross receipts were determined by applying to the Virginia carrier payments the ratio that its total gross receipts bore to its total carrier payments.
Parenthetically, it might be noted that the Adams case involved a “going concern” valuation of $488,265 as compared to a “dead” valuation of property in the amount of $28,438. 165 U. S. 194, 237.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
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"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
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"Federal Deposit Insurance Corporation",
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"Federal Housing Administration",
"Federal Home Loan Bank Board",
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"Federal Parole Board",
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"Federal Railroad Administration",
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"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
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"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
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"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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"National Security Agency",
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"Pension Benefit Guaranty Corporation",
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"Provider Reimbursement Review Board",
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"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
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"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
ROBERTS, ACTING COMMISSIONER, MINNESOTA DEPARTMENT OF HUMAN RIGHTS, et al. v. UNITED STATES JAYCEES
No. 83-724.
Argued April 18, 1984
Decided July 3, 1984
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Powell, and Stevens, JJ., joined, and in Parts I and III of which O’Connor, J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, -post, p. 631. Rehnquist, J., concurred in the judgment. Burger, C. J., and Blackmun, J., took no part in the decision of the case.
RichardL. Vareo, Jr., Special Assistant Attorney General of Minnesota, argued the cause for appellants. With him on the briefs were Hubert H. Humphrey III, Attorney General, Kent G. Harbison, Chief Deputy Attorney General, Thomas R. Muck, Deputy Attorney General, and Richard S. Slowes, Assistant Attorney General.
Carl D. Hall, Jr., argued the cause for appellee. With him on the brief was Clay R. Moore.
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York; Lawrence S. Kahn, Rosemarie Rhodes, Shelley B. Mayer and Kim E. Greene, Assistant Attorneys General, John K. Van De Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Marian M. Johnston, Deputy Attorney General; for the Alliance for Women Membership by Danielle E. deBenedictis; for the American Civil Liberties Union et al. by Laurence H. Tribe, Burt Neubome, Isabelle Katz Pinzler, E. Richard Larson, and Charles S. Sims; for Community Business Leaders by Eldon J. Spencer, Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Jack Greenberg, Beth J. Lief, and Judith Reed; for the National League of Cities et al. by Lawrence R. Velvel and Elaine D. Kaplan; for the National Organization for Women et al. by Judith I. Avner and Charlotte M. Fischman; and for Women’s Issues Network, Inc., by Neil H. Cogan.
Briefs of amici curiae urging affirmance were filed for the Boy Scouts of America by Philip A. Lacovara, Malcolm E. Wheeler, George A. Davidson, and David K. Park; for the Conference of Private Organizations by Leonard J. Henzke, Jr.; and for Rotary International by William P. Sutter and Wm. John Kennedy.
Justice Brennan
delivered the opinion of the Court.
This case requires us to address a conflict between a State’s efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization. In the decision under review, the Court of Appeals for the Eighth Circuit concluded that, by requiring the United States Jaycees to admit women as full voting members, the Minnesota Human Rights Act violates the First and Fourteenth Amendment rights of the organization’s members. We noted probable jurisdiction, Gomez-Bethke v. United States Jaycees, 464 U. S. 1037 (1984), and now reverse.
I
A
The United States Jaycees (Jaycees), founded in 1920 as the Junior Chamber of Commerce, is a nonprofit membership corporation, incorporated in Missouri with national headquarters in Tulsa, Okla. The objective of the Jaycees, as set out in its bylaws, is to pursue
“such educational and charitable purposes as will promote and foster the growth and development of young men’s civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations.” Quoted in Brief for Appellee 2.
The organization’s bylaws establish seven classes of membership, including individual or regular members, associate individual members, and local chapters. Regular membership is limited to young men between the ages of 18 and 35, while associate membership is available to individuals or groups ineligible for regular membership, principally women and older men. An associate member, whose dues are somewhat lower than those charged regular members, may not vote, hold local or national office, or participate in certain leadership training and awards programs. The bylaws define a local chapter as “[a]ny young men’s organization of good repute existing in any community within the United States, organized for purposes similar to and consistent with those” of the national organization. App. to Juris. Statement A98. The ultimate policymaking authority of the Jaycees rests with an annual national convention, consisting of delegates from each local chapter, with a national president and board of directors. At the time of trial in August 1981, the Jaycees had approximately 295,000 members in 7,400 local chapters affiliated with 51 state organizations. There were at that time about 11,915 associate members. The national organization’s executive vice president estimated at trial that women associate members make up about two percent of the Jaycees’ total membership. Tr. 56.
New members are recruited to the Jaycees through the local chapters, although the state and national organizations are also actively involved in recruitment through a variety of promotional activities. A new regular member pays an initial fee followed by annual dues; in exchange, he is entitled to participate in all of the activities of the local, state, and national organizations. The national headquarters employs a staff to develop “program kits” for use by local chapters that are designed to enhance individual development, community development, and members’ management skills. These materials include courses in public speaking and personal finances as well as community programs related to charity, sports, and public health. The national office also makes available to members a range of personal products, including travel accessories, casual wear, pins, awards, and other gifts. The programs, products, and other activities of the organization are all regularly featured in publications made available to the membership, including a magazine entitled “Future.”
B
In 1974 and 1975, respectively, the Minneapolis and St. Paul chapters of the Jaycees began admitting women as regular members. Currently, the memberships and boards of directors of both chapters include a substantial proportion of women. As a result, the two chapters have been in violation of the national organization’s bylaws for about 10 years. The national organization has imposed a number of sanctions on the Minneapolis and St. Paul chapters for violating the bylaws, including denying their members eligibility for state or national office or awards programs, and refusing to count their membership in computing votes at national conventions.
In December 1978, the president of the national organization advised both chapters that a motion to revoke their charters would be considered at a forthcoming meeting of the national board of directors in Tulsa. Shortly after receiving this notification, members of both chapters filed charges of discrimination with the Minnesota Department of Human Rights. The complaints alleged that the exclusion of women from full membership required by the national organization’s bylaws violated the Minnesota Human Rights Act (Act), which provides in part:
“It is an unfair discriminatory practice:
“To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.” Minn. Stat. §363.03, subd. 3 (1982).
The term “place of public accommodation” is defined in the Act as “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” §363.01, subd. 18.
After an investigation, the Commissioner of the Minnesota Department of Human Rights found probable cause to believe that the sanctions imposed on the local chapters by the national organization violated the statute and ordered that an evidentiary hearing be held before a state hearing examiner. Before that hearing took place, however, the national organization brought suit against various state officials, appellants here, in the United States District Court for the District of Minnesota, seeking declaratory and injunctive relief to prevent enforcement of the Act. The complaint alleged that, by requiring the organization to accept women as regular members, application of the Act would violate the male members’ constitutional rights of free speech and association. With the agreement of the parties, the District Court dismissed the suit without prejudice, stating that it could be renewed in the event the state administrative proceeding resulted in a ruling adverse to the Jaycees.
The proceeding before the Minnesota Human Rights Department hearing examiner then went forward and, upon its completion, the examiner filed findings of fact and conclusions of law. The examiner concluded that the Jaycees organization is a “place of public accommodation” within the Act and that it had engaged in an unfair discriminatory practice by excluding women from regular membership. He ordered the national organization to cease and desist from discriminating against any member or applicant for membership on the basis of sex and from imposing sanctions on any Minnesota affiliate for admitting women. Minnesota v. United States Jaycees, No. HR-79-014-GB (Minn. Office of Hearing Examiners for the Dept. of Human Rights, Oct. 9, 1979) (hereinafter Report), App. to Juris. Statement A107-A109. The Jaycees then filed a renewed complaint in the District Court, which in turn certified to the Minnesota Supreme Court the question whether the Jaycees organization is a “place of public accommodation” within the meaning of the State’s Human Rights Act. See App. 32.
With the record of the administrative hearing before it, the Minnesota Supreme Court answered that question in the affirmative. United States Jaycees v. McClure, 305 N. W. 2d 764 (1981). Based on the Act’s legislative history, the court determined that the statute is applicable to any “public business facility.” Id., at 768. It then concluded that the Jaycees organization (a) is a “business” in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a “public” business in that it solicits and recruits dues-paying members based on unselective criteria; and (c) is a public business “facility” in that it conducts its activities at fixed and mobile sites within the State of Minnesota. Id., at 768-774.
Subsequently, the Jaycees amended its complaint in the District Court to add a claim that the Minnesota Supreme Court’s interpretation of the Act rendered it unconstitutionally vague and overbroad. The federal suit then proceeded to trial, after which the District Court entered judgment in favor of the state officials. United States Jaycees v. McClure, 534 F. Supp. 766 (1982). On appeal, a divided Court of Appeals for the Eighth Circuit reversed. United States Jaycees v. McClure, 709 F. 2d 1560 (1983). The Court of Appeals determined that, because “the advocacy of political public causes, selected by the membership, is a not insubstantial part of what [the Jaycees] does,” the organization’s right to select its members is protected by the freedom of association guaranteed by the First Amendment. Id., at 1570. It further decided that application of the Minnesota statute to the Jaycees’ membership policies would produce a “direct and substantial” interference with that freedom, id., at 1572, because it would necessarily result in “some change in the Jaycees’ philosophical cast,” id., at 1571, and would attach penal sanctions to those responsible for maintaining the policy, id., at 1572. The court concluded that the State’s interest in eradicating discrimination is not sufficiently compelling to outweigh this interference with the Jaycees’ constitutional rights, because the organization is not wholly “public,” id., at 1571-1572, 1573, the state interest had been asserted selectively, id., at 1573, and the antidiscrimination policy could be served in a number of ways less intrusive of First Amendment freedoms, id., at 1573-1574.
Finally, the court held, in the alternative, that the Minnesota statute is vague as construed and applied and therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment. In support of this conclusion, the court relied on a statement in the opinion of the Minnesota Supreme Court suggesting that, unlike the Jaycees, the Kiwanis Club is “private” and therefore not subject to the Act. By failing to provide any criteria that distinguish such “private” organizations from the “public accommodations” covered by the statute, the Court of Appeals reasoned, the Minnesota Supreme Court’s interpretation rendered the Act unconstitutionally vague. Id., at 1576-1578.
II
Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.
The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated. The Jaycees contend that this is such a case. Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case. We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members’ freedom of intimate association and their freedom of expressive association.
A
The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E. g., Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. See, e. g., Zablocki v. Redhail, 434 U. S. 374, 383-386 (1978); Moore v. East Cleveland, 431 U. S. 494, 503-504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Griswold v. Connecticut, 381 U. S. 479, 482-485 (1965); Pierce v. Society of Sisters, supra, at 535. See also Gilmore v. City of Montgomery, 417 U. S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460-462 (1958); Poe v. Ullman, 367 U. S. 497, 542-545 (1961) (Harlan, J., dissenting). Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty. See, e. g., Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 844 (1977); Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family — marriage, e. g., Zablocki v. Redhail, supra; childbirth, e. g., Carey v. Population Services International, supra; the raising and education of children, e. g., Smith v. Organization of Foster Families, supra; and cohabitation with one’s relatives, e. g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities — such as a large business enterprise — seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State’s power to control the selection, of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees. Compare Loving v. Virginia, 388 U. S. 1, 12 (1967), with Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945).
Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. See generally Runyon v. McCrary, 427 U. S. 160, 187-189 (1976) (Powell, J., concurring). We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection.
The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups. At the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members, while the St. Paul chapter had about 400. Report, App. to Juris. Statement A-99, A-100. Apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds. See 1 Tr. of State Administrative Hearing 124-132, 135-136, 174-176. In fact, a local officer testified that he could recall no instance in which an applicant had been denied membership on any basis other than age or sex. Id., at 135. Cf. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 438 (1973) (organization whose only selection criterion is race has “no plan or purpose of exclusiveness” that might make it a private club exempt from federal civil rights statute); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 236 (1969) (same); Daniel v. Paul, 395 U. S. 298, 302 (1969) (same). Furthermore, despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization’s social functions. See Tr. 58. Indeed, numerous nonmembers of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the organization’s various community programs, awards ceremonies, and recruitment meetings. See, e. g., 305 N. W. 2d, at 772; Report, App. to Juris. Statement A102, A103.
In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women. We turn therefore to consider the extent to which application of the Minnesota statute to compel the Jay cees to accept women infringes the group’s freedom of expressive association.
B
An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. See, e. g., Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 294 (1981). According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. See, e. g. Gilmore v. City of Montgomery, 417 U. S., at 575; Griswold v. Connecticut, 381 U. S., at 482-485; NAACP v. Button, 371 U. S. 415, 431 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S., at 462. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 907-909, 932-933 (1982); Larson v. Valente, 456 U. S. 228, 244-246 (1982); In re Primus, 436 U. S. 412, 426 (1978); Abood v. Detroit Board of Education, 431 U. S. 209, 231 (1977). In view of the various protected activities in which the Jaycees engages, see infra, at 626-627, that right is plainly implicated in this case.
Government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group, e. g., Healy v. James, 408 U. S. 169, 180-184 (1972); it may attempt to require disclosure of the fact of membership in a group seeking anonymity, e. g., Brown v. Socialist Workers ’74 Campaign Committee, 459 U. S. 87, 91-92 (1982); and it may try to interfere with the internal organization or affairs of the group, e. g., Cousins v. Wigoda, 419 U. S. 477, 487-488 (1975). By requiring the Jaycees to admit women as full voting members, the Minnesota Act works an infringement of the last type. There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate. See Abood v. Detroit Board of Education, supra, at 234-235.
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. E. g., Brown v. Socialist Workers ’74 Campaign Committee, supra, at 91-92; Democratic Party of United States v. Wisconsin, 450 U. S. 107, 124 (1981); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam); Cousins v. Wigoda, supra, at 489; American Party of Texas v. White, 415 U. S. 767, 780-781 (1974); NAACP v. Button, supra, at 438; Shelton v. Tucker, 364 U. S. 479, 486, 488 (1960). We are persuaded that Minnesota’s compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members’ associational freedoms.
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impermissible criteria. See also infra, at 629-631. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization’s ability to express its views. Instead, as the Minnesota Supreme Court explained, the Act reflects the State’s strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. See 305 N. W. 2d, at 766-768. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.
The Minnesota Human Rights Act at issue here is an example of public accommodations laws that were adopted by some States beginning a decade before enactment of their federal counterpart, the Civil Rights Act of 1875, ch. 114, 18 Stat. 335. See Discrimination in Access to Public Places: A Survey of State and Federal Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978) (hereinafter NYU Survey). Indeed, when this Court invalidated that federal statute in the Civil Rights Cases, 109 U. S. 3 (1883), it emphasized the fact that state laws imposed a variety of equal access obligations on public accommodations. Id., at 19, 25. In response to that decision, many more States, including Minnesota, adopted statutes prohibiting racial discrimination in public accommodations. These laws provided the primary means for protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field in 1957. See NYU Survey 239; Brief for State of New York et al. as Amici Curiae 1. Like many other States, Minnesota has progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden. See 305 N. W. 2d, at 766-768. In 1973, the Minnesota Legislature added discrimination on the basis of sex to the types of conduct prohibited by the statute. Act of May 24, 1973, ch. 729, § 3, 1973 Minn. Laws 2164.
By prohibiting gender discrimination in places of public accommodation, the Minnesota Act protects the State’s citizenry from a number of serious social and personal harms. In the context of reviewing state actions under the Equal Protection Clause, this Court has frequently noted that discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.' See, e. g., Heckler v. Mathews, 465 U. S. 728, 744-745 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718, 723-726 (1982); Frontiero v. Richardson, 411 U. S. 677, 684-687 (1973) (plurality opinion). These concerns are strongly implicated with respect to gender discrimination in the allocation of publicly available goods and services. Thus, in upholding Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. § 2000a, which forbids race discrimination in public accommodations, we emphasized that its “fundamental object. . . was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’” Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (1964). That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.
Nor is the state interest in assuring equal access limited to the provision of purely tangible goods and services. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 609 (1982). A State enjoys broad authority to create rights of public access on behalf of its citizens. PruneYard Shopping Center v. Robins, 447 U. S. 74, 81-88 (1980). Like many States and municipalities, Minnesota has adopted a functional definition of public accommodations that reaches various forms of public, quasi-commercial conduct. See 305 N. W. 2d, at 768; Brief for National League of Cities et al. as Amici Curiae 15-16. This expansive definition reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women. See Califano v. Webster, 430 U. S. 313, 317 (1977) (per curiam); Frontiero v. Richardson, supra, at 684-686. Thus, in explaining its conclusion that the Jaycees local chapters are “place[s] of public accommodations” within the meaning of the Act, the Minnesota court noted the various commercial programs and benefits offered to members and stated that “[leadership skills are ‘goods,’ [and] business contacts and employment promotions are ‘privileges’ and ‘advantages’. . . .” 305 N. W. 2d, at 772. Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.
In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means of achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association. See Hishon v. King & Spalding, 467 U. S. 69, 78 (1984) (law firm “has not shown how its ability to fulfill [protected] functions] would be inhibited by a requirement that it consider [a woman lawyer] for partnership on her merits”); id., at 81 (Powell, J., concurring); see also Buckley v. Valeo, 424 U. S., at 71-74; American Party of Texas v. White, 415 U. S., at 790. To be sure, as the Court of Appeals noted, a “not insubstantial part” of the Jaycees’ activities constitutes protected expression on political, economic, cultural, and social affairs. 709 P. 2d, at 1570. Over the years, the national and local levels of the organization have taken public positions on a number of diverse issues, see id., at 1569-1570; Brief for Appellee 4-5, and members of the Jaycees regularly engage in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment, ibid., see, e. g., Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980). There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views. The Act requires no change in the Jaycees’ creed of promoting the interests of young men, and it imposes no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from those of its existing members. Cf. Democratic Party of United States v. Wisconsin, 450 U. S., at 122 (recognizing the right of political parties to “protect themselves ‘from intrusion by those with adverse political principles’”). Moreover, the Jaycees already invites women to share the group’s views and philosophy and to participate in much of its training and community activities. Accordingly, any claim that admission of women as full voting members will impair a symbolic message conveyed by the very fact that women are not permitted to vote is attenuated at best. Cf. Spence v. Washington, 418 U. S. 405 (1974); Griswold v. Connecticut, 381 U. S., at 483.
While acknowledging that “the specific content of most of the resolutions adopted over the years by the Jaycees has nothing to do with sex,” 709 F. 2d, at 1571, the Court of Appeals nonetheless entertained the hypothesis that women members might have a different view or agenda with respect to these matters so that, if they are allowed to vote, “some change in the Jaycees’ philosophical cast can reasonably be expected,” ibid. It is similarly arguable that, insofar as the Jaycees is organized to promote the views of young men whatever those views happen to be, admission of women as voting members will change the message communicated by the group’s speech because of the gender-based assumptions of the audience. Neither supposition, however, is supported by the record. In claiming that women might have a different attitude about such issues as the federal budget, school prayer, voting rights, and foreign relations, see id., at 1570, or that the organization’s public positions would have a different effect if the group were not “a purely young men’s association,” the Jay cees relies solely on unsupported generalizations about the relative interests and perspectives of men and women. See Brief for Appellee 20-22, and n. 3. Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jay cees, we have repeatedly condemned legal deci-sionmaking that relies uncritically on such assumptions. See, e. g., Palmore v. Sidoti, 466 U. S. 429, 433-434 (1984); Heckler v. Mathews, 465 U. S., at 745. In the absence of a showing far more substantial than that attempted by the Jay cees, we decline to indulge in the sexual stereotyping that underlies appellee’s contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization’s speech. Compare Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 151-152 (1980), with Schlesinger v. Ballard, 419 U. S. 498, 508 (1975).
In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees’ protected speech, that effect is no greater than is necessary to accomplish the State’s legitimate purposes. As we have explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent— wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection. Runyon v. McCrary, 427 U. S., at 175-176. Compare NAACP v. Claiborne Hardware Co., 458 U. S., at 907-909 (peaceful picketing), with id., at 916 (violence). In prohibiting such practices, the Minnesota Act therefore “responds precisely to the substantive problem which legitimately concerns” the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 810 (1984).
Ill
We turn finally to appellee’s contentions that the Minnesota Act, as interpreted by the State’s highest court, is unconstitutionally vague and overbroad. The void-for-vagueness doctrine reflects the principle that “a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constuction Co., 269 U. S. 385, 391 (1926). The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review. See, e. g., Kolender v. Lawson, 461 U. S. 352, 357-358 (1983); Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972); Giaccio v. Pennsylvania, 382 U. S. 399, 402-404 (1966).
We have little trouble concluding that these concerns are not seriously implicated by the Minnesota Act, either on its face or as construed in this case. In deciding that the Act reaches the Jaycees, the Minnesota Supreme Court used a number of specific and objective criteria — regarding the organization’s size, selectivity, commercial nature, and use of public facilities — typically employed in determining the applicability of state and federal antidiscrimination statutes to the membership policies of assertedly private clubs. See, e. g., Nesmith v. Young Men’s Christian Assn., 397 F. 2d 96 (CA4 1968); National Organization for Women v. Little League Baseball, Inc., 127 N. J. Super. 522, 318 A. 2d 33, aff’d mem., 67 N. J. 320, 338 A. 2d 198 (1974). See generally NYU Survey 223-224, 250-252. The Court of Appeals seemingly acknowledged that the Minnesota court’s construction of the Act by use of these familiar standards ensures that the reach of the statute is readily ascertainable. It nevertheless concluded that the Minnesota court introduced a constitutionally fatal element of uncertainty into the statute by suggesting that the Kiwanis Club might be sufficiently “private” to be outside the scope of the Act. See 709 F. 2d, at 1577. Like the dissenting judge in the Court of Appeals, however, we read the illustrative reference to the Kiwanis Club, which the record indicates has a formal procedure for choosing members on the basis of specific and selective criteria, as simply providing a further refinement of the standards used to determine whether an organization is “public” or “private.” See id., at 1582 (Lay, C. J., dissenting). By offering this counter-example, the Minnesota Supreme Court’s opinion provided the statute with more, rather than less, definite content.
The contrast between the Jaycees and the Kiwanis Club drawn by the Minnesota court also disposes of appellee’s contention that the Act is unconstitutionally overbroad. The Jaycees argues that the statute is “susceptible of sweeping and improper application,” NAACP v. Button, 371 U. S., at 433, because it could be used to restrict the membership decisions of wholly private groups organized for a wide variety of political, religious, cultural, or social purposes. Without considering the extent to which such groups may be entitled to constitutional protection from the operation of the Minnesota Act, we need only note that the Minnesota Supreme Court expressly rejected the contention that the Jaycees should “be viewed analogously to private organizations such as the Kiwanis International Organization.” 305 N. W. 2d, at 771. The state court’s articulated willingness to adopt limiting constructions that would exclude private groups from the statute’s reach, together with the commonly used and sufficiently precise standards it employed to determine that the Jaycees is not such a group, establish that the Act, as currently construed, does not create an unacceptable risk of application to a substantial amount of protected conduct. Cf. Erznoznik v. City of Jacksonville, 422 U. S. 205, 216-217 (1975); NAACP v. Button, supra, at 434. See New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982).
IV
The judgment of the Court of Appeals is
Reversed.
Justice Rehnquist concurs in the judgment.
The Chief Justice and Justice Blackmun took no part in the decision of this case.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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116
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NEW PROCESS STEEL, L. P. v. NATIONAL LABOR RELATIONS BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 08-1457.
Argued March 23, 2010 —
Decided June 17, 2010
Stevens, J., delivered the opinion of the Court, in whieh Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, post, p. 689.
Sheldon E. Richie argued the cause for petitioner. With him on the briefs were Joseph W. Ambash, Justin F. Keith, Mark E. Solomons, and Laura Metcoff Klaus.
Deputy Solicitor General Katyal argued the cause for respondent. With him on the brief were Solicitor General Kagan, Sarah E. Harrington, Ronald Meisburg, John H. Ferguson, Linda Dreeben, David Habenstreit, and Ruth E. Burdick.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Marshall B. Babson, Christine M. Fitzgerald, Robin S. Conrad, and Shane B. Kawka; and for the Michigan Regional Council of Carpenters by Dennis M. Devaney and Jeffrey D. Wilson.
Lynn K Rhinehart, James B. Coppess, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
The Taft-Hartley Act, enacted in 1947, increased the size of the National Labor Relations Board (Board) from three members to five. See 29 U. S. C. § 153(a). Concurrent with that change, the Taft-Hartley Act amended § 3(b) of the National Labor Relations Act (NLRA) to increase the quorum requirement for the Board from two members to three, and to allow the Board to delegate its authority to groups of at least three members. See § 153(b). The question in this case is whether, following a delegation of the Board’s powers to a three-member group, two members may continue to exercise that delegated authority once the group’s (and the. Board’s) membership falls to two. We hold that two remaining Board members cannot exercise such authority.
I
As 2007 came to a close, the Board found itself with four members and one vacancy. It anticipated two more vacancies at the end of the year, when the recess appointments of Members Kirsanow and Walsh were set to expire, which would leave the Board with only two members — too few to meet the Board’s quorum requirement, § 153(b). The four sitting members decided to take action in an effort to preserve the Board’s authority to function. On December 20, 2007, the Board made two delegations of its authority, effective as of midnight December 28,2007. First, the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board. See Minute of Board Action (Dec. 20, 2007), App. to Brief for Petitioner 4a-5a (hereinafter Board Minutes). Second, the Board delegated “to Members Liebman, Schaumber and Kirsanow, as a three-member group, all of the Board’s powers, in anticipation of the adjournment of the 1st Session of the 110th Congress.” Id., at 5a. The Board expressed the opinion that its action would permit the remaining two members to exercise the powers of the Board “after [the] departure of Members Kir-sanow and Walsh, because the remaining Members will constitute a quorum of the three-member group.” Ibid.
The Board’s minutes explain that it relied on “the statutory language” of § 3(b), as well as an opinion issued by the Office of Legal Counsel (OLC), for the proposition that the Board may use this delegation procedure to “issue decisions during periods when three or more of the five seats on the Board are vacant.” Id., at 5a, 6a. The OLC had concluded in 2003 that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” Dept, of Justice, OLC, Quorum Requirements, App. to Brief for Respondent 3a. In seeking the OLC’s advice, the Board agreed to accept the OLC’s answer regarding its ability to operate with only two members, id., at la, n. 1, and the Board in its minutes therefore “acknowledged that it is bound” by the OLC opinion, Board Minutes 6a. The Board noted, however, that it was not bound to make this delegation; rather, it had “decided to exercise its discretion” to do so. Ibid.
On December 28, 2007, the Board’s delegation to the three-member group of Members Liebman, Schaumber, and Kirsanow became effective. On December 31,2007, Member Kirsanow’s recess appointment expired. Thus, starting on January 1, 2008, Members Liebman and Schaumber became the only members of the Board. They proceeded to issue decisions for the Board as a two-member quorum of a three-, member group. The delegation automatically terminated on March 27, 2010, when the President made two recess appointments to the Board, because the terms of the delegation specified that it would be revoked when the Board’s membership returned to at least three members, id., at 7a.
During the 27-month period in which the Board had only two members, it decided almost 600 cases. See Letter from Elena Kagan, Solicitor General, to William K. Suter, Clerk of Court (Apr. 26, 2010). One of those cases involved petitioner New Process Steel. In September 2008, the two-member Board issued decisions sustaining two unfair labor practice complaints against petitioner. See New Process Steel, LP, 353 N. L. R. B. No. 25; New Process Steel, LP, 353 N. L. R. B. No. 13. Petitioner sought review of both orders in the Court of Appeals for the Seventh Circuit, and challenged the authority of the two-member Board to issue the orders. •
The court ruled in favor of the Government. After a review of the text and legislative history of § 3(b) and the sequence of events surrounding the delegation of authority in December 2007, the court concluded that the then-sitting two members constituted a valid quorum of a three-member group to which the Board had legitimately delegated all its powers. 564 F. 3d 840, 845-847 (CA7 2009). On the same day that the Seventh Circuit issued its decision in this case, the Court of Appeals for the District of Columbia Circuit announced a decision coming to the opposite conclusion. Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F. 3d 469 (2009). We granted certiorari to resolve the conflict. 558 U. S. 989 (2009).
II
The Board’s quorum requirements and delegation procedure are set forth in § 3(b) of the NLRA, 49 Stat. 451, as amended by 61 Stat. 139, which provides:
“The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.... A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.” 29 U. S. C. § 153(b).
It is undisputed that the first sentence of this provision authorized the Board to delegate its powers to the three-member group effective on December 28, 2007, and the last sentence authorized two members of that group to act as a quorum of the group during the next three days if, for example, the third member had to recuse himself from a particular matter. The question we face is whether those two members could continue to act for the Board as a quorum of the delegee group after December 31, 2007, when the Board’s membership fell to two and the designated three-member group of “Members Liebman, Sehaumber, and Kirsanow” ceased to exist due to the expiration of Member Kirsanow’s term. Construing §3(b) as a whole and in light of the Board’s longstanding practice, we are persuaded that they could not.
The first sentence of § 3(b), which we will call the delegation clause, provides that the Board may delegate its powers only to a “group of three or more members.” 61 Stat. 139. There are two different ways to interpret that language. One interpretation, put forward by the Government, would read the clause to require only that a delegee group contain three members at the precise time the Board delegates its powers, and to have no continuing relevance after the moment of the initial delegation. Under that reading, two members alone may exercise the Ml power of the Board so long as they were part of a delegee group that, at the time of its creation, included three members. The other interpretation, by contrast, would read the clause as requiring that the delegee group maintain a membership of three in order for the delegation to remain valid. Three main reasons support the latter reading.
First, and most fundamentally, reading the delegation clause to require that the Board’s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in § 3(b). See Duncan v. Walker, 533 U. S. 167, 174 (2001) (declining to adopt a “construction of the statute, [that] would render [a term] insignificant”); Market Co. v. Hoffman, 101 U. S. 112, 115-116 (1879) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be ... insignificant” (internal quotation marks omitted)). Those provisions are: (1) the delegation clause; (2) the vacancy clause, which provides that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board”; (3) the Board quorum requirement, which mandates that “three members of the Board shall, at all times, constitute a quorum of the Board”; and (4) the group quorum provision, which provides that “two members shall constitute a quorum” of any delegee group. See § 153(b).
Interpreting the statute to require the Board’s powers to be vested at all times in a group of at least three members is consonant with the Board quorum requirement, which requires three participating members “at all times” for the Board to act. The interpretation likewise gives material ef-feet to the three-member requirement in the delegation clause. The vacancy clause still operates to provide that vacancies do not impair the ability of the Board to take action, so long as the quorum is satisfied. And the interpretation does not render inoperative the group quorum provision, which still operates to authorize a three-member delegee group to issue a decision with only two members participating, so long as the delegee group was properly constituted. Reading §3(b) in this manner, the statute’s various pieces hang together — a critical clue that this reading is a sound one.
The contrary reading, on the other hand, allows two members to act as the Board ad infinitum, which dramatically undercuts the significance of the Board quorum requirement by allowing its permanent circumvention. That reading also makes the three-member requirement in the delegation clause of vanishing significance, because it allows a de facto delegation to a two-member group, as happened in this case. Under the Government’s approach, it would satisfy the statute for the Board to include a third member in the group for only one minute before her term expires; the approach gives no meaningful effect to the command implicit in both the delegation clause and the Board quorum requirement that the Board’s full power be vested in no fewer than three members. Hence, while the Government’s reading of the delegation clause is textually permissible in a narrow sense, it is structurally implausible, as it would render two of §3(b)’s provisions functionally void.
Second, and relatedly, if Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language. Congress instead imposed the requirement that the Board delegate authority to no fewer than three members, and that it have three participating members to constitute a quorum. Those provisions are at best an unlikely way of conveying congressional approval of a two-member Board. Indeed, had Congress wanted to provide for two members alone to act as the Board, it could have maintained the NLRA’s original two-member Board quorum provision, see 29 U. S. C. § 153(b) (1946 ed.), or provided for a delegation of the Board’s authority to groups of two. The Rube Goldberg-style delegation mechanism employed by the Board in 2007 — delegating to a group of three, allowing a term to expire, and then continuing with a two-member quorum of a phantom delegee group — is surely a bizarre way for the Board to achieve the authority to decide cases with only two members. To conclude that Congress intended to authorize such a procedure to contravene the three-member Board quorum, we would need some evidence of that intent.
The Government has not adduced any convincing evidence on this front, and to the contrary, our interpretation is consistent with the longstanding practice of the Board. This is the third factor driving our decision. Although the Board has throughout its history allowed two members of a three-member group to issue decisions when one member of a group was disqualified from a case, see Brief for Respondent 20; Board Minutes 6a, the Board has not (until recently) allowed two members to act as a quorum of a defunct three-member group. Instead, the Board concedes that its practice was to reconstitute a delegee group when one group member’s term expired. Brief for Respondent 39, n. 27. That our interpretation of the delegation provision is consistent with the Board’s longstanding practice is persuasive evidence that it is the correct one, notwithstanding the Board’s more recent view. See Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 214 (1988).
In sum, a straightforward understanding of the text, which requires that no fewer than three members be vested with the Board’s full authority, coupled with the Board’s longstanding practice, points us toward an interpretation of the delegation clause that requires a delegee group to maintain a membership of three.
Ill
Against these points, the Government makes several arguments that we find unconvincing. It first argues that § 3(b) authorizes the Board’s action by its plain terms, notwithstanding the somewhat fictional nature of the delegation to a three-member group with the expectation that within days it would become a two-member group. In particular, the Government contends the group quorum requirement and the vacancy clause together make clear that when the Board has delegated its power to a three-member group, “any two members of that group constitute a quorum that may continue to exercise the delegated powers, regardless whether the third group member . . . continues to sit on the Board” and regardless “whether a quorum remains in the full Board.” Brief for Respondent 17; see also id., at 20-23.
Although the group quorum provision clearly authorizes two members to act as a quorum of a “group designated pursuant to the first sentence” — i. e., a group of at least three members — it does not, by its plain terms, authorize two members to constitute a valid delegee group. A quorum is the number of members of a larger body that must partiei-pate for the valid transaction of business. See Black’s Law Dictionary 1370 (9th ed. 2009) (defining “quorum” as the “minimum number of members . . . who must be present for a deliberative assembly to legally transact business”); 13 Oxford English Dictionary 51 (2d ed. 1989) (“A fixed number of members of any body ... whose presence is necessary for the proper or valid transaction of business”); Webster’s New International Dictionary 2046 (2d ed. 1954) (“Such a number of the officers or members of any body as is, when duly assembled, legally competent to transact business”). But the fact that there are sufficient members participating to constitute a quorum does not necessarily establish that the larger body is properly constituted or can validly exercise authority. In other words, that only two members must participate to transact business in the name of the group does not establish that the group itself can exercise the Board’s authority when the group’s membership falls below three.
The Government nonetheless contends that quorum rules “ordinarily” define the number of members that is both necessary and sufficient for an entity to take an action. Brief for Respondent 20. Therefore, because of the quorum provision, if “at least two members of a delegee group actually participate in a decision . . . that should be the end of the matter,” regardless of vacancies in the group or on the Board. Ibid. But even if quorum provisions ordinarily provide the rule for dealing with vacancies — i. e., even if they ordinarily make irrelevant any vacancies in the remainder of the larger body — the quorum provisions in §3(b) do no such thing. Rather, there is a separate clause addressing vacancies. The vacancy clause, recall, provides that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” § 153(b) (2006 ed.). We thus understand the quorum provisions merely to define the number of members who must participate in a decision, and look to the vacancy clause to determine whether vacancies in excess of that number have any effect on an entity’s authority to act.
The Government argues that the vacancy clause establishes that a vacancy in the group has no effect. But the clause speaks to the effect of a vacancy in the Board on the authority to exercise the powers of the Board; it does not provide a delegee group authority to act when there is a vacancy in the group. It is true that any vacancy in the group is necessarily also a vacancy in the Board (although the converse is not true), and that a group exercises the (delegated) “powers of the Board.” But §3(b) explicitly distinguishes between a group and the Board throughout, and in light of that distinction we do not think “Board” should be read to include “group” when doing so would negate for all practical purposes the command that a delegation must be made to a group of at least three members.
Some courts have nonetheless interpreted the quorum and vacancy provisions of §3(b) by analogizing to an appellate panel, which may decide a case even though only two of the three initially assigned judges remain on the panel. See Photo-Sonics, Inc. v. NLRB, 678 F. 2d 121, 122-123 (CA9 1982). The governing statute provides that a case may be decided “by separate panels, each consisting of three judges,” 28 U. S. C. § 46(b), but that a “majority of the number of judges authorized to constitute a court or panel thereof . . . shall constitute a quorum,” § 46(d). We have interpreted that statute to “requir[e] the inclusion of at least three judges in the first instance,” but to allow a two-judge “quorum to proceed to judgment when one member of the panel dies or is disqualified.” Nguyen v. United States, 539 U. S. 69, 82 (2003). But §46, which addresses the assignment of particular cases to panels, is a world apart from this statute, which authorizes the standing delegation of all the Board’s powers to a small group. Given the difference between a panel constituted to decide particular cases and the creation of a standing panel plenipotentiary, which will decide many cases arising long after the third member departs, there is no basis for reading the statutes similarly. Moreover, our reading of the court of appeals quorum provision was informed by the longstanding practice of allowing two judges from the initial panel to proceed to judgment in the case of a vacancy, see ibid., and as we have already explained, the Board’s practice has been precisely the opposite.
Finally, we are not persuaded by the Government’s argument that we should read the statute to authorize the Board to act with only two members in order to advance the congressional objective of Board efficiency. Brief for Respondent 26. In the Government’s view, Congress’ establishment of the two-member quorum for a delegee group reflected its comfort with pre-Taft-Hartley practice, when the then-three-member Board regularly issued decisions with only two members. Id., at 24. But it is unsurprising that two members regularly issued Board decisions prior to Taft-Hartley, because the statute then provided for a Board quorum of two. See 29 U. S. C. § 153(b) (1946 ed.). Congress changed that requirement to a three-member quorum for the Board. As we noted above, if Congress had wanted to allow the Board to continue to operate with only two members, it could have kept the Board quorum requirement at two.
Furthermore, if Congress had intended to allow for a two-member Board, it is hard to imagine why it would have limited the Board’s power to delegate its authority by requiring a delegee group of at least three members. Nor do we have any reason to surmise that Congress’ overriding objective in amending § 3(b) was to keep the Board operating at all costs; the inclusion of the three-member quorum and delegation provisions indicate otherwise. Cf. Robert’s Rules of Order § 3, p. 20 (10th ed. 2001) (“The requirement of a quorum is a protection against totally unrepresentative action in the name of the body by an unduly small number of persons”).
IV
In sum, we find that the Board quorum requirement and the three-member delegation clause should not be read as easily surmounted technical obstacles of little to no import. Our reading of the statute gives effect to those provisions without rendering any other provision of the statute superfluous: The delegation clause still operates to allow the Board to act in panels of three, and the group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disqualified. Our construction is also consistent with the Board’s longstanding practice with respect to delegee groups. We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.
We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances. Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Several other Courts of Appeals reached the same conclusion as the Seventh Circuit, although not always following the same reasoning. See Northeastern Land Servs., Ltd. v. NLRB, 560 F. 3d 36, 41 (CA1 2009); Snell Island SNF LLC v. NLRB, 568 F. 3d 410, 424 (CA2 2009); Narricot Industries, L. R. v. NLRB, 587 F. 8d 654, 660 (CA4 2009); Teamsters Local Union No. 523 v. NLRB, 590 F. 3d 849, 852 (CA10 2009).
When one member of a group is disqualified, only two members actually participate in the decision. That circumstance thus also presents the problem of the possible inferiority of two-member decisionmaking. That the Board found it necessary to reconstitute groups only when there was a vacancy, and not when there was a disqualification, suggests that its practice was driven by more than its belief in the “superiority of three-member groups,” post, at 697 (Kennedy, J., dissenting).
It also has not been the Board’s practice to issue decisions when the Board’s membership has fallen to two. For about a 2-month period in 1993-1994, and a 1-month period in 2001-2002, the Board had only two members and did not issue decisions. Brief for Respondent 5, n. 4. In 2005, the Board did delegate its authority to a three-member group, of which two members issued a few orders as a quorum during a 3-day period in which the Board’s (and the group’s) membership fell below three. Ibid. But the two-member Board at issue in this case, extending over two years, is unprecedented in the history of the post-Taft-Hartley Board.
Nor does failure to meet a quorum requirement necessarily establish that an entity’s power is suspended so that it can be exercised by no delegee. The requisite membership of an organization, and the number of members who must participate for it to take an action, are two separate (albeit related) characteristics. Thus, although we reach the same result, we do not adopt the District of Columbia Circuit’s equation of a quorum requirement with a membership requirement that must be satisfied or else the power of any entity to which the Board has delegated authority is suspended. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F. 3d 469, 475 (2009) C‘[T]he Board quorum provision establishes that the power of the Board to act exists [only] when the Board consists of three members. The delegee group’s delegated power to act. . . ceases when the Board’s membership dips below the Board quorum of three members” (citation omitted)). The Board may not, of course, itself take any action absent sufficient membership to muster a quorum (three), and in that sense a quorum requirement establishes a minimum membership level. Our conclusion that the delegee group ceases to exist once there are no longer three Board members to constitute the group does not cast doubt on the prior delegations of authority to nongroup members, such as the regional directors or the general counsel. The latter implicates a separate question that our decision does not address.
In any event, if the analogy to the appellate courts were correct, then one might have to examine each Board decision individually. Petitioner’s case was not initially assigned to a three-member panel and thereafter decided by two members after one member had retired. Instead, by the time petitioner’s case came before the Board, Member Kirsanow had long departed. In practical terms, petitioner’s case was both assigned to and decided by a two-member delegee group.
We have no doubt that Congress intended “to preserve the ability of two members of the Board to exercise the Board’s full powers, in limited circumstances,” post, at 699, as when a two-member quorum of a properly constituted delegee group issues a decision for the Board in a particular case. But we doubt “Congress intended to preserve” the pre-TaftHartley practice of two members acting for the Board when the third seat was vacant, ibid., because it declined to preserve the pre-Taft-Hartley two-member Board quorum.
Former Board members have identified turnover and vacancies as a significant impediment to the operations of the Board. See Truesdale, Battling Case Backlogs at the NLRB, 16 Lab. Law. 1,5 (2000) (“[I]t is clear that turnover and vacancies have a major impact on Board productivity”); Higgins, Labor Czars — Commissars—Keeping Women in the Kitchen— the Purpose and Effects of the Administrative Changes Made by TaftHartley, 47 Cath. U. L. Rev. 941, 953 (1998) (“Taft-HarÜey's Achilles heel is the appointment process____In the past twenty years... Board member turnover and delays in appointments and in the confirmation process have kept the Board from reaching its true potential”).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
81
] |
INTERSTATE NATURAL GAS CO., INC. v. FEDERAL POWER COMMISSION et al.
No. 733.
Argued May 2, 1947. —
Decided June 16, 1947.
William A. Dougherty argued the cause for petitioner. With him on the brief were Henry P. Dart, Jr. and James Lawrence White.
By special leave of Court, James D. Smullen, Assistant Attorney General, argued the cause for the State of Texas et al., as amici curiae, urging reversal. With him on the brief was Price Daniel, Attorney General.
Charles E. McGee argued the cause fojc the Federal Power Commission, respondent. With him on the brief were Acting Solicitor General Washington and Louis W. McKernan.
Briefs of amici curiae were filed in support of petitioners by Mac Q. Williamson, Attorney General, for the State of Oklahoma; and Donald C. McCreery, Wesley E. Disnéy, Charles I. Francis, Russell B. Brown, L. Dan Jones, Forrest M. Darrough, Hiram M. Dow, Walace Hawkins, Harold L. Kennedy, L. G. Owen and William Henry Rector for the Independent Natural Gas Association of America et al.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
This case originated in proceedings before the Federal Power Commission initiated pursuant to § 5 (a) of the Natural Gas Act of 1938. After overruling objections to its jurisdiction, the Commission entered an order requiring the petitioner to effect substantial rate reductions in certain of its sales of natural gas and to file new schedules of rates and charges. Petitioner, in seeking review of the order in the Circuit Court of Appeals, denied the jurisdiction of the Commission to set rates for the sales in issue in this case and asserted that the rates so established were confiscatory. That Court, one judge dissenting, denied the petition for review. We granted certiorari limited to the question of the Commission’s jurisdiction.
Petitioner owns and operates 110 natural gas wells and owns or controls over 56,000 acres in the Monroe field of northern Louisiana. Petitioner’s main pipe line transports gas southward from the Monroe field through a part of Mississippi and back into Louisiana, where at Baton Rouge sales are made to various distributing companies and industrial consumers. Petitioner concedes that with respect to these operations it is a natural gas company within the meaning of § 2 (6) of the Act and that the Commission has jurisdiction to regulate the rates of sales connected therewith.
The issue of this case involves the jurisdiction of the Federal Power Commission to regulate sales made in the field by petitioner to three pipe-line companies, each of which transports the gas so purchased to markets in States other than Louisiana. Gas produced from petitioner’s wells flows into petitioner’s system of field pipe lines, moving first into branch lines, then into trunk lines, and finally into the main trunk lines from which delivery is made to the three purchasing companies. During the course of this movement petitioner purchases gas from other producers in the field which gas is introduced into petitioner’s system at designated points and is there commingled with the gas moving from petitioner’s own wells. By far the larger part of the gas so purchased by petitioner has been gathered from various wells of the selling companies before delivery to petitioner is made. The gas moves through petitioner’s system at well pressure. Shortly after the sales in question are completed, the gas is directed through the compressor stations of the purchasing companies and is there subjected to increased pressure in order that it may be moved to markets as far distant as Illinois. The entire movement of the gas from the wells to the purchasing companies through the compressor pumps and across the state lines is a continuous process without interruption for storage, processing or for any other purpose. All the gas sold in these transactions is destined for ultimate public consumption in States other than Louisiana.
It appears that petitioner supplies only a part of the gas purchased by the three pipe-line companies in the Monroe field. Counsel for petitioner conceded before the Commission that the prices charged the three pipe-line companies were, by agreement, identical with those being charged by other producers in the field. The Commission found that petitioner was an affiliate of one of the three purchasing companies. It was the conclusion of the Commission that the rates charged by petitioner in these sales were “unjust, unreasonable and unlawful” and ordered rate reductions amounting to $596,320 per year as applied to the volume of gas sold in the test year of 1941.
Petitioner has at no time contended that regulation of its sales to the three purchasing companies is beyond the constitutional powers of Congress. Petitioner has vigorously asserted, however, that Congress did not exercise its full powers in the Natural Gas Act and that in § 1 (b) of the Act the jurisdiction of the Federal Power Commission is so limited as to preclude valid regulation of the sales by that agency. Section 1 (b) provides:
“The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.”
It is not denied that the transactions in question were sales of natural gas for resale for ultimate public consumption.
Petitioner has raised two issues: First, it is contended, the sales are not “in interstate commerce.” Second, the sales are a part of “production or gathering” and hence not within the Commission’s power of regulation.
We have no doubt that the sales are in interstate commerce. Indeed, petitioner did not contest that position before the Commission, but, so far as the record reveals, raised the issue for the first time in its petition for rehearing in the Circuit Court of Appeals. The Federal Power Commission found that the gas sold to the three pipe-line companies moves “. . . in a constant flow from the mouths of the wells from which it is produced through pipe lines belonging to Interstate to the compressor station of the respective purchaser, and thence through said compressor stations into the pipe line of said respective purchaser and thus into and through states other than Louisiana . . . , all without interruption, and said gas is so destined from the moment of its production.” The Commission further found that “The gas transported and sold by Interstate to these three pipe line companies continues its flow in interstate commerce and, as an established course of business well known to Interstate, is destined for resale for ultimate public consumption in . . . markets outside Louisiana.”
Under the circumstances described by the Commission, it is clear that the sales in question were quite as much in interstate commerce as they would have been had the pipes of the petitioner crossed the state line before reaching the points of sale. Thus in Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927), a sale of electrical energy at the state line was held to be in interstate commerce. Commenting on that case, this Court in Jersey Central Power & Light Co. v. Federal Power Commission, 319 U. S. 61, 69 (1943) stated: “We see no distinction between a sale at or before reaching the state line.” There is nothing in the terms of the Act or in its legislative history to indicate that Congress intended that a more restricted meaning be attributed to the phrase “in interstate commerce” than that which theretofore had been given to it in the opinions of this Court. Section 2 (7) of the Act defines “interstate commerce” as “. . . commerce between any point in a State and any point outside thereof, or between points within the same State but through any place outside thereof, . . . .” Clearly the sales in question were a part of commerce being carried on between points in Louisiana and points in other States. There is nothing in that language to suggest that Congress intended that sales consummated before the gas crosses a state line should not be regarded as being “in” such commerce.
Nor are we impressed with the suggestion that the interstate movement of the gas should be regarded as beginning when the gas, theretofore moving through petitioner’s pipe line system at well pressure, is subjected to increased pressure in the compressor stations of the purchasing companies in order that the gas may be moved to the distant markets. Long before the gas reaches the compressor pumps it has been committed to its interstate journey which follows without interruption or deviation. Under such circumstances, the increase of pressure in the compressor stations must be regarded as merely an incident in the interstate commerce rather than as its origin.
The Company contends, however, that regardless of whether the sales in question are in interstate commerce, those transactions fall within the clause of § 1 (b) specifically excepting from the Commission’s jurisdiction regulation of “. . . the production or gathering of natural gas.” In evaluating that contention we should not lose sight of the objectives sought to be accomplished by Congress in passing the Natural Gas Act.
In a series of decisions announced prior to the passage of the Act, this Court had held that, although Congress had not acted, the regulation of wholesale rates of gas and electrical energy moving in interstate commerce is beyond the constitutional powers of the States. Petitioner, relying in part upon the principles established by those cases, has successfully avoided regulation by the Louisiana Public Service Commission. As was stated in the House Committee report, the “basic purpose” of Congress in passing the Natural Gas Act was “to occupy this field in which the Supreme Court has held that the States may not act.” In denying the Federal Power Commission jurisdiction to regulate the production or gathering of natural gas, it was not the purpose of Congress to free companies such as petitioner from effective public control. The purpose of that restriction was, rather, to preserve in the States powers of regulation in areas in which the States are constitutionally competent to act. Thus the House Committee Report states: “The bill takes no authority from State commissions, and is so drawn as to complement and in no manner usurp State regulatory authority . . . .” Clearly, among the powers thus reserved to the States is the power to regulate the physical production and gathering of natural gas in the interests of conservation or of any other consideration of legitimate local concern. It was the intention of Congress to give the States full freedom in these matters. Thus, where sales, though technically consummated in interstate commerce, are made during the course of production and gathering and are so closely connected with the local incidents of that process as to render rate regulation by the Federal Power Commission inconsistent or a substantial interference with the exercise by the State of its regulatory functions, the jurisdiction of the Federal Power' Commission does not attach. But such conflict must be clearly shown. Exceptions to the primary grant of jurisdiction in the section are to be strictly construed. It is not sufficient to defeat the Commission’s jurisdiction over sales for resale in interstate commerce to assert that in the exercise of the power of rate regulation in such cases, local interests may in some degree be affected.
. There is nothing in the record to indicate that the regulation in question is in any way inconsistent with the exercise by Louisiana of the powers over production and gathering of natural gas reserved to it by Congress in § 1 (b) of the Act. The State in a series of enactments has made elaborate provision for the conservation of its natural gas resources and has established various rules and regulations relating to the production and gathering process. Most of those provisions, presumably, are applicable to petitioner’s field operations. The record is devoid of any suggestion that Louisiana has ever opposed the jurisdiction of the Federal Power Commission in this case or has ever urged that federal regulation of the sales in question would interfere with the exercise by the State of its regulatory functions. We do not suggest that the jurisdiction of the Commission in any case is to be determined by the resistance or lack of resistance on the part of the State to federal regulation. But in evaluating the Company’s contention that the State’s powers have been invaded, we regard it a matter of some significance that although the State has freely exercised its regulatory powers over the production and gathering of natural gas, there is no evidence of any conflict, present or threatened, in the performing of those functions by the State with the exercise of the jurisdiction of the Federal Power Commission in this case.
It is not contended that the Commission is precluded from regulating the sales in question by reason of the exception from the Commission’s jurisdiction relating to the production of natural gas. Petitioner asserts, however, that the sales to the three pipe-line companies are a part of the gathering process and consequently not within the Commission’s power of regulation. This basic contention' has given rise to a great many subsidiary questions such as whether the sales were made from petitioner’s “gathering” lines or from petitioner’s “transmission” lines and whether the gathering process continued to the points of sale or was, as the Commission found, completed at some point prior to surrender of custody and passage of title. We have found it unnecessary to resolve those issues. The gas moved by petitioner to the points of sale consisted of gas produced from petitioner’s wells commingled with that produced and gathered by other companies and introduced into petitioner’s pipe-line system during the course of the movement. By the time the sales are consummated, nothing further in the gathering process remains to be done. We have held that these sales are in interstate commerce. It cannot be doubted that their regulation is predominately a matter of national, as contrasted to local concern. All the gas sold in these transactions is destined for consumption in States other than Louisiana. Unreasonable charges exacted at this stage of the interstate movement become perpetuated in large part in fixed items of costs which must be covered by rates charged subsequent purchasers of the gas, including the ultimate consumer. It was to avoid such situations that the Natural Gas Act was passed.
For reasons stated above, we have concluded that the Federal Power Commission in this case has not exceeded the jurisdiction conferred upon it by Congress in § 1 (b) of the Natural Gas Act.
Affirmed.
52 Stat. 821, 15 U. S. C. § 717 et seq.; 56 Stat. 83.
3 F. P. C. 416.
156 F. 2d 949 (1946).
Section 2 (6) provides: “‘Natural-gas company’ means a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.”
The three companies include the Mississippi River Fuel Corporation, Southern Natural Gas Company, and the United Gas Pipe Line Company to which gas is sold for the account of the Memphis Natural Gas Company.
Petitioner produced and purchased a total of 51,659,799 Mcf of gas in the Monroe field during 1941. Of this total, petitioner produced from its own wells 28, 819, 814 Mcf. Of the 22,839,985 Mcf purchased, 95% was gathered by the producers before delivery to petitioner; the remaining 5% was purchased by petitioner directly at the well heads. Petitioner sold 21,863,278 Mcf to the three purchasing companies in the transactions in question.
Gas in the Monroe field is “dry” gas and consequently is not subjected to any extraction processing. Before moving into the compressor pumps the gas is run through a series of “scrubbers” which remove dirt and foreign particles. This is accomplished, however, without interruption in the movement.
The transactions in question supply the Mississippi Fuel Corp. with 22% of its requirements, 24% of the requirements of the Memphis Natural Gas Co., and 16.61% of the requirements of Southern Natural Gas Co.
In its complaint filed in the District Court for the Eastern District of Louisiana invoking the equity powers of the Court to restrain the Louisiana Public Service Commission from conducting an investigation into petitioner’s rates and charges, petitioner specifically asserted that the sales in question are in interstate commerce and thus beyond the jurisdiction of the state commission. The District Court granted the requested relief. Interstate Natural Gas Co. v. Public Service Commission; 33 F. Supp. 50; 34 F. Supp. 980 (1940).
Shafer v. Farmers Grain Co., 268 U. S. 189 (1925); Lemke v. Farmers Grain Co., 258 U. S. 50 (1922); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 (1921). And see Illinois Natural Gas Co. v. Centred Illinois Public Service Co., 314 U. S. 498, 503-504 (1942); Currin v. Wallace, 306 U. S. 1, 10 (1939); Peoples Natural Gas Co. v. Public Service Comm’n, 270 U. S. 550, 554 (1926); Illinois Central R. Co. v. Railroad Comm’n, 236 U. S. 157, 163 (1915). Cf. Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346 (1939).
Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U. S. 498, 508 (1942); Peoples Natural Gas Co. v. Federal Power Comm’n, 75 U. S. App. D. C. 235, 127 F. 2d 153 (1942). Cf. Jersey Central Power & Light Co. v. Federal Power Comm’n, 319 U. S. 61, 70-71 (1943).
Cf. Illinois Natural Gas Co. v. Central Illinois Public Service Co., supra at 504-505; State Tax Comm’n v. Interstate Natural Gas Co., 284 U. S. 41, 44 (1931).
Missouri v. Kansas Natural Gas Co., 265 U. S. 298 (1924); Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927); State Corp. Comm’n v. Wichita Gas Co., 290 U. S. 561 (1934).
See note 9, supra.
H. R. Rep. No. 709,75th Cong., 1st Sess., 2.
Ibid.
Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 602-603 (1945).
The Federal Power Commission has not asserted jurisdiction over all sales taking place in the natural gas fields even though in interstate commerce for resale for ultimate public consumption. In the Matter of Columbian Fuel Corp., 2 F. P. C. 200; In the Matter of Billings Co., 2 F. P. C. 288. We express no opinion as to the validity of the jurisdictional tests employed by the Commission in these cases.
Cf. Colorado Interstate Gas Co. v. Federal Power Comm’n, supra at 603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 607-612 (1944).
La. Gen. Stat. §§ 4766-4826.2.
The record contains testimony by counsel for petitioner to the effect that these provisions apply to petitioner and that petitioner’s operations have conformed with their requirements.
Counsel for the Louisiana Public Service Commission and for two Louisiana municipalities participated in the proceedings before the Federal Power Commission.
A number of cases in this Court have held that the reasonableness of cost items such as that incurred by a purchasing pipe-line company in acquiring gas for transportation may be inquired into during the course of subsequent regulation when buyer and seller are affiliated corporations and there is evidence that the sales were not made at arm’s length. The Commission found affiliation to exist between petitioner and only one of the three purchasing companies, the Mississippi River Fuel Corporation. There was a finding of “close contractual and operating arrangements” between petitioner and another of the purchasing companies. Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300 (1937); Columbus Gas & Fuel Co. v. Public Utilities Comm’n, 292 U. S. 398 (1934); Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290 (1934); Western Distributing Co. v. Public Service Comm’n, 285 U. S. 119 (1932); Smith v. Illinois Bell Telephone Co., 282 U. S. 133 (1930); United Fuel Gas Co. v. Railroad Comm’n, 278 U. S. 300 (1929).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
51
] |
UNITED STATES ex rel. JOHNSON v. SHAUGHNESSY, ACTING DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION.
No. 506.
Argued April 19-20, 1949.
Decided May 9, 1949.
Gunther Jacobson argued the cause and filed a brief for petitioner.
Patricia H. Collins argued the cause for respondent. With her on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan.
Jack Wasserman, Gaspare Cusumano and Thomas M. Cooley, II, filed a brief for the Association of Immigration and Nationality Lawyers, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The American Foreign Service at Stockholm issued to petitioner an immigration visa to come to the United States as a Swedish quota immigrant. On the ground that she was a mental defective, authorities of the Immigration and Naturalization Service declined to admit her into this country and ordered her detention at Ellis Island pending deportation to Sweden. She filed this habeas corpus proceeding contending that she was not a mental defective and challenging in several respects the legality of the exclusion order. The District Court discharged the writ and ordered petitioner remanded to the immigration authorities. 82 F. Supp. 36. The Court of Appeals affirmed, one judge dissenting. 170 F. 2d 1009. Certiorari was granted because important questions were raised concerning administration of the immigration laws.
Section 3 of the Immigration Act of 1917 excludes from admission into this country certain classes of aliens deemed undesirable. Among those excluded are persons “who are found to be and are certified by the examining surgeon as being mentally . . . defective . . . 39 Stat. 874, 875, 8 U. S. C. § 136 (d). Section 16 of the Act provides that mental examinations of arriving aliens shall be made by not less than two United States Public Health Service medical officers especially trained in the diagnosis of insanity and mental defects. The same section authorizes an appeal to a special board of medical officers of the Public Health Service for any alien who is certified by the two medical officers as a mental defective. Finally § 17 of the Act as amended, 8 U. S. C. § 153, provides that boards of special inquiry shall be appointed by the Immigration and Naturalization Service, subject to approval of the Attorney General. These boards of special inquiry are granted “authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported.” It was a board of special inquiry of this kind that ordered petitioner excluded from the United States.
First. Two medical officers of the Public Health Service signed a certificate that petitioner was a mental defective. On appeal a board of three Public Health medical officers affirmed the finding of this certificate. Later when her case was under consideration by a board of special inquiry of the Immigration and Naturalization Service, petitioner asked for time to produce additional evidence to show that she was not a mental defective. The board refused to hear such evidence holding that it was bound by § 17 of the Immigration Act to accept as final the medical certification that she was a mental defective. Petitioner contends that this holding was error which invalidates the exclusion order. We hold that the Court of Appeals correctly rejected this contention.
Section 17 provides, with an exception not here relevant, that “the decision of a board of special inquiry shall be based upon the certificate of the examining medical officer and . . . shall be final as to the rejection of aliens affected with . . . any mental . . . disability which would bring such aliens within any of the classes excluded from admission to the United States under section three of this Act.” We agree with the following statement of the Court of Appeals. “A certificate by the medical board if its action conformed to the statute and regulations and its decision was made after a fair hearing was plainly intended to be conclusive.” 170 F. 2d 1009, 1012. This conclusion is particularly compelling in the light of the legislative history referred to in that court’s opinion. We therefore turn to the medical certificates to consider the contention that they were not issued as the result of the kind of examinations required by the statute and regulations, and that the certificates themselves failed to conform to those requirements.
Second. Petitioner attacks the validity of both the initial medical certificate and that of the appellate medical board, contending that they provide an inadequate basis for excluding her from the United States. The importance of these medical certificates is underscored by our holding that Congress has made the findings and conclusions in the certificates final on the question of whether an alien is so mentally defective that admission into the country must be denied. Congress has taken note of the crucial importance of this medical determination by prescribing certain minimum procedural requirements that the Public Health Service must follow, such as special qualifications of examining doctors, the minimum number of doctors that must examine the applying alien, and the right of an alien to have an initial adverse certificate reviewed by a special board of doctors. In order that further safeguards might be provided, Congress authorized the Surgeon General of the Public Health Service to prescribe additional regulations governing the procedure to be observed in the exercise of that Service’s exclusive authority over medical questions.
Pursuant to this statutory authority the Surgeon General issued regulations which detail the manner in which medical examinations shall be held and the type of certificates by which examining doctors and boards shall report their findings and conclusions. As shown by the dissenting opinion below, serious challenges have been made to the sufficiency of the certificate of the medical appeal board as well as to the initial medical certificate in which two doctors certified petitioner to be a mental defective. The shortcomings of the initial certificate, however, probably could have been rendered harmless by a proper examination and certificate by the medical board of appellate review. Since our conclusion is that the appellate review failed to meet the requisite standards prescribed by statute and regulations, we need not consider the challenges directed against the original certificate standing alone.
Regulations of the Public Health Service provide the way in which medical appeal boards shall be convened and detail a procedure for the boards to follow. The regulations impose a duty on such boards “to re-examine an alien”; they further provide that “re-examination shall include ... a medical examination by the board”; that the “findings and conclusions of the board shall be based on its medical examination of the alien”; and that “The board shall report its findings and conclusions to the Immigration Service . ...” The report of the medical appeal board here shows only that it “considered the appeal . . . and after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.” The report of this medical board therefore wholly failed to show any compliance with the requirement of § 34.13 (g) that the board base its “findings and conclusions ... on its medical examination of the alien . . . .” We think the record makes clear that the appeal board made no such medical examination as was required by the regulations.
The report itself shows that the appellate board based its conclusion on two considerations: (1) the initial certificate of the two public health doctors; (2) testimony given by Dr. Carlton Simon. But the appellate board could not rest its finding that petitioner was a mental defective on the original certificate without denying petitioner the independent review and re-examination which Congress and the Surgeon General had prescribed. Nor could the appellate board relieve itself of its duty to make an independent re-examination by relying on the testimony of Dr. Simon. Moreover, Dr. Simon testified that petitioner was not a mental defective. His testimony was that she was “normal.” It hardly seems necessary to add that the statement of the appellate board that it had “considered the appeal,” cannot be treated as a certification that petitioner had been given an independent medical examination. We therefore hold that the appellate board's certificate is an inadequate basis on which to rest the exclusion order of the board of special inquiry.
The Government contends, however, that additional data in the record shows that the board did re-examine the petitioner. We may assume without deciding that the defects in the appellate board's report could be cured by additional record data, but we find no such data in the record sufficient to cure the defect. The data on which the Government relies is contained in a stenographic report of evidence given by petitioner and Dr. Simon, petitioner’s witness. Petitioner’s evidence, like that of Dr. Simon, was an emphatic denial of any condition which could justify her classification as a mental defective. The stenographic report thus falls far short of showing that the medical appeal board made an independent medical examination of petitioner’s mental qualities. That report tends to confirm the fact that the board’s conclusions were rested only on the report of the initial examination by the two Public Health Service doctors and on a report of the physician of the ship on which petitioner came to this country. This makes necessary a short statement concerning this report by the ship’s doctor and the circumstances under which the record discloses that report was made.
Apparently the second day after petitioner had commenced her voyage to America the ship’s doctor visited her. He found her weak and dizzy. She stated that “she could not stand the sea” and would not go to the dining room. The doctor’s impression after his first visit was that she was seasick. The next day, according to the doctor’s report, she admitted hallucinations, stating that at night she heard cries and saw faces, said she had given the consul “wrong information,” and thought this sinful. At this time the ship’s doctor wrote down his “impression of an incipient psychosis” and transferred her to the isolation ward of the ship’s hospital. The next day according to the doctor, petitioner stated that she had been treated for insanity at her home in Sweden for a six-month period two years before. On the last day of the sea trip, the ship’s doctor reported that she had cleared up “remarkably,” that she had no recollection of “a lot of strange things she had said before,” was sleeping well, denied having any hallucinations, and looked “considerably better.”
In her evidence before the medical board petitioner stated that she spoke “terribly bad English”; that prior to boarding the ship she had been to a number of parties and was very tired when she came aboard; that after coming aboard and during the voyage she had taken bromides and sleeping tablets; and that in her condition she just slept and said “yes” to every question the doctor asked.
From the foregoing it appears that the data relied on by the Government was totally inadequate to show that the appellate medical board “re-examined” petitioner. The sum total of that data is testimony given by petitioner and her medical specialist to the effect that petitioner was mentally normal, plus petitioner’s admissions that while seasick and under the influence of drugs she had said things that prompted the ship’s doctor at one time to suspect “incipient psychosis.”
So far as the medical findings and evidence here show, the daily reports made by the ship’s doctor while petitioner was a passenger constitute the only affirmative evidence that petitioner is or was a mental defective. The Public Health regulations plainly prohibit the issuance of exclusion orders resting on nothing but a single episode reported by a non-Public-Health doctor. For Congress has provided that before aliens suspected of mental defects are excluded, findings and conclusions shall be made by Public Health doctors based on their own examinations made in compliance with procedural safeguards defined or authorized by Congress. Medical certificates barring aliens are even then to be issued “only if the presence of such . . . defect is clearly established.” 42 Code Fed. Reg. § 34.4 (1947 Supp.) . And such certificates “shall in no case be issued with respect to an alien having only mental shortcomings due to ignorance, or suffering only from a mental condition attributable to remedial physical causes, or from a psychosis of a temporary nature caused by a toxin, drug, or disease.” 42 Code Fed. Reg. § 34.7 (1947 Supp.). So far as appears from the appellate certificate here, the board made no examination to determine whether the ship episode, as reported by the physician, was the result of petitioner’s ignorance of English plus temporary debility or was the result of a mental defect justifying exclusion. Even the report of the ship physician contained no finding on this point, and it is not amiss to add that the verified petition for habeas corpus contains an undenied allegation that the ship’s doctor has now stated that “in his opinion the alien is not mentally defective.”
Our holding that the appellate board’s medical certificate and additional data are inadequate to support the exclusion order makes it unnecessary to decide other questions relating to applicability of the Administrative Procedure Act to hearings before the board of special inquiry. 60 Stat. 237, 239, 5 U. S. C. §§ 1001, 1004.
The judgment is reversed and the cause is remanded to the District Court for entry of an order affording petitioner a proper hearing and medical examination before the appropriate public health authorities.
Reversed and remanded.
Mr. Justice Reed, with whom The Chief Justice and Mr. Justice Burton join, dissenting.
This Court affirms the decision that a proper medical finding of a physical defect which excludes an alien from entrance into the United States is final and not subject to further inquiry. With the Court’s ruling on this point, I agree.
(1) The reversal of the dismissal of the writ of habeas corpus is founded on the Court’s premise that the report of the reviewing board of medical officers “shows that the appellate board based its conclusion on two considerations: (1) the initial certificate of the two public health doctors; (2) testimony given by Dr. Carlton Simon [a psychiatrist chosen by the alien].” The Court then concludes that “the appellate board could not rest its finding that petitioner was a mental defective on the original certificate without denying petitioner the independent review and re-examination which Congress and the Surgeon General had prescribed.” That is to say, the report, as the Court phrases it, “makes clear that the appeal board made no such medical examination as was requirecLby the regulations.” My reading of the opinion is that the Court thinks the record affirmatively shows a failure to comply with the statute and regulation § 34.13 (g) and (h) as to findings and examination.
There is a suggestion that a medical appeal board must certify that the alien had been examined I assume, however, that if the Court intended to require specific certification by the medical board of the steps leading to its findings and conclusions it would have made such a holding definitive.
I disagree with the Court’s interpretation of the report. A strong presumption exists that public officials perform their duty. If the report had added the phrase, “in accordance with the regulations,” after the word “considered,” there could be no doubt as to the sufficiency of the report. The presumption of regularity until rebutted requires courts to adopt such an interpretation. The statement of the board of medical officers that it “has considered the appeal” means to me that the board has proceeded conformably to the statute and regulations.
(2) There is a graver error in the Court’s holding, however, which may interfere with sound administrative procedure. Although petitioner was represented by counsel, no objection to the form of the report was made during the administrative process. This case heretofore has centered around the issue of finality disposed of by the Court. Even in the several hearings of her effort to get relief by habeas corpus, petitioner has never asserted, in this or any other court, that she was not examined by the physicians of the medical review board. This is made plain by the Court’s statement of the generalized objections on other grounds to the report of the medical review board, see opinion at note 2, and from the affidavits and objections appearing in the record. The dissenting judge, 170 F. 2d 1009, 1013, did not refer to the failure to examine petitioner. He spoke only of the failure of the Board of Special Inquiry and the medical board to require adequate and revealing certificates and reports. Even the petition for certiorari does not present the question. The brief does not discuss it.
The administrative remedy must be exhausted by fair effort to correct administrative errors before resort to habeas corpus or other judicial remedies. To permit occasional reversal of administrative orders on points not brought to the attention of the agency hampers administrative routine and, if adopted as a rule of law, would disorganize administrative procedure. Afterthought cannot take the place of required objection. This is not a case where rules of practice and procedure defeat the ends of justice. There is nothing in this record to indicate that disabilities of petitioner, or difficulties of procedure or practice, the emergence of a new rule of law or any other change of circumstance has affected the course of petitioner's pleas. She has had advantage of every method of relief known to the law but has not seen fit to bring forward the ground upon which this Court reverses.
It is obvious that had objection been made to the form of the report of the Board of Medical Officers at the hearing before the Board of Special Inquiry, April 6, 1948, a prompt elaboration of the report could have been obtained or, if no examination such as is required by the regulations had already been made, it could have been done promptly. Proper administrative procedure requires that objection to certificates be made at the earliest opportunity which in this case was during the administrative hearing before the Board of Special Inquiry. A litigant’s unexplained failure to raise an issue does not justify capricious judicial intervention on behalf of an individual.
I would affirm the judgment below.
39 Stat. 885, as amended, 8 U. S. C. § 152.
During the hearings before the Board of Special Inquiry counsel for petitioner stated to this board “that from an examination of the record it appears that the only positive finding of mental defectiveness appears in the record of the ship’s surgeon Counsel insisted that petitioner was suffering from no “mental disturbance whatsoever.” In her behalf he asked for an opportunity to produce further medical testimony. In response to this request the board’s chairman asked counsel whether petitioner would be able to bear the expenses of her continued detention should the board grant her request for an opportunity to produce further medical testimony. Counsel replied that he believed she could. The board immediately thereafter closed the hearing, made its findings and ordered her excluded.
The dissenting opinion stated: “I would reverse the order and direct that the writ be sustained because of inadequacy of the original certificate of the examining surgeons and total failure of the reviewing Board of Medical Officers to comply with the regulations.” 170 F. 2d 1009,1014.
“(c) Re-examination shall include:
“ (1) A medical examination by the board ;
“(2) A review of all records submitted;
“(3) Use of any laboratory or diagnostic methods or tests deemed advisable; and
“(4) Consideration of .statements regarding the alien’s physical or mental condition made by a reputable physician after his examination of the alien.
“(e) An alien being re-examined may introduce as witnesses before the board such physicians or medical experts as the board may in its discretion permit, at his own cost and expense, . . . .” 42 Code Fed. Reg. §34.13 (1947 Supp.).
The report reads as follows:
“Pursuant to the request of the District Director of Immigration and the order of the Medical Officer in Charge, the following Board of Medical Officers of the U. S. Public Health Service, has considered the appeal regarding subject-named alien May Gunborg Johnson and after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.”
39 Stat. 885, as amended, 8 U. S. C. § 152:
“Sec. 16. The physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health Service who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical officers in any such alien; .... Any alien certified for insanity or mental defect may appeal to the board of medical officers of the United States Public Health Service, which shall be convened by the Surgeon General of the United States Public Health Service, and said alien may introduce before such board one expert medical witness at his own cost and expense. . . .”
42 C. F. R. §34.13 (1947 Supp.). ‘‘Re-examination; convening of boards; expert witnesses; reports, (a) The Surgeon General, or when authorized, a medical officer in charge, shall convene a board of medical officers to re-examine an alien
“(2) Upon an appeal by the alien from a certificate of insanity or mental defect, issued at a port of entry.
“(c) Re-examination shall include:
“(1) A medical examination by the board;
“(2) A review of all records submitted;
“(3) Use of any laboratory or diagnostic methods or tests deemed advisable; and
“(4) Consideration of statements regarding the alien’s physical or mental condition made by a reputable physician after his examination of the alien.
“(g) The findings and conclusions of the board shall be based on its medical examination of the alien and on the evidence presented to it and made a part of the record of its proceedings.
“(h) The board shall report its findings and conclusions to the Immigration Service, and shall also give prompt notice thereof to the alien if the re-examination has been held upon his appeal. The board’s report to the Immigration Service shall specifically affirm, modify, or reject the findings and conclusions of prior examining medical officers.”
It will be noted that the evidence presented to the board was made a part of the report to the Board of Special Inquiry as required by the regulation.
“It hardly seems necessary to add that the statement of the appellate board that it had ‘considered the appeal,’ cannot be treated as a certification that petitioner had been given an independent medical examination.”
Lewis v. United States, 279 U. S. 63, 73: “It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.”
Stearns Co. v. United States, 291 U. S. 54, 63, and authorities cited; United States v. Chemical Foundation, 272 U. S. 1, 14.
We refused to review an issue not raised before an administrative body in Unemployment Commission v. Aragon, 329 U. S. 143, 155: “A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Tri-State Broadcasting Co. v. F. C. C., 107 F. 2d 956, 958. Cf. Myers v. Bethlehem Corp., 303 U. S. 41, 51, note 9; Blair v. Oesterlein Co., 275 U. S. 220.
The Administrative Procedure Act contemplates presentation before the administrative agency of every issue that may be made the subject of judicial review by habeas corpus or appellate process. 60 Stat. 237, §§7 (c), 8 (b) (2), 10 (b), (c) and (e). The rule against raising questions on judicial review that were not raised in administrative proceedings has general application, see Caldarone v. Zoning Board of Review, 74 R. I. 196, 199, 60 A. 2d 158, 159; Reisberg v. Board of Standards and Appeals, 81 N. Y. S. 2d 511, 513; General Transp. Co. v. United States, 65 F. Supp. 981, 984.
Cf. Hormel v. Helvering, 312 U. S. 552, 557.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
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"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
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"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
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"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
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"State Agency",
"Unidentifiable",
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"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
67
] |
FEDERAL TRADE COMMISSION v. FRED MEYER, INC., et al.
No. 27.
Argued November 6, 1967.
Decided March 18, 1968.
Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Francis X. Beytagh, Jr., James Mcl. Henderson and E. K. Elkins.
Edward F. Howrey argued the cause for respondents. With him on the brief were Terrence C. Sheehy and George W. Mead.
Morris B. Ahram filed a brief for the Atlantic Coast Independent Distributors Association, Inc., as amicus curiae, urging reversal.
Gilbert H. Weil filed a brief for Clairol Incorporated, as amicus curiae, urging affirmance.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The Federal Trade Commission, after extensive proceedings, ruled that respondents, the corporate owner of a chain of supermarkets and two of its officers, had unlawfully induced certain suppliers to engage in discriminatory pricing and sales promotional activities prohibited by §§ 2 (a) and 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act. 63 F. T. C.-(1963). The Court of Appeals for the Ninth Circuit disagreed with the Commission’s construction of § 2 (d) and reversed in part its ruling that the section had been violated. 359 F. 2d 351 (1966). We granted certiorari, 386 U. S. 907 (1967), because the case presents important questions concerning the scope of a key provision of the Robinson-Patman Act.
I.
Section 2 (d) makes it unlawful for a supplier'in interstate commerce to grant advertising or other sales promotional allowances to one “customer” who resells the supplier’s “products or commodities” unless the allowances are “available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.” Although we have limited our review of this case to one aspect of the alleged § 2 (d) violations, full understanding of the issues requires a brief exposition of the facts from which the Commission concluded that respondents had induced violations of both §§ 2 (a) and 2 (d). The relevant facts found by the Commission were not disturbed by the Court of Appeals.
Respondent Fred Meyer, Inc., operates a chain of 13 supermarkets in the Portland, Oregon, area which engage in the retail sale of groceries, drugs, variety items, and a limited line of clothing. In 1957 Meyer’s sales exceeded $40,000,000. According to its 1960 prospectus, it made one-fourth of the retail food sales in the Portland area and was the second largest seller of all goods in that area. Since 1936 Meyer has conducted annually a four-week promotional campaign in its stores based on the distribution of coupon books to consumers. The books usually contain 72 pages, each page featuring a single product being sold by Meyer at a reduced price. The consumer buys the book for the nominal sum of 10$ and must surrender the appropriate coupon when making his purchase of goods. A coupon often represents a reduction of one-third or more from Meyer’s regular price for the featured item, and the cover of the 1957 book stated that the use of all 72 coupons would result in total savings of more than $54. The promotional campaign is highly successful. Meyer sold 138,700 books in 1957 and 121,270 in 1958. Aside from the nominal 100 paid by consumers for the coupon books, Meyer finances the promotion by charging the supplier of each featured product a fee of at least $350 for each coupon-page advertising his product. Some participating suppliers further underwrite the promotion by giving Meyer price reductions on its purchases of featured items, by replacing at no cost a percentage of the goods sold by Meyer during the campaign, or by redeeming coupons in cash at an agreed rate.
The Commission concluded that this promotional scheme, as conducted in the years 1956 through 1958, violated §§ 2 (d) and 2(a) in the following respects: First, the $350 paid to Meyer by each of four suppliers participating in the campaigns represented promotional allowances paid in violation of § 2 (d) because similar allowances were not made available on proportionally equal terms to competing customers. Second, the additional value given Meyer by these suppliers in the form of discounts, free replacements of goods sold and coupon redemptions amounted to price discrimination prohibited by § 2 (a). The Commission held that by inducing the suppliers to discriminate in price, respondents had violated § 2 (f) of the Act, and that by inducing them to grant discriminatory promotional allowances, respondents had engaged in an unfair method of competition in violation of § 5 (a) of the Federal Trade Commission Act.
Both before the Commission and in the Court of Appeals, respondents argued that it was not established that two participating suppliers, Tri-Valley Packing Association and Idaho Canning Company, had violated § 2 (d). Meyer purchased directly from both of these suppliers. Tri-Valley participated in the 1957 promotion by paying Meyer $350 for a coupon-page featuring Tri-Valley’s brand of canned peaches and by replacing in merchandise every third can sold by Meyer on the coupon’s offer of three cans for the price of two. Idaho Canning participated in the 1957 promotion on substantially identical terms, except that the coupon-page it purchased offered three cans of corn for the price of two. The Commission found that two wholesalers, Hudson House and Wadhams & Co., both of which resold to Meyer’s retail competitors, had been disfavored in these transactions in that Hudson House had purchased canned peaches from Tri-Valley and both Hudson House and Wadhams had purchased canned corn from Idaho Can-rung, but neither of the two wholesalers had been accorded promotional allowances comparable to those received by Meyer. Respondents argued that, purely as a matter of statutory construction, Tri-Valley and Idaho Canning could not have violated the requirement of proportional equality among “customers competing in the distribution” of their products because (1) Meyer, a retailer, was not “competing” in the distribution of canned corn and peaches with the disfavored wholesalers, Hudson House and Wadhams, and (2) the retailers found by the Commission to be competing with Meyer in the resale of these products were not “customers” of TriValley and Idaho Canning but were customers of Hudson House and Wadhams.
The Commission rejected this reading of § 2 (d), noting that, if respondents’ view prevailed, a retailer buying from a wholesaler and having no direct dealings with his supplier would receive no protection against discriminatory promotional allowances given his competitor who purchased directly from the supplier. The Commission held that § 2 (d) prohibits a supplier from granting promotional allowances to a direct-buying retailer, such as Meyer, unless the allowances are also made available to wholesalers who purchase from the supplier and resell to the direct-buying retailer’s competitors. Accordingly, the Commission’s cease-and-desist order included a provision barring respondents from inducing suppliers to grant them promotional allowances not available to “customers who resell to purchasers who compete with respondents in the resale of such supplier’s products.” 63 F. T. C., at • — . One Commissioner, while agreeing with the majority that respondents had induced TriValley and Idaho Canning to violate § 2 (d), dissented in part on the ground that the order should have required the promotional allowances to be made available to the retailers competing with Meyer rather than to wholesalers who resold to them. Thus, in his view, the competing retailers were “customers” of Tri-Valley and Idaho Canning within the meaning of the statute. The Court of Appeals adopted the interpretation of § 2 (d) urged by respondents. Consequently, it set aside the portion of the Commission’s order set out above.
We agree with the Commission that the proscription of § 2 (d) reaches the kind of discriminatory promotional allowances granted Meyer by Tri-Valley and Idaho Canning. Therefore, we reverse the judgment of the Court of Appeals on this point. However, because we have concluded that Meyer’s retail competitors, rather than the two wholesalers, were competing customers under the statute, we also remand the case for appropriate modification of the Commission’s order. We deal first with respondents’ arguments, second with the opinion of the Court of Appeals, and third with the Commission’s order.
II.
Respondents press upon us a view of § 2 (d) which leaves retailers who buy from wholesalers for the most part unprotected from discriminatory promotional allowances granted their direct-buying competitors. We are told that § 2 (d) in specific terms requires this result. To benefit from the statute’s requirement of proportional equality, it is urged, a buyer must be a “competing customer” within the narrowest sense of that phrase. Thus, the wholesalers in this case are not competing customers because they do not compete with Meyer, and the retailers who do compete with Meyer in the resale of the suppliers’ products are outside the protection of § 2 (d) because they are not customers of the suppliers. For reasons stated below, we agree with respondents that, on the facts of this case, § 2 (d) reaches only discrimination between customers competing for resales at the same functional level and, therefore, does not mandate proportional equality between Meyer and the two wholesalers. But we cannot accept the second half of this argument, for it rests on a narrow definition of “customer” which becomes wholly untenable when viewed in light of the central purpose of § 2 (d) and the economic realities with which its framers were concerned.
Conceding that the Robinson-Patman amendments by no means represent an exemplar of legislative clarity, we cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate. See, e. g., FTC v. Sun Oil Co., 371 U. S. 505, 516-521 (1963); Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F. 2d 988, 991-993 (C. A. 8th Cir.), cert. denied, 326 U. S. 773 (1945). We start with the proposition that “[t]he Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.” FTC v. Henry Broch & Co., 363 U. S. 166, 168 (1960). The role within the statutory scheme which Congress intended for § 2 (d) is well documented in the legislative history. An investigation of chain store buying practices undertaken by the Federal Trade Commission, at Congress’ request, had indicated that § 2 of the Clayton Act was an inadequate deterrent against outright price discrimination. The investigation also revealed that certain practices by which large buyers induced concessions which their smaller competitors could not obtain were wholly beyond the reach of § 2. It is significant that congressional concern had focused on the buying practices of large retailers, particularly the chain stores, because it was felt that they were threatening the continued existence of the independent merchant. Indeed, before Congress acted, some States had attempted to limit the growth of retail chains through express prohibitions against further extensions and through taxation. One of the practices disclosed by the Commission’s investigation was that by which large retailers induced concessions from suppliers in the form of advertising and other sales promotional allowances. The draftsman of the provision which eventually emerged as § 2 (d) explained that, even when such payments were made for actual sales promotional services, they were a form of indirect price discrimination because the recipient of the allowances could shift part of his advertising costs to his supplier while his disfavored competitor could not. That Congress adopted this view of the practice it sought to eliminate by § 2 (d) is demonstrated by the words used by the Senate Judiciary Committee in recommending enactment of the section:
“Still another favored medium for the granting of oppressive discriminations is found in the practice of large buyer customers to demand, and of their sellers to grant, special allowances in purported payment of advertising and other sales promotional services, which the customer agrees to render with reference to the seller's products, or sometimes with reference to his business generally. Such an allowance becomes unjust when the service is not rendered as agreed and paid for, or when, if rendered, the payment is grossly in excess of its value, or when in any case the customer is deriving from it equal benefit to his own business and is thus enabled to shift to his vendor substantial portions of his own advertising cost, while his smaller competitor, unable to command such allowances, cannot do so.”
Congress chose to deter such indirect price discrimination by prohibiting the granting of sales promotional allowances to one customer unless accorded on proportionally equal terms to all competing customers.
Of course, neither the Committee Report nor other parts of the legislative history in so many words define “custome/^ to include retailers who purchase through wholesalers and compete with direct buyers in resales. But a narrower reading of § 2 (d) would lead to the following anomalous result. On the one hand, direct-buying retailers like Meyer, who resell large quantities of their suppliers’ products and therefore find it feasible to undertake the traditional wholesaling functions for themselves, would be protected by the provision from the granting of discriminatory promotional allowances to their direct-buying competitors. On the other hand, smaller retailers whose only access to suppliers is through independent wholesalers would not be entitled to this protection. Such a result would be diametrically opposed to Congress’ clearly stated intent to improve the competitive position of small retailers by eliminating what was regarded as an abusive form of discrimination. If we were to read “customer” as excluding retailers who buy through wholesalers and compete with direct buyers, we would frustrate the purpose of § 2 (d). We effectuate it by holding that the section includes such competing retailers within the protected class.
III.
The Commission did not press in the Court of Appeals the position of one Commissioner that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were customers of Tri-Valley and Idaho Canning. Consequently, that court gave almost no consideration to the construction of § 2 (d) which we hold to be the proper one. Citing its prior ruling in Tri-Valley Packing Assn. v. FTC, 329 F. 2d 694, 709-710 (C. A. 9th Cir. 1964), the court merely stated that a § 2 (d) violation could not be made out unless (1) Tri-Valley and Idaho Canning had in some way dealt directly with retailers competing with Meyer, and (2) canned peaches and corn sold by the two suppliers could be traced through Hudson House and Wad-hams to the shelves of the competing retailers. 359 F. 2d, at 359-360, 362-363. In the view of the Court of Appeals, these two requirements compose the elements of the “indirect customer” doctrine under which the Commission and the courts impose § 2 (d) liability when a supplier in effect supplants his intermediate distributors in dealings with those to whom the distributors resell and favors some of the distributors’ accounts over others. See American News Co. v. FTC, 300 F. 2d 104, 109 (C. A. 2d Cir.), cert. denied, 371 U. S. 824 (1962); K. S. Corp. v. Chemstrand Corp., 198 F. Supp. 310, 312-313 (D. C. S. D. N. Y. 1961); Kay Windsor Frocks, Inc., 51 F. T. C. 89, 95-96 (1954); F. Rowe, Price Discrimination Under the Robinson-Patman Act 398-399 (1962), 90 (1964 Supp.). We need not and do not question the validity of this doctrine as applied to pierce a supplier’s unrealistic claim that a reseller favored by him is actually the customer of an intermediate distributor. Nor do we reach the question whether a retailer may succeed in a private action based on § 2 (d) without proving that he in fact resold the supplier’s product in competition with a favored buyer. In the case before us, it is conceded that Meyer was a customer of Tri-Valley and Idaho Canning. Moreover, as indicated by its approval of the Commission’s § 2 (a) ruling, the Court of Appeals did not question the Commission’s finding that Meyer competed in the resale of Tri-Valley and Idaho Canning products with retailers who purchased through Hudson House and Wadhams. Given these findings, it was unnecessary for the Commission to resort to the indirect customer doctrine. Whether suppliers deal directly with disfavored competitors or not, they can, and here did, afford a direct buyer the kind of competitive advantage which § 2 (d) was intended to eliminate. In light of our holding that “customers” in § 2 (d) includes retailers who buy through wholesalers and compete with a direct buyer in the resale of the supplier’s product, the requirement of direct dealing between the supplier and disfavored competitors imposed by the Court of Appeals rests on too narrow a reading of the statute. Further, in light of the Commission’s finding that Meyer competed in the resale of the Idaho Canning and Tri-Valley products with other retailers in the area who purchased through Hudson House and Wadhams and in light of the fact that the Court of Appeals did not disturb this finding, the court misapprehended the Commission’s burden in requiring it to trace those products to the shelves of the disfavored retailers.
IV.
The Commission’s view of the impact of respondents’ argument in no way conflicts with our own. In rejecting respondents’ construction of § 2 (d), the Commission observed:
“The net result of this argument is that the entire structure of ‘independent’ food merchants — including the traditional wholesaler and his numerous, small retailer-customers — are placed completely outside the pale of Section 2 (d) of the amended Clayton Act insofar as their competition with the direct-buying 'chains’ is concerned.
“We are not persuaded that Congress either intended or effected any such result when it passed Section 2 (d). In the first place, such a construction goes squarely against the well-known purposes of the Act itself, namely, to give the ‘independent’ food sellers an even break in their competition with the ‘chains.’ ”
But rather than concluding, as we have, that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were 'disfavored customers of Tri-Valley and Idaho Canning, a majority of the Commission held that the wholesalers, Hudson House and Wadhams, were the customers entitled to promotional allowances on proportionally equal terms with Meyer. Although we approach the Commission’s ruling with the deference due the agency charged with day-today administration of the Act, we hold that, at least on the facts before us, § 2 (d) does not require proportional equality between Meyer and the two wholesalers.
The Commission believed it found support for its position in the language of § 2 (d) itself, which requires that promotional allowances be accorded on proportionally equal terms to “customers competing in the distribution” of a supplier’s product, rather than merely to customers competing in resales. The majority reasoned that Hudson House and Wadhams, when they resold to Meyer’s retail competitors, were competing with Meyer in the distribution of Tri-Valley and Idaho Canning products because the two wholesalers were “seeking exactly the same consumer dollars that respondents are after.” 63 F. T. C., at-. While it cannot be doubted that Congress reasonably could have employed such a broad concept of competition in § 2 (d), we do not believe that the use of the word “distribution” rather than “resale” is a clear indication that it did, and what discussion there was of the promotional allowance provision during the congressional hearings indicates that the section was meant to impose proportional equality only where buyers competed on the same functional level. Thus, in reporting the provision, both the Senate and House Judiciary Committees used the following example:
“To illustrate: Where, as was revealed in the hearings earlier referred to in this report, a manufacturer grants a particular chain distributor an advertising allowance of a stated amount per month per store in which the former’s goods are sold, a competing customer with a smaller number of stores, but equally able to furnish the same service per store, and under conditions of the same value to the seller, would be entitled to a similar allowance on that basis.”
This illustration and others which- could be cited are not conclusive, but they do strongly suggest that the competition with which Congress was concerned in § 2 (d) was that between buyers who competed in resales of the supplier’s products. And, as stated above, Congress’ objective was to assure that all sellers, regardless of size, competing directly for the same customers would receive even-handed treatment from their suppliers. We noted in FTC v. Sun Oil Co., 371 U. S. 505 (1963), that when Congress wished to expand the meaning of competition to include more than resellers operating on the same functional level, it knew how to do so in unmistakable terms. It did so in § 2 (a) of the Act by prohibiting price discrimination which may “injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.” Id., at 514 — 515; see FTC v. Morton Salt Co., 334 U. S. 37, 55 (1948). We stated in Sun Oil that:
“There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2 (b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2 (a); the reasonable inference is quite the contrary.”
In the present case, too, we think “the reasonable inference” is that Congress did not intend such a broad meaning of competition in§2(d). We recognize that it would be both inappropriate and unwise to attempt to formulate an all-embracing rule applying the elusive language of the section to every system of distribution a supplier might devise for getting his product to the consumer. But, on the concrete facts here presented, it is clear that the direct impact of Meyer’s receiving discriminatory promotional allowances is felt by the disfavored retailers with whom Meyer competes in resales. We cannot assume without a clear indication from Congress that § 2 (d) was intended to compel the supplier to pay the allowances to a reseller further up the distributive chain who might or might not pass them on to the level where the impact would be felt directly. We conclude that the most reasonable construction of § 2 (d) is one which places on the supplier the responsibility for making promotional allowances available to those resellers who compete directly with the favored buyer.
The Commission argues here that the view we take of § 2 (d) is impracticable because suppliers will not always find it feasible to bypass their wholesalers and grant promotional allowances directly to their numerous retail outlets. Our decision does not necessitate such bypassing. We hold only that, when a supplier gives allowances to a direct-buying retailer, he must also make them available on comparable terms to those who buy his products through wholesalers and compete with the direct buyer in resales. Nothing we have said bars a supplier, consistently with other provisions of the antitrust laws, from utilizing his wholesalers to distribute payments or administer a promotional program, so long as the supplier takes responsibility, under rules and guides promulgated by the Commission for the regulation of such practices, for seeing that the allowances are made available to all who compete in the resale of his product.
The judgment of the Court of Appeals, insofar as it held that the promotional allowances granted Meyer by Tri-Valley and Idaho Canning did not violate § 2 (d), is reversed. The case is remanded to the Court of Appeals with directions to remand to the Commission for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
38 Stat. 730, as amended, 49 Stat. 1526, 1527, 15 U. S. C. §§ 13 (a), 13 (d). Section 2 (a) provides in pertinent part:
“[I]t shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be ... to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: . . .”
Section 2 (d) provides in full:
“[I]t shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.”
See n. 1, supra.
The Commission and respondents filed separate petitions for certiorari to review different rulings of the Court of Appeals. Respondents contended (1) that the Commission had failed to show that respondents’ inducement of §§ 2 (a) and 2 (d) violations had been knowing and (2) that the Commission’s order prohibiting future inducement of § 2 (d) violations was too broad. The Commission’s petition raised the question “[w]hether a supplier’s granting to a retailer who buys directly from it promotional allowances that are not made available to a wholesaler who resells to retailers competing with the direct-buying retailer violates Section 2 (d) of the Robinson-Patman Act.” The Commission also presented an additional question which it sought to reserve only if respondents’ petition were granted. We denied respondents’ petition, 386 U. S. 908 (1967), and specifically limited our review on the Commission’s petition to the issue of statutory interpretation therein presented. 386 ü. S. 907 (1967).
The Commission found that the total of $25,200 received by-Meyer from 72 participating suppliers in each of the years 1956 and 1957 more than covered Meyer’s cost of publishing, distributing, and publicizing the coupon books in those years. The Commission characterized as “clear profit” the $13,870 paid Meyer by consumer purchasers of the books in 1957.
See n. 1, supra.
15 U. S. C. § 13 (f):
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.”
38 Stat. 719, as amended, 66 Stat. 632, 15 U. S. C. § 45 (a):
“(1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.
“(6) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.”
63 F. T. C., at — (Commissioner Elman, concurring in part and dissenting in part).
This case, in its present posture, does not present the question whether the functional label used by a manufacturer or reseller reflects his actual position in the distributive chain. Compare FTC v. Ruberoid Co., 343 U. S. 470, 475 (1952); cf. FTC v. Simplicity Pattern Co., 360 U. S. 55, 62-63 (1959).
Automatic Canteen Co. v. FTC, 346 U. S. 61, 65 (1953); see F. Rowe, Price Discrimination Under the Robinson-Patman Act 20 (1962).
S. Res. No. 224, 70th Cong., 1st Sess., 69 Cong. Rec. 7857 (1928).
Federal Trade Commission, Final Report on the Chain-Store Investigation, S. Doc. No. 4, 74th Cong., 1st Sess., 63-65, 90-91, 96-97 (1935).
Id., at 57-65. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess. (1935).
See C. Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 6-11 (2d rev. ed. 1959). In presenting his bill to the House Judiciary Committee, Representative Patman stated:
“I believe it is the opinion of everyone who has studied this subject, that the day of the independent merchant is gone unless something is done and done quickly. He cannot possibly survive under that system. So we have reached the crossroads; we must either turn the food and grocery business of this . . . country over to a few corporate chains, or we have got to pass laws that will give the people, who built this country in time of peace and who saved it in time of war, an opportunity to exist — not to give them any special rights, special privileges, or special benefits, but just to deny their competitors the special benefits that they are getting, that they should not be permitted to have.” Hearings on H. R. 8442, 4995, and 5062 before the House Committee on the Judiciary, 74th Cong., 1st Sess., 5-6 (1935).
See Federal Trade Commission, Final Report on the Chain-Store Investigation, supra, n. 12, at 78-82.
Id., at 44-46, 61. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess., Vol. 3, No. 1, at 66-88 (1935).
Hearings on Bills to Amend the Clayton Act before a Subcommittee of the House Committee on the Judiciary, 74th Cong., 2d Sess., 464 (1936) (Mr. Teegarden).
S. Rep. No. 1502, 74th Cong., 2d Sess., 7 (1936). The House Judiciary Committee reported the provision favorably in identical terms. H. R. Rep. No. 2287, 74th Cong., 2d Sess., 15-16 (1936).
The Commission’s § 2 (a) and § 2 (d) rulings were both based on findings that retailers in the Portland area who purchased through Hudson House and Wadhams competed with Meyer in the resale of Idaho Canning com and Tri-Valley peaches. The Court of Appeals could not have consistently set aside these findings with regard to the § 2 (d) violations while upholding them with respect to § 2 (a).
63 F. T. C., at —.
S. Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936); H. R. Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936).
See n. 14, supra.
371 U. S., at 515.
See 16 CFR §§ 1.55-1.66; of. “Guides for Allowances and Services,” 1 CCH Trade Reg. Rep. ¶ 3980, at 6073-6079.
See, e. g., F. Rowe, Price Discrimination Under the Robinson-Patman Act 534; Stedman, Twenty-four Years of the Robinson-Patman Act, 1960 Wis. L. Rev. 197, 218.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
56
] |
COMMISSIONER OF INTERNAL REVENUE v. KOWALSKI et ux.
No. 76-1095.
Argued October 12, 1977
Decided November 29, 1977
Stuart A. Smith argued the cause for petitioner. With him on the brief were Solicitor General McCree and Acting Assistant Attorney General Baum.
Carl B. Cordes argued the cause for respondents. With him on the brief was Herrick K. Lidstone.
Mr. Justice Brennan
delivered the opinion of the Court.
This case presents the question whether cash payments to state police troopers, designated as meal allowances, are included in gross income under § 61 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 61 (a), and, if so, are otherwise excludable under § 119 of the Code, 26 U. S. C. § 119.
I
The pertinent facts axe not in dispute. Respondent is a state police trooper employed by the Division of State Police of the Department of Law and Public Safety of the State of New Jersey. During 1970, the tax year in question, he received a base salary of $8,739.38, and an additional $1,697.54 designated as an allowance for meals.
The State instituted the cash meal allowance for its state police officers in July 1949. Prior to that time, all troopers were provided with midshift meals in kind at various meal stations located throughout the State. A trooper unable to eat at an. official meal station could, however, eat at a restaurant and obtain reimbursement. The meal-station system proved unsatisfactory to the State because it required troopers to leave their assigned areas of patrol unguarded for extended periods of time. As a result, the State closed its meal stations and instituted a cash-allowance system. Under this system, troopers remain on call in their assigned patrol areas during their midshift break. Otherwise, troopers are not restricted in any way with respect to where they may eat in the patrol area and, indeed, may eat at home if it is located within that area. Troopers may also bring their midshift meal to the job and eat it in or near their patrol cars.
The meal allowance is paid biweekly in advance and is included, although separately stated, with the trooper’s salary. The meal-allowance money is also separately accounted for in the State’s accounting system. Funds are never commingled between the salary and meal-allowance accounts. Because of these characteristics of the meal-allowance system, the Tax Court concluded that the “meal allowance was not intended to represent additional compensation.” 65 T. C. 44, 47 (1975).
Notwithstanding this conclusion, it is not disputed that the meal allowance has many features inconsistent with its characterization as a simple reimbursement for meals that would otherwise have been taken at a meal station. For example, troopers are not required to spend their meal allowances on their midshift meals, nor are they required to account for the manner in which the money is spent. With one limited exception not relevant here, no reduction in the meal allowance is made for periods when a trooper is not on patrol because, for example, he is assigned to a headquarters building or is away from active duty on vacation, leave, or sick leave. In addition, the cash allowance for meals is described on a state police recruitment brochure as an item of salary to be received in addition to an officer’s base salary and the amount of the meal allowance is a subject of negotiations between the State and the police troopers’ union. Finally, the amount of an officer’s cash meal allowance varies with his rank and is included in his gross pay for purposes of calculating pension benefits.
On his 1970 income tax return, respondent reported $9,066 in wages. That amount included his salary plus $326.45 which represented cash meal allowances reported by the State on respondent’s Wage and Tax Statement (Form W-2). The remaining amount of meal allowance, $1,371.09, was not reported. On audit, the Commissioner determined' that this amount should have been included in respondent’s 1970 income and assessed a deficiency.
Respondent sought review in the United States Tax Court, arguing that the cash meal allowance was not compensatory but was furnished for the convenience of the employer and hence was not “income” within the meaning of § 61 (a) and that, in any case, the allowance could be excluded under § 119. In a reviewed decision, the Tax Court, with six dissents, held that the cash meal payments were income within the meaning of § 61 and, further, that such payments were not excludable under § 119. 65 T. C. 44 (1975). The Court of Appeals for the Third Circuit, in a per curiam opinion, held that its earlier decision in Saunders v. Commissioner, 215 F. 2d 768 (1954), which determined that cash payments under the New Jersey meal-allowance program were not taxable, required reversal. 544 F. 2d 686 (1976). We granted certiorari to resolve a conflict among the Courts of Appeals on the question. 430 U. S. 944 (1977). We reverse.
II
A
The starting point in the determination of the scope of “gross income” is the cardinal principle that Congress in creating the income tax intended “to use the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334 (1940); accord, Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223 (1937); Douglas v. Willcuts, 296 U. S. 1, 9 (1935); Irwin v. Gavit, 268 U. S. 161, 166 (1925). In applying this principle to the construction of § 22 (a) of the Internal Revenue Code of 1939 this Court stated that “Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature [, but intended] to tax all gains except those specifically exempted.” Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 429-430 (1955), citing Commissioner v. Jacobson, 336 U. S. 28, 49 (1949), and Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91 (1934). Although Congress simplified the definition of gross income in § 61 of the 1954 Code, it did not intend thereby to narrow the scope of that concept. See Commissioner v. Glenshaw Glass Co., supra, at 432, and n. 11; H. R. Rep. No. 1337, 83d Cong., 2d Sess., A18 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 168 (1954). In the absence of a specific exemption, therefore, respondent’s meal-allowance payments are income within the meaning of § 61 since, like the payments involved in Glenshaw Glass Co., the payments are “undeniably] accessions to wealth, clearly realized, and over which the '[respondent has] complete dominion.” Commissioner v. Glenshaw Glass Co., supra, at 431. See also Commissioner v. LoBue, 351 U. S. 243, 247 (1956); Van Rosen v. Commissioner, 17 T. C. 834, 838 (1951).
Respondent contends, however, that § 119 can be construed to be a specific exemption covering the meal-allowance payments to New Jersey troopers. Alternatively, respondent argues that notwithstanding § 119 a specific exemption may be found in a line of lower-court cases and administrative rulings which recognize that benefits conferred by an employer on an employee “for the convenience of the employer” — at least when such benefits are not “compensatory” — are not income within the meaning of the Internal Revenue Code. In responding to these contentions, we turn first to § 119. Since we hold that § 119 does not cover cash payments of any kind, we then trace the development over several decades of the convenience-of-the-employer doctrine as a determinant of the tax status of meals and lodging, turning finally to the question whether the doctrine as applied to meals and lodging survives the enactment of the Internal Revenue Code of 1954.
B
Section 119 provides that an employee may exclude from income “the value of any meals . . . furnished to him by his employer for the convenience of the emloyer, but only if . . . the meals are furnished on the business premises of the employer By its terms, § 119 covers meals furnished by the employer and not cash reimbursements for meals. This is not a mere oversight. As we shall explain at greater length below, the form of § 119 which Congress enacted originated in the Senate and the Report accompanying the Senate bill is very clear: “Section 119 applies only to meals or lodging furnished in kind.” S. Rep. No. 1622, 83d Cong., 2d Sess., 190 (1954). See also Treas. Reg. § 1.119-1 (c)(2), 26 CFR § 1.119-1 (1977). Accordingly, respondent’s meal-allowance payments are not subject to exclusion under § 119.
C
The convenience-of-the-employer doctrine is not a tidy one. The phrase “convenience of the employer” first appeared in O. D. 265, 1 Cum. Bull. 71 (1919), in a ruling exempting from the income tax board and lodging furnished seamen aboard ship. The following year, T. D. 2992, 2 Cum. Bull. 76 (1920), was issued and added a convenience-of-the-employer section to Treas. Regs. 45, Art. 33, the income tax regulations then in effect. As modified, Art. 33 stated:
“Art. 33. Compensation paid other than in cash. . . . When living quarters such as camps are furnished to employees for the convenience of the employer, the ratable value need not be added to the cash compensation of the employee, but where a person receives as compensation for services rendered a salary and in addition thereto living quarters, the value to such person of the quarters furnished constitutes income subject to tax. . . .”
While T. D. 2992 extended the convenience-of-the-employer test as a general rule solely to items received in kind, O. D. 514, 2 Cum. Bull. 90 (1920), extended the convenience-of-the-employer doctrine to cash payments for “supper money.”
The rationale of both T. D. 2992 and O. D. 514 appears to have been that benefits conferred by an employer on an employee in the designated circumstances were not compensation for services and hence not income. Subsequent rulings equivocate on whether the noncompensatory character of a benefit could be inferred merely from its characterization by the employer or whether there must be additional evidence that employees are granted a benefit solely because the employer’s business could not function properly unless an employee was furnished that benefit on the employer’s premises. O. D. 514, for example, focuses only on the employer’s characterization. Two rulings issued in 1921, however, dealing respectively with cannery workers and hospital employees, emphasize the necessity of the benefits to the functioning of the employer’s business, and this emphasis was made the authoritative interpretation of the convenience-of-the-employer provisions of the regulations in Mim. 5023, 1940-1 Cum. Bull. 14.
Adding complexity, however, is Mim. 6472, 1950-1 Cum. Bull. 15, issued in 1950. This mimeograph states in relevant part:
“The 'convenience of the employer’ rule is simply an administrative test to be applied only in cases in which the compensatory character of . . . benefits is not otherwise determinable. It follows that the rule should not be applied in any case in which it is evident from the other circumstances involved that the receipt of quarters or meals by the employee represents compensation for services rendered.” Ibid,
Mimeograph 6472 expressly modified all previous rulings which had suggested that meals and lodging could be excluded from income upon a simple finding that the furnishing of such benefits was necessary to allow an employee to perform his duties properly. However, the ruling apparently did not affect O. D. 514, which, as noted above, creates an exclusion from income based solely on an employer’s characterization of a payment as noncompensatory.
Coexisting with the regulations and administrative determinations of the Treasury, but independent of them, is a body of case law also applying the convenience-of-the-employer test to exclude from an employee’s statutory income benefits conferred by his employer.
An early case is Jones v. United States, 60 Ct. Cl. 552 (1925). There the Court of Claims ruled that neither the value of quarters provided an Army officer for nine months of a tax year nor payments in commutation of quarters paid the officer for the remainder of the year were includable in income. The decision appears to rest both on a conclusion that public quarters by tradition and law were not “compensation received as such” within the meaning of § 213 of the Revenue Act of 1921, 42 Stat. 237, and also on the proposition that “public quarters for the housing of. . . officers is as much a military necessity as the procurement of implements of warfare or the training of troops.” 60 Ct. Cl., at 569; see id., at 565-568. The Court of Claims, in addition, rejected the argument that money paid in commutation of quarters was income on the ground that it was not “gain derived . . . from labor” within the meaning of Eisner v. Macomber, 252 U. S. 189 (1920), but apparently was at most a reimbursement to the officer for furnishing himself with a necessity of his job in those instances in which the Government found it convenient to leave the task of procuring quarters to an individual officer. 60 Ct. Cl., at 574-578.
Subsequent judicial development of the convenience-of-the-employer doctrine centered primarily in the Tax Court. In two reviewed cases decided more than a decade apart, Benaglia v. Commissioner, 36 B. T. A. 838 (1937), and Van Rosen v. Commissioner, 17 T. C. 834 (1951), that court settled on the business-necessity rationale for excluding food and lodging from an employee’s income. Van Rosen’s unanimous decision is of particular interest in interpreting the legislative history of the 1954 recodification of the Internal Revenue Code since it predates that recodification by only three years. There, the Tax Court expressly rejected any reading of Jones, supra, that would make tax consequences turn on the intent of the employer, even though the employer in Van Rosen as in Jones was the United States and, also as in Jones, the subsistence payments involved in the litigation were provided by military regulation. In addition, Van Rosen refused to follow the Jones holding with respect to cash allowances, apparently on the theory that a civilian who receives cash allowances for expenses otherwise nondeductible has funds he can “take, appropriate, use and expend,” 17 T. C., at 838, in substantially the same manner as “any other civilian employee whose employment is such as to permit him to live at home while performing the duties of his employment.” Id., at 836; see id., at 839-840. It is not clear from the opinion whether the last conclusion is based on notions of equity among taxpayers or is simply an evidentiary conclusion that, since Van Rosen was allowed to live at home while performing his duties, there was no business purpose for the furnishing of food and lodging.
Two years later, the Tax Court in an unreviewed decision in Doran v. Commissioner, 21 T. C. 374 (1953), returned in part to the employer’s-characterization rationale rejected by Van Rosen. In Doran, the taxpayer was furnished lodging in kind by a state school. State law required the value of the lodging to be included in the employee’s compensation. Although the court concluded that the lodging was furnished to allow the taxpayer to be on 24-hour call, a reason normally sufficient to justify a convenience-of-the-employer exclusion, it required the value of the lodging to be included in income on the basis of the characterization of the lodging as compensation under state law. The approach taken in Doran is the same as that in Mim. 6472, supra. However, the Court of Appeals for the Second Circuit, in Diamond v. Sturr, 221 F. 2d 264 (1955), on facts indistinguishable from Doran, reviewed the law prior to 1954 and held that the business-necessity view of the convenience-of-the-employer test, “having persisted through the interpretations of the Treasury and the Tax Court throughout years of re-enactment of the Internal Revenue Code,” was the sole test to be applied. 221 F. 2d, at 268.
D
Even if we assume that respondent’s meal-allowance payments could have been excluded from income under the 1939 Code pursuant to the doctrine we have just sketched, we must nonetheless inquire whether such an implied exclusion survives the 1954 recodification of the Internal Revenue Code. Cf. Helvering v. Winmill, 305 U. S. 79, 83 (1938). Two provisions of the 1954 Code are relevant to this inquiry: § 119 and § 120, now repealed, which allowed police officers to exclude from income subsistence allowances of up to $5 per day.
In enacting § 119, the Congress was determined to “end the confusion as to the tax status of meals and lodging furnished an employee by his employer.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., 18 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 19 (1954). However, the House and Senate initially differed on the significance that should be given the convenience-of-the-employer doctrine for the purposes of § 119. As explained in its Report, the House proposed to exclude meals from gross - income “if they [were] furnished at the place of employment and the employee [was] required to accept them at the place of employment as a condition of his employment.” H. R. Rep. No. 1337, supra, at 18; see H. R. 8300, 83d Cong., 2d Sess., § 119 (1954). Since no reference whatsoever was made to the concept, the House view apparently was that a statute “designed to end the confusion as to the tax status of meals and lodging furnished an employee by his employer” required complete disregard of the convenience-of-the-employer doctrine.
The Senate, however, was of the view that the doctrine had at least a limited role to play. After noting the existence of the doctrine and the Tax Court’s reliance on state law to refuse to apply it in Doran v. Commissioner, supra, the Senate Report states:
“Your committee believes that the House provision is ambiguous in providing that meals or lodging furnished on the employer’s premises, which the employee is required to accept as a condition of his employment, are excludable from income whether or not furnished as compensation. Your committee has provided that the basic test of exclusion is to be whether the meals or lodging are furnished primarily for the convenience of the employer (and thus excludable) or whether they were primarily for the convenience of the employee (and therefore taxable). However, in deciding whether they were furnished for the convenience of the employer, the fact that a State statute or an employment contract fixing the terms of the employment indicate the meals or lodging are intended as compensation is not to be determinative. This means that employees of State institutions who are required to live and eat on the premises will not be taxed on the value of the meals and lodging even though the State statute indicates the meals and lodging are part of the employee’s compensation.” S. Rep. No. 1622, supra, at 19.
In a technical a]}pendix, the Senate Report further elaborated:
“Section 119 applies only to meals or lodging furnished in kind. Therefore, any cash allowances for meals or lodging received by an employee will continue to be includible in gross income to the extent that such allowances constitute compensation.” Id., at 190-191.
After conference, the House acquiesced in the Senate’s version of § 119. Because of this, respondent urges that § 119 as passed did not discard the convenience-of-the-employer doctrine, but indeed endorsed the doctrine shorn of the confusion created by Mim. 6472 and cases like Doran. Respondent further argues that, by negative implication, the technical appendix to the Senate Report creates a.class of noncom-pensatory cash meal payments that are to be excluded from income. We disagree.
The Senate unquestionably intended to overrule Doran and rulings like Mim. 6472. Equally clearly the Senate refused completely to abandon the convenience-of-the-employer doctrine as the House wished to do. On the other hand, the Senate did not propose to leave undisturbed the convenience-of-the-employer doctrine as it had evolved' prior to the promulgation of Mim. 6472. The language of § 119 quite plainly rejects the reasoning behind rulings like O. D. 514, see n. 15, supra, which rest on the employer’s characterization of the nature of a payment. This conclusion is buttressed by the Senate’s choice of a term of art, “convenience of the employer,” in describing one of the conditions for exclusion under § 119. In so choosing, the Senate obviously intended to adopt the meaning of that term as it had developed over time, except, of course, to the extent § 119 overrules decisions like Doran. As we have noted above, Van Rosen v. Commissioner, 17 T. C. 834 (1951), provided the controlling court definition at the time of the 1954 recodification and it expressly rejected the Jones theory of “convenience of the employer” — and by implication the theory of O. D. 514— and adopted as the exclusive rationale the business-necessity theory. See 17 T. C., at 838-840. The business-necessity theory was also the controlling administrative interpretation of “convenience of the employer” prior to Mim. 6472. See supra, at 85-86, and n. 19. Finally, although the Senate Report did not expressly define “convenience of the employer” it did describe those situations in which it wished to reverse the courts and create an exclusion as those where “an employee must accept . . . meals or lodging in order properly to perform his duties.” S. Rep. No. 1622, supra, at 190.
As the last step in its restructuring of prior law, the Senate adopted an additional restriction created by the House and not theretofore a part of the law, which required that meals subject to exclusion had to be taken on the business premises of the employer. Thus § 119 comprehensively modified the prior law, both expanding and contracting the exclusion for meals and lodging previously provided, and it must therefore be construed as its draftsmen obviously intended it to be— as a replacement for the prior law, designed to “end [its] confusion.”
Because § 119 replaces prior law, respondent’s further argument — that the technical appendix in the Senate Report recognized the existence under § 61 of an exclusion for a class of noncompensatory cash payments — is without merit. If cash meal allowances could be excluded on the mere showing that such payments served the convenience of the employer, as respondent suggests, then cash would be more widely excluded from income than meals in kind, an extraordinary result given the presumptively compensatory nature of cash payments and the obvious intent of § 119 to narrow the circumstances in which meals could be excluded. Moreover, there is no reason to suppose that Congress would have wanted to recognize a class of excludable cash meal payments. The two precedents for the exclusion of cash — O. D. 514 and Jones v. United States — both rest on the proposition that the convenience of the employer can be inferred from the characterization given the cash payments by the employer, and the heart of this proposition is undercut by both the language of § 119 and the Senate Report. Jones also rests on Eisner v. Macomber, 252 U. S. 189 (1920), but Congress had no reason to read Eisner’s, definition of income into § 61 and, indeed, any assumption that Congress did is squarely at odds with Commissioner v. Glenshaw Class Co., 348 U. S. 426 (1955). See id., at 430-431. Finally, as petitioner suggests, it is much more reasonable to assume that the cryptic statement in the technical appendix — “cash allowances . . . will continue to be includable in gross income to the extent that such allowances constitute compensation” — was meant to indicate only that meal payments otherwise deductible under § 162 (a)(2) of the 1954 Code were not affected by § 119.
Moreover, even if we were to assume with respondent that cash meal payments made for the convenience of the employer could qualify for an exclusion notwithstanding the express limitations upon the doctrine embodied in § 119, there would still be no reason to allow the meal .allowance here to be excluded. Under the pre-1954 convenience-of-the-employer doctrine respondent’s allowance is indistinguishable from that in Van Rosen v. Commissioner, supra, and hence it is income. Indeed, the form of the meal allowance involved here has drastically changed from that passed on in Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954), relied on by the Third Circuit below, see supra, at 82, and in its present form the allowance is not excludable even under Saunders’ analysis. In any case, to avoid the completely unwarranted result of creating a larger exclusion for cash than kind, the meal allowances here would have to be demonstrated to be necessary to allow respondent “properly to perform his duties.” There is not even a suggestion on this record of any such necessity.
Finally, respondent argues that it is unfair that members of the military may exclude their subsistence allowances from income while respondent cannot. While this may be so, arguments of equity have little force in construing the boundaries of exclusions and deductions from income many of which, to be administrable, must be arbitrary. In any case, Congress has already considered respondent's equity argument and has rejected it in the repeal of § 120 of the 1954 Code. That provision as enacted allowed state troopers like respondent to exclude from income up to $5 of subsistence allowance per day. Section 120 was repealed after only four years, however, because it was “inequitable since there are many other individual taxpayers whose duties also require them to incur subsistence expenditures regardless of the tax effect. Thus, it appears that certain police officials by reason of this exclusion are placed in a more favorable position taxwise than other individual income taxpayers who- incur the same types of expense. . . H. R. Rep. No. 775, 85th Cong., 1st Sess., 7 (1957).
Reversed.
Ҥ 61. Gross income defined.
“'(a) General definition.
“Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
“(1) Compensation for services, including fees, commissions, and similar items . . . .”
Ҥ 119. Meals or lodging furnished for the convenience of the employer.
“There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him by his employer for the convenience of the employer, but only if—
“(1) in the case of meals, the meals are furnished on the business premises of the employer ....
“In determining whether meals ... are furnished for the convenience of the employer, the provisions of an employment contract or of a State statute fixing terms of employment shall not be determinative of whether the meals or lodging are intended as compensation.”
References to “respondent” are to Robert J. Kowalski. Nancy A. Kowalski, also a respondent, is a party solely because she filed a joint return with her husband for the 1970 tax year.
Respondent was entitled to $1,740 in meal allowances, see n. 7, infra, but for reasons not disclosed by the record received the lesser amount.
While on active duty, New Jersey troopers are generally required to live in barracks. Meals furnished in kind at the barracks before or after a patrol shift are not involved in this case. Nor is the meal allowance intended to pay for meals eaten before or after a shift in those instances in which the trooper is not living in the barracks. However, because of the duration of some patrols, a trooper may be required to eat more than one meal per shift while on the road.
The amount of the allowance is adjusted only when an officer is on military leave.
Troopers, such as respondent, and other noncommissioned officers received $1,740 per year; lieutenants and captains received $1,776, majors $1,848, and the Superintendent $2,136.
On October 1, 1970, the Division of State Police began to withhold income tax from amounts paid as cash meal allowances. No claim has been made that the change in the Division's withholding policy has any relevance for this case.
A seventh judge concurred in the majority opinion with respect to §§ 61 and 119, but dissented on the ground that the meal allowance was deductible under § 162 (a) of the Code, see n. 30, infra, as “ordinary and necessary expenditures required as a part of petitioner’s duties.” 65 T. C., at 63. Since respondent has not made this contention here, we have no occasion to consider it.
The Tax Court also determined that amounts of meal allowance attributable to respondent’s expenses while “away from home” as defined in § 162 (a) (2) of the Code, see n. 30, infra, were properly deducted from respondent’s income as travel expenses. See United States v. Correll, 389 U. S. 299 (1967). The Commissioner did not appeal from this holding.
See Wilson v. United States, 412 F. 2d 694 (CA1 1969) (troopers’ subsistence allowance taxable); United States v. Keeton, 383 F. 2d 429 (CA10 1967) (per curiam) (troopers’ subsistence allowance nontaxable); United States v. Morelan, 356 F. 2d 199 (CA8 1966) (same); United States v. Barrett, 321 F. 2d 911 (CA5 1963) (same); Magness v. Commissioner, 247 F. 2d 740 (CA5 1957) (troopers’ subsistence allowance taxable), cert. denied, 355 U. S. 931 (1958); Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954) (troopers’ meal allowance nontaxable). See also Ghastin v. Commissioner, 60 T. C. 264 (1973) (troopers’ subsistence allowance taxable); Hyslope v. Commissioner, 21 T. C. 131 (1953) (troopers’ meal allowance taxable).
53 Stat. 9, as amended, ch. 59, 53 Stat. 574. This section provided:
“(a) GENERAL DEFINITION.' — '’Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, ... or gains or profits and income derived from any source whatever.” (Emphasis added.)
The House and Senate Reports state:
“[Section 61] corresponds to section 22 (a) of the 1939 Code. While the language in existing section 22 (a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61 (a) is as broad in scope as section 22 (a).”
Substantially identical language appeared in the income tax regulations on the date of the 1954 recodification of the Internal Revenue Code. See Treas. Regs. 111, § 29.22 (a)-3 (1943); Treas. Regs. 118, § 39.22 (a)-3 (1953).
“ ‘Supper money’ paid by an employer to an employee, who voluntarily performs extra labor for his employer after regular business hours, such payment not being considered additional compensation and not being charged to the salary account, is considered as being paid for the convenience of the employer . . . .” (Emphasis added.)
See n. 15, supra. O. D. 914, 4 Cum. Bull. 85 (1921), is another ruling that makes tax consequences turn on the intention of the employer. Under 0. D. 914, lodging furnished to employees of the Indian Service was determined to be income if the Department of the Interior charged such lodging to the appropriation from which compensation was normally paid ; otherwise, it was not. See also O. D. 11, 1 Cum. Bull. 66 (1919) (semble) (“maintenance” paid to Red Cross workers includable in income only to the extent it exceeds actual living expenses).
“Where, from the location and nature of the work, it is necessary that employees engaged in fishing and canning be furnished with lodging and sustenance by the employer, the value of such lodging and sustenance may be considered as being furnished for the convenience of the employer and need not, therefore, be included in computing net income . . . .” O. D. 814, 4 Cum. Bull. 84, 84-85 (1921).
“Where the employees of a hospital are subject to immediate service on demand at any time during the twenty-four hours of the day and on that account are required to accept quarters and meals at the hospital, the value of such quarters and meals may be considered as being furnished for the convenience of the hospital and does not represent additional compensation to the employees. On the other hand, where the employees . . . could, if they so desired, obtain meals and lodging elsewhere than in the hospital and yet perform the duties required of them by such hospital, the ratable value of the board and lodging furnished is considered additional compensation.” O. D. 915, 4 Cum. Bull. 85, 85-86 (1921).
“3. As a general rule, the test of ‘convenience of the employer’ is satisfied if living quarters or meals are furnished to an employee who is required to accept such quarters and meals in order to perform properly his duties.” 1940-1 Cum. Bull., at 15, citing O. D. 915, supra, n. 18.
See 1950-1 Cum. Bull., at 16.
“The better and more accurate statement of the reason for the exclusion from the employee’s income of the value of subsistence and quarters furnished in kind is found, we think, in Arthur Benaglia, 36 B. T. A. 838, where it was pointed out that, on the facts, the subsistence and quarters were not supplied by the employer and received by the employee 'for his personal convenience^] comfort or pleasure, but solely because he could not otherwise perform the services required of him.’ In other words, though there was an element of gain to the employee, in that he received subsistence and quarters which otherwise he would have had to supply for himself, he had nothing he could take, appropriate, use and expend according to his own dictates, but rather, the ends of the employer’s business dominated and controlled, just as in the furnishing of a place to work and in the supplying of the tools and machinery with which to work. The fact that certain personal wants and needs of the employee were satisfied was plainly secondary and incidental to the employment.” Van Rosen v. Commissioner, 17 T. C., at 838.
Van Rosen was a civilian ship captain employed by the United States Army Transportation Corps. Id., at 834. In this capacity, his pay and subsistence allowances were determined by the Marine Personnel Regulations of the Transportation Corps of the Army. Id., at 837. His principal argument in the Tax Court was the factual similarity of his case to Jones v. United States, 60 Ct. Cl. 552 (1925). See 17 T. C., at 837.
See Benaglia v. Commissioner, 36 B. T. A. 838, 839-840 (1937); O. D. 915, supra, n. 18.
See also Diamond v. Sturr, 116 F. Supp. 28 (NDNY 1953), rev’d, 221 F. 2d 264 (CA2 1955) (value of lodgings held taxable on same facts as Doran); Romer v. Commissioner, 28 T. C. 1228 (1957) (following Doran for tax years governed by 1939 Code); Dietz v. Commissioner, 25 T. C. 1255 (1956) (holding the value of an apartment to be includable in income under 1939 Code where the apartment was the only consideration received by the taxpayers for performing janitorial services).
“Sec. 120. STATUTORY SUBSISTENCE ALLOWANCE RECEIVED BY POLICE.
“(a) General Rule. — Gross income does not include any amount received as a statutory subsistence allowance by an individual who is employed as a police official....
“(b) Limitations.—
“(1) Amounts to which subsection (a) applies shall not exceed $5 per day.
“(2) If any individual receives a subsistence allowance to which subsection (a) applies, no deduction shall be allowed under any other provision of this chapter for expenses in respect of which be has received such allowance, except to the extent that such expenses exceed the amount excludable under subsection (a) and the excess is otherwise allowable as a deduction under this chapter.” 68A Stat. 39.
See Technical Amendments Act of 1958, § 3, 72 Stat. 1607.
“[T]he provisions of an employment contract . . . shall not be determinative of whether . . . meals . . . are intended as compensation.”
We do not decide today whether, notwithstanding § 119, the “supper money” exclusion may be justified on other grounds. See, e. g., Treasury Department, Proposed Fringe Benefit Regulations, 40 Fed. Reg. 41118, 41121 (1975) (example 8). Nor do we decide whether sporadic meal reimbursements may be excluded from income. Cf. United States v. Correll, 389 U. S. 299 (1967).
Moreover, it must be recognized that § 213 of the Revenue Act of 1921, 42 Stat. 237, which was involved in Jones v. United States, made a distinction by its terms between “gross income” which included “salaries, wages, or compensation for personal service” and the “compensation received as such” by an officer of the United States. See 60 Ct. Cl., at 563. The Court of Claims assumed that Congress by so distinguishing intended to tax United States officers more narrowly than other taxpayers by levying the income tax only on amounts expressly characterized by Congress as compensation. See ibid. For this reason, Jones is of limited value in construing § 61 which contains no language even remotely similar to § 213.
Ҥ 162. Trade or business expenses.
“ (a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
“(i) • • • ;
“(2) Traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade of business . . .
Compare supra, at 80-81 and Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), with Saunders v. Commissioner.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
68
] |
BEAL, SECRETARY, DEPARTMENT OF PUBLIC WELFARE OF PENNSYLVANIA, et al. v. DOE et al.
No. 75-554.
Argued January 11, 1977
Decided June 20, 1977
Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 448. Marshall, J., filed a dissenting opinion, post, p. 454. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 462.
Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were Robert P. Kane, Attorney General, and /. Justin Blewitt, Jr., Deputy Attorney General.
Judd F. Crosby argued the cause and filed a brief for respondents.
William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and Erminie L. Conley, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal.
David S. Dolowitz, Melvin L. Wulf, and Judith M. Mears filed a brief for the American Public Health Assn, et al. as amici curiae urging affirmance.
Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions.
I
Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment. 42 U. S. C. §§ 1396a (a) (13) (B) (1970 ed., Supp. V), 1396d (a) (l)-(5) (1970 ed. and Supp. V). Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish “reasonable standards ... for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX] ” 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V).
Respondents, who are eligible for medical assistance under Pennsylvania’s federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary. When respondents’ applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and in-junctive relief. Their complaint alleged that Pennsylvania’s requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment.
A three-judge District Court was convened pursuant to 28 U. S. C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania’s medical-necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F. Supp. 173 (1974). Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed on the statutory issue, holding that Title XIX prohibits participating States from requiring a physician’s certificate of medical necessity as a condition for funding during both the first and second trimesters of pregnancy. 523 F. 2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue.
We granted certiorari to resolve a conflict among the federal courts as to the requirements of Title XIX. 428 U. S. 909 (1976).
II
The only question before us is one of statutory construction : whether Title XIX requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law. “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. But nothing in the statute suggests that participating States are required to fund every medical procedure that falls within the delineated categories of medical care. Indeed, the statute expressly provides:
“A State plan for medical assistance must . . . include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this [Title] . . . 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V).
This language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be “reasonable” and “consistent with the objectives” of the Act.
Pennsylvania’s regulation comports fully with Title XIX’s broadly stated primary objective to enable each State, as far as practicable, to furnish medical assistance to individuals whose income and resources are insufficient to meet the costs of necessary medical services. See 42 U. S. C. §§ 1396, 1396a (10) (C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary — though perhaps desirable— medical services.
The thrust of respondents’ argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds. The economic argument is grounded on the view that abortion is generally a less expensive medical procedure than childbirth. Since a pregnant woman normally will either have an abortion or carry her child full term, a State that elects not to fund nontherapeutic abortions will eventually be confronted with the greater expenses associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman’s health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy.
Accepting respondents’ assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U. S. 113 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the “important and legitimate interest [of the State] ... in protecting the potentiality of human life.” Id., at 162. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman’s constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman’s pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth. Absent such a showing, we will not presume that Congress intended to condition a State’s participation in the Medicaid program on its willingness to undercut this important interest by subsidizing the costs of nontherapeutic abortions.
Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States. In view of the then-prevailing state law, the contention that Congress intended to require — rather than permit — participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute, takes the position that Title XIX allows — but does not mandate — funding for such abortions. “[W]e must be mindful that The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong New York Dept. of Soc. Services v. Dublino, 413 U. S. 405, 421 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). Here, such indications are completely absent.
We therefore hold that Pennsylvania’s refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX. We make clear, however, that the federal statute leaves a State free to provide such coverage if it so desires.
HH t-H HH
There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician’s medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement.
It is so ordered.
Title XIX establishes two groups of needy persons: (1) the “categorically” needy, which includes needy persons with dependent children and the aged, blind, and disabled, 42 U. S. C. § 1396a (a) (10) (A) (1970 ed., Supp. V); and (2) the “medically” needy, which includes other needy persons, § 1396a (a) (10) (C) (1970 ed., Supp. V). Participating States are not required to extend Medicaid coverage to the “medically” needy, but Pennsylvania has chosen to do so.
The general categories of medical treatment enumerated are:
“(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases) ;
“(2) outpatient hospital services;
“(3) other laboratory and X-ray services;
“(4) (A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of childbearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;
“(5) physicians’ services furnished by a physician (as defined in section 1395x (r) (1) of this title), whether furnished in the office, the patient’s home, a hospital, or a skilled nursing facility, or elsewhere.” 42 U. S. C. § 1396d (a) (1970 ed. and Supp. V).
Participating States that elect to extend coverage to the “medically” needy, see n. 1, supra, have the option of providing somewhat different categories of medical services to those individuals. 42 U. S. C. § 1396a (a) (13) (C) (ii) (1970 ed., Supp. V).
An abortion is deemed medically necessary under the Pennsylvania Medicaid program if:
“(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother;
“ (2) There is docmnented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or
“(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and
“(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and
“ (5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.” Brief for Petitioners 4, citing 3 Pennsylvania Bulletin 2207, 2209 (Sept. 29, 1973).
In Doe v. Bolton, 410 U. S. 179, 192 (1973), this Court indicated that “[wjhether ‘an abortion is necessary’ is a professional judgment that . . . may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.” We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton. Tr. of Oral Arg. 7-8.
The dissent of MR. Justice Brennan emphasizes the “key” role of the physician within the Medicaid program, noting that “[t]he Medicaid statutes leave the decision as to the choice among pregnancy procedures exclusively with the doctor and his patient . . . .” Post, at 449-450. This is precisely what Pennsylvania has done. Its regulations provide for the funding of abortions upon certification of medical necessity, a determination that the physician is authorized to make on the basis of all relevant factors.
The District Court was of the view that the regulation creates “an unlawful distinction between indigent women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion.” 376 F. Supp., at 191. In Maher v. Roe, post, p. 464, we today conclude that the Equal Protection Clause of the Fourteenth Amendment does not prevent a State from making the policy choice to fund costs incident to childbirth without providing similar funding for costs incident to nontherapeutic abortions.
Petitioners appealed the District Court’s declaratory judgment to the Court of Appeals. Respondents cross-appealed from the denial of declaratory relief with respect to the second and third trimesters of pregnancy. Since respondents did not seek review of the District Court’s denial of injunctive relief, the Court of Appeals had jurisdiction over the appeals. Gerstein v. Coe, 417 U. S. 279 (1974).
As a result of the decision of the Court of Appeals, petitioners issued a Temporary Revised Policy on September 25, 1975. This interim policy allows financial assistance for abortions without regard to medical necessity. Brief for Petitioners 3 n. 3.
Two other Courts of Appeals have concluded that the federal statute does not require participating States to fund the cost of nontherapeutic abortions. Roe v. Norton, 522 F. 2d 928 (CA2 1975); Roe v. Ferguson, 515 F. 2d 279 (CA6 1975). See also, e. g., Doe v. Westby, 402 F. Supp. 140 (WDSD 1975) (three-judge court) (Title XIX requires funding of nontherapeutic abortions), appeal docketed, No. 75-813; Doe v. Stewart, Civ. No. 74-3197 (ED La., Jan. 26, 1976) (three-judge court) (Title XIX does not require funding of nontherapeutic abortions), appeal docketed, No. 75-6721.
Respondents concede that Title XIX “indicates that the states will have wide discretion in determining the extent of services to be provided.” Brief for Respondents 9.
Respondents also contend that Pennsylvania’s restriction on coverage is unreasonable within the meaning of Title XIX in that it interferes with the physician’s professional judgment concerning appropriate treatment. With one possible exception addressed in Part III, infra, the Pennsylvania program does not interfere with the physician’s medical judgment concerning his patient’s needs. If a physician certifies that an abortion is medically necessary, see n. 3, supra, the medical expenses are covered under the Pennsylvania Medicaid program. If, however, the physician concludes that the abortion is not medically necessary, but indicates a willingness to perform the abortion at the patient’s request, the expenses are not covered. The decision whether to fund the costs of the abortion thus depends solely on the physician’s determination of medical necessity. Respondents point to nothing in the Pennsylvania Medicaid plan that indicates state interference with the physician’s initial determination.
Respondents rely heavily on the fact that in amending Title XIX in 1972 to include “family planning services” within the five broad categories of required medical treatment, see n. 2, supra, Congress did not expressly exclude abortions as a covered service. Since Congress had expressly excluded abortions as a method of family planning services in prior legislation, see 42 U. S. C. § 300a-6, respondents conclude that the failure of Congress to exclude coverage of abortions in the 1972 amendments to Title XIX “strongly indicates” an intention to require coverage of abortions. This fine of reasoning is flawed. The failure to exclude abortions from coverage indicates only that Congress intended to allow such coverage, not that such coverage is mandatory for nontherapeutic abortions.
The Court of Appeals concluded that Pennsylvania’s regulations also violated the equality provisions of Title XIX requiring that an individual’s medical assistance “shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual.” 42 U. S. C. § 1396a (a) (10) (B) (1970 ed., Supp. V). See § 1396a (a) (10) (C) (1970 ed., Supp. V). According to the Court of Appeals, the Pennsylvania regulation “force[s] pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid.” 523 F. 2d 611, 619 (1975). We find the Pennsylvania regulation to be entirely consistent with the equality provisions of Title XIX. Pennsylvania has simply decided that there is reasonable justification for excluding from Medicaid coverage a particular medically unnecessary procedure — nontherapeutic abortions.
At the time of our 1973 decision in Roe, some eight years after the enactment of Title XIX, at least 30 States had statutory prohibitions against nontherapeutic abortions. 410 U. S. 113, 118 n. 2 (1973).
Federal funds are made available only to those States whose Medicaid plans have been approved by the Secretary of HEW. 42 U. S. C. § 1396 (1970 ed., Supp. V).
Congress by statute has expressly prohibited the use during fiscal year 1977 of federal Medicaid funds for abortions except when the life of the mother would be endangered if the fetus were carried to term. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, § 209, Pub. L. 94-439, 90 Stat. 1434.
Our dissenting Brothers, in this case and in Maher v. Roe, post, p. 482, express in vivid terms their anguish over the perceived impact of today’s decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth. We think our Brothers misconceive the issues before us, as well as the role of the judiciary.
In these cases we have held merely that (i) the provisions of the Social Security Act do not require a State, as a condition of participation, to include the funding of elective abortions in its Medicaid program; and (ii) the Equal Protection Clause does not require a State that elects to fund expenses incident to childbirth also to provide funding for elective abortions. But we leave entirely free both the Federal Government and the States, through the normal processes of democracy, to provide the desired funding. The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this Court.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
GREENHOLTZ, CHAIRMAN, BOARD OF PAROLE OF NEBRASKA, et al. v. INMATES OF THE NEBRASKA PENAL AND CORRECTIONAL COMPLEX et al.
No. 78-201.
Argued January 17, 1979
Decided May 29, 1979
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, BlackmuN, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 18. Marshall, J., filed an opinion dissenting in part, in which BreNNAN and SteveNS, JJ., joined, post, p. 22.
Ralph H. Gillan, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the brief was Paul L. Douglas, Attorney General.
Brian K. Ridenour argued the cause and filed a brief for respondents.
William Alsup argued the cause for the United States as amicus curiae. On the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Easterbrook, and William G. Otis.
Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Jack B. Winkler., Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and John T. Murphy and Karl iS. Mayer, Deputy Attorneys General, for the State of California; and by Larry Derryberry, Attorney General, and John F. Fischer II, Assistant Attorney General, for the State of Oklahoma.
Alvin J. Bronstein and Dean Hill Bivkin filed a brief for the National Prison Project of the American Civil Liberties Union Foundation as amicus curiae urging affirmance.
Pierce O’Donnell and Bobert L. Weinberg filed a brief for the Jerome N. Frank Legal Services Organization et al. as amici curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.
I
Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U. S. C. § 1983 claiming that they had been unconstitutionally denied parole by the Board of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board’s procedures denied them procedural due process.
The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb. Rev. Stat. § 83-1,107 (1)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. §83-1,110 (1). Only discretionary parole is involved in this case.
The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board’s practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. §83-192 (9). At the initial review hearing, the Board examines the inmate’s entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release.
If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year.
If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111 (2).
II
The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected “conditional liberty” interest, recognized by this Court in Morrissey v. Brewer, 408 U. S. 471 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.
On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey - type, conditional liberty interest at stake and also found a statutorily defined, protectible interest in Neb. Rev. Stat. § 83-1,114 (1976). The Court of Appeals, however, 576 F. 2d 1274, 1285, modified the procedures required by the District Court as follows:
(a) When eligible for parole each inmate must receive a full formal hearing;
(b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision ;
(c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf;
(d) a record of the proceedings, capable of being reduced to writing, must be maintained; and
(e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board’s action denying parole.
The court’s holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren, 528 F. 2d 1050 (CA5), cert. denied, 429 U. S. 917 (1976); Scarpa v. United States Board of Parole, 477 F. 2d 278 (CA5) (en banc), vacated as moot, 414 U. S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U. S. 60 (1976). See also Franklin v. Shields, 569 F. 2d 784, 800 (CA4 1977), cert. denied, 435 U. S. 1003 (1978); United States ex rel. Richerson v. Wolff, 525 F. 2d 797 (CA7 1975), cert. denied, 425 U. S. 914 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U. S. 817.
III
The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual’s claimed interest.
“[T]o determine whether due process requirements apply in the first place, we must look not to the 'weight’ but to the nature of the interest at stake.” Board of Regents v. Roth, 408 U. S. 564, 570-571 (1972).
This has meant that to obtain a protectible right
“a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id., at 577.
There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Meachum v. Fano, 427 U. S. 215, 224, (1976).
Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. See Id., at 225; Montanye v. Haymes, 427 U. S. 236 (1976); Moody v. Daggett, 429 U. S. 78, 88 n. 9 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.
A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an “equity” type judgment that cannot always be articulated in traditional findings.
IV
Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility of parole. Alternatively, they claim that the language in Nebraska’s statute, Neb. Rev. Stat. § 83-1,114 (1) (1976), creates a legitimate expectation of parole, invoking due process protections.
A
In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U. S. 471 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon v. Scarpelli, 411 U. S. 778 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection.
The fallacy in respondents’ position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could “be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life.” 408 U. S., at 482. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.
A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society’s benefit. Id., at 479-480. “The first step in a revocation decision thus involves a wholly retrospective factual question.” Id., at 479.
The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made
“for a variety of reasons and often involve [s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.” Meachum v. Fano, 427 U. S., at 225.
The decision turns on a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.” Kadish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961).
The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole, 443 F. 2d 1079, 1086 (1971), the Second Circuit took note of this critical distinction:
“It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.”
Judge Henry Friendly cogently noted that “there is a human difference between losing what one has and not getting what one wants.” Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296 (1975). See also Brown v. Lundgren, 528 F. 2d, at 1053; Scarpa v. United States Board of Parole, 477 F. 2d, at 282; Franklin v. Shields, 569 F. 2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F. 2d 925, 936 (CA2 1974) (Hay, J., dissenting).
That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, 408 U. S., at 577. To that extent the general interest asserted here is no more substantial than the inmate’s hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U. S., at 225; Montanye v. Haymes, supra.
B
Respondents’ second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part:
“Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
“(a) There is a substantial risk that he will not conform to the conditions of parole;
“(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
“(c) His release would have a substantially adverse effect on institutional discipline; or
“(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114 (1) (1976).
Respondents emphasize that the structure of the provision together with the use of the word “shall” binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.
It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U. S. 539 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions for deferral were essentially factual, as in Wolff and Morrissey, rather than predictive.
Since respondents elected to litigate their due process claim in federal court, we are denied the benefit of the Nebraska courts' interpretation of the scope of the interest, if any, the statute was intended to afford to inmates. See Bishop v. Wood, 426 U. S. 341, 345 (1976). We can accept respondents’ view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. However, we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. We therefore turn to an .examination of the statutory procedures to determine whether they provide the process that is due in these circumstances.
It is axiomatic that due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S., at 481; Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 162-163 (1951) (Frankfurter, J., concurring). The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U. S. 319, 335 (1976).
Here, as we noted previously, the Parole Board’s decision as defined by Nebraska’s statute is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me. Rev. Stat. Ann., Tit. 34, §§ 1671-1679 (1964), repealed, 1975 Me. Acts, ch. 499, § 71 (repealing the State’s parole system).
It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable objectives to invite or encourage a continuing state of adversary relations between society and the inmate.
Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ. of Missouri v. Horowitz, 435 U. S. 78, 90 (1978); Cafeteria & Restaurant Workers v. McElroy, supra, at 895. Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in Mathews v. Eldridge, supra, at 335, and Morrissey v. Brewer, supra, at 481.
Two procedures mandated by the Court of Appeals are particularly challenged by the Board: the requirement that a formal hearing be held for every inmate, and the requirement that every adverse parole decision include a statement of the evidence relied upon by the Board.
The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 (1976). When the Board defers parole after the initial review hearing, it does so because examination of the inmate’s file and the personal interview satisfies it that the inmate is not yet ready for conditional release. The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release. At the Board’s initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate’s files, this procedure adequately safeguards against serious risks of error and thus satisfies due process. Cf. Richardson v. Perales, 402 U. S. 389, 408 (1971).
Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F. 2d, at 800 (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 299-300. The Board’s decision is much like a sentencing judge’s choice — provided by many states — to grant or deny probation following a judgment of guilt, a choice never thought to require more than what Nebraska now provides for the parole-release determination. Cf. Dorszynski v. United States, 418 U. S. 424 (1974). The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
So ordered.
APPENDIX TO OPINION OF THE COURT
The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following:
(a) The offender’s personality, including his maturity, stability, sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law;
(b) The adequacy of the offender’s parole plan;
(c) The offender’s ability and readiness to assume obligations and undertake responsibilities;
(d) The offender’s intelligence and training;
(e) The offender’s family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community;
(f) The offender’s employment history, his occupational skills, and the stability of his past employment;
(g) The type of residence, neighborhood or community in which the offender plans to live;
(h) The offender’s past use of narcotics, or past habitual and excessive use of alcohol;
(i) The offender’s mental or physical makeup, including any disability or handicap which may affect his conformity to law;
(j) The offender’s prior criminal record, including the nature and circumstances, recency and frequency of previous offenses;
(k) The offender’s attitude toward law and authority;
(l) The offender’s conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration ;
(m) The offender’s behavior and attitude during any previous experience of probation or parole and the recency of such experience; and
(n) Any other factors the board determines to be relevant. Neb. Rev. Stat. § 83-1,114 (2) (1976).
The statute defines the scope of the initial review hearing as follows: "Such review shall include the circumstances of the offender's offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole . . . Neb. Rev. Stat. §83-192 (9) (1976).
Apparently, over a 23-month period, there were eight cases with letters of denial that did not include a statement of reasons for the denial. A representative of the Board of Parole testified at trial that these were departures from standard practice. There is nothing to indicate that these inmates could not have received a statement if they had requested one or that a direct challenge to this departure from the statute would not have produced relief. See Neb. Rev. Stat. §25-1901 et seq. (1975).
These are the traditional justifications advanced to support the adoption of a system of parole. See generally A. von Hirsch & K. Hanrahan, Abolish Parole? 3 (1978); N. Morris, The Future of Imprisonment 47 (1974); J. Wilson, Thinking About Crime 171 (1975); D. Stanley, Prisoners Among Us 59, 76 (1976); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 249.
See Stanley, supra n. 3, at 50-55; Dawson, supra n. 3, at 287-288.
The statute also provides a list of 14 explicit factors and one catchall factor that the Board is obligated to consider in reaching a decision. Neb. Rev. Stat. §§83-1,114 (2)(a)-(n) (1976). See Appendix to this opinion.
The Board also objects to the Court of Appeals’ order that it provide written notice reasonably in advance of the hearing together with a list of factors that might be considered. At present the Board informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate’s ability to prepare adequately for the hearing. The present notice is constitutionally adequate.
The only other possible risk of error is that relevant adverse factual information in the inmate’s file is wholly inaccurate. But the Board has discretion to make available to the inmate any information “[w]henever the board determines that it will facilitate the parole hearing.” Neb. Rev. Stat. § 83-1,112 (1) (1976). Apparently the inmates are satisfied with the way this provision is administered since there is no issue before us regarding access to their files.
The Court of Appeals in its order required the Board to permit all inmates to appear and present documentary support for parole. Since both of these requirements were being complied with prior to this litigation, the Board did not seek review of those parts of the court’s order and the validity of those requirements is not before us. The Court of Appeals also held that due process did not provide a right to cross-examine adverse witnesses or a right to present favorable witnesses. The practice of taping the hearings also was declared adequate. Those issues are not before us and we express no opinion on them.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
116
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SECRETARY OF STATE OF MARYLAND v. JOSEPH H. MUNSON CO., INC.
No. 82-766.
Argued October 31, 1983
Decided June 26, 1984
Diana G. Motz, Assistant Attorney General of Maryland, argued the cause for petitioner. With her on the briefs were Stephen H. Sachs, Attorney General, and James G. Klair and Robert A. Zarnoch, Assistant Attorneys General.
Yale L. Goldberg argued the cause for respondent. With him on the brief was Donald E. Sinrod
A brief of amici curiae urging reversal was filed for the State of Connecticut et al. by Francis X. Bellotti, Attorney General of Massachusetts, and Catharine W. Hantzis, Leslie G. Espinoza, and DanaL. Mason, Assistant Attorneys General, Joseph I. Lieberman, Attorney General of Connecticut, Neil F. Hartigan, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, Irwin I. Kimmelman, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Mark Meier-henry, Attorney General of South Dakota, and William M. Leech, Jr., Attorney General of Tennessee.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Robert B. Hummel, Thomas J. McGrew, Charles S. Sims, and Arthur B. Spitzer; for Independent Sector et al. by Adam Yarmolinsky, Stephen T. Owen, and Michael B. Jennison; and for Box Office, Inc., by Barry A. Fisher, Robert C. Moest, and David Grosz.
Justice Blackmun
delivered the opinion of the Court.
In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), this Court, with one dissenting vote, concluded that a municipal ordinance prohibiting the solicitation of contributions by a charitable organization that did not use at least 75% of its receipts for “charitable purposes” was unconstitutionally overbroad in violation of the First and Fourteenth Amendments. The issue in the present case is whether a Maryland statute with a like percentage limitation, but with provisions that render it more “flexible” than the Schaumburg ordinance, can withstand constitutional attack. The Court of Appeals of Maryland concluded that, even with this increased flexibility, the percentage restriction on charitable solicitation was an unconstitutional limitation on protected First Amendment solicitation activity. We agree with that conclusion and affirm the judgment of the Court of Appeals.
I
Joseph H. Munson Co., Inc. (Munson), an Indiana corporation, instituted this action in the Circuit Court for Anne Arundel County, Md., seeking declaratory and injunctive relief against the Secretary of State of Maryland (Secretary). Munson is a professional for-profit fundraiser in the business of promoting fundraising events and giving advice to customers on how those events should be conducted. Its Maryland customers include various chapters of the Fraternal Order of Police (FOP).
Section 103A et seq., Art. 41, Md. Ann. Code (1982), concern charitable organizations. Section 103D prohibits such an organization, in connection with any fundraising activity, from paying or agreeing to pay as expenses more than 25% of the amount raised. Munson in its complaint alleged that it regularly charges an FOP chapter an amount in excess of 25% of the gross raised for the event it promotes. App. 4. Munson also alleged that the Secretary had informed it that it was subject to § 103D and would be prosecuted if it failed to comply with the provisions of that statute. App. 5.
In its initial complaint, filed March 7, 1978, Munson took the position that its contracts with the FOP should not be subject to § 103A et seq. The Circuit Court dismissed that challenge for failure to exhaust administrative remedies. The court concluded, however, that Munson could attack the statutes as an improper delegation of legislative authority, in violation of the Maryland Constitution. App. 13. Munson then amended its complaint to allege that the statutes effected an unconstitutional infringement on its right to free speech and assembly under the First and Fourteenth Amendments of the United States Constitution. Id., at 26.
The Secretary questioned Munson’s standing to assert its claims. He urged that § 103D is directed to acts of charitable organizations and, therefore, that only an organization of that kind can challenge the statute’s constitutionality. The Secretary also urged that Munson’s claims presented no actual controversy, because Munson had failed to exhaust its administrative remedies and, consequently, there had been no binding determination that the statute would apply to Munson’s contracts. App. 29.
The Circuit Court did not address the standing argument, but upheld the statute on the merits. App. to Pet. for Cert. 38a. It concluded that because the statute included a provision authorizing a waiver of the percentage limitation “in those instances where the 25% limitation would effectively prevent a charitable organization from raising contributions,” it was sufficiently flexible to accommodate legitimate First Amendment interests. Id., at 46a. The court also rejected Munson’s state-law claim that the statute was an impermissible delegation of legislative authority.
Munson appealed to the Court of Special Appeals of Maryland. The Secretary did not take a cross-appeal. The Court of Special Appeals affirmed the judgment of the Circuit Court. 48 Md. App. 273, 426 A. 2d 985 (1981).
Both Munson and the Secretary then petitioned the Court of Appeals of Maryland for writs of certiorari. Munson challenged the validity of the statute and the Secretary challenged Munson’s standing. The court granted both petitions and, by a unanimous vote, reversed the judgment of the Court of Special Appeals. 294 Md. 160, 448 A. 2d 935 (1982). It expressed doubt about the Secretary’s ability to challenge Munson’s standing when the Secretary had not taken an appeal from the Circuit Court’s judgment, but, assuming that the issue was properly before the court, nonetheless concluded that Munson did have standing to challenge the facial validity of § 103D. The court found that, based on the allegations of its complaint and under the facts as stipulated in the trial court, see App. to Pet. for Cert. 39a, Munson clearly had suffered injury as a result of § 103D. The court rejected the contention that Munson may not assert the First Amendment rights of the FOP chapters, noting that where a statute is directed at persons with whom the plaintiff has a business or professional relationship, and impairs the plaintiff in that relationship, it normally is accorded standing to challenge the validity of the statute. 294 Md., at 171, 448 A. 2d, at 941. In addition, as this Court in Schaumburg held, 444 U. S., at 634, “[g]iven a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.” 294 Md., at 172, 448 A. 2d, at 942.
On the merits, the court concluded that Schaumburg required that the Maryland statute be ruled unconstitutional. It rejected the Secretary’s argument that the statute was valid because it did not require a permit prior to solicitation, and imposed criminal penalties only for solicitation in violation of the statute. 294 Md., at 176-179, 448 A. 2d, at 944-945. The court also concluded that the flaws in the statute were not remedied by the provision authorizing a waiver of the 25% limitation whenever it would effectively prevent the charitable organization from raising contributions. Id., at 179-181, 448 A. 2d, at 945-946. The court found that the statutory authorization for an exemption from the percentage limitation is “extremely narrow.” It did not remedy the flaw inherent in a percentage limitation on solicitation costs — that charities that make a policy decision to use more than 25% of the proceeds raised for purposes other than “charitable” are denied their constitutional right to do so, and are lumped together with those engaging in fraud. Id., at 180-181, 448 A. 2d, at 946. In sum, in the view of the Court of Appeals, the 25% limitation, like that in the ordinance addressed in Schaumburg, is not a “narrowly drawn regulatio[n] designed to serve [the State’s legitimate] interests without unnecessarily interfering with First Amendment freedoms.” 444 U. S., at 637.
We granted certiorari to review both determinations of the Court of Appeals, namely, that Munson had standing to challenge the validity of §103D, and that the statute was unconstitutional on its face. 459 U. S. 1102 (1983).
I — i I — i
Standing. The first element of the standing inquiry that Munson must satisfy in this Court is the “case” or “controversy” requirement of Art. Ill of the United States Constitution. Singleton v. Wulff, 428 U. S. 106, 112 (1976). Munson is a professional fundraising company. Because its contracts call for payment in excess of 25% of the funds raised for a given event, it is subject, under § 103L, to civil restraint and criminal liability. Prior to initiation of the present lawsuit, the Secretary informed Munson that if it refused to comply with § 103D, it would be prosecuted. The parties stipulated before trial that the Montgomery County Chapter of the FOP was reluctant to enter into a contract with Munson because of the limitation imposed by § 103D. Munson has suffered both threatened and actual injury as a result of the statute. See Singleton v. Wulff, supra; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26 (1976); Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973).
In addition to the limitations on standing imposed by Art. Ill’s case-or-controversy requirement, there are prudential considerations that limit the challenges courts are willing to hear. “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U. S. 490, 499 (1975) (citing Tileston v. Ullman, 318 U. S. 44 (1943); United States v. Raines, 362 U. S. 17 (1960); and Barrows v. Jackson, 346 U. S. 249 (1953)). The reason for this rule is twofold. The limitation “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy,” United States v. Raines, 362 U. S., at 22, and it assures the court that the issues before it will be concrete and sharply presented. See Baker v. Carr, 369 U. S. 186, 204 (1962). Munson is not a charity and does not claim that its own First Amendment rights have been or will be infringed by the challenged statute. Accordingly, the Secretary insists that Munson should not be heard to complain that the State’s charitable-solicitation rule violates the First Amendment.
The Secretary concedes, however, that there are situations where competing considerations outweigh any prudential rationale against third-party standing, and that this Court has relaxed the prudential-standing limitation when such concerns are present. Where practical obstacles prevent a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing. In such a situation, the Court considers whether the third party has sufficient injury-in-fact to satisfy the Art. Ill case- or-controversy requirement, and whether, as a prudential matter, the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal. See, e. g., Craig v. Boren, 429 U. S. 190, 193-194 (1976).
Within the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing. Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).
In the instant case, the Secretary’s most serious argument against allowing Munson to challenge the statute is that there is no showing that a charity cannot bring its own lawsuit. Although such an argument might defeat a party’s standing outside the First Amendment xcontext, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech. To the contrary, where the claim is that a statute is overly broad in violation of the First Amendment, the Court has allowed a party to assert the rights of another without regard to the ability of the other to assert his own claims and “‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’” Broadrick v. Oklahoma, 413 U. S., at 612, quoting Dom-browski v. Pfister, 380 U. S. 479, 486 (1965). See also Schaumburg, 444 U. S., at 634 (“Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court”).
The fact that, because Munson is not a charity, there might not be a possibility that the challenged statute could restrict Munson's own First Amendment rights does not alter the analysis. Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society — to prevent the statute from chilling the First Amendment rights of other parties not before the court. Munson’s ability to serve that function has nothing to do with whether or not its own First Amendment rights are at stake. The crucial issues are whether Munson satisfies the requirement of “injury-in-fact,” and whether it can be expected satisfactorily to frame the issues in the case. If so, there is no reason that Munson need also be a charity. If not, Munson could not bring this challenge even if it were a charity.
The Secretary concedes that the Art. Ill ease-or-controversy requirement has been met, see Tr. of Oral Arg. 5, and the Secretary has come forward with no reason why Munson is an inadequate advocate to assert the charities’ rights. The activity sought to be protected is at the heart of the business relationship between Munson and its clients, and Munson’s interests in challenging the statute are completely consistent with the First Amendment interests of the charities it represents. We see no prudential reason not to allow it to challenge the statute.
Besides challenging Munson’s standing as a “noncharity” to bring its claim, the Secretary urges that Munson should not have standing to challenge the statute as overbroad because it has not demonstrated that the statute’s overbreadth is “substantial.” See Broadrick v. Oklahoma, 413 U. S., at 615. The Secretary raises a point of valid concern. The Court has indicated that application of the overbreadth doctrine is “strong medicine” that should be invoked only “as a last resort.” Id., at 613. The Secretary’s concern, however, is one that is more properly reserved for the determination of Munson’s First Amendment challenge on the merits. The requirement that a statute be “substantially overbroad” before it will be struck down on its face is a “standing” question only to the extent that if the plaintiff does not prevail on the merits of its facial challenge and cannot demonstrate that, as applied to it, the statute is unconstitutional, it has no “standing” to allege that, as applied to others, the statute might be unconstitutional. See Parker v. Levy, 417 U. S. 733, 760 (1974); United States v. Raines, 362 U. S., at 21. See generally Monaghan, Overbreadth, 1981 S. Ct. Rev. 1. We therefore move on to the merits of Munson’s First Amendment claim.
Ill
The Merits. In Schaumburg v. Citizens for a Better Environment, supra, the Court struck down a municipal ordinance that required every charitable organization, which utilized door-to-door solicitation, to apply for a permit obtainable only on “ ‘[satisfactory proof that at least seventy-five per cent of the proceeds of such solicitations will be used directly for the charitable purpose of the organization.’” Id., at 624. The question before us is whether the distinctions between the Schaumburg ordinance and the Maryland statute are sufficient to render the statute constitutionally acceptable. To answer that question, we reexamine the bases for the conclusion the Court reached in Schaumburg.
A
The Court in Schaumburg determined first that charitable solicitations are so intertwined with speech that they are entitled to the protections of the First Amendment:
“Prior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease.” Id., at 632.
Because the percentage limitation restricted the ways in which charities might engage in solicitation activity, the Court concluded that it was a “direct and substantial limitation on protected activity that cannot be sustained unless it serves a sufficiently strong, subordinating interest that the Village is entitled to protect.” Id., at 636. In addition, in order to be valid, the limitation would have to be a “narrowly drawn regulatio[n] designed to serve [the] interes[t] without unnecessarily interfering with First Amendment freedoms.” Id., at 637.
Although the Court in Schaumburg recognized that the Village had legitimate interests in protecting the public from fraud, crime, and undue annoyance, it rejected the limitation because it was not a precisely tailored means of accommodating those interests. The Village’s asserted interests were only peripherally promoted by the limitation and could be served by measures less intrusive than a direct prohibition on solicitation.
In particular, although the Village’s primary interest was in preventing fraud, the Court concluded that the limitation was simply too imprecise an instrument to accomplish that purpose. The justification for the limitation was an assumption that any organization using more than 25% of its receipts on fundraising, salaries, and overhead was not charitable, but was a commercial, for-profit enterprise. Any such enterprise that represented itself as a charity thus was fraudulent.
The flaw in the Village’s assumption, as the Court recognized, was that there is no necessary connection between fraud and high solicitation and administrative costs. A number of other factors may result in high costs; the most important of these is that charities often are combining solicitation with dissemination of information, discussion, and advocacy of public issues, an activity clearly protected by the First Amendment and as to which the Village had asserted no legitimate interest in prohibiting. In light of the fact that the interest in protecting against fraud can be accommodated by measures less intrusive than a direct prohibition on solicitation, the Court concluded that the limitation was insufficiently related to the governmental interests asserted to justify its interference with protected speech.
B
Schaumburg left open the primary question now before this Court — whether the constitutional deficiencies in a percentage limitation on funds expended in solicitation are remedied by the possibility of an administrative waiver of the limitation for a charity that can demonstrate financial necessity. The Court there distinguished a case in which a percentage limitation on solicitation costs had been upheld, see National Foundation v. Fort Worth, 415 F. 2d 41 (CA5 1969), cert. denied, 396 U. S. 1040 (1970), noting that under the ordinance in Fort Worth, a charity had the opportunity to demonstrate that its solicitation costs, though high, nevertheless were reasonable. See 444 U. S., at 635, n. 9.
Section 103D has a provision similar to that in the Fort Worth ordinance. It directs the Secretary of State to “issue rules and regulations to permit a charitable organization to pay or agree to pay for expenses in connection with a fund-raising activity more than 25% of its total gross income in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions.” See n. 2, supra. Having now considered the question left open in Schaumburg, however, we conclude that the waiver provision does not save the statute.
The Court of Appeals concluded that the exception in § 103D was “extremely narrow,” being confined to instances “where the 25% limitation would effectively prevent the charitable organization from raising contributions,” 294 Md., at 180, 448 A. 2d, at 946, and of no avail to an organization whose high fundraising costs were attributable to legitimate policy decisions about how to use its funds, rather than to inability to raise funds. Under the Court of Appeals’ interpretation, the Secretary has no discretion to determine that reasons other than financial necessity warrant a waiver. The statute does not help the charity whose solicitation costs are high because it chooses, as was stipulated here, see App. to Pet. for Cert. 39a, to disseminate information as a part of its fundraising. Thus, the organizations that were of primary concern to the Court in Schaumburg, those whose high costs were due to “ ‘information dissemination, discussion, and advocacy of public issues,”’ 444 U. S., at 635, quoting from Citizens for a Better Environment v. Schaumburg, 590 F. 2d 220, 225 (CA7 1978), remain barred by the statute from carrying on those protected First Amendment activities.
C
The Secretary urges that even though there may remain charities whose First Amendment activity is limited by the statute, we should not strike down the statute on its face because, with the waiver provision, it no longer is “substantially overbroad.” We are not persuaded.
“Substantial overbreadth” is a criterion the Court has invoked to avoid striking down a statute on its face simply because of the possibility that it might be applied in an unconstitutional manner. It is appropriate in cases where, despite some possibly impermissible application, the “ ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .' CSC v. Letter Carriers, 413 U. S. 548, 580-581 (1973).” Parker v. Levy, 417 U. S., at 760. See also New York v. Ferber, 458 U. S. 747, 770, n. 25 (1982). In such a case, the Court has required a litigant to demonstrate that the statute “as applied” to him is unconstitutional. Id., at 774.
This is not such a case. Here there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits. While there no doubt are organizations that have high fundraising costs not due to protected First Amendment activity and that, therefore, should not be heard to complain that their activities are prohibited, this statute cannot distinguish those organizations from charities that have high costs due to protected First Amendment activities. The flaw in the statute is not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud. That the statute in some of its applications actually prevents the misdirection of funds from the organization’s purported charitable goal is little more than fortuitous. It is equally likely that the statute will restrict First Amendment activity that results in high costs but is itself a part of the charity’s goal or that is simply attributable to the fact that the charity’s cause proves to be unpopular. On the other hand, if an organization indulges in fraud, there is nothing in the percentage limitation that prevents it from misdirecting funds. In either event, the percentage limitation, though restricting solicitation costs, will have done nothing to prevent fraud.
Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack. Schaumburg, 444 U. S., at 637; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978). See also Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N. Y., 447 U. S. 557, 565, n. 8 (1980); City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800, n. 19 (1984) (“[W]here the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack,” citing Erznoznik v. City of Jacksonville, 422 U. S. 205, 217 (1975)).
The possibility of a waiver may decrease the number of impermissible applications of the statute, but it does nothing to remedy the statute’s fundamental defect. We conclude that, regardless of the waiver provision, Schaumburg requires that the percentage limitation in the Maryland statute be rejected.
IV
Our conclusion is not altered by the presence of other distinctions the Secretary urges between this statute and the ordinance at issue in Schaumburg.
The Secretary points out, for example, that § 103D does not impose a prior restraint on protected activities. An organization may register as a charity and solicit funds without first demonstrating that it satisfies § 103D. The statute, it is said, regulates only after the fact. We are unmoved by the claimed distinction. As the Court of Appeals noted, several elements of the regulatory scheme suggest the possibility of a “before-the-fact” prohibition on solicitation. Section § 103D requires that every contract or agreement between a professional fundraiser and a charitable organization shall be filed with the Secretary of State prior to any solicitation. Under § 103F, no solicitation may begin until the Secretary “shall approve the registration” of a professional fundraiser counsel or professional solicitor. And the Secretary is to approve the professional fundraiser’s registration only if she finds that the application is in conformity with the requirements of the subtitle as well as the rules and regulations of the Secretary.
More important, whether the statute regulates before- or after-the-fact makes little difference in this case. Whether the charity is prevented from engaging in First Amendment activity by the lack of a solicitation permit or by the knowledge that its fundraising activity is illegal if it cannot satisfy the percentage limitation, the chill on the protected activity is the same. See Chaplinsky v. New Hampshire, 315 U. S. 568, 572, n. 3 (1942).
The Secretary also points out that § 103D restricts only fundraising expenses and not the multitude of other expenses that are not spent directly on the organization’s charitable purpose, and that the charity may elect whether to be bound by its fundraising percentage for the prior year or to apply the 25% limitation on a campaign-by-campaign basis. Those distinctions, however, mean only that the statute will not apply to as many charities as did the ordinance in Schaum-burg. They do nothing to alter the fact that significant fundraising activity protected by the First Amendment is barred by the percentage limitation.
Finally, the fact that the statute regulates all charitable fundraising, and not just door-to-door solicitation, does not remedy the fact that the statute promotes the State’s interest only peripherally. The distinction made in Schaumburg was between regulation aimed at fraud and regulation aimed at something else in the hope that it would sweep fraud in during the process. The statute’s aim is not improved by the fact that it fires at a number of targets.
We agree with the Court of Appeals of Maryland that §103D is unconstitutionally overbroad. The judgment of that court therefore is affirmed.
It is so ordered.
Effective July 1, 1984, the Maryland Legislature has revised its charitable organizations law. See 1984 Md. Laws, ch. 787. No changes are made in § 103D, but changes are made in the definitional section and in the registration requirement imposed on professional fundraisers. Those changes do not affect this case.
Section § 103D reads in full:
“(a) A charitable organization other than a charitable salvage organization may not pay or agree to pay as expenses in connection with any fund-raising activity a total amount in excess of 25 percent of the total gross income raised or received by reason of the fund-raising activity. The Secretary of State shall, by rule or regulation in accordance with the ‘standard of accounting and fiscal reporting for voluntary health and welfare organizations' provide for the reporting of actual cost, and of allocation of expenses, of a charitable organization into those which are in connection with a fund-raising activity and those which are not. The Secretary of State shall issue rules and regulations to permit a charitable organization to pay or agree to pay for expenses in connection with a fund-raising activity more than 25% of its total gross income in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions.
“The 25% limitation in this subsection shall not apply to compensation or expenses paid by a charitable organization to a professional fund-raiser counsel for conducting feasibility studies for the purpose of determining whether or not the charitable organization should undertake a fund-raising activity, such compensation or expenses paid for feasibility studies or preliminary planning not being considered to be expenses paid in connection with a fund-raising activity.
“(b) For purposes of this section, the total gross income raised or received shall be adjusted so as not to include contributions received equal to the actual cost to the charitable organization of (1) goods, food, entertainment, or drink sold or provided to the public, nor should these costs be included as fund-raising costs; (2) the actual postage paid to the United States Postal Service and printing expense in connection with the soliciting of contributions, nor should these costs be included as fund-raising costs.
“(c) Every contract or agreement between a professional fund-raiser counsel or a professional solicitor and a charitable organization shall be in writing, and a copy of it shall be filed with the Secretary of State within ten days after it is entered into and prior to any solicitations.”
Other related Maryland statutes require that a charity intending to solicit contributions within or without the State file a registration statement with the Secretary of State providing information about its purpose and its finances, § 103B, and that professional fundraisers register with and be approved by the Secretary, § 103F. Section 103L(a) subjects both the charitable organization and the professional fundraiser to criminal liability for wilfully violating the statutory requirements.
The court also rejected the Secretary’s claim that Munson could not question the validity of the statute because there had been no final administrative determination that the statute was applicable to Munson. The court concluded that Munson did not need to exhaust administrative remedies in order to attack the statute on its face. 294 Md., at 171, 448 A. 2d, at 941. The Secretary does not challenge that determination here.
The Court of Appeals concluded that Munson had suffered sufficient injury as a result of § 103D to have standing to challenge the statute. The Secretary does not dispute that determination. Nevertheless, because the “ease” or “controversy” requirement is jurisdictional here, we must satisfy ourselves that the requirements of Art. Ill are met. Doremus v. Board of Education, 342 U. S. 429, 434 (1952).
As the various formulations of the prudential-standing limitations illustrate, the second factor counseling against allowing a litigant to assert the rights of third parties is not completely separable from Art. Ill’s requirement that a plaintiff have a “sufficiently concrete interest in the outcome of [the] suit to make it a case or controversy.” Singleton v. Wulff, 428 U. S. 106, 112 (1976). The prudential limitations add to the constitutional min-ima a healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed, the claim not be an abstract, generalized grievance that the courts are neither well equipped nor well advised to adjudicate. See Warth v. Seldin, 422 U. S. 490, 500 (1975); Schlesinger v. Reservists To Stop the War, 418 U. S. 208, 217-222 (1974).
In the Circuit Court, Munson claimed that § 103D intruded upon its own First Amendment rights. Now, however, it focuses its argument solely on its ability to assert the First Amendment rights of Maryland charities. Because of our disposition of the Secretary's standing challenge, we have no occasion to address the extent to which Munson might assert its own First Amendment right to disseminate information as part of a charitable solicitation. It is clear that the fact that Munson is paid to disseminate information does not in itself render its activity unprotected. See New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964).
See also Bates v. State Bar of Arizona, 433 U. S. 350, 380 (1977) (“The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted”); Eisenstadt v. Baird, 405 U. S. 438, 445 (1972) (in determining whether a litigant should be able to assert third-party rights, a crucial factor is “the impact of the litigation on the third-party interests”); id., at 445, n. 5 (“Indeed, in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech. E. g., Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940). See United States v. Raines, 362 U. S. 17, 22 (1960)”).
The types of speech regulated by the Maryland statute clearly encompass the types of speech determined in Schaumburg to be entitled to First Amendment protection. The statute defines “solicit” as meaning “to request, directly or indirectly, money, credit, property, a credit card contribution ... or other financial assistance in any form on the plea or representation that the money, credit, property, a credit card contribution ... or other financial assistance will be used for a charitable purpose. It includes:
“(1) An oral or written request;
“(2) An announcement to the news media for further dissemination by it of an appeal or campaign seeking contributions from the public for one or more charitable purposes.
“(3) The distribution, circulation, posting, or publishing of any handbill, written advertisement, or other publication which, directly or by implication, seeks contributions by the public for one or more charitable purposes; and
“(4) The sale of, or offer or attempt to sell, any advertisement, advertising space, book card, tag, coupon, device, magazine, membership, subscription, ticket, admission, chance, merchandise, or other tangible item in connection with which (i) an appeal is made for contributions to one or more charitable purposes, or (ii) the name of a charitable organization is used or referred to as an inducement to make such a purchase, or (iii) a statement is made that the whole or any part of the proceeds from the sale is to be used for one or more charitable purposes. A solicitation is deemed to have taken place when the request is made, whether or not the person making it actually receives a contribution.” § 103A(i).
The Court noted, for instance, that the Village could punish fraud directly and could require disclosure of the finances of a charitable organization so that a member of the public could make an informed decision about whether to contribute. Schaumburg v. Citizens for a Better Environment, 444 U. S., at 637-638.
The Court also found little connection between the percentage limitation and the protection of public safety or residential privacy. Both goals were better furthered by provisions addressed directly to the asserted interest — such as a prohibition on the use of convicted felons as solicitors and a provision allowing homeowners to post signs barring solicitors from their property. Id., at 638-639.
The regulations make clear that public education activity is included in the solicitation costs regulated by the 25% limitation. Section 01.02.04.04A(3) of the Code of Maryland Regulations (1983) provides: “The expenses of public education materials and activities, which include an appeal, specific or implied, for financial support, shall be fully allocated to fund-raising expenses.”
In light of the clarity of the regulation and the absence of any indication by the State that the regulation is not consistent with the statute, we can only wonder at the basis for the dissent’s conclusion that § 103D(a) appears to call for a pro rata allocation between advocacy and fundraising expenses, with advocacy and education expenses exempted from the statute’s reach. The statute itself gives no indication that such an exemption is envisioned. It imposes a cap on “expenses in connection with any fund-raising activity” and includes within that activity “[t]he distribution, circulation, posting, or publishing of any handbill, written advertisement, or other publication which, directly or by implication, seeks contributions by the public for one or more charitable purposes.” See nn. 2 and 8, supra. And the State’s own highest court, interpreting the reach of § 103D, apparently found no basis for a presumption that advocacy and education expenses would be exempted. In any event, while the notion of a pro rata allocation sounds appealing, it ignores the “reality,” recognized by the Court in Schaumburg, that solicitation is intertwined with protected speech. See 444 U. S., at 632. Written materials, for example, no doubt serve both purposes. A public official would have to be charged with the responsibility of determining how expenses should be allocated, which publications should be licensed, and which restricted by the statute. See n. 12, infra.
The Secretary disagrees with the Court of Appeals’ interpretation of the scope of her discretion. She urges that she has discretion to grant a waiver “whenever necessary” and that she has done so “in an extremely liberal manner, with special care shown for the rights of advocacy groups.” Brief for Petitioner 33. We have no reason to second-guess the Court of Appeals’ interpretation of its own state law. But even if the Secretary were correct, and the waiver provision were broad enough to allow for exemptions “whenever necessary,” we would find the statute only slightly less troubling. Our cases make clear that a statute that requires such a “license” for the dissemination of ideas is inherently suspect. By placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech. See Thornhill v. Alabama, 310 U. S. 88, 97 (1940); Schneider v. State, 308 U. S. 147 (1939); Lovell v. Griffin, 303 U. S. 444, 451 (1938). See also Schaumburg, 444 U. S., at 640-643 (dissenting opinion). Under the Secretary’s interpretation, charities whose First Amendment rights are abridged by the fundraising limitation simply would have traded a direct prohibition on their activity for a licensing scheme that, if it is available to them at all, is available only at the unguided discretion of the Secretary of State. Particularly where the percentage limitation itself is so poorly suited to accomplishing the State’s goal, and where there are alternative means to serve the same purpose, there is little justification for straining to salvage the statute by invoking the possibility of official dispensation to engage in protected activity.
The dissenters suggest that striking down the Maryland statute on its face is a radical departure from the Court’s practice and that it is done only in overbreadth cases. Post, at 977-978. But as the Court recognized earlier this Term, legislation repeatedly has been struck down “on its face” because it was apparent that any application of the legislation “would create an unacceptable risk of the suppression of ideas.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984). See, e. g., Stromberg v. California, 283 U. S. 359 (1931); Lovell v. Griffin, 303 U. S. 444 (1938). See also New York v. Ferber, 458 U. S. 747, 768, n. 21 (1982); Freedman v. Maryland, 380 U. S. 51 (1965); Teitel Film Corp v. Cusack, 390 U. S. 139 (1968); Saia v. New York, 334 U. S. 558 (1948); Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State, 308 U. S. 147 (1939); Hague v. CIO, 307 U. S. 496, 516 (1939) (plurality opinion). In those cases a litigant has claimed that his own activity was protected by the First Amendment, and the Court has not limited itself to refining the law by preventing improper applications on a case-by-case basis. Facial challenges also have been upheld in contexts other than the First Amendment. See, e. g., Kolender v. Lawson, 461 U. S. 352 (1983); Smith v. Goguen, 415 U. S. 566 (1974) (vagueness challenge to criminal statute); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969)(due process challenge to garnishment statute); Lanzetta v. New Jersey, 306 U. S. 451 (1939) (vagueness challenge to criminal statute). In addition, though the dissenters are loath to admit it, the State’s highest court has had an opportunity to construe the statute to avoid constitutional infirmities and has been unable to do so. Cf. Erznoznik v. City of Jacksonville, 422 U. S. 205, 216 (1975).
The dissenters appear to overlook the fact that “overbreadth” is not used only to describe the doctrine that allows a litigant whose own conduct is unprotected to assert the rights of third parties to challenge a statute, even though “as applied” to him the statute would be constitutional. E. g., New York v. Ferber, supra. “Overbreadth” has also been used to describe a challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest. Schaumburg, 444 U. S., at 637-639; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978); Zwickler v. Koota, 389 U. S. 241, 250 (1967). Cf. City Council of Los Angeles v. Taxpayers for Vincent, supra (recognizing the validity of a facial challenge but suggesting that it should not be called “overbreadth”); Central Hudson Gas & Electric Corp v. Public Service Comm’n of N. Y., 447 U. S. 557, 565, n. 8 (1980) (same).
It was on the basis of the latter failing that the Court in Schaumburg struck down the Village ordinance as unconstitutional. Whether that challenge should be called “overbreadth” or simply a "facial” challenge, the point is that there is no reason to limit challenges to case-by-case “as applied” challenges when the statute on its face and therefore in all its applications falls short of constitutional demands. The dissenters’ efforts to chip away at the possibly impermissible applications of the statute do nothing to address the failing that the Schaumburg Court found dispos-itive — that a percentage limitation on fundraising unnecessarily restricts protected First Amendment activity.
The state legislature’s announced purpose in enacting the 1976 revision of the charitable organization provisions of Md. Ann. Code, Art. 41, was to “assure that contributions will be used to benefit the intended purpose.” Preamble to 1976 Md. Laws, ch. 679. The State’s justification therefore may be read as an interest in preventing mismanagement as well as fraud. The flaw in the statute, however, remains. The percentage limitation is too imprecise a tool to achieve that purpose.
The Secretary’s own records illustrate the tenuous connection between low fundraising costs and a valid charitable endeavor. Between October 14, 1980, and June 29, 1982, the Secretary apparently granted 13 of 16 applications for exemption from the 26% limitation. The lowest one contemplated fundraising costs of 48% of receipts. Five were between 70% and 77.1%. Another five were between 80% and 85%. Five of the applications granted were from lodges of the FOP; their solicitors were other than Munson. Exhibits to Brief for Petitioner A.6.
The dissenters’ suggestion that, because the Maryland statute regulates only the economic relationship between charities and professional fundraisers, it is not a direct restriction on the charities’ First Amendment activity is perplexing. Post, at 978-980. Any restriction on the amount of money a charity can pay to a third party as a fundraising expense could be labeled “economic regulation.” The fact that paid solicitors are used to disseminate information did not alter the Schaumburg Court’s conclusion that a limitation on the amount a charity can spend in fundraising activity is a direct restriction on the charity’s First Amendment rights. See 444 U. S., at 635-636. Whatever the State’s purpose in enacting the statute, the fact remains that the percentage limitation is a direct restriction on the amount of money a charity can spend on fundraising activity.
For similar reasons, it is the dissent that “simply misses the point” when it urges that there is an element of “fraud” in a professional fundraiser’s soliciting money for a charity if a high proportion of those funds are expended in fundraising. Post, at 980, and n. 2. The point of the Schaumburg Court’s conclusion that the percentage limitation was not an accurate measure of fraud was that the charity’s “purpose” may include public education. It is no more fraudulent for a charity to pay a professional fundraiser to engage in legitimate public educational activity than it is for the charity to engage in that activity itself. And concerns about unscrupulous professional fundraisers, like concerns about fraudulent charities, can and are accommodated directly, through disclosure and registration requirements and penalties for fraudulent conduct.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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116
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CITY OF MESQUITE v. ALADDIN’S CASTLE, INC.
No. 80-1577.
Argued November 10, 1981
Decided February 23, 1982
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. White, J., post, p. 296, and Powell, J., post, p. 297, filed opinions concurring in part and dissenting in part.
Elland Archer argued the cause and filed briefs for appellant.
Philip W. Tone argued the cause for appellee. With him on the brief were Louis P. Bickel, Thomas L. Case, Don R. Sampen, and Christopher L. Varner.
Briefs of amici curiae urging affirmance were filed by Lawrence Gunnels, James A. Klenk, and Rufus King for the Amusement Device Manufacturers Association; and by Philip F. Herrick for the Amusement and Music Operators Association, Inc.
Robert H. Bork and David E. Springer filed a brief for Atari, Inc., as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The United States Court of Appeals for the Fifth Circuit declared unconstitutional two sections of a licensing ordinance governing coin-operated amusement establishments in the city of Mesquite, Texas. Section 6 of Ordinance 1353, which directs the Chief of Police to consider whether a license applicant has any “connections with criminal elements,” was held to be unconstitutionally vague. Section 5, which prohibits a licensee from allowing children under 17 years of age to operate the amusement devices unless accompanied by a parent or legal guardian, was held to be without a rational basis. The first holding rests solely on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court of Appeals stated that its second holding rested on two provisions of the Texas Constitution as well as the Fourteenth Amendment to the Federal Constitution. Because Congress has limited our jurisdiction to review questions of state law, and because there is ambiguity in the Court of Appeals’ second holding, we conclude that a remand for clarification of that holding is necessary. There is, however, no impediment to our review of the first holding.
On April 5, 1976, to accommodate the proposal of Aladdin’s Castle, Inc. (Aladdin), to open an amusement center in a shopping mall, the city exempted from the prohibition against operation of amusement devices by unattended children certain amusement centers, the features of which were defined in terms of Aladdin’s rules, as long as children under the age of seven were accompanied by an adult. Thereafter, Aladdin entered into a long-term lease and made other arrangements to open a center in the mall. In August, however, its application for a license was refused because the Chief of Police had concluded that Aladdin’s parent corporation was connected with criminal elements. Aladdin then brought suit in a Texas state court and obtained an injunction requiring the city to issue it a license forthwith. The Texas court found that neither Aladdin nor its parent corporation had any connection with criminal elements and that#he vagueness in the ordinance contravened both the Texas and the Federal Constitutions.
On February 7, 1977, less than a month after the city had complied with the state-court injunction by issuing the license to Aladdin, the city adopted a new ordinance repealing Aladdin’s exemption, thereby reinstating the 17-year age requirement, and defining the term “connections with criminal elements” in some detail. Aladdin then commenced this action in the United States District Court for the Northern District of Texas, praying for an injunction against enforcement of the new ordinance. After a trial, the District Court held that the language “connections with criminal elements,” even as defined, was unconstitutionally vague, but the District Court upheld the age restriction in the ordinance. As already noted, the Court of Appeals affirmed the former holding and reversed the latter.
Invoking our appellate jurisdiction under 28 U. S. C. § 1254(2), the city now asks us to reverse the judgment of the Court of Appeals. After we noted probable jurisdiction, 451 U. S. 981, Aladdin advised us that the ordinance reviewed by the Court of Appeals had been further amended in December 1977 by eliminating the phrase “connections with criminal elements.” The age restriction, however, was retained.
I
A question of mootness is raised by the revision of the ordinance that became effective while the case was pending in the Court of Appeals. When that court decided that the term “connections with criminal elements” was unconstitutionally vague, that language was no longer a part of the ordinance. Arguably, if the court had been fully advised, it would have regarded the vagueness issue as moot. It is clear to us, however, that it was under no duty to do so.
It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. In this case the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated. The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court’s judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding.
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U. S. 104, 108 (emphasis added). We may assume that the definition of “connections with criminal elements” in the city’s ordinance is so vague that a defendant could not be convicted of the offense of having such a connection; we may even assume, without deciding, that such a standard is also too vague to support the denial of an application for a license to operate an amusement center. These assumptions are not sufficient, however, to support a holding that this ordinance is invalid.
After receiving recommendations from the Chief of Police, the Chief Building Inspector, and the City Planner, the City Manager decides whether to approve the application for a license; if he disapproves, he must note his reasons in writing. The applicant may appeal to the City Council. If the City Manager disapproved the application because of the Chief of Police’s adverse recommendation as to the applicant’s character, then the applicant must show to the City Council that “he or it is of good character as a law abiding citizen,” which is defined in the ordinance to “mean substantially that standard employed by the Supreme Court of the State of Texas in the licensing of attorneys as set forth in [the Texas statutes].” § 9 of Ordinance 1353, App. to Juris. Statement 13. An applicant may further appeal to the state district court. It is clear from this summary that the phrase “connections with criminal elements,” as used in this ordinance, is not the standard for approval or disapproval of the application.
The applicant’s possible connection with criminal elements is merely a subject that the ordinance directs the Chief of Police to investigate before he makes a recommendation to the City Manager either to grant or to deny a pending application. The Federal Constitution does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make investigations and recommendations. There would be no constitutional objection to an ordinance that merely required an administrative official to review “all relevant information” or “to make such investigation as he deems appropriate” before formulating a recommendation. The judgment of the Court of Appeals was therefore incorrect insofar as it held that the directive to the Chief of Police is unconstitutionally vague.
II
The Court of Appeals stated that its conclusion that the age requirement in the ordinance is invalid rested on its interpretation of the Texas Constitution as well as the Federal Constitution:
“We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law.” 630 F. 2d 1029, 1038-1039 (1980) (footnotes omitted).
In the omitted footnotes the court quoted two provisions of the Texas Constitution that are similar, but by no means identical, to parts of the Federal Constitution.
Because our jurisdiction of this appeal is based on 28 U. S. C. §1254(2), we are precluded from reviewing the Court of Appeals’ interpretation of the Texas Constitution. For the federal statute provides:
“Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
“(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certio-rari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented . . . .”
If the Texas Constitution provides an independent ground for the Court of Appeals’ judgment, our possible disagreement with its exposition of federal law would not provide a sufficient basis for reversing its judgment. If that be so, we should simply dismiss the appeal insofar as the city seeks review of the invalidation of the age requirement. Cf. United States v. Hastings, 296 U. S. 188, 193.
The city contends, however, that the Court of Appeals did not place independent reliance on Texas law but merely treated the Texas constitutional protections as congruent with the corresponding federal provisions. Under this reading of the Court of Appeals’ opinion, our correction of any federal error automatically would result in a revision of the Court of Appeals’ interpretation of the Texas Constitution. Instead of providing independent support for the judgment below, the Texas law, as understood by the Court of Appeals, would be dependent on our reading of federal law. Although the city’s contention derives support from the Court of Appeals’ greater reliance on federal precedents than on Texas cases, we nevertheless decline, for the reasons that follow, to decide the federal constitutional question now.
It is first noteworthy that the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions. As a number of recent State Supreme Court decisions demonstrate, a state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977), and cases cited therein. Because learned members of the Texas Bar sit on the Court of Appeals for the Fifth Circuit, and because that court confronts questions of Texas law in the regular course of its judicial business, that court is in a better position than are we to recognize any special nuances of state law. The fact that the Court of Appeals cited only four Texas cases is an insufficient basis for concluding that it did not make an independent analysis of Texas law.
Second, it is important to take note of the Court of Appeals’ interpretation of the Texas “requirement of legislative rationality.” That interpretation seems to adopt a standard requiring that a legislative classification rests “ ‘ “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . 630 F. 2d, at 1039. This formulation is derived from this Court’s opinion in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415. But it is unclear whether this Court would apply the Royster Guano standard to the present case. See United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166; Craig v. Boren, 429 U. S. 190. Therefore, it is surely not evident that the Texas standard and the federal standard are congruent.
Finally, and of greater importance, is this Court’s policy of avoiding the unnecessary adjudication of federal constitutional questions. As we recently have noted, see Minnick v. California Dept. of Corrections, 452 U. S. 105, this self-imposed limitation on the exercise of this Court’s jurisdiction has an importance to the institution that transcends the significance of particular controversies. No reason for hasty decision of the constitutional question presented by this case has been advanced. If Texas law provides independent support for the Court of Appeals’ judgment, there is no need for decision of the federal issue. On the other hand, if the city is correct in suggesting that the Court of Appeals’ interpretation of state law is dependent on its federal analysis, that court can so advise us and we can then discharge our responsibilities free of concern that we may be unnecessarily reaching out to decide a novel constitutional question.
The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
630 F. 2d 1029 (1980).
Section 6 of Ordinance 1353 of the Code of the city of Mesquite provided in pertinent part:
“Any person desiring to obtain a license for a coin-operated amusement establishment shall apply to the City Secretary by original and five (5) copies, one of which shall be routed to the City Manager, Chief of Police, Chief Building Inspector and City Planner, for review.
“Upon approval by each of the parties and payment of the license fee, the City Secretary shall issue a license for such establishment, which shall be valid for one (1) year and shall be non-transferable.
“The Chief of Police shall make his recommendation based upon his investigation of the applicant’s character and conduct as a law abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude and connections with criminal elements, taking into consideration the attraction by such establishments of those of tender years.
“The Chief Building Inspector and City Planner shall determine compliance with applicable building and zoning ordinances of the City.
“When the City Manager has received the recommendations from the Chief of Police, Chief Building Inspector and City Planner, he shall review such application together with such recommendations as may be furnished and shall approve such application or disapprove same with written notation of his reasons for disapproval.
“Upon disapproval, the applicant may make such corrections as noted and request approval, request withdrawal and refund of license fee, or give notice of appeal from the City Manager’s decision.
“In the event of appeal from the City Manager’s decision the applicant shall give written notice of his intention to appeal within ten (10) days of notice of the City Manager’s decision. Such appeal shall be heard by the City Council within thirty (30) days from date of such notice unless a later date is agreed upon by applicant.
“Upon appeal to the City Council of the City Manager’s decision based upon an adverse recommendation by the Chief of Police as to applicant’s character, the applicant shall have the same burden as prescribed in Article 305, V. A. C. S. to show to the Council that he or it is of good character as a law abiding citizen to such extent that a license should be issued.
“Upon hearing the Council may reverse the decision of the City Manager in whole or in part or may affirm such decision.
“An applicant may appeal such decision to the District Court within thirty (30) days but such appeal shall be upon the substantial evidence rule.
“For violation of any of the requirements of this ordinance the City Manager may upon three (3) days notice of Licensee revoke the license granted hereunder. The same rights of appeal shall exist upon revocation as upon disapproval of the original application.” App. to Juris. Statement 9-10.
Section 5 provides:
“It shall be unlawful for any owner, operator or displayer of coin-operated amusement machines to allow any person under the age of seventeen (17) years to play or operate a coin-operated amusement machine unless such minor is accompanied by a parent or legal guardian.” Id., at 8.
See Ordinance 1310.
The judgment of the trial court was affirmed by the Texas Court of Civil Appeals, 559 S. W. 2d 92 (1977), and the Texas Supreme Court refused an application for a writ of error, 570 S. W. 2d 377 (1978), finding no reversible error in the conclusion that the denial of the license was not supported by substantial evidence, but declining to reach the vagueness question.
Section 9 of Ordinance 1353 defined terms used in § 6 of the ordinance (quoted in n. 2, supra), which had been reenacted without change. Section 9 provided in pertinent part:
“Connection With Criminal Elements is defined as that state of affairs wherein an applicant, or an officer of, principal stockholder of, person having a substantial interest in or management responsibility for, a corporation or other organization wherein such organization is the applicant, directly or as parent, subsidiary or affiliate, has such association, acquaintance, or business association with parties having been convicted of a felony or crime involving moral turpitude or are otherwise involved in unlawful activities, whether convicted or not, to the extent that the fencing of stolen merchandise or illegally obtained funds, the procuring of prostitutes, the transfer or sale of narcotics or illegal substances is made more feasible or likely or the protection of those of tender years from such unwholesome influences are rendered more difficult.
“A determination by the United States Department of Justice that a party is a member of the ‘mafia’ or ‘Cosa Nostro’ family or that such party is engaged in or affiliated with a nationwide crime organization, whether formally or informally, shall be prima facia evidence, so far as the issuance of a license hereunder, that such person has ‘connections with criminal elements’ and constitute, within the meaning of this ordinance, ‘criminal elements’.” App. to Juris. Statement 12-13.
434 F. Supp. 473 (1977), aff d in part, rev’d and remanded in part, 630 F. 2d 1029 (1980).
See Ordinance 1410, App. to Brief for Appellee Al-All.
If it becomes apparent that a case has become moot while an appeal is pending, the judgment below normally is vacated with directions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U. S. 36.
"The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant. . . free to return to his old ways.’ United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); see, e. g., United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. ... Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. [345 U. S.] at 633-636. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it.” United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 203-204.
Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20.
The Court of Appeals summarized the relevant authorities as follows:
“A law is void for vagueness if persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application . . . Smith v. Goguen, 415 U. S. 566, 572 n. 8, quoting Connally v. General Construction Co., 269 U. S. 385, 391. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960). The offense to due process lies in both the nature and consequences of vagueness. First, vague laws do not give individuals fair notice of the conduct proscribed. Papachristou v. City of Jacksonville, 405 U. S. 156, 162. Accord Grayned v. City of Rockford, 408 U. S. 104, 108 & n. 3. Second, vague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possiblity of arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U. S. at 108-09 & n. 4; Papachristou v. City of Jacksonville, 405 U. S. at 168-70. Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime. We remain ‘a government of laws, and not of men,’ Marbury v. Madison, 5 U. S. (1 Cranch.) 137, 163, only so long as our laws remain clear.” 630 F. 2d, at 1037 (citations abbreviated).
The ordinance is quoted in pertinent part in n. 2, supra.
Article 1, § 19, of the Texas Constitution provides:
“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
Article 1, § 3, of the Texas Constitution provides in pertinent part:
“All free men, when they form a social compact, have equal rights . . . .”
“Review of a judgment which we cannot disturb, because it rests adequately upon a basis not subject to our examination, would be an anomaly.”
If this contention is correct, we may review the Court of Appeals’ interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568; Mental Hygiene Dept. v. Kirchner, 380 U. S. 194, 198; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5; Minnesota v. National Tea Co., 309 U. S. 551, 554-555; State Tax Comm’n v. Van Cott, 306 U. S. 511, 514.
In a section of its opinion entitled “Rational Basis,” the Court of Appeals twice set forth a rational-basis test. See 630 F. 2d, at 1039. In the first paragraph, the court stated that “[t]he test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose,” and cited both federal and state decisions in support of that formulation. In the second paragraph, the court stated that “[t]he test requires that legislation constitute a means that is ‘reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . quoting from a decision of the Texas Supreme Court, Texas Woman’s University v. Chayklintaste, 530 S. W. 2d 927, 928 (1975), which in turn quoted from Reed v. Reed, 404 U. S. 71, 76. A number of this Court’s decisions were cited as in accord with this formulation. Although we cannot be sure, we might reasonably infer that the second formulation of the test represents the Court of Appeals’ interpretation of Texas law.
Our dissenting Brethren suggest that our “view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law,” post, at 300 (Powell, J., concurring in part and dissenting in part). We are unwilling to assume that any federal judge would discharge his judicial responsibilities in that fashion. In any event, in this case we merely hold that the Court of Appeals must explain the basis for its conclusion, if there be one, that the state ground is adequate and independent of the federal ground.
Cf. Mental Hygiene Dept. v. Kirchner, supra, at 196-197 (footnotes omitted):
“The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it -is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co., 309 U. S. 551.”
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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] |
[
116
] |
DOTHARD, DIRECTOR, DEPARTMENT OF PUBLIC SAFETY OF ALABAMA, et al. v. RAWLINSON et al.
No. 76-422.
Argued April 19, 1977
Decided June 27, 1977
Stewart, J., delivered the opinion of the Court, in which Powell and Stevens, JJ., joined; in all but Part II of which Burger, C. J., and Blackmun and Rehnquist, JJ., joined; and in all but Part III of which Brennan and Marshall, JJ., joined. Rehnquist, J., filed an opinion concurring in the result and concurring in part, in which Burger, C. J., and Blackmun, J., joined, post, p. 337. Marshall, J., filed an opinion concurring in part and dissenting in part, in which Brennan, J., joined, post, p. 340.. White, J., filed a dissenting opinion, post, p. 347.
G. Daniel Evans, Assistant Attorney General of Alabama, argued the cause for appellants pro hac vice. With him on the briefs were William J. Baxley, Attorney General, and Walter S. Turner and Eric A. Bowen, Assistant Attorneys General.
Pamela S. Horowitz argued the cause for appellees pro hac vice. With her on the brief was Morris S. Dees.
Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General, Stanford N. Grushin, Chief Assistant Attorney General, Warren J. Abbott, Assistant Attorney General, and Hadassa K. Gilbert, Deputy Attorney General, for the State of California; by Slade Gorton, Attorney General of Washington, Morton M. Tytler, Senior "Assistant Attorney General, and Anne L. Ellington, Assistant Attorney General, for the Washington State Human Rights Comm’n; and by Ruth Bader Ginsburg, Marjorie Mazen Smith, and Joel Gora for the American Civil Liberties Union.
J. Albert Woll, Laurence Gold, and Judith Lichtman filed a brief for the Women’s Legal Defense Fund et al. as amici curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
Appellee Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guard, called in Alabama a "correctional counselor.” After her application was rejected, she brought this class suit under Title YII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. V), and under 42 U. S. C. § 1983, alleging that she had been denied employment because of her sex in violation of federal law. A three-judge Federal District Court for the Middle District of Alabama decided in her favor. Mieth v. Dothard, 418 F. Supp. 1169. We noted probable jurisdiction of this appeal from the District Court’s judgment. 429 U. S. 976.
I
At the time she applied for a position as correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 120-pound weight requirement established by an Alabama statute. The statute also establishes a height minimum of 5 feet 2 inches.
After her application was rejected because of her weight, Rawlinson filed a charge with the Equal Employment Opportunity Commission, and ultimately received a right-to-sue letter. She then filed a complaint in the District Court on behalf of herself and other similarly situated women, challenging the statutory height and weight minima as violative of Title VII and the Equal Protection Clause of the Fourteenth Amendment. A three-judge court was convened. While the suit was pending, the Alabama Board of Corrections adopted Administrative Regulation 204, establishing gender criteria for assigning correctional counselors to maximum-security institutions for “contact positions,” that is, positions requiring continual close physical proximity to inmates of the institution. Rawlinson amended her class-action complaint by adding a challenge to Regulation 204 as also violative of Title VII and the Fourteenth Amendment.
Like most correctional facilities in the United States, Alabama’s prisons are segregated on the basis of sex. Currently the Alabama Board of Corrections operates four major all-male penitentiaries — Holman Prison, Kilby Corrections Facility, G. K. Fountain Correction Center, and Draper Correctional Center. The Board also operates the Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the Number Four Honor Camp, the State Cattle Ranch, and nine Work Release Centers, one of which is for women. The Julia Tutwiler Prison for Women and the four male penitentiaries are maximum-security institutions. Their inmate living quarters are for the most part large dormitories, with communal showers and toilets that are open to the dormitories and hallways. The Draper and Fountain penitentiaries carry on extensive farming operations, making necessary a large number of strip searches for contraband when prisoners re-enter the prison buildings.
A correctional counselor’s primary duty within these institutions is to maintain security and control of the inmates by continually supervising and observing their activities. To be eligible for consideration as a correctional counselor, an applicant must possess a valid Alabama driver’s license, have a high school education or its equivalent, be free from physical defects, be between the ages of 20% years and 45 years at the time of appointment, and fall between the minimum height and weight requirements of 5 feet 2 inches, and 120 pounds, and the maximum of 6 feet 10 inches, and 300 pounds. Appointment is by merit, with a grade assigned each applicant based on experience and education. No written examination is given.
At the time this litigation was in the District Court, the Board of Corrections employed a total of 435 people in various correctional counselor positions, 56 of whom were women. Of those 56 women, 21 were employed at the Julia Tutwiler Prison for Women, 13 were employed in noncontact positions at the four male maximum-security institutions, and the remaining 22 were employed at the other institutions operated by the Alabama Board of Corrections. Because most of Alabama’s prisoners are held at the four maximum-security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the “contact” classification. Thus, even though meeting the statutory height and weight requirements, women applicants could under Regulation 204 compete equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system.
II
In enacting Title VII, Congress required “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U. S. 424, 431. The District Court found that the minimum statutory height and weight requirements that applicants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. The appellants assert that the District Court erred both in finding that the height and weight standards discriminate against women, and in its refusal to find that, even if they do, these standards are justified as “job related.”
A
The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive. It is asserted, rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., supra, and Albemarle Paper Co. v. Moody, 422 U. S. 405, with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment, and those cases guide our approach here.
Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet “the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.” Griggs v. Duke Power Co., supra, at 432. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Albemarle Paper Co. v. Moody, supra, at 425, quoting McDonnell Douglas Corp. v. Green, 411 U. S. 792, 801.
Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the 5'2"-requirement would operate to exclude 33.29% of the women in the United States between the ages of 18-79, while excluding only 1.28% of men between the same ages. The 120-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined, Alabama’s statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population. Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination.
The appellants argue that a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case. They point in particular to Rawlinson’s failure to adduce comparative statistics concerning actual applicants for correctional counselor positions in Alabama. There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants. See Griggs v. Duke Power Co., supra, at 430. The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory. See Teamsters v. United States, 431 U. S. 324, 365-367. A potential applicant could easily determine her height and weight and conclude that to make an application would be futile. Moreover, reliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population.
For these reasons, we cannot say that the District Court was wrong in holding that the statutory height and weight standards had a discriminatory impact on women applicants. The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement’s grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. In this case no such effort was made.
B
We turn, therefore, to the appellants’ argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the District Court, however, the appellants produced no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the statutory standards.
If the job-related quality that the appellants identify is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly. Such a test, fairly administered, would fully satisfy the standards of Title VII because it would be one that “measure [s] the person for the job and not the person in the abstract.” Griggs v. Duke Power Co., 401 U. S., at 436. But nothing in the present record even approaches such a measurement.
For the reasons we have discussed, the District Court was not in error in holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents.
Ill
Unlike the statutory height and weight requirements, Regulation 204 explicitly discriminates against women on the basis of their sex. In defense of this overt discrimination, the appellants rely on § 703 (e) of Title VII, 42 U. S. C. §2000e-2(e), which permits sex-based discrimination “in those certain instances where . . . sex ... is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
The District Court rejected the bona-fide-occupational-qualification (bfoq) defense, relying on the virtually uniform view of the federal courts that § 703 (e) provides only the narrowest of exceptions to the general rule requiring equality of employment opportunities. This view has been variously formulated. In Diaz v. Pan American World Airways, 442 F. 2d 385, 388, the Court of Appeals for the Fifth Circuit held that “discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.” (Emphasis in original.) In an earlier case, Weeks v. Southern Bell Tel. & Tel. Co., 408 F. 2d 228, 235, the same court said that an employer could rely on the bfoq exception only by proving “that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.” See also Phillips v. Martin Marietta Corp., 400 U. S. 542. But whatever the verbal formulation, the federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes, and the District Court in the present case held in effect that Regulation 204 is based on just such stereotypical assumptions.
We are persuaded — by the restrictive language of § 703 (e), the relevant legislative history, and the consistent interpretation of the Equal Employment Opportunity Commission — that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex. In the particular factual circumstances of this case, however, ,we conclude that the District Court erred in rejecting the State’s contention that Regulation 204 falls within the narrow ambit of the bfoq exception.
The environment in Alabama’s penitentiaries is a peculiarly inhospitable one for human beings of whatever sex. Indeed, a Federal District Court has held that the conditions of confinement in the prisons of the State, characterized by “rampant violence” and a “jungle atmosphere,” are constitutionally intolerable. Pugh v. Locke, 406 F. Supp. 318, 325 (MD Ala.). The record in the present case shows that because of inadequate staff and facilities, no attempt is made in the four maximum-security male penitentiaries to classify or segregate" inmates according to their offense or level of dangerousness — a procedure that, according to expert testimony, is essential to effective penological administration. Consequently, the estimated 20% of the male prisoners who are sex offenders are scattered throughout the penitentiaries' dormitory facilities.
In this environment of violence and disorganization, it would be an oversimplification to characterize Regulation 204 as an exercise in “romantic paternalism.” Cf. Frontiero v. Richardson, 411 U. S. 677, 684. In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself. More is at stake in this case, however, than an individual woman’s decision to weigh and accept the risks of employment in a “contact” position in a maximum-security male prison.
The essence of a correctional counselor’s job is to maintain prison security. A woman’s relative ability to maintain order in a male, maximum-security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women. In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.
Appellee Rawlinson’s own expert testified that dormitory housing for aggressive inmates poses a greater security problem than single-cell lockups, and further testified that it would be unwise to use women as guards in a prison where even 10% of the inmates had been convicted of sex crimes and were not segregated from the other prisoners. The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault but also to the basic control of the penitentiary and protection of its inmates and the other security personnel. The employee’s very womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.
There was substantial testimony from experts on both sides of this litigation that the use of women as guards in "contact” positions under the existing conditions in Alabama maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona fide occupational qualification for the job of correctional counselor in a “contact” position in an Alabama male maximum-security penitentiary.
The judgment is accordingly affirmed in part and reversed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
The appellants sought to raise for the first time in their brief on the merits the claim that Congress acted unconstitutionally in extending Title VII’s coverage to state governments. See the Equal Employment Opportunity Act of 1972, 86 Stat. 103, effective date, Mar. 24, 1972, 42 U. S. C. §§2000e (a), (b), (f), (h) (1970 ed., Supp. V). Not having been raised in the District Court, that issue is not before us. See Adickes v. Kress & Co., 398 U. S. 144, 147 n. 2; Irvine v. California, 347 U. S. 128, 129.
The statute establishes minimum physical standards for all law enforcement officers. In pertinent part, it provides:
“(d) Physical qualifications.- — The applicant shall be not less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds and shall be certified by a licensed physician designated as satisfactory by the appointing authority as in good health and physically fit for the performance of his duties as a law-enforcement officer. The commission may for good cause shown permit variances from the physical qualifications prescribed in this subdivision.” Ala. Code, Tit. 55, §373 (109) (Supp. 1973).
See 42 U. S. C. § 2000^5 (f) (1970 ed., Supp. V).
A second plaintiff named in the complaint was Brenda Mieth, who, on behalf of herself and others similarly situated, challenged the 5'9" height and 160-pound weight requirements for the position of Alabama state trooper as violative of the Equal Protection Clause. The District Court upheld her challenge, and the defendants did not appeal from that aspect of the District Court’s judgment.
Although a single-judge District Court could have considered Rawlin-son’s Title YII claims, her coplaintiff’s suit rested entirely on the Constitution. See n. 4, supra. Given the similarity of the underlying issues in the two cases, it was not inappropriate to convene a three-judge court to deal with the constitutional and statutory issues presented in the complaint. When a properly convened three-judge court enjoins the operation of a state law on federal statutory grounds, an appeal to this Court from that judgment lies under 28 U. S. C. § 1253. See Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423; Philbrook v. Glodgett, 421 U. S. 707.
Administrative Regulation 204 provides in pertinent part as follows: “I. GENERAL
“l.The purpose of this regulation is to establish policy and procedure for identifying and designating institutional Correctional Counselor I positions which require selective certification for appointment of either male or female employees from State Personnel Department registers.
"II. POLICY
“4. All Correctional Counselor I positions will be evaluated to identify and designate those which require selective certification for appointment of either a male or female employee. Such positions must fall within a bona fide occupational qualification stated in Title 4[2]-2000c of the United States Code ....
“5. Selective certification from the Correctional Counselor Trainee register will be requested of the State Personnel Department whenever a position is being filled which has been designated for either a male or female employee only.
“HI. PROCEDURE
“8. Institutional Wardens and Directors will identify each institutional Correctional Counselor I position which they feel requires selective certification and will request that it be so designated in writing to the Associate Commissioner for Administration for his review, evaluation, and submission to the Commissioner for final decision.
“9. The request will contain the exact duties and responsibilities of the position and will utilize and identify the following criteria to establish that selective certification is necessary;
“A. That the presence of the opposite sex would cause disruption of the orderly running and security of the institution.
“B. That the position would require contact with the inmates of the opposite sex without the presence of others.
“C. That the position would require patroling dormitories, restrooms, or showers while in use, frequently, during the day or night.
“D. That the position would require search of inmates of the opposite sex on a regular basis.
“E. That the position would require that the Correctional Counselor Trainee not be armed with a firearm.
“10. All institutional Correctional Counselor I positions which are not approved for selective certification will be filled from Correctional Counselor Trainee registers without regard to sex.”
Although Regulation 204 is not limited on its face to contact positions in maximum-security institutions, the District Court found that it did not “preclude . . . [women] from serving in contact positions in the all-male institutions other than the penitentiaries.” 418 F. Supp., at 1176. Appellants similarly defended the regulation as applying only to maximum-security facilities.
Note, The Sexual Segregation of American Prisons, 82 Yale L. J. 1229 (1973).
The official job description for a correctional counselor position emphasizes counseling as well as security duties; the District Court found: “ [Correctional counselors are persons who are commonly referred to as prison guards. Their duties primarily involve security rather than counseling.” 418 F. Supp. 1169, 1175.
At the time of the trial the Board of Corrections had not yet classified all of its correctional counselor positions in the maximum-security institutions according to the criteria established in Regulation 204; consequently evidence of the exact number of “male only” jobs within the prison system was not available.
Section 703(a) of Title VII, 42 U. S. C. §2000e-2 (a) (1970 ed. and Supp. V), provides:
“(a) Employer practices. It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
See Teamsters v. United States, 431 U. S. 324, 335-336, n. 15.
Affirmatively stated, approximately 99.76% of the men and 58.87% of the women meet both these physical qualifications. From the separate statistics on height and weight of males it would appear that after adding the two together and allowing for some overlap the result would be to exclude between 2.35% and 3.63% of males from meeting Alabama’s statutory height and weight minima. None of the parties has challenged the accuracy of the District Court’s computations on this score, however, and the discrepancy is in any event insignificant in fight of the gross disparity between the female and male exclusions. Even under revised computations the disparity would greatly exceed the 34% to 12% disparity that served to invalidate the high school diploma requirement in the Griggs case. 401 U. S., at 430.
The height and weight statute contains a waiver provision that the appellants urge saves it from attack under Title VII. See n. 2, supra. The District Court noted that a valid waiver provision might indeed have that effect, but found that applicants were not informed of the waiver provision, and that the Board of Corrections had never requested a waiver from the Alabama Peace Officers’ Standards and Training Commission. The court therefore correctly concluded that the waiver provision as administered failed to overcome the discriminatory effect of the statute’s basic provisions.
In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n. 1, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H. R. Rep. No. 92-238, p. 17 (1971); S. Rep. No. 92-415, p. 10 (1971). See also Schaeffer v. San Diego Yellow Cabs, 462 F. 2d 1002 (CA9). Thus for both private and public employers, “[t]he touchstone is business necessity,” Griggs, 401 U. S., at 431; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
Cf. EEOC Guidelines on Employee Selection Procedures, 29 CFR § 1607 (1976). See also Washington v. Davis, 426 U. S. 229, 246-247; Albemarle Paper Co. v. Moody, 422 U. S. 405; Officers for Justice v. Civil Service Comm’n, 395 F. Supp. 378 (ND Cal.).
By its terms Regulation 204 applies to contact positions in both male and female institutions. See n. 6, supra. The District Court found, however, that “Regulation 204 is the administrative means by which the [Board of Corrections’] policy of not hiring women as correctional counselors in contact positions in all-male penitentiaries has been implemented.” 418 F. Supp., at 1176. The Regulation excludes women from consideration for approximately 75% of the available correctional counselor jobs in the Alabama prison system.
See, e. g., Gillin v. Federal Paper Board Co., 479 F. 2d 97 (CA2); Jurinko v. Edwin L. Wiegand Co., 477 F. 2d 1038 (CA3); Rosenfeld v. Southern Pacific Co., 444 F. 2d 1219 (CA9); Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (CA7); Meadows v. Ford Motor Co., 62 F. R. D. 98 (WD Ky.), modified on other grounds, 510 F. 2d 939 (CA6). See also Jones Metal Products Co. v. Walker, 29 Ohio St. 2d 173, 281 N. E. 2d 1; EEOC Guidelines on Discrimination Because of Sex, 29 CFR § 1604 (1976).
See Interpretative Memorandum of Senators Clark and Case, 110 Cong. Rec. 7213 (1964).
The EEOC issued guidelines on sex discrimination in 1965 reflecting its position that “the bona fide occupational qualification as to sex should be interpreted narrowly.” 29 CFR § 1604.2 (a). It has adhered to that principle consistently, and its construction of the statute can accordingly be given weight. See Griggs v. Duke Power Co., 401 U. S., at 434; McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 279-280.
In the case of a state employer, the bfoq exception would have to be interpreted at the very least so as to conform to the Equal Protection Clause of the Fourteenth Amendment. The parties do not suggest, however, that the Equal Protection Clause requires more rigorous scrutiny of a State’s sexually discriminatory employment policy than does Title VII. There is thus no occasion to give independent consideration to the District Court’s ruling that Regulation 204 violates the Fourteenth Amendment as well as Title VII.
See, e. g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F. 2d 228, 232-236 (CA5); Bowe v. Colgate-Palmolive Co., supra, at 717-718; Rosenfeld v. Southern Pacific Co., supra.
The record contains evidence of an attack on a female clerical worker in an Alabama prison, and of an incident involving a woman student who was taken hostage during a visit to one of the maximum-security institutions.
Alabama’s penitentiaries are evidently not typical. Appellee Rawlin-son’s two experts testified that in a normal, relatively stable maximum-security prison — characterized by control over the inmates, reasonable living conditions, and segregation of dangerous offenders — women guards could be used effectively and beneficially. Similarly, an amicus brief filed by the State of California attests to that State’s success in using women guards in all-male penitentiaries.
The record shows, by contrast, that Alabama’s minimum-security facilities, such as work-release centers, are recognized by their inmates as privileged confinement situations not to be lightly jeopardized by disobeying applicable rules of conduct. Inmates assigned to these institutions are thought to be the “cream of the crop” of 'the Alabama prison population.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
116
] |
DUQUESNE LIGHT CO. et al. v. BARASCH et al.
No. 87-1160.
Argued November 7, 1988
Decided January 11, 1989
Peter Buscemi argued the cause for appellants. With him on the briefs were Alan L. Reed, William E. Zeiter, John F. Stillmun III, James R. Edgerly, Stephen L. Feld, Christine A. Hansen, and Larry R. Crayne.
Irwin A. Popowsky argued the cause for appellees and filed a brief for appellee David M. Barasch. With him on the brief were David M. Barasch, pro se, and Daniel Clear-field. Daniel P. Delaney, Bohdan R. Pankiw, and John A. Levin filed a brief for appellee Pennsylvania Public Utility Commission.
Briefs of amici curiae urging reversal were filed for the Edison Electric Institute by Robert L. Baum and Peter B. Kelsey; and for the Pennsylvania Electric Association by Rex E. Lee, David W. Carpenter, Vincent Butler, and David T. Evrard.
Briefs of amici curiae urging affirmance were filed for the Consumer Federation of America et al. by Scott Hempling and Roger Colton; for the National Association of Regulatory Utility Commissioners by William Paul Rodgers, Jr.; for the National Association of State Utility Consumer Advocates by Raymon E. Lark, Jr.; and for the National Governor’s Association et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Brian J. Moline.
H. Lee Roussell and David M. Kleppinger filed a brief for Industrial Energy Consumers of Pennsylvania et al. as amici curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
Pennsylvania law required that rates for electricity be fixed without consideration of a utility’s expenditures for electrical generating facilities which were planned but never built, even though the expenditures were prudent and reasonable when made. The Supreme Court of Pennsylvania held that such a law did not take the utilities’ property in violation of the Fifth Amendment to the United States Constitution. We agree with that conclusion, and hold that a state scheme of utility regulation does not “take” property simply because it disallows recovery of capital investments that are not “used and useful in service to the public.” 66 Pa. Cons. Stat. § 1315 (Supp. 1988).
I
In response to predictions of increased demand for electricity, Duquesne Light Company (Duquesne) and Pennsylvania Power Company (Penn Power) joined a venture in 1967 to build more generating capacity. The project, known as the Central Area Power Coordination Group (CAPCO), involved three other electric utilities and had as its objective the construction of seven large nuclear generating units. In 1980 the participants canceled plans for construction of four of the plants. Intervening events, including the Arab oil embargo and the accident at Three Mile Island, had radically changed the outlook both for growth in the demand for electricity and for nuclear energy as a desirable way of meeting that demand. At the time of the cancellation, Duquesne’s share of the preliminary construction costs associated with the four halted plants was $34,697,389. Penn Power had invested $9,569,665.
In 1980, and again in 1981, Duquesne sought permission from the Pennsylvania Public Utility Commission (PUC) to recoup its expenditures for the unbuilt plants over a 10-year period. The Commission deferred ruling on the request until it received the report from its investigation of the CAPCO construction. That report was issued in late 1982. The report found that Duquesne and Penn Power could not be faulted for initiating the construction of more nuclear generating capacity at the time they joined the CAPCO project in 1967. The projections at that time indicated a growing demand for electricity and a cost advantage to nuclear capacity. It also found that the intervening events which ultimately confounded the predictions could not have been predicted, and that work on the four nuclear plants was stopped at the proper time. In summing up, the Administrative Law Judge found “that the CAPCO decisions in regard to the [canceled plants] at every stage to their cancellation, were reasonable and prudent.” App. to Juris. Statement 19h. He recommended that Duquesne and Penn Power be allowed to amortize their sunk costs in the project over a 10-year period. The PUC adopted the conclusions of the report. App. to Juris. Statement li.
In 1982, Duquesne again came before the PUC to obtain a rate increase. Again, it sought to amortize its expenditures on the canceled plants over 10 years. In January 1983, the PUC issued a final order which granted Duquesne the authority to increase its revenues $105,8 million to a total yearly revenue in excess of $800 million. Pennsylvania PUC v. Duquesne Light Co., 57 Pa. P. U. C. 1, 51 P. U. R. 4th 198 (1983). The rate increase included $3.5 million in revenue representing the first payment of the 10-year amortization of Duquesne’s $35 million loss in the CAPCO plants.
The Pennsylvania Office of the Consumer Advocate (Consumer Advocate) moved the PUC for reconsideration in light of a state law enacted about a month before the close of the 1982 Duquesne rate proceeding. The Act, No. 335, 1982 Pa. Laws 1473, amended the Pennsylvania Utility Code by limiting “the consideration of certain costs in the rate base.” It provided that “the cost of construction or expansion of a facility undertaken by a public utility producing . . . electricity shall not be made a part of the rate base nor otherwise included in the rates charged by the electric utility until such time as the facility is used and useful in service to the public.” 66 Pa. Cons. Stat. § 1315 (Supp. 1988). On reconsideration, the PUC affirmed its original rate order. Pennsylvania PUC v. Duquesne Light Co., 57 Pa. P. U. C. 177, 52 P. U. R. 4th 644 (1983). It read the new law as excluding the costs of canceled plants (obviously not used and useful) from the rate base, but not as preventing their recovery through amortization.
Meanwhile another CAPCO member, Penn Power, also sought to amortize its share of the canceled CAPCO power-plants over a 10-year period. The PUC granted Penn Power authority to increase its revenues by $15.4 million to a total of $184.2 million. Pennsylvania PUC v. Pennsylvania Power Co., 58 Pa. P. U. C. 305, 60 P. U. R. 4th 593 (1984). Part of that revenue increase represented $956,967 for the first year of the 10-year amortized recovery of Penn Power’s costs in the aborted nuclear plants.
The Consumer Advocate appealed both of these decisions to the Commonwealth Court, which by a divided vote held that the Commission had correctly construed § 1315. Cohen v. Pennsylvania PUC, 90 Pa. Commw. 98, 494 A. 2d 58 (1985). The Consumer Advocate then appealed to the Supreme Court of Pennsylvania, and that court reversed. Barasch v. Pennsylvania PUC, 516 Pa. 142, 532 A. 2d 325 (1987). That court held that the controlling language of the Act prohibited recovery of the costs in question either by inclusion in the rate base or by amortization. The court rejected appellants’ constitutional challenge to the statute thus interpreted, observing that “[t]he ‘just compensation’ safeguarded to a utility by the fourteenth amendment of the federal constitution is a reasonable return on the fair value of its property at the time it is being used for public service. ” Id., at 163, 532 A. 2d, at 335. Since the instant CAPCO investment was not serving the public and did not constitute an operating expense, no constitutional rights to recovery attached to it. The court remanded to the PUC for further proceedings to correct its rate order, giving effect to the exclusion required by Act 335. Duquesne and Penn Power appealed to this Court arguing that the effect of Act 335 excluding their prudently incurred costs from the rate violated the Takings Clause of the Fifth Amendment, applicable to the States under the Fourteenth Amendment. We noted probable jurisdiction. 485 U. S. 933 (1988).
II
Although the parties have not discussed it, we must first inquire into our jurisdiction to decide this case. See Jackson v. Ashton, 8 Pet. 148 (1834); Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884). Our jurisdiction here rests on 28 U. S. C. § 1257(2), which authorizes this Court to review “[f]inal judgments or decrees rendered by the highest Court of a State in which a decision could be had . . . [b]y appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution . . . and the decision is in favor of its validity.” Although this case has been remanded for further proceedings to revise the relevant rate orders, we hold that for purposes of our appellate jurisdiction the judgment of the Pennsylvania Supreme Court is final.
We have acknowledged that the words of § 1257(2) could well be interpreted to preclude review in this Court as long as any proceedings remain in state court. Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945). In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 477 (1975), however, we recognized that in practice the final judgment rule has not been interpreted so strictly. Cox outlined four circumstances in which the adjudication of a federal issue in a case by the highest available state court had been reviewed in this Court notwithstanding the prospect of some further state-court proceedings.
This case falls into the first of the four categories. The Pennsylvania Supreme Court has finally adjudicated the constitutionality of Act 335 in the context of otherwise completed rate proceedings and so has left “the outcome of further proceedings preordained.” Cox, supra, at 479. We do not think that the PUC might undo the effects of Act 335 on remand by allowing recovery of the disputed costs in some other way consistent with state law. The Pennsylvania Supreme Court’s interpretation of the Act does not leave its effect in doubt; the CAPCO related costs may not be “otherwise included in the rates charged.” 66 Pa. Cons. Stat. § 1315 (1986). We are satisfied that we are presented with the State’s last word on the constitutionality of Act 335 and that all that remains is the straightforward application of its clear directive to otherwise complete rate orders. We therefore have jurisdiction. See Cox, supra, at 479; Mills v. Alabama, 384 U. S. 214 (1966).
Ill
As public utilities, both Duquesne and Penn Power are under a state statutory duty to serve the public. A Pennsylvania statute provides that “[e]very public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities” and that “[s]uch service also shall be reasonably continuous and without unreasonable interruptions or delay.” 66 Pa. Cons. Stat. § 1501 (1986). Although their assets are employed in the public interest to provide consumers of the State with electric power, they are owned and operated by private investors. This partly public, partly private status of utility property creates its own set of questions under the Takings Clause of the Fifth Amendment.
The guiding principle has been that the Constitution protects utilities from being limited to a charge for their property serving the public which is so “unjust” as to be confiscatory. Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 597 (1896) (A rate is too low if it is “so unjust as to destroy the value of [the] property for all the purposes for which it was acquired,” and in so doing “practically deprive[s] the owner of property without due process of law”); FPC v. Natural Gas Pipeline. Co., 315 U. S. 575, 585 (1942) (“By long standing usage in the field of rate regulation, the ‘lowest reasonable rate’ is one which is not confiscatory in the constitutional sense”); FPC v. Texaco Inc., 417 U. S. 380, 391-392 (1974) (“All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level”). If the rate does not afford sufficient compensation, the State has taken the use of utility property without paying just compensation and so violated the Fifth and Fourteenth Amendments. As has been observed, however, “[h]ow such compensation may be ascertained, and what are the necessary elements in such an inquiry, will always be an embarrassing question.” Smyth v. Ames, 169 U. S. 466, 546 (1898). See also Permian Basin Area Rate Cases, 390 U. S. 747, 790 (1968) (“[Njeither law nor economics has yet devised generally accepted standards for the evaluation of rate-making orders”).
At one time, it was thought that the Constitution required rates to be set according to the actual present value of the assets employed in the public service. This method, known as the “fair value” rule, is exemplified by the decision in Smyth v. Ames, supra. Under the fair value approach, a “company is entitled to ask ... a fair return upon the value of that which it employs for the public convenience,” while on the other hand, “the public is entitled to demand . . . that no more be exacted from it for the use of [utility property] than the services rendered by it are reasonably worth.” 169 U. S., at 547. In theory the Smyth v. Ames fair value standard mimics the operation of the competitive market. To the extent utilities’ investments in plants are good ones (because their benefits exceed their costs) they are rewarded with an opportunity to earn an “above-cost” return, that is, a fair return on the current “market value” of the plant. To the extent utilities’ investments turn out to be bad ones (such as plants that are canceled and so never used and useful to the public), the utilities suffer because the investments have no fair value and so justify no return.
Although the fair value rule gives utilities strong incentive to manage their affairs well and to provide efficient service to the public, it suffered from practical difficulties which ultimately led to its abandonment as a constitutional requirement. In response to these problems, Justice Brandéis had advocated an alternative approach as the constitutional minimum, what has become known as the “prudent investment” or “historical cost” rule. He accepted the Smyth v. Ames eminent domain analogy, but concluded that what was “taken” by public utility regulation is not specific physical assets that are to be individually valued, but the capital prudently devoted to the public utility enterprise by the utilities’ owners. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Comm’n, 262 U. S. 276, 291 (1923) (dissenting opinion). Under the prudent investment rule, the utility is compensated for all prudent investments at their actual cost when made (their “historical” cost), irrespective of whether individual investments are deemed necessary or beneficial in hindsight. The utilities incur fewer risks, but are limited to a standard rate of return on the actual amount of money reasonably invested.
Forty-five years ago in the landmark case of FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944), this Court abandoned the rule of Smyth v. Ames, and held that the “fair value” rule is not the only constitutionally acceptable method of fixing utility rates. In Hope we ruled that historical cost was a valid basis on which to calculate utility compensation. 320 U. S., at 605 (“Rates which enable [a] company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risk assumed certainly cannot be condemned as invalid, even though they might produce only a meager return on the so called ‘fair value’ rate base”). We also acknowledged in that case that all of the subsidiary aspects of valuation for ratemaking purposes could not properly be characterized as having a constitutional dimension, despite the fact that they might affect property rights to some degree. Today we reaffirm these teachings of Hope Natural Gas: “[I]t is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unreasonable, judicial inquiry ... is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.” Id, at 602. This language, of course, does not dispense with all of the constitutional difficulties when a utility raises a claim that the rate which it is permitted to charge is so low as to be confiscatory: whether a particular rate is “unjust” or “unreasonable” will depend to some extent on what is a fair rate of return given the risks under a particular rate-setting system, and on the amount of capital upon which the investors are entitled to earn that return. At the margins, these questions have constitutional overtones.
Pennsylvania determines rates under a slightly modified form of the historical cost/prudent investment system. Neither Duquesne nor Penn Power alleges that the total effect of the rate order arrived at within this system is unjust or unreasonable. In fact the overall effect is well within the bounds of Hope, even with total exclusion of the CAPCO costs. Duquesne was authorized to earn a 16.14% return on common equity and an 11.64% overall return on a rate base of nearly $1.8 billion. See Pennsylvania PUC v. Duquesne Light Co., 57 Pa. P. U. C., at 51, 51 P. U. R. 4th, at 243. Its $35 million investment in the canceled plants comprises roughly 1.9% of its total base. The denial of plant amortization will reduce its annual allowance by 0.4%. Similarly, Penn Power was allowed a charge of 15.72% return on common equity and a 12.02% overall return. Its investment in the CAPCO plants comprises only 2.4% of its $401.8 million rate base. See Pennsylvania PUC v. Pennsylvania Power Co., 58 Pa. P. U. C., at 331-332, 60 P. U. R. 4th, at 618. The denial of amortized recovery of its $9.6 million investment in CAPCO will reduce its annual revenue allowance by only 0.5%.
Given these numbers, it appears that the PUC would have acted within the constitutional range of reasonableness if it had allowed amortization of the CAPCO costs but set a lower rate of return on equity with the result that Duquesne and Penn Power received the same revenue they will under the instant orders on remand. The overall impact of the rate orders, then, is not constitutionally objectionable. No argument has been made that these slightly reduced rates jeopardize the financial integrity of the companies, either by leaving them insufficient operating capital or by impeding their ability to raise future capital. Nor has it been demonstrated that these rates are inadequate to compensate current equity holders for the risk associated with their investments under a modified prudent investment scheme.
Instead, appellants argue that the Constitution requires that subsidiary aspects of Pennsylvania’s ratemaking methodology be examined piecemeal. One aspect which they find objectionable is the constraint Act 335 places on the PUC’s decisions. They urge that such legislative direction to the PUC impermissibly interferes with the PUC’s duty to balance consumer and investor interest under Permian Basin, 390 U. S., at 792. Appellants also note the theoretical inconsistency of Act 335, suddenly and selectively applying the used and useful requirement, normally associated with the fair value approach, in the context of Pennsylvania’s system based on historical cost. Neither of the errors appellants perceive in this case is of constitutional magnitude.
It cannot seriously be contended that the Constitution prevents state legislatures from giving specific instructions to their utility commissions. We have never doubted that state legislatures are competent bodies to set utility rates. And the Pennsylvania PUC is essentially an administrative arm of the legislature. See, e. g., Barasch v. Pennsylvania PUC, 516 Pa., at 171, 532 A. 2d, at 339 (“The Commission is but an instrumentality of the state legislature for the performance of [ratemaking]”); Minnesota Rate Cases, 230 U. S. 352, 433 (1913) (“The rate-making power is a legislative power and necessarily implies a range of legislative discretion”). We stated in Permian Basin that the commission “must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests.” 390 U. S., at 767 (emphasis added). This is not to say that any system of ratemaking applied by a utilities commission, including the specific instructions it has received from its legislature, will necessarily be constitutional. But if the system fails to pass muster, it will not be because the legislature has performed part of the work.
Similarly, an otherwise reasonable rate is not subject to constitutional attack by questioning the theoretical consistency of the method that produced it. “It is not theory, but the impact of the rate order which counts.” Hope, 320 U. S., at 602. The economic judgments required in rate proceedings are often hopelessly complex and do not admit of a single correct result. The Constitution is not designed to arbitrate these economic niceties. Errors to the detriment of one party may well be canceled out by countervailing errors or allowances in another part of the rate proceeding. The Constitution protects the utility from the net effect of the rate order on its property. Inconsistencies in one aspect of the methodology have no constitutional effect on the utility’s property if they are compensated by countervailing factors in some other aspect.
Admittedly, the impact of certain rates can only be, evaluated in the context of the system under which they are imposed. One of the elements always relevant to setting the rate under Hope is the return investors expect given the risk of the enterprise. Id., at 603 (“[Rjeturn to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks”); Bluefield Water Works & Improvement Co. v. Public Service Comm’n of West Virginia, 262 U. S. 679, 692-693 (1923) (“A public utility is entitled to such rates as will permit it to earn a return . . . equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties”). The risks a utility faces are in large part defined by the rate methodology because utilities are virtually always public monopolies dealing in an essential service, and so relatively immune to the usual market risks. Consequently, a State’s decision to arbitrarily switch back and forth between methodologies in a way which required investors to bear the risk of bad investments at some times while denying them the benefit of good investments at others would raise serious constitutional questions. But the instant case does not present this question. At all relevant times, Pennsylvania’s rate system has been predominantly but not entirely based on historical cost and it has not been shown that the rate orders as modified by Act 335 fail to give a reasonable rate of return on equity given the risks under such a regime. We therefore hold that Act 335’s limited effect on the rate order at issue does not result in a constitutionally impermissible rate.
Finally we address the suggestion of the Pennsylvania Electric Association as amicus that the prudent investment rule should be adopted as the constitutional standard. We think that the adoption of any such rule would signal a retreat from 45 years of decisional law in this area which would be as unwarranted as it would be unsettling. Hope clearly held that “the Commission was not bound to the use of any single formula or combination of formulae in determining rates.” 320 U. S. at 602. More recently, we upheld the Federal Power Commission’s departure from the individual producer cost-of-service (prudent investment) system. In Wisconsin v. FPC, 373 U. S. 294 (1963), the FPC had concluded after extensive hearings that “the individual company cost-of-service method, based on theories of original cost and prudent investment, was not a workable or desirable method for determining the rates of independent producers and that the ‘ultimate solution’ lay in what has become to be known as the area rate approach: ‘the determination of fair prices . . . based on reasonable financial requirements of the industry.’” Id., at 298-299. In upholding the FPC’s area rate methodology against the argument that the individual eompany prudent investment rule was constitutionally required, the Court observed:
“[T]o declare that a particular method of rate regulation is so sanctified as to make it highly unlikely that any other method could be sustained would be wholly out of keeping with this Court’s consistent and clearly articulated approach to the question of the Commission’s power to regulate rates. It has repeatedly been stated that no single method need be followed by the Commission in considering the justness and reasonableness of rates.” Id., at 309 (collecting cases).
See also FPC v. Texaco Inc., 417 U. S. at 387-390.
The adoption of a single theory of valuation as a constitutional requirement would be inconsistent with the view of the Constitution this Court has taken since Hope Natural Gas, supra. As demonstrated in Wisconsin v. FPC, circumstances may favor the use of one ratemaking procedure over another. The designation of a single theory of ratemaking as a constitutional requirement would unnecessarily foreclose alternatives which could benefit both consumers and investors. The Constitution within broad limits leaves the States free to decide what ratesetting methodology best meets their needs in balancing the interests of the utility and the public.
Affirmed.
The PUC exercises a legislative grant of power to enforce the Pennsylvania public utilities laws. 66 Pa. Cons. Stat. § 501 (1986). “[T]he authority of the Commission must arise either from the express words of the pertinent statutes or by strong and necessary implication therefrom.” Philadelphia v. Philadelphia Electric Co., 504 Pa. 312, 317, 473 A. 2d 997, 999 (1984) (collecting cases).
Act 335 amended the Pennsylvania Utility Code by adding 66 Pa. Cons. Stat. § 1315. The relevant parts of Act 335 read as follows:
“AN ACT
“Amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, providing a limitation on the consideration of certain costs in the rate base for electric public utilities.
“Section 1. Title 66 ... is amended by adding a section to read:
Ҥ 1315. Limitation on consideration of certain costs for electric utilities.
“Except for such nonrevenue producing, nonexpense reducing investments as may be reasonably shown to be necessary to improve environmental conditions at existing facilities or improve safety at existing facilities or as may be required to convert facilities to the utilization of coal, the cost of construction or expansion of a facility undertaken by a public utility producing, generating, transmitting, distributing or furnishing electricity shall not be made a part of the rate base nor otherwise included in the rates charged by the electric utility until such time as the facility is used and useful in service to the public. Except as stated in this section, no electric utility property shall be deemed used and useful until it is presently providing actual utility service to the customers.
“Section 2. This act shall be applicable to all proceedings pending before the Public Utility Commission and the courts at this time. Nothing contained in this act shall be construed to modify or change existing law with regard to rate making treatment of investment in facilities of fixed utilities other than electric facilities.
“Section 3. This act shall take effect immediately.
“APPROVED — The 30th day of December, A. D. 1982.” (Emphasis added.)
On October 10, 1985, too late to affect this case, the Pennsylvania Legislature enacted Act 1985-62 which added 66 Pa. Cons. Stat. § 520 (Supp. 1988) to the state utility code. Under § 520, the PUC is now authorized to permit amortized recovery of prudently incurred investment in canceled generating units.
As a result of recent legislation, this Court will not long have appellate jurisdiction over cases of the instant type. Public L. 100-352, 102 Stat. 662, effective September 25, 1988, and applicable to judgments rendered on or after that date, eliminates substantially all of our appellate jurisdiction, including § 1257(2). Persons aggrieved by state-court judgments should now file a petition for certiorari, rather than appeal. See S. Rep. No. 100-300 (1988); H. R. Rep. No. 100-660 (1988); B. Boskey & E. Gressman, The Supreme Court Bids Farewell to Mandatory Appeals, 109 S. Ct. LXXXI (1988).
Perhaps the most serious problem associated with the fair value rule was the “laborious and baffling task of finding the present value of the utility.” Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Comm’n, 262 U. S. 276, 292-294 (1923) (Brandeis, J. dissenting). The exchange value of a utility’s assets, such as powerplants, could not be set by a market price because such assets were rarely bought and sold. Nor could the capital assets be valued by the stream of income they produced because setting that stream of income was the very object of the rate proceeding. According to Brandéis, the Smyth v. Ames test usually degenerated to proofs about how much it would cost to reconstruct the asset in question, a hopelessly hypothetical, complex, and inexact process. 262 U. S., at 292-294.
The system avoids the difficult valuation problems encountered under the Smyth v. Ames test because it relies on the actual historical cost of investments as the basis for setting the rate. The amount of a utility’s actual outlays for assets in the public service is more easily ascertained by a ratemaking body because less judgment is required than in valuing an asset.
Pennsylvania values property in the rate base according to its historical cost. As provided by 66 Pa. Cons. Stat. § 1311(b) (1986), “[t]he value of the property of the public utility included in the rate base shall be the original cost of the property when first devoted to the public service less the applicable accrued depreciation.” Accordingly, the PUC declared in Duquesne’s rate proceeding that “we shall adopt as the fair value of the respondent’s rate base, the original cost measure of value.” Pennsylvania PUC v. Duquesne Light Co., 57 Pa. P. U. C. 1, 5, 51 P. U. R. 4th 198, 202 (1983). It held likewise in Penn Power’s case. See Pennsylvania PUC v. Pennsylvania Power Co., 58 Pa. P. U. C. 305, 310, 60 P. U. R. 4th 593, 597 (1984) (same).
Having adjusted the historical cost in various ways to account for such things as depreciation and working capital, the PUC proceeds to set a rate of return based largely on the cost of capital to the enterprise. The cost of each component of the utility’s capital is considered, i. e., “the cost of debt, the cost of preferred stock, and the cost of common stock[,] [t]he latter being determined by the return required to sell such stock upon reasonable terms in the market.” Pennsylvania PUC v. Duquesne Light Co., supra, at 42, 51 P. U. R. 4th, at 235; Bluefield Water Works & Improvement Co. v. Public Service Comm’n of West Virginia, 262 U. S. 679, 692-693 (1923). It then exercises “informed judgment” to set the total rate of return based on these component costs of capital. Ibid. See also Pennsylvania PUC v. Pennsylvania Power, supra, at 325-326, 60 P. U. R. 4th, at 611-621.
The bulk of the rate based on capital, then, represents a return (set by costs of capital) on a rate base (determined by historical cost). These are features of the historical cost/prudent investment system. Pennsylvania has modified the system in several instances, however, when prudent investments will never be used and useful. For such occurrences, it has allowed amortization o/the capital lost, but does not allow the utility to earn a return on that investment. See, e. g., Pennsylvania PUC v. Metropolitan Edison Co., 55 Pa. P. U. C. 478, 486 (1982) (amortization of company’s investment in contaminated Three Mile Island Unit 2); Philadelphia Electric Co. v. Pennsylvania PUC, 61 Pa. Commw. 325, 433 A. 2d 620 (1981) (excluding from the rate base a portion of a utility’s generating plant that was excess capacity, but allowing recovery of the operating expenses, including depreciation charges on the entire plants); UGI Corp. v. Pennsylvania PUC, 49 Pa. Commw. 69, 410 A. 2d 923 (1980) (permitting amortization of terminated feasibility studies); Pennsylvania PUC v. Philadelphia Electric Co., 46 Pa. P. U. C. 746, 750 (1973) (10-year amortization of unusual expenses caused by tropical storm). The loss to utilities from prudent but ultimately unsuccessful investments under such a system is greater than under a pure prudent investment rule, but less than under a fair value approach. Pennsylvania’s modification slightly increases the overall risk of investments in utilities over the pure prudent investment rule. Presumably the PUC adjusts the risk premium element of the rate of return on equity accordingly.
Duquesne’s embedded cost of debt was 9.42%. Pennsylvania PUC v. Duquesne Light Co., 57 Pa. P. U. C., at 44, 51 P. U. R. 4th, at 237. Penn Power’s debt service was at 10.25%. Pennsylvania PUC v. Pennsylvania Power Co., 58 Pa. P. U. C., at 332, 60 P. U. R. 4th, at 618.
Indeed, the issue of constitutional concern has usually been just the reverse of appellants’ objection. Challenges to state and federal laws have been raised on the ground that the legislatures have delegated too much authority and discretion. See J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 (1928) (federal delegation of authority to set import tariff rates); York R. Co. v. Driscoll, 331 Pa. 193, 200 A. 864 (1938) (PUC’s authorization to exempt utility securities from reporting and registration requirements an unconstitutional delegation of legislative povrer under Pennsylvania Constitution because it allowed the utility to nullify the statutory reporting requirements).
For example, rigid requirement of the prudent investment rule would foreclose hybrid systems such as the one Pennsylvania used before the effective date of Act 335 and now uses again. See n. 4, supra. It would also foreclose a return to some form of the fair value rule just as its practical problems may be diminishing. The emergent market for wholesale electric energy could provide a readily available objective basis for determining the value of utility assets.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
116
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REID et ux. v. IMMIGRATION AND NATURALIZATION SERVICE
No. 73-1541.
Argued January 20, 1975
Decided March 18, 1975
Benjamin Globman argued the cause for petitioners. With him on the brief was Harry Cooper.
Deputy Solicitor General LaFontant argued the cause for respondent. With her on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Harriet S. Shapiro, and Sidney M. Glazer
Robert B. Johnstone, Armando Menocal III, and Richard A. Gonzales filed a brief for Daniel Perez Echeverria as amicus curiae urging reversal.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Petitioners Robert and Nadia Reid, husband and wife, are citizens of British Honduras. Robert Reid entered the United States at Chula Vista, California, in November 1968, falsely representing himself to be a citizen of the United States. Nadia Reid, employing the same technique, entered at the Chula Vista port of entry two months later. Petitioners have two children who were born in the United States since their entry.
In November 1971, the Immigration and Naturalization Service (INS) began deportation proceedings against petitioners, which were resolved adversely to them first by a special inquiry officer and then by the Board of Immigration Appeals. On petition for review, the United States Court of Appeals for the Second Circuit by a divided vote affirmed the finding of deportability. 492 F. 2d 251 (1974). We granted certiorari to resolve the conflict between this holding and the contrary conclusion of the Court of Appeals for the Ninth Circuit in Lee Fook Chuey v. INS, 439 F. 2d 244 (1970). 419 U. S. 823 (1974).
Because of the complexity of congressional enactments relating to immigration, some understanding of the structure of these laws is required before evaluating the legal contentions of petitioners. The McCarran-Walter Act, enacted by Congress in 1952, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., although frequently amended since that date, remains the basic format of the immigration laws. “Although the McCarran-Walter Act has been repeatedly amended, it still is the basic statute dealing with immigration and nationality. The amendments have been fitted into the structure of the parent statute and most of the original enactment remains undisturbed.” 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1-13 to 1-14 (rev. ed. 1975).
Section 212 of the Act as amended, 8 U. S. C. § 1182, specifies various grounds for exclusion of aliens seeking admission to this country. Section 241 of the Act, 8 U. S. C. § 1251, specifies grounds for deportation of aliens already in this country. Section 241 (a) specifies 18 different bases for deportation, among which only the first two need directly concern us:
“Any alien in the United States . .. shall, upon the order of the Attorney General, be deported who—
“(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry;
“(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States
The INS seeks to deport petitioners under the provisions of §241 (a)(2), asserting that they entered the United States without inspection. Petitioners dispute none of the factual predicates upon which the INS bases its claim, but instead argue that their case is saved by the provisions of §241 (f), which provides in pertinent part as follows:
“The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.” 75 Stat. 655, 8 U. S. C. § 1251 (f). (Emphasis supplied.)
Petitioners contend that they are entitled to the benefits of § 241 (f) “by virtue of its explicit language.” This contention is plainly wrong, and for more than one reason.
The language of § 241 (f) tracks the provisions of § 212 (a) (19), 8 U. S. C. § 1182 (a) (19), dealing with aliens who are excludable, and providing in pertinent part as follows:
“Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
“(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact. . . (Emphasis supplied.)
Thus the “explicit language” of § 241 (f), upon which petitioners rely, waives deportation for aliens who are “excludable at the time of entry” by reason of the fraud specified in § 212 (a) (19), and for that reason deportable under the provisions of §241 (a)(1). If the INS were seeking to deport petitioners on this ground, they would be entitled to have applied to them the provisions of § 241 (f) because of the birth of their children after entry.
But the INS in this case does not rely on § 212 (a) (19), nor indeed on any of the other grounds for excludability under § 212, which are in turn made grounds for deportation by the language of § 241 (a)(1). It is instead relying on the separate provision of § 241 (a) (2), which does not depend in any way upon the fact that an alien was excludable at the time of his entry on one of the grounds specified in § 212 (a). Section 241 (a)(2) establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. If this ground is established by the admitted facts, nothing in the waiver provision of § 241 (f), which by its terms grants relief against deportation of aliens “on the ground that they were excludable at the time of entry,” has any bearing on the case. Cf. Costanzo v. Tillinghast, 287 U. S. 341, 343 (1932).
The issue before us, then, turns upon whether petitioners, who accomplished their entry into the United States by falsely asserting that they were citizens of this country, can be held to have “entered the United States without inspection.” Obviously not every misrepresentation on the part of an alien making an entry into the United States can be said to amount to an entry without inspection. But the Courts of Appeals have held that an alien who accomplishes entry into this country by making a willfully false representation that he is a United States citizen may be charged with entry without inspection. Ex parte Saadi, 26 F. 2d 458 (CA9), cert. denied, 278 U. S. 616 (1928); United States ex rel. Volpe v. Smith, 62 F. 2d 808 (CA7), aff'd on other grounds, 289 U. S. 422, 424 (1933); Ben Huie v. INS, 349 F. 2d 1014 (CA9 1965). We agree with these holdings, and conclude that an alien making an entry into this country who falsely represents himself to be a citizen would not only be excludable under § 212 (a) (19) if he were detected at the time of his entry, but has also so significantly frustrated the process for inspecting incoming aliens that he is also deportable as one who has “entered the United States without inspection.” In reaching this conclusion we subscribe to the reasoning of Chief Judge Aldrich, writing for the Court of Appeals for the First Circuit in Goon Mee Heung v. INS, 380 F. 2d 236, 237, cert. denied, 389 U. S. 975 (1967) :
“Whatever the effect other misrepresentations may arguably have on an alien's being legally considered to have been inspected upon entering the country, we do not now consider; we are here concerned solely with an entry under a fraudulent claim of citizenship. Aliens who enter as citizens, rather than as aliens, are treated substantially differently by immigration authorities. The examination to which citizens are subjected is likely to be considerably more perfunctory than that accorded aliens. Gordon & Rosen-field, Immigration Law and Procedure § 316d (1966). Also, aliens are required to fill out alien registration forms, copies of which are retained by the immigration authorities. 8 C. F. R. §§ 235.4,264.1; 8 U. S. C. §§ 1201 (b), 1301-1306. Fingerprinting is required for most aliens. 8 U. S. C. §§ 1201 (b), 1301-1302. The net effect, therefore, of a person’s entering the country as an admitted alien is that the immigration authorities, in addition to making a closer examination of his right to enter in the first place, require and obtain information and a variety of records that enable them to keep track of the alien after his entry. Since none of these requirements is applicable to citizens, an alien who enters by claiming to be a citizen has effectively put himself in a quite different position from other admitted aliens, one more comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected.”
Petitioners rely upon this Court’s decision in INS v. Errico, 385 U. S. 214 (1966). There the Court decided two companion cases involving fraudulent representations by aliens in connection with quota requirements which existed at the time Errico was decided, but which were prospectively repealed in 1965. Errico, a native of Italy, falsely represented to the authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that representation he was granted first-preference-quota status under the statutory preference scheme then in effect, entered the United States with his wife, and later fathered a child by her.
Scott, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for her entry into the country. She never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who thereby became an American citizen at birth.
When the INS discovered the fraud in each of these cases, it sought to deport both Errico and Scott on the grounds that they were “within one or more of the classes of aliens excludable by the law existing at the time” of their entry, and therefore deportable under §241 (a)(1). The INS did not rely on the provisions of §212 (a) (19), making excludable an alien who has procured a visa or other documentation or entry by fraud, nor indeed did it rely on any other of the subsections of § 212 dealing with excludable aliens. Instead it relied on an entirely separate portion of the statute, § 211, 8 U. S. C. § 1181 (a) (1964 ed.), prospectively amended in 1965, but reading, as applicable to Errico and Scott, as follows:
“No immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such immigrant visa of the accompanying parent, (2) is properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this chapter.”
The INS contended that Errico fell within the proscription of § 211 (a)(4), and that Scott fell within the proscription of § 211 (a)(3), and that therefore § 211 (a) prohibited their admission into the United States as of the time of their entry. It apparently reasoned from these admitted facts that both Errico and Scott were therefore “excludable” at the time of their entry within the meaning of § 241 (a) (1).
Section 211 of the Act of 1952, 66 Stat. 181-182, is entitled Documentary Requirements. Section 212 of the same Act, 66 Stat. 182-188, is entitled General Classes of Aliens Ineligible to Receive Visas and Excluded from Admission. INS could clearly have proceeded against either Scott or Errico under §212 (a) (19), on the basis of their procuring a visa or other documentation by fraud or misrepresentation. Just as clearly Scott and Errico could have then asserted their claim to the benefit of §241 (f), waiving deportation based upon fraud for aliens who had given birth to children after their entry and who were otherwise admissible. Instead the INS relied on the provisions of § 211 (a), which deal with the general subject of the necessary documentation for admission of immigrants, rather than with the general subject of excludable aliens. Rather than questioning whether a failure to comply with §211 (a) (3) or (4) by itself rendered an alien “excludable” as that term is used in § 241 (a)(1), the Court in Errico implicitly treated it as doing so and went on to hold that § 241 (f) “saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident.” INS v. Errico, 385 U. S., at 215.
Errico was decided by a divided Court over a strong dissenting opinion. Even the most expansive view of its holding could not avail these petitioners, since § 241 (f) which it construed applies by its terms only to “the deportation of aliens within the United States on the ground that they were excludable at the time of entry.” Here, as we have noted, INS seeks to deport petitioners, not under the provisions of §241 (a)(1), relating to aliens excludable at the time of entry, but instead under the provisions of § 241 (a)(2), relating to aliens who do not present themselves for inspection. Yet there is no doubt that the broad language used in some portions of the Court's opinion in Errico has led one Court of Appeals to apply the provisions of § 241 (f) to a, case indistinguishable from petitioners’, Lee Fook Chuey v. INS, 439 F. 2d 244 (CA9 1970), and to decisions of other Courts of Appeals in related areas which may be summarized in the language of Macduff: “Confusion now hath made his masterpiece.”
Aliens entering the United States under temporary visitor permits, who acquire one of the specified familial relationships described in § 241 (f) after entry, have argued with varying results that their fraudulent intent upon entry to remain in this country permanently cloaks them with immunity from deportation even though they overstayed their visitor permits. Acceptance of this theory leads to the conclusion that § 241 (f) waives a substantive ground for deportation based on overstay if the alien can affirmatively prove his fraudulent intent at the time of entry, but grants no relief to aliens with exactly the same familial relationship who are unable to satisfactorily establish their dishonesty. See Cabuco-Flores v. INS, 477 F. 2d 108 (CA9), cert. denied sub nom. Mangabat v. INS, 414 U. S. 841 (1973); cf. Jolley v. INS, 441 F. 2d 1245 (CA5 1971). Balking at such an irrational result, one court has gone so far as to declare that § 241 (f) waives deportability under §241 (a)(1) even though no fraud is involved if the alien is able merely to establish the requisite familial tie. In re Yuen Lan Horn, 289 F. Supp. 204 (SDNY 1968).
Nor has there been agreement among those courts which have construed § 241 (f) to waive substantive grounds for deportation under § 212 other than for fraud delineated in §212 (a) (19) as to which other grounds are waived. While some courts have found that § 241 (f) waives any deportation charge to which fraud is “germane” others have found it waives “quantitative” but not “qualitative” grounds where its requirements are met. Still others have required that “but for” the misrepresentation, the alien meet the substantive requirements of the Act while at least one court has discerned in Errico a test requiring that the aliens' fraudulent statement be taken as true, with determination on such hypothetical facts whether the alien would be deportable. Cabuco-Flores v. INS, supra, at 110.
We do not believe that § 241 (f) as interpreted by Errico requires such results. We adhere to the holding of that case, which we take to be that where the INS chooses not to seek deportation under the obviously available provisions of § 212 (a) (19) relating to the fraudulent procurement of visas, documentation, or entry, but instead asserts a failure to comply with those separate requirements of §211 (a), dealing with compliance with quota requirements, as a ground for deportation under § 241 (a)(1), § 241 (f) waives the fraud on the part of the alien in showing compliance with the provisions of § 211 (a). In view of the language of § 241 (f) and the cognate provisions of §212 (a) (19), we do not believe Errico’s holding may properly be read to extend the waiver provisions of § 241 (f) to any of the grounds of excludability specified in § 212 (a) other than subsection (19). This conclusion, by extending the waiver provision of § 241 (f) not only to deportation based on excludability under § 212 (a) (19), but to a claim of de-portability based on fraudulent misrepresentation in order to satisfy the requirements of § 211 (a), gives due weight to the concern expressed in Errico that the provisions of § 241 (f) were intended to apply to some misrepresentations that were material to the admissions procedure. It likewise gives weight to our belief that Congress, in enacting § 241 (f), was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties; it did not intend to arm the dishonest alien seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in § 212 (a) of the Immigration and Nationality Act.
The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Douglas took no part in the consideration or decision of this case.
See also United States v. Osuna-Picos, 443 F. 2d 907 (CA9 1971); Gonzalez de Moreno v. INS, 492 F. 2d 532 (CA5 1974); Gonzalez v. INS, 493 F. 2d 461 (CA5 1974); Bufalino v. INS, 473 F. 2d 728 (CA3), cert. denied, 412 U. S. 928 (1973).
Entry without inspection is ground for deportation under §241 (a) (2) even though the alien was not excludable at the time of entry under § 241 (a) (1). 1C. Gordon & H. Rosenfield, Immigration Law and Procedure § 4.8b (rev. ed. 1975). It is a basis for deportation wholly independent of any basis for deportation which may exist under § 241 (a) (1).
Section 211 of the Act was amended by § 9 of the Act of Oct. 3, 1965, 79 Stat. 917, in connection with revision of the numerical quota system established by the Act. Since § 241 (a) (1) deals with excludability under the immigration law as it existed at the time of entry, the Court in Errico looked to § 211 as it existed prior to the amendment. INS v. Errico, 385 U. S. 214, 215 n. 2 (1966).
For an example of the differing results within one Circuit, see Muslemi v. INS, 408 F. 2d 1196 (CA9 1969); Vitales v. INS, 443 F. 2d 343 (CA9 1971), vacated, 406 U. S. 983 (1972); Cabuco-Flores v. INS, 477 F. 2d 108 (CA9), cert. denied sub nom. Mangabat v. INS, 414 U. S. 841 (1973). Other Circuits have generally held § 241 (f) not available on similar facts. De Vargas v. INS, 409 F. 2d 335 (CA5 1968); Ferrante v. INS, 399 F. 2d 98 (CA6 1968) ; Milande v. INS, 484 F. 2d 774 (CA7 1973); Preux v. INS, 484 F. 2d 396 (CA10 1973).
See Muslemi v. INS, supra, at 1199.
See, e. g., Godoy v. Rosenberg, 415 F. 2d 1266 (CA9 1969); Jolley v. INS, 441 F. 2d 1245 (CA5 1971). It is, of course, difficult to determine which grounds for exclusion fit which characterization. Arguably, for example, the failure to obtain the required certification by the Secretary of Labor dealt with in Godoy v. Rosenberg, supra, could as easily have been characterized as “qualitative.” The Ninth Circuit in Lee Fook Chuey v. INS, 439 F. 2d 244, 246 (1970), found evasion of inspection a “quantitative” ground while the Third Circuit in Bufalino v. INS, 473 F. 2d, at 731, found it a “qualitative” ground not subject to § 241 (f) waiver.
See, e. g., Loos v. INS, 407 F. 2d 651 (CA7 1969).
The legislative history of this provision, designed primarily to prevent the deportation of refugees from totalitarian nations for harmless misrepresentations made solely to escape persecution, is fully consistent with our interpretation of the provision. See H. R. Conf. Rep. No. 2096, 82d Cong., 2d Sess., 128 (1952); H. R. Doc. No. 329, 84th Cong., 2d Sess., 5 (1956); H. R. Doc. No. 85, 85th Cong., 1st Sess., 5 (1957); H. R. Rep. No. 1199, 85th Cong., 1st Sess., 10 (1957); 103 Cong. Rec. 15487-15499, 16298-16310 (1957); H. R. Rep. No. 1086, 87th Cong., 1st Sess., 37-38 (1961). The predecessor of current § 241 (f), § 7 of the Immigration Act of 1957, 71 Stat. 640, was consistently described during debate by its supporters as making minor adjustments in the immigration and naturalization system. Congressman Celler, a sponsor of the bill enacting § 7, summarized it during House debate in these words (after summarizing a nonrelated provision of § 7):
“This section also provides for leniency in the consideration of visa applications made by close relatives of United States citizens and aliens lawfully admitted for permanent residence who in the past may have procured documentation for entry by misrepresentation.” 103 Cong. Rec. 16301 (1957).
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
6
] |
UNITED STATES v. ALASKA
No. 118,
Orig.
Argued February 24, 1992
Decided April 21, 1992
White, J., delivered the opinion for a unanimous Court.
Jeffrey P. Minear argued the cause for the United States. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Edwin S. Kneedler, and Michael W. Reed.
John G. Gissberg, Assistant Attorney General of Alaska, argued the cause for defendant. With him on the briefs were Charles E. Cole, Attorney General, and John P. Griffin, Assistant Attorney General.
A brief of amici curiae was filed for the State of Alabama et al. by David C. Slade, James H. Evans, Attorney General of Alabama, Daniel E. Lungren, Attorney General of California, Thomas F. Gede, and Special Assistant Attorney General, Charles M. Oberly III, Attorney General of Delaware, Robert Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, William J. Guste, Jr., Attorney General of Louisiana, Scott Harshbarger, Attorney General of Massachusetts, Michael C. Moore, Attorney General of Mississippi, Robert J. Del Tufo, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Dan Morales, Attorney General of Texas, C. C. Harness III, Mary Sue Terry, Attorney General of Virginia, and Kenneth Eikenberry, Attorney General of Washington.
Justice White
delivered the opinion of the Court.
Ever since the Nome gold rush of 1899 to 1901, the Seward Peninsula in western Alaska has been a focus of attempts to gain control over the region’s natural riches. See In re McKenzie, 180 U. S. 536 (1901). The city of Nome sprang to life almost overnight, with some 20,000 gold seekers arriving by vessel in the summer of 1900 when the spring thaw opened up seaward passage. Since that time, Nome has never been linked to interior Alaska by road — travelers and traders must arrive by air, sea, or dog sled. This heavy reliance on seaward traffic, and the lack of a natural port in the region, inspired Nome in the early 1980’s to develop plans to construct port facilities, including a causeway with road, a breakwater, and an offshore terminal area, extending into Norton Sound. The implications of this construction for the federal-state offshore boundary lie at the heart of this lawsuit, which comes to us on a bill of complaint filed by the United States. The question presented is whether the Secretary of the Army may decline to issue a permit to build an artificial addition to the coastline unless Alaska agrees that the construction will be deemed not to alter the location of the federal-state boundary.
I
On August 25, 1982, the city of Nome applied for a federal permit to build port facilities with the Alaska District Corps of Engineers of the United States Department of the Army under § 10 of the Rivers and Harbors Appropriation Act of 1899 (RHA), 30 Stat. 1151, 33 U. S. C. §403, and §404 of the Clean Water Act, 86 Stat. 884, as amended, 33 U. S. C. § 1344. The Corps issued a Public Notice of Application for Permit on October 20, 1982, and invited interested persons to comment on whether the permit should be granted. On November 22, 1982, a division of the United States Department of the Interior filed an objection to the issuance of a Department of the Army permit on the ground that Nome’s construction of these port facilities would cause an “artificial accretion to the legal coast line.” Joint Stipulation of Facts 2. It requested that the Corps require Alaska to waive any future claims pursuant to the Submerged Lands Act (SLA), 67 Stat. 29, as amended, 43 U. S. C. § 1301 et seq., that might arise from a seaward extension of Alaska’s coastline caused by the building of these facilities. The Solicitor of the Interior Department issued an opinion to the same effect, stating that the Nome project would “‘move Alaska’s coastline or baseline seaward of its present location’ ” and that “ ‘[fjederal mineral leasing offshore Alaska would be affected because the state-federal boundary, as well as international boundaries, are measured from the coastline or baseline.’ ” Joint Stipulation of Facts 2-3. Accordingly, the Solicitor recommended that “ ‘approval of the permit application be conditioned upon Alaska executing an agreement or a quit claim deed preserving the coastline and the state-federal boundary.’ ” Id., at 3.
On July 1,1983, the Corps transmitted the Solicitor’s letter to the Alaska Department of Natural Resources and advised the State that the federal permit would not be issued until a “‘waiver or quit claim deed has been issued preserving the coastline and the State-Federal boundary.’ ” Ibid. The Alaska Department of Natural Resources responded on May 9, 1984, by submitting a conditional disclaimer of rights to additional submerged lands that could be claimed by the State as a result of the construction of the Nome port facility. This disclaimer provided that Alaska reserved its right to the accreted submerged lands pending a decision by a court of competent jurisdiction that the federal officials lacked the authority to compel a disclaimer of sovereignty as a condition of permit issuance. After being advised by the Department of Justice that this disclaimer was satisfactory, the Corps completed the permitting process and issued the permit.
On March 11, 1988, the Minerals Management Service of the Interior Department published a “Request for Comments and Nominations for a Lease Sale in Norton Sound and Notice of Intent to Prepare an Environmental Impact Statement,” which solicited public comment on the Minerals Management Service’s proposed lease sale for minerals, such as gold, near Nome in Norton Sound. Id., at 5. Alaska submitted comments the following month, alleging that the proposed Norton Sound Lease Sale involved submerged lands subject to its Nome project disclaimer and announcing its intention to file a suit challenging the Corps’ authority to require a waiver of rights to submerged lands. The State requested that the Minerals Management Service delete from the proposed lease sale the approximately 730 acres in dispute from the Nome project.
The United States then sought leave of this Court to commence this action, which we granted on April 1, 1991. 499 U. S. 946. The two parties entered into an agreement pursuant to §7 of the Outer Continental Shelf Lands Act (OCSLA), 43 U. S. C. §1336, and Alaska Stat. Ann. §38.05.137 (1989), to direct revenues from the disputed acreage into an escrow account that would then be paid to the prevailing party. The United States and Alaska both filed motions for summary judgment, which we now consider.
I — I
Our principles for evaluating agency interpretations of congressional statutes are by now well settled. Generally, when reviewing an agency’s construction of a statute administered by that agency, we first determine “whether Congress has directly spoken to the precise question at issue.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). Should the statute be silent or ambiguous on the direct question posed, we must then decide whether the “agency’s answer is based on a permissible construction of the statute.” Id., at 843. In applying these principles, we examine in turn the language of § 10 of the RHA, the decisions of this Court interpreting it, and the longstanding construction of the Corps in fulfilling Congress’ mandate.
A
Section 10 of the RHA provides in pertinent part:
“The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any ... structures in any ... water of the United- States .. . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge . . . unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” 33 U. S. C. §403.
The language of this provision is quite broad. It flatly prohibits the “creation of any obstruction” to navigable capacity that Congress itself has not authorized, and it bans construction of any structure in any water of the United States “except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.” Ibid. The statute itself contains no criteria by which the Secretary is to make an authorization decision; on its face, the provision appears to give the Secretary unlimited discretion to grant or deny a permit for construction of a structure such as the one at issue in this case. The Reports of the Senate and House Committees charged with making recommendations on the Act contain no hint of whether the drafters sought to vest in the Secretary the apparently unbridled authority the plain language of the statute seems to suggest. See H. R. Rep. No. 1826, 55th Cong., 3d Sess. (1899); S. Rep. No. 1686, 55th Cong., 3d Sess. (1899).
The statutory antecedents of this provision similarly offer little insight into Congress’ intent. The precursors to § 10 of the 1899 Act were §§7 and 10 of the 1890 River and Harbor Appropriation Act, Act of Sept. 19, 1890, 26 Stat. 464-465. Section 10 prohibited creation of “any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction,” and § 7 made unlawful the building of any “wharf, pier,... or structure of any kind outside established harbor-lines . . . without the permission of the Secretary of War.” Ibid. Congress slightly amended the statute in 1892 to add a prohibition on any construction that would “in any manner ... alter or modify the course, location, condition or capacity of any port, roadstead, haven, harbor, harbor of refuge, or inclosure . . . unless approved and authorized by the Secretary of War.” 1892 Rivers and Harbors Appropriation Act, Act of July 13,1892, §3, 27 Stat. 110. This statute reflected the reality that Congress could not itself attend to each such project individually, as it had from the earliest days of the Republic. As the House Report accompanying this law observed: “The most important feature of the bill now presented is the extent it goes in authorizing the Secretary of War to make contracts for the completion of some of the more important works of river and harbor improvement.” H. R. Rep. No. 967, 52d Cong., 1st Sess., 2 (1892). “The departure from the old driblet system of appropriations,” the House Report continued, “was found to work so well that your committee determined to apply it on a larger scale than in the last act.” Ibid. See also S. Rep. No. 666, 52d Cong., 1st Sess., 4-5 (1892). By the time Congress passed the 1899 Act, therefore, the idea of delegating authority to the Secretary was well established even if the explanations for the broad language employed by Congress to carry out such a directive were sparse.
B
The substance of the RHA has been unchanged since its enactment, and the Court has had only a few occasions to decide whether to construe it broadly or narrowly. In one such case, for example, the Court considered whether to issue a writ of mandamus to order the Secretary of War and the Chief of Engineers to grant a permit to build a wharf in navigable waters. United States ex rel. Greathouse v. Dern, 289 U. S. 352 (1933). Although it was stipulated that the project would not interfere with navigability, the Secretary nevertheless denied the permit on the ground that the wharf would impede plans developed by the United States to create a means of access to the proposed George Washington Memorial Parkway along the Potomac River in northern Virginia. Id., at 355. The permit applicant argued that the Secretary’s refusal to grant it was contrary to law on the theory that RHA § 10 authorized consideration only of the proposed construction’s effects on navigation. In refusing to issue the writ of mandamus under equitable principles, the Court noted that petitioners’ argument could be accepted “only if several doubtful questions are resolved in [petitioners’] favor,” one of which was “whether a mandatory duty is imposed upon the Secretary of War by § 10 of the Rivers and Harbors Appropriation Act to authorize the construction of the proposed wharf if he is satisfied that it will not interfere with navigation.” Id., at 357.
Nor has such a broad interpretation of the RHA been exceptional. In United States v. Republic Steel Corp., 362 U. S. 482, 491 (1960), the Court observed: “We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U. S. 336, 342 [1931], that A river is more than an amenity, it is a treasure,’ forbids a narrow, cramped reading of either § 13 or of § 10.” And as we stated in a later case: “Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself.” Wyandotte Transportation Co. v. United States, 389 U. S. 191, 201 (1967) (citations omitted).
In United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655 (1973), we applied this broad approach to the RHA in a somewhat analogous situation under a provision enacted contemporaneously with § 10. RHA § 13 provides that the Secretary of the Army “may permit the deposit” of refuse matter “whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby.” 33 U. S. C. § 407. The case presented the question whether the statute required the Secretary to allow such discharges where they had no effect on navigation. We held that the statute should not be so construed. In reaching this conclusion, we observed that “even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary’s authority discretionary — i. e., it provides that the Secretary ‘may permit’ the deposit.” 411 U. S., at 662. We further noted that § 13 “contains no criteria to be followed by the Secretary in issuing such permits,” id., at 668, and rejected the argument that the agency’s statutory authority should be construed narrowly.
In our view, § 10 should be construed with similar breadth. Without specifying the factors to be considered, § 10 provides that “it shall not be lawful to build or commence the building” of any structure in navigable waters of the United States “except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.” 33 U. S. C. § 403 (emphasis added). In light of our holding in Pennsylvania Chemical Corp. that the Secretary’s discretion under § 13 was not limited to considering the effect of a refuse deposit on navigation, it logically follows that the Secretary’s authority is not confined solely to considerations of navigation in deciding whether to issue a permit under §10.
C
We now examine the administrative interpretation of § 10 down through the years with respect to the range of discretion extended to the Corps and the Secretary. An opinion by Attorney General George W. Wickersham in 1909, for example, denied the Secretary of War and the Chief of Engineers the authority to decide whether to issue a permit under RHA § 10 after “consideration of] questions relating to other interests than those having to do with the navigation of the waters.” 27 Op. Atty. Gen. 284, 288.
This narrow view of the Secretary’s authority persisted within the agency for many decades. “Until 1968,” according to one document produced by the Corps of Engineers, “the Corps administered the 1899 Act regulatory program only to protect navigation and the navigable capacity of the nation’s waters.” 42 Fed. Reg. 37122 (1977). In 1968, the regulations were amended so that the general policy guidance for permit issuance included consideration of “the effects of permitted activities on the public interest including effects upon water quality, recreation, fish and wildlife, pollution, our natural resources, as well as the effects on navigation.” 33 CFR § 209.330(a).
Yet even after the Corps adopted this more expansive reading, which the language of the statute and our decisions interpreting it plainly authorized, the House Committee on Government Operations nevertheless concluded that the Corps in practice was still not interpreting its statutory authority broadly enough. See H. R. Rep. No. 91-917, p. 6 (1970). The Committee was of the view that the Corps’ earlier “restricted view of the 1899 act. . . was not required by the law.” Id., at 2. The Report summarized our holdings to the effect that the statutory language of RHA § 10 should be interpreted generously, id., at 2-4, and commended the Corps “for recognizing [in 1968] its broader responsibilities” pursuant to its permitting authority under the RHA, id., at 5. The Committee emphasized that the Corps “should instruct its district engineers ... to increase their emphasis on how the work will affect all aspects of the public interest, including not only navigation but also conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway.” Id., at 6 (emphasis added). The Corps did not react to this “advice” until after the Fifth Circuit’s decision in Zabel v. Tabb, 430 F. 2d 199 (1970). There the court upheld the Corps’ consideration of environmental factors in its permitting decision even though the project would not interfere with navigation, flood control, or power production. After this decision, the Corps began the long process of changing its regulations governing permit application evaluations. See 42 Fed. Reg. 37122 (1977) (describing historical background of the agency’s practice). In 1976, the Corps issued regulations interpreting its statutory authority as empowering it to take into account a full range of economic, social, and environmental factors. See 33 CFR § 209.120(f)(1).
The regulations at issue in this lawsuit, therefore, reflect a broad interpretation of agency power under § 10 that was consistent with the language used by Congress and was well settled by this Court and the Army Corps of Engineers. With respect to the breadth of the Corps’ public interest review, these regulations are substantially the same as those adopted in 1976 and provide:
“(a) Public Interest Review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process. That decision should reflect the national concern for both protection and utilization of important resources. All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.” 33 CFR § 320.4(a)(1) (1991).
These regulations guide the Secretary’s consideration of “public interest” factors to evaluate in determining whether to issue a permit under §10 of the RHA. To the extent Alaska contends that these regulations are invalid because they authorize the Secretary to consider a wider range of factors than just the effects of a project on navigability, we reject this position. The State’s reading of the Secretary’s regulatory authority in this respect is inconsistent with the statute’s language, our cases interpreting it, and the agency’s practice since the late 1960’s.
III
Alaska appears to concede some ground by acknowledging that the Secretary may not be limited solely to issues of navigability in considering whether to issue a § 10 permit. The State in effect contends that, even if the statute authorizes consideration of factors other than just navigability, the regulations authorizing consideration of a project’s consequences on the federal-state boundary exceed the Secretary’s statutory mandate. The regulation at issue provides in pertinent part as follows:
“(f) Effects on limits of the territorial sea. Structures or work affecting coastal waters may modify the coast line or base line from which the territorial sea is measured for purposes of the Submerged Lands Act and international law. . . . Applications for structures or work affecting coastal waters will therefore be reviewed specifically to determine whether the coast line or base line might be altered. If it is determined that such a change might occur, coordination with the Attorney General and the Solicitor of the Department of the Interior is required before final action is taken. The district engineer will... request [the Solicitor’s] comments concerning the effects of the proposed work on the outer continental rights of the United States.... The decision on the application will be made by the Secretary of the Army after coordination with the Attorney General.” 33 CFR §320.4 (1991).
Alaska advances several arguments why such concerns exceed the scope of the Secretary’s authority. We address each in turn.
A
Alaska’s first argument proceeds from the premise that the SLA trumps the RHA for purposes of determining whether the Secretary may condition issuance of a permit on the State’s disclaimer of sovereignty over the accreted submerged lands. The SLA establishes that a coastal State’s boundary extends seaward “to a line three geographical miles distant from its coast line.” 43 U. S. C. § 1312. The seaward boundary of state-owned lands is measured from a base line that is subject to change from natural and artificial alterations. See United States v. California, 381 U. S. 139, 176-177 (1965); United States v. Louisiana (Louisiana Boundary Case), 394 U. S. 11, 40, n. 48 (1969). In applying these rules, Alaska asserts that because the SLA extends a State’s boundary seaward three miles from its coastline and because our decisions have authorized artificial additions to affect determinations of the base line, the Army cannot by agency fiat override the will of Congress, as interpreted by our Court. Cf. Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 376 (1986). According to Alaska, federalism interests should preclude our finding that the RHA confers power on the Secretary to condition issuance of a §10 construction permit on the disclaimer of a change in the preproject federal-state boundary. See Organized Village of Kake v. Egan, 369 U. S. 60 (1962).
The United States responds that Congress has already given the requisite authority to the agency through enactment of the RHA, and that the Secretary appropriately complied with that statute. In the Federal Government’s view, the RHA sets out an absolute prohibition on construction of “any obstruction” in navigable waters, 33 U. S. C. § 403, and vests discretion in the Secretary of the Army to grant exceptions on a case-by-case basis when a structure is recommended by the Army Corps of Engineers. The United States maintains that the Secretary has the discretion to identify relevant considerations for issuing or denying a permit. Cf. Jay v. Boyd, 351 U. S. 345, 353-354 (1956).
We find the United States’ argument to be the more persuasive one. Contrary to Alaska’s position, the agency here is not usurping authority. The Secretary is making no effort to alter the existing rights of a State to sovereignty over submerged lands within three miles of the coastline. The SLA makes this guarantee and nothing in the Corps’ practice, as exercised in this case, alters this right. What the Corps is doing, and what we find a reasonable exercise of agency authority, is to determine whether an artificial addition to the coastline will increase the State’s control over submerged lands to the detriment of the United States’ legitimate interests. If the Secretary so finds, nothing in the SLA prohibits this fact from consideration as part of the “public interest” review process under RHA § 10. Were we to accept Alaska’s position, the Federal Government’s interests in submerged lands outside the State’s zone of control would conceivably become hostage to a State’s plans to add artificial additions to its coastline. And if Alaska’s reading of the applicable law were followed to its logical extreme, the United States would be powerless to protect its interests in submerged lands if a State were to build an artificial addition to the coastline for the sole purpose of gaining sovereignty over submerged lands within the United States’ zone, so long as the project did not affect navigability or cause pollution. Alaska points us to nothing in the SLA or to its legislative history that mandates such a result.
It is important to note that neither the SLA itself, nor any of its legislative history, addresses the question of how artificial additions to the coastline affect the 3-mile limit, as we observed in United States v. California, 381 U. S. 139, 176, and n. 50 (1965). In that case, however, we did hold that international law recognized the seaward expansion of sovereignty through artificial additions to the coastline. Id., at 177. But we also stated that “the Special Master recognized that the United States, through its control over navigable waters, had power to protect its interests from encroachment by unwarranted artificial structures, and that the effect of any future changes could thus be the subject of agreement between the parties.” Id., at 176. Alaska suggests that this language should not be read to vest power in the Secretary to condition permits on sovereignty disclaimers because the Special Master’s report cited by the Court was written prior to enactment of the SLA. Brief for Alaska 26 (citing California, supra, at 143). This contention fails to persuade us, however, because we have already noted that the SLA did not specifically address artificial changes to the coastline, and because our opinion in California sanctioned the mechanism exercised by the Secretary in this case: “Arguments based on the inequity to the United States of allowing California to effect changes in the boundary between federal and state submerged lands by making future artificial changes in the coastline are met, as the Special Master pointed out, by the ability of the United States to protect itself through its power over navigable waters.” 381 U. S., at 177. Such “power over navigable waters” would be meaningless indeed if we were to accept Alaska’s view that RHA § 10 permitted the United States to exercise it only when the State’s project affected navigability or caused pollution.
B
Alaska next contends that our decisions do not permit the Secretary to consider changes in federal-state boundaries as part of the § 10 “public interest” review process. First, the State suggests that such consideration would conflict with our decision in California, supra, at 176-177. In that case we adopted the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U. S. T. 1607, T. I. A. S. No. 5639, for purposes of the SLA, explaining that such a result would establish “a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations (barring an unexpected change in the rules established by the Convention).” 381 U. S., at 165. Because construction of an artificial port facility will, in certain circumstances, cause a change in the United States’ international seaward boundary, Alaska contends that the goal of a “single” coastline will be frustrated if we permit the Secretary to establish, in effect, one boundary for international purposes and a different one for domestic purposes.
As the United States maintains, however, our decision in California did not specify a “goal” of achieving a “single” coastline. Rather, our purpose was to give the SLA a “definiteness and stability.” Such aims, of course, can be achieved without creating perfect symmetry between the Convention and the Act. Stability in a boundary line is achieved when the Secretary decides whether a State must disclaim its rights to accreted submerged lands caused by artificial additions just as surely as it is with ordinary coastline determinations occasioned by natural changes. The State intimates that problems relating to fishing, salvage operations, and criminal jurisdiction will result from “Unstable and unpredictable administrative rules [that] will create confusion in many areas.” Reply Brief for Alaska 6. Such speculative concerns, however, arise only when the 3-mile boundary itself is indefinite. But uncertainty in cases such as this one surely ends when the State disclaims its sovereignty over accreted submerged lands. The 3-mile boundary remains the same. And in those circumstances in which the Secretary does not require a disclaimer and the 3-mile federal-state boundary extends from the new base line, presumably should there arise any of the federal-state problems Alaska identifies, changes in nautical maps could readily be amended to reflect such changes. Nothing in the parties’ lodgings with the Court suggests why fishermen and other sailors who rely on such charts will suffer prejudice by the rule we announce today.
Accordingly, we find no merit in Alaska’s argument that, in conducting the permit review process under RHA § 10, the Secretary cannot consider a project’s effects on the federal-state boundary.
IV
Finally, Alaska maintains that even if the regulations are authorized by the RHA, the Secretary’s actions were not consistent with those regulations. The State argues that nothing in the applicable regulations authorizes the Army Corps of Engineers to force a coastal State to abdicate rights to submerged lands as a condition to issuance of a permit for construction of a shoreline project. Alaska suggests that “the regulation addresses activities on submerged lands, not the property interests in the submerged lands.” Brief for Alaska 28. Nor can the Secretary derive authority to condition disclaimers on interagency coordination responsibilities, according to the State, because 33 CFR § 320.4(g)(6) (1991) states specifically that “dispute[s] over property ownership will not be a factor in the Corps’ public interest decision.” Alaska further posits that the regulations at § 320.4(a)(1), which include numerous factors to be evaluated in balancing the public interest, do not make reference to the United States’ property interests.
As our analysis in Parts III-A and III-B suggests, we do not find this argument persuasive. The regulations indicate that the Corps may include in its evaluation the “effects of the proposed work on the outer continental rights of the United States.” 33 CFR § 320.4(f) (1991). It is untenable to maintain that the legitimate property interests of the United States fall outside the relevant criteria for a decision that requires the Secretary to determine whether issuance of a permit would affect the “public interest.” The regulations at § 320.4(g)(6), upon which Alaska places some weight, clearly do not speak to property disputes of the type at issue here. Moreover, we are unpersuaded by Alaska’s contention that the authority to require disclaimers cannot be inferred from the regulatory scheme. It would make little sense, and be inconsistent with Congress’ intent, to hold that the Corps legitimately may prohibit construction of a port facility, and yet to deny it the authority to seek the less drastic alternative of conditioning issuance of a permit on the State’s disclaimer of rights to accreted submerged lands.
Alaska also makes various challenges to the administrative procedures followed in this case, and especially to the alleged shortcoming of the Secretary in not formalizing the authority to condition disclaimers of sovereignty in the permit-issuance process. The “policy” followed in this case, however, is not contrary to law simply because of its specific omission from the regulations. See United States v. Gaubert, 499 U. S. 315, 324 (1991) (observing that some agencies “establish policy on a case-by-case basis, whether through adjudicatory proceedings or through administration of agency programs”). Certainly the Corps communicated its intention openly to the appropriate state officials, and therefore did not force Alaska “ ‘to litigate with agencies on the basis of secret laws.’” Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1, 9 (1974) (quoting the case below, 151 U. S. App. D. C. 174, 181, 466 F. 2d 345, 352 (1972)). See Joint Stipulation of Facts 24a-25a. The United States avers that such disclaimers have been requested on a case-by-case basis since 1970 and that “Alaska fails to explain why the Corps’ approach is improper or what specific advantages would result from identifying the option through a formal regulation.” Brief for United States in Opposition 16.
We cannot say that in this case the Corps acted in an arbitrary or capricious manner. It notified state officials promptly that the Solicitor of the Interior Department objected to issuance of the permit; it specified a curative option that could be pursued; and it afforded Alaska ample time to consider the disclaimer, to consult with federal officials, and then to draft the disclaimer. See Joint Stipulation of Facts 2-7, App. to Joint Stipulation of Facts lla-16a, 17a-19a, 20a-21a, 22a-23a, 24a, 26a-31a. Nor can Alaska contend that it lacked notice, since the disclaimer it filed in this case is similar in form to those which it has filed in past § 10 permit proceedings. See Joint Lodging of Permits and Disclaimers. We conclude that the Corps’ actions in this case were neither arbitrary nor capricious.
V
Accordingly, we hold that the Secretary of the Army acted within his discretion in conditioning approval of the Nome port facilities construction permit on a disclaimer by Alaska of a change in the federal-state boundary that might be caused by the Nome project. The United States’ motion for summary judgment is granted, and Alaska’s motion for summary judgment is denied.
It is so ordered.
This recitation of the facts is drawn from the Joint Stipulation of Facts filed with the Court on September 6, 1991.
This disclaimer provides in pertinent part:
“1. Subject to paragraph 4 below, the State of Alaska agrees that the coast line and the boundaries of the State of Alaska are not to be deemed to be in any way affected by the construction, maintenance, or operations of the Nome port facility. This document should be construed as a binding disclaimer by the State of Alaska to the effect that the state does not, and will not, treat the Nome port development as extending its coast line for purposes of the Submerged Lands Act, again subject to paragraph 4 below.
“2. This disclaimer is executed solely for the purpose of complying with the conditions recommended by the Solicitor of the Department of the Interior and the Attorney General and maintains the status quo of the baseline and the state-federal boundary. It does not affect property or claims to which Alaska is now entitled. It is not an admission by the State of Alaska or by the United States as to the present location of the shoreline, coast line, or the boundaries of the State of Alaska, and is without prejudice to any contention that any party may now or hereafter make regarding such present location.
“3. This disclaimer is entered without prejudice to Alaska’s right to file an appropriate action leading to a determination whether the Corps of Engineers has the legal authority to require such a disclaimer before issuing a permit for a project which might affect the coast line.
“4. This disclaimer becomes ineffective and without force and effect upon a final determination by a court of competent jurisdiction in any appropriate action that the Corps of Engineers does not have the legal authority to require such a disclaimer before issuing a permit for a project which might affect the coast line.” Joint Stipulation of Facts 3-4.
The Department of the Army permit was later modified to reflect changes in the project. See id., at 5. These changes are not relevant to the legal issues presented in this case.
Although the bidding period closed without receipt of any bids, both sides agree that a live controversy exists in light of their continuing disagreement as to the location of the federal-state boundary and the prospect of future lease sales in the area. We agree that the controversy is not moot, since it involves a continuing controversy about territorial sovereignty over these submerged lands. United States v. Alaska, 422 U. S. 184, 186 (1975).
Alaska reads Pennsylvania Chemical Corp. differently, suggesting that the case does not relate to the scope of the Corps’ permitting authority under RHA § 10, but instead is confined to the issue of how broadly the agency’s prosecutorial discretion should be defined. We disagree. Our analysis of the RHA in that case was not at all contingent on the underlying issue relating to a prosecution rather than a permitting decision. We placed great weight on the reading by the federal courts, which “almost universally agreed, as did the courts below, that § 13 is to be read in accordance with its plain language as imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation.” 411 U. S., at 671. Alaska also cites Wisconsin v. Illinois, 278 U. S. 367, 418 (1929), for the proposition that § 10 only authorizes considerations of navigability in permit issuance decisions. We do not read the case in the same way. In our view, Wisconsin v. Illinois is more properly read to limit the Secretary’s authority to issue a permit for nonnavigability reasons when an effect of the project would be to obstruct navigation. Id., at 417.
The prior version of this regulation stated that “[t]he decision as to whether a permit will be issued must rest primarily upon the effect of the proposed work on navigation.” 33 CFR § 209.330(a) (1967).
Alaska acknowledges, for example, that the Secretary can take into account the polluting consequences of a project, see Brief for Alaska 17, though the language of § 10 includes no mention of such effects. And a brief filed by numerous States and the Coastal States Organization as amici curiae appears to go even further by suggesting that “the Army Corps may deny a permit for the construction of a harbor facility if it is determined that the construction or facility would result in an obstruction to navigation, endanger human health or welfare, the marine environment, or the economic potential.” Brief for Alabama et al. as Amici Curiae 17 (emphasis added). Plainly these factors are not mentioned in RHA § 10. As our analysis will make clear, the United States is fundamentally correct that there is no legal basis for authorizing the Secretary to consider these factors but not the effects of a project on the federal-state boundary.
Indeed, the SLA also excepts from its operation “any rights the United States has in lands presently and actually occupied by the United States under claim of right.” 43 U. S. C. § 1313(a). Furthermore, as to the lands granted to the States, the SLA provides that “[t]he United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the. constitutional purposes of commerce, navigation, national defense, and international affairs.” § 1314(a).
Alaska’s argument is also weakened by the existence of the OCSLA, 43 U. S. C. § 1331 et seq., which provides that the United States has “jurisdiction, control, and power of disposition” over the Outer Continental Shelf, submerged lands identified by Congress as a “vital national resource reserve” of great value. §§ 1332(1) and (3). The “public interest” review undertaken by the Secretary in determining whether to issue a § 10 permit explicitly considers “the effects of the proposed work on the outer continental rights of the United States.” 33 CFR § 320.4(f) (1991). Such a consideration in some form has been part of the equation of factors subject to the Secretary’s review process since 1969. See 33 CFR § 209.120(d)(4) (1969). It is perfectly consistent with the OCSLA for the Secretary to consider a project’s effects on United States’ rights to submerged lands in deciding whether to issue a § 10 permit.
Under international law, artificial alterations to the coastline will extend a country’s boundaries for purposes of determining the territorial sea and exclusive economic zone. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U. S. T. 1607, T. I. A. S. No. 5639, art. 8; Brief for United States 25, n. 6 (stating that “[t]he United States has not ratified [the United Nations Convention on the Law of the Sea], but has recognized that its baseline provisions reflect customary international law”).
We add that variations between international and federal-state boundaries are not uncommon. As we recognized in United States v. California, 381 U. S. 139, 165-166 (1965), changes in Convention rules might render the international and federal-state boundaries noncoincident. In the SLA itself, Congress recognized the possibility that variations between international and federal-state boundaries might occur by providing that a decree fixed by our Court “shall not be ambulatory” even though erosion or accretion may alter the international boundary. 43 U. S. C. § 1301(b). We also note that the President’s proclamation of a 12-mile territorial sea for international law purposes functionally established a distinction between the international and the federal-state boundaries. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 441, n. 8 (1989). Finally, as the United States accurately points out, some coastal States have created or permitted variations between the international boundary and the federal-state boundaries through compromise agreements reached with the United States. See Mississippi v. United States, 498 U. S. 16 (1990).
Alaska also suggests that the regulations at issue in this case conflict with our decision in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), which held that a coastal commission could not condition the granting of a construction permit on the conferring of a public access easement across a landowner’s beach. Alaska quotes language in Nollan to the effect that “unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an ‘out-and-out plan of extortion.’ ” Id., at 837. This rule, however, has no applicability in a situation such as this one, in which we evaluate the statutory authority underlying an agency’s action. Id., at 836. Even were the Nollan situation analogous to that presented here, we note that Alaska would gain no benefit because the purpose behind imposing a condition for issuance of the permit — to protect federal rights to submerged lands — is the same as that for denying the permit.
The State also contests the legality of the Secretary’s actions in this case under the Administrative Procedure Act, 5 U. S. C. § 706, especially the regulations at 33 CFR § 320.4(f) (1991) that authorize the Secretary to take into account changes in the base line in making § 10 permit issuance decisions. Contrary to Alaska’s contention, these regulations were adopted through notice and comment proceedings, see 39 Fed. Reg. 12116 (1974); 38 Fed. Reg. 12217 (1973), as were subsequent amendments, see 61 Fed. Reg. 41220 (1986); 42 Fed. Reg. 37122 (1977).
Indeed, one such disclaimer dated December 1, 1980, for a project in the oil-rich Prudhoe Bay, stated as follows:
“In consideration of the issuance, by the Secretary of the Army or his authorized representative, of a permit for construction of an extension to the ARCO dock at Prudhoe Bay for purposes of the waterflood project designed to result in substantial secondary recovery from the existing Prudhoe Bay oil and gas field, pursuant to the application filed by ARCO and SOHIO, the State of Alaska agrees that the shoreline, coast line, and boundaries of the State of Alaska are not to be deemed to be in any way affected by the construction, maintenance, or operation of such extension. This Agreement should be construed as a binding disclaimer by the State of Alaska to the effect that the State does not, and will not, treat the ARCO dock waterflood extension as extending its coast line for purposes of the Submerged Lands Act.” Joint Lodging of Permits and Disclaimers 5(a)2.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
|
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UNITED STATES DEPARTMENT OF JUSTICE et al. v. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS et al.
No. 87-1379.
Argued December 7, 1988
Decided March 22, 1989
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 780.
Roy T. Englert, Jr., argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Cohen, Leonard Schaitman, and John F. Daly.
Kevin T. Baine argued the cause for respondents. With him on the brief was Paul Mogin
Robert R. Belair and Cathy Cravens Snell filed a brief for Search Group, Inc., et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Newspaper Publishers Association et al. by Richard J. Ovelmev and Laura Besvinick; for the National Association of Retired Federal Employees by Joseph B. Scott and Michael J. Kator; and for Public Citizen et al. by Patti A. Goldman, Alan B. Morrison, and Eric R. Glitzenstein.
Briefs of amici curiae were filed for the State of California by John K. Van de Kamp, Attorney General, N. Eugene Hill, Assistant Attorney General, Paul H. Dobson, Supervising Deputy Attorney General, and Ramon M. de la Guardia, Deputy Attorney General; and for the American Civil Liberties Union by John A. Powell.
Justice Stevens
delivered the opinion of the Court.
The Federal Bureau of Investigation (FBI) has accumulated and maintains criminal identification records, sometimes referred to as “rap sheets,” on over 24 million persons. The question presented by this case is whether the disclosure of the contents of such a file to a third party “could reasonably be expected to constitute an unwarranted invasion of personal privacy” within the meaning of the Freedom of Information Act (FOIA), 5 U. S. C. § 552(b)(7)(C) (1982 ed., Supp. V).
I
In 1924 Congress appropriated funds to enable the Department of Justice (Department) to establish a program to collect and preserve fingerprints and other criminal identification records. 43 Stat. 217. That statute authorized the Department to exchange such information with “officials of States, cities and other institutions.” Ibid. Six years later Congress created the FBI’s identification division, and gave it responsibility for “acquiring, collecting, classifying, and preserving criminal identification and other crime records and the exchanging of said criminal identification records with the duly authorized officials of governmental agencies, of States, cities, and penal institutions.” Ch. 455, 46 Stat. 554 (codified at 5 U. S. C. §340 (1934 ed.)); see 28 U. S. C. § 534(a)(4) (providing for exchange of rap-sheet information among “authorized officials of the Federal Government, the States, cities, and penal and other institutions”). Rap sheets compiled pursuant to such authority contain certain descriptive information, such as date of birth and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations of the subject. Normally a rap sheet is preserved until its subject attains age 80. Because of the volume of rap sheets, they are sometimes incorrect or incomplete and sometimes contain information about other persons with similar names.
The local, state, and federal law enforcement agencies throughout the Nation that exchange rap-sheet data with the FBI do so on a voluntary basis. The principal use of the information is to assist in the detection and prosecution of offenders; it is also used by courts and corrections officials in connection with sentencing and parole decisions. As a matter of executive policy, the Department has generally treated rap sheets as confidential and, with certain exceptions, has restricted their use to governmental purposes. Consistent with the Department’s basic policy of treating these records as confidential, Congress in 1957 amended the basic statute to provide that the FBI’s exchange of rap-sheet information with any other agency is subject to cancellation “if dissemination is made outside the receiving departments or related agencies.” 71 Stat. 61; see 28 U. S. C. § 534(b).
As a matter of Department policy, the FBI has made two exceptions to its general practice of prohibiting unofficial access to rap sheets. First, it allows the subject of a rap sheet to obtain a copy, see 28 CFR §§ 16.30-16.34 (1988); and second, it occasionally allows rap sheets to be used in the preparation of press releases and publicity designed to assist in the apprehension of wanted persons or fugitives. See § 20.33(a)(4).
In addition, on three separate occasions Congress has expressly authorized the release of rap sheets for other limited purposes. In 1972 it provided for such release to officials of federally chartered or insured banking institutions and “if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing . . . .” 86 Stat. 1115. In 1975, in an amendment to the Securities Exchange Act of 1934, Congress permitted the Attorney General to release rap sheets to self-regulatory organizations in the securities industry. See 15 U. S. C. §78q(f)(2) (1982 ed., Supp V). And finally, in 1986 Congress authorized release of criminal-history information to licensees or applicants before the Nuclear Regulatory Commission. See 42 U. S. C. § 2169(a). These three targeted enactments — all adopted after the FOIA was passed in 1966 — are consistent with the view that Congress understood and did not disapprove the FBI’s general policy of treating rap sheets as nonpublic documents.
Although much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited. Arrests, indictments, convictions, and sentences are public events that are usually documented in court records. In addition, if a person’s entire criminal history transpired in a single jurisdiction, all of the contents of his or her rap sheet may be available upon request in that jurisdiction. That possibility, however, is present in only three States. All of the other 47 States place substantial restrictions on the availability of criminal-history summaries even though individual events in those summaries are matters of public record. Moreover, even in Florida, Wisconsin, and Oklahoma, the publicly available summaries may not include information about out-of-state arrests or convictions.
II
The statute known as the FOIA is actually a part of the Administrative Procedure Act (APA). Section 3 of the APA as enacted in 1946 gave agencies broad discretion concerning the publication of governmental records. In 1966 Congress amended that section to implement “ ‘a general philosophy of full agency disclosure.”’ The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U. S. C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not published in the Federal Register, § 552(a)(2). In addition, § 552(a)(3) requires every agency “upon any request for records which . . . reasonably describes such records” to make such records “promptly available to any person.” If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden “on the agency to sustain its action” and directs the district courts to “determine the matter de novo.”
Congress exempted nine categories of documents from the FOIA’s broad disclosure requirements. Three of those exemptions are arguably relevant to this case. Exemption 3 applies to documents that are specifically exempted from disclosure by another statute. § 552(b)(3). Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). Exemption 7(C) excludes records or information compiled for law enforcement purposes, “but only to the extent that the production of such [materials] . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C).
Exemption 7(C)’s privacy language is broader than the comparable language in Exemption 6 in two respects. First, whereas Exemption 6 requires that the invasion of privacy be “clearly unwarranted,” the adverb “clearly” is omitted from Exemption 7(C). This omission is the product of a 1974 amendment adopted in response to concerns expressed by the President. Second, whereas Exemption 6 refers to disclosures that “would constitute” an invasion of privacy, Exemption 7(C) encompasses any disclosure that “could reasonably be expected to constitute” such an invasion. This difference is also the product of a specific amendment. Thus, the standard for evaluating a threatened invasion of privacy interests resulting from the disclosure of records compiled for law enforcement purposes is somewhat broader than the standard applicable to personnel, medical, and similar files.
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This case arises out of requests made by a CBS news correspondent and the Reporters Committee for Freedom of the Press (respondents) for information concerning the criminal records of four members of the Medico family. The Pennsylvania Crime Commission had identified the family’s company, Medico Industries, as a legitimate business dominated by organized crime figures. Moreover, the company allegedly had obtained a number of defense contracts as a result of an improper arrangement with a corrupt Congressman.
The FOIA requests sought disclosure of any arrests, indictments, acquittals, convictions, and sentences of any of the four Medicos. Although the FBI originally denied the requests, it provided the requested data concerning three of the Medicos after their deaths. In their complaint in the District Court, respondents sought the rap sheet for the fourth, Charles Medico (Medico), insofar as it contained “matters of public record.” App. 33.
The parties filed cross-motions for summary judgment. Respondents urged that any information regarding “a record of bribery, embezzlement or other financial crime” would potentially be a matter of special public interest. Id., at 97. In answer to that argument, the Department advised respondents and the District Court that it had no record of any financial crimes concerning Medico, but the Department continued to refuse to confirm or deny whether it had any information concerning nonfinancial crimes. Thus, the issue was narrowed to Medico’s nonfinancial-crime history insofar as it is a matter of public record.
The District Court granted the Department’s motion for summary judgment, relying on three separate grounds. First, it concluded that 28 U. S. C. § 534, the statute that authorizes the exchange of rap-sheet information with other official agencies, also prohibits the release of such information to members of the public, and therefore that Exemption 3 was applicable. Second, it decided that files containing rap sheets were included within the category of “personnel and medical files and similar files the disclosure of which would constitute an unwarranted invasion of privacy,” and therefore that Exemption 6 was applicable. The term “similar files” applied because rap-sheet information “is personal to the individual named therein.” App. to Pet. for Cert. 56a. After balancing Medico’s privacy interest against the public interest in disclosure, the District Court concluded that the invasion of privacy was “clearly unwarranted.” Finally, the court held that the rap sheet was also protected by Exemption 7(C), but it ordered the Department to file a statement containing the requested data in camera to give it an opportunity to reconsider the issue if, after reviewing that statement, such action seemed appropriate. After the Department made that filing, the District Court advised the parties that it would not reconsider the matter, but it did seal the in camera submission and make it part of the record on appeal.
The Court of Appeals reversed. 259 U. S. App. D. C. 426, 816 F. 2d 730 (1987). It held that an individual’s privacy interest in criminal-history information that is a matter of public record was minimal at best. Noting the absence of any statutory standards by which to judge the public interest in disclosure, the Court of Appeals concluded that it should be bound by the state and local determinations that such information should be made available to the general public. Accordingly, it held that Exemptions 6 and 7(C) were inapplicable. It also agreed with respondents that Exemption 3 did not apply because 28 U. S. C. § 534 did not qualify as a statute “specifically” exempting rap sheets from disclosure.
In response to rehearing petitions advising the court that, contrary to its original understanding, most States had adopted policies of refusing to provide members of the public with criminal-history summaries, the Court of Appeals modified its holding. 265 U. S. App. D. C. 365, 831 F. 2d 1124 (1987). With regard to the public interest side of the balance, the court now recognized that it could not rely upon state policies of disclosure. However, it adhered to its view that federal judges are not in a position to make “idiosyncratic” evaluations of the public interest in particular disclosures, see 259 U. S. App. D. C., at 437, 816 F. 2d, at 741; instead, it directed district courts to consider “the general disclosure policies of the statute.” 265 U. S. App. D. C., at 367, 831 F. 2d, at 1126. With regard to the privacy interest in nondisclosure of rap sheets, the court told the District Court “only to make a factual determination in these kinds of cases: Has a legitimate privacy interest of the subject in his rap sheets faded because they appear on the public record?” Id., at 368, 831 F. 2d, at 1127. In accordance with its initial opinion, it remanded the case to the District Court to determine whether the withheld information is publicly available at its source, and if so, whether the Department might satisfy its statutory obligation by referring respondents to the enforcement agency or agencies that had provided the original information.
Although he had concurred in the Court of Appeals’ original disposition, Judge Starr dissented, expressing disagreement with the majority on three points. First, he rejected the argument that there is no privacy interest in “cumulative, indexed, computerized” data simply because the underlying information is on record at local courthouses or police stations:
“As I see it, computerized data banks of the sort involved here present issues considerably more difficult than, and certainly very different from, a case involving the source records themselves. This conclusion is buttressed by what I now know to be the host of state laws requiring that cumulative, indexed criminal history information be kept confidential, as well as by general Congressional indications of concern about the privacy implications of computerized data banks. See H. R. Rep. No. 1416, 93d Cong., 2d Sess. 3, 6-9 (1974), reprinted in Legislative History of the Privacy Act of 1974-, Source Book on Privacy, 296, 299-302 (1974).” Id., at 369, 831 F. 2d, at 1128.
Second, Judge Starr concluded that the statute required the District Court to make a separate evaluation of the public interest in disclosure depending upon the kind of use that would be made of the information and the identity of the subject:
“Although there may be no public interest in disclosure of the FBI rap sheet of one’s otherwise inconspicuously anonymous next-door neighbor, there may be a significant public interest — one that overcomes the substantial privacy interest at stake — in the rap sheet of a public figure or an official holding high governmental office. For guidance in fleshing out that analysis, it seems sensible to me to draw upon the substantial body of defamation law dealing with ‘public personages.’” Id., at 370, 831 F. 2d, at 1129.
Finally, he questioned the feasibility of requiring the Department to determine the availability of the requested material at its source, and expressed concern that the majority’s approach departed from the original purpose of the FOIA and threatened to convert the Federal Government into a clearinghouse for personal information that had been collected about millions of persons under a variety of different situations:
“We are now informed that many federal agencies collect items of information on individuals that are ostensibly matters of public record. For example, Veterans Administration and Social Security records include birth certificates, marriage licenses, and divorce decrees (which may recite findings of fault); the Department of Housing and Urban Development maintains data on millions of home mortgages that are presumably ‘public records’ at county clerks’ offices. . . . Under the majority’s approach, in the absence of state confidentiality laws, there would appear to be a virtual per se rule requiring all such information to be released. The federal government is thereby transformed in one fell swoop into the clearinghouse for highly personal information, releasing records on any person, to any requester, for any purpose. This Congress did not intend.” Id., at 371, 831 F. 2d, at 1130 (emphasis in original).
The Court of Appeals denied rehearing en banc, with four judges dissenting. App. to Pet. for Cert. 64a-66a. Because of the potential effect of the Court of Appeals’ opinion on values of personal privacy, we granted certiorari. 485 U. S. 1005 (1988). We now reverse.
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Exemption 7(C) requires us to balance the privacy interest in maintaining, as the Government puts it, the “practical obscurity” of the rap sheets against the public interest in their release.
The preliminary question is whether Medico’s interest in the nondisclosure of any rap sheet the FBI might have on him is the sort of “personal privacy” interest that Congress intended Exemption 7(C) to protect. As we have pointed out before, “[t]he cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 598-600 (1977) (footnotes omitted). Here, the former interest, “in avoiding disclosure of personal matters,” is implicated. Because events summarized in a rap sheet have been previously disclosed to the public, respondents contend that Medico’s privacy interest in avoiding disclosure of a federal compilation of these events approaches zero. We reject respondents’ cramped notion of personal privacy.
To begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster’s initial definition, information may be classified as “private” if it is “intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.” Recognition of this attribute of a privacy interest supports the distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal-history files demonstrates that the individual items of information in the summaries would not otherwise be “freely available” either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were “freely available,” there would be no reason to invoke the FOIA to obtain access to the information they contain. Granted, in many contexts the fact that information is not freely available is no reason to exempt that information from a statute generally requiring its dissemination. But the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information. Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.
This conclusion is supported by the web of federal statutory and regulatory provisions that limits the disclosure of rap-sheet information. That is, Congress has authorized rap-sheet dissemination to banks, local licensing officials, the securities industry, the nuclear-power industry, and other law enforcement agencies. See supra, at 752-753. Further, the FBI has permitted such disclosure to the subject of the rap sheet and, more generally, to assist in the apprehension of wanted persons or fugitives. See supra, at 752. Finally, the FBI’s exchange of rap-sheet information “is subject to cancellation if dissemination is made outside the receiving departments or related agencies.” 28 U. S. C. § 534(b). This careful and limited pattern of authorized rap-sheet disclosure fits the dictionary definition of privacy as involving a restriction of information “to the use of a particular person or group or class of persons.” Moreover, although perhaps not specific enough to constitute a statutory exemption under FOIA Exemption 3, 5 U. S. C. § 552(b)(3), these statutes and regulations, taken as a whole, evidence a congressional intent to protect the privacy of rap-sheet subjects, and a concomitant recognition of the power of compilations to affect personal privacy that outstrips the combined power of the bits of information contained within.
Other portions of the FOIA itself bolster the conclusion that disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind. Specifically, the FOIA provides that “[t]o the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction.” 5 U. S. C. § 552(a)(2). Additionally, the FOIA assures that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under [§ (b)].” 5 U. S. C. §552(b) (1982 ed., Supp. V). These provisions, for deletion of identifying references and disclosure of segregable portions of records with exempt information deleted, reflect a congressional understanding that disclosure of records containing personal details about private citizens can infringe significant privacy interests.
Also supporting our conclusion that a strong privacy interest inheres in the nondisclosure of compiled computerized information is the Privacy Act of 1974, codified at 5 U. S. C. § 552a (1982 ed. and Supp. V). The Privacy Act was passed largely out of concern over “the impact of computer data banks on individual privacy.” H. R. Rep. No. 93-1416, p. 7 (1974). The Privacy Act provides generally that “[n]o agency shall disclose any record which is contained in a system of records . . . except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5 U. S. C. §552a(b) (1982 ed., Supp. V). Although the Privacy Act contains a variety of exceptions to this rule, including an exemption for information required to be disclosed under the FOIA, see 5 U. S. C. §552a(b)(2), Congress’ basic policy concern regarding the implications of computerized data banks for personal privacy is certainly relevant in our consideration of the privacy interest affected by dissemination of rap sheets from the FBI computer.
Given this level of federal concern over centralized data bases, the fact that most States deny the general public access to their criminal-history summaries should not be surprising. As we have pointed out, see supra, at 753, and n. 2, in 47 States nonconviction data from criminal-history summaries are not available at all, and even conviction data are “generally unavailable to the public.” See n. 2, supra. State policies, of course, do not determine the meaning of a federal statute, but they provide evidence that the law enforcement profession generally assumes — as has the Department of Justice — that individual subjects have a significant privacy interest in their criminal histories. It is reasonable to presume that Congress legislated with an understanding of this professional point of view.
In addition to the common-law and dictionary understandings, the basic difference between scattered bits of criminal history and a federal compilation, federal statutory provisions, and state policies, our cases have also recognized the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public. Most apposite for present purposes is our decision in Department of Air Force v. Rose, 425 U. S. 352 (1976). New York University law students sought Air Force Academy Honor and Ethics Code case summaries for a law review project on military discipline. The Academy had already publicly posted these summaries on 40 squadron bulletin boards, usually with identifying names redacted (names were posted for cadets who were found guilty and who left the Academy), and with instructions that cadets should read the summaries only if necessary. Although the opinion dealt with Exemption 6’s exception for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” and our opinion today deals with Exemption 7(C), much of our discussion in Rose is applicable here. We explained that the FOIA permits release of a segregable portion of a record with other portions deleted, and that in camera inspection was proper to determine whether parts of a record could be released while keeping other parts secret. See id., at 373-377; 5 U. S. C. §§ 552(b) and (a)(4)(B) (1982 ed. and Supp. V). We emphasized the FOIA’s segregability and in camera provisions in order to explain that the case summaries, with identifying names redacted, were generally disclosable. We then offered guidance to lower courts in determining whether disclosure of all or part of such case summaries would constitute a “clearly unwarranted invasion of personal privacy” under Exemption 6:
“Respondents sought only such disclosure as was consistent with [the Academy tradition of keeping identities confidential within the Academy], Their request for access to summaries ‘with personal references or other identifying information deleted,’ respected the confidentiality interests embodied in Exemption 6. As the Court of Appeals recognized, however, what constitutes identifying information regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar, as fellow cadets or Academy staff, with other aspects of his career at the Academy. Despite the summaries’ distribution within the Academy, many of this group with earlier access to summaries may never have identified a particular cadet, or may have wholly forgotten his encounter with Academy discipline. And the risk to the privacy interests of a former cadet, particularly one who has remained in the military, posed by his identification by otherwise unknowing former colleagues or instructors cannot be rejected as trivial. We nevertheless conclude that consideration of the policies underlying the Freedom of Information Act, to open public business to public view when no ‘clearly unwarranted’ invasion of privacy will result, requires affirmance of the holding of the Court of Appeals . . . that although ‘no one can guarantee that all those who are “in the know” will hold their tongues, particularly years later when time may have eroded the fabric of cadet loyalty,’ it sufficed to protect privacy at this stage in these proceedings by enjoining the District Court. . . that if in its opinion deletion of personal references and other identifying information ‘is not sufficient to safeguard privacy, then the summaries should not be disclosed to [respondents].’” 425 U. S., at 380-381.
See also id., at 387-388 (Blackmun, J., dissenting); id., at 389-390 (Rehnquist, J., dissenting). In this passage we doubly stressed the importance of the privacy interest implicated by disclosure of the case summaries. First: We praised the Academy’s tradition of protecting personal privacy through redaction of names from the case summaries. But even with names redacted, subjects of such summaries can often be identified through other, disclosed information. So, second: Even though the summaries, with only names redacted, had once been public, we recognized the potential invasion of privacy through later recognition of identifying details, and approved the Court of Appeals’ rule permitting the District Court to delete “other identifying information” in order to safeguard this privacy interest. If a cadet has a privacy interest in past discipline that was once public but may have been “wholly forgotten,” the ordinary citizen surely has a similar interest in the aspects of his or her criminal history that may have been wholly forgotten.
We have also recognized the privacy interest in keeping personal facts away from the public eye. In Whalen v. Roe, 429 U. S. 589 (1977), we held that “the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor’s prescription, certain drugs for which there is both a lawful and an unlawful market.” Id., at 591. In holding only that the Federal Constitution does not prohibit such a compilation, we recognized that such a centralized computer file posed a “threat to privacy”:
“We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy.” Id., at 605 (footnote omitted); see also id., at 607 (Brennan, J., concurring) (“The .central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information . . .”).
In sum, the fact that “an event is not wholly 'private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?, Nelson Timothy Stephens Lectures, University of Kansas Law School, pt. 1, p. 13 (Sept. 26-27, 1974). The privacy interest in a rap sheet is substantial. The substantial character of that interest is affected by the fact that in today’s society the computer can accumulate and store information that would otherwise have surely been forgotten long before a person attains age 80, when the FBI’s rap sheets are discarded.
V
Exemption 7(C), by its terms, permits an agency to withhold a document only when revelation “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” We must next address what factors might warrant an invasion of the interest described in Part IV, supra.
Our previous decisions establish that whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made. Except for cases in which the objection to disclosure is based on a claim of privilege and the person requesting disclosure is the party protected by the privilege, the identity of the requesting party has no bearing on the merits of his or her FOIA request. Thus, although the subject of a presentence report can waive a privilege that might defeat a third party’s access to that report, United States Department of Justice v. Julian, 486 U. S. 1, 13-14 (1988), and although the FBI’s policy of granting the subject of a rap sheet access to his own criminal history is consistent with its policy of denying access to all other members of the general public, see supra, at 752, the rights of the two press respondents in this case are no different from those that might be asserted by any other third party, such as a neighbor or prospective employer. As we have repeatedly stated, Congress “clearly intended” the FOIA “to give any member of the public as much right to disclosure as one with a special interest [in a particular document].” NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 149 (1975); see NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 221 (1978); FBI v. Abramson, 456 U. S. 615 (1982). As Professor Davis explained: “The Act’s sole concern is with what must be made public or not made public.”
Thus whether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to “the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’” Department of Air Force v. Rose, 425 U. S., at 372, rather than on the particular purpose for which the document is being requested. In our leading case on the FOIA, we declared that the Act was designed to create a broad right of access to “official information. ” ERA v. Mink, 410 U. S. 73, 80 (1973). In his dissent in that case, Justice Douglas characterized the philosophy of the statute by quoting this comment by Henry Steele Commager:
“‘The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.’” Id., at 105 (quoting from The New York Review of Books, Oct. 5, 1972, p. 7) (emphasis added).
This basic policy of “ ‘full agency disclosure unless information is exempted under clearly delineated statutory language,’” Department of Air Force v. Rose, 425 U. S., at 360-361 (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)), indeed focuses on the citizens’ right to be informed about “what their government is up to.” Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct. In this case — and presumably in the typical case in which one private citizen is seeking information about another — the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records. Indeed, response to this request would not shed any light on the conduct of any Government agency or official.
The point is illustrated by our decision in Rose, supra. As discussed earlier, we held that the FOIA required the United States Air Force to honor a request for in camera submission of disciplinary-hearing summaries maintained in the Academy’s Honors and Ethics Code reading files. The summaries obviously contained information that would explain how the disciplinary procedures actually functioned and therefore were an appropriate subject of a FOIA request. All parties, however, agreed that the files should be redacted by deleting information that would identify the particular cadets to whom the summaries related. The deletions were unquestionably appropriate because the names of the particular cadets were irrelevant to the inquiry into the way the Air Force Academy administered its Honor Code; leaving the identifying material in the summaries would therefore have been a “clearly unwarranted” invasion of individual privacy. If, instead of seeking information about the Academy’s own conduct, the requests had asked for specific files to obtain information-about the persons to whom those files related, the public interest that supported the decision in Rose would have been inapplicable. In fact, we explicitly recognized that “the basic purpose of the [FOIA is] to open agency action to the light of public scrutiny.” Id., at 372.
Respondents argue that there is a twofold public interest in learning about Medico’s past arrests or convictions: He allegedly had improper dealings with a corrupt Congressman, and he is an officer of a corporation with defense contracts. But if Medico has, in fact, been arrested or convicted of certain crimes, that information would neither aggravate nor mitigate his allegedly improper relationship with the Congressman; more specifically, it would tell us nothing directly about the character of the Congressman’s behavior. Nor would it tell us anything about the conduct of the Department of Defense (DOD) in awarding one or more contracts to the Medico Company. Arguably a FOIA request to the DOD for records relating to those contracts, or for documents describing the agency’s procedures, if any, for determining whether officers of a prospective contractor have criminal records, would constitute an appropriate request for “official information.” Conceivably Medico’s rap sheet would provide details to include in a news story, but, in itself, this is not the kind of public interest for which Congress enacted the FOIA. In other words, although there is undoubtedly some public interest in anyone’s criminal history, especially if the history is in some way related to the subject’s dealing with a public official or agency, the FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed. Thus, it should come as no surprise that in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about a particular private citizen.
What we have said should make clear that the public interest in the release of any rap sheet on Medico that may exist is not the type of interest protected by the FOIA. Medico may or may not be one of the 24 million persons for whom the FBI has a rap sheet. If respondents are entitled to have the FBI tell them what it knows about Medico’s criminal history, any other member of the public is entitled to the same disclosure — whether for writing a news story, for deciding whether to employ Medico, to rent a house to him, to extend credit to him, or simply to confirm or deny a suspicion. There is, unquestionably, some public interest in providing interested citizens with answers to their questions about Medico. But that interest falls outside the ambit of the public interest that the FOIA was enacted to serve.
Finally, we note that Congress has provided that the standard fees for production of documents under the FOIA shall be waived or reduced “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U. S. C. § 552(a)(4)(A)(iii) (1982 ed., Supp. V). Although such a provision obviously implies that there will be requests that do not meet such a “public interest” standard, we think it relevant to today’s inquiry regarding the public interest in release of rap sheets on private citizens that Congress once again expressed the core purpose of the FOIA as “contribut[ing] significantly to public understanding of the operations or activities of the government.”
< HH
Both the general requirement that a court “shall determine the matter de novo” and the specific reference to an “unwarranted” invasion of privacy in Exemption 7(C) indicate that a court must balance the public interest in disclosure against the interest Congress intended the Exemption to protect. Although both sides agree that such a balance must be undertaken, how such a balance should be done is in dispute. The Court of Appeals majority expressed concern about assigning federal judges the task of striking a proper case-by-case, or ad hoc, balance between individual privacy interests and the public interest in the disclosure of criminal-history information without providing those judges standards to assist in performing that task. Our cases provide support for the proposition that categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction. The point is well illustrated by both the majority and dissenting opinions in NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978).
In Robbins, the majority held that Exemption 7(A), which protects from disclosure law enforcement records or information that “could reasonably-be expected to interfere with enforcement proceedings,” applied to statements of witnesses whom the National Labor Relations Board (NLRB or Board) intended to call at an unfair-labor-practice hearing. Although we noted that the language of Exemptions 7(B), (C), and (D) seems to contemplate a case-by-case showing “that the factors made relevant by the statute are present in each distinct situation,” id., at 223; see id., at 234, we concluded that Exemption 7(A) “appears to contemplate that certain generic determinations might be made.” Id., at 224. Thus, our ruling encompassed the entire category of NLRB witness statements, and a concurring opinion pointed out that the category embraced enforcement proceedings by other agencies as well. See id., at 243 (Stevens, J., concurring). In his partial dissent, Justice Powell endorsed the Court’s “generic” approach to the issue, id., at 244; he agreed that “the congressional requirement of a specific showing of harm does not prevent determinations of likely harm with respect to prehearing release of particular categories of documents.” id., at 249. In his view, however, the exempt category should have been limited to statements of witnesses who were currently employed by the respondent. To be sure, the majority opinion in Robbins noted that the phrases “‘a person,’” “‘an unwarranted invasion,”’ and “‘a confidential source,”’ in Exemptions 7(B), (C), and (D), respectively, seem to imply a need for an individualized showing in every case (whereas the plural “ ‘enforcement proceedings’ ” in Exemption 7(A) implies a categorical determination). See id., at 223-224. But since only an Exemption 7(A) question was presented in Robbins, we conclude today, upon closer inspection of Exemption 7(C), that for an appropriate class of law enforcement records or information a categorical balance may be undertaken there as well.
First: A separate discussion in Robbins applies properly to Exemption 7(C) as well as to Exemption 7(A). Respondent had argued that “because FOIA expressly provides for disclosure of segregable portions of records and for in camera review of documents, and because the statute places the burden of justifying nondisclosure on the Government, 5 U. S. C. §§ 552(a)(4)(B), (b) (1976 ed.), the Act necessarily contemplates that the Board must specifically demonstrate in each case that disclosure of the particular witness’ statement would interfere with a pending enforcement proceeding.” 437 U. S., at 224. We rejected this argument, holding instead that these provisions could equally well apply to categorical balancing. This holding — that the provisions regarding segregability, in camera inspections, and burden of proof do not by themselves mandate case-by-case balancing — is a general one that applies to all exemptions.
Second: Although Robbins noted that Exemption 7(C) speaks of “an unwarranted invasion of personal privacy” (emphasis added), we do not think that the Exemption’s use of the singular mandates ad hoc balancing. The Exemption in full provides: “This section does not apply to matters that are — records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” "Just as one can ask whether a particular rap sheet is a “law enforcement record” that meets the requirements of this Exemption, so too can one ask whether rap sheets in general (or at least on private citizens) are “law enforcement records” that meet the stated criteria. If it is always true that the damage to a private citizen’s privacy interest from a rap sheet’s production outweighs the FOIA-based public value of such disclosure, then it is perfectly appropriate to conclude as a categorical matter that “production of such [rap sheets] could reasonably be expected to constitute an unwarranted invasion of personal privacy.” In sum, Robbins’ focus on the singular “an” in the phrase “an unwarranted invasion of personal privacy” is not a sufficient reason to hold that Exemption 7(C) requires ad hoc balancing.
Third: In FTC v. Grolier Inc., 462 U. S. 19 (1983), we also supported categorical balancing. Respondent sought FTC documents concerning an investigation of a subsidiary. At issue were seven documents that would normally be exempt from disclosure under Exemption 5, which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U. S. C. § 552(b)(5). The Court of Appeals held that four of the documents “could not be withheld on the basis of the work-product rule unless the Commission could show that ‘litigation related to the terminated action exists or potentially exists.’” 462 U. S., at 22. We reversed, concluding that even if in some instances civil-discovery rules would permit such disclosure, “[s]uch materials are . . . not ‘routinely’ or ‘normally’ available to parties in litigation and hence are exempt under Exemption 5.” Id., at 27. We added that “[t]his result, by establishing a discrete category of exempt information, implements the congressional intent to provide ‘workable’ rules. . . . Only by construing the Exemption to provide a categorical rule can the Act’s purpose of expediting disclosure by means of workable rules be furthered.” Id., at 27-28 (emphasis added).
Finally: The privacy interest in maintaining the practical obscurity of rap-sheet information will always be high. When the subject of such a rap sheet is a private citizen and when the information is in the Government’s control as a compilation, rather than as a record of “what the Government is up to,” the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir. See Parts IV and V, supra. Such a disparity on the scales of justice holds for a class of cases without regard to individual circumstances; the standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be avoided. Accordingly, we hold as a categorical matter that a third party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no “official information” about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is “unwarranted.” The judgment of the Court of Appeals is reversed.
It is so ordered.
See Fla. Stat. §943.053(3) (1987); Wis. Stat. §19.35 (1987-1988); and Okla. Stat., Tit. 51, §24A.8 (Supp. 1988).
The brief filed on behalf of Search Group, Inc., and other amici curiae contains the following summary description of the dissemination policies in 47 States:
“Conviction data, although generally unavailable to the public, is often available to governmental non-criminal justice agencies and even private employers. In general, conviction data is far more available outside the criminal justice system than is nonconviction data. By contrast, in all 47 states nonconviction data cannot be disclosed at all for non-criminal justice purposes, or may be disclosed only in narrowly defined circumstances, for specified purposes.” Brief for Search Group, Inc., et al. as amici curiae 40 (footnotes omitted); see also Brief for Petitioner 27, n. 13.
A number of States, while requiring disclosure of police blotters and event-based information, deny the public access to personal arrest data such as rap sheets. See Houston Chronicle Publishing Co. v. Houston, 531 S. W. 2d 177 (Tex. Civ. App. 1975), aff’d, 536 S. W. 2d 559 (Tex. 1976); Stephens v. Van Arsdale, 227 Kan. 676, 608 P. 2d 972 (1980).
“The section was plagued with vague phrases, such as that exempting from disclosure ‘any function of the United States requiring secrecy in the public interest.’ Moreover, even ‘matters of official record’ were only to be made available to ‘persons properly and directly concerned’ with the information. And the section provided no remedy for wrongful withholding of information.” EPA v. Mink, 410 U. S. 73, 79 (1973).
Department of Air Force v. Rose, 425 U. S. 352, 360 (1976) (quoting S. Rep. No. 813,'89th Cong., 1st Sess., 3 (1965)).
Title 5 U. S. C. § 552(a)(3) provides:
“Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”
Section 552(a)(4)(B) provides:
“(B) On complaint, the district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.”
Congress employed similar language earlier in the statute to authorize an agency to delete identifying details that might otherwise offend an individual’s privacy:
“To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction.” § 552(a)(2).
See 120 Cong. Rec. 33158-33159 and 34162-34163 (1974).
See 132 Cong. Rec. 27189 and 31414-31415 (1986). Although the move from the “would constitute” standard to the “could reasonably be expected to constitute” standard represents a considered congressional effort “to ease considerably a Federal law enforcement agency’s burden in invoking [Exemption 7],” id., at 31424, there is no indication that the shift was intended to eliminate de novo review in favor of agency deference in Exemption 7(C) cases. Rather, although district courts still operate under the general de novo review standard of 5 U. S. C. § 552(a)(4)(B), in determining the impact on personal privacy from disclosure of law enforcement records or information, the stricter standard of whether such disclosure “would” constitute an unwarranted invasion of such privacy gives way to the more flexible standard of whether such disclosure “could reasonably be expected to” constitute such an invasion.
“Thg compile such records is set forth in 28 U. S. C. § 534. That section provides that the Attorney General is to ‘acquire, collect, classify, and preserve identification, criminal identification, crime and other records’ and that he is to ‘exchange these records with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions.’ Significantly, however, the section goes on to provide that ‘[t]he exchange of records authorized by [the section] is subject to cancellation if dissemination is made outside the receiving departments or related agencies.’ Section 534(b).
“This Court is satisfied that pursuant to the above section, the information acquired and collected by the Attorney General may be released only to the agencies, organizations or states set forth in that section, and may not be released to the general public. Thus, the information is ‘[s]pecifi-cally exempted from disclosure by statute [28 U. S. C. § 534]’ which ‘requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.’ The Court therefore concludes that if the defendants have collected and maintained a rap sheet related to Charles Medico, that rap sheet is exempt from disclosure pursuant to Exemption 3.” App. to Pet. for Cert. 55a.
“It seems highly unlikely that information about offenses which may have occurred 30 or 40 years ago, as in the case of William Medico, would have any relevance or public interest. The same can be said for information relating to the arrest or conviction of persons for minor criminal offenses or offenses which are completely unrelated to anything now under consideration by the plaintiffs. That information is personal to the third party (Charles Medico), and it if [sic] exists, its release would constitute ‘a clearly unwarranted invasion of personal privacy.’ The Court concludes therefore that those documents and that information are exempt from disclosure pursuant to 5 U. S. C. §552(b)(6) and (7)(C).” Id., at 57a.
Because Exemption 7(C) covers this case, there is no occasion to address the application of Exemption 6.
The question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question whether a tort action might lie for invasion of privacy or the question whether an individual’s interest in privacy is protected by the Constitution. See, e. g., Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975) (Constitution prohibits State from penalizing publication of name of deceased rape victim obtained from public records); Paul v. Davis, 424 U. S. 693, 712-714 (1976) (no constitutional privacy right affected by publication of name of arrested but untried shoplifter).
See Karst, “The Files”: Legal Controls Over the Accuracy and Accessibility of Stored Personal Data, 31 Law & Contemp. Prob. 342, 343-344 (1966) (“Hardly anyone in our society can keep altogether secret very many facts about himself. Almost every such fact, however personal or sensitive, is known to someone else. Meaningful discussion of privacy, therefore, requires the recognition that ordinarily we deal not with an interest in total nondisclosure but with an interest in selective disclosure”).
See Warren & Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890-1891) (“The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. . . . [E]ven if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them”). The common law recognized that one did not necessarily forfeit a privacy interest in matters made part of the public record, albeit the privacy interest was diminished and another who obtained the facts from the public record might be privileged to publish it. See Cox Broadcasting Corp. v. Cohn, 420 U. S., at 494-495 (“[T]he interests in privacy fade when the information involved already appears on the public record”) (emphasis supplied). See also Restatement (Second) of Torts § 652D, pp. 385-386 (1977) (“[T]here is no liability for giving publicity to facts about the plaintiff’s life that are matters of public record, such as the date of his birth .... On the other hand, if the record is one not open to public inspection, as in the case of income tax returns, it is not public and there is an invasion of privacy when it is made so”); W. Keeton, D. Dobbs, R. Keeton, & D. Owens, Prosser & Keeton on Law of Torts § 117, p. 859 (5th ed. 1984) (“[MJerely because [a fact] can be found in a public recor[d] does not mean that it should receive widespread publicity if it does not involve a matter of public concern”).
See Webster’s Third New International Dictionary 1804 (1976). See also A. Breckenridge, The Right to Privacy 1 (1970) (“Privacy, in my view, is the rightful claim of the individual to determine the extent to which he wishes to share of himself with others. ... It is also the individual’s right to control dissemination of information about himself”); A. Westin, Privacy and Freedom 7 (1967) (“Privacy is the claim of individuals ... to determine for themselves when, how, and to what extent information about them is communicated to others”); Project, Government Information and the Rights of Citizens, 73 Mich. L. Rev. 971, 1225 (1974-1975) (“[T]he right of privacy is the right to control the flow of information concerning the details of one’s individuality”).
The Court of Appeals reversed the District Court’s holding in favor of petitioners on the Exemption 3 issue, and petitioners do not renew their Exemption 3 argument before this Court. See Pet. for Cert. 6, n. 1.
See S. Rep. No. 813, 89th Cong., 1st Sess., 7 (1965) (“The authority to delete identifying details after written justification is necessary in order to be able to balance the public’s right to know with the private citizen’s right to be secure in his personal affairs which have no bearing or effect on the general public. For example, it may be pertinent to know that unseasonably harsh weather has caused an increase in public relief costs; but it is not necessary that the identity of any person so affected be made public”); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 8 (1966) (“The public has a need to know, for example, the details of an agency opinion or statement of policy on an income tax matter, but there is no need to identify the individuals involved in a tax matter if the identification has no bearing or effect on the general public”). Both public relief and income tax assessments — like law enforcement — are proper subjects of public concern. But just as the identity of the individuals given public relief or involved in tax matters is irrelevant to the public’s understanding of the Government’s operation, so too is the identity of individuals who are the subjects of rap sheets irrelevant to the public’s understanding of the system of law enforcement. For rap sheets reveal only the dry, chronological, personal history of individuals who have had brushes with the law, and tell us nothing about matters of substantive law enforcement policy that are properly the subject of public concern.
Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 765 (1966-1967), quoted in Justice Scalia’s dissenting opinion in United States Department of Justice v. Julian, 486 U. S. 1, 17 (1988).
Cf. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of Information Act, 9 J. Legal Studies 775, 777 (1980) (“The act’s indexing and reading-room rules indicate that the primary objective is the elimination of ‘secret law.’ Under the FOIA an agency must disclose its rules governing relationships with private parties and its demands on private conduct”); Kronman, The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Studies 727, 733 (1980) (“The act’s first and most obvious goal (reflected in its basic disclosure requirements) is to promote honesty and reduce waste in government by exposing official conduct to public scrutiny”); Comment, The Freedom of Information Act’s Privacy Exemption and the Privacy Act of 1974, 11 Harv. Civ. Rights-Civ. Lib. L. Rev. 596, 608 (1976) (“No statement was made in Congress that the Act was designed for a broader purpose such as making the government’s collection of data available to anyone who has any socially useful purpose for it. For example, it was never suggested that the FOIA would be a boon to academic researchers, by eliminating their need to assemble on their own data which the government has already collected”).
In fact, in at least three cases we have specifically ?'ejected requests for information about private citizens. See CIA v. Sims, 471 U. S. 159 (1985); FBI v. Abramson, 456 U. S. 615 (1982); United States Department of State v. Washington Post Co., 456 U. S. 595 (1982).
Our willingness to permit categorical balancing in Robbins itself was a departure from earlier dicta. In NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 162-165 (1975), we decided not to decide an Exemption 7 issue. In so doing, we responded to the NLRB General Counsel’s argument that “once a certain type of document is determined to fall into the category of ‘investigatory flies’ the courts are not to inquire whether the disclosure of the particular document in question would contravene any of the purposes of Exemption 7.” Id., at 163 (emphases in original). In other words, the General Counsel argued for categorical balancing throughout Exemption 7. We rejected this argument: “The legislative history clearly indicates that Congress disapproves of those cases, relied on by the General Counsel,. . . which relieve the Government of the obligation to show that disclosure of a particular investigatory file would contravene the purposes of Exemption 7.” Id., at 164. The legislative history cited, S. Conf. Rep. No. 93-1200 (1974), is in fact not clear on the question whether categorical balancing may be appropriate in Exemption 7 or elsewhere. In 1986, moreover, Congress amended Exemption 7(C) to give the Government greater flexibility in responding to FOIA requests for law enforcement records or information. Whereas previously the Government was required to show that disclosure of a law enforcement record “would” constitute an unwarranted invasion of personal privacy, under amended Exemption 7(C) the Government need only establish that production “could reasonably be expected” to cause such an invasion. The amendment was originally proposed by the Senate which intended to replace a focus on the effect of a particular disclosure “with a standard of reasonableness . . . based on an objective test.” S. Rep. No. 98-221, p. 24 (1983). This reasonableness standard, focusing on whether disclosure of a particular type of document would tend to cause an unwarranted invasion of privacy, amply supports a categorical approach to the balance of private and public interests in Exemption 7(C).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
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"Central Intelligence Agency",
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"Civil Service Commission, U.S.",
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"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
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"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
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"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
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"Federal Maritime Commission",
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"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
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"Legal Services Corporation",
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"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
34
] |
ABEL, alias MARK, alias COLLINS, alias GOLDFUS, v. UNITED STATES.
No. 2.
Argued February 24-25, 1959.
Restored to the calendar for reargument March 23, 1959.
Reargued November 9, 1959.
Decided March 28, 1960.
James B. Donovan argued and reargued the cause for petitioner. With him on the briefs was Thomas M. Debevoise II.
Solicitor General Rankin argued and reargued the cause for the United States. With him on the original brief were Acting Assistant Attorney General Yeagley, William F. Tompkins and Kevin T. Maroney. With him on the supplemental brief on reargument were Assistant Attorney General Yeagley, John F. Davis, William F. Tompkins and Kevin T. Maroney.
Mr. Justice Frankfurter
delivered the opinion of the Court.
The question in this case is whether seven items were properly admitted into evidence at the petitioner’s trial for conspiracy to commit espionage. All seven items were seized by officers of the Government without a search warrant. The seizures did not occur in connection with the exertion of the criminal process against petitioner. They arose out of his administrative arrest by the United States Immigration and Naturalization Service as a preliminary to his deportation. A motion to suppress these items as evidence, duly made in the District Court, was denied after a full hearing. 155 F. Supp. 8. Petitioner was tried, convicted and sentenced to thirty years’ imprisonment and to the payment of a fine of $3,000. The Court of Appeals affirmed, 258 F. 2d 485. We granted certiorari, 358 U. S. 813, limiting the grant to the following two questions:
“1. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated by a search and the seizure of evidence without a search warrant, after an alien suspected and officially accused of espionage has been taken into custody for deportation, pursuant to an administrative Immigration Service warrant, but has not been arrested for the commission of a crime?
“2. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated when articles so seized are unrelated to the Immigration Service warrant and, together with other articles obtained from such leads, are introduced as evidence in a prosecution for espionage?”
Argument was first heard at October Term, 1958. The case having been set down for reargument at this Term, 359 U. S. 940, counsel were asked to discuss a series of additional questions, set out in the margin.
We have considered the case on the assumption that the conviction must be reversed should we find challenged items of evidence to have been seized in violation of the Constitution and therefore improperly admitted into evidence. We find, however, that the admission of these items was free from any infirmity and we affirm the judgment. (Of course the nature of the case, the fact that it was a prosecution for espionage, has no bearing whatever upon the legal considerations relevant to the admissibility of evidence.)
The seven items, all in petitioner’s possession at the time of his administrative arrest, the admissibility of which is in question, were the following:
(1) a piece of graph paper, carrying groups of numbers arranged in rows, allegedly a coded message ;
(2) a forged birth certificate, certifying the birth of “Martin Collins” in New York County in 1897;
(3) a birth certificate, certifying the birth of “Emil Goldfus” in New York in 1902 (Emil Goldfus died in 1903) ;
(4) an international certificate of vaccination, issued in New York to “Martin Collins” in 1957;
(5) a bank book of the East River Savings Bank containing the account of “Emil Goldfus”;
(6) a hollowed-out pencil containing 18 microfilms; and
(7) a block of wood, wrapped in sandpaper, and containing within it a small booklet with a series of numbers on each page, a so-called “cipher pad.”
Items (2), (3), (4) and (5) were relevant to the issues of the indictment for which petitioner was on trial in that they corroborated petitioner’s use of false identities. Items (1), (6) and (7) were incriminatory as useful means for one engaged in espionage.
The main claims which petitioner pressed upon the Court may be thus summarized: (1) the administrative arrest was used by the Government in bad faith; (2) administrative arrests as preliminaries to deportation are unconstitutional; and (3) regardless of the validity of the administrative arrest here, the searches and seizures through which the challenged items came into the Government’s possession were not lawful ancillaries to such an arrest. These claims cannot be judged apart from the circumstances leading up to the arrest and the nature of the searches and seizures. It becomes necessary to relate these matters in considerable detail.
Petitioner was arrested by officers of the Immigration and Naturalization Service (hereafter abbreviated as I. N. S.) on June 21, 1957, in a single room in the Hotel Latham in New York City, his then abode. The attention of the I. N. S. had first been drawn to petitioner several days earlier when Noto, a Deputy Assistant Commissioner of the I. N. S., was told by a liaison officer of the Federal Bureau of Investigation (hereafter abbreviated as F. B. I.) that petitioner was believed by the F. B. I. to be an alien residing illegally in the United States. Noto was told of the F. B. I.’s interest in petitioner in connection with espionage.
An uncontested affidavit before the District Court asserted the following with regard to the events leading up to the F. B. I.’s communication with Noto about petitioner. About one month before the F. B. I. communicated with Noto, petitioner had been mentioned by Hay-hanen, a recently defected Russian spy, as one with whom Hayhanen had for several years cooperated in attempting to commit espionage. The F. B. I. had thereupon placed petitioner under investigation. At the time the F. B. I. communicated with the I. N. S. regarding petitioner, the case against him rested chiefly upon Hayhanen’s story, and Hayhanen, although he was later to be the Government’s principal witness at the trial, at that time insisted that he would refuse to testify should petitioner be brought to trial, although he would fully cooperate with the Government in secret. The Department of Justice concluded that without Hayhanen’s testimony the evidence was insufficient to justify petitioner’s arrest and indictment on espionage charges. The decision was thereupon made to bring petitioner to the attention of the I. N. S., with a view to commencing deportation proceedings against him.
Upon being notified of the F. B. I.’s belief that petitioner was residing illegally in this country, Noto asked the F. B. I. to supply the I. N. S. with further information regarding petitioner’s status as an alien. The F. B. I. did this within a week. The I. N. S. concluded that if petitioner were, as suspected, an alien, he would be subject to deportation in that he had failed to comply with the legal duty of aliens to notify the Attorney General every January of their address in the United States. 8 U. S. C. § 1305. Noto then determined on petitioner’s administrative arrest as a preliminary to his deportation. The F. B. I. was so informed. On June 20, two I. N. S. officers, Schoenenberger and Kanzler, were dispatched by Noto to New York to supervise the arrest. These officers carried with them a warrant for petitioner’s arrest and an order addressed to petitioner directing him to show cause why he should not be deported. They met in New York with the District Director of the I. N. S. who, after the information in the possession of the I. N. S. regarding petitioner was put before him, signed the warrant and the order. Following this, Schoenenberger and Kanzler went to F. B. I. headquarters in New York where, by prearrangement with the F. B. I. in Washington, they were met by several F. B. I. officers. These agreed to conduct agents of the I. N. S. to petitioner’s hotel so that the I. N. S. might accomplish his arrest. The F. B. I. officer in charge asked whether, before the petitioner was arrested, the F. B. I. might “interview” him in an attempt to persuade him to “cooperate” with regard to his espionage. To this Schoenenberger agreed.
At 7 o’clock the next morning, June 21, two officers of the I. N. S. and several F. B. I. men gathered in the corridor outside petitioner’s room at the Hotel Latham. All but two F. B. I. agents, Gamber and Blasco, went into the room next to petitioner’s, which the F. B. I. had occupied in the course of its investigation of petitioner. Gamber and Blasco were charged with confronting petitioner and soliciting his cooperation with the F. B. I. They had no warrant either to arrest or to search. If petitioner proved cooperative their instructions were to telephone to their superior for further instructions. If petitioner failed to cooperate they were to summon the waiting I. N. S. agents to execute their warrant for his arrest.
Gamber rapped on petitioner’s door. When petitioner released the catch, Gamber pushed open the door and walked into the room, followed by Blasco. The door was left ajar and a third F. B. I. agent came into the room a few minutes later. Petitioner, who was nude, was told to put on a pair of undershorts and to sit on the bed, which he did. The F. B. I. agents remained in the room questioning petitioner for about twenty minutes. Although petitioner answered some of their questions, he did not “cooperate” regarding his alleged espionage. A signal was thereupon given to the two agents of the I. N. S. waiting in the next room. These came/ into petitioner’s room and served petitioner with the warrant for his arrest and with the order to show cause. Shortly thereafter Schoenenberger and Kanzler, who had been waiting outside the hotel, also entered petitioner’s room. These four agents of the I. N. S. remained with petitioner in his room for about an hour. For part of this time an F. B. I. agent was also in the room and during all of it another F. B. I. agent stood outside the open door of the room, where he could observe the interior.
After placing petitioner under arrest, the four I. N. S. agents undertook a search of his person and of all of his belongings in the room, and the adjoining bathroom, which lasted for from fifteen to twenty minutes. Petitioner did not give consent to this search; his consent was not sought. The F. B. I. agents observed this search but took no part in it. It was Schoenenberger’s testimony to the District Court that the purpose of this search was to discover, weapons and documentary evidence of petitioner’s “alienage” — that is, documents to substantiate the information regarding petitioner’s status as an alien which the I. N. S. had received from the F. B. I. During this search one of the challenged items of evidence, the one we have designated (2), a birth certificate for “Martin Collins,” was seized. Weapons were not found, nor was any other evidence regarding petitioner’s “alienage.”
When the search was completed, petitioner was told to dress himself, to assemble his things and to choose what he wished to take with him. With the help of the I. N. S. agents almost everything in the room was packed into petitioner’s baggage. A few things petitioner deliberately left on a window sill, indicating that he did not want to take them, and several other things which he chose not to pack up into his luggage he put into the room’s wastepaper basket. When everything had been assembled, petitioner asked and received permission to repack one of his suitcases. While petitioner was doing so, Schoenenberger noticed him slipping some papers into the sleeve of his coat. Schoenenberger seized these. One of them was the challenged item of evidence which we have designated (1), a piece of graph paper containing a coded message.
When petitioner’s belongings had been completely packed, petitioner agreed to check out of the hotel. One of the F. B. I. agents obtained his bill from the hotel and petitioner paid it. Petitioner was then handcuffed and taken, along with his baggage, to a waiting automobile and thence to the headquarters of the I. N. S. in New York. At I. N. S. headquarters, the property petitioner had taken with him was searched more thoroughly than it had been in his hotel room, and three more of the challenged items were discovered and seized. These were the ones we have designated (3), (4) and (5), the “Emil Goldfus” birth certificate, the international vaccination certificate, and the bank book.
As soon as petitioner had been taken from the hotel, an F. B. I. agent, Kehoe, who had been in the room adjoining petitioner’s during the arrest and search and who, like the I. N. S. agents, had no search warrant, received permission from the hotel management to search the room just vacated by petitioner. Although the bill which petitioner had paid entitled him to occupy the room until 3 p. m. of that day, the hotel’s practice was to consider a room vacated whenever a guest removed his baggage and turned in his key. Kehoe conducted a search of petitioner’s room which lasted for about three hours. Among other things, he seized the contents of the wastepaper basket into which petitioner had put some things while packing his belongings. Two of the items thus seized were the challenged items of evidence we have designated (6) and (7): a hollow pencil containing microfilm and a block of wood containing a “cipher pad.”
Later in the day of his arrest, petitioner was taken by airplane to a detention center for aliens in Texas. He remained there for several weeks until arrested upon the charge of conspiracy to commit espionage for which he was brought to trial and convicted in the Eastern District of New York.
I.
The underlying basis of petitioner’s attack upon the admissibility of the challenged items of evidence concerns the motive of the Government in its use of the administrative arrest. We are asked to find that the Government resorted to a subterfuge, that the Immigration and Naturalization Service warrant here was a pretense and sham, was not what it purported to be. According to petitioner, it was not the Government’s true purpose in arresting him under this warrant to take him into custody pending a determination of his deportability. The Government’s real aims, the argument runs, were (1) to place petitioner in custody so that pressure might be brought to bear upon him to confess his espionage and cooperate with the P. B. I., and (2) to permit the Government to search through his belongings for evidence of his espionage to be used in a designed criminal prosecution against him. The claim is, in short, that the Government used this administrative warrant for entirely illegitimate purposes and that articles seized as a consequence of its use ought to have been suppressed.
Were this claim justified by the record, it would indeed reveal a serious misconduct by law-enforcing officers. The deliberate use by the Government of an administrative warrant for the purpose of gathering evidence in a criminal case must meet stern resistance by the courts. The preliminary stages of a criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States. A finding of bad faith is, however, not open to us on this record. What the motive was of the I. N. S. officials who determined to arrest petitioner, and whether the I. N. S. in doing so was not exercising its powers in the lawful discharge of its own responsibilities but was serving as a tool for the F. B. I. in building a criminal prosecution against petitioner, were issues fully canvassed in both courts below. The crucial facts were found against the petitioner.
On this phase of the case the district judge, having permitted full scope to the elucidation of petitioner’s claim, having seen and heard witnesses, in addition to testimony by way of affidavits, and after extensive argument, made these findings:
“[T]he evidence is persuasive that the action taken by the officials of the Immigration and Naturalization Service is found to have been in entire good faith.
The testimony of Schoenenberger and Noto leaves no doubt that while the first information that came to them concerning the [petitioner] . . . was furnished by the F. B. I. — which cannot be an unusual happening — the proceedings taken by the Department differed in no respect from what would have been done in the case of an individual concerning whom no such information was known to exist.
“The defendant argues that the testimony establishes that the arrest was made under the direction and supervision of the F. B. I., but the evidence is to the contrary, and it is so found.
“No good reason has been suggested why these two branches of the Department of Justice should not cooperate, and that is the extent of the showing made on the part of the defendant.” 155 F. Supp. 8, 11.
The opinion of the Court of Appeals, after careful consideration of the matter, held that the answer “must clearly be in the affirmative” to the question “whether the evidence in the record supports the finding of good faith made by the court below.” 258 F. 2d 485, 494.
Among the statements in evidence relied upon by the lower courts in making these findings was testimony by Noto that the interest of the I. N. S. in petitioner was confined to petitioner’s illegal status in the United States; that in informing the I. N. S. about petitioner’s presence in the United States the F. B. I. did not indicate what action it wanted the I. N. S. to take; that Noto himself made the decision to arrest petitioner and to commence deportation proceedings against him; that the F. B. I. made no request of him to search for evidence of espionage at the time of the arrest; and that it was “usual and mandatory” for the F. B. I. and I. N. S. to work together in the manner they did. There was also the testimony of Schoenenberger, regarding the purpose of the search he made of petitioner’s belongings, that the motive was to look for weapons and documentary evidence of alienage. To be sure, the record is not barren of evidence supporting an inference opposed to the conclusion to which the two lower courts were led by the record as a whole: for example, the facts, that the I. N. S. held off its arrest of petitioner while the F. B. I. solicited his cooperation, and that the F. B. I. held itself ready to search petitioner’s room as soon as it was vacated. These elements, however, did not, and were not required to, persuade the two courts below in the face of ample evidence of good faith to the contrary, especially the human evidence of those involved in the episode. We are not free to overturn the conclusion of the courts below when justified by such solid proof.
Petitioner’s basic contention comes down to this: even without a showing of bad faith, the F. B. I. and I. N. S. must be held to have cooperated to an impermissible extent in this case, the case being one where the alien arrested by the I. N. S. for deportation was also suspected by the F. B. I. of crime. At the worst, it may be said that the circumstances of this case reveal an opportunity for abuse of the administrative arrest. But to hold illegitimate, in the absence of bad faith, the cooperation between I. N. S. and F. B. I. would be to ignore the scope of rightful cooperation between two branches of a single Department of Justice concerned with enforcement of different areas of law under the common authority of the Attorney General.
The facts are that the F. B. I. suspected petitioner both of espionage and illegal residence in the United States as an alien. That agency surely acted not only with propriety but in discharge of its duty in bringing petitioner’s illegal status to the attention of the I. N. S., particularly after it found itself unable to proceed with petitioner’s prosecution for espionage. Only the I. N. S. is authorized to initiate deportation proceedings, and certainly the F. B. I. is not to be required to remain mute regarding one they have reason to believe to be a deportable alien, merely because he is also suspected of one of the gravest of crimes and the F. B. I. entertains the hope that criminal proceedings may eventually be brought against him. The I. N. S., just as certainly, would not have performed its responsibilities had it been deterred from instituting deportation proceedings solely because it became aware of petitioner through the F. B. I., and had knowledge that the F. B. I. suspected petitioner of espionage. The Government has available two ways of dealing with a criminally suspect deportable alien. It would make no sense to say that branches of the Department of Justice may not cooperate in pursuing one course of action or the other, once it is honestly decided what course is to be preferred. For the same reasons this cooperation may properly extend to the extent and in the manner in which the F. B. I. and I. N. S. cooperated in effecting petitioner’s administrative arrest. Nor does it taint the administrative arrest that the F. B. I. solicited petitioner’s cooperation before it took place, stood by while it did, and searched the vacated room after the arrest. The F. B. I. was not barred from continuing its investigation in the hope that it might result in a prosecution for espionage because the I. N. S., in the discharge of its duties, had embarked upon an independent decision to initiate proceedings for deportation.
The Constitution does not require that honest law enforcement should be put to such an irrevocable choice between two recourses of the Government. For a contrast to the proper cooperation between two branches of a single Department of Justice as revealed in this case, see the story told in Colyer v. Skeffington, 265 F. 17. That case sets forth in detail the improper use of immigration authorities by the Bureau of Investigation of the Department of Justice when the immigration service was a branch of the Department of Labor and was acting not within its lawful authority but as the cat’s paw of another, unrelated branch of the Government.
We emphasize again that our view of the matter would be totally different had the evidence established, or were the courts below not justified in not finding, that the administrative warrant was here employed as an instrument of criminal law enforcement to circumvent the latter’s legal restrictions, rather than as a bona fide preliminary step in a deportation proceeding. The test is whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime. The record precludes such a finding by this Court.
II.
The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for “warrants” under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.
The grounds relied on in the trial court and the Court of Appeals by petitioner were solely (in addition to the insufficiency of the evidence, a contention not here for review) (1) the bad faith of the Government’s use of the administrative arrest warrant and (2) the lack of a power incidental to the execution of an administrative warrant to search and seize articles for use as evidence in a later criminal prosecution. At no time did petitioner question the legality of the administrative arrest procedure either as unauthorized or as unconstitutional. Such challenges were, to repeat, disclaimed. At the hearing on the motion to suppress, petitioner’s counsel was questioned by the court regarding the theory of relief relied upon:
“The Court: They [the Government] were not at liberty to arrest him [petitioner] ?
“Mr. Fraiman: No, your Honor.
“They were perfectly proper in arresting him.
“We don’t contend that at all.
“As a matter of fact, we contend it was their duty to arrest this man as they did.
“I think it should show or rather, it showed admirable thinking on the part of the F. B. I. and the Immigration Service.
“We don’t find any fault with that.
“Our contention is that although they were permitted to arrest this man, and in fact, had a duty to arrest this man in a manner in which they did, they did not have a right to search his premises for the material which related to espionage.
“. . . He was charged with no criminal offense in this warrant.
“The Court: He was suspected of being illegally in the country, wasn’t he?
“Mr. Fraiman: Yes, your Honor.
“The Court: He was properly arrested.
“Mr. Fraiman: He was properly arrested, we concede that, your Honor.”
Counsel further made it plain that the arrest warrant whose validity he was conceding was “one of these Immigration warrants which is obtained without any background material at all.” Affirmative acceptance of what is now sought to be questioned could not be plainer.
The present form of the legislation giving authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment, is § 242 (a) of the Immigration and Nationality Act of 1952. (8 U. S. C. § 1252 (a)). The regulations under this Act delegate the authority to issue these administrative warrants to the District Directors of the I. N. S. “[a]t the commencement of any proceeding [to deport] ... or at any time thereafter . . . whenever, in [their] . . . discretion, it appears that the arrest of the respondent is necessary or desirable.” 8 CFR § 242.2 (a). Also, according to these regulations, proceedings to deport are commenced by orders to show cause issued by the District Directors or others; and the “Operating Instructions” of the I. N. S. direct that the application for an order to show cause should be based upon a showing of a prima facie case of deportability. The warrant of arrest for petitioner was issued by the New York District Director of the I. N. S. at the same time as he signed an order to show cause. Schoenenberger testified that, before the warrant and order were issued, he and Kanzler related to the District Director what they had learned from the F. B. I. regarding petitioner’s status as an alien, and the order to show cause recited that petitioner had failed to register, as aliens must. Since petitioner was a suspected spy, who had never acknowledged his residence in the United States to the Government or openly admitted his presence here, there was ample reason to believe that his arrest pending deportation was “necessary or desirable.” The arrest procedure followed in the present case fully complied with the statute and regulations.
Statutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of an executive official. The first of these was in 1798. Act of June 25, 1798, c. 58, § 2, 1 Stat. 571. And see, since that time, and before the present Act, Act of Oct. 19, 1888, c. 1210, 25 Stat. 566; Act of Mar. 3, 1903, c. 1012, § 21, 32 Stat. 1218; Act of Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904; Act of Feb. 5, 1917, c. 29, § 19, 39 Stat. 889; Act of Oct. 16, 1918, c. 186, § 2, 40 Stat. 1012; Act of May 10, 1920, c. 174, 41 Stat. 593; Internal Security Act of 1950, c. 1024, Title I, § 22, 64 Stat. 1008. To be sure, some of these statutes, namely the Acts of 1888, 1903 and 1907, dealt only with aliens who had landed illegally in the United States, and not with aliens sought to be deported by reason of some act or failure to act since entering. Even apart from these, there remains overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens such as petitioner.
The constitutional validity of this long-standing administrative arrest procedure in deportation cases has never been directly challenged in reported litigation. Two lower court cases involved oblique challenges, which were summarily rejected. Podolski v. Baird, 94 F. Supp. 294; Ex parte Avakian, 188 F. 688, 692. See also the discussion in Colyer v. Skeffington, 265 F. 17, reversed on other grounds sub nom. Skeffington v. Katzeff, 277 F. 129, where the District Court made an exhaustive examination of the fairness of a group of deportation proceedings initiated by administrative arrests, but nowhere brought into question the validity of the administrative arrest procedure as such. This Court seems never expressly to have directed its attention to the particular question of the constitutional validity of administrative deportation warrants. It has frequently, however, upheld administrative deportation proceedings shown by the Court’s opinion to have been begun by arrests pursuant to such warrants. See The Japanese Immigrant Case, 189 U. S. 86; Zakonaite v. Wolf, 226 U. S. 272; Bilokumsky v. Tod, 263 U. S. 149; Carlson v. Landon, 342 U. S. 524. In Carlson v. Landon, the validity of the arrest was necessarily implicated, for the Court there sustained discretion in the Attorney General to deny bail to alien Communists held pending deportation on administrative arrest warrants. In the presence of this impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation, petitioner’s disavowal of the issue below calls for no further consideration.
III.
Since.petitioner’s arrest was valid, we reach the question whether the seven challenged items, all seized during searches which were a direct consequence of that arrest, were properly admitted into evidence. This issue raises three questions: (1) Were the searches which produced these items proper searches for the Government to have made? If they were not, then whatever the nature of the seized articles, and however proper it would have been to seize them during a valid search, they should have been suppressed as the fruits of activity in violation of the Fourth Amendment. E. g., Weeks v. United States, 232 U. S. 383, 393. (2) Were the articles seized properly subject to seizure, even during a lawful search? We have held in this regard that not every item may be seized which is properly inspectible by the Government in the course of a legal search; for example, private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search which discovers them, Gouled v. United States, 255 U. S. 298, 310, nor may the Government seize, wholesale, the contents of a house it might have searched, Kremen v. United States, 353 U. S. 346. (3) Was the Government free to use the articles, even if properly seized, as evidence in a criminal case, the seizures having been made in the course of a separate administrative proceeding?
The most fundamental of the issues involved concerns the legality of the search and seizures made in petitioner’s room in the Hotel Latham. The ground of objection is that a search may not be conducted as an incident to a lawful administrative arrest.
We take as a starting point the cases in this Court dealing with the extent of the search which may properly be made without a warrant following a lawful arrest for crime. The several cases on this subject in this Court cannot be satisfactorily reconciled. This problem has, as is well-known, provoked strong and fluctuating differences of view on the Court. This is not the occasion to attempt to reconcile all the decisions, or to re-examine them. Compare Marron v. United States, 275 U. S. 192, with Go-Bart Co. v. United States, 282 U. S. 344, and United States v. Lejkowitz, 285 U. S. 452; compare Go-Bart, supra, and Lejkowitz, supra, with Harris v. United States, 331 U. S. 145, and United States v. Rabinowitz, 339 U. S. 56; compare also Harris, supra, with Trupiano v. United States, 334 U. S. 699, and Trupiano with Rabinowitz, supra (overruling Trupiano). Of these cases, Harris and Rabinowitz set by far the most permissive limits upon searches incidental to lawful arrests. In view of their judicial context, the trial judge and the Government justifiably relied upon these cases for guidance at the trial; and the petitioner himself accepted the Harris case on the motion to suppress, nor does he ask this Court to reconsider Harris and Rabinowitz. It would, under these circumstances, be unjustifiable retrospective lawmaking for the Court in this case to reject the authority of these decisions.
Are there to be permitted incidental to valid administrative arrests, searches as broad in physical area as, and analogous in purpose to, those permitted by the applicable precedents as incidents to lawful arrests for crime? Specifically, were the officers of the I. N. S. acting lawfully in this case when, after his arrest, they searched through petitioner’s belongings in his hotel room looking for weapons and documents to evidence his “alienage”? There can be no doubt that a search for weapons has as much justification here as it has in the case of an arrest for crime, where it has been recognized as proper. E. g., Agnello v. United States, 269 U. S. 20, 30. It is no less important for government officers, acting under established procedure to effect a deportation arrest rather than one for crime, to protect themselves and to insure that their prisoner retains no means by which to accomplish an escape.
Nor is there any constitutional reason to limit the search for materials proving the deportability of an alien, when validly arrested, more severely than we limit the search for materials probative of crime when a valid criminal arrest is made. The need for the proof is as great in one case as in the other, for deportation can be accomplished only after a hearing at which deportability is established. Since a deportation arrest warrant is not a judicial warrant, a search incidental to a deportation arrest is without the authority of a judge or commissioner. But so is a search incidental to a criminal arrest made upon probable cause without a warrant, and under Rabinowitz, 339 U. S., at 60, such a search does not require a judicial warrant for its validity. It is to be remembered that an I. N. S. officer may not arrest and search on his own. Application for a warrant must be made to an independent responsible officer, the District Director of the I. N. S., to whom a prima facie case of deportability must be shown. The differences between the procedural protections governing criminal and deportation arrests are not of a quality or magnitude to warrant the deduction of a constitutional difference regarding the right of incidental search. If anything, we ought to be more vigilant, not less, to protect individuals and their property from warrantless searches made for the purpose of turning up proof to convict than we are to protect them from searches for matter bearing on deportability. According to the uniform decisions of this Court deportation proceedings are not subject to the constitutional safeguards' for criminal prosecutions. Searches for evidence of crime present situations demanding the greatest, not the least, restraint upon the Government’s intrusion into privacy; although its protection is not limited to them, it was at these searches which the Fourth Amendment was primarily directed. We conclude, therefore, that government officers who effect a deportation arrest have a right of incidental search analogous to the search permitted criminal law-enforcement officers.
Judged by the prevailing doctrine, the search of petitioner’s hotel room was justified. Its physical scope, being confined to the petitioner’s room and the adjoining bathroom,' was far less extensive than the search in Harris. The search here was less intensive than were the deliberately exhaustive quests in Harris and Rabino-witz, and its purpose not less justifiable. The only things sought here, in addition to weapons, were documents connected with petitioner’s status as an alien. These may well be considered as instruments or means for accomplishing his illegal status, and thus proper objects of search under Harris, supra, 331 U. S., at 154.
Two of the challenged items were seized during this search of petitioner’s property at his hotel room. The first was item (2), a forged New York birth certificate for “Martin Collins,” one of the false identities which petitioner assumed in this country in order to keep his presence here undetected. This item was seizable when found during a proper search, not only as a forged official document by which petitioner sought to evade his obligation to register as an alien, but also as a document which petitioner was using as an aid in the commission of espionage, for his undetected presence in this country was vital to his work as a spy. Documents used as a means to commit crime are the proper subjects of search warrants, Gouled v. United States, 255 U. S. 298, and are seizable when discovered in the course of a lawful search, Marron v. United States, 275 U. S. 192.
The other item seized in the course of the search of petitioner’s hotel room was item (1), a piece of graph paper containing a coded message. This was seized by Schoenenberger as petitioner, while packing his suitcase, was seeking to hide it in his sleeve. An arresting officer is free to take hold of articles which he sees the accused deliberately trying to hide. This power derives from the dangers that a weapon will be concealed, or that relevant evidence will be destroyed. Once this piece of graph paper came into Schoenenberger’s hands, it was not necessary for him to return it, as it was an instrumentality for the commission of espionage. This is so even though Schoen-enberger was not only not looking for items connected with espionage but could not properly have been searching for the purpose of finding such items. When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. See Harris, supra, 331 U. S., at 154-155.
Items (3), (4), and (5), a birth certificate for “Emil Goldfus” who died in 1903, a certificate of vaccination for “Martin Collins,” and a bank book for “Emil Goldfus” were seized, not in petitioner’s hotel room, but in a more careful search at I. N. S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I. N. S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested. It is to be noted that this is not a case, like Kremen v. United States, 353 U. S. 346, where the entire contents of the place where the arrest was made were seized. Such a mass seizure is illegal. The Government here did not seize the contents of petitioner’s hotel room. Petitioner took with him only what he wished. He chose to leave some things behind in his room, which he voluntarily relinquished. And items (3), (4), and (5) were articles subject to seizure when found during a lawful search. They were all capable of being used to establish and maintain a false identity for petitioner, just as the forged “Martin Collins” birth certificate, and were seizable for the same reasons.
Items (l)-(5) having come into the Government’s possession through lawful searches and seizures connected with an arrest pending deportation, was the Government free to use them as evidence in a criminal prosecution to which they related? We hold that it was. Good reason must be shown for prohibiting the Government from using relevant, otherwise admissible, evidence. There is excellent reason for disallowing its use in the case of evidence, though relevant, which is seized by the Government in violation of the Fourth Amendment to the Constitution. “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” Weeks v. United States, 232 U. S. 383, 393.
These considerations are here absent, since items (l)-(5) were seized as a consequence of wholly lawful conduct. That being so, we can see no rational basis for excluding these relevant items from trial: no wrongdoing police officer would thereby be indirectly condemned, for there were no such wrongdoers; the Fourth Amendment would not thereby be enforced, for no illegal search or seizure was made; the Court would be lending its aid to no lawless government action, for none occurred. Of course cooperation between the branch of the Department of Justice dealing with criminal law enforcement and the branch dealing with the immigration laws would be less effective if evidence lawfully seized by the one could not be used by the other. Only to the extent that it would be to the public interest to deter and prevent such cooperation, would an exclusionary rule in a case like the present be desirable. Surely no consideration of civil liberties commends discouragement of such cooperation between these two branches when undertaken in good faith. When undertaken in bad faith to avoid constitutional restraints upon criminal law enforcement the evidence must be suppressed. That is not, as we have seen, this case. Individual cases of bad faith cooperation should be dealt with by findings to that effect in the cases as they arise, not by an exclusionary rule preventing effective cooperation when undertaken in entirely good faith.
We have left to the last the admissibility of items (6) and (7), the hollowed-out pencil and the block of wood containing a “cipher pad,” because their admissibility is founded upon an entirely different set of considerations. These two items were found by an agent of the F. B. I. in the course of a search he undertook of petitioner’s hotel room, immediately after petitioner had paid his bill and vacated the room. They were found in the room’s wastepaper basket, where petitioner had put them while packing his belongings and preparing to leave. No pretense is made that this search by the F. B. I. was for any purpose other than to gather evidence of crime, that is, evidence of petitioner’s espionage. As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with crime. So far as the record shows, petitioner had'abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the Government’s appropriation of such abandoned property. See Hester v. United States, 265 U. S. 57, 58. The two items which were eventually introduced in evidence were assertedly means for the commission of espionage, and were themselves seizable as such. These two items having been lawfully seized by the Government in connection with an investigation of crime, we encounter no basis for discussing further their admissibility as evidence.
Affirmed.
“1. Whether under the laws and Constitution of the United States (a) the administrative warrant of the New York Acting District Director of the Immigration and Naturalization Service was validly issued, (b) such administrative warrant constituted a valid basis for arresting petitioner or taking him into custody, and (c) such warrant furnished a valid basis for the searches and seizures affecting his person, luggage, and the room occupied by him at the Hotel Latham.
“2. Whether, independently of such administrative warrant, petitioner’s arrest, and the searches and seizures affecting his person, luggage, and the room occupied by him at the Hotel Latham, were valid under the laws and Constitution of the United States.
“3. Whether on the record before us the issues involved in Questions ‘1 (a),’ ‘1 (b),’ and ‘2’ are properly before the Court.”
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Federal Labor Relations Authority",
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"Federal Reserve System",
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"Federal Works Administration, or Administrator",
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"Comptroller General",
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"Unidentifiable",
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"NO Admin Action",
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] |
[
67
] |
CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. YAMASAKI et al.
No. 77-1511.
Argued March 19, 1979 —
Decided June 20, 1979
BlackmuN, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the ease.
Peter Buscemi argued the cause for petitioner pro hac vice. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, and William Kanter.
Stanley E. Levin argued the cause for respondents. With him on the brief was Jeff Spence.
Briefs of amici curiae urging affirmance were filed by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; by Edward C. King for the Gray Panthers; and by Charles A. Bane, Thomas D. Barr, Norman Redlich, Robert A. Murphy, Norman J. Chachkin, Richard S. Kohn, and Stuart E. Schmitz for the Lawyers’ Committee for Civil Rights Under Law.
Me. Justice Blackmun
delivered the opinion of the Court.
Petitioner, the Secretary of the Department of Health, Education, and Welfare (HEW), has determined that respondents, beneficiaries under the Social Security Act, have been overpaid. He seeks to recoup those overpayments by withholding future benefits to which respondents would otherwise be entitled. Respondents in turn have requested reconsideration or waiver of recoupment under § 204 of the Act, 42 U. S. C. § 404. The primary questions in this case are whether petitioner must grant respondents the opportunity for an oral hearing before recoupment begins, and whether jurisdiction under § 205 (g) of the Act, 42 U. S. C. § 405 (g), permits a federal district court to certify a nationwide class and grant injunctive relief.
I
Section 204 (a)(1) of the Social Security Act, 53 Stat. 1368, as amended, 42 U. S. C. § 404 (a)(1), authorizes the recovery of overpayments made to a beneficiary under the old-age, survivors’, or disability insurance programs administered by HEW. In particular, it permits the Secretary to recoup erroneous overpayments by decreasing future payments to which the overpaid person is entitled.
Section 204 (b), however, expressly limits the recoupment authority conferred by § 204 (a)(1). Section 204 (b), as set forth in 42 U. S. C. § 404 (b), commands that
“there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.”
The Secretary has undertaken to define the terms employed in § 204 (b). Under his regulations, “without fault” means that the recipient neither knew nor should have known that the overpayment or the information on which it was based was incorrect. 20 CFR § 404.507 (1978). For example, a recipient who justifiably relied upon erroneous information from an official source within the Social Security Administration would be “without fault.” § 404.510.
The regulations say that to “defeat the purpose of the sub-chapter” is to “deprive a person of income required for ordinary and necessary living expenses.” §404.508 (a). Those expenses are defined to include, among other things, food, rent, and medical bills. §§404.508 (a)(1) and (2). Recoupment is “against equity and good conscience” when the recipient “because of a notice that such payment would be made or by reason of the incorrect payment, relinquished a valuable right ... or changed his position for the worse.” § 404.509. An example of detrimental reliance that would be sufficient is permitting private hospital insurance to lapse in the mistaken expectation of receiving federal hospital benefits. Ibid.
The Secretary's practice is to make an ex parte determination under § 204 (a) that an overpayment has been made, to notify the recipient of that determination, and then to shift to the recipient the burden of either (i) seeking reconsideration to contest the accuracy of that determination, or (ii) asking the Secretary to forgive the debt and waive recovery in accordance with § 204 (b). If a recipient files a written request for reconsideration or waiver, recoupment is deferred pending action on that request. Social Security Claims Manual §§ 5503.2 (c), 5503.4 (b) (Dec. 1978) (Claims Manual). The papers are sent to one of the seven regional offices where the request is reviewed.
If the regional office decision goes against the recipient, recoupment begins. The recipient’s monthly benefits are reduced or terminated until the overpayment has been recouped. Only if the recipient continues to object is he given an opportunity to present his story in person to someone with authority to decide his case. That opportunity takes the form of an on-the-record de novo evidential hearing before an independent hearing examiner. 20 CFR, §§ 404.917, 404.931 (1978). The recipient may seek subsequent review by the Appeals Council, § 404.945, and finally by a federal court. § 205 (g) of the Act, 42 U. S. C. § 405 (g). If it is decided that the Secretary’s initial determination was in error, the amounts wrongfully recouped are repaid.
II
The Elliott Case
The Secretary overpaid the Hawaii respondents, and notified them of his determination to recoup the overpayments. After unsuccessful attempts to obtain administrative relief, they brought suit in the United States District Court for the District of Hawaii challenging the legality of the Secretary’s recoupment procedures. They alleged that, because the notice they received was inadequate and because they were not given an opportunity for an oral hearing before recoupment began, the recoupment procedures violated both § 204 of the Act and the Fifth Amendment of the Constitution. They sought class certification, and requested both declaratory and injunctive relief that would require the Secretary to cease future recoupment until such time as he provided the class with adequate notice and opportunity for a hearing. App. 11-21.
The District Court certified a class of “all social security old age and disability benefit recipients resident in the State of Hawaii, who are being or will be subjected to adjustment of their social security benefits pursuant to 42 U. S. C. §§ 404 (a) and (b) without adequate prior notice of the grounds for such action and without a prior hearing on disputed issues relating to such actions.” Id., at 35. The court found jurisdiction under the mandamus statute, 28 U. S. C. § 1361, and granted relief to respondents. The court said that due process required that the Secretary provide an opportunity for an informal oral hearing before an independent decisionmaker prior to recoupment. In so holding, the court relied on Goldberg v. Kelly, 397 U. S. 254 (1970), which determined that, under the Due Process Clause, a statutory right to welfare benefits could not be terminated without prior notice and opportunity for an evidential hearing. The court also held that the Constitution required that the initial overpayment notice be modified to inform the recipient more fully concerning re-coupment procedures. Although the court did not discuss respondents’ statutory claim, it granted judgment for respondents on both statutory and constitutional grounds and ordered injunctive relief for the class. Elliott v. Weinberger, 371 F. Supp. 960 (1974).
The Buffington Case
Relying on annual earnings reports, the Secretary determined that the individual respondents in Buffington had been overpaid for previous years. After receiving notice, both named respondents sought administrative relief, but were unable to halt recoupment. They then brought suit in the United States District Court for the Western District of Washington. They, too, alleged that the Secretary’s recoupment procedures were contrary to both § 204 and the Due Process Clause of the Fifth Amendment. They requested certification of a nationwide class, an injunction ordering repayment of amounts unlawfully withheld, and declaratory and mandamus relief that would require the Secretary to provide notice and an opportunity for a hearing before recoupment began again. App. 188-201.
The District Court certified a nationwide class composed of “all individuals eligible for [old-age and survivors’ benefits] whose benefits have been or will be reduced or otherwise adjusted without prior notice and opportunity for a hearing.” The court, however, excluded from the class residents of Hawaii and the Eastern District of Pennsylvania, where suits raising similar issues were known to have been brought. Id., at 259. See, e. g., Mattern v. Weinberger, 519 F. 2d 150 (CA3 1975). As a precautionary measure, the court also excluded all persons who had participated as plaintiffs or members of a plaintiff class in litigation against the Secretary on similar issues, if a decision on the merits previously had been rendered. App. 259-260.
The court then granted summary judgment for the class. The court found jurisdiction under the mandamus statute, 28 U. S. C. § 1361. It enjoined the Secretary from ordering recoupment without having provided recipients with a prior opportunity for an informal hearing before an independent decisionmaker. The court also ordered that the initial notice be amended to provide more information about recoupment procedures. Buffington v. Weinberger, Civ. No. 734—73C2 (WD Wash. Oct. 22, 1974). App. 262-265.
The Court of Appeals
The United States Court of Appeals for the Ninth Circuit consolidated the two cases for disposition on appeal. In an unreported opinion, Elliott v. Weinberger, Nos. 74—1611 and 74-3118 (Oct. 1, 1975), App. to Pet. for Cert. 40A-84A, that court found that the complaints presented substantial constitutional questions and so § 1361 mandamus jurisdiction was proper. It upheld the certification of the classes under Fed. Rule Civ. Proc. 23(b)(2), finding counsel was sufficiently skilled and experienced to represent the class. It rejected the Secretary’s contention that a nationwide class should not have been certified. It found nothing in Rule 23 indicating that such a class was improper, and it believed as a practical matter that, because respondents did not seek damages, no manageability problems were present. It indicated that to require recipients to sue individually would result in an unnecessary duplication of actions, the evil that Rule 23 was designed to prevent. On the merits, the Court of Appeals, without directly addressing respondents’ statutory claims, affirmed the holdings that the Secretary’s recoupment procedures were unconstitutional.
Subsequent to that decision, this Court, in Mathews v. Eldridge, 424 U. S. 319 (1976), held that the Due Process Clause does not require an oral hearing prior to termination of Social Security disability insurance benefits. We then granted petitions for writs of certiorari filed by the Secretary both in this case and in Mattern, supra, vacated the judgments below, and remanded the cases for further consideration in light of Eldridge. 425 U. S. 987 (1976).
On remand, the Court of Appeals adhered to the essential features of its original decision. Elliott v. Weinberger, 564 F. 2d 1219 (1977). The court reaffirmed its holding that it had jurisdiction under the mandamus statute. It noted that, while Eldridge had indicated that named plaintiffs would be able to assert jurisdiction based on § 205 (g) under Weinberger v. Salfi, 422 U. S. 749, 755, 764 (1975), there was some doubt as to whether that statute would provide jurisdiction for a class action seeking injunctive relief, and therefore the extraordinary remedy of mandamus could be invoked. The court found that these actions were not foreclosed by the jurisdictional limitations contained in § 205 (h), because these actions were brought to enforce constitutional rights, not “to recover on any claim” for benefits.
On the merits, the court found Eldridge distinguishable. One of three grounds cited in support of this conclusion is of particular relevance here. The court expressly found that the Secretary’s procedures for handling waivers created an undue risk of erroneous deprivation. It said that, unlike the medical decision at issue in Eldridge, the grant of a waiver frequently depended on credibility, which could not be ascertained from the written submission on which the Secretary relied. The court thus held that when waiver was requested, the Due Process Clause required that the recipient be given an oral hearing before recoupment begins. The court said a prior hearing was not required, however, in § 204 (a) reconsideration cases if the dispute was a routine one centering on a computational error or a payment problem that did not demand an evaluation of credibility. The court specified six requirements that the oral hearing should meet, including rights to receive notice, to submit evidence, to cross-examine witnesses, to have counsel, to have an impartial hearing officer, and to receive a written decision. The court did not require that a transcript of the hearing be made. 564 F. 2d, at 1235.
The court also held that the notice must be “plainly and clearly communicated.” Ibid. The court suggested that this could be accomplished by including in the notice such matters as the reason for overpayment, a statement of the right to request reconsideration or waiver, the forms available for that purpose, a description of the nature of reconsideration and waiver, and notice of the right to a prerecoupment hearing. Id., at 1236.
The Secretary filed a petition for a writ of certiorari seeking review of both the holding that the Due Process Clause required a prerecoupment oral hearing, and the determination that the class was properly certified. The Secretary, however, did not request review of the holding that his notice of recoupment was constitutionally defective. Certiorari was granted. Califano v. Elliott, 439 U. S. 816 (1978).
Ill
A court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question. New York City Transit Authority v. Beazer, 440 U. S. 568, 582-583, and n. 22 (1979); United States v. CIO, 335 U. S. 106, 110 (1948); Ashwander v. TVA, 297 U. S. 288, 347 (1936) (concurring opinion). Due respect for the coordinate branches of government, as well as a reluctance when conscious of fallibility to speak with our utmost finality, see Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J., eon-curring in result), counsels against unnecessary constitutional adjudication. And if “a construction of the statute is fairly possible by which [a serious doubt of constitutionality] may be avoided,” Crowell v. Benson, 285 U. S. 22, 62 (1932), a court should adopt that construction. In particular, this Court has been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary. See Greene v. McElroy, 360 U. S. 474, 507-508 (1959).
The District Courts and Court of Appeals in the cases now before us gave these principles somewhat short shrift in declining to pass expressly on respondents’ contention that § 204 itself requires a prerecoupment oral hearing. We turn to the statute first, and find that it fairly may be read to require a prerecoupment decision by the Secretary. With respect to § 204 (a) reconsideration as to whether overpayment occurred, we agree that the statute does not require that the decision involve a prior oral hearing, and we reject respondents’ contention that the Constitution does so. With respect to § 204 (b) waiver of the Secretary’s right to recoup, however, because the nature of the statutory standards makes a hearing essential, we find it unnecessary to determine whether the Constitution would require a similar result.
A
On its face, § 204 requires that the Secretary make a pre-recoupment waiver decision, and that the decision, like that concerning the fact of the overpayment, be accurate. In the imperative voice, it says “there shall be no adjustment of payments to, or recovery by the United States from, any person” who qualifies for waiver. See Mattern v. Weinberger, 519 F. 2d, at 166, and n. 32. Echoing this requirement, § 204 (a) says that only “proper” adjustments or recoveries are to be made. The implication is that a recoupment from a person qualifying under § 204 (b) would not be “proper.”
Insofar as § 204 is read to require a prerecoupment decision, the reading is in accord with the manner in which the Secretary presently administers the statute. No recoupment is made until a preliminary waiver-or reconsideration decision has taken place, either by default after the recipient has received proper notice, or by review of a written request. Claims Manual §§ 5503.2 (c), 5503.4 (b). This interpretation is also reinforced by a comparison with other sections of the Social Security Act. Section 204 is strikingly unlike § 225, which expressly permits suspension of disability benefits before eligibility is finally decided. See Richardson v. Wright, 405 U. S. 208 (1972). On the other hand, an analogy may be drawn between § 204 and § 303 (a)(1), 42 U. S. C. § 503 (a)(1), which this Court in California Human Resources Dept. v. Java, 402 U. S. 121 (1971), interpreted to require payment of unemployment benefits pending a final determination of eligibility. Neither § 204 nor § 303 (a)(1) expressly addresses the timing of a hearing, but both speak in mandatory terms and imply that the mandated act — here waiver of recoupment, there payment of benefits — is to precede other action.
B
The heart of the present dispute concerns not whether a prerecoupment decision should be made, but whether making the decision by regional office review of the written waiver request is sufficient to protect the recipient’s right not to be subjected to an improper recoupment.
In this regard, requests for reconsideration under § 204 (a), as to whether overpayment occurred, may be distinguished from requests for waiver of the Secretary’s right to recoup under § 204 (b). As the Courts of Appeals in this case and in Mattern noted, requests under § 204 (a) for reconsideration involve relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes. Elliott, 564 F. 2d, at 1231; Mattern v. Mathews, 582 F. 2d 248, 255-256 (CA3 1978). Many of the named respondents were found to have been overpaid based on earnings reports they themselves had submitted. But unlike the Court of Appeals in this case, we do not think that the rare instance in which a credibility dispute is relevant to a § 204 (a) claim is sufficient to require the Secretary to sift through all requests for reconsideration and grant a hearing to the few that involve credibility. The statute authorizes only “proper” recoupment, but some leeway for practical administration must be allowed. Nor do the standards of the Due Process Clause, more tolerant than the strict language here in issue, require that prerecoupment oral hearings be afforded in § 204 (a) cases. The nature of a due process hearing is shaped by the “risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U. S., at 344. It would be inconsistent with that principle to require a hearing under § 204 (a) when review of a beneficiary’s written submission is an adequate means of resolving all but a few § 204 (a) disputes. Mattern, 582 F. 2d, at 258.
By contrast, written review hardly seems sufficient to discharge the Secretary’s statutory duty to make an accurate determination of waiver under § 204 (b). Under that subsection, the Secretary must assess the absence of “fault” and determine whether or not recoupment would be “against equity and good conscience.” These standards do not apply under §204 (a). The Court previously has noted that a “broad ‘fault’ standard is inherently subject to factual determination and adversarial input.” Mitchell v. W. T. Grant Co., 416 U. S. 600, 617 (1974). As the Secretary’s regulations make clear, “fault” depends on an evaluation of “all pertinent circumstances” including the recipient’s “intelligence . . . and physical and mental condition” as well as his good faith. 20 CFR §404.507 (1978). We do not see how these can be evaluated absent personal contact between the recipient and the person who decides his case. Evaluating fault, like judging detrimental reliance, usually requires an assessment of the recipient’s credibility, and written submissions are a particularly inappropriate way to distinguish a genuine hard luck story from a fabricated tall tale. See Goldberg v. Kelly, 397 U. S., at 269.
The consequences of the injunctions entered by the District Courts confirm the reasonableness of interpreting § 204 (b) to require a prerecoupment oral hearing. In compliance with those orders, the Secretary, beginning with calendar year 1977, has granted what respondents term “a short personal conference with an impartial employee of the Social Security Administration at which time the recipient presents testimony and evidence and cross-examines witnesses, and the administrative employee questions the recipient.” Brief for Respondents 46. Of the approximately 2,000 conferences held between January 1977 and October 1978, 30% resulted in a reversal of the Secretary’s decision. Brief for Petitioner 46. This rate of reversal confirms the view that, without an oral hearing, the Secretary may misjudge a number of cases that he otherwise would be able to assess properly, and that the hearing requirement imposed by the Court of Appeals significantly furthers the statutory goal that “there shall be no” recoupment when waiver is appropriate. We therefore agree with the Court of Appeals that an opportunity for a pre-recoupment oral hearing is required when a recipient requests waiver under § 204 (b).
IV
Without full consideration of the question, the Court of Appeals expressed doubts about the availability of full relief under § 205 (g), the Act’s judicial review provision. It therefore invoked the extraordinary remedy of mandamus, for which jurisdiction is provided by 28 U. S. C. § 1361. In this Court, the Secretary contends that mandamus is not appropriate. And though he concedes that jurisdiction over the claims of the named plaintiffs was proper under § 205 (g), he argues that class relief is inappropriate under that section. The Secretary contends in the alternative that even if class relief were appropriate, a nationwide class should not have been certified, and, because the classes here include individuals who have not filed for reconsideration or waiver, relief was awarded to persons over whom the courts had no § 205 (g) jurisdiction. The Secretary also contends that injunctive relief cannot be awarded in a § 205 (g) suit. While we do not reject the Secretary’s contentions entirely, we find that nothing in § 205 (g) prohibits the prerecoupment hearing relief awarded in this case, and so we do not reach the question whether mandamus would otherwise be available.
A
The Secretary argues that class relief is not available in connection with any action brought under § 205 (g), and therefore that class relief should not have been afforded in this case. In making this argument, the Secretary relies on the language of § 205 (g) which authorizes suit by “[a]ny individual,” speaks of judicial review of “any final decision of the Secretary made after a hearing to which [the plaintiff] was a party,” and empowers district courts “to enter ... a judgment affirming, modifying, or reversing the decision of the Secretary.” This language, the Secretary says, indicates that Congress contemplated a case-by-case adjudication of claims under § 205 (g) that is incompatible with class relief.
The Secretary contends that the decision in Weinberger v. Salfi, 422 U. S. 749 (1975), finding class relief inappropriate on the facts of that case, and the legislative history of § 205 (g) support his argument in this regard. And though the Secretary concedes that every Court of Appeals that has considered this issue has concluded that class relief is available under § 205 (g), he distinguishes those cases on the grounds they evinced insufficient respect for the statute’s plain language and exaggerated the need for class relief in § 205 (g) actions. Restricted judicial review will not have a detrimental effect on the administration of the Social Security Act, the Secretary says, because he will appeal adverse decisions or abide them within the jurisdiction of the courts rendering them. There is thus no need for repetitious litigation in order to establish legal principles beyond the confines of a particular case, and no need to afford class relief in cases brought under § 205 (g).
Section 205 (g) contains no express limitation of class relief. It prescribes that judicial review shall be by the usual type of “civil action” brought routinely in district court in connection with the array of civil litigation. Federal Rule Civ. Proe. 1, in turn, provides that the Rules “govern the procedure in the United States district courts in all suits of a civil nature.” (Emphasis added.) Those Rules provide for class actions of the type certified in this case. Fed. Rule Civ. Proc. 23 (b) (2). In the absence of a direct expression by Congress of its intent to depart from the usual course of trying “all suits of a civil nature” under the Rules established for that purpose, class relief is appropriate in civil actions brought in federal court, including those seeking to overturn determinations of the departments of the Executive Branch of the Government in cases where judicial review of such determinations is authorized.
We do not find in § 205 (g) the necessary clear expression of congressional intent to exempt actions brought under that statute from the operation of the Federal Rules of Civil Procedure. The fact that the statute speaks in terms of an action brought by “any individual” or that it contemplates case-by-case adjudication does not indicate that the usual Rule providing for class actions is not controlling, where under that Rule certification of a class action otherwise is permissible. Indeed, a wide variety of federal jurisdictional provisions speak in terms of individual plaintiffs, but class relief has never been thought to be unavailable under them. See, e. g., 28 U. S. C. § 1343 (civil rights; provides jurisdiction over civil actions “authorized by law to be commenced by any person”); 28 U. S. C. § 1361 (mandamus; empowers federal courts to compel certain Government officials and agencies “to perform a duty owed to the plaintiff”); 29 U. S. C. § 1132 (a) (Employee Retirement Income Security Act of 1974; provides jurisdiction over a civil action brought under the Act “by a participant or beneficiary”). It is not unusual that § 205 (g), like these other jurisdictional statutes, speaks in terms of an individual plaintiff, since the Rule 23 class-action device was designed to allow an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.
Moreover, class relief is consistent with the need for case-by-case adjudication emphasized by the Secretary, at least so long as the membership of the class is limited to those who meet the requirements of § 205 (g). See Norton v. Mathews, 427 U. S. 524, 535-537, and nn. 4-8 (1976) (Stevens, J., dissenting). Where the district court has jurisdiction over the claim of each individual member of the class, Rule 23 provides a procedure by which the court may exercise that jurisdiction over the various individual claims in a single proceeding.
Finally, we note that class relief for claims such as those presented by respondents in this case is peculiarly appropriate. The issues involved are common to the class as a whole. They turn on questions of law applicable in the same manner to each member of the class. The ultimate question is whether a prerecoupment hearing is to be held, and each individual claim has little monetary value. It is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue. And the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every social security beneficiary to be litigated in an economical fashion under Rule 23.
We therefore agree that where the district court has jurisdiction over the claims of the members of the class in accordance with the requirements set out in § 205 (g), it also has the discretion under Fed. Rule Civ. Proc. 23 to certify a class action for the litigation of those claims.
B
The Secretary next argues that, assuming class actions in fact may be maintained under § 205 (g), it was error for the courts here to sustain the nationwide class in the Buffington litigation. He argues that a nationwide class is unwise in that it forecloses reasoned consideration of the same issues by other federal courts and artificially increases the pressure on the docket of this Court by endowing with national importance issues that, if adjudicated in a narrower context, might not require our immediate attention. Moreover, the Secretary, citing Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977), as an example, argues that nationwide class relief is inconsistent with the rule that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.
Nothing in Rule 23, however, limits the geographical scope of a class action that is brought in conformity with that Rule. Since the class here was certified in accordance with Rule 23 (b)(2), the limitations on class size associated with Rule 23 (b) (3) actions do not apply directly. Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class. Dayton Board, 433 U. S., at 414-420. If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.
We concede the force of the Secretary’s contentions that nationwide class actions may have a detrimental effect by foreclosing adjudication by a number of different courts and judges, and of increasing, in certain cases, the pressures on this Court’s docket. It often will be preferable to allow several courts to pass on a given class claim in order to gain the benefit of adjudication by different courts in different factual contexts. For this reason, a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts. But we decline to adopt the extreme position that such a class may never be certified. The certification of a nationwide class, like most issues arising under Rule 23, is committed in the first instance to the discretion of the district court. On the facts of this case we cannot conclude that the District Court in Buffington abused that discretion, especially in light of its sensitivity to ongoing litigation of the same issúe in other districts, and the determination that counsel was adequate to represent the class.
C
The Secretary concedes that the named plaintiffs have satisfied the requirements of § 205 (g) jurisdiction. He argues, however, that the District Courts erred in awarding relief to class members who have been subjected to recoupment but who have not sought either reconsideration of overpayment determinations or waiver of recovery. The Secretary contends that these class members have failed to obtain a “final decision” from the Secretary as required by § 205 (g), as construed in Weinberger v. Salfi, 422 U. S. 749 (1975), and Mathews v. Eldridge, 424 U. S. 319 (1976).
The relief to which the Secretary objects in this Court is the determination that he must afford class members an opportunity for a prerecoupment oral hearing. With respect to that relief, the classes certified were plainly too broad. Both the Elliott and the Buffington classes included persons who had not filed requests for reconsideration or waiver in the past and would not do so in the future. As to them, no “final decision” concerning the right to a prerecoupment hearing has been or will be made.
The Secretary errs, however, in suggesting that the lower courts ordered that an opportunity for a prerecoupment oral hearing be afforded to those persons. The Court of Appeals aptly summarized its holding, and that of the District Courts, as being that recipients are entitled to the opportunity for a hearing “when they claim a waiver.” 564 F. 2d, at 1222. Because the procedure for claiming waiver involves filing a written request with the Secretary, we cannot agree that the Court of Appeals ordered this relief for those who do not meet the jurisdictional prerequisites of § 205 (g). The Secretary's objection to the class definition is well taken, but it provides no basis for altering the relief actually granted in this case.
D
Finally, the Secretary contends that the District Courts erred in granting injunctive relief. He argues that the grant of jurisdiction found in § 205 (g), which speaks only of the power to enter a judgment “affirming, modifying, or reversing the decision of the Secretary,” does not encompass the equitable power to direct that the statute be implemented through procedures other than those authorized by the Secretary. Invoking the maxim that equitable relief is appropriate only when a party has no adequate remedy at law, he says that respondents would have an adequate remedy if a court simply reversed the Secretary’s decision not to grant them pre-recoupment oral hearings. In the face of such an order, he would be forced, he says, to suspend recoupment until the recipient was afforded a hearing.
The Secretary’s reading of the statute is too grudging. Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction. See Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946); Scripps-Howard Radio v. FCC, 316 U. S. 4, 9-11 (1942). Nothing in either the language or the legislative history of § 205 (g) indicates that Congress intended to preclude injunctive relief in § 205 (g) suits.
Injunctions can play an essential role in § 205 (g) litigation. Without the power to order a stay of recoupment pending decision, a court for all practical purposes would be unable to “reverse” a decision concerning prerecoupment rights. In class actions, injunctions may be necessary to protect the interests of absent class members and to prevent repetitive litigation. While the grant of' injunctive relief makes the Secretary’s duty to comply enforceable by contempt order, “[s'Jurely Congress did not intend § 205 (g) to provide reluctant federal officials with a means of delay in the remote eventuality that they might not feel bound by the judgment of a federal court.” Norton v. Mathews, 427 U. S., at 535 (dissenting opinion). The conclusion that injunctive relief is available under § 205 (g) is supported both by our implicit holding that a three-judge court was properly convened in Jimenez v. Weinberger, 417 U. S. 628 (1974), and by the opinions of four Courts of Appeals.
y
For these reasons, we hold that recipients who file a written request for waiver under § 204 (b) are entitled to the opportunity for a prerecoupment oral hearing; that those who merely request reconsideration under § 204 (a) are not so entitled; that class certification is permissible under § 205 (g); that the Buffington court did not abuse its discretion in certifying a nationwide class; that the class did exceed the bounds permitted by § 205 (g), but that the class members who received relief all satisfied the § 205 (g) requirement that a request for waiver be filed; and that injunctive relief may be awarded in a § 205 (g) proceeding.
The judgment of the Court of Appeals is therefore affirmed in part and reversed in part.
It is so ordered.
Mr. Justice Powell took no part in the Consideration or decision of this case.
In pertinent part, §204 (a), as set forth in 42 U. S. C. §404 (a), provides:
“Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows:
“(1) With respect to payment to a person [of] more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments of such overpaid person, or shall apply any combination of the foregoing.”
Section 204 (b), as set forth in 42 U. S. C. §404 (b), reads in full:
“In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.”
Although during 1977 the average overpayment to old-age and survivors’ insurance beneficiaries who were overpaid exceeded $500, only 3.4% of those thus subject to recoupment sought waiver. Brief for Petitioner 45, and n. 33. These figures do not include disability beneficiaries. Ibid. See also Elliott v. Weinberger, 371 F. Supp. 960, 967 (Haw. 1974).
The Secretary has altered his procedures in several respects since the initiation of this litigation, including: (i) rather than terminate all benefits until recoupment is completed, the Secretary now in nonfraud cases usually reduces the recipient’s monthly payments by only 25%, see Claims Manual §5515 (Jan. 1979); and (ii) recipients who report excessive earnings and are found to have been overpaid now receive notice before, rather than after, recoupment begins. See Elliott v. Weinberger, 564 F. 2d 1219, 1223 (CA9 1977). Neither party contends that these changes moot this case.
Respondent Evelyn Elliott died in 1973. Counsel 'for the respondent class moved to substitute Nancy Yamasaki as the respondent named in the caption of the case in this Court, and that motion was granted. 441 U. S. 959 (1979). In order to be consistent with the heretofore published reports of these cases, we refer to the decisions in the District Courts and Court of Appeals by their original captions.
For respondents Isabelle Ortiz, Jordan Silva, and John Vaquilar, the Secretary’s determination was based on annual excess earnings reports they filed. The Secretary determined that respondents Raymond Gaines and Nancy Yamasaki were overpaid because of administrative errors. Elliott v. Weinberger, 371 F. Supp., at 965-966.
Respondent Fannie Buffington received wife’s benefits. Her husband filed a report which revealed that his earnings had exceeded the statutory limit. Respondent Frances Biner was asked to file an earnings report for 1972 after a check with her employer showed that her earnings exceeded those previously reported. Elliott v. Weinberger, 564 F. 2d, at 1224-1225.
The District Court also asserted jurisdiction under the Administrative Procedure Act, 5 U. S. C. § 701 et seq. Thereafter, in Califano v. Sanders, 430 U. S. 99 (1977), however, this Court held that that Act does not provide a grant of federal-court jurisdiction. Respondents do not rely on that statute here.
The United States Court of Appeals for the Third Circuit on remand reaffirmed its prior holding that the Due Process Clause required an oral hearing prior to recoupment when waiver was requested under §204 (b), but it said that no such hearing was ever required when reconsideration was requested under §204 (a). Mattern v. Mathews, 582 F. 2d 248 (1978), cert. pending sub nom. Califano v. Mattern, No. 78-699.
A number of statutes authorizing the recovery of federal payments make an exception for cases that are “against equity and good conscience.” Most are entirely permissive. They provide that recovery “is not required,” e. g., 10 U. S. C. §§ 1442, 1453 (serviceman's family annuity and survivors’ benefit); or that an agency “may waive” recovery if a proper showing is made, 5 U. S. C. § 4108 (c) (civil service training expenses), 5 U. S. C. § 5922 (b) (2) (foreign station allowances); or that the agency head “shall make such provision as he finds appropriate”, 42 U. S. C. § 1383 (b) (supplemental security income); or simply that recovery “may be waived,” 10 U. S. C. § 2774 (a) (military pay).
In contrast, §204 is mandatory in form. It says “there shall be no” recovery when waiver is proper. In this regard, it resembles the “equity and good conscience” waiver provisions found in only four other statutes: 38 U. S. C. § 3102 (a) (veterans’ benefits); 42 U. S. C. § 1395gg (c) (Medicare) ; 45 U. S. C. § 231i (c) (Railroad Retirement Act of 1974); 45 U. S. C. § 352 (d) (Railroad Unemployment Insurance Act). Even those statutes are not identical to § 204 in all material respects. While the use of the word “shall,” particularly with reference to an equitable decision, does not eliminate all discretion, see Hecht Co. v. Bowles, 321 U. S. 321, 327-331 (1944), it at least imposes on the Secretary a duty to decide. And here where the provision for recovery, §204 (a), and the provision for waiver, § 204 (b), are phrased in equally mandatory terms, it is reasonable to infer that in this particular statute Congress did not intend to exalt recovery over waiver.
The legislative history of § 204 (b) indicates merely that Congress intended to make recovery more equitable by authorizing waiver. See H. R. Rep. No. 728, 76th Cong., 1st Sess., 19 (1939); Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., 2287-2288 (1939); S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 256 (1965); S. Rep. No. 744, 90th Cong., 1st Sess., 257 (1967).
Section 225, 42 U. S. C. § 425, provides:
“If the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to [disability benefits] . . . may have ceased to be under a disability, the Secretary may suspend the payment of benefits . . . until it is determined . . . whether or not such individual’s disability has ceased or until the Secretary believes that such disability has not ceased.”
Section 303 (a) provides:
“The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State . . . includes provision for—
“(1) Such methods of administration ... as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due.”
In pertinent part, §205 (g), 42 U. S. C. §405 (g), provides:
“Any individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.”
The Secretary, noting the sparseness of the legislative history of the Social Security Act on this issue, points only to language indicating that § 205 (g) was intended to fill a gap in the original Act. Congress indicated that it amended the Act because it did not “specify what remedy, if any, is open to a claimant in the event his claim to benefits is denied by the [Social Security] Board.” S. Rep. No. 734, 76th Cong., 1st Sess., 52 (1939). The reference in this passage to “a claimant” and “his claim,” the Secretary believes, bolsters his argument that Congress intended only case-by-ease adjudication under § 205 (g).
See, e. g., Caswell v. Califano, 583 F. 2d 9, 14 n. 12 (CA1 1978); Jones v. Califano, 576 F. 2d 12, 21-22 (CA2 1978); Liberty Alliance of the Blind v. Califano, 568 F. 2d 333, 344-346 (CA3 1977); Johnson v. Mathews, 539 F. 2d 1111, 1125-1126 (CA8 1976); Jimenez v. Weinberger, 523 F. 2d 689, 694-697 (CA7 1975), cert. denied sub nom. Mathews v. Jimenez, 427 U. S. 912 (1976).
Brief for Petitioner 54^55. There are five named representatives in the Elliott class. The District Court found that the notice sent to respondents by the Secretary did not advise them of the need to file a written request, but that even so all had personally been in touch with the local Social Security office within 30 days and objected to recoupment. The court also found that, after suit was initiated, John Vaquilar, Evelyn Elliott, Raymond Gaines, and Nancy Yamasaki filed written requests for reconsideration and waiver, and that these requests would not have changed their status had filing been timely. 371 F. Supp., at 965, and n. 8, 966, and n. 14. The Secretary says that files of the Social Security Administration also show that Jordan Silva filed a request for reconsideration and waiver, which was denied. Brief for Petitioner 12 n. 16. Because Isabelle Ortiz never filed such a request, the Secretary expresses some reservation as to whether she has met the requirements of § 205 (g). Brief for Petitioner 55.
There are two named representatives of the Buffington class. Fannie Buffington filed a request for reconsideration, and Frances Biner filed a request for waiver. 564 F. 2d, at 1224-1225.
Respondents also sought and obtained a ruling that the Secretary had not provided constitutionally adequate notice. The breadth of the classes is caused in part by the inclusion of all those who had not received adequate notice, a class far larger than the class of those who, after receiving notice, filed a request for reconsideration or waiver with the Secretary. The Secretary does not challenge in this Court the Court of Appeals’ ruling as to notice, and none of the parties discuss whether a decision to send notice could be a “final decision” within the meaning of § 205 (g). We therefore decline to consider whether the Court of Appeals had jurisdiction under § 205 (g) to grant notice relief to the class members.
See S. Rep. No. 734, 76th Cong., 1st Sess., 52 (1939); H. R. Rep. No. 728, 76th Cong., 1st Sess., 43 (1939).
See Caswell v. Califano, 583 F. 2d, at 14 n. 12; In re Letourneau, 559 F. 2d 892, 894 (CA2 1977); Johnson v. Mathews, 539 F. 2d, at 1125— 1126; Jimenez v. Weinberger, 523 F. 2d, at 694-697. See generally Weinberger v. Salfi, 422 U. S. 749, 763 n. 8 (1975), noting this issue.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
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"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Unidentifiable",
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] |
[
61
] |
CITY OF MILWAUKEE et al. v. ILLINOIS et al.
No. 79-408.
Argued December 2, 1980
Decided April 28, 1981
Rehnquist, J., delivered the opinion of the Court, in which BurgeR, C. J., and Brennan, Stewart, White, and Powell, JJ., joined. Black-mun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 332.
Elwin J. Zarwell argued the cause for petitioners. With him on the briefs were Richard W. Cutler, Samuel J. Recht, James H. .Baxter III, Andrew M. Barnes, James B. Brennan, and Michael J. McCabe.
Joseph V. Karaganis, Special Assistant Attorney General'of Illinois, argued the cause for respondents. With him on the brief for respondent State of Illinois were Tyrone C. Fahner, Attorney General, Sanford R. Oail, Special Assistant Attorney General, and Russell R. Eggert. On the brief for respondent State of Michigan were Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Thomas J. Emery, Assistant Attorneys General.
Andrew J. Levander argued the cause pro hac vice for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Dirk D. Snel, Martin W. Matzen, and Michele B. Corash.
Briefs of amid curiae urging reversal were filed by Bronson C. La Fol-lette, Attorney General, David J. Hanson, Deputy Attorney General, and Nancy L. Arnold and Linda H. Bochert, Assistant Attorneys General, for the State of Wisconsin; by George W. Crockett, Jr., for the City of Detroit; and by John M. Cannon for Mid-America Legal Foundation.
Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, Shirley Siegel, Solicitor General, and Cyril H. Moore, Jr., and Mary L. Lyndon, Assistant Attorneys General, for the State of New York; and by William W. Becker for the New England Legal Foundation.
Briefs of amici curiae were filed by Richard J. Kissel and Jeffrey C. Fort for the Illinois State Chamber of Commerce; by Robert A. Hillstrom for the Metropolitan Waste Control Commission; and by Ross D. Davis, John J. Gunther, and Stephen C. Chappie for the National League of Cities et al.
Justice Rehnquist
delivered the opinion of the Court.
When this litigation was first before us we recognized the existence of a federal “common law” which could give rise to a claim for abatement of a nuisance caused by interstate water pollution. Illinois v. Milwaukee, 406 U. S. 91 (1972). Subsequent to our decision, Congress enacted the Federal Water Pollution Control Act Amendments of 1972. We granted cer-tiorari to consider the effect of this legislation on the previously recognized cause of action. 445 U. S. 926.
I
Petitioners, the city of Milwaukee, the Sewerage Commission of the city of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee, are municipal corporations organized under the laws of Wisconsin. Together they construct, operate, and maintain sewer facilities serving Milwaukee County, an area of some 420 square miles with a population of over one million people. The facilities consist of a series of sewer systems and two sewage treatment plants located on the shores of Lake Michigan 25 and 39 miles from the Illinois border, respectively. The sewer systems are of both the “separated” and “combined” variety. A separated sewer system carries only sewage for treatment; a combined sewer system gathers both sewage and storm water runoff and transports them in the same conduits for treatment. On occasion, particularly after a spell of wet weather, overflows occur in the system which result in the discharge of sewage directly into Lake Michigan or tributaries leading into Lake Michigan. The overflows occur at discrete discharge points throughout the system.
Respondent Illinois complains that these discharges, as well as the inadequate treatment of sewage at the two treatment plants, constitute a threat to the health of its citizens. Pathogens, disease-causing viruses and bacteria, are allegedly discharged into the lake with the overflows and inadequately treated sewage and then transported by lake currents to Illinois waters. Illinois also alleges that nutrients in the sewage accelerate the eutrophication, or aging, of the lake. Respondent Michigan intervened on this issue only.
Illinois’ claim was first brought to this Court when Illinois sought leave to file a complaint under our original jurisdiction. Illinois v. Milwaukee, supra. We declined to exercise original jurisdiction because the dispute was not between two States, and Illinois had available an action in federal district court. The Court reasoned that federal law applied to the dispute, one between a sovereign State and political subdivisions of another State concerning pollution of interstate waters, but that the various laws which Congress had enacted “touching interstate waters” were “not necessarily the only federal remedies available.” Id., at 101, 103. Illinois could appeal to federal common law to abate a public nuisance in interstate or navigable waters. The Court recognized, however, that:
“It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that time comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution.” Id., at 107.
On May 19, 1972, Illinois filed a complaint in the United States District Court for the Northern District of Illinois, seeking abatement, under federal common law, of the pub-blic nuisance petitioners were allegedly creating by their discharges.
Five months later Congress, recognizing that “the Federal water pollution control program . . . has been inadequate in every vital aspect,” S. Rep. No. 92-414, p. 7 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1425 (1973) (hereinafter Leg. Hist.), passed the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816. The Amendments established a new system of regulation under which it is illegal for anyone to discharge pollutants into the Nation’s waters except pursuant to a permit. §§ 301, 402 of the Act, 33 U. S. C. §§ 1311, 1342 (1976 ed. and Supp. III). To the extent that the Environmental Protection Agency, charged with administering the Act, has promulgated regulations establishing specific effluent limitations, those limitations are incorporated as conditions of the permit. See generally EPA v. State Water Resources Control Board, 426 U. S. 200 (1976). Permits are issued either by the EPA or a qualifying state agency. Petitioners operated their sewer systems and discharged effluent under permits issued by the Wisconsin Department of Natural Resources (DNR), which had duly qualified under § 402 (b) of the Act, 33 U. S. C. § 1342 (b) (1976 ed. and Supp. Ill), as a permit-granting agency under the superintendence of the EPA. See EPA v. State Water Resources Control Board, supra, at 208. Petitioners did not fully comply with the requirements of the permits and, as contemplated by the Act, §402 (b)(7), 33 U. S. C. § 1342 (b)(7), see Wis. Stat. Ann. § 147.29 (West 1974), the state agency brought an enforcement action in state court. On May 25,1977, the state court entered a judgment requiring discharges from the treatment plants to meet the effluent limitations set forth in the permits and establishing a detailed timetable for the completion of planning and additional construction to control sewage overflows.
Trial on Illinois’ claim commenced on January 11, 1977. On July 29 the District Court rendered a decision finding that respondents had proved the existence of a nuisance under federal common law, both in the discharge of inadequately treated sewage from petitioners’ plants and in the discharge of untreated sewage from sewer overflows, The court ordered petitioners to eliminate all overflows and to achieve specified effluent limitations on treated sewage. App. to Pet. for Cert. F-25 — F-26. A judgment order entered on November 15 specified a construction timetable for the completion of detention facilities to eliminate overflows. Separated sewer overflows are to be completely eliminated by 1986; combined sewer overflows by 1989. The detention facilities to be constructed must be large enough to permit full treatment of water from any storm up to the largest storm on record for the Milwaukee area. Id., at D-l. Both the aspects of the decision concerning overflows and concerning effluent limitations, with the exception of the effluent limitation for phosphorus, went considerably beyond the terms of petitioners’ previously issued permits and the enforcement order of the state court.
On appeal, the Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 599 F. 2d 151. The court ruled that the 1972 Amendments had not pre-empted the federal common law of nuisance, but that “[i]n applying the federal common law of nuisance in a water pollution case, a court should not ignore the Act but should look to its policies and principles for guidance.” Id., at 164. The court reversed the District Court insofar as the effluent limitations it imposed on treated sewage were more stringent than those in the permits and applicable EPA regulations. The order to eliminate all overflows, however, and the construction schedule designed to achieve this goal, were upheld.
II
Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision. Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938); United States v. Hudson & Goodwin, 7 Cranch 32 (1812). The enactment of a federal rule in an area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress. Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). Erie recognized as much in ruling that a federal court could not generally apply a federal rule of decision, despite -the existence of jurisdiction, in the absence of an applicable Act of Congress.
When Congress has not spoken to a particular issue, however, and when there exists a “significant conflict between some federal policy or interest and the use of state law,” Wallis, supra, at 68, the Court has found it necessary, in a “few and restricted” instances, Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963), to develop federal common law. See, e. g., Clearfield Trust Co. v. United States, 318 U. S. 363, 367 (1943). Nothing in this process suggests that courts are better suited to develop national policy in areas governed by federal common law than they are in other areas, or that the usual and important concerns of an appropriate division of functions between the Congress and the federal judiciary are inapplicable. See TV A v. Hill, 437 U. S. 153, 194 (1978); Diamond v. Chakrabarty, 447 U. S. 303, 317 (1980); United States v. Gilman, 347 U. S. 507, 511-513 (1954). We have always recognized that federal common law is “subject to the paramount authority of Congress.” New Jersey v. New York, 283 U. S. 336, 348 (1931). It is resorted to “[i]n absence of an applicable Act of Congress,” Clearfield Trust, supra, at 367, and because the Court is compelled to consider federal questions “which cannot be answered from federal statutes alone,” D’Oench, Duhme Co. v. FDIC, 315 U. S. 447, 469 (1942) (Jackson, J., concurring). See also Board of Commissioners v. United States, 308 U. S. 343, 349 (1939); United States v. Little Lake Misere Land Co., 412 U. S. 580, 594 (1973); Miree v. DeKalb County, 433 U. S. 25, 35 (1977) (Burger, C. J., concurring in judgment). Federal common law is a “necessary expedient^” Committee for Consideration of Jones Falls Sewage System v. Train, 539 F. 2d 1006, 1008 (CA4 1976) (en banc), and when Congress addresses a question previously governed by a decision, rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears. This was pointedly recognized in Illinois v. Milwaukee itself, 406 U. S., at 107 (“new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance”), and in the lower court decision extensively relied upon in that case, Texas v. Pankey, 441 F. 2d 236, 241 (CA10 1971) (federal common law applies “[u]ntil the field has been made the subject of comprehensive legislation or authorized administrative standards”) (quoted in Illinois v. Milwaukee, supra, at 107, n. 9).
In Arizona v. California, 373 U. S. 546 (1963), for example, the Court declined to apply the federal common-law doctrine of equitable apportionment it had developed in dealing with interstate water disputes because Congress, in the view of a majority, had addressed the question:
“It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between States. But in those cases Congress had not made any statutory apportionment. In this case, we have decided that Congress has provided its own method for allocating among the Lower Basin States the mainstream water to which they are entitled under the Compact. Where Congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of an ‘equitable apportionment’ for the apportionment chosen by Congress.” Id., at 565-566.
In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), the Court refused to provide damages for “loss of society” under the general maritime law when Congress had not provided such damages in the Death on the High Seas Act:
“We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress’ considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. . . . The Act does not address every issue of wrongful-death law, . . . but when it does speak directly to a question, the courts are not free to ‘supplement’ Congress’ answer so thoroughly that the Act becomes meaningless.” Id., at 625.
Thus the question was whether the legislative scheme “spoke directly to a question” — in that case the question of damages — not whether Congress had affirmatively proscribed the use of federal common law. Our “commitment to the separation of powers is too fundamental” to continue to rely on federal common law “by judicially decreeing what accords with ‘common sense • and the public weal’ ” when Congress has addressed the problem. TV A v. Hill, supra, at 195.
Contrary to the suggestions of respondents, the appropriate analysis in determining if federal statutory law governs a question previously the subject of federal common law is not the same as that employed in deciding if federal law pre-empts state law. In considering the latter question “ 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)). While we have not hesitated to find pre-emption of state law, whether express or implied, when Congress has so indicated, see Ray v. Atlantic Richfield Co., 435 U. S. 151, 157 (1978), or when enforcement of state regulations would impair “federal superintendence of the field,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142 (1963), our analysis has included “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959). Such concerns are not implicated in the same fashion when the question is whether federal statutory or federal common law governs, and accordingly the same sort of evidence of a clear and manifest purpose is not required. Indeed, as noted, in cases such as the present “we start with the assumption” that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.
Ill
We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 Amendments to the Federal Water Pollution Control Act were not merely another law “touching interstate waters” of the sort surveyed in Illinois v. Milwaukee, 406 U. S., at 101-103, and found inadequate to supplant federal common law. Rather, the Amendments were viewed by Congress as a “total restructuring” and “complete rewriting” of the existing water pollution legislation considered in that case. 1 Leg. Hist. 350-351 (remarks of Chairman Blatnik of the House Committee which drafted the House version of the Amendments) ; id., at 359-360 (remarks of Rep. Jones). See S. Rep. No. 92-414, p. 95 (.1971), 2 Leg. Hist. 1511; id., at 1271 (remarks of Chairman Randolph of the Senate Committee which drafted the Senate version of the Amendments); see also EPA v. State Water Resources Control Board, 426 U. S., at 202-203. Congress’ intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The “major purpose” of the Amendments was “to establish a comprehensive long-range policy for the elimination of water pollution.” S. Rep. No. 92-414, at 95, 2 Leg. Hist. 1511 (emphasis supplied). No Congressman’s remarks on the legislation were complete without reference to the “comprehensive” nature of the Amendments. A House sponsor described the bill as “the most comprehensive and far-reaching water pollution bill we have ever drafted,” 1 Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the responsible Committee in the Senate, stated: “It is perhaps the most comprehensive legislation ever developed in its field. It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment.” 2 id., at 1269. This Court was obviously correct when it described the 1972 Amendments as establishing “a comprehensive program for controlling and abating water pollution.” Train v. City of New York, 420 U. S. 35, 37 (1975). The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law. See Texas v. Pankey, 441 F. 2d, at 241.
Turning to the particular claims involved in this case, the action of Congress in supplanting the federal common law is perhaps clearest when the question of effluent limitations for discharges from the two treatment plants is considered. The duly issued permits under which the city Commission discharges treated sewage from the Jones Island and South Shore treatment plants incorporate, as required by the Act, see § 402 (b)(1), 33 U. S. C. § 1342 (b)(1) (1976 ed. and Supp. Ill), the specific effluent limitations established by EPA regulations pursuant to § 301 of the Act, 33 U. S. C. § 1311 (1976 ed. and Supp. III). App. 371-394, 395-424; see 40 CFR § 133.102 (1980). There is thus no question that the problem of effluent limitations has been thoroughly addressed through the administrative scheme established by Congress, as contemplated by Congress. This being so there is no basis for a federal court to impose more stringent limitations than those imposed under the regulatory regime by reference to federal common law, as the District Court did in this case. The Court of Appeals, we believe, also erred in stating:
“Neither the minimum effluent limitations prescribed by EPA pursuant to the provisions of the Act nor the effluent limitations imposed by the Wisconsin agency under the National Pollutant Discharge Elimination System limit a federal court’s authority to require compliance with more stringent limitations under the federal common law.” 599 F. 2d, at 173.
Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed by the agency charged by Congress with administering this comprehensive scheme.
The overflows do not present a different case. They are point source discharges and, under the Act, are prohibited unless subject to a duly issued permit. As with the discharge of treated sewage, the overflows, through the permit procedure of the Act, are referred to expert administrative agencies for control. All three of the permits issued to petitioners explicitly address the problem of overflows. The Jones Island and South Shore permits, in addition to covering discharges from the treatment plants, also cover overflows from various lines leading to the plants. As issued on December 24, 1974, these permits require the city Commission “to initiate a program leading to the elimination or control of all discharge overflow and/or bypass points in the [Jones Island or South Shore, respectively] Collector System ... to assure attainment of all applicable Water Quality Standards.” App. 378-379, 416. The specific discharge points are identified. The Commission was required to submit a detailed plan to DNR designed to achieve these objectives, including alternative engineering solutions and cost estimates, file a report on an attached form for all overflows that do occur, install monitoring devices on selected overflows discharge points, and file more detailed quarterly reports on the overflows from those points. The Commission was also required to complete “facilities planning” for the combined sewer area. “The facilities planning elements include a feasibility study, cost-effectiveness analysis and environmental assessment for elimination or control of the discharges from the combined sewers.” Quarterly progress reports on this planning are required. Id., at 379. A permit issued to the city on December 18, 1974, covers discharges “from sanitary sewer crossovers, combined sewer crossovers and combined sewer overflows.” Id., at 425. Again the discharge points are specifically identified. As to separated sewers, the city “is required to initiate a program leading to the elimination of the sanitary sewer crossovers (gravity) and the electrically operated relief pumps . . . .” Id., at 438. A detailed plan to achieve this objective must be submitted, again with alternative engineering solutions and cost estimates, any overflows must be reported to DNR on a specified form, and monitoring devices are required to be installed on selected points to provide more detailed quarterly reports. As to the combined sewers, the city “is required to initiate a program leading to the attainment of control of overflows from the city’s combined sewer system . . . .” Id., at 443. The city is required to cooperate with and assist the city Commission in facilities planning for combined sewers, see supra, this page, submit quarterly progress reports to DNR, file reports on all discharges, and install monitoring devices on selected discharge points to provide more detailed quarterly reports “until the discharges are eliminated or controlled.” App. 444.
The enforcement action brought by the DNR in state court resulted in a judgment requiring “ [elimination of any bypassing or overflowing which occurs within the sewerage systems under dry weather by not later than July 1, 1982.” Id., at 465. Wet weather overflows from separated sewers were to be subject to a coordinated effort by the Commissions resulting in correction of the problem by July 1, 1986, pursuant to a plan submitted to the DNR. Id., at 469-471. As to the combined sewer overflows, the Commissions were required to accomplish an abatement project, with design work completed by July 1, 1981, and construction by July 1, 1993. Annual progress reports were required to be submitted to the DNR. Id., at 471-472.
It is quite clear from the foregoing that the state agency duly authorized by the EPA to issue discharge permits under ^the Act has addressed the problem of overflows from petitioners’ sewer system. The agency imposed the conditions it considered best suited to further the goals of the Act, and provided for detailed progress reports so that it could continually monitor the situation. Enforcement action considered appropriate by the state agency was brought, as contemplated by the Act, again specifically addressed to the overflow problem. There is no “interstice” here to be filled by federal common law: overflows are covered by the Act and have been addressed by the regulatory regime established by the Act. Although a federal court may disagree with the regulatory approach taken by the agency with responsibility for issuing permits under the Act, such disagreement alone is no basis for the creation of federal common law.
Respondents strenuously argue that federal common law continues to be available, stressing that neither in the permits nor the enforcement order are there any effluent limitations on overflows. This argument, we think, is something of a red herring. The difference in treatment between overflows and treated effluent by the agencies is due to differences in the nature of the problems, not the extent to which the problems have been addressed. The relevant question with overflow discharges is not, as with discharges of treated sewage, what concentration of various pollutants will be permitted. Rather the question is what degree of control will be required in preventing overflows and ensuring that the sewage undergoes treatment. This question is answered by construction plans designed to accommodate a certain amount of sewage that would otherwise be discharged on overflow occasions. The EPA has not promulgated regulations mandating specific control guidelines because of a recognition that the problem is “site specific.” See, e. g., EPA Program Requirements Memorandum PRM No. 75-34 (Dec. 16, 1975):
“The costs and benefits of control of various portions of pollution due to combined sewer overflows and bypasses vary greatly with the characteristics of the sewer and treatment system, the duration, intensity, frequency, and aerial extent of precipitation, the type and extent of development in the service area, and the characteristics, uses and water quality standards of the receiving waters. Decisions on grants for control of combined sewer overflows, therefore, must be made on a case-by-case basis after detailed planning at the local level.”
See also EPA, Report to Congress on Control of Combined Sewer Overflow in the United States 7-1, 7-13 (MCD-50, 1978). Decision is made on a case-by-case basis, through the permit procedure, as was. done here. Demanding specific regulations of general applicability before concluding that Congress has addressed the problem to the exclusion of federal common law asks the wrong question. The question is whether the field has been occupied, not whether it has been occupied in a particular manner.
The invocation of federal common law by the District Court and the Court of Appeals in the face of congressional legislation supplanting it is peculiarly inappropriate in areas as complex as water pollution control. As the District Court noted:
“It is well known to all of us that the arcane subject matter of some of the expert testimony in this case was sometimes over the heads of all of us to one height or another. I would certainly be less than candid if I did not acknowledge that my grasp of some of the testimony was less complete than I would like it to be . . . .” App. to Pet. for Cert. P-4.
Not only are the technical problems difficult — doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise— but the general area is particularly unsuited to the approach inevitable under a regime of federal common law. Congress criticized past approaches to water pollution control as being “sporadic” and “ad hoc,” S. Rep. No. 92-414, p. 95 (1971), 2 Leg. Hist. 1511, apt characterizations of any judicial approach applying federal common law, see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310, 319 (1955).
It is also significant that Congress addressed in the 1972 Amendments one of the major concerns underlying the recognition of federal common law in Illinois v. Milwaukee. We were concerned in that ease that Illinois did not have any forum in which to protect its interests unless federal common law were created. See 406 U. S., at 104, 107. In the 1972 Amendments Congress provided ample opportunity for a State affected by decisions of a neighboring State’s permit-granting agency to seek redress. Under §402 (b)(3), 33 U. S. C. § 1342 (b)(3), a state permit-granting agency must ensure that any State whose waters may be affected by the issuance of a permit receives notice of the permit application and the opportunity to participate in a public hearing. Wisconsin law accordingly guarantees such notice and hearing, see Wis. Stat. Ann. §§ 147.11, 147.13 (West Supp. 1980-1981). Respondents received notice of each of the permits involved here, and public hearings were held, but they did not participate in them in any way. Section 402 (b) (5), 33 U. S. C. § 1342 (b) (5), provides that state permit-granting agencies must ensure that affected States have an opportunity to submit written recommendations concerning the permit applications to the issuing State and the EPA, and both the affected State and the EPA must receive notice and a statement of reasons if any part of the recommendations of the affected State are not accepted. Again respondents did not avail themselves of this statutory opportunity. Under § 402 (d) (2) (A), 33 U. S. C. § 1342 (d)(2)(A) (1976 ed., Supp. Ill), the EPA may veto any permit issued by a State when waters of another State may be affected. Respondents did not request such action. Under § 402 (d) (4) of the Act, 33 U. S. C. § 1342 (d) (4) (1976 ed., Supp. Ill), added in .1977, the EPA itself may issue permits if a stalemate between an issuing and objecting State develops. The basic grievance of respondents is that the permits issued to petitioners pursuant to the Act do not impose stringent enough controls on petitioners’ discharges. The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal courts were in effect to “write their own ticket” under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them.
Respondents argue that congressional intent to preserve the federal common-law remedy recognized in Illinois v. Milwaukee is evident in §§ 510 and 505 (e) of the statute, 33 U. S. C. §§ 1370, 1365 (e). Section 510 provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act. It is one thing, however, to say that States may adopt more stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state dischargers. It is quite another to say that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state dischargers. Any standards established under federal common law are federal standards, and so the authority of States to impose more stringent standards under § 510 would not seem relevant. Section 510 clearly contemplates state authority to establish more stringent pollution limitations; nothing in it, however, suggests that this was to be done by federal-court actions premised on federal common law.
Subsection 505 (e) provides:
“Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)” (emphasis supplied).
Respondents argue that this evinces an intent to preserve the federal common law of nuisance. We, however, are inclined to view the quoted provision as meaning what it says: that nothing in § 505, the citizen-suit provision, should be read as limiting any other remedies which might exist.
Subsection 505 (e) is virtually identical to subsections in the citizen-suit provisions of several environmental statutes. The subsection is common language accompanying citizen-suit provisions and we think that it means only that the provision of such suit does not revoke other remedies. It most assuredly cannot be read to mean that the Act as a whole does not supplant formerly available federal common-law actions but only that the particular section authorizing citizen suits does not do so. No one, however, maintains that the citizen-suit provision pre-empts federal common law.
We are thus not persuaded that § 505 (e) aids respondents in this case, even indulging the unlikely assumption that the reference to “common law” in § 505 (e) includes the limited federal common law as opposed to the more routine state common law. See Committee for Consideration of Jones Falls Sewage System v. Train, 539 F. 2d, at 1009, n. 9.
The dissent considers “particularly revealing,” post, at 343, a colloquy involving Senators Griffin, Muskie, and Hart, concerning the pendency of an action by the EPA against Reserve Mining Co. Senator Griffin expressed concern that “one provision in the conference agreement might adversely affect a number of pending lawsuits brought under the Refuse Act of 1899,” including the Reserve Mining litigation. 1 Leg. Hist. 190. The provision which concerned Senator Griffin, enacted as § 402 (k), 86 Stat. 883, 33 U. S. C. § 1342 (k), provides, in pertinent part:
“Until December 31, 1974, in any case where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of (1) section 301, 306, or 402 of this Act, or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application.”
Senator Griffin was concerned about the relation between this provision and § 4 (a) of the bill, which provided that “[n]o suit, action or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of the Act shall abate by reason of the taking effect of the amendment made by section 2 of this Act.” Senator Griffin stated that “when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against polluters violating the Refuse Act of 1899.”
Senator Muskie responded to Senator Griffin’s concerns by quoting § 4 («•) and stating that “[w]ithout any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress.” 1 Leg. Hist. 193. Later Senator Hart stated: “It is my understanding, . . . after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 will in no way be affected nor will any of the other counts under the existing Federal Water Pollution Control Act or other law.” Id., at 211. When Senator Muskie’s and Hart’s remarks are viewed in this context it is clear that they do not bear on the issue now before the Court. In the first place, although there was a federal common-law claim in the Reserve Mining litigation, Senator Griffin focused on the Refuse Act of 1899— not federal common law. Senator Muskie, with his reference to “other acts of Congress,” rather clearly was not discussing federal common law. Most importantly, however, Senator Muskie based his response to Senator Griffin — that the Re^ serve Mining suit would not be affected — on a specific section of the bill, § 4 (a), which is not applicable to suits other than those brought by or against the Federal Government and pending when the Amendments were enacted. Senator Hart based his response on the explanation given by Senator Muskie. Even if we assumed that the legislators were focusing on the federal common-law aspects of the Reserve Mining litigation (and we do not think they were), Senators Muskie and Hart informed Senator Griffin that the Reserve Mining suit was not affected because of § 4 (a), and not at all because the Act did not displace the federal common law of nuisance. Senator Griffin’s question focused on § 4 (a); understandably, so did the assurances he received. Nothing about the colloquy suggests any intent concerning the continued validity of federal common law. The issue simply did not come up because Senator Griffin’s concerns were fully answered by a particular section not applicable in the case before us.
We therefore conclude that no federal common-law remedy was available to respondents in this case. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
It is the statutory responsibility of the city Commission to “project, plan, construct, maintain and establish a sewerage system for the collection, transmission, and disposal of all sewage and drainage of the city.” Wis. Stat. Ann. §62.61 (1) (West Supp. 1980-1981). The city Commission is specifically given the authority to “plan, construct, and establish all local, district, lateral, intercepting, outfall or other sewers, and all conduits, drains and pumping or other plants, and all buildings, structures, works, apparatus, or agencies, and to lay all mains and pipes, and to create or use all such instrumentalities and means ... as it deems expedient or necessary for carrying the sewerage system . . . into full effect.” § 62.61 (l)(d). The county Commission is responsible for the construction of sewers within the metropolitan area but outside city limits. § 59.96 (6) (a). The city operates some sewers within the city, although the powers of the city Commission include the use and alteration, in its discretion, of “any or all existing public sewers or drains, including storm-water sewers and drains, in the city.” § 62.61 (1) (e). Any construction by the city of local or sanitary sewers is subject to the prior written approval of the city Commission. § 62.67.
Combined sewers are obviously more susceptible to overflows after storms because the storm water is transported in the same conduits as the sewage. Since ground water and water from storm sewers occasionally enter separated sewers, overflows in those systems are also more likely during wet weather. When the system is about to exceed its inherent capacity at given points, overflow devices, either mechanical or gravity, are activated, resulting in the discharge of the effluent. See 599 E. 2d 151, 167-168.
Eutrophication is the natural process by which the nutrient concentration in a body of water gradually increases. The process is allegedly accelerated when nutrients in sewage, particularly phosphorus, are discharged into the water. See id.., at 169, n. 39.
The complaint also sought relief, in counts II and III, under Illinois statutory and common law. See App. 29-32. The District Court stated that “the case should be decided under the principles of the federal common law of nuisance,” App. to Pet. for Cert. F-2, but went on to find liability on all three counts of the complaint, id., at F-24. The Court of Appeals ruled that “it is federal common law and not state statutory or common law that controls in this ease, Illinois v. Milwaukee, supra, 406 U. S., at 107, & n. 9, . . . and therefore we do not address the state law claims.” 599 F. 2d, at 177, n. 53. Although respondent Illinois argues this point in its brief, the issue before us is simply whether federal legislation has supplanted federal common law. The question whether state law is also available is the subject of Illinois’ petition for certiorari, No. 79-571.
The Court of Appeals also rejected petitioners' contentions that there was no in personam jurisdiction under the Illinois long-arm statute, that any exercise of in personam jurisdiction failed to meet the minimum-contacts test of International Shoe Co. v. Washington, 326 U. S. 310 (1945), and that venue was improper. 599 F. 2d, at 155-157. We agree that, given the existence of a federal common-law claim at 'the commencement of the suit, prior to the enactment of the 1972 Amendments, personal jurisdiction was properly exercised and venue was also proper.
See Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 497 (1954) (“[f]ederal intervention has been thought of as requiring special justification, and the decision that such justification has been shown, being essentially discretionary, has belonged in most cases to Congress”) (footnote omitted).
In this regard we note the inconsistency in Illinois’ argument and the decision of the District Court that both federal and state nuisance law apply to this case. If state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.
The dissent errs in labeling our approach “automatic displacement,” post, at 334. As evident infra, at 317-323, the question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law. Our “detailed review of respondents’ claims,” post, at 348, is such an assessment and not, as the dissent suggests, a consideration of whether the particular common law applied below was reasonable.
The dissent’s reference to “the unique role federal common law plays in resolving disputes between one State and the citizens or government of another,” post, at 334, does not advance its argument. Whether interstate in nature or not, if a dispute implicates “Commerce . . . among the several States” Congress is authorized to enact the substantive federal law governing the dispute. Although the Court has formulated “interstate common law,” Kansas v. Colorado, 206 U. S. 46, 98 (1907), it has done so not because the usual separation-of-powers principles do not apply, but rather because interstate disputes frequently call for the application of a federal rule when Congress has not spoken. When Congress has spoken its decision controls, even in the context of interstate disputes. See Arizona v. California, 373 U. S. 546 (1963).
Since the States are represented in Congress but not in the federal courts, the very concerns about displacing state law which counsel against, finding pre-emption of state law in the absence of clear intent actually suggest a willingness to find congressional displacement of federal common law. Simply because the opinion in Illinois v. Milwaukee used the term “pre-emption,” usually employed in determining if federal law 'displaces! state law, is no reason to assume the analysis used to decide the usual,' federal-state questions is appropriate here.
The dissent considers the Water Pollution Control Act of 1948 “broad and systematic,” post, at 338, and emphasizes that the Court in Illinois v. Milwaukee did not view then-existing federal statutes as a barrier to the recognition of federal common law, post, at 337. The suggestion is that the present legislation similarly should be no barrier. This ignores Congress’ view that the previous legislation was “inadequate in every vital aspect,” 2 Leg. Hist. 1425, and Congress’ clear intent, witnessed by the statements and citations in the text, to do something quite different with the 1972 Amendments.
“Point source” is defined in § 502 (14) of the Act, 33 U. S. C. § 1362 (14) (1976 ed., Supp. Ill), as “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” There is no question that all of the discharges involved in this case are point source discharges.
The most casual perusal of the legislative history demonstrates that these views on the comprehensive nature of the legislation were practically universal. See, e. g., 1 Leg. Hist. 343 (Rep. Young); id., at 350 (Rep. Blatnik); id., at 374 (Rep. Clausen); id., at 380 (Rep. Roberts); id., at 425 (Rep. Roe); id., at 450 (Rep. Reuss); id., at 467 (Rep. Dingell); id., at 481 (Rep. Caffery); 2 id., at 1302 (Sen. Cooper); id., at 1408 (Sen. Hart).
The Court of Appeals itself recognized that Congress in the 1972 Amendments “established a comprehensive and detailed system for the regulation and eventual elimination of pollutant discharges into the nation’s waters.” 599 F. 2d, at 162.
This conclusion is not undermined by Congress’ decision to permit States to establish more stringent standards, see § 510, 33 U. S. C. § 1370. While Congress recognized a role for the States, the comprehensive nature of its action suggests that it was the exclusive source of federal law. Cases recognizing that the comprehensive character of a federal program is an insufficient basis to find pre-emption of state law are not in point, since we are considering which branch of the Fedéral Government is the source of federal law, not whether that law pre-empts state law, see supra, at 316-317. Since federal courts create federal common law only as a necessary expedient when problems requiring federal answers are not addressed by federal statutory law, see supra, at 312-315, the comprehensive character of a federal statute is quite relevant to the present question, while it would not be were the question whether state law, which of course does not depend upon the absence of an applicable Act of Congress, still applied.
The regulatory approach of the DNR to overflows reflected in these permit conditions was not plucked out of thin air but rather followed the approach in EPA regulations, issued pursuant to the Act, governing the availability of federal funds for treatment works construction, including construction of facilities to control sewer overflows. The regulations provide, as do the permits, for detailed evaluation of feasibility, engineering alternatives, and costs prior to the commencement of a particular construction project. See 40 CFR §§35.903, 35.917 (1980). The “facilities planning” referred to in the permits for control of combined sewer overflows is a term of art defined in exhaustive detail in the EPA regulations, see §§ 35.917-35.917-9. Such facilities planning constitutes the first step in qualifying for federal financial assistance for construction projects. It was the statutorily articulated intent of Congress to make funds available, subject to certain conditions, for projects to control overflows, see §§ 201 (g)(1), 212 (2) (A), (B), 33'U. S. C. §§ 1281 (g) (1), 1292 (2) (A), (B) (1976 ed. and Supp. Ill); see also S. Rep. No. 92-414, pp. 40-41 (1971), 2 Leg. Hist. 1458-1459; 1 id., at 165 (Sen. Muskie); 2 id., at 1379 (Sen. Magnuson). We are not impressed with arguments that more in the way of immediate solutions should have been required of the dischargers when such requirements may have had the effect, under EPA regulations requiring exhaustive planning and examination of alternatives, of foreclosing recourse to funds Congress intended to be available.
In light of this conclusion we need not consider petitioners’ argument that, assuming the availability of a cause of action, the lower courts erred in concluding that respondents’ evidence sufficed to establish the existence of a nuisance.
See EPA, Benefit Analysis for Combined Sewer Overflow Control 4 (1979) (“regulations governing combined sewer overflows require permits for each outfall . . . they differ from the . . . permits for treatment plants, which specify effluent limitations based on technology or water quality standards. NPDES permits for combined sewer overflows contain no effluent limitations, though they do usually require monitoring and data collection”).
The point is perhaps made most clear if one asks what inadequacy in the treatment by Congress the courts below rectified through creation of federal common law. In imposing stricter effluent limitations the District Court was not “filling a gap” in the regulatory scheme, it was simply providing a different regulatory scheme. The same is true with overflows. The District Court simply ordered planning and construction designed to achieve more stringent control of overflows than the planning and construction undertaken pursuant to the permits. The same point is evident in examining respondents’ arguments. The basic complaint is that the permits issued to petitioners under the Act do not control overflows or treated discharges in a sufficiently stringent manner, not that permits under the Act cannot deal with these subjects or that the instant permits do not do so. At most respondents argue not that the Act is inadequate, as was the legislation considered in Illinois v. Milwaukee, but that these particular permits issued under it are. This does not suffice to create an “interstice” to be filled by federal common law.
It must be noted that the legislative activity resulting in the 19-72 Amendments largely occurred prior to this Court’s decision in Illinois v. Milwaukee. Drafting, filing of Committee Reports, and debate in both Houses took place prior to the decision. Only conference activity occurred after. It is therefore difficult to argue that particular provisions were designed to preserve a federal common-law remedy not yet recognized by this Court.
The dissent cites several cases for the proposition that the federal common-law nuisance remedy existed “[l]ong before” Illinois v. Milwaukee. Post, at 335. During the legislative activity resulting in the 1972 Amendments, however, this Court’s decision in Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971), indicated that state common law would control a claim such as Illinois’. Wyandotte, like the present suit, was brought by a State to abate a pollution nuisance created by out-of-state defendants. The Court ruled that “an action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).” Id., at 498-499, n. 3. The Court in Illinois v. Milwaukee found it necessary to overrule this statement, see 406 U. S., at 102, n. 3.
In full, § 510, as set forth in 33 U. S. C. § 1370, provides:
“Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.”
See, e. g., § 304 (e) of the Clean Air Act, 42 U. S. C. § 7604 (e) (1976 ed., Supp. III); § 16 (e) of the Deepwater Port Act of 1974, 33 U. S. C. § 1515 (e); § 105 (g) (5) of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U. S. C. § 1415 (g) (5); § 12 (e) of the Noise Control Act of 1972, 42 U. S. C. § 4911 (e); § 7002 (f) of the Solid Waste Disposal Act, 42 17. S. C. § 6972 (f); § 1449 (e) of the Safe Drinking Water Act, 42 U. S. C. § 300j — 8 (e) (1976 ed., Supp. III); § 520 (e) of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. § 1270 (e) (1976 ed., Supp. III); and § 20 (c) (3) of the Toxic Substances Control Act, 15 U. S. C. §2619 (c)(3).
The dissent’s criticism of our reading of § 505 (e), post, at 341-342, is misplaced. There is nothing unusual about Congress enacting a particular provision, and taking care that this enactment by itself not disturb other remedies, without considering whether the rest of the Act does so or what other remedies may be available. The fact that the language of § 505 (e) is repeated in haec verba in the citizen-suit provisions of a vast array of environmental legislation, see n. 21, supra, indicates that it does not reflect any considered judgment about what other remedies were previously available or continue to be available under any particular statute. The dissent refers to our reading as “extremely strained,” but the dissent, in relying on § 505 (e) as evidence of Congress’ intent to preserve the federal common-law nuisance remedy, must read “nothing in this section” to mean “nothing in this Act.” We prefer to read the statute as written. Congress knows how to say “nothing in this Act” when it means to, see, e. g., Pub. L. 96-510, § 114 (a), 94 Stat. 2795.
The dissent states that “Senators Muskie and Hart each responded” as Senator Hart is quoted in the text. Post, at 344. This is not strictly accurate. Senator Muskie never responded as Senator Hart did, but rather as quoted in the text above, with the clear reference to § 4 (a). He did not, like Senator Hart, use the phrase “other law” but rather, and of particular significance in the present context, the phrase “any other acts of Congress." This inaccuracy in the dissent appears to be of no little importance, since the dissent attaches great weight to the views of Senator Muskie, see post, at 344, n. 16.
In the similar colloquy in the House, also relied upon by the dissent, Representative Wright responded to a question from Representative Dingell in precisely the same manner as Senator Muskie responded to Senator Griffin, relying on §4 (a), and referring to “other acts of Congress.” 1 Leg. Hist. 248. Representative Dingell never mentioned federal common law in his question.
The dissent also relies on the failure of Congress to enact, in 1977, an amendment “proposed” by Representative Aspin. Post, at 345-346. This reliance ignores not only the fact that “unsuccessful attempts at legislation are not the best of guides to legislative intent,” Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381-382, n. 11 (1969), but also, even assuming the failure to enact the Aspin “proposal” is some indication of Congress’ intent in 1977, the “oft-repeated warning” that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 117-118 (1980). These admonitions do not even come into play, however, since the Aspin proposal was never introduced in either House of Congress; it does not even appear in the Congressional Record. The fate of the Aspin “proposal” has under our precedents dealing with statutory interpretation nothing whatever to do with Congress’ intent concerning federal common law when it enacted the 1972 Amendments.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
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"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
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"Civil Service Commission, U.S.",
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"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
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"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
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"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
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"Federal Maritime Commission",
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"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
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"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
UNITED STATES ex rel. TOUHY v. RAGEN, WARDEN, et al.
No. 83.
Argued November 27-28, 1950.
Decided February 26, 1951.
Robert B. Johnstone argued the cause for petitioner. With him on the brief were Edward M. Burke and Howard B. Bryant.
Robert S. Erdahl argued the cause for McSwain, respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney, Stanley M. Silverberg and Philip R. Monahan.
Mk. Justice Reed
delivered the opinion of the Court.
This proceeding brings here the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum ordering production of papers of the Department in. his possession. The refusal was based upon a regulation issued by the Attorney General under 5 U. S. C. § 22.
Petitioner, Roger Touhy, an inmate of the Illinois State penitentiary, instituted a habeas corpus proceeding in the United States District Court for the Northern District of Illinois against the warden, alleging he was restrained in violation of the Due Process Clause of the Federal Constitution. In the course of that proceeding a subpoena duces tecum was issued and served upon George R. McSwain, the agent in charge of the Federal Bureau of Investigation at Chicago, requiring the production of certain records which, petitioner Toühy claims, contained evidence establishing that his conviction was brought about by fraud. At the hearing that considered the duty of submission of the subpoenaed papers, the U. S. Attorney made representations to the court and to opposing counsel as to how far the Attorney General was willing for his subordinates to go in the production of the subpoenaed papers. The suggestions were not accepted. Mr. McSwain was then placed upon the witness stand and ordered to bring in the papers. He personally declined to produce the records in these words:
“I must respectfully advise the Court that under instructions to me by the Attorney General that I must respectfully decline to produce them, in accordance with Department Rule No. 3229.”
Thereupon, the judge found Mr. McSwain guilty of contempt of court in refusing to produce the records referred to in the subpoena and sentenced him to be committed to the custody of the Attorney General of the United States or his authorized representative until he obeyed the order of the court or was discharged by due process of law.
On appeal, the Court of Appeals reversed on the ground that Department of Justice Order No. 3229 was authorized by the statute and
“confers upon the Department of Justice the privilege of refusing to produce unless there has been a waiver of such privilege.” 180 F. 2d 321 at 327.
The court then considered whether or not the privilege of nondisclosure was waived. It quoted from Supplement No. 2 to Order No. 3229 this language:
“If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney’s office or some similar place of safekeeping near the court room. Under no circumstances should the name of any confidential informant be divulged.” 180 F. 2d at 328.
The Court of Appeals said that “this language contemplates some circumstances when the material called for must be submitted 'to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed.’ ” The court found, however, that no such limited disclosure was requested but that Mr. McSwain was called upon “to produce all documents and material called for in the subpoena without limitation and that at no time was he questioned” as to his willingness to submit the papers for determination as to materiality and best public interests. Consequently, he was not guilty of contempt unless the law required the witness to make unlimited production. The court thought that, since this last would mean there was no privilege in the Department to refuse production, such a holding should not be made. It said:
“Submission could only have been required to the extent the privilege had been waived by the Attorney General and for the purpose and in the specific manner designated.” 180 F. 2d at 328.
We granted certiorari, 340 U. S. 806, to determine the validity of the Department of Justice Order No. 3229. Among the questions duly presented by the petition for certiorari was whether it is permissible for the Attorney General to make a conclusive determination not to produce records and whether his subordinates in accordance with the order may lawfully decline to produce them in response to a subpoena duces tecum.
We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate, Mr. McSwain, acted in accordance with the Attorney General’s instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. The validity of the superior’s action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers. Nor are we here concerned with the effect of a refusal to produce in a prosecution by the United States or with the right of a custodian of government papers to refuse to produce them on the ground that they are state secrets or that they would disclose the names of informants.
We think that Order No. 3229 is valid and that Mr. McSwain in this case properly refused to produce these papers. We agree with the conclusion of the Court of Appeals that since Mr. McSwain was not questioned on his willingness to submit the material “to the court for determination as to its materiality to the case” and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is not material in this case.
Department of Justice Order No. 3229, note 1, supra, was promulgated under the authority of 5 U. S. C. § 22. That statute appears in its present form in Revised Statutes § 161, and consolidates several older statutes relating to individual departments. See, e. g., 16 Stat. 163. When one considers the variety of information contained in the files of any government department and the possibilities of harm.from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U. S. C. § 22, to prescribe regulations not inconsistent with law for “the custody, use, and preservation of the records, papers, and property appertaining to” the Department of Justice, to promulgate Order 3229.
Petitioner challenges the validity of the issue of the order under a legal doctrine which makes the head of a department rather than a court the determinator of the admissibility of evidence. In support of his argument that the Executive should not invade the Judicial sphere, petitioner cites Wigmore, Evidence (3d ed.), § 2379, and Marbury v. Madison, 1 Cranch 137. But under this record we are concerned only with the validity of Order No. 3229. The constitutionality of the Attorney General’s exercise of a determinative power as to whether or on what conditions or subject to what disadvantages to the Government he may refuse to produce government papers under his charge must await a factual situation that requires a ruling. We think Order No. 3229 is consistent with law. This case is ruled by Boske v. Comingore, 177 U. S. 459.
That case concerned a collector of internal revenue adjudged in contempt for failing to file with his deposition copies of a distiller’s reports in his possession as a subordinate officer of the Treasury. The information was needed in litigation in a state court to collect a state tax. The regulation upon which the collector relied for his refusal was of the same general character as Order No. 3229. After referring to the constitutional authority for the enactment of R. S. § 161, the basis, as 5 U. S. C. § 22, for the regulation now under consideration, this Court reached the question of whether the regulation centralizing in the Secretary of the Treasury the discretion to submit records voluntarily to the courts was inconsistent with law, p. 469. It concluded that the Secretary’s reservation for his own determination of all matters of that character was lawful.
We see no material distinction between that case and this.
The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Black and Mr. Justice Douglas are of the opinion the judgment of the District Court should be affirmed.
Mr. Justice Clark took no part in the consideration or decision of this case.
Department of Justice Order No. 3229, filed May 2,1946, 11 Fed. Reg. 4920, reads:
“Pursuant to authority vested in me by R.S. 161 TJ.S. Code, Title 5, Section 22), It is hereby ordered:
“All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation, United States Marshals, and Federal penal and correctional institutions, of in. the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of the Attorney General, The Assistant to the Attorney General, or an Assistant Attorney General acting for him.
“Whenever a subpoena duces tecum is served to produce any of such files, documents, records or information, the officer or employee on whom such subpoena is served, unless otherwise expressly directed by the Attorney General, will appear in court in answer thereto and respectfully decline to produce the records specified there in, on the ground that the disclosure of such records is prohibited by this regulation.”
Supplement No. 2 to that order, dated June 6, 1947, provides in part:
“TO ALL UNITED STATES ATTORNEYS
“procedure to be followed upon receiving a subpoena DUCES TECUM
“Whenever an officer or employee of the Department is served with a subpoena duces tecum to produce any official files, documents, records or information he should at once inform his superior officer of the requirement of the subpoena and ask for instructions from the Attorney General. If, in the opinion of the Attorney General, circumstances or conditions make it necessary to decline in the interest of public policy to furnish the information, the officer or employee on whom the subpoena is served will appear in court in answer thereto and- courteously state to the court that he has consulted the Department of Justice and is. acting in accordance with instructions of the Attorney General in refusing to produce the records. . . .
. . It is not necessary to bring the required documents into the court room and on the witness stand when it is the intention of the officer or employee to comply with the subpoena by submitting the regulation of the Department (Order No. 3229) and explaining that he is not permitted to show the files. If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney’s office or some similar place of safe-keeping near the court room. Under no circumstances should the name of any confidential informant be divulged.”
“The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”
The subpoena was also addressed to the Attorney General. There is no contention, however, that the Attorney General was personally served with the subpoena; nor did he appear. See Fed. Rules Civ. Proe., 45.
We take this answer to refer to both the original Department of Justice Order No. 3229 and the supplement.
Although in this record there are indications that the U. S. Attorney was willing to submit the papers to the judge alone for his determination as to their materiality, the judge refused to accept the papers for examination on that basis. There is also in the record indication that the U. S. Attorney thought of submitting the papers to the court and opposing counsel in chambers but changed his mind. For our conclusion none of these facts are material, as the final order adjudging Mr. McSwain guilty of contempt was based, as above indicated, on a refusal by Mr. McSwain to produce, as instructed by the Attorney General in accordance with Department Order No. 3229.
Cf. United States v. Andolschek, 142 F. 2d 503.
See Wigmore, Evidence (3d ed.), § 2378.
See Wigmore, Evidence (3d ed.), §2374.
Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549. For relatively recent consideration of the problem underlying governmental privilege against producing evidence, compare Duncan v. Cammell, Laird & Co., [1942] A. C. 624, with Robinson v. State of South Australia, [1931] A. C. 704.
That case has been generally followed. See, e. g., Ex parte Sackett, 74 F. 2d 922; In re Valecia Condensed Milk Co., 240 F. 310; Harwood v. McMurtry, 22 F. Supp. 572; Stegall v. Thurman, 175 F. 813; Walling v. Comet Carriers, Inc., 3 F. R. D. 442, 443.
The following excerpts will show the similarity:
“ 'Whenever such subpoenas shall have been served upon them, they will appear in court in answer thereto and respectfully decline to produce the records called for, on the ground of being prohibited therefrom by the regulations of this department. ... In all cases where copies of documents or records are desired by or on behalf of parties to a suit, whether in a court of the United States or any other, such copies shall be furnished to the court only and on a rule of the court upon the Secretary of the Treasury requesting the same. Whenever such rule of the court shall have been obtained collectors are directed to carefully prepare a copy of the record or document containing the information called for and send it to this office, whereupon it will be transmitted to the Secretary of the Treasury with a request for its authentication, under the seal of the department, and transmission to the judge of the court calling for it, unless it should be found that circumstances or conditions exist which makes it necessary to decline, in the interest of the public service, to furnish such a copy.’ ” 177 U. S. 461.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
26
] |
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. GALBREATH
No. 86-1146.
Argued December 9, 1987
Decided February 24, 1988
Brennan, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case.
Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, William G. Ranter, and Jeffrica Jenkins Lee.
Anthony W. Bartels argued the cause and filed a brief for respondent.
Justice Brennan
delivered the opinion of the Court.
The question before us is whether, under Title XVI of the Social Security Act, a district court has the authority to order the Secretary of Health and Human Services to withhold a portion of past-due supplemental security income benefits for the payment of attorney’s fees.
After the Secretary of Health and Human Services denied Mary Alice Galbreath’s application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, she appealed to a Federal District Court. The District Court reversed the denial, and the Secretary accordingly paid Galbreath her full $7,954 in past-due benefits. Galbreath’s attorney, Anthony W. Bartels, then moved for attorney’s fees equal to 25% of the past-due benefits. The District Court determined that the amount requested was reasonable and, relying on 42 U. S. C. § 406(b)(1), ordered the Secretary “to compute, certify, and pay” Bartels his requested fee of $1,988.50 out of the the past-due benefits awarded Galbreath. The Secretary appealed, arguing that § 406(b)(1) applies only to cases under Title II of the Social Security'Act and that the relevant statutes and regulations do not permit withholding past-due SSI benefits for payment of attorney’s fees in Title XVI cases. The Court of Appeals for the Eighth Circuit affirmed. 799 F. 2d 370 (1986). We granted certiorari to resolve a conflict among the Courts of Appeals, 481 U. S. 1036 (1987), and now reverse.
Title II is an insurance program. Enacted in 1935, it provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need. See 42 U. S. C. §§ 403, 423 (1982 ed. and Supp. III). Title XVI is a welfare program. Enacted in 1972, it provides SSI benefits to financially needy individuals who are aged, blind, or disabled regardless of their insured status. See 42 U. S. C. § 1382(a) (1982 ed. and Supp. III).
Until 1965, Title II contained no provision expressly authorizing a district court to award fees to a claimant’s attorney. In 1965, however, the Court of Appeals for the Fifth Circuit held that 42 U. S. C. § 405(g) implicitly authorized district courts to order the payment of attorney’s fees out of past-due benefits. See Celebrezze v. Sparks, 342 F. 2d 286 (1965). Under 42 U. S. C. § 405(g), a court reviewing a decision of the Secretary has the power to enter “a judgment affirming, modifying, or reversing the decision of the Secretary.” The court in Sparks reasoned that where a statute gives a court jurisdiction, it must be presumed, absent any indication to the contrary, that the court was intended to exercise all the powers of a court, including the power to provide for payment of attorney’s fees out of any recovery. 342 F. 2d, at 288-289. Later in 1965, Congress effectively codified Sparks by adding a new subsection (b)(1) to 42 U. S. C. § 406 that allows withholding of past-due benefits to pay attorney’s fees incurred in judicial proceedings under Title II. Social Security Amendments of 1965, Pub. L. 89-97, § 332, 79 Stat. 403. Subsection (b)(1) provides:
“Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.”
In 1968, Congress amended 42 U. S. C. § 406(a) by adding two sentences giving the Secretary similar withholding authority to pay attorney’s fees incurred in Title II administrative proceedings. Social Security Amendments of 1967, Pub. L. 90-248, § 173, 81 Stat. 877.
Thus, the District Court’s order in this case would clearly be valid if this were a Title II case. When Congress enacted Title XVI in 1972, however, it provided no similar authority to withhold past-due benefits for attorney’s fees. This omission is particularly telling because Congress incorporated many other provisions of Title II into Title XVI. In particular, while incorporating almost every other provision of §406 into Title XVI, Congress left out the provisions in § 406(b)(1) and § 406(a) that authorized judicial withholding and administrative withholding. Social Security Amendments of 1972, Pub. L. 92-603, § 301, 86 Stat. 1476-1477, codified at 42 U. S. C. § 1383(d)(2). This omission does not appear to have been inadvertent. Indeed, with respect to administrative proceedings, the House Report specifically noted and explained the omission of withholding authority by twice stating:
“Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from such individual’s benefits. Your committee believes that to withhold such fees would be contrary to the purpose of the program.” H. R. Rep. No. 92-231, pp. 156, 187 (1971).
The Senate Report also indicates the omission of administrative withholding authority was intentional. See S. Rep. No. 92-1230, p. 392 (1972) (“Where an individual who has requested a hearing is represented before the Secretary by an attorney . . . there would be no withholding of attorney fees from the individual’s benefits”). Although the legislative history offered no explanation specifically linked to the omission of judicial withholding authority, it is fair to assume that this omission also reflected Congress’ view that withholding past-due SSI benefits would be inconsistent with the purpose of the program. Given the extreme financial need of SSI beneficiaries, this view is not irrational. Nor would it be odd for Congress to conclude that withholding past-due benefits from financially needy individuals under Title XVI would cause greater hardship than withholding past-due benefits from insured individuals under Title II. We thus conclude that, as originally enacted, Title XVI evidenced a congressional intent not to allow the withholding of past-due SSI benefits to pay attorney’s fees incurred in judicial proceedings.
Respondent and the courts finding judicial withholding authority under Title XVI do not dispute the conclusion that Congress intended to disallow judicial withholding when it enacted Title XVI in 1972. Rather, they contend that courts possess inherent authority to order withholding and that a 1976 amendment to 42 U. S. C. § 1383(c)(3) — the judicial review provision of Title XVI — demonstrates Congress’ intent to allow that authority to be exercised. As enacted in 1972, 42 U. S. C. § 1383(c)(3) (1970 ed., Supp. IV) provided:
“The final determination of the Secretary after a hearing under paragraph (1) shall be,subject to judicial review as provided in Section 405(g) of this title to the same extent as the Secretary’s final determinations under Section 405 of this title; except that the determination of the Secretary after such hearing as to any fact shall be final and conclusive and not subject to review by any court.” Pub. L. 92-603, § 301, 86 Stat. 1476 (emphasis added).
The 1976 amendment simply deleted the italicized portion of the statute. Act of Jan. 2, 1976, Pub. L. 94-202, 89 Stat. 1135. The clear and expressed intent was to make the Secretary’s factual findings under Title XVI subject to judicial review, just as they were under Title II. Nothing in the legislative history mentions withholding benefits to pay attorney’s fees. The Court of Appeals below and other courts have nonetheless reasoned that, because Congress intended to make judicial review under Title XVI the same as judicial review under Title II, courts adjudicating Title XVI cases must have the same inherent authority to order withholding under § 405(g) that, under Sparks, courts adjudicating Title II cases had even before § 406(b)(1) was added.
We find this analysis unpersuasive. On its face, the deletion of a provision making factual findings unreviewable bears no apparent relation to whether withholding of past-due benefits should be allowed. Indeed, the deletion does not even purport to address eases involving legal, rather than factual, disputes, and we can hardly imagine that Congress meant to change the ban on withholding without addressing both kinds of cases. The courts that have concluded that the 1976 amendment authorizes judicial withholding rely on statements in the legislative history indicating Congress’ intent to make judicial review under Title II and Title XVI “virtually identical,” to “provide the same rights to . . . judicial review” under both Titles, and “to apply the same rules of judicial review to Title XVI cases as apply to Title II cases.” S. Rep. No. 94-550, pp. 1, 3-4 (1975). None of these statements suggests that Congress intended to allow withholding of past-due benefits. Rather, they simply state the obvious point that removing the provision barring review under Title XVI of the Secretary’s factual determinations makes the scope of issues reviewable under Title XVI and Title II the same. Even assuming courts have inherent authority under Sparks to withhold a portion of past-due SSI benefits to pay attorney’s fees in Title XVI cases, we see no reason why Congress cannot divest courts of that authority if it so chooses. In originally enacting Title XVI, Congress manifested its intent, by selective incorporation and legislative history, to disallow the withholding of past-due SSI benefits to pay attorney’s fees incurred in Title XVI cases. Until Congress sees fit to override its original decision, by amending Title XVI in a way that manifests an intent to allow withholding, that original decision stands.
The judgment of the Court of Appeals is
Reversed.
Justice Kennedy took no part in the consideration or decision of this case.
Compare Howard v. Bowen, 823 F. 2d 185 (CA7 1987) (withholding not permitted); McCarthy v. Secretary of Health and Human Services, 793 F. 2d 741 (CA6 1986) (same); Motley v. Heckler, 800 F. 2d 1253 (CA4 1986) (same), with Clay v. Secretary of Health and Human Services, 823 F. 2d 679 (CA1 1987) (withholding is permitted); Reid v. Heckler, 735 F. 2d 757 (CA3 1984) (same); and the decision below.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
62
] |
YELLOW TRANSPORTATION, INC. v. MICHIGAN et al.
No. 01-270.
Argued October 7, 2002
Decided November 5, 2002
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 48.
Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Evan M. Tager, Robert L. Bron-ston, John W. Bryant, and R. Ian Hunter.
Austin C. Schlick argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Wallace, Michael Jay Singer, Bruce G. Forrest, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, and Laura C. Fentonmiller.
Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondents. With him on the briefs were Jennifer M. Granholm, Attorney General, Susan I. Leffler, Assistant Solicitor General, and David A. Voges and Henry J. Boynton, Assistant Attorneys General.
Roy T. Englert, Jr., Sherri Lynn Wolson, Beth L. Law, and Robert Digges, Jr., filed a brief for the American Trucking Associations, Inc., et al. as amici curiae urging reversal.
Justice O’Connor
delivered the opinion of the Court.
We granted certiorari in this case, 534 U. S. 1112 (2002), to determine whether the Michigan Supreme Court erred in holding that, under 49 U. S. C. § 14504(e)(2)(B)(iv)(III), only a State’s “generic” fee is relevant to determining the fee that was “collected or charged as of November 15, 1991.”
I
A
Beginning in 1965, Congress authorized States to require interstate motor carriers operating within their borders to register with the State proof of their Interstate Commerce Commission (ICC) interstate operating permits. Pub. L. 89-170, 79 Stat. 648, 49 U. S. C. § 302(b)(2) (1970 ed.). Congress provided that state registration requirements would not constitute an undue burden on interstate commerce so long as they were consistent with regulations promulgated by the ICC. Ibid.
Prior to 1994, the ICC allowed States to charge interstate motor carriers annual registration fees of up to $10 per vehicle. See 49 CFR § 1023.33 (1992). As proof of registration, participating States would issue a stamp for each of the carrier’s vehicles. § 1023.32. The stamp was affixed on a “uniform identification cab car[d]” carried in each vehicle, within the square bearing the name of the issuing State. §§ 1023.32(d)-(e). This system came to be known as the “bingo card” system. Single State Insurance Registration, 9 I. C. C. 2d 610 (1993).
The “bingo card” regime proved unsatisfactory to many who felt that the administrative burdens it placed on carriers and participating States outweighed the benefits to those States and to the public. H. R. Rep. No. 102-171, pt. I, p. 49 (1991); H. R. Conf. Rep. No. 102-404, pp. 437-438 (1991). In the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress therefore directed the ICC to implement a new system to replace the “bingo card” regime. See Pub. L. 102-240, §4005, 105 Stat. 1914, 49 U. S. C. § 11506(c) (1994 ed.). Under the new system, called the Single State Registration System, “a motor carrier [would be] required to register annually with only one State,” and “such single State registration [would] be deemed to satisfy the registration requirements of all other States.” §§ 11506(c)(1)(A) and (C). Thus, one State would — on behalf of all other participating States — register a carrier’s vehicles, file and maintain paperwork, and collect and distribute registration fees. § 11506(c)(2)(A). Participation in the Single State Registration System was limited to those States that had elected to participate in the “bingo card” system. § 11506(c)(2)(D).
ISTEA also capped the per-vehicle registration fee that participating States could charge interstate motor carriers. Congress directed the ICC to
“establish a fee system . .. that (I) will be based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates, (II) will minimize the costs of complying with the registration system, and (III) will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” § 11506(c)(2)(B)(iv).
Congress provided that the charging or collection of any fee not in accordance with the ICC’s fee system would “be deemed to be a burden on interstate commerce.” § 11506(c)(2)(C).
The ICC issued its final implementing regulations in May 1993 after notice-and-comment proceedings. Single-State Insurance Registration, supra. The rulemaking gave rise to the central question in this case: whether, under the Single State Registration System, States were free to terminate “reciprocity agreements” that were in place under the “bingo card” regime. Id., at 617-619. Under these agreements, in exchange for reciprocal treatment, some States discounted or waived registration fees for carriers from other States. Id., at 617.
In issuing a set of proposed rules and soliciting further comments, the ICC questioned whether it had the power to require States to preserve pre-existing reciprocity agreements. Single State Insurance Registration, No. MC-100 (Sub-No. 6), 1993 WL 17833, *12 (Jan. 22, 1993); see Single State Insurance Registration—1993 Rules, 9 I. C. C. 2d 1, 11 (1992). It noted that these agreements were voluntary and mutually beneficial and commented that “as long as no carrier is charged more than [a State’s] standard November 15, 1991, fee for all carriers (subject to the $10 limit), the requirements of [ISTEA] are satisfied.” 1993 WL 17833, *12.
In its final implementing regulations, however, the ICC concluded, in light of further comments, that its preliminary view on reciprocity agreements was inconsistent with ISTEA’s fee-cap provision and with “the intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Single State Insurance Registration, 9 I. C. C. 2d, at 618. The agency therefore determined that States participating in the Single State Registration System “must consider fees charged or collected under reciprocity agreements when determining the fees charged or collected as of November 15, 1991, as required by § 11506(c)(2)(B)(iv).” Id., at 618-619; see also American Trucking Associations — Petition for Declaratory Order—Single State Insurance Registration, 9 I. C. C. 2d 1184, 1192, 1194-1195 (1993). The National Association of Regulatory Utility Commissioners (NARUC) and 18 state regulatory commissions sought review of the ICC’s determination and certain provisions of the Single State Registration System regulations. NARUC v. ICC, 41 F. 3d 721 (1994). The United States Court of Appeals for the District of Columbia concluded that the plain language of the statute supported the ICC’s determination that States participating in the new system must consider reciprocity agreements under 49 U. S. C. § 11506(c)(2)(B)(iv). 41 F. 3d, at 729.
B
Prior to the implementation of the Single State Registration System, Michigan had participated in the “bingo card” regime. See App. 5 (Affidavit of Thomas R. Lonergan, Director, Motor Carrier Regulation Division of the Michigan Public Service Commission ¶ 3e) (hereinafter Lonergan Affidavit). The Michigan Legislature had directed the Michigan Public Service Commission to levy an annual registration fee of $10 per vehicle on interstate motor carrier vehicles and simultaneously endowed the commission with authority to “enter into a reciprocal agreement with a state.” Mich. Comp. Laws Ann. § 478.7(4) (West 1988). Pursuant to such reciprocal agreements, the commission was empowered to “waive the fee [otherwise] required.” Ibid.
Petitioner in this case is an interstate trucking company headquartered in Kansas. For calendar years 1990 and 1991, the Michigan Public Service Commission did not levy a fee for petitioner’s trucks that were licensed in Illinois pursuant to its policy “not to charge a fee to carriers with vehicles registered in states ... which did not charge Michigan-based carriers a fee.” App. 6 (Lonergan Affidavit ¶ 3i). In 1991, however, the Michigan Public Service Commission announced a change in its reciprocity policy to take effect on February 1, 1992. Under the new policy, the commission granted reciprocity treatment based on the policies of the State in which a carrier maintained its principal place of business rather than the State in which individual vehicles were licensed. Because Michigan had no reciprocal arrangement with Kansas, the Michigan Public Service Commission sent petitioner a bill in September 1991, levying a fee of $10 per vehicle for the 1992 registration year on petitioner’s entire fleet, with payment due on January 1,1992.
Petitioner paid the fees in October 1991 under protest and later brought suit in the Michigan Court of Claims seeking a refund of the fees it paid for its Illinois-licensed vehicles after the Single State Registration System came into effect. See 49 U. S. C. § 11506(c)(3) (1994 ed.) (setting effective date of January 1, 1994). Petitioner alleged that, because Michigan had not “collected or charged” a fee for the 1991 registration year for trucks licensed in Illinois, ISTEA’s fee-cap provision prohibits Michigan from levying a fee on Illinois-licensed trucks.
On cross motions for summary disposition, the Michigan Court of Claims ruled in favor of petitioner. Yellow Freight System, Inc. v. Michigan, No. 95-15706-CM (Mar. 13, 1996) (Yellow Freight System I). The Court of Claims’ holding relied on an ICC declaratory order in which the agency held that ISTEA’s fee-cap provision caps fees at the level “collected or charged” for registration year 1991, not those fees levied for registration year 1992 in advance of the statutory cutoff date. Id., at 3-4; see American Trucking Associations, supra, at 1192, 1195.
The Michigan Court of Appeals affirmed on similar grounds. Yellow Freight System, Inc. v. Michigan, 231 Mich. App. 194, 585 N. W. 2d 762 (1998) (Yellow Freight System II). The Court of Appeals also rejected Michigan’s argument that States need not consider reciprocity agreements in determining the level of fees “charged or collected as of November 15, 1991,” noting that the ICC had determined reciprocity agreements must be considered, and that the agency’s decision had been upheld in NARUC v. ICC, supra. Yellow Freight System II, supra, at 202-203, 585 N. W. 2d, at 766.
The Michigan Supreme Court reversed. Yellow Freight System, Inc. v. Michigan, 464 Mich. 21, 627 N. W. 2d 236 (2001) (Yellow Freight System III). The court concluded that “reciprocity agreements are not relevant in determining what fee [a State] ‘charged or collected’ as of November 15, 1991.” Id., at 33, 627 N. W. 2d, at 242. The court expressly rejected the District of Columbia Circuit’s contrary conclusion. Id., at 29, 627 N. W. 2d, at 240 (citing NARUC v. ICC, supra). The Court applied Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), but determined that the statute unambiguously forbids the ICC’s interpretation. Yellow Freight System III, 464 Mich., at 29-31, 627 N. W. 2d, at 240-241. Reasoning that “[t]he new ‘fee system’ is based not on the fees collected from one individual company, but on the fee system that the state had in place on November 15, 1991,” the court concluded that “[w]e must look not at the fees paid by [petitioner] in any given year, but at the generic fee Michigan charged or collected from carriers as of November 15, 1991.” Id., at 31, 627 N. W. 2d, at 241 (emphasis added). Two justices dissented, finding ISTE A’s fee-cap provision ambiguous, the ICC’s construction reasonable, and deference therefore due. Id., at 33-43, 627 N. W. 2d, at 242-247 (opinions of Kelly and Cavanagh, JJ.).
The Michigan Supreme Court did not consider respondents’ argument that the fees petitioner paid Michigan for the 1992 registration year were “collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Nor did that court reach the question whether Michigan had “canceled its reciprocity agreements with other States in 1989.” Brief for United States as Amicus Curiae 23. The only issue before this Court, therefore, is whether States may charge motor carrier registration fees in excess of those charged or collected under reciprocity agreements as of November 15, 1991.
II
Neither party disputes that Chevron, supra, governs the interpretive task at hand. In ISTEA, Congress made an express delegation of authority to the ICC to promulgate standards for implementing the new Single State Registration System. 49 U. S. C. § 11506(c)(1) (1994 ed.). The ICC did so, interpreting ISTEA’s fee-cap provision subsequent to a notice-and-comment rulemaking. See United States v. Mead Corp., 533 U. S. 218, 229 (2001) (“[A] very good indicator of delegation meriting Chevron treatment [is an] express congressional authorizatio[n] to engage in the process of rule-making or adjudication that produces regulations or rulings for which deference is claimed”). The Federal Highway Administration adopted the ICC’s regulations, see supra, at 39, n., and the Single State Registration System is now administered by the Federal Motor Carrier Safety Administration. 49 U.S. C. §113.
Accordingly, the question before us is whether the text of the statute resolves the issue, or, if not, whether the ICC’s interpretation is permissible in light of the deference to be accorded the agency under the statutory scheme. If the statute speaks clearly “to the precise question at issue,” we “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U. S., at 842-843. If the statute is instead “silent or ambiguous with respect to the specific issue,” we must sustain the agency’s interpretation if it is “based on a permissible construction of the statute.” Id., at 843; see Barnhart v. Walton, 535 U. S. 212, 217-218 (2002).
ISTEA’s fee-cap provision does not foreclose the ICC’s determination that fees charged under States’ pre-existing reciprocity agreements were, in effect, frozen by the new Single State Registration System. The provision requires that the new system “result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). The language “collected or charged” can quite naturally be read to mean fees that a State actually collected or charged. The statute thus can easily be read as the ICC chose, making it unlawful “for a State to renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of November 15, 1991, under the predecessor registration system.” American Trucking Associations, 9 I. C. C. 2d, at 1194; see Single State Insurance Registration, 9 I. C. C. 2d, at 618-619.
The Michigan Supreme Court held that the language of ISTEA’s fee-cap provision compels a different result. Although it acknowledged that ISTEA is silent with respect to reciprocity agreements, the court nonetheless concluded that the fee-cap provision mandates that those agreements have no bearing in the determination of what fee a State “collected or charged” as of November 15, 1991. Yellow Freight System III, 464 Mich., at 31, 627 N. W. 2d, at 241. The court reasoned that the Single State Registration System was “based not on the fees collected from one individual company, but on the fee system that the state had in place.” Ibid. (emphasis added). While such a reading might be reasonable, nothing in the statute compels that particular result.
The fee-cap provision refers not to a “fee system,” but to the “fee . . . collected or charged.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Under the ICC’s rule, where a State waives its registration fee, its “fee . . . collected or charged” is zero and must remain zero. The ICC’s interpretation is a permissible reading of the language of the statute. And, because there is statutory ambiguity and the agency’s interpretation is reasonable, its interpretation must receive deference. See Chevron, supra, at 843.
As commenters to the ICC during the rulemaking pointed out, to allow States to disavow their reciprocity agreements so as to alter any fee charged or collected as of November 15, 1991, would potentially permit States to increase their revenues substantially under the new system, a result that the ICC quite reasonably believed Congress did not intend. See Single State Insurance Registration, 9 I. C. C. 2d, at 618. The ICC concluded that its rule best served the “intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.” Ibid. The agency considered that allowing States to disavow reciprocity agreements and charge a single, uniform fee might reduce administrative burdens, but expressed concern that carriers’ registration costs, and state revenues, would balloon. Ibid, (noting that some carriers’ fees “assertedly could increase as much as 900%,” and that one commenter presented a “worst case scenario” in which “State revenues could increase from $50 million to $200 million”).
Respondents argue that Congress intended for each State to set a single, uniform fee. While such a mandate would, indeed, have simplified the new system, it is not compelled by the language of the statute, which instructs the ICC to implement a system under which States charge a fee, not to exceed $10 per vehicle, that is equal to the fee such States “collected or charged as of November 15, 1991.”
Respondents also contend that, by freezing the fees charged under reciprocity agreements as part of the fee cap, the ICC added a constraint not within the express language of the statute. The Michigan Supreme Court expressed a similar concern, stating that “[i]t is not for the ICC ... to insert words into the statute.” 464 Mich., at 32, 627 N. W. 2d, at 241-242. It was precisely Congress’ command, however, that the ICC promulgate standards to govern the Single State Registration System, 49 U. S. C. § 11506(c) (1994 ed.), and it was thus for that agency to resolve any ambiguities and fill in any holes in the statutory scheme. See Mead Corp., supra, at 229; Chevron, supra, at 843-844. To hold States to the fees they actually collected or charged seems to us a reasonable interpretation of the statute’s command that state fees be “equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991.” 49 U. S. C. § 14504(c)(2)(B)(iv)(III).
Respondents argue that the ICC’s rule contravenes ISTEA’s fee-cap provision by limiting what a State can charge based on what was collected from or charged to a particular carrier. Respondents point out that the focus of the provision is on the actions of the State, not the actions of any particular carrier. While we agree that the statute focuses on what States “collected or charged” rather than what particular carriers paid, we do not agree that the ICC’s rule focuses the inquiry on the latter. Under the “bingo card” regime, States entered into reciprocity agreements that waived or reduced fees charged to particular categories of vehicles. The ICC’s rule does not necessarily cap the aggregate fee paid by any particular carrier; rather, it simply requires States to preserve fees at the levels they actually collected or charged pursuant to reciprocity agreements in place as of November 15, 1991.
Because the ICC’s interpretation of ISTEA’s fee-cap provision is consistent with the language of the statute and reasonably resolves any ambiguity therein, see Chevron, 467 U. S., at 843, the Michigan Supreme Court erred in declining to enforce it.
The judgment is therefore reversed, and the case is remanded to the Michigan Supreme Court for further proceedings not inconsistent with this opinion.
It is so ordered.
Congress abolished the ICC in 1995 and assigned responsibility for administering the new Single State Registration System to the Secretary of Transportation. See ICC Termination Act of 1995, Pub. L. 104-88, § 101, 109 Stat. 803. The provisions of ISTEA governing the system were amended and recodified. See 49 U. S. C. § 14504(c). The Federal Highway Administration, under the Secretary of Transportation, adopted the ICC regulations that implemented the Single State Registration System, 61 Fed. Reg. 54706, 54707 (1996), and the Federal Motor Carrier Safety Administration now has authority to administer the system, 49 U. S. C. § 113(f)(1).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
65
] |
PEURIFOY et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 46.
Argued October 16, 20, 1958.
Decided November 10, 1958.
Daniel R. Dixon argued the cause for petitioners. With him on the brief was Martin F. O’Donoghue.
Earl E. Pollock argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice, Lee A. Jackson and Melva M. Graney.
Per Curiam.
The petitioners were employed as construction workers at a site in Kinston, North Carolina, for continuous periods of 20% months, 12% months, and 8% months, respectively, ending in the year 1953. Each of the petitioners maintained a permanent residence elsewhere in North Carolina. In reporting his adjusted gross income for 1953 each petitioner deducted amounts expended for board and lodging at Kinston during the period of employment there, and for transportation from Kinston to his permanent residence upon leaving that employment. These deductions were disallowed by the respondent. Ensuing Tax Court proceedings resulted in a decision in favor of the petitioners. 27 T. C. 149. The Court of Appeals reversed. 254 F. 2d 483. We granted certiorari, 356 U. S. 956, to consider certain questions as to the application of §23 (a)(1)(A) of the Internal Revenue Code of 1939 raised by the course of decisions in the lower courts since our decision in Commissioner v. Flowers, 326 U. S. 465. However, as the case has been presented to us we have found it inappropriate to consider such questions.
The issue is whether the amounts in question constituted allowable deductions under § 23 (a)(1)(A). Generally, a taxpayer is entitled to deduct unreimbursed travel expenses under this subsection only when they are required by “the exigencies of business.” Commissioner v. Flowers, supra. Application of this general rule would require affirmance of the judgment of the Court of Appeals in the present case.
To this rule, however, the Tax Court has engrafted an exception which allows a deduction for expenditures of the type made in this case when the taxpayer’s employment is “temporary” as contrasted with “indefinite” or “indeterminate.” Compare Schurer v. Commissioner, 3 T. C. 544; Leach v. Commissioner, 12 T. C. 20; Albert v. Commissioner, 13 T. C. 129, with Warren v. Commissioner, 13 T. C. 205; Whitaker v. Commissioner, 24 T. C. 750. The respondent does not in the present case challenge the validity of this exception to the general rule.
Resolution of this case as presented to us turns, therefore, upon a narrow question of fact — Was the petitioners’ employment “temporary” or “indefinite”? The Tax Court, stating that “each case must be decided upon the basis of its own facts and circumstances,” 27 T. C., at 157, found that their employment was temporary. The Court of Appeals, also recognizing that the question was “one of fact,” held that on the record the Tax Court’s finding of temporary employment was “clearly erroneous.” 254 F. 2d, at 487.
In reviewing the Tax Court’s factual determination, the Court of Appeals has made a fair assessment of the record. 26 U. S. C. (Supp. V) § 7482; Rule 52 (a), Fed. Rules Civ. Proc.; cf. Universal Camera Corp. v. Labor Board, 340 U. S. 474. That being so, this Court will not intervene. Federal Trade Commission v. Standard Oil Co., 355 U. S. 396, 400-401; Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 502-503.
Affirmed.
Ҥ 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions:
“(a) Expenses.
“(1) Trade or business expenses.
“(A) In general.
“All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including .. . traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; . . . .” 26 U. S. C. (1952 ed.) §23 (a)(1)(A).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
68
] |
DARBY et al. v. CISNEROS, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, et al.
No. 91-2045.
Argued March 22, 1993
Decided June 21, 1993
Blackmun, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which White, Stevens, O’Connor, Kennedy, and Souter, JJ., joined.
Steven D. Gordon argued the cause for petitioners. With him on the briefs was Michael H. Ditton.
James A. Feldman argued the cause for respondents. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Anthony J. Steinmeyer.
Justice Blackmun
delivered the opinion of the Court. This case presents the question whether federal courts have the authority to require that a plaintiff exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., where neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial re- ' view. At issue is the relationship between the judicially created doctrine of exhaustion of administrative remedies and the statutory requirements of § 10(c) of the APA.
I
Petitioner R. Gordon Darby is a self-employed South Carolina real estate developer who specializes in the development and management of multifamily rental projects. In the early 1980’s, he began working with Lonnie Garvin, Jr., a mortgage banker, who had developed a plan to enable multifamily developers to obtain single-family mortgage insurance from respondent Department of Housing and Urban Development (HUD). Respondent Secretary of HUD (Secretary) is authorized to provide single-family mortgage insurance under § 203(b) of the National Housing Act, 48 Stat. 1249, as amended, 12 U. S. C. § 1709(b). Although HUD also provides mortgage insurance for multifamily projects under § 207 of the National Housing Act, 12 U. S. C. § 1713, the greater degree of oversight and control over such projects makes it less attractive for investors than the single-family mortgage insurance option.
The principal advantage of Garvin’s plan was that it promised to avoid HUD’s “Rule of Seven.” This rule prevented rental properties from receiving single-family mortgage insurance if the mortgagor already had financial interests in seven or more similar rental properties in the same project or subdivision. See 24 CFR § 203.42(a) (1992). Under Garvin’s plan, a person seeking financing would use straw purchasers as mortgage insurance applicants. Once the loans were closed, the straw purchasers would transfer title back to the development company. Because no single purchaser at the time of purchase would own more than seven rental properties within the same project, the Rule of Seven appeared not to be violated. HUD employees in South Carolina apparently assured Garvin that his plan was lawful and that he thereby would avoid the limitation of the Rule of Seven.
Darby obtained financing for three separate multiunit projects, and, through Garvin’s plan, Darby obtained single-family mortgage insurance from HUD. Although Darby successfully rented the units, a combination of low rents, falling interest rates, and a generally depressed rental market forced him into default in 1988. HUD became responsible for the payment of over $6.6 million in insurance claims.
HUD had become suspicious of Garvin’s financing plan as far back as 1983. In 1986, HUD initiated an audit but concluded that neither Darby nor Garvin had done anything wrong or misled HUD personnel. Nevertheless, in June 1989, HUD issued a limited denial of participation (LDP) that prohibited petitioners for one year from participating in any program in South Carolina administered by respondent Assistant Secretary of Housing. Two months later, the Assistant Secretary notified petitioners that HUD was also proposing to debar them from further participation in all HUD procurement contracts and in any nonprocurement transaction with any federal agency. See 24 CFR §24.200 (1992).
Petitioners’ appeals of the LDP and of the proposed debarment were consolidated, and an Administrative Law Judge (ALJ) conducted a hearing on the consolidated appeals in December 1989. The judge issued an “Initial Decision and Order” in April 1990, finding that'the financing method used by petitioners was “a sham which improperly circumvented the Rule of Seven.” App. to Pet. for Cert. 69a. The ALJ concluded, however, that most of the relevant facts had been disclosed to local HUD employees, that petitioners lacked criminal intent, and that Darby himself “genuinely cooperated with HUD to try [to] work out his financial dilemma and avoid foreclosure.” Id., at 88a. In light of these mitigating factors, the ALJ concluded that an indefinite debarment would be punitive and that it would serve no legitimate purpose; good cause existed, however, to debar petitioners for a period of 18 months. Id., at 90a.
Under HUD regulations,
“The hearing officer’s determination shall be final unless, pursuant to 24 CFR part 26, the Secretary or the Secretary’s designee, within 30 days of receipt of a request decides as a matter of discretion to review the finding of the hearing officer. The 30 day period for deciding whether to review a determination may be extended upon written notice of such extension by the Secretary or his designee. Any party may request such a review in writing within 15 days of receipt of the hearing officer’s determination.” 24 CFR § 24.314(c) (1992).
Neither petitioners nor respondents sought further administrative review of the ALJ’s “Initial Decision and Order.”
On May 31,1990, petitioners filed suit in the United States District Court for the District of South Carolina. They sought an injunction and a declaration that the administrative sanctions were imposed for purposes of punishment, in violation of HUD’s own debarment regulations, and therefore were “not in accordance with law” within the meaning of § 10(e)(B)(l) of the APA, 5 U. S. C. § 706(2)(A).
Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies. The District Court denied respondents’ motion to dismiss, reasoning that the administrative remedy was inadequate and that resort to that remedy would have been futile. App. to Pet. for Cert. 29a. In a subsequent opinion, the District Court granted petitioners’ motion for summary judgment, concluding that the “imposition of debarment in this case encroached too heavily on the punitive side of the line, and for those reasons was an abuse of discretion and not in accordance with the law.” Id., at 19a.
The Court of Appeals for the Fourth Circuit reversed. Darby v. Kemp, 957 F. 2d 145 (1992). It recognized that neither the National Housing Act nor HUD regulations expressly mandate exhaustion of administrative remedies prior to filing suit. The court concluded, however, that the District Court had erred in denying respondents’ motion to dismiss, because there was no evidence to suggest that further review would have been futile or that the Secretary would have abused his discretion by indefinitely extending the time limitations for review.
The court denied petitioners’ petition for rehearing with suggestion for rehearing en banc. See App. to Pet. for Cert. 93a. In order to resolve the tension between this and the APA, as well as to settle a perceived conflict among the Courts of Appeals, we granted certiorari. 506 U. S. 952 (1992).
II
Section 10(c) of the APA bears the caption “Actions reviewable.” It provides in its first two sentences that judicial review is available for “final agency action for which there is no other adequate remedy in a court,” and that “preliminary, procedural, or intermediate agency action ... is subject to review on the review of the final agency action.” The last sentence of § 10(c) reads:
“Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration [see n. 1, supra], or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.” 80 Stat. 392-393, 5 U. S. C. §704.
Petitioners argue that this provision means that a litigant seeking judicial review of a final agency action under the APA need not exhaust available administrative remedies unless such exhaustion is expressly required by statute or agency rule. According to petitioners, since § 10(c) contains an explicit exhaustion provision, federal courts are not free to require further exhaustion as a matter of judicial discretion.
Respondents contend that § 10(c) is concerned solely with timing, that is, when agency actions become “final,” and that Congress had no intention to interfere with the courts' ability to impose conditions on the timing of their exercise of jurisdiction to review final agency actions. Respondents concede that petitioners’ claim is “final” under § 10(c), for neither the National Housing Act nor applicable HUD regulations require that a litigant pursue further administrative appeals prior to seeking judicial review. However, even though nothing in § 10(c) precludes judicial review of petitioners’ claim, respondents argue that federal courts remain free under the APA to impose appropriate exhaustion requirements.
We have recognized that the judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality:
“[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172, 193 (1985).
Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise, for “[o]f ‘paramount importance’ to any exhaustion inquiry is congressional intent,” McCarthy v. Madigan, 503 U. S. 140, 144 (1992), quoting Patsy v. Board of Regents of Florida, 457 U. S. 496, 501 (1982). We therefore must consider whether § 10(c), by providing the conditions under which agency action becomes “final for the purposes of” judicial review, limits the authority of courts to impose additional exhaustion requirements as a prerequisite to judicial review.
It perhaps is surprising that it has taken over 45 years since the passage of the APA for this Court definitively to address this question. Professor Davis noted in 1958 that § 10(c) had been almost completely ignored in judicial opinions, see 3 K. Davis, Administrative Law Treatise §20.08, p. 101 (1958); he reiterated that observation 25 years later, noting that the “provision is relevant in hundreds of eases and is customarily overlooked.” 4 K. Davis, Administrative Law Treatise §26.12, pp. 468-469 (2d ed. 1983). Only a handful of opinions in the Courts of Appeals have considered the effect of § 10(c) on the general exhaustion doctrine. See n. 8, supra.
This Court has had occasion, however, to consider § 10(c) in other contexts. For example, in ICC v. Locomotive Engineers, 482 U. S. 270 (1987), we recognized that the plain language of § 10(c), which provides that an agency action is final “whether or not there has been presented or determined an application” for any form of reconsideration, could be read to suggest that the agency action is final regardless whether a motion for reconsideration has been filed. We noted, however, that § 10(c) “has long been construed by this and other courts merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review (unless, of course, specifically required to do so by statute — see, e. g., 15 U. S. C. §§ 717r, 3416(a)), but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal” (emphasis in original). Id., at 284-285.
In Bowen v. Massachusetts, 487 U. S. 879 (1988), we were concerned with whether relief available in the Claims Court was an “adequate remedy in a court” so as to preclude review in Federal District Court of a final agency action under the first sentence of § 10(c). We concluded that “although the primary thrust of [§ 10(c)] was to codify the exhaustion requirement,” id., at 903, Congress intended by that provision simply to avoid duplicating previously established special statutory procedures for review of agency actions.
While some dicta in these cases might be claimed to lend support to respondents’ interpretation of § 10(c), the text of the APA leaves little doubt that petitioners are correct. Under § 10(a) of the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. § 702 (emphasis added). Although § 10(a) provides the general right to judicial review of agency actions under the APA, § 10(c) establishes when such review is available. When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is “final for the purposes of this section” and therefore “subject to judicial review” under the first sentence. While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, § 10(c), by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates.
The last sentence of § 10(c) refers explicitly to “any form of reconsideration” and “an appeal to superior agency authority.” Congress clearly was concerned with making the exhaustion requirement unambiguous so that aggrieved parties would know precisely what administrative steps were required before judicial review would be available. If courts were able to impose additional exhaustion requirements beyond those provided by Congress or the agency, the last sentence of § 10(c) would make no sense. To adopt respondents’ reading would transform § 10(c) from a provision designed to “‘remove obstacles to judicial review of agency action,’” Bowen v. Massachusetts, 487 U. S., at 904, quoting Shaughnessy v. Pedreiro, 349 U. S. 48, 51 (1955), into a trap for unwary litigants. Section 10(c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of § 10(c) for courts to require litigants to exhaust optional appeals as well.
Ill
Recourse to the legislative history of § 10(c) is unnecessary in light of the plain meaning of the statutory text. Nevertheless, we consider that history briefly because both sides have spent much of their time arguing about its implications. In its report on the APA, the Senate Judiciary Committee explained that the last sentence of § 10(c) was “designed to implement the provisions of section 8(a).” Section 8(a), now codified, as amended, as 5 U. S. C. § 557(b), provides, unless the agency requires otherwise, that an initial decision made by a hearing officer “becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule.” The Judiciary Committee explained:
“[A]n agency may permit an examiner to make the initial decision in a case, which becomes the agency’s decision in the absence of an appeal to or review by the agency. If there is such review or appeal, the examiner’s initial decision becomes inoperative until the agency determines the matter. For that reason this subsection [§ 10(c)] permits an agency also to require by rule that, if any party is not satisfied with the initial decision of a subordinate hearing officer, the party must first appeal to the agency (the decision meanwhile being inoperative) before resorting to the courts. In no case may appeal to ‘superior agency authority’ be required by rule unless the administrative decision meanwhile is inoperative, because otherwise the effect of such a requirement would be to subject the party to the agency action and to repetitious administrative process without recourse. There is a fundamental inconsistency in requiring a person to continue ‘exhausting’ administrative processes after administrative action has become, and while it remains, effective.” S. Rep. No. 752, 79th Cong., 1st Sess., 27 (1945); Administrative Procedure Act: Legislative History 1944-1946, S. Doc. No. 248, 79th Cong., 2d Sess., 213 (1946) (hereinafter Leg. Hist.).
In a statement appended to a letter dated October 19, 1945, to the Judiciary Committee, Attorney General Tom C. Clark set forth his understanding of the effect of § 10(c):
“This subsection states (subject to the provisions of section 10(a)) the acts which are reviewable under section 10. It is intended to state existing law. The last sentence makes it clear that the doctrine of exhaustion of administrative remedies with respect to finality of agency action is intended to be applied only (1) where expressly required by statute ... or (2) where the agency’s rules require that decisions by subordinate officers must be appealed to superior agency authority before the decision may be regarded as final for purposes of judicial review.” Id., at 44, Leg. Hist. 230.
Respondents place great weight on the Attorney General’s statement that § 10(c) “is intended to state existing law.” That law, according to respondents, “plainly permitted federal courts to require exhaustion of adequate administrative remedies.” Brief for Respondents 19-20. We cannot agree with this categorical pronouncement. With respect to the exhaustion of motions for administrative reconsideration or rehearing, the trend in pre-APA cases was in the opposite direction. In Vandalia R. Co. v. Public Serv. Comm’n of Ind., 242 U. S. 255 (1916), for example, this Court invoked the “general rule” that “one aggrieved by the rulings of such an administrative tribunal may not complain that the Constitution of the United States has been violated if he has not availed himself of the remedies prescribed by the state law for a rectification of such rulings.” Id., at 261. The state law provided only that the Railroad Commission had the authority to grant a rehearing; it did not require that a rehearing be sought. Nevertheless, “since the record shows that plaintiff in error and its associates were accorded a rehearing upon the very question of modification, but abandoned it, nothing more need be said upon that point.” Ibid.
Seven years later, in Prendergast v. New York Telephone Co., 262 U. S. 43, 48 (1923), without even mentioning the Vandalia case, the Court stated:
“It was not necessary that the Company should apply to the Commission for a rehearing before resorting to the court. While under the Public Service Commission Law any person interested in an order of the Commission has the right to apply for a rehearing, the Commission is not required to grant such rehearing unless in its judgment sufficient reasons therefor appear .... As the law does not require an application for a rehearing to be made and its granting is entirely within the discretion of the Commission, we see no reason for requiring it to be made as a condition precedent to the bringing of a suit to enjoin the enforcement of the order.”
Accord, Banton v. Belt Line R. Corp., 268 U. S. 413, 416-417 (1925) (“No application to the commission for relief was required by the state law. None was necessary as a condition precedent to the suit”).
Shortly before Congress adopted the APA, the Court, in Levers v. Anderson, 326 U. S. 219 (1945), held that where a federal statute provides that a district supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue “may hear the application” for a rehearing of an order denying certain liquor permits, such an application was not a prerequisite to judicial review. Nothing “persuades us that the ‘may’ means must, or that the Supervisors were required to hear oral argument.” Id., at 223 (emphasis added). Despite the fact that the regulations permitted a stay pending the motion for reconsideration, the Court concluded that “the motion is in its effect so much like the normal, formal type of motion for rehearing that we cannot read into the Act an intention to make it a prerequisite to the judicial review specifically provided by Congress.” Id., at 224.
Respondents in effect concede that the trend in the law prior to the enactment of the APA was to require exhaustion of motions for administrative reconsideration or rehearing only when explicitly mandated by statute. Respondents argue, however, that the law governing the exhaustion of administrative appeals prior to the APA was significantly different from § 10(c) as petitioners would have us interpret it. Brief for Respondents 23. Respondents rely on United States v. Sing Tuck, 194 U. S. 161 (1904), in which the Court considered whether, under the relevant statute, an aggrieved party had to appeal an adverse decision by the Inspector of Immigration to the Secretary of Commerce and Labor before judicial review would be available. It recognized that the relevant statute “points out a mode of procedure which must be followed before there can be a resort to the courts,” id., at 167, and that a party must go through “the preliminary sifting process provided by the statutes,” id., at 170. Accord, Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 574-575 (1928).
Nothing in this pre-APA history, however, supports respondents’ argument that initial decisions that were “final” for purposes of judicial review were nonetheless unreviewable unless and until an administrative appeal was taken. The pre-APA cases concerning judicial review of federal agency action stand for the simple proposition that, until an administrative appeal was taken, the agency action was unreviewable because it was not yet “final.” This is hardly surprising, given the fact that few, if any, administrative agencies authorized hearing officers to make final agency decisions prior to the enactment of the APA. See Federal Administrative Law Developments — 1971, 1972 Duke L. J. 115, 295, n. 22 (“[Pjrior to the passage of the APA, the existing agencies ordinarily lacked the authority to make binding determinations at a level below that of the agency board or commission, so that section 10(c) would be expected to affect the exhaustion doctrine in only a very limited number of instances”).
The purpose of § 10(c) was to permit agencies to require an appeal to “superior agency authority” before an examiner’s initial decision became final. This was necessary because, under § 8(a), initial decisions could become final agency decisions in the absence of an agency appeal. See 5 U. S. C. § 557(b). Agencies may avoid the finality of an initial decision, first, by adopting a rule that an agency appeal be taken before judicial review is available, and, second, by providing that the initial decision would be “inoperative” pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review.
Respondents also purport to find support for their view in the text and legislative history of the 1976 amendments of the APA. After eliminating the defense of sovereign immunity in APA cases, Congress provided: “Nothing herein . . . affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground,” Pub. L. 94-574, § 1, 90 Stat. 2721 (codified as 5 U. S. C. § 702). According to respondents, Congress intended by this proviso to ensure that the judicial doctrine of exhaustion of administrative remedies would continue to apply under the APA to permit federal courts to refuse to review agency actions that were nonetheless final under § 10(c). See S. Rep. No. 94-996, p. 11 (1976) (among the limitations on judicial review that remained unaffected by the 1976 amendments was the “failure to exhaust administrative remedies”).
Putting to one side the obvious problems with relying on postenactment legislative history, see, e. g., United States v. Texas, 507 U. S. 529, 535, n. 4 (1993); Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990), the proviso was added in 1976 simply to make clear that “[a]ll other than the law of sovereign immunity remain unchanged,” S. Rep. No. 94-996, at 11. The elimination of the defense of sovereign immunity did not affect any other limitation on judicial review that would otherwise apply under the APA. As already discussed, the exhaustion doctrine continues to exist under the APA to the extent that it is required by statute or by agency rule as a prerequisite to judicial review. Therefore, there is nothing inconsistent between the 1976 amendments to the APA and our reading of § 10(c).
IV
We noted just last Term in a non-APA case that
“appropriate deference to Congress’ power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme.” McCarthy v. Madigan, 503 U. S., at 144.
Appropriate deference in this case requires the recognition that, with respect to actions brought under the APA, Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c). Of course, the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA. But where the APA applies, an appeal to “superior agency authority” is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become “final” under § 10(c).
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.
The Chief Justice, Justice Scalia, and Justice Thomas join all but Part III of this opinion.
Section 10(c), 80 Stat. 392-393, 5 U. S. C. § 704, provides:
“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.”
We note that the statute as codified in the United States Code refers to “any form of reconsiderations,” with the last word being in the plural. The version of § 10(c) as currently enacted, however, uses the singular “reconsideration.” See this note, supra, at 138. We quote the text as enacted in the Statutes at Large. See Stephan v. United States, 319 U. S. 423, 426 (1943) (“[T]he Code cannot prevail over the Statutes at Large when the two are inconsistent”).
Petitioners include R. Gordon Darby and his affiliate companies: Darby Development Company; Darby Realty Company; Darby Management Company, Inc.; MD Investment; Parkbrook Acres Associates; and Park-brook Developers.
Although the primary purpose of the § 203(b) insurance program was to facilitate home ownership by owner-occupants, investors were permitted in the early 1980’s to obtain single-family insurance under certain conditions. Private investor-owners are no longer eligible for single-family mortgage insurance. See Department of Housing and Urban Development Reform Act of 1989, § 143(b), 103 Stat. 2036.
Prior to August 31, 1955, the Rule of Seven apparently had been the Rule of Eleven. See 24 CFR §203.42 (1982) and 56 Fed. Reg. 27692 (1991).
An LDP precludes its recipient from participating in any HUD “program,” which includes “receipt of any benefit or financial assistance through grants or contractual arrangements; benefits or assistance in the form of loan guarantees or insurance; and awards of procurement contracts, notwithstanding any quid pro quo given and whether [HUD] gives anything in return.” 24 CFR § 24.710(a)(2) (1992).
According to HUD regulations, “[d]ebarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government’s protection and not for purposes of punishment.” 24 CFR § 24.115(b) (1992).
The AU calculated the 18-month debarment period from June 19,1989, the date on which the LDP was imposed. The debarment would last until December 19, 1990.
The Fourth Circuit’s ruling in this case appears to be consistent with Montgomery v. Rumsfeld, 572 F. 2d 250, 253-254 (CA9 1978), and Missouri v. Bowen, 813 F. 2d 864 (CA8 1987), but is in considerable tension with United States v. Consolidated Mines & Smelting Co., 455 F. 2d 432, 439-440 (CA9 1971); New England Coalition on Nuclear Pollution v. United States Nuclear Regulatory Comm’n, 582 F. 2d 87, 99 (CA1 1978); and Gulf Oil Corp. v. United States Dept. of Energy, 214 U. S. App. D. C. 119, 131, and n. 73, 663 F. 2d 296, 308, and n. 73 (1981).
Respondents also have argued that under HUD regulations, petitioners’ debarment remains “inoperative” pending review by the Secretary. See 48 Fed. Reg. 43304 (1983). But this fact alone is insufficient under § 10(c) to mandate exhaustion prior to judicial review, for the agency also must require such exhaustion by rule. Respondents concede that HUD imposes no such exhaustion requirement. Brief for Respondents 31.
In his manual on the APA, prepared in 1947, to which we have given some deference, see, e. g., Steadman v. SEC, 450 U. S. 91, 103, n. 22 (1981); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978), Attorney General Clark reiterated the Department of Justice’s view that § 10(c) “embodies the doctrine of exhaustion of administrative remedies. . .. Agency action which is finally operative and decisive is reviewable.” Attorney General’s Manual on the Administrative Procedure Act 103 (1947). See also H. R. Rep. No. 1980, 79th Cong., 2d Sess., 55, n. 21 (1946); Leg. Hist. 289, n. 21 (describing agency’s authority to adopt rules requiring a party to take a timely appeal to the agency prior to seeking judicial review as “an application of the time-honored doctrine of exhaustion of administrative remedies”).
The Act of August 18, 1894, 28 Stat. 390, provided: “In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of [Commerce and Labor].”
In an address to the American Bar Association in 1940, Dean- Stason of the University of Michigan Law School summarized the law on exhaustion of administrative appeals: “In the event that a statute setting up an administrative tribunal also creates one or more appellate administrative tribunals, it is almost invariably held that a party who is aggrieved by action of the initial agency must first seek relief by recourse to the appellate agency or agencies.” Stason, Timing of Judicial Redress from Erroneous Administrative Action, 25 Minn. L. Rev. 560, 570 (1941). See also 4 K. Davis, Administrative Law Treatise § 26.12, p. 469 (2d ed. 1983) (“The pre-1946 law was established that an appeal to higher administrative authorities was a prerequisite to judicial review”).
Respondents also rely on then-Assistant Attorney General Scalia’s letter to the Chairman of the Senate Subcommittee on Administrative Practice and Procedure where he wrote that the Department of Justice supported the amendment in large part because it expected that many (or most) of the cases disposed of on the basis of sovereign immunity could have been decided the same way on other legal grounds such as the failure to exhaust administrative remedies. S. Rep. No. 94-996, pp. 25-26 (1976). See also 1 Recommendations and Reports of the Administrative Conference of the United States 222 (1968-1970) (urging Congress to adopt the very language that was eventually incorporated verbatim into the 1976 amendment so that “the abolition of sovereign immunity will not result in undue judicial interference with governmental operations or a flood of burdensome litigation”).
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
63
] |
UNITED STATES v. SOUTHERN UTE TRIBE OR BAND OF INDIANS
No. 515.
Argued March 1, 1971 —
Decided April 26, 1971
BrennáN, J., delivered the opinion of the Court, in which Burger, C. J., and Black, HarlaN, Stewart, White, Marshall, and BlackmüN, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 174.
Lawrence G. Wallace argued the cause for the United States. On the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Peter L. Strauss, and Edmund B. Clark.
Glen A. Wilkinson argued the cause for respondent. With him on the brief was Richard A. Baenen. \
Mr. Justice Brennan
delivered the opinion of the Court.
In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission. The claim asserted that the United States had violated its fiduciary-duty to respondent by (1) disposing of 220,000 acres of land as “free homesteads” although obligated by 21 Stat. 203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage for the respondent’s benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent’s benefit. The Government’s basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent. Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind. Cl. Comm. 28 (1966); but the Court of Claims, in an unpublished order, App. 57-58, remanded for the taking of additional evidence. On remand the Commission again rejected the defense, 21 Ind. Cl. Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 191 Ct. Cl. 1, 423 F. 2d 346 (1970). We granted certiorari. 400 U. S. 915 (1970). We reverse.
The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that:
“[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete ex-tinguishment of plaintiffs’ right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold for cash . . . (b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of [lands] . . . disposed of by defendant as free homesteads and the remaining . . . acres ... set aside by the defendant for public purposes. . . . However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but . . . also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 ....” 117 Ct. Cl., at 436-437 (emphasis added).
The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was “res judicata . . . also as to any land . . . ceded to defendant by the Act of June 15, 1880
Both the Indian Claims Commission and the Court of Claims rejected the Government’s res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement because those lands were not among the lands “ceded to defendant by the Act of June 15, 1880.”
Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation.
In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncom-pahgre Utes, the White River Utes, and the Southern Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. 13 Stat. 673 (1864); 15 Stat. 619 (1868). Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. The reservation, however, survived little longer than a decade in this form. In 1874 the Utes approved the Brunot Cession of 3.7 million acres of the east-central portion of the reservation after valuable mineral deposits had been discovered there. 18 Stat. 36 (1874). The result of the cession was almost to sever the reservation, leaving the Southern Utes wedged between the southern boundary line of the Brunot Cession and the New Mexico border, at the southernmost part of the reservation on a strip of land 15 miles wide and 110 miles long. This strip, which includes the lands at issue here, is referred to by the parties as Royce Area 617, and the remainder of the reservation after the Brunot Cession is referred to as Royce Area 616.
Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880.
The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians. The purposes of that provision were to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people. See 10 Cong. Rec. 2059, 2066 (1880). The Act recited that it was enacted to accept “the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State . . . .” 21 Stat. 199 (1880). Thus, it was provided that the Confederated Bands “cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.” 21 Stat. 200 (1880). The settlement provisions stipulated that the White River Utes would leave Colorado “and settle upon agricultural lands on the Uintah Reservation in Utah,” ibid., and that “[t]he Un-compahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado,” ibid., or if insufficient agricultural land was found there, go to Utah (which they soon did). The Southern Utes were to “remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.” Ibid. Finally, it was provided that “all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States and subject to disposal,” but only for the financial benefit of the Utes. 21 Stat. 203-204 (1880).
The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims’ opinion acknowledges this, stating that:
“The most significant aspects to be gleaned from this [1880] Act . . . is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation — Royce Area 616 and 617 — and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit.” 191 Ct. Cl., at 10, 423 F. 2d, at 350 (1970) (emphasis in original).
Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent’s claim.
The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission’s first opinion, 17 Ind. Cl. Comm. 28 (1966), as holding that the Southern Utes expressly withheld the southern strip from the lands ceded by the 1880 Act: “The Commission found that the Act of 1880 ‘reserved’ Royce Area 617 for the Southern Utes.” 191 Ct. Cl., at 10, 423 F. 2d, at 350. Some language at that point of the opinion suggested that the Court of Claims was in agreement with that view — “the following sequence of events . . . support the conclusion that plaintiffs at any rate did not cede their reservation (Royce Area 617) under the agreement of 1880.” Ibid. However, the opinion later turns the decision on a different theory:
“The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government’s rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” Id., at 19-20, 423 F. 2d, at 356.
This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports any of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase “any land . . . ceded” in the consent judgment. We turn, then, seriatim to the events relied upon below.
Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip.
“The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this, in 1878, Congress passed an act authorizing such negotiations (U. S. Stat. L., vol. 20, p. 48), and under this authority a commission . . . was appointed, and during the same year they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation.” S. Rep. No. 279, 53d Cong., 2d Sess., 1 (1894).
But before the bill was acted upon by Congress, the Meeker Massacre occurred. The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an intention to treat the Southern Utes differently from the other Utes; rather, it demonstrates a congressional decision to treat the Southern Utes as the White River and Uncom-pahgre Utes were being treated, save that the White River Utes were being completely banished from Colorado.
The Act of 1880 provided that “a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support . . . ” 21 Stat. 201 (1880). The Commission visited the Southern Utes to carry out that mandate and in 1881 its chairman reported to Congress:
“During my stay on the reservation I took occasion ... to talk to the leading men ... on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty] .... I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement.
“In the mean time, and while the change is going on, they must be protected from annoyance. . . . To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [1880] agreement ... as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation .... Then the land selected, and upon which the Indians are to be located, can be kept free from intruders.” H. R. Exec. Doc. No. 1, pt. 5, Yol. 2, 47th Cong., 1st Sess., 393 (1882).
But Congress did not create the recommended reservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882, 22 Stat. 178, which declared that all of the northern portions of the reservation formerly occupied by the Uncompahgre and White River Utes, Royce Area 616, were now public lands to be disposed of for the benefit of the Utes in accordance with the Act of 1880. Section 2 of that statute provided that the Secretary of the Interior “shall, at the earliest practicable day, ascertain and establish the line between” the two Royce Areas. 22 Stat. 178 (1882). We find nothing in the legislative history of that statute to support a finding that it evidenced a congressional conclusion that the southern strip had not been ceded by the Act of 1880. On the contrary, the thrust of the legislative history is that the line was drawn to assure that there would be no interference with the land in Royce Area 617 available for allotment to the Southern Utes under the Act of 1880. H. R. Rep. No. 799, 53d Cong., 2d Sess., 2 (1894); S. Rep. No. 279, 53d Cong., 2d Sess., 2, 3-4 (1894).
The Court of Claims also found support for its conclusion in what was said to a congressional committee by a Ute spokesman for the Southern Utes at a meeting in the District of Columbia in 1886. The spokesman stated that the delegation had come “to see if we cannot exchange our reservation for another. . . . The present reservation is narrow and long, and we want to go west and see if we can’t sell it.” S. Rep. No. 836, 49th Cong., 1st Sess., 1 (1886). The Court of Claims viewed this as demonstrating that “the Southern Utes were still in possession of their part of their old reservation under claim of right.” 191 Ct. Cl., at 14, 423 F. 2d, at 353. We do not doubt that the Southern Utes regarded the lands they occupied as “our reservation,” but we fail to see how this nullifies the conveyance of the strip made by the Act of 1880. On the contrary, there is cogent evidence that the United States totally rejected the Indians’ claim that the strip was “our reservation.” After two bills to effectuate the removal of the Southern Utes failed to pass, Congress enacted 25 Stat. 133 (1888) empowering “[t]he Secretary of the Interior ... to appoint a commission . . . with authority to negotiate with the band of Ute Indians of southern Colorado for such modification of their treaty and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior Ibid. Despite the reference to “their reservation,” the premise of this statute was obviously that amelioration of the plight of the Southern Utes would require “modification of their treaty and other rights” as they had been fixed in the Act of 1880. Even the Court of Claims thought the Act of 1888 little support for the respondents’ contention:
“Although the language of this act tends to favor plaintiffs’ position it is by no means conclusive. It merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act’s exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory.” 191 Ct. Cl., at 15, 423 F. 2d, at 353-354.
The Commission formed pursuant to the Act of 1888 did succeed in negotiating an agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that in such case “ [presumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accruing to the Southern Utes would still accrue.” 191 Ct. Cl., at 16, 423 F. 2d, at 354. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880.
This is confirmed by the congressional reaction when the agreement was submitted for approval — nothing happened for six years and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation:
“Conceding the 'anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it’, the Senate Committee on Indian Affairs favored ratification (Sen. Rep. No. 279, 53d Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H. R. Rep. No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20,1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty.” 191 Ct. Cl., at 16, 423 F. 2d, at 354.
This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes rather than the United States as the owners of Royce Area 617.
Finally, we cannot agree with the Court of Claims that § 5 of the Act of 1895 is “an explicit waiver of the Government’s rights created in the 1880 agreement, whatever they were.” 191 Ct. Cl., at 19-20, 423 F. 2d, at 356. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes “in accordance with the provisions of the Act of [1880].” 28 Stat. 677 (1895). It went on to settle the grievances of those Southern Utes who wanted their own reservation rather than allotments in severalty by providing that “there shall be ... set apart and reserved all that portion of their present reservation lying west of” a defined line in the strip. Id., at 678. We do not see how the United States could have “set apart and reserved” a portion of the strip for a reservation unless the strip belonged to it. The remainder of the strip to the east of the new reservation was to be available for allotments in severalty to individual Southern Utes and the land not allotted was to “be and become a part of the public domain” to be sold for the benefit of said Utes. Ibid. Section 5 allocated the proceeds from sales of the land opened to public settlement. We look in vain for anything in that section to support the conclusion of the Court of Claims that it contains an “explicit waiver” by the United States of its rights under the Act of 1880 and that “[i]t follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” 191 Ct. Cl., at 20, 423 F. 2d, at 356. The Senate Report recommending passage of the Act of 1895 belies that conclusion. The report repeats, once again, the previously stated position of the Congress that “[o]n March 6, 1880, [the Utes] . . . ceded the whole of their reservation in Colorado to the United States, except such lands, if any, as might be allotted to them in sever-alty.” S. Rep. No. 279, supra, at 2. We discern nothing in § 5 save some revision of the formula for allocation of the proceeds of the sales of the unallotted lands in the portion of the strip east of the reservation. We find absolutely no language that the Southern Utes made any cession thereby, and, indeed, we are convinced that the wording is consistent only with the fact that they had no land to cede. The Act of 1895 simply resolved the impasse over the allotments in severalty which had existed for 15 years because of the Southern Utes’ reluctance to accept them. The United States created a new reservation for them, while still permitting allotments to those Southern Utes willing and qualified to engage in farming. This plan was clearly constructed in reliance upon, not in derogation of, the cession made under the Act of 1880.
We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement “as to any land . . . ceded to defendant by the Act of June 15, 1880.”
Reversed.
The claim was filed pursuant to the Indian Claims Commission Act, 25 U. S. C. § 70a. See also 25 U. S. C. § 70k.
The 1950 cases were brought under the Jurisdictional Act of 1938, 52 Stat. 1209. The settlement reduced to consent judgment principally relied upon by the Government is that in Case No. 46640, 117 Ct. Cl. 433, 436 (1950). Related stipulations are reported at 117 Ct. Cl., at 434, 438, 440. The aggregate amount of the settlements exceeded $31 million. The United States also unsuccessfully asserted below defenses of failure to state a claim and failure to join all necessary parties. Those questions are not before us.
The United States admits that the stated consideration was not promptly paid. Brief for Petitioner 5. See also J. Dunn, Massacres of the Mountains 583-587 (1958).
These derive from a map of Indian land cessions, PI. CXVI, drawn by Charles Royce in connection with a published study, Indian Land Cessions, 18th Ann. Rep., Bur. of Amer. Ethnology, pt. 2 (1896-1897).
While apparently the “massacre” involved only the White River Utes, all Utes were blamed. See exchange of correspondence during the uprising among the Indian agents, Secretary of the Interior, Governor of Colorado, and others printed in S. Exec. Doc. No. 31, 46th Cong., 2d Sess. (1880). See also J. Dunn, Massacres of the Mountains (1958), and U. S. Army, Military Division of the Missouri (Gen. P. Sheridan, Commanding), Record of Engagements with Hostile Indians 88-91 (1882).
The Court of Claims found proof that “the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession,” 191 Ct. Cl., at 13, 423 F. 2d, at 352, in a description of the line in an 1882 letter to the district land offices. We find nothing in the letter to that effect, and in any event, it could hardly be the basis for disregarding the congressionally expressed design.
Section 5 of the Act of 1895 provides in pertinent part:
“That out of the moneys first realized from the sale of said lands so opened up to public settlement there shall be paid to said Indians the sum of fifty thousand dollars, as follows: Five thousand dollars annually for ten years ... to be equally divided among all of said Indians per capita, irrespective of age or sex; also the sum of twenty thousand dollars of said proceeds shall be paid to the Secretary of the Interior, who shall invest the same in sheep and divide the said sheep among the said Indians per capita equally, irrespective of age or sex; [certain allotments also made to specific chiefs and headmen] . . . that the balance of the money realized from the sale of lands, after deducting expenses of sale and survey, shall be held in the Treasury of the United States in trust for the sole use and benefit of said Southern Ute Indians. That nothing herein provided shall in any manner be construed to change or interfere with the rights of said Indians under any other existing treaty regarding any annuities or trust funds or the interest thereon.” 28 Stat. 678 (1895).
The Court of Claims also seems to have placed some reliance upon the following words in an order of the Acting Secretary of the Interior in 1938 which restored to the Southern Utes that portion of Royce Area 617 yet undisposed of:
“[P]ursuant to the provisions of the Act of February 20, 1895 (28 Stat. L., 677), the Southern Ute Band of Indians in Colorado ceded to the United States a large area of their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 (21 Stat. L., 199),” S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler).
The Court of Claims suggested that these words demonstrated that “[petitioner’s] officials . . . not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement.” 191 Ct. Cl., at 20, 423 F. 2d, at 356.
As we have said in this opinion, we find no creation of a reservation for the Southern Utes in the Act of 1880, nor can we find any words of cession in the Act of 1895. In addition, rather than attaching the significance suggested by the Court of Claims, the quoted words are more properly to be treated as careless draftsmanship: the time of cession, whether 1880 or 1895, was of absolutely no consequence to the act of restoration of undisposed lands in 1938. Finally, the quoted words do not support the application here of the principle that courts should give weight to a consistent reading of an ambiguous document by the agency charged with its enforcement. As our opinion shows, we do not find either the Act of 1880 or that of 1895 ambiguous. Moreover, what consistency the parties have shown in the enforcement of those acts, cuts against the contention of the respondent.
The Court of Claims’ unreported order remanded the case to the Commission “for the hearing of additional evidence and the making of findings of fact with respect to the intention of the parties to the stipulation upon which a final judgment was entered in Court of Claims Case No. 46640 (117 Ct. Cl. 436) on July 13, 1950.” App. 57. The Commission’s supplemental findings after the hearing on remand are reported in 21 Ind. Cl. Comm. 268. We question the propriety of the remand, see Delaware Indians v. Cherokee Nation, 193 U. S. 127, 140-141 (1904); United States v. William Cramp & Sons Ship & Engine Building Co., 206 U. S. 118, 128 (1907), but do not decide the question since it does not appear that the decision of the Court of Claims turned on any evidence of the intention of the parties to the stipulation.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
66
] |
WATTS et al. v. SEWARD SCHOOL BOARD et al.
No. 325.
Argued March 26, 1968.
Decided June 3, 1968.
George Kaufmann argued the cause and filed briefs for petitioners.
Theodore M. Pease, Jr., argued the cause and filed a brief for respondents.
Per Curiam.
The judgment is vacated and the case is remanded to the Supreme Court of Alaska for further consideration in light of Pickering v. Board of Education of Township High School District 205, Will County, ante, p. 563.
Mr. Justice Douglas,
with whom Mr. Justice Black joins,
would reverse the judgment outright for the reasons stated by him in Pickering v. Board of Education, ante, p. 575.
Mr. Justice White dissents.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
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"Secretary or administrative unit or personnel of the U.S. Air Force",
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"National Credit Union Administration",
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"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
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"Social Security Administration or Commissioner",
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"Department or Secretary of the Treasury",
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"United States Forest Service",
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"United States Sentencing Commission",
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"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
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"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
LORETTO v. TELEPROMPTER MANHATTAN CATV CORP. et al.
No. 81-244.
Argued March 30, 1982
Decided June 30, 1982
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and White, JJ., joined, post, p. 442.
Michael S. Gruen argued the cause and filed briefs for appellant.
Erwin N. Griswold argued the cause for appellees. With him on the brief for appellees Teleprompter Manhattan CATV Corp. et al. was Michael Lesch. Frederick A. O. Schwarz, Jr., and Leonard Koemer filed a brief for appellee City of New York.
Michael D. Botwin and James J. Bierbower filed a brief for the National Satellite Cable Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan, Assistant Attorney General, for the Attorney General of New York; by Brenda L. Fox, James H. Ewalt, and Robert St. John Roper for the National Cable Television Association, Inc.; and by Stuart Robinowitz and Richard A. Rosen for the New York State Cable Television Association.
Justice Marshall
delivered the opinion of the Court.
This case presents the question whether a minor but permanent physical occupation of an owner’s property authorized by government constitutes a “taking” of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution. New York law provides that a landlord must permit a cable television company to install its cable facilities upon his property. N. Y. Exec. Law §828(1) (McKinney Supp. 1981-1982). In this case, the cable installation occupied portions of appellant’s roof and the side of her building. The New York Court of Appeals ruled that this appropriation does not amount to a taking. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). Because we conclude that such a physical occupation of property is a taking, we reverse.
I
Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Teleprompter Corp. and Teleprompter Manhattan CATV (collectively Teleprompter) permission to install a cable on the building and the exclusive privilege of furnishing cable television (CATV) services to the tenants. The New York Court of Appeals described the installation as follows:
“On June 1, 1970 TelePrompter installed a cable slightly less than one-half inch in diameter and of approximately 30 feet in length along the length of the building about 18 inches above the roof top, and directional taps, approximately 4 inches by 4 inches by 4 inches, on the front and rear of the roof. By June 8, 1970 the cable had been extended another 4 to 6 feet and cable had been run from the directional taps to the adjoining building at 305 West 105th Street.” Id., at 135, 423 N. E. 2d, at 324.
Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails penetrating the masonry at approximately two-foot intervals, and other equipment is installed by bolts.
Initially, Teleprompter’s roof cables did not service appellant’s building. They were part of what could be described as a cable “highway” circumnavigating the city block, with service cables periodically dropped over the front or back of a building in which a tenant desired service. Crucial to such a network is the use of so-called “crossovers” — cable lines extending from one building to another in order to reach a new group of tenants. Two years after appellant purchased the building, Teleprompter connected a “noncrossover” line— i. e., one that provided CATV service to appellant’s own tenants — by dropping a line to the first floor down the front of appellant’s building.
Prior to 1973, Teleprompter routinely obtained authorization for its installations from property owners along the cable’s route, compensating the owners at the standard rate of 5% of the gross revenues that Teleprompter realized from the particular property. To facilitate tenant access to CATV, the State of New York enacted § 828 of the Executive Law, effective January 1, 1973. Section 828 provides that a landlord may not “interfere with the installation of cable television facilities upon his property or premises,” and may not demand payment from any tenant for permitting CATV, or demand payment from any CATV company “in excess of any amount which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable.” The landlord may, however, require the CATV company or the tenant to bear the cost of installation and to indemnify for any damage caused by the installation. Pursuant to § 828(l)(b), the State Commission has ruled that a one-time $1 payment is the normal fee to which a landlord is entitled. In the Matter of Implementation of Section 828 of the Executive Law, No. 90004, Statement of General Policy (New York State Commission on Cable Television, Jan. 15,1976) (Statement of General Policy), App. 51-52; Clarification of General Policy (Aug. 27, 1976), App. 68-69. The Commission ruled that this nominal fee, which the Commission concluded was equivalent to what the landlord would receive if the property were condemned pursuant to New York’s Transportation Corporations Law, satisfied constitutional requirements “in the absence of a special showing of greater damages attributable to the taking.” Statement of General Policy, App. 52.
Appellant did not discover the existence of the cable until after she had purchased the building. She brought a class action against Teleprompter in 1976 on behalf of all owners of real property in the State on which Teleprompter has placed CATV components, alleging that Teleprompter’s installation was a trespass and, insofar as it relied on § 828, a taking without just compensation. She requested damages and injunctive relief. Appellee City of New York, which has granted Teleprompter an exclusive franchise to provide CATV within certain areas of Manhattan, intervened. The Supreme Court, Special Term, granted summary judgment to Teleprompter and the city, upholding the constitutionality of §828 in both crossover and noncrossover situations. 98 Misc. 2d 944, 415 N. Y. S. 2d 180 (1979). The Appellate Division affirmed without opinion. 73 App. Div. 2d 849, 422 N. Y. S. 2d 550 (1979).
On appeal, the Court of Appeals, over dissent, upheld the statute. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). The court concluded that the law requires the landlord to allow both crossover and noncrossover installations but permits him to request payment from the CATV company under § 828(l)(b), at a level determined by the State Cable Commission, only for noncrossovers. The court then ruled that the law serves a legitimate police power purpose — eliminating landlord fees and conditions that inhibit the development of CATV, which has important educational and community benefits. Rejecting the argument that a physical occupation authorized by government is necessarily a taking, the court stated that the regulation does not have an excessive economic impact upon appellant when measured against her aggregate property rights, and that it does not interfere with any reasonable investment-backed expectations. Accordingly, the court held that § 828 does not work a taking of appellant’s property. Chief Judge Cooke dissented, reasoning that the physical appropriation of a portion of appellant’s property is a taking without regard to the balancing analysis courts ordinarily employ in evaluating whether a regulation is a taking.
In light of its holding, the Court of Appeals had no occasion to determine whether the $1 fee ordinarily awarded for a noncrossover installation was adequate compensation for the taking. Judge Gabrielli, concurring, agreed with the dissent that the law works a taking but concluded that the $1 presumptive award, together with the procedures permitting a landlord to demonstrate a greater entitlement, affords just compensation. We noted probable jurisdiction. 454 U. S. 938 (1981).
II
The Court of Appeals determined that §828 serves the legitimate public purpose of “rapid development of and maximum penetration by a means of communication which has important educational and community aspects,” 53 N. Y. 2d, at 143-144, 423 N. E. 2d, at 329, and thus is within the State’s police power. We have no reason to question that determination. It is a separate question, however, whether an otherwise valid regulation so frustrates property rights that compensation must be paid. See Penn Central Transporta tion Co. v. New York City, 438 U. S. 104, 127-128 (1978); Delaware, L. & W. R. Co. v. Morristown, 276 U. S. 182, 193 (1928). We conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. Our constitutional history confirms the rule, recent cases do not question it, and the purposes of the Takings Clause compel its retention.
A
In Penn Central Transportation Co. v. New York City, supra, the Court surveyed some of the general principles governing the Takings Clause. The Court noted that no “set formula” existed to determine, in all cases, whether compensation is constitutionally due for a government restriction of property. Ordinarily, the Court must engage in “essentially ad hoc, factual inquiries.” Id., at 124. But the inquiry is not standardless. The economic impact of the regulation, especially the degree of interference with investment-backed expectations, is of particular significance. “So, too, is the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Ibid, (citation omitted).
As Penn Central affirms, the Court has often upheld substantial regulation of an owner’s use of his own property where deemed necessary to promote the public interest. At the same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, “the character of the government action” not only is an important factor in resolving whether the action works a taking but also is determinative.
When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking. As early as 1872, in Pumpelly v. Green Bay Co., 13 Wall. 166, this Court held that the defendant’s construction, pursuant to state authority, of a dam which permanently flooded plaintiff’s property constituted a taking. A unanimous Court stated, without qualification, that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181. Seven years later, the Court reemphasized the importance of a physical occupation by distinguishing a regulation that merely restricted the use of private property. In Northern Transportation Co. v. Chicago, 99 U. S. 635 (1879), the Court held that the city’s construction of a temporary dam in a river to permit construction of a tunnel was not a taking, even though the plaintiffs were thereby denied access to their premises, because the obstruction only impaired the use of plaintiffs’ property. The Court distinguished earlier cases in which permanent flooding of private property was regarded as a taking, e. g., Pumpelly, supra, as involving “a physical invasion of the real estate of the private owner, and a practical ouster of his possession.” In this case, by contrast, “[n]o entry was made upon the plaintiffs’ lot.” 99 U. S., at 642.
Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. See United States v. Lynah, 188 U. S. 445, 468-470 (1903); Bedford v. United States, 192 U. S. 217, 225 (1904); United States v. Cress, 243 U. S. 316, 327-328 (1917); Sanguinetti v. United States, 264 U. S. 146, 149 (1924) (to be a taking, flooding must “constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property”); United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810 (1950).
In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one presented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a telegraph company’s placement of telegraph poles on the city’s public streets. The Court reasoned:
“The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The ordinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation thereof are temporary and shifting. The space he occupies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for purposes of highway and personal travel, wholly lost to the public. . . .
“. . . It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated.” Id., at 98-99,101-102 (emphasis added).
Similarly, in Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 (1904), a telegraph company constructed and operated telegraph lines over a railroad’s right of way. In holding that federal law did not grant the company the right of eminent domain or the right to operate the lines absent the railroad’s consent, the Court assumed that the invasion of the telephone lines would be a compensable taking. Id., at 570 (the right-of-way “cannot be appropriated in whole or in part except upon the payment of compensation”). Later cases, relying on the character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land. See, e. g., Lovett v. West Va. Central Gas Co., 65 W. Va. 739, 65 S. E. 196 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922). See generally 2 J. Sackman, Nichols’ Law of Eminent Domain § 6.21 (rev. 3d ed. 1980).
More recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U. S. 256 (1946), the Court ruled that frequent flights immediately above a landowner’s property constituted a taking, comparing such overflights to the quintessential form of a taking:
“If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.” Id., at 261 (footnote omitted).
As the Court further explained,
“We would not doubt that, if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it.” Id., at 264 — 265.
The Court concluded that the damages to the respondents “were not merely consequential. They were the product of a direct invasion of respondents’ domain.” Id., at 265-266. See also Griggs v. Allegheny County, 369 U. S. 84 (1962).
Two wartime takings cases are also instructive. In United States v. Pewee Coal Co., 341 U. S. 114 (1951), the Court unanimously held that the Government’s seizure and direction of operation of a coal mine to prevent a national strike of coal miners constituted a taking, though members of the Court differed over which losses suffered during the period of Government control were compensable. The plurality had little difficulty concluding that because there had been an “actual taking of possession and control,” the taking was as clear as if the Government held full title and ownership. Id., at 116 (plurality opinion of Black, J., with whom Frankfurter, Douglas, and Jackson, JJ., joined; no other Justice challenged this portion of the opinion). In United States v. Central Eureka Mining Co., 357 U. S. 155 (1958), by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort. Over dissenting Justice Harlan’s complaint that “as a practical matter the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States,” id., at 181, the Court reasoned that “the Government did not occupy, use, or in any manner take physical possession of the gold mines or of the equipment connected with them.” Id., at 165-166. The Court concluded that the temporary though severe restriction on use of the mines was justified by the exigency of war. Cf. YMCA v. United States, 395 U. S. 85, 92 (1969) (“Ordinarily, of course, government occupation of private property deprives the private owner of his use of the property, and it is this deprivation for which the Constitution requires compensation”).
Although this Court’s most recent cases have not addressed the precise issue before us, they have emphasized that physical invasion cases are special and have not repudiated the rule that any permanent physical occupation is a taking. The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest that a permanent physical occupation would ever be exempt from the Takings Clause.
Penn Central Transportation Co. v. New York City, as noted above, contains one of the most complete discussions of the Takings Clause. The Court explained that resolving whether public action works a taking is ordinarily an ad hoc inquiry in which several factors are particularly significant— the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 438 U. S., at 124. The opinion does not repudiate the rule that a permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.
In Kaiser Aetna v. United States, 444 U. S. 164 (1979), the Court held that the Government’s imposition of a navigational servitude requiring public access to a pond was a taking where the landowner had reasonably relied on Government consent in connecting the pond to navigable water. The Court emphasized that the servitude took the landowner’s right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Id., at 176. The Court explained:
“This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioner’s private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. . . . And even if the Government physically invades only an easement in property, it must nonetheless pay compensation. See United States v. Causby, 328 U. S. 256, 265 (1946); Portsmouth Co. v. United States, 260 U. S. 327 (1922).Id., at 180 (emphasis added).
Although the easement of passage, not being a permanent occupation of land, was not considered a taking per se, Kaiser Aetna reemphasizes that a physical invasion is a government intrusion of an unusually serious character.
Another recent case underscores the constitutional distinction between a permanent occupation and a temporary physical invasion. In PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), the Court upheld a state constitutional requirement that shopping center owners permit individuals to exercise free speech and petition rights on their property, to which they had already invited the general public. The Court emphasized that the State Constitution does not prevent the owner from restricting expressive activities by imposing reasonable time, place, and manner restrictions to minimize interference with the owner’s commercial functions. Since the invasion was temporary and limited in nature, and since the owner had not exhibited an interest in excluding all persons from his property, “the fact that [the solicitors] may have ‘physically invaded’ [the owners’] property cannot be viewed as determinative.” Id., at 84.
In short, when the “character of the governmental action,” Penn Central, 438 U. S., at 124, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.
B
The historical rule that a permanent physical occupation of another’s property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner’s property interests. To borrow a metaphor, cf. Andrus v. Allard, 444 U. S. 51, 65-66 (1979), the government does not simply take a single “strand” from the “bundle” of property rights: it chops through the bundle, taking a slice of every strand.
Property rights in a physical thing have been described as the rights “to possess, use and dispose of it.” United States v. General Motors Corp., 323 U. S. 373, 378 (1945). To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space. The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights. See Kaiser Aetna, 444 U. S., at 179-180; see also Restatement of Property §7 (1936). Second, the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property. Although deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking, see Andrus v. Allard, supra, at 66, it is clearly relevant. Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property.
Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property. As Part II-A, supra, indicates, property law has long protected an owner’s expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1228, and n. 110 (1967). Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion. See n. 19, infra.
The traditional rule also avoids otherwise difficult line-drawing problems. New would disagree that if the State required landlords to permit third parties to install swimming pools on the landlords’ rooftops for the convenience of the tenants, the reqfiirement would be a taking. If the cable installation here occupied as much space, again, few would disagree that the occupation would be a taking. But constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied. Indeed, it is possible that in the future, additional cable installations that more significantly restrict a landlord’s use of the roof of his building will be made. Section 828 requires a landlord to permit such multiple installations.
Finally, whether a permanent physical occupation has occurred presents relatively few problems of proof. The placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute. Once the fact of occupation is shown, of course, a court should consider the extent of the occupation as one relevant factor in determining the compensation due. For that reason, moreover, there is less need to consider the extent of the occupation in determining whether there is a taking in the first instance.
C
Teleprompter’s cable installation on appellant’s building constitutes a taking under the traditional test. The installation involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building’s exterior wall.
In light of our analysis, we find no constitutional difference between a crossover and a noncrossover installation. The portions of the installation necessary for both crossovers and noncrossovers permanently appropriate appellant’s property. Accordingly, each type of installation is a taking.
Appellees raise a series of objections to application of the traditional rule here. Teleprompter notes that the law applies only to buildings used as rental property, and draws the conclusion that the law is simply a permissible regulation of the use of real property. We fail to see, however, why a physical occupation of one type of property but not another type is any less a physical occupation. Insofar as Teleprompter means to suggest that this is not a permanent physical invasion, we must differ. So long as the property remains residential and a CATV company wishes to retain the installation, the landlord must permit it.
Teleprompter also asserts the related argument that the State has effectively granted a tenant the property right to have a CATV installation placed on the roof of his building, as an appurtenance to the tenant’s leasehold. The short answer is that § 828(l)(a) does not purport to give the tenant any enforceable property rights with respect to CATV installation, and the lower courts did not rest their decisions on this ground. Of course, Teleprompter, not appellant’s tenants, actually owns the installation. Moreover, the government does not have unlimited power to redefine property rights. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (“a State, by ipse dixit, may not transform private property into public property without compensation”).
Finally, we do not agree with appellees that application of the physical occupation rule will have dire consequences for the government’s power to adjust landlord-tenant relationships. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. See, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (discrimination in places of public accommodation); Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) (fire regulation); Bowles v. Willingham, 321 U. S. 503 (1944) (rent control); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922) (emergency housing law); Block v. Hirsh, 256 U. S. 135 (1921) (rent control). In none of these cases, however, did the government authorize the permanent occupation of the landlord’s property by a third party. Consequently, our holding today in no way alters the analysis governing the State’s power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building. So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity. See Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978).
III
Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State’s broad power to impose appropriate restrictions upon an owner’s use of his property.
Furthermore, our conclusion that § 828 works a taking of a portion of appellant’s property does not presuppose that the fee which many landlords had obtained from Teleprompter prior to the law’s enactment is a proper measure of the value of the property taken. The issue of the amount of compensation that is due, on which we express no opinion, is a matter for the state courts to consider on remand.
The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Teleprompter Manhattan CATV was formerly a subsidiary, and is now a division, of Teleprompter Corp.
The Court of Appeals defined a “crossover” more comprehensively as occurring:
“[W]hen (1) the line servicing the tenants in a particular building is extended to adjacent or adjoining buildings, (2) an amplifier which is placed on a building is used to amplify signals to tenants in that building and in a neighboring building or buildings, and (3) a line is placed on a building, none of the tenants of which are provided CATV service, for the purpose of providing service to an adjoining or adjacent building.” 53 N. Y. 2d, at 133, n. 6, 423 N. E. 2d, at 323, n. 6.
New York Exec. Law §828 (McKinney Supp. 1981-1982) provides in part:
“1. No landlord shall
“a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:
“i. that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants;
“ii. that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and
“iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities.
“b. demand or accept payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or premises, or from any cable television company in exchange therefor in excess of any amount which the commission shall, by regulation, determine to be reasonable; or
“c. discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not.”
Class-action status was granted in accordance with appellant’s request, except that owners of single-family dwellings on which a CATV component had been placed were excluded. Notice to the class has been postponed, however, by stipulation.
Professor Michelman has accurately summarized the case law concerning the role of the concept of physical invasions in the development of takings jurisprudence:
“At one time it was commonly held that, in the absence of explicit expropriation, a compensable ‘taking’ could occur only through physical encroachment and occupation. The modern significance of physical occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, ‘regularly’ use, or ‘permanently’ occupy, space or a thing which theretofore was understood to be under private ownership.” Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1184 (1967) (emphasis in original; footnotes omitted).
See also 2 J. Sackman, Nichols’ Law of Eminent Domain 6-50, 6-51 (rev. 3d ed. 1980); L. Tribe, American Constitutional Law 460 (1978).
For historical discussions, see 53 N. Y. 2d, at 157-158, 423 N. E. 2d, at 337-338 (Cooke, C. J., dissenting); F. Bosselman, D. Callies, & J. Banta, The Taking Issue 51 (1973); Stoebuek, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 600-601 (1972); Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 S. Ct. Rev. 63, 82; Cormack, Legal Concepts in Cases of Eminent Domain, 41 Yale L. J. 221, 225 (1931).
The City of New York objects that this case only involved a city’s right to charge for use of its streets, and not the power of eminent domain; the city could have excluded the company from any use of its streets. But the physical occupation principle upon which the right to compensation was based has often been cited as authority in eminent domain cases. See, e. g., Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540, 566-567 (1904); California v. United States, 395 F. 2d 261, 263, n. 4 (CA9 1968). Also, the Court squarely held that insofar as the company relied on a federal statute authorizing its use of post roads, an appropriation of state property would require compensation. St. Louis v. Western Union Telegraph Co., 148 U. S., at 101.
Early commentators viewed a physical occupation of real property as the quintessential deprivation of property. See, e. g., 1 W. Blackstone, Commentaries *139; J. Lewis, Law of Eminent Domain in the United States 197 (1888) (“Any invasion of property, except in case of necessity . . . , either upon, above or below the surface, and whether temporary or permanent, is a taking: as by constructing a ditch through it, passing under it by a tunnel, laying gas, water or sewer pipes in the soil, or extending structures over it, as a bridge or telephone wire” (footnote omitted; emphasis in original)); 1 P. Nichols, Law of Eminent Domain 282 (2d ed. 1917).
Indeed, although dissenting Justice Harlan would have treated the restriction as if it were a physical occupation, it is significant that he relied on physical appropriation as the paradigm of a taking. See United States v. Central Eureka Mining Co., 357 U. S., at 181, 183-184.
The City of New York and the opinion of the Court of Appeals place great emphasis on Penn Central’s reference to a physical invasion “by government,” 438 U. S., at 124, and argue that a similar invasion by a private party should be treated differently. We disagree. A permanent physical occupation authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is the occupant. See, e.g., Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). Penn Central simply holds that in cases of physical invasion short of permanent appropriation, the fact that the government itself commits an invasion from which it directly benefits is one relevant factor in determining whether a taking has occurred. 438 U. S., at 124, 128.
See also Andrus v. Allard, 444 U. S. 51 (1979). That case held that the prohibition of the sale of eagle feathers was not a taking as applied to traders of bird artifacts. “The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. ... In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds. . . . [L]oss of future profits — unaccompanied by any physical property restriction — provides a slender reed upon which to rest a takings claim.” Id., at 65-66.
Teleprompter’s reliance on labor cases requiring companies to permit access to union organizers, see, e. g., Hudgens v. NLRB, 424 U. S. 507 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539 (1972); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), is similarly misplaced. As we recently explained:
“[T]he allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees’ § 7 rights [to organize under the National Labor Relations Act], After the requisite need for access to the employer’s property has been shown, the access is limited to (i) union organizers; (ii) prescribed non-working areas of the employer’s premises; and (iii) the duration of the organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the ‘yielding’ of property rights it may require is both temporary and limited.” Central Hardware Co., supra, at 545.
The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), Kaiser Aetna v. United States, 444 U. S. 164 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property.
The dissent objects that the distinction between a permanent physical occupation and a temporary invasion will not always be clear. Post, at 448. This objection is overstated, and in any event is irrelevant to the critical point that a permanent physical occupation is unquestionably a taking. In the antitrust area, similarly, this Court has not declined to apply a per se rule simply because a court must, at the boundary of the rule, apply the rule of reason and engage in a more complex balancing analysis.
In United States v. Causby, 328 U. S. 256 (1946), the Court approvingly cited Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716 (1906), holding that ejectment would lie where a telephone wire was strung across the plaintiff’s property without touching the soil. The Court quoted the following language:
“‘[A]n owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff’s land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed.’” 328 U. S., at 265, n. 10, quoting Butler v. Frontier Telephone Co., supra, at 491-492, 79 N. E. 718.
Although the City of New York has granted an exclusive franchise to Teleprompter, it is not required to do so under state law, see N. Y. Exec. Law § 811 et seq. (McKinney Supp. 1981-1982), and future changes in technology may cause the city to reconsider its decision. Indeed, at present some communities apparently grant nonexclusive franchises. Brief for National Satellite Cable Association et al. as Amici Curiae 21.
In this case, the Court of Appeals noted testimony preceding the enactment of § 828 that the landlord’s interest in excluding cable installation “consists entirely of insisting that some negligible unoccupied space remain unoccupied.” 53 N. Y. 2d, at 141, 423 N. E. 2d, at 328 (emphasis omitted). The State Cable Commission referred to the same testimony in establishing a $1 presumptive award. Statement of General Policy, App. 48.
A number of the dissent’s arguments — that § 828 “likely increases both the building’s resale value and its attractiveness on the rental market,” post, at 452, and that appellant might have no alternative use for the cable-occupied space, post, at 453-454 — may also be relevant to the amount of compensation due. It should be noted, however, that the first argument is speculative and is contradicted by appellant’s testimony that she and “the whole block” would be able to sell their buildings for a higher price absent the installation. App. 100.
It is constitutionally irrelevant whether appellant (or her predecessor in title) had previously occupied this space, since a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, supra, at 264.
The dissent asserts that a taking of about one-eighth of a cubic foot of space is not of constitutional significance. Post, at 443. The assertion appears to be factually incorrect, since it ignores the two large silver boxes that appellant identified as part of the installation. App. 90; Loretto Affidavit in Support of Motion for Summary Judgment (Apr. 21, 1978), Appellants’ Appendix in No. 8300/76 (N. Y. App.), p. 77. Although the record does not reveal their size, appellant states that they are approximately 18" x 12" x 6", Brief for Appellant 6 n.*, and appellees do not dispute this statement. The displaced volume, then, is in excess of 114 cubic feet. In any event, these facts are not critical: whether the installation is a taking does not depend on whether the volume of space it occupies is bigger than a breadbox.
It is true that the landlord could avoid the requirements of § 828 by-ceasing to rent the building to tenants. But a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation. Teleprompter’s broad “use-dependency” argument proves too much. For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices. The right of a property owner to exclude a stranger’s physical occupation of his land cannot be so easily manipulated.
We also decline to hazard an opinion as to the respective rights of the landlord and tenant under state law prior to enactment of § 828 to use the space occupied by the cable installation, an issue over which the parties sharply disagree.
If § 828 required landlords to provide cable installation if a tenant so desires, the statute might present a different question from the question before us, since the landlord would own the installation. Ownership would give the landlord rights to the placement, manner, use, and possibly the disposition of the installation. The fact of ownership is, contrary to the dissent, not simply “incidental,” post, at 450; it would give a landlord (rather than a CATV company) full authority over the installation except only as government specifically limited that authority. The landlord would decide how to comply with applicable government regulations concerning CATV and therefore could minimize the physical, esthetic, and other effects of the installation. Moreover, if the landlord wished to repair, demolish, or construct in the area of the building where the installation is located, he need not incur the burden of obtaining the CATV company’s cooperation in moving the cable.
In this case, by contrast, appellant suffered injury that might have been obviated if she had owned the cable and could exercise control over its installation. The drilling and stapling that accompanied installation apparently caused physical damage to appellant’s building. App. 83, 95-96,104. Appellant, who resides in her building, further testified that the cable installation is “ugly.” Id., at 99. Although § 828 provides that a landlord may require “reasonable” conditions that are “necessary” to protect the appearance of the premises and may seek indemnity for damage, these provisions are somewhat limited. Even if the provisions are effective, the inconvenience to the landlord of initiating the repairs remains a cognizable burden.
In light of our disposition of appellant’s takings claim, we do not address her contention that § 828 deprives her of property without due process of law.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
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[
116
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UNITED STATES, Petitioner
v.
KWAI FUN WONG.
United States, Petitioner
v.
Marlene June, Conservator.
Nos. 13-1074
13-1075.
Supreme Court of the United States
Argued Dec. 10, 2014.
Decided April 22, 2015.
Roman Martinez, Washington, D.C., for Petitioner.
Eric Schnapper, Seattle, WA, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for Petitioner.
Eric Schnapper, University of Washington School of Law, Seattle, WA, Tom Steenson, Portland, OR, Beth Creighton, Michael Rose, Creighton & Rose, P.C., Portland, OR, for Respondent.
John P. Leader, Leader Law Firm, Tucson, AZ, Stanley G. Feldman, Stanley G. Feldman PLC, Tucson, AZ, E. Joshua Rosenkranz, Counsel of Record, Robert M. Loeb, Brian D. Ginsberg, David W.A. Spencer, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Roman Martinez, Assistant to the Solicitor General, Mark B. Stern, Anne Murphy, Adam C. Jed, Attorneys, Department of Justice, Washington, D.C., for Petitioner.
Opinion
Justice KAGANdelivered the opinion of the Court.
The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States "shall be forever barred" unless it is presented to the "appropriate Federal agency within two years after such claim accrues" and then brought to federal court "within six months" after the agency acts on the claim. 28 U.S.C. § 2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that § 2401(b)'s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government's argument and conclude that courts may toll both of the FTCA's limitations periods.
I
In the first case, respondent Kwai Fun Wong asserts that the Immigration and Naturalization Service (INS) falsely imprisoned her for five days in 1999. As the FTCA requires, Wong first presented that claim to the INS within two years of the alleged unlawful action. See § 2401(b); § 2675(a). The INS denied the administrative complaint on December 3, 2001. Under the Act, that gave Wong six months, until June 3, 2002, to bring her tort claim in federal court. See § 2401(b).
Several months prior to the INS's decision, Wong had filed suit in federal district court asserting various non-FTCA claims against the Government arising out of the same alleged misconduct. Anticipating the INS's ruling, Wong moved in mid-November 2001 to amend the complaint in that suit by adding her tort claim. On April 5, 2002, a Magistrate Judge recommended granting Wong leave to amend. But the District Court did not finally adopt that proposal until June 25-three weeks afterthe FTCA's 6-month deadline.
The Government moved to dismiss the tort claim on the ground that it was filed late. The District Court at first rejected the motion. It recognized that Wong had managed to add her FTCA claim only after § 2401(b)'s 6-month time period had expired. But the court equitably tolled that period for all the time between the Magistrate Judge's recommendation and its own order allowing amendment, thus bringing Wong's FTCA claim within the statutory deadline. Several years later, the Government moved for reconsideration of that ruling based on an intervening Ninth Circuit decision. This time, the District Court dismissed Wong's claim, reasoning that § 2401(b)'s 6-month time bar was jurisdictional and therefore not subject to equitable tolling. On appeal, the Ninth Circuit agreed to hear the case en banc to address an intra-circuit conflict on the issue. The en banc court held that the 6-month limit is not jurisdictional and that equitable tolling is available. Kwai Fun Wong v. Beebe,732 F.3d 1030 (2013). It then confirmed the District Court's prior ruling that the circumstances here justify tolling because Wong "exercis [ed] due diligence" in attempting to amend her complaint before the statutory deadline. Id.,at 1052.
The second case before us arises from a deadly highway accident. Andrew Booth was killed in 2005 when a car in which he was riding crossed through a cable median barrier and crashed into oncoming traffic. The following year, respondent Marlene June, acting on behalf of Booth's young son, filed a wrongful death action alleging that the State of Arizona and its contractor had negligently constructed and maintained the median barrier. Years into that state-court litigation, June contends, she discovered that the Federal Highway Administration (FHWA) had approved installation of the barrier knowing it had not been properly crash tested.
Relying on that new information, June presented a tort claim to the FHWA in 2010, more than five years after the accident. The FHWA denied the claim, and June promptly filed this action in federal district court. The court dismissed the suit because June had failed to submit her claim to the FHWA within two years of the collision. The FTCA's 2-year bar, the court ruled, is jurisdictional and therefore not subject to equitable tolling; accordingly, the court did not consider June's contention that tolling was proper because the Government had concealed its failure to require crash testing. On appeal, the Ninth Circuit reversed in light of its recent decision in Wong,thus holding that § 2401(b)'s 2-year deadline, like its 6-month counterpart, is not jurisdictional and may be tolled. 550 Fed.Appx. 505 (2013).
We granted certiorari in both cases, 573 U.S. ----, 134 S.Ct. 2873, 189 L.Ed.2d 831, 832 (2014), to resolve a circuit split about whether courts may equitably toll § 2401(b)'s two time limits. Compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability Litigation,646 F.3d 185, 190-191 (C.A.5 2011)(per curiam) (tolling not available), with Arteaga v. United States,711 F.3d 828, 832-833 (C.A.7 2013)(tolling allowed).We now affirm the Court of Appeals' rulings.
II
Irwin v. Department of Veterans Affairs,498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), sets out the framework for deciding "the applicability of equitable tolling in suits against the Government." In Irwin,we recognized that time bars in suits between privateparties are presumptively subject to equitable tolling. See id.,at 95-96, 111 S.Ct. 453.That means a court usually may pause the running of a limitations statute in private litigation when a party "has pursued his rights diligently but some extraordinary circumstance" prevents him from meeting a deadline. Lozano v. Montoya Alvarez,572 U.S. 1, ----, 134 S.Ct. 1224, 1231-1232, 188 L.Ed.2d 200 (2014). We held in Irwinthat "the same rebuttable presumption of equitable tolling" should also apply to suits brought against the United States under a statute waiving sovereign immunity. 498 U.S., at 95-96, 111 S.Ct. 453. Our old "ad hoc," law-by-law approach to determining the availability of tolling in those suits, we reasoned, had produced inconsistency and "unpredictability" without the offsetting virtue of enhanced "fidelity to the intent of Congress." Id.,at 95, 111 S.Ct. 453. Adopting the "general rule" used in private litigation, we stated, would "amount[ ] to little, if any, broadening" of a statutory waiver of immunity. Ibid.Accordingly, we thought such a presumption "likely to be a realistic assessment of legislative intent as well as a practically useful" rule of interpretation. Ibid.
A rebuttable presumption, of course, may be rebutted, so Irwindoes not end the matter. When enacting a time bar for a suit against the Government (as for one against a private party), Congress may reverse the usual rule if it chooses. See id.,at 96, 111 S.Ct. 453. The Government may therefore attempt to establish, through evidence relating to a particular statute of limitations, that Congress opted to forbid equitable tolling.
One way to meet that burden-and the way the Government pursues here-is to show that Congress made the time bar at issue jurisdictional.When that is so, a litigant's failure to comply with the bar deprives a court of all authority to hear a case. Hence, a court must enforce the limitation even if the other party has waived any timeliness objection. See Gonzalez v. Thaler,565 U.S. ----, ---- - ----, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012). And, more crucially here, a court must do so even if equitable considerations would support extending the prescribed time period. See John R. Sand & Gravel Co. v. United States,552 U.S. 130, 133-134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008).
Given those harsh consequences, the Government must clear a high bar to establish that a statute of limitations is jurisdictional. In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has "clearly state[d]" as much. Sebelius v. Auburn Regional Medical Center,568 U.S. ----, ----, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013)(quoting Arbaugh v. Y & H Corp.,546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see Gonzalez,565 U.S., at ---- - ----, 132 S.Ct., at 648-649. "[A]bsent such a clear statement, ... 'courts should treat the restriction as nonjurisdictional.' " Auburn Regional,568 U.S., at ---- - ----, 133 S.Ct., at 824(quoting Arbaugh,546 U.S., at 516, 126 S.Ct. 1235). That does not mean "Congress must incant magic words." Auburn Regional,568 U.S., at ----, 133 S.Ct., at 824. But traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.
And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional. See, e.g.,id.,at ----, 133 S.Ct., at 825(noting the rarity of jurisdictional time limits). Time and again, we have described filing deadlines as "quintessential claim-processing rules," which "seek to promote the orderly progress of litigation," but do not deprive a court of authority to hear a case. Henderson v. Shinseki,562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see Auburn Regional,568 U.S., at ----, 133 S.Ct., at 825; Scarborough v. Principi,541 U.S. 401, 413, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). That is so, contrary to the dissent's suggestion, see post, at 1640, 1643 - 1644, even when the time limit is important (most are) and even when it is framed in mandatory terms (again, most are); indeed, that is so "however emphatic[ally]" expressed those terms may be, Henderson,562 U.S., at 439, 131 S.Ct. 1197(quoting Union Pacific R. Co. v. Locomotive Engineers,558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009)). Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it.
In enacting the FTCA, Congress did nothing of that kind. It provided no clear statement indicating that § 2401(b)is the rare statute of limitations that can deprive a court of jurisdiction. Neither the text nor the context nor the legislative history indicates (much less does so plainly) that Congress meant to enact something other than a standard time bar.
Most important, § 2401(b)'s text speaks only to a claim's timeliness, not to a court's power. It states that "[a] tort claim against the United States shall be forever barred unless it is presented [to the agency] within two years ... or unless action is begun within six months" of the agency's denial of the claim. That is mundane statute-of-limitations language, saying only what every time bar, by definition, must: that after a certain time a claim is barred. See infra,at 1634, n. 7 (citing many similarly worded limitations statutes). The language is mandatory-"shall" be barred-but (as just noted) that is true of most such statutes, and we have consistently found it of no consequence. See, e.g.,Gonzalez,565 U.S., at ---- - ----, 132 S.Ct., at 650-652. Too, the language might be viewed as emphatic-"forever" barred-but (again) we have often held that not to matter. See, e.g., Henderson,562 U.S., at 439, 131 S.Ct. 1197; Union Pacific,558 U.S., at 81, 130 S.Ct. 584. What matters instead is that § 2401(b)"does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Arbaugh,546 U.S., at 515, 126 S.Ct. 1235(quoting Zipes v. Trans World Airlines, Inc.,455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). It does not define a federal court's jurisdiction over tort claims generally, address its authority to hear untimely suits, or in any way cabin its usual equitable powers. Section 2401(b), in short, "reads like an ordinary, run-of-the-mill statute of limitations," spelling out a litigant's filing obligations without restricting a court's authority. Holland v. Florida,560 U.S. 631, 647, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).
Statutory context confirms that reading. This Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional. See Henderson,562 U.S., at 439-440, 131 S.Ct. 1197; Reed Elsevier, Inc. v. Muchnick,559 U.S. 154, 164-165, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Arbaugh,546 U.S., at 515, 126 S.Ct. 1235; Zipes,455 U.S., at 393-394, 102 S.Ct. 1127. So too here. Whereas § 2401(b)houses the FTCA's time limitations, a different section of Title 28 confers power on federal district courts to hear FTCA claims. See § 1346(b)(1)("district courts ... shall have exclusive jurisdiction" over tort claims against the United States). Nothing conditions the jurisdictional grant on the limitations periods, or otherwise links those separate provisions. Treating § 2401(b)'s time bars as jurisdictional would thus disregard the structural divide built into the statute.
Finally, even assuming legislative history alone could provide a clear statement (which we doubt), none does so here. The report accompanying the FTCA did not discuss whether § 2401(b)'s time limits are jurisdictional. See S.Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946). And in amending § 2401(b)four times after its enactment, Congress declined again (four times over) to say anything specific about whether the statute of limitations imposes a jurisdictional bar. Congress thus failed to provide anything like the clear statement this Court has demanded before deeming a statute of limitations to curtail a court's power.
And so we wind up back where we started, with Irwin's "general rule" that equitable tolling is available in suits against the Government. 498 U.S., at 95, 111 S.Ct. 453. The justification the Government offers for departing from that principle fails: Section 2401(b)is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.
III
The Government balks at that straightforward analysis, claiming that it overlooks two reasons for thinking § 2401(b)jurisdictional. But neither of those reasons is persuasive. Indeed, our precedents in this area foreclose them both.
A
The Government principally contends that § 2401(b)is jurisdictional because it includes the same language as the statute of limitations governing contract (and some other non-tort) suits brought against the United States under the Tucker Act. See § 2501.That statute long provided that such suits "shall be forever barred" if not filed within six years. Act of Mar. 3, 1863, § 10, 12 Stat. 767; see Act of Mar. 3, 1911, § 156, 36 Stat. 1139.And this Court repeatedly held that 6-year limit to be jurisdictional and thus not subject to equitable tolling. See Kendall v. United States,107 U.S. 123, 125-126, 2 S.Ct. 277, 27 L.Ed. 437 (1883); Finn v. United States,123 U.S. 227, 232, 8 S.Ct. 82, 31 L.Ed. 128 (1887); Soriano v. United States,352 U.S. 270, 273-274, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). When Congress drafted the FTCA's time bar, it used the same "shall be forever barred" language (though selecting a shorter limitations period). "In these circumstances," the Government maintains, "the only reasonable conclusion is that Congress intended the FTCA's identically worded time limit to be a jurisdictional bar." Brief for United States in Wong 21-22. According to the Government, Congress wanted the FTCA to serve as "a tort-law analogue to the Tucker Act" and incorporated the words "shall be forever barred" to similarly preclude equitable tolling. Reply Brief in Wong 4. (The dissent relies heavily on the same argument. See post,at 1640 - 1642.)
But the Government takes too much from Congress's use in § 2401(b)of an utterly unremarkable phrase. The "shall be forever barred" formulation was a commonplace in federal limitations statutes for many decades surrounding Congress's enactment of the FTCA.And neither this Court nor any other has accorded those words talismanic power to render time bars jurisdictional. To the contrary, we have construed the very same "shall be forever barred" language in 15 U.S.C. § 15b, the Clayton Act's statute of limitations, to be subject to tolling; nothing in that provision, we found, "restrict[s] the power of the federal courts" to extend a limitations period when circumstances warrant. American Pipe & Constr. Co. v. Utah,414 U.S. 538, 559, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); see Hardin v. City Title & Escrow Co.,797 F.2d 1037, 1040 (C.A.D.C.1986)(calling § 15(b) "a good example of a non-jurisdictional time limitation"
based on its text and separation from the Clayton Act's jurisdictional provisions).As the Government itself has previously acknowledged, referring to the "shall be forever barred" locution: "[T]hat type of language has more to do with the legal rhetoric at the time the statute was passed" than with anything else, and should not "make [ ] a difference" to the jurisdictional analysis. Tr. of Oral Arg. in Irwin,O.T. 1990, No. 89-5867, p. 30. Or, put just a bit differently: Congress's inclusion of a phrase endemic to limitations statutes of that era, at least some of which allow tolling, cannot provide the requisite clear statement that a time bar curtails a court's authority.
Indeed, in two decisions directly addressing the Tucker Act's statute of limitations, this Court dismissed the idea that the language the Government relies on here has jurisdictional significance. Twice we described the words in that provision as not meaningfully different from those in a nonjurisdictional statute of limitations. And twice we made clear that the jurisdictional status of the Tucker Act's time bar has precious little to do with its phrasing.
We first did so in Irwin. Using our newly minted presumption, see supra,at 1631, we decided there that the limitations period governing Title VII suits against the Government, 42 U.S.C. § 2000e-16(c) (1988 ed.), allowed equitable tolling. In reaching that conclusion, we compared § 2000e-16(c)'s text (then stating that an employee "may file a civil action" within 30 days of an agency's denial of her claim) with the language of the Tucker Act's time bar. We noted that we had formerly held the Tucker Act's limitations statute to "jurisdictionally bar[ ]" late claims, and we acknowledged the possibility of justifying that different treatment by characterizing its "language [as] more stringent than" § 2000e-16(c)'s. Irwin,498 U.S., at 94-95, 111 S.Ct. 453. But we rejected that reasoning, instead finding that the two formulations were materially alike. "[W]e are not persuaded," we stated, "that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling." Id.,at 95, 111 S.Ct. 453. Leaving for another day the question of what did account for the jurisdictional status of the Tucker Act's time bar, the Court thus ruled out reliance on its language. In other words, on the core question the Government raises here-whether the phrase "shall be forever barred," as used in both the Tucker Act and the FTCA, manifests a congressional decision to preclude tolling-Irwinsaid no.
More recently, John R. Sandreaffirmed that conclusion, even as it refused to overturn our century-old view that the Tucker Act's time bar is jurisdictional. No less than three times, John R. Sandapprovingly repeated Irwin's statement that the textual differences between the Tucker Act's time bar and § 2000e-16(c)were insignificant-i.e.,that the language of the two provisions could not explain why the former was jurisdictional and the latter not. See 552 U.S., at 137, 139, 128 S.Ct. 750(calling the provisions "linguistically similar," "similar ... in language," and "similarly worded"). But if that were so, John R. Sandasked, why not hold that the Tucker Act's time limit, like § 2000e-16(c), is nonjurisdictional? The answer came down to two words: stare decisis. The Tucker Act's bar was different because it had been the subject of "a definitive earlier interpretation." Id.,at 138, 128 S.Ct. 750; see id.,at 137, 128 S.Ct. 750; supra,at 1634. And for that reason alone, John R. Sandleft in place our prior construction of the Tucker Act's time limit. See 552 U.S., at 139, 128 S.Ct. 750(observing, in Justice Brandeis's words, that "it is more important that" the rule "be settled than that it be settled right" (quoting Burnet v. Coronado Oil & Gas Co.,285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932)(dissenting opinion))). What is special about the Tucker Act's deadline, John R. Sandrecognized, comes merely from this Court's prior rulings, not from Congress's choice of wording.
The Government thus cannot show that the phrase "shall be forever barred" in § 2401(b)plainly signifies a jurisdictional statute, as our decisions require. See supra,at 1632. Unlike in John R. Sand,here stare decisisplays no role: We have not previously considered whether § 2401(b)restricts a court's authority. What we have done is to say, again and again, that the core language in that provision has no jurisdictional significance. It is materially indistinguishable from the language in one nonjurisdictional time bar (i.e.,§ 2000e-16(c)). See Irwin,498 U.S., at 95, 111 S.Ct. 453; John R. Sand,552 U.S., at 137, 139, 128 S.Ct. 750. And it is identical to the language in another (i.e., 15 U.S.C. § 15b). See American Pipe,414 U.S., at 559, 94 S.Ct. 756. Yes, we have held that the Tucker Act's time bar, which includes those same words, constrains a court's power to hear late claims. But as we explained in Irwin,that is not because the phrase itself "manifest[s] a ... congressional intent with respect to the availability of equitable tolling." 498 U.S., at 95, 111 S.Ct. 453. The words on which the Government pins its hopes are just the words of a limitations statute of a particular era. And nothing else supports the Government's claim that Congress, when enacting the FTCA, wanted to incorporate this Court's view of the Tucker Act's time bar-much less that Congress expressed that purported intent with the needed clear statement.
B
The Government next contends that at the time of the FTCA's enactment, Congress thought that everylimitations statute applying to suits against the United States, however framed or worded, cut off a court's jurisdiction over untimely claims. On that view, the particular language of those statutes makes no difference. All that matters is that such time limits function as conditions on the Government's waiver of sovereign immunity. In that era-indeed, up until Irwinwas decided-those conditions were generally supposed to be "strictly observed." Soriano,352 U.S., at 276, 77 S.Ct. 269. That meant, the Government urges, that all time limits on actions against the United States "carr[ied] jurisdictional consequences." Brief for United States in Wong 34. Accordingly, the Government concludes, Congress "would have expected courts to apply [§ 2401(b)] as a jurisdictional requirement-just as conditions on waivers of sovereign immunity had always been applied." Id.,at 32.
Irwin,however, forecloses that argument. After all, Irwinalso considered a pre-Irwintime bar attached to a waiver of sovereign immunity. The Government argued there-anticipating its claim here-that because § 2000e-16(c)'s statute of limitations conditioned such a waiver, it must be jurisdictional and not subject to equitable tolling. See Brief for Respondents 6, 10, 14, 19, and Tr. of Oral Arg. 31-37, inIrwin,O.T. 1990, No. 89-5867. But Irwindisagreed, applying the opposite presumption to a time limit passed two decades earlier. See 498 U.S., at 94-96, 111 S.Ct. 453; supra,at 1631. Justice White protested, much as the Government does now, that at the time of § 2000e-16(c)'s enactment, limitations statutes for suits against the Government were "strictly observed" and not amenable to tolling. 498 U.S., at 97, 111 S.Ct. 453(opinion concurring in part and concurring in judgment) (quoting Soriano,352 U.S., at 276, 77 S.Ct. 269); see 498 U.S., at 99, n. 2, 111 S.Ct. 453. How could an earlier Congress, Justice White asked, have "had in mind the Court's present departure from that longstanding rule"? Ibid.; see post,at 1643 (asking a variant of the same question). But the IrwinCourt was undeterred. The Court noted that it had not applied the former rule so consistently as Justice White suggested. See 498 U.S., at 94, 111 S.Ct. 453. And the Court doubted that the former approach so well reflected congressional intent: On the contrary, because equitable tolling "amounts to little, if any, broadening of the congressional waiver," we thought that a rule generally allowing tolling is the more "realistic assessment of legislative intent." Id.,at 95, 111 S.Ct. 453; see supra,at 1631. For those reasons, the Court declined to count time bars as jurisdictional merely because they condition waivers of immunity-even if Congress enacted the deadline when the Court interpreted limitations statutes differently.
In the years since, this Court has repeatedly followed Irwin's lead. We have applied Irwinto pre-Irwinstatutes, just as we have to statutes that followed in that decision's wake. See Scarborough,541 U.S., at 420-422, 124 S.Ct. 1856; Franconia Associates v. United States,536 U.S. 129, 145, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002). To be sure, Irwin's presumption is rebuttable. But the rebuttal cannot rely on what Irwinitself deemed irrelevant-that Congress passed the statute in an earlier era, when this Court often attached jurisdictional consequence to conditions on waivers of sovereign immunity. Rather, the rebuttal must identify something distinctive about the time limit at issue, whether enacted then or later-a reason for thinking Congress wanted that limitations statute (not all statutes passed in an earlier day) to curtail a court's jurisdiction. On the Government's contrary view, Irwinwould effectively become only a prospective decision. Nothing could be less consonant with Irwin's ambition to adopt a "general rule to govern the applicability of equitable tolling in suits against the Government." 498 U.S., at 95, 111 S.Ct. 453.
And the Government's claim is peculiarly inapt as applied to § 2401(b)because all that is special about the FTCA cuts in favor ofallowing equitable tolling. As compared to other waivers of immunity (prominently including the Tucker Act), the FTCA treats the United States more like a commoner than like the Crown. The FTCA's jurisdictional provision states that courts may hear suits "under circumstances where the United States, if a private person, would be liable to the claimant." 28 U.S.C. § 1346(b). And when defining substantive liability for torts, the Act reiterates that the United States is accountable "in the same manner and to the same extent as a private individual." § 2674. In keeping with those provisions, this Court has often rejected the Government's calls to cabin the FTCA on the ground that it waives sovereign immunity-and indeed, the Court did so in the years immediately after the Act's passage, even as it was construing otherwaivers of immunity narrowly. See, e.g., United States v. Aetna Casualty & Surety Co.,338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949); Indian Towing Co. v. United States,350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier Inc. v. United States,352 U.S. 315, 319-320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). There is no reason to do differently here. As Irwinrecognized, treating the Government like a private person means (among other things) permitting equitable tolling. See 498 U.S., at 95-96, 111 S.Ct. 453. So in stressing the Government's equivalence to a private party, the FTCA goes further than the typical statute waiving sovereign immunity to indicate that its time bar allows a court to hear late claims.
IV
Our precedents make this a clear-cut case. Irwinrequires an affirmative indication from Congress that it intends to preclude equitable tolling in a suit against the Government. See 498 U.S., at 95-96, 111 S.Ct. 453. Congress can provide that signal by making a statute of limitations jurisdictional. But that requires its own plain statement; otherwise, we treat a time bar as a mere claims-processing rule. See Auburn Regional,568 U.S., at ----, ----, 133 S.Ct., at 823-824, 825. Congress has supplied no such statement here. As this Court has repeatedly stated, nothing about § 2401(b)'s core language is special; "shall be forever barred" is an ordinary (albeit old-fashioned) way of setting a deadline, which does not preclude tolling when circumstances warrant. See Irwin,498 U.S., at 95-96, 111 S.Ct. 453; John R. Sand,552 U.S., at 137, 139, 128 S.Ct. 750; American Pipe,414 U.S., at 558-559, 94 S.Ct. 756. And it makes no difference that a time bar conditions a waiver of sovereign immunity, even if Congress enacted the measure when different interpretive conventions applied; that is the very point of this Court's decision to treat time bars in suits against the Government, whenever passed, the same as in litigation between private parties. See Irwin,498 U.S., at 95-96, 111 S.Ct. 453; Scarborough,541 U.S., at 420-422, 124 S.Ct. 1856;Franconia,536 U.S., at 145, 122 S.Ct. 1993. Accordingly, we hold that the FTCA's time bars are nonjurisdictional and subject to equitable tolling.
We affirm the judgments of the U.S. Court of Appeals for the Ninth Circuit and remand the cases for further proceedings consistent with this opinion. On remand in June,it is for the District Court to decide whether, on the facts of her case, June is entitled to equitable tolling.
It is so ordered.
Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.
Our task in these cases is to interpret and enforce a federal statute that specifies the limits of the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). The FTCA waives the immunity of the United States for certain tort claims but provides that any "tort claim against the United States shall be forever barred unless" it is filed with the appropriate agency "within two years after such claim accrues" and in federal court "within six months after" the agency's final decision.
28 U.S.C. § 2401(b). The statutory text, its historical roots, and more than a century of precedents show that this absolute bar is not subject to equitable tolling. I would enforce the statute as Congress intended and reverse.
I
The FTCA is a waiver of sovereign immunity and must be understood in that context. In the 19th and early 20th centuries, Congress was reluctant to allow individual tort claims against the United States. Instead, it granted relief to individuals through private laws enacted solely for those individuals' benefit. These waivers of sovereign immunity were surgical and sporadic, but "notoriously clumsy," and by 1946 Congress thought it better to adopt a "simplified" approach. Dalehite v. United States,346 U.S. 15, 24-25, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The FTCA thus waived sovereign immunity for tort claims against the Government and set out a procedure for adjudicating those claims.
This waiver of sovereign immunity was no trivial matter. Long before the FTCA, Congress authorized suits against the Government for contract and property claims under the Tucker Act and a number of predecessor statutes, but the Tucker Act excluded tort claims from its waiver of sovereign immunity. The concern was obvious: As opposed to the more predictable nature of contractual and property claims, tort-based harms are sometimes unperceived and open-ended. Even frivolous claims require the Federal Government to expend administrative and litigation costs, which ultimately fall upon society at-large. For every dollar spent to defend against or to satisfy a tort claim against the United States, the Government must either raise taxes or shift funds originally allocated to different public programs.
To reduce these risks, Congress placed strict limits on the FTCA's waiver of sovereign immunity. The statute "exempts from [its] waiver certain categories of claims," Ali v. Federal Bureau of Prisons,552 U.S. 214, 218, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008), and includes a broad exemption for claims "arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h); see also §§ 2680(a)-(n). In addition, in order to limit the scope and unpredictability of the Government's potential liability, the Act exempts from the waiver of sovereign immunity certain types of recovery, such as prejudgment interest and punitive damages. See § 2674.
Most relevant here, the FTCA "condition[s]" its waiver of sovereign immunity on strict filing deadlines. United States v. Kubrick,444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). As enacted in 1946, the Act granted district courts exclusive jurisdiction over tort claims against the Government, "[s]ubject to the [other] provisions of" the Act. FTCA, ch. 753, § 410(a), 60 Stat. 843-844. One of those provisions stated that "[e]very claim against the United States cognizable under this title shall be forever barred, unless within one year after such claim accrued ... it is presented in writing to the [relevant] Federal agency ... or ... an action is begun" in federal court. § 420, id.,at 845. The current version provides in full as follows:
"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b).
II
The question presented in these two cases is whether the FTCA's filing deadlines are subject to equitable tolling. We must therefore decide (1) whether the deadlines are "jurisdictional" in nature, so that courts are without power to adjudicate claims filed outside their strict limits and (2) if they are not jurisdictional, whether the statute nonetheless prohibits equitable tolling. Both of these inquiries require close attention to the text, context, and history of the Act. And both lead to the conclusion that the FTCA allows no equitable tolling.
A
The FTCA's filing deadlines are jurisdictional. The statute's plain text prohibits adjudication of untimely claims. Once the Act's filing deadlines have run, all untimely claims "shall be forever barred." Ibid.These words are not qualified or aspirational. They are absolute. If not filed with the agency within two years, or with a federal court within six months, a claim "shall be" "barred" "forever." "Shall be forever barred" is not generally understood to mean "should be allowed sometimes." The statute brooks no exceptions. And because the filing deadlines restrict the FTCA's waiver of sovereign immunity, they impose a limit on the courts' jurisdiction that "we should not take it upon ourselves to extend." Kubrick, supra,at 117-118, 100 S.Ct. 352.
For over 130 years, we have understood these terms as jurisdictional. When crafting the FTCA's limitations provision, Congress did not write on a clean slate. Rather, it borrowed language from limitations provisions in the Tucker Act and its predecessor statutes. The 1911 version of the Tucker Act included language that was nearly identical to that in the 1946 version of the FTCA: "Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court ... within six years after the claim first accrues." § 156, 36 Stat. 1139. That statutory language came, in turn, from the 1863 predecessor to the Tucker Act. See § 10, 12 Stat. 767.
As early as 1883, we interpreted these precise terms to impose a "jurisdiction [al]" requirement that the "court may not disregard." Kendall v. United States,107 U.S. 123, 125, 2 S.Ct. 277. We emphasized that, when waiving sovereign immunity, Congress "may restrict the jurisdiction of the [courts] to certain classes of demands." Ibid.And we held that "[t]he express words of the statute leave no room for contention." Ibid.The Court thus had no "authority to engraft" an equitable tolling provision where Congress had so clearly constrained the judiciary's authority. Ibid.
Over the ensuing decades, we repeatedly reaffirmed our interpretation of the phrase. In Finn v. United States,123 U.S. 227, 232, 8 S.Ct. 82, 31 L.Ed. 128 (1887), we held that the Government could not waive the jurisdictional time bar and thus that the "duty of the court" was "to dismiss the petition" when a plaintiff raised an untimely claim. We reached the same conclusion in De Arnaud v. United States,151 U.S. 483, 495-496, 14 S.Ct. 374, 38 L.Ed. 244 (1894). We reaffirmed the rule in United States v. New York,160 U.S. 598, 616-619, 16 S.Ct. 402, 40 L.Ed. 551 (1896), while holding that there wasjurisdiction where the plaintiff presented its claim before the statutory deadline. And in Munro v. United States,303 U.S. 36, 38, n. 1, 41, 58 S.Ct. 421, 82 L.Ed. 633 (1938), we held that a District Court lacked jurisdiction to resolve untimely claims, even if the Government waived any objection, under a different statute that incorporated the Tucker Act's time limits. All the while, the lower courts similarly enforced the deadline as "a jurisdictional requirement, compliance with which is necessary to enable suit to be maintained against the sovereign." Compagnie Generale Transatlantique v. United States,51 F.2d 1053, 1056 (C.A.2 1931). Thus, by 1946, the phrase "shall be forever barred" was well understood to deprive federal courts of jurisdiction over untimely claims.
The FTCA's statutory terms must be understood in this context. When Congress crafted the FTCA as a tort-based analogue to the Tucker Act, it consciously borrowed the well-known wording of the Tucker Act's filing deadline. Then, as now, it was settled that "[i]n adopting the language used in an earlier act, Congress must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment." Hecht v. Malley,265 U.S. 144, 153, 44 S.Ct. 462, 68 L.Ed. 949 (1924); see also Shapiro v. United States,335 U.S. 1, 16, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948); Sekhar v. United States,570 U.S. ----, ---- - ----, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)(" '[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it' " (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947))).
Indeed, Congress considered departing from the Tucker Act's prohibition on equitable tolling, but decided against it. Proposals to include an equitable tolling provision were "included in nine of the thirty-one bills prior to the enactment of the FTCA," but "the Act passed by the 1946 Congress did not provide for any equitable tolling of the limitations periods." Colella & Bain, Revisiting Equitable Tolling and the Federal Tort Claims Act, 31 Seton Hall L.Rev. 174, 195-196 (2000). Instead, it was understood that individuals with claims outside those deadlines could turn to Congress for relief through private bills, as they did before the FTCA's enactment. See id.,at 195.
The evidence of statutory meaning does not end there. We reaffirmed the phase's jurisdictional nature in the decades following the FTCA's enactment. In Soriano v. United States,352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), we rejected a request to allow equitable tolling under the Tucker Act. Confirming the connection between the Tucker Act and the FTCA, we noted that "statutes permitting suits for tax refunds, tort actions,alien property litigation, patent cases, and other claims against the Government would be affected" if the Court allowed equitable tolling under the Tucker Act. Id.,at 275, 77 S.Ct. 269(emphasis added). And in Kubrick,444 U.S., at 117-118, 100 S.Ct. 352we cited Soriano's warning while emphasizing that the FTCA's time limits are a condition of the Act's waiver of sovereign immunity.
The lower courts also quickly recognized the statutes' common heritage and enforced § 2401(b)as a jurisdictional requirement. In Anderegg v. United States,171 F.2d 127, 128 (1948)(per curiam), the Fourth Circuit cited Finnand Munrowhile holding that the FTCA's filing deadline is a jurisdictional limit that the Government cannot waive. The Fifth Circuit, in Simon v. United States,244 F.2d 703, 705, n. 4 (1957), held that the FTCA's deadline is a jurisdictional condition on the Act's waiver of sovereign immunity and cited Carpenter v. United States,56 F.2d 828, 829 (C.A.2 1932), a Tucker Act case, to support its holding. And in Humphreys v. United States,272 F.2d 411 (1959), the Ninth Circuit similarly relied on Tucker Act precedents to hold that "the District Court has no jurisdiction over [an untimely FTCA] action," because no waiver of sovereign immunity exists once the filing deadline "has run." Id.,at 412(citing Edwards v. United States,163 F.2d 268, 269 (C.A.9 1947), in turn citing Finnand Munro). When Congress amended the FTCA in 1966, it readopted the "forever barred" language against the backdrop of Sorianoand the lower courts' interpretation of the phrase. We must therefore assume that Congress meant to keep the universally recognized meaning of those words. See, e.g., General Dynamics Land Systems, Inc. v. Cline,540 U.S. 581, 593-594, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004).
That meaning, of course, cannot change over time. But even if there were any doubt, we recently reaffirmed our view in John R. Sand & Gravel Co. v. United States,552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). We explained that, unlike run-of-the-mill statutes of limitation, jurisdictional time limits "seek ... to achieve a broader system-related goal, such as facilitating the administration of claims, limiting the scope of a governmental waiver of sovereign immunity, or promoting judicial efficiency." Id.,at 133, 128 S.Ct. 750(citations omitted). Recounting our decisions in Kendall,Finn,De Arnaud,New York,and Soriano,we "reiterated" our understanding of the "absolute nature of the court of claims limitations statute." 552 U.S., at 135, 128 S.Ct. 750. And we rejected an invitation to abandon that interpretation, noting that Congress has long accepted our interpretation of the statute. Id.,at 139, 128 S.Ct. 750.
The same must be said of the FTCA. As we have often explained, "[w]hen a long line of this Court's decisions left undisturbed by Congress has treated a similar requirement as 'jurisdictional,' we will presume that Congress intended to follow that course." Henderson v. Shinseki,562 U.S. 428, 436, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011)(citation and some internal quotation marks omitted); Reed Elsevier, Inc. v. Muchnick,559 U.S. 154, 168, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Union Pacific R. Co. v. Locomotive Engineers,558 U.S. 67, 82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). Every single decision from this Court interpreting the Tucker Act's "similar requirement" has treated it as jurisdictional. And there is strong historical evidence that Congress "intended to follow that course." That should be the end of the matter: Section 2410(b)'s filing deadlines are jurisdictional limits that are not subject to equitable tolling.
B
Even if the FTCA's filing deadlines are not jurisdictional, they still prohibit equitable tolling. To be sure, in recent years, we have grown reluctant to affix the "jurisdictional" label. See, e.g., Arbaugh v. Y & H Corp.,546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Henderson, supra,at 434-436, 131 S.Ct. 1197. "But calling a rule nonjurisdictional does not mean that it is not mandatory." Gonzalez v. Thaler,565 U.S. ----, ----, 132 S.Ct. 641, 651, 181 L.Ed.2d 619 (2012). Where Congress imposes an inflexible claims processing rule, it is our duty to enforce the law and prohibit equitable tolling, whether it is jurisdictional or not.
Here, Congress' intent is clear. The words of the statute leave no doubt that untimely claims are never allowed: They are "foreverbarred." This is no weak-kneed command. The history underlying the text only bolsters its apparent meaning, and our repeated reaffirmation of the phrase's meaning should remove any doubt. Congress never meant for equitable tolling to be available under the FTCA.
The only factor pointing in the opposite direction is our suggestion in Irwin v. Department of Veterans Affairs,498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), that we would thenceforth apply a rebuttable presumption in favor of equitable tolling in suits against the Government. But it is beyond me how Irwin's judge-made presumption announced in 1990 can trump the obvious meaning of a statute enacted many decades earlier. Cf. Cannon v. University of Chicago,441 U.S. 677, 718, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)(Rehnquist, J., concurring). In any event, Irwin's rebuttable presumption is overcome in this case. For well over a century, we have recognized the inflexible nature of the Tucker Act's provision. Since its adoption, we have recognized that the FTCA's language bears the same meaning as its Tucker Act companion. See Soriano, supra,at 275, 77 S.Ct. 269; Kubrick, supra,at 118, 100 S.Ct. 352. And in John R. Sand & Gravel,we held that our "definitive earlier interpretation of the" Tucker Act is a "sufficient rebuttal" to Irwin's presumption. 552 U.S., at 138, 128 S.Ct. 750. There is no principled way to distinguish this case. Section 2401(b)allows no equitable tolling.
III
The Court's contrary conclusion is wrong at every step. In its view, § 2401(b)'s statutory text is "mundane" language that " 'reads like an ordinary, run-of-the-mill statute of limitations.' " Ante,at 1633. But "ordinary" nonjurisdictional time limits are typically directed at claimants. The deadline in Henderson,for example, required that "a personadversely affected by [a Board of Veterans' Appeals] decision shall file a notice of appeal ... within 120 days after" the decision. 38 U.S.C. § 7266(a)(emphasis added); 562 U.S., at 438, 131 S.Ct. 1197. The "run-of-the-mill" limitations provision in Holland v. Florida,560 U.S. 631, 647, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), likewise applied to the "person" responsible for filing: "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a personin custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1)(emphasis added); 560 U.S., at 635, 130 S.Ct. 2549. And the provision at issue in Irwinwas similar, if not an even weaker command. It provided that " '[w]ithin thirty days of receipt of notice of final action taken by ... the Equal Employment Opportunity Commission ... an employee or applicantfor employment ...
may filea civil action.' " 498 U.S., at 94, 111 S.Ct. 453(quoting 42 U.S.C. § 2000e-16(c) (1998 ed.); emphasis added).
Section 2401(b), by contrast, never mentions the claimant, and it is phrased in emphatically absolute terms. It says unequivocally that untimely tort claims against the United States "shall be forever barred." Although it does not use the word "jurisdiction," it speaks at least as much to the courts (who are "forever barred" from considering untimely claims) as it does to claimants (who are "forever barred" from bringing stale claims). More important, though, the words in § 2401(b)have a well-known meaning that ipse dixitlabels cannot overcome.
The majority tells us this "old 'ad hoc,' law-by-law approach"-also known as statutory interpretation-has been replaced with a broad presumption in favor of equitable tolling and a judicial preference against jurisdictional labels. Ante, at 1630 - 1631. I dispute the premise. But in any event, as I explained above, and as six Members of the current Court held in John R. Sand & Gravel,the overwhelming evidence of congressional intent here easily overtakes Irwin's rebuttable presumption. Even if we would rather not call § 2401(b)'s deadlines "jurisdictional," with all that label entails, we must nonetheless recognize that Congress never meant to allow equitable tolling.
The majority avoids this latter point by declining to give it any separate attention. See ante,at 1631, n. 2. But we cannot conflate the two questions because, though the relevant evidence is the same, the analysis is different. In particular, the majority is wrong to rely on Irwinwhen assessing the jurisdictional question, which is the only question it really decides. We do not indulge Irwin's presumption when determining whether a requirement is jurisdictional. Instead, we typically invoke Irwinonly afterfinding that a requirement is not jurisdictional, to decide whether Congress nonetheless intended to prohibit equitable tolling. In Henderson,for instance, we never mentioned Irwinbecause the parties did not ask us to address whether the rule was "subject to equitable tolling if it [was] not jurisdictional." 562 U.S., at 442, n. 4, 131 S.Ct. 1197. Likewise, in Bowles v. Russell,551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), we held that the deadline for filing a notice of appeal is jurisdictional, without a word about Irwin.In Sebelius v. Auburn Regional Medical Center,568 U.S. ----, ---- - ----, ---- - ----, 133 S.Ct. 817, 823-824, 826-828, 184 L.Ed.2d 627 (2013), we considered Irwinonly after deciding that a deadline was not jurisdictional. And in Holland,we held that the Antiterrorism and Effective Death Penalty Act of 1996's time limits are not jurisdictional, without relying on Irwin,and then stated that "[w]e have previously made clear that a nonjurisdictional federal statute of limitations is normally subject to a 'rebuttable presumption' in favor 'of equitable tolling.' " 560 U.S., at 645-646, 130 S.Ct. 2549(quoting Irwin, supra,at 95-96, 111 S.Ct. 453) (emphasis deleted); cf. Young v. United States,535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002)(invoking Irwinafter concluding that a limitations period was not a "substantive" component of the Bankruptcy Code).This error matters because the majority's jurisdictional analysis literally begins and ends with Irwin,see ante,at 1630 - 1631, 1638, and thus relies on a presumption that should have no bearing on the question. Without that presumption, the majority could not so readily ignore the unmistakable evidence that § 2401(b)'s limits are jurisdictional.
For these reasons, I would hold that § 2401(b)does not allow equitable tolling, and I therefore respectfully dissent.
Although we did not consolidate these cases, we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of § 2401(b)'s deadlines. See, e.g., Brief for United States in June15 ("Nothing in the text or relevant legislative history ... suggests that the respective time bars should be interpreted differently with respect to whether they are jurisdictional or subject to equitable tolling").
The Government notes, and we agree, that Congress may preclude equitable tolling of even a nonjurisdictional statute of limitations. See Brief for United States in Wong20; Sebelius v. Auburn Regional Medical Center,568 U.S. ----, ---- - ----, 133 S.Ct. 817, 823-825, 826-827, 184 L.Ed.2d 627 (2013)(finding a nonjurisdictional time limit not amenable to tolling). And the Government contends in passing that even if § 2401(b)is nonjurisdictional, it prohibits equitable tolling. See Brief for United States in Wong20. But the Government makes no independent arguments in support of that position; instead, it relies (and even then implicitly) on the same indicia of congressional intent that, in its view, show that § 2401(b)'s time limits are jurisdictional. See infra,at 1633 - 1634, 1636 - 1637. In addressing the Government's predominant, jurisdictional claim, we therefore also deal with its subsidiary one.
The dissent takes issue with the sequence in which we decide the jurisdictional question, contending that we must do so prior to mentioning Irwin's presumption. See post,at 1644 - 1645 (opinion of ALITO, J.). We do not understand the point-or more precisely, why the dissent thinks the ordering matters. When Congress makes a time bar in a suit against the Government jurisdictional, one could say (as the dissent does) that Irwindoes not apply, or one could say (as we do) that Irwin's presumption is conclusively rebutted. The bottom line is the same: Tolling is not available. We frame the inquiry as we do in part because that is how the Government presented the issue. See Brief for United States in Wong19 ("One way to show that [Irwin's presumption is rebutted] is to establish that the statutory time limit is a 'jurisdictional' restriction"). And we think that choice makes especially good sense in these cases because various aspects of Irwin's reasoning are central to considering the parties' positions on whether § 2401(b)is jurisdictional. See infra,at 1635 - 1638.
The dissent argues that nonjurisdictional time limits typically mention claimants, whereas § 2401(b)does not. See post,at 1643. But none of our precedents have either said or suggested that such a difference matters-that, for example, a statute barring a "tort claim" is jurisdictional, but one barring a "person's tort claim" is not. See, e.g., Zipes,455 U.S., at 394, and n. 10, 102 S.Ct. 1127(concluding that a time limit did "not speak in jurisdictional terms" even though it did not refer to a claimant). Rather, in case after case, we have emphasized another distinction-that jurisdictional statutes speak about jurisdiction, or more generally phrased, about a court's powers. See Auburn Regional,568 U.S., at ----, 133 S.Ct., at 824; Reed Elsevier, Inc. v. Muchnick,559 U.S. 154, 160-161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Arbaugh,546 U.S., at 515, 126 S.Ct. 1235.
The Tucker Act of 1887, ch. 359, 24 Stat. 505, enlarged the Court of Claims' jurisdiction over contract and other non-tort actions against the Government. The statute of limitations applying to such suits pre-dated the Tucker Act by more than two decades.
During a recodification occurring in 1948 (two years after passage of the FTCA), Congress omitted the word "forever" from the Tucker Act's statute of limitations; since then, it has provided simply that untimely claims "shall be barred." 28 U.S.C. § 2501; see § 2501, 62 Stat. 976. No party contends that change makes any difference to the resolution of these cases.
See, e.g.,§ 6 of the Portal-to-Portal Act of 1947, 61 Stat. 87, 29 U.S.C. § 255 (1952 ed.); § 3 of the Automobile Dealers' Day in Court Act, 70 Stat. 1125, 15 U.S.C. § 1223 (1958 ed.); § 111(b) of the National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 725, 15 U.S.C. § 1400(b) (1970 ed.); § 7(e) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 605, 29 U.S.C. § 626(e) (1970 ed.); § 6(c) of the Agricultural Fair Practices Act of 1967, 82 Stat. 95, 7 U.S.C. § 2305(c) (1970 ed.); § 613(b) of the National Manufactured Housing Construction and Safety Standards Act of 1974, 88 Stat. 707, 42 U.S.C. § 5412(b) (1976 ed.).
Even before this Court's decision in American Pipe,Courts of Appeals had unanimously construed the Clayton Act's statute of limitations to allow equitable tolling. See General Elec. Co. v. San Antonio,334 F.2d 480, 484-485 (C.A.5 1964)(joining six other Circuits in reaching that conclusion). Similarly, every Court of Appeals to have considered the issue has found that § 6 of the Portal-to-Portal Act, which contains the same "shall be forever barred" phrase, permits hearing late claims. See, e.g., Hodgson v. Humphries,454 F.2d 1279, 1283-1284 (C.A.10 1972); Ott v. Midland-Ross Corp.,523 F.2d 1367, 1370 (C.A.6 1975); Partlow v. Jewish Orphans' Home of Southern Cal., Inc.,645 F.2d 757, 760-761 (C.A.9 1981), abrogated on other grounds by Hoffmann-La Roche Inc. v. Sperling,493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). And so too Courts of Appeals unanimously found that the ADEA's longtime (though not current) time bar containing that language was subject to tolling. See, e.g., Vance v. Whirlpool Corp.,707 F.2d 483, 489 (C.A.4 1983); Callowhill v. Allen-Sherman-Hoff Co.,832 F.2d 269, 273-274 (C.A.3 1987).
At times in the past we have too loosely conferred the "jurisdictional" label. See Steel Co. v. Citizens for Better Environment,523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). But our use of the term in this context was conscious, as we recognized in John R. Sand & Gravel Co. v. United States,552 U.S. 130, 134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008)("Justice Harlan, writing for the Court, said the statute was 'jurisdiction[al],' ... and that 'it [was] the duty of the court to raise the [timeliness] question whether it [was] done by plea or not' " (quoting Kendall v. United States,107 U.S. 123, 125, 2 S.Ct. 277, 27 L.Ed. 437 (1883))). And it was correct.
Congress has occasionally modified the FTCA's limitations provision. Initially, the Act required plaintiffs to file suit within one year of a claim's accrual, or if the claim was for less than $1,000 to present the claim to the appropriate agency within one year of accrual. FTCA § 420, 60 Stat. 845. In 1949, to relieve the hardship of the 1-year deadline, Congress enlarged the filing deadline to two years. Act of Apr. 25, ch. 92, § 1, 63 Stat. 62. Then, in 1966, it made the filing of an administrative claim with the appropriate agency a prerequisite to filing suit, and it shortened the litigation filing deadline to six months from the agency's denial of the claim. Act of July 18, §§ 2(a), 7, 80 Stat. 306, 307. But Congress has never suggested that the deadlines could be excused or enlarged by the courts.
The majority relies on the fact that we have allowed equitable tolling under "forever barred" language in the Clayton Act. See ante, at 1634. But there is no evidence that Congress meant to import thatstatute's terms into the FTCA. Nor does the Clayton Act involve the waiver of sovereign immunity for money damages against the Government. The Tucker Act, by contrast, was clearly the blueprint for the FTCA's time bar, it didinvolve a waiver of sovereign immunity, and our cases have uniformly held that its language is notsubject to equitable tolling.
Even the dissent in Bowlesrecognized Irwin's irrelevance: It cited the decision only when discussing equitable exceptions to nonjurisdictionalstatutes of limitations. 551 U.S., at 219, 127 S.Ct. 2360(opinion of Souter, J.).
We considered Irwinin John R. Sand & Gravelwhile holding that 28 U.S.C. § 2501's time limits are jurisdictional. But we did so only to rejectthe suggestion that Irwincompelled a contrary result. So there, too, Irwin's presumption did not influence the jurisdictional question. Nor did it influence the outcome in Irwinitself, where we held that equitable tolling was not available. See 498 U.S., at 96, 111 S.Ct. 453.* * *
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
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"Central Intelligence Agency",
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"Department or Secretary of Commerce",
"Comptroller of Currency",
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"Department of Justice or Attorney General",
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"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
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"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
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"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
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"Federal Housing Administration",
"Federal Home Loan Bank Board",
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"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
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"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
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"NO Admin Action",
"Processing Tax Board of Review"
] |
[
67
] |
NEW YORK et al. v. UNITED STATES et al.
NO. 343.
Argued March 3, 4, 5, 1947. —
Decided May 12, 1947.
Parker McCollester argued the cause for appellants in No. 343. With him on the brief were Kenneth L. Sater for the appellant States, Nathaniel L. Goldstein, Attorney General, and Frank J. Clark for the State of New York, Clair John Killoran, Attorney General, for the State of Delaware, James A. Emmert, Attorney General, and Karl J. Stipher, Deputy Attorney General, for the State of Indiana, Hall Hammond, Attorney General, for the State of Maryland, Foss 0. Eldere, Attorney General, and James W. Williams, Assistant Attorney General, for the State of Michigan, Walter D. Van Riper, Attorney General, and Robert Peacock, Deputy Attorney General, for the State of New Jersey, Hugh S. Jenkins, Attorney General, for the State of Ohio, John E. Martin, Attorney General, and Herbert T. Ferguson, Assistant Attorney General, for the State of Wisconsin, and Jam,es H. Duff, Attorney General, and E. A. DeLaney, Deputy Attorney General, for the Commonwealth of Pennsylvania.
Henry F. Foley argued the cause and filed a brief for appellants in No. 344.
Douglas F. Smith argued the cause for appellants in No. 345. With him on the brief were H. C. Barron, C. W. Fiddes, H. E. Boe, P. F. Gault, G. H. Muckley, Elmer B. Collins, Carson L. Taylor, Robert Thompson and D. Robert Thomas.
Edward H. Miller argued the cause for the United States and Daniel W. Knowlton argued the cause for the Interstate Commerce Commission, appellees. With them on the brief were Acting Solicitor General Washington and Assistant Attorney General Berge.
J. V. Norman argued the cause for the Southern States and Southern Governors’ Conference, appellees.
Byron M. Gray argued the cause for the State of Arkansas et al., appellees. With him on the brief were J. C. Murray for the State of Arkansas, Walter R. Johnson, Attorney General, and H. Emerson Kokjer, Deputy Attorney General, for the State of Nebraska, Neis G. Johnson, Attorney General, Neal E. Williams and James Hanley for the State of North Dakota, C. B. Bee for the State of Oklahoma, William Williamson, Assistant Attorney General, for the State of South Dakota, and Price Daniel, Attorney General, James D. Smullen and Charles D. Methews, Assistant Attorneys General, for the State of Texas.
J. A. A. Burnguist, Attorney General, and George T. Simpson filed a brief for the State of Minnesota, appellee.
Eldon S. Dummit, Attorney General, M. B. Holifield, Assistant Atorney General, J. E. Marks and L. F. Orr filed a brief on behalf of the State of Kentucky, as amicus curiae, urging affirmance.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Burton.
The orders of the Interstate Commerce Commission, which appellants seek to have set aside, resulted from two separate investigations instituted by the Commission on its own motion in 1939 to inquire into the lawfulness or unlawfulness of most of the then existing rate-making standards for interstate railroad class freight rates in the United States. One investigation related to classifications under which commodities move by rail freight.' The other related to class rates. The two investigations were consolidated and were covered by one report, as the problems of classification and of class rates are closely interrelated. The findings of the Commission as to classifications are not directly involved here. For the orders of the Commission under attack are interim orders which affect only class rates, increasing them in some areas and decreasing them in others. But a review and summary of the Commission’s findings both on classifications and on class rates are essential for an understanding of the problem.
While there are three major classification territories, there are five major rate territories. Official Territory, roughly speaking, lies east of the Mississippi and north of the Ohio and Potomac Rivers; it also includes most of Virginia. Southern Territory lies south of Official Territory and east of the Mississippi. Western Trunk-Line Territory is located approximately between Official Territory and the Rocky Mountains. Southwestern Territory lies south of Western Trunk-Line Territory and west of the Mississippi and includes Arkansas, Texas, Oklahoma, and part of Louisiana. Mountain-Pacific Territory includes Montana and New Mexico and all territory west of the Rockies. Only Mountain-Pacific Territory is not involved in these cases.
The three major classifications are Official, Southern and Western. But there is great lack of uniformity in the classifications. The problem is one with which the Commission has long wrestled. But prior to the present investigation its chief accomplishment in this field had been to establish classification uniformity within the separate territories. National classification uniformity was still in the main lacking. Many differences between classifications on a particular rating are matters of substance'; others are matters of nomenclature. Moreover, there has been a tendency among carriers to work against the evolution of uniform classifications by making exceptions which remove commodities from the classifications for rate-making purposes.
Section 1 (4) of the Interstate Commerce Act as amended, 24 Stat. 379, 54 Stat. 899,900,49 U. S. C. § 1 (4) provides that it shall be the duty of common carriers to establish just and reasonable classifications applicable to through freight rates and charges. Section 1(6) prohibits every unjust and unreasonable classification. Section 3 (1) prohibits discrimination. And § 15 (1) empowers the Commission to prescribe just, fair, and reasonable classifications, after a finding that existing classifications are unlawful. The Commission found that the existing classifications are unlawful and will continue to be unlawful until there is national uniformity of classification. It found that differences in the applicable classifications affect the levels of the class rates as much as or more, in some instances, than the differences in the levels of the class rate scales themselves. It found that shippers in one territory pay more than shippers in another territory on the same article because of classification differences; that territorial boundaries separating classification territories are artificial and cause serious complications; that where geographic conditions produce divergent costs, revenue requirements, or other conditions requiring rate adjustments, the adjustments should be made not in the basic classification itself but in the rate levels or by the creation of legitimate exceptions to the classification; that amongst the classifications there was no real uniformity of classification ratings although the same classification principles are applicable throughout the nation. It concluded that without such uniformity it is impossible to maintain just and reasonable relationships between class rates for competing commodities; that it is feasible for the carriers to establish a uniform classification. The Commission gave the railroads the opportunity to take the initiative in preparing the new uniform classification— an invitation which, we are advised, has been accepted.
Prior to this proceeding the Commission made four major class rate investigations — one for each of the rate territories except Mountain-Pacific. These established class rate structures on a regional basis, i. e. they established some degree of uniformity in class rates within each territory or subdivision of a territory. But they did not deal with interterritorial class rates by harmonizing regional rate adjustments one with the other. As a result there are separate interterritorial rate structures applicable to freight traffic moving from one territory into another.
These territorial class rate structures are exceedingly complicated. There is no basic uniformity amongst them and they are computed by varying formulae.
The Commission found that class rates within Southern, Southwestern and Western Trunk-Line territories, and from those territories to Official Territory, were generally much higher, article for article, than the rates within Official Territory. It found that higher class rates have impeded the development and movement of class rate freight within Southern, Southwestern and Western Trunk-Line territories and from those territories to Official Territory. It concluded that neither the comparative costs of transportation service nor variations in the consists and volume of traffic within the territories justified those differences in the class rates. The Commission also determined that equalization of class rates is not dependent on equalization of non-class rates and that interterri-torial rate problems can be solved only by establishing substantial uniformity in class ratings and rates.
Section 1 (4) and (5) (a) of the Act require rates and charges to be just and reasonable. The Commission found that the intraterritorial class rates applicable to the territories in question and the interterritorial class rates between the territories violate those provisions.
Section 3 (1) of the Act outlaws undue or unreasonable preferences or advantages to any region, district, or territory. The Commission found that the relation between the interterritorial class rates to Official Territory from the other territories in question and the intraterritorial class rates within Official Territory results in an unreasonable preference to Official Territory as a whole, and to shippers and receivers of freight located there, in violation of § 3 (1). The Commission, acting pursuant to its authority under § 15 (1) of the Act, prescribed reasonable and nondiscriminatory class rates to cure the preference found to exist, the new rates to become applicable simultaneously with the new revised classification which, as we have noted, the Commission ordered to be established.
But time will be required to formulate a uniform classification. And the Commission concluded that pending completion of that undertaking certain interim readjustments in the existing basis of class rates, based on existing classifications, could be made — readjustments which would be just and reasonable, and which would reduce to a minimum the preferences and prejudices which the Commission found to be unlawful in the existing system. It determined that the several intraterritorial freight-rate structures should be brought closer to the same level and be constructed on the same pattern or scheme. It concluded that as many differences as possible between the interterritorial rates and the intraterritorial rates should be eliminated. It accordingly ordered that existing interstate class rates applicable to freight traffic moving at the classification ratings within Southern, Southwestern, and Western Trunk-Line territories, interterritorially between those territories, and interterritorially between each of those territories and Official Territory, be reduced 10 per cent subject to qualifications not important here. It also ordered that interstate class rates for freight traffic moving at classification ratings within Official Territory be increased 10 per cent, subject to qualifications not relevant to our problem. It found the new interim class rates just and reasonable. 262 I. C. C. 447, supplemental report, 2641. C. C. 41.
The new interim rates were ordered to become effective January 1, 1946. Prior to that date, New York and other northern States, appellants in No. 343, filed their petition in the District Court to set aside the orders of the Commission. A statutory three judge court was convened and a temporary injunction was issued preventing the orders from going into effect. 38 Stat. 208, 220, 28 U. S. C. § 47. The Governors of the six New England States (three of whose successors in office have been substituted as appellants in No. 344) intervened on the side of the plaintiffs, as did most of the appellants in No. 345. The Commission and others intervened on the side of the United States. Appellants in No. 345, including most of the western railroads, also filed their petition in the District Court seeking substantially the same relief as appellants in No. 343. The cases were consolidated and tried together, the District Court receiving additional evidence offered by the western railroads. The court sustained the orders of the Commission in all respects, 65 F. Supp. 856, but continued the injunction pending appeal to this Court. Judicial Code § 210, 28 U. S. C. § 47a.
First. The principal evil at which the Interstate Commerce Act was aimed was discrimination in its various manifestations. Louisville & N. R. Co. v. United States, 282 U. S. 740, 749-750. Until 1935, § 3 (1) of the Act prohibited discrimination only against a “person, company, firm, corporation, or locality, or any particular description of traffic . . . 24 Stat. 379, 380. The question arose whether “locality” included a port insofar as the port was not a point of origin or destination but a gateway through which shipments were made. The Court held by a closely divided vote, and contrary to the ruling of the Commission, that it did not. Texas & Pacific R. Co. v. United States, 289 U. S. 627. Thereafter Congress amended § 3 (1) so as to extend the prohibition against discrimination to include a “port, port district, gateway, transit point.” 49 Stat. 607. And see Albany Port Dis trict Commission v. Ahnapee & W. R. Co., 219 I. C. C. 151. That was in 1935. In 1940 Congress went further. By § 5 (b) of the Transportation Act of 1940, 54 Stat. 899, 902, known as the Ramspeck Resolution, it authorized and directed the Commission to institute an investigation into rates on commodities between points in one classification territory and points in another territory and into like rates within territories for the purpose of determining whether those rates were “unjust and unreasonable or unlawful in any other respect in and of themselves or in their relation to each other, and to enter such orders as may be appropriate for the removal of any unlawfulness which may be found to exist . . . .” Congress also extended the prohibition against discriminations by adding to § 3 (1) the words “region, district, territory.”
It is now asserted that the Commission has misunderstood its duties under these 1940 amendments. It is said that the Commission has construed this mandate of Congress to mean that identical rates, mile for mile, should be established everywhere in the country, in face of a longstanding practice of rate-making (which the legislative history of the 1940 amendments shows was not intended to be changed) that allowed differences in rates which were based on differences in the length of haul, character of the terrain, density of traffic, and other elements of the cost of service. Thus it is argued that the Commission runs afoul of Ann Arbor R. Co. v. United States, 281 U. S. 658, which involved the construction of a joint resolution of Congress directing the Commission to make an investigation to determine whether existing rates and charges were unjust, unreasonable, or unjustly discriminatory so as to give undue advantage “as between the various localities and parts of the country . . . .” 43 Stat. 801, 802. The Commission, relying on that mandate, condemned certain existing rates between California and eastern points. The Court set aside the order of the Commission, holding that the joint resolution did not purport to change the existing law but left the validity of rates to be determined by that law.
But the Commission in the present cases did not proceed on the assumption that the Ramspeck Resolution changed the substantive law. As we read its report, the Commission took the resolution only as a directive to investigate and correct violations of substantive law as it deemed that law broadened by the amendment to § 3 (1). It said:
“By the amendment to the substantive antidiscrimi-nation provisions of section 3 (1) all discriminations in the form of undue or unreasonable preference or advantage, or undue or unreasonable prejudice or disadvantage, as between regions, districts, or territories, viewed as separate entities, were brought directly within the purview of the act along with all the other inhibitions previously included. We were then authorized and directed by the other provisions mentioned to remove any such discriminations found to exist in a proper proceeding. This means that such discriminations as those mentioned which result from differences in the methods of distributing the general rate burden in the several rate-making territories, or from any other cause, if not justified upon proper consideration of recognized elements of rate making applied in the light of the amended law are unlawful and should be corrected.” 262 I. C. C. p. 692.
From this statement it is apparent that the Commission concluded that the 1940 amendment to § 3 (1) enlarged the scope of the section. The Commission, indeed, stated that “it is clear that the main purpose which Congress had in mind was to bring about a greater degree of equalization, harmony, and uniformity in the different regional or territorial rate structures of the country.” Id. p. 692. And see id. pp. 688-691. But it is suggested that discriminations based on geographic factors were outlawed prior to the 1940 amendment to § 3 (1), as evidenced by its long-standing condemnation of “undue or unreasonable prejudice or disadvantage” to any “locality” and, since 1935, to any “port, port district, gateway, transit point.” It is, moreover, suggested that even the prohibition of discriminations against shippers was broad enough all along to ban discriminations based on the geographic location of the shippers. The contention is that without a change in the law the present orders were unwarranted; it is pointed out that the class rates now condemned had been found by the Commission itself to be just and reasonable in recent years. And it is asserted that the Commission did not take its present action on a showing of changed circumstances since those times. The conclusion, therefore, is that the present orders are not warranted by § 3 (1).
. We need not determine whether, prior to the 1940 amendment, § 3 (1), by its ban on unlawful discrim-inations against a “locality,” would have permitted the Commission to eradicate regional discriminations in class rates. For whatever doubt may have existed in the law was removed by the 1940 amendment which made abundantly clear that Congress thought that the problem of regional discriminations had been neglected and that, if any such discriminations were found to. be present, they should be eradicated. But, as the Commission concedes, the addition of “region, district, territory” to § 3 (1) did not change the law respecting discrimination by authorizing uniform freight rates, mile for mile, without regard to differing costs of the service. Congress, by adding those words, made plain the duty of the Commission, in determining whether discriminatory practices exist, to consider the interests of regions, districts, and territories, and to eliminate territorial rate differences which are not justified by differences in territorial conditions. In other words Congress did not introduce a new standard of discrimination by its amendment to §3(1); it merely made clear its purpose that regions, districts, and territories should be the beneficiaries of the law against discrimination.
Second. It is argued, however, that the findings of the Commission concerning regional discriminations in class rates are not supported by substantial evidence.
The great differences betwen territorial class rate levels are shown by the following table. It gives a comparison (in cents per 100 pounds) between the first-class rate scale within Official Territory and that within each of the other territories:
These first-class intraterritorial rates are used as bases in formulating rates on other classes of freight in the respective territories.
The following tables compiled by Government counsel show the first-class rates for interterritorial movements to Official Territory from each of the other territories as compared with intraterritorial movements for approximately equal distances within Official Territory:
The disadvantage to the Southern or Western shipper who attempts to market his product in Official Territory is obvious. Thus the first of these tables shows that a Nashville shipper pays 39 cents more on each 100 pounds of freight moving to Indianapolis, Indiana than one who ships from Indianapolis to a point of substantially equal distance away (Kent, Ohio) in Official Territory. Similar disadvantages suffered by Southern and Western shippers are revealed in the other comparable interterritorial freight movements set forth in the tables.
That disadvantage is emphasized if the effects of classification differences on rates for identical commodities are considered. A comparison of rates in cents per 100 pounds for 200 miles shows that, even though shippers in the South and West have the same or lower classification ratings for identical commodities, they nevertheless on the whole pay higher charges than the shippers in Official Territory for equivalent service. Thus there are in class 100 (first class) for less-than-carload lots 2092 items common to the three classifications. In Official Classification all of these move at a rate of 80 cents per 100 pounds for a haul of 200 miles. In Southern, 2075 of these items are classified 100 and move at a rate of $1.12. Of the remaining 17 items 5 are classified in Southern in class 85 with a rate of 95, 2 in class 70 with a rate of 78, 7 in class 55 with a rate of 62,2 in class 45, with a rate of 50, 1 in class 40 with a rate of 45. In Western Trunk-Line Zone I, 2076 of the 2092 items are classified 100 with a rate of 97, 4 in 85 with a rate of 82, 10 in 70 with a rate of 68,2 in 55 with a rate of 53.
In class 100 for carload lots there are 213 common items. In Official Classification all of these move at a rate of 80 cents for a haul of 200 miles. In Southern, 199 of these items are classified 100 and move at a rate of $1.12 for 200 miles. Of the remaining 14, 7 are classified in Southern in class 85 with a rate of 95, 2 in 75 with a rate of 84, 5 in 70 with a rate of 78. In Western Trunk-Line Zone I, 202 of the 213 items are classified 100 with a rate of 97, 7 in 85 with a rate of 82, 3 in 70 with a rate of 68, 1 in 55 with a rate of 53. Additional illustrations are too numerous and detailed to include in this opinion. But the ones given are representative of the rest and show how disparities in the rate levels are aggravated when the effects of classification differences on rates are considered.
There is rather voluminous evidence in the record tendered to show the effect in concrete competitive situations of these class rate inequalities. The instances were in the main reviewed by the Commission. They are attacked here on various grounds — that some of them involved rates other than class rates, that others were testified to by shippers who made no complaint of class rates, that' others showed shippers paying higher rates yet maintaining their competitive positions and prospering. We do not stop to analyze them or discuss them beyond saying th,at some of the specific instances support what is plainly to be inferred from the figures we have summarized — that class rates within Southern, Southwestern and Western territories, and from those territories to Official Territory, are generally much higher, article for article, than the rates within Official Territory. That was the basic finding of the Commission; and it is abundantly supported by the evidence.
Thus discrimination in class rates in favor of Official Territory and against the Southern, Southwestern and Western Trunk Line territories is established. But that is not the end of the matter. For “mere discrimination does not render a rate illegal under § 3.” United States v. Illinois Central R. Co., 263 U. S. 515, 521. Section 3 condemns “any undue or unreasonable preference or advantage” and “any undue or unreasonable prejudice or disadvantage” to any territory. And, as we have said, the 1940 amendment to § 3, by its addition of “region, district, territory,” did not change the prevailing rules respecting unlawful discrimination; it merely enlarged the reach of § 3. Hence we must determine from the preexisting law whether a discrimination against a territory is obnoxious to § 3. The rule is stated in United States v. Illinois Central R. Co., supra, p. 524, as follows:
“To bring a difference in rates within the prohibition of § 3, it must be shown that the discrimination practiced is unjust when measured by the transportation standard. In other words, the difference in rates cannot be held illegal, unless it is shown that it is not justified by the cost of the respective services, by their values, or by other transportation conditions.”
It is on this principle that the' findings of the Commission under § 3 are both defended and attacked.
Third. The Commission’s findings under § 3 (1) are first challenged on the ground that there is no finding that the corresponding class rates are actually charged to or demanded of competing shippers in the several territories. That is to say, no unlawful discrimination in favor of a shipper in Official Territory and against a shipper in Southern Territory can be said to exist unless it is shown that the southern competitor is actually required to pay the higher interterritorial class rates. It is contended that the record negatives the existence of facts which could support such a finding and that no such finding was made. Reliance is placed on two circumstances. In the first place, reference is made to the effect of classification ratings on class rates which we briefly summarized above. It is noted, for example, that the southern shipper in some instances actually pays less for the shipment of the same commodity than the shipper in Official Territory, e. g., where the Southern Classification carries the commodity in a lower class, which in turn exacts a rate less than that required of the higher classification granted by Official. It is apparent from the illustrations we have given that such is true in some cases. But that is not the dominant pattern. In the vast majority of the instances the classification ratings, like the class rate structure, work to the benefit of Official Territory and against the others. But the greater reliance is placed on the second circumstance— that only a minor portion of freight moves by class rates and of that a greater percentage moves in Official Territory than in the others. This point requires a more extended answer.
The Commission, indeed, found that by reason of non-use the class rates have become obsolete and no longer serve the purposes for which they were designed. They move a relatively small amount of freight. The following table indicates the percentages of carload traffic carried at class rates within and between territories in 1942:
In September, 1940, for example, less-than-carload ratings on about 3,000 commodities were removed from the Southern Classification by classification exceptions. The great bulk of the freight moves on exception rates and commodity rates. This trend, according to the Commission, has been the result of competitive forces. The creation of the exceptions has “shorn the ratings in the classifications of much of their usefulness and proper function.” 262 I. C. C. p. 504. The record is replete with evidence supporting this finding of the Commission. And appellants seize on it as supporting their claim that since class rates have largely become paper rates, they are not the source of injury to shippers from the South and the West; that if the latter are prejudiced by the rate structure, the injury must flow from the exception rates and commodity rates not involved in this proceeding; and that in any event the case of unlawful discriminations in favor of Official Territory and against the other territories has not been founded on the actual use of disadvantageous class rates by shippers in the Southern, Southwestern, and Western Trunk-Line territories.
But that takes too narrow a view of the problem confronting the Commission. We start of course with some showing of actual discrimination against shippers by reason of their use of class rates. But the main case of discrimination made out by the record is one against regions and territories. We assume that a case of unlawful discrimination against shippers by reason of their geographic location would be an unlawful discrimination against the regions where the shipments originate. But an unlawful discrimination against regions or territories is not dependent on such a showing. As we stated in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 450, “Discriminatory rates are but one form of trade barriers.” Their effect is not only to impede established industries but to prevent the establishment of new ones, to arrest the development of a State or region, to make it difficult for an agricultural economy to evolve into an industrial one. Non-discriminatory class rates remove that barrier by offering that equality which the law was designed to afford. They insure prospective shippers not only that the rates are just and reasonable per se but that they are properly related to those of their competitors. Shippers are then not dependent on their ability to get exception rates or commodity rates after their industries are established and their shipments are ready to move. They have a basis for planning ahead by relying on a coherent rate structure reflecting competitive factors.
If a showing of discrimination against a territory or region were dependent on a showing of actual discrimination against shippers located in these sections, the case could never be made out where discriminatory rates had proved to be such effective trade barriers as to prevent the establishment of industries in those outlying regions. If that were the test, then the 1940 amendment to § 3 (1) would not have achieved its purpose. We cannot attribute such futility' to the effort made by Congress to make regions, districts and territories, as well as shippers, the beneficiaries of its anti-discrimination policy expressed in § 3 (1).
So far as the remedy is concerned, the present cases might' of course, be different if the Commission had ño power to prescribe classifications. But § 15 (1) of the Act grants it full power, on finding that a classification is “unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,” to determine and prescribe what classification will be “just, fair, and reasonable.” The Commission’s over-all conclusion was that the classifications in force and the class rates computed from them harbor inequities which result in unlawful discriminations in favor of Official Territory and against the other territories. The fact that relatively small amounts of freight move by class rates proves not that the regional and territorial discrimination is slight, but that the rate structure as constituted holds no promise of affording the various regions or territories that parity of treatment which territorial conditions warrant. The Commission in substance concluded that that result could not be achieved unless traffic was, in the main, moved on class rates. We will discuss later the appropriateness of the relief granted by the interim orders here challenged. It is sufficient here to note that the case of unlawful discrimination against these territories was chiefly founded on the absence of non-discriminatory class rates and uniform classifications which would remove the features of existing rate structures prejudicial to Southern, Southwestern, and Western Trunk-Line territories.
We are thus not primarily concerned with the adequa-cies of the Commission’s findings showing discrimination against actual shippers located in a territory (cf. Florida v. United States, 282 U. S. 194; North Carolina v. United States, 325 U. S. 507; Interstate Commerce Commission v. Mechling, 330 U. S. 567), but with prejudice to a territory as a whole.
Fourth. The inquiry of the Commission into the effect of class rates on the economic development of Southern, Southwestern, and Western Trunk-Line territories took a wide range. It concluded that prejudice to the territories in question had been established. We think that finding is supported by substantial evidence.
It is, of course, obvious that the causal connection between rate discrimination and territorial injury is not always susceptible of conclusive proof. The extent of that causal relation cannot in any case be shown with mathematical exactness. It is a matter of inference from relevant data. The Commission recognized, for example, that the fact that the South has fewer industries than the East results from a complex of causes — that the “industrial development of the East is due to many factors other than transportation services and costs, such as climate, soil, natural resources, available water power, supplies of natural gas and coal, and early settlements of population which antedated the building of railroads.” 262 I. C. C. p. 619. It noted that in 1939 freight revenues on commodities in the manufactures and miscellaneous group were but 5.3 per cent of the destination value of manufactured goods and that differences in freight charges resulting from differences in class rate levels were only a small fraction of that figure. But it nevertheless concluded that “Nearness to markets and ability to ship to markets, on a basis fairly and reasonably related to the rates of competitors, are nevertheless potent factors in the location of a manufacturing plant. In fact, rate relations are more important to the manufacturer and shipper than the levels of the rates.” 262 I. C. C. 619-620.
The great advance in industrialization of Official Territory over the other territories need not be labored, for it is obvious. Some manifestations of that development may be illustrated by the following tables:
The value added by manufacture in all industries from 1849 to 1939 is shown for all the territories by the chart on the following page.
From this chart it is apparent that Official Territory has maintained its commanding lead in spite of recent marked increases elsewhere, especially in the South. Similarly, for the period 1929 to 1939 the number of wage earners in manufacturing industries in the entire country decreased 11 per cent; in Official Territory, 12 per cent; while in the South there was an increase of 5 per cent. For the same period, values of manufactured products increased 1 per cent in the South, while they decreased 21 per cent for the entire country and 25 per cent in Official Territory. From 1930 to 1940, the number of gain-
fully occupied workers in manufacturing in Official Territory decreased from 70.5 per cent to 69.4 per cent of the nation’s total, while in the South there was an increase from 10 per cent to 11.9 per cent. A number of manufacturing activities have increased more rapidly in the South than in Official Territory, though the reverse has been true in other industries. But in spite of the growth in industrial activities in the South and West (which appellants stress heavily), the percentage comparisons are not particularly revealing because of the great disparity between the bases on which they are computed.
The fact remains that economic development in the South and West has lagged and still lags behind Official Territory. In 1940 the average annual dollar income per person employed in Official Territory was $1,988; in Southern, $940; in Southwestern, $1,177; in Western Trunk-Line, $1,411. Official has 69 per cent of all workers engaged in manufacturing in the United States and 29 per cent of all workers in extractive industries. It has, for example, a high concentration in the manufacture of steel and copper products, though less than 4 per cent of the iron ore reserves, and no reserves of metallic copper. The South and West furnish raw materials to Official and buy finished products back. They are also dependent to a great extent on the markets for their products in Official, which has over 48 per cent of the population of the country, 76 per cent of the national market for industrial machinery and raw materials, 64 per cent for all goods and sources, 62 per cent for consumer luxuries, and 53 per cent for consumer necessities. Yet the South and West suffer rate handicaps when they seek to reach those markets. One of the many illustrations will suffice. Cottonseed oil is a basic agricultural commodity. Class rates on it are 7 per cent higher from Southern to Official Territory than they are within Official Territory. If the cottonseed oil is manufactured into oleomargarine, the rates from Southern to Official Territory are 35 per cent higher than the rates within Official Territory.
It is said in reply, however, that the disparities which we have mentioned reflect only natural advantages which justify differences in rates. The great concentration of population in the East is said to show that its more favorable rates are justified by the fact that it has many more people to support the roads. The unfavorable income comparisons with the East are thought to establish one of the handicaps under which the roads in the South and West operate. It is pointed out that the heavy preponderance of the nation’s total natural resource of energy supply is located in Official Territory — 40 to 45 per cent of the total bituminous and semi-bituminous coal supply, practically all of the anthracite resources; 60 per cent of all electric energy originates there. It is said that Official Territory is the logical location for industries which use metals from other territories, since it has the natural supplies of coal. It is also pointed out that the gross income from crops and livestock in Official Territory is the highest in the country, amounting to 31 per cent of the total. From these and comparable data it is argued that the lower rates in Official Territory reflect only inherent advantages which the other territories do not enjoy. It is, therefore, argued that what the Commission has sought to do is to equalize economic advantages, to enter the field of economic planning, and to arrange a rate structure designed to relocate industries, cause a redistribution of population, and in other ways to offset the natural advantages which one territory has over another. It is asserted that such a program is unlawful under Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, 46, where the Court held that the Act, in its condemnation of discrimination, “does not attempt to equalize fortune, opportunities or abilities.” And see United States v. Illinois Central R. Co., supra, p. 524; Texas & Pacific R. Co. v. United States, supra, pp. 637-638.
We will revert to this matter when we come to consider whether territorial conditions justify the differences in rates. It is sufficient at this point to say that the record makes out a strong case for the inference that natural disadvantages alone are not responsible for the retarded development of the South and the West, that the discriminatory rate structure has also played a part. How much a part cannot be determined, for every effect is the result of many factors. But the inference of prejudice from the discriminatory rate structure is irresistible. If this discriminatory rate structure is not justified by territorial conditions, then its continued maintenance preserves not the natural advantages of one region but man-made trade barriers which have been imposed upon the country. Such a result cannot be reconciled with the great purposes of § 3 (1) as amended in 1940.
Fifth. The Commission found that conditions peculiar to the respective territories did not justify the differences in the territorial class-rate structures. In reaching that conclusion it first inquired whether the differences in the costs of furnishing the railroad service in the several rate territories justified the existing differences in the levels and patterns of the class rate scales. The basis of its inquiry was a cost study submitted by its staff. For cost analysis purposes the United States is divided into areas roughly but not exactly approximating the classification territories. Thus there are three districts: Eastern, Southern and Western. Southern district is further divided into Pocahontas region and Southern region. Eastern district plus Pocahontas region is substantially the equivalent of Official territory. In the cost study, railroads were assigned to geographical areas; expenses for individual roads were divided into groups, each group being associated with appropriate service units which included revenue car-miles, revenue gross ton-miles, and cars originated and terminated; unit costs were then obtained by dividing the aggregate of the territorial expenses in each group by the applicable territorial units; the costs of particular services were then built up from the unit costs. Costs were put into two classes — (1) out-of-pocket or variable expenses which vary directly with the kind of traffic handled; (2) constant or fixed costs not capable of assignment to particular kinds of traffic costs which normally must be borne by the various types of traffic in proportion to the ability of each to pay. The details of the cost study are too intricate and voluminous to relate here. They have been summarized by the Commission. 262 I. C. C. pp. 571-592. It should be noted, however, that allowances for return — computed at both 4 per cent and 5¾ per cent — were included among costs. The allowances for return were based on recommended rate-making values furnished by the Bureau of Valuation. The territorial cost comparisons were principally based on the 4 per cent return figure, the Commission noting that the figure was relatively close to the return earned by the carriers in the year covered by the study, viz., 1939!
To summarize very briefly, the expenses of the carriers were first broken down and translated into territorial average unit costs of performing each of the kinds of services involved in moving a specific shipment or in furnishing a given amount of transportation service in each territory. These unit costs were then multiplied by the number of units of each of the services found to be employed in moving the specific shipment or furnishing the given amount of service in the territory. The process was repeated for a series of different shipments or services sufficient to make the result representative of territorial conditions. Once the average costs for each rate territory were computed, territorial average costs were compared. The principal comparisons were based on the year 1939, although supplementary studies were also made for the periods 1930-1939, inclusive, 1937-1941, inclusive, and 1941. The territorial cost comparisons showed, for example, the costs of hauling given weight loads in a certain type of car' for given distances in each territory. They also showed the relative costs of handling the entire traffic consist of each territory. This was designed to eliminate the effects of any differences in consists of traffic between territories compared, by determining first the cost in the territory in. which it actually moved and then the cost in each of the other territories. The cost study gave consideration to freight moving for various distances in all kinds of equipment — box, hopper, gondola, tank, stock, flat, and refrigerator cars. Costs were compared for identical loads hauled in the principal types of equipment. Standard loads were then taken. The average weight loads experienced in each territory for various types of equipment were also taken. The aim was to make adjustment for the different types of equipment used and the different average loads between territories. Likewise, comparisons were made of the cost of hauling the entire consist of the traffic of one territory, at the average loads and unit costs applicable in that territory, with the cost of hauling the identical traffic at the average loads and unit costs applicable to the other territories. Comparisons were also made (for the distances the traffic actually moved, by classes of equipment, and at actual average loads) of the relative cost of hauling the consist of traffic of the entire United States, and the costs of carrying the Eastern, Southern and Western consists respectively in each of the several territories.
When it came to the Eastern district, computations were made which both excluded and included the Pocahontas region. That region, for purposes of the study, represented the operation of three railroads— Chesapeake & Ohio, Norfolk & Western, and the Virginian' — about 84 per cent of whose freight traffic is coal. For purposes of such a comparative study as this, the exclusion of Pocahontas is considered desirable, since its costs are low because of the very heavy coal tonnage.
The Commission attached principal weight to the haul of 300 miles per shipment originated, as that distance most closely approximated the length of haul in each territory in 1939. Relative territorial costs (fully distributed) for traffic moving that distance in box cars and gondola cars were as follows:
The Commission computed that on the foregoing analysis for 100, 300 and 500 miles, the fully distributed costs for the South are generally a little lower than for the East, Pocahontas excluded, while the fully distributed costs in the West exceed those of the East by from 6 to 15 per cent. Similar cost comparisons were made for the several territories for stock-car, refrigerator-car, tank-car, and flat-car traffic. Based on the actual average loads experienced for each class of equipment, the Commission found the costs for the South lower than those for the East (Pocahontas excluded) for traffic moving in all those classes of equipment. The costs for the West are also lower than those for the East as to stock-car, refrigerator-car, and flat-car traffic, but higher for tank-car traffic.
A territorial comparison of fully distributed costs for carload traffic moving 300 miles in all classes of equipment shows the following:
The fully distributed costs on identical loads in the South are 4 per cent below those for the East, excluding Pocahontas. The same comparison shows the costs for the West 6 per cent higher than those in the East, excluding Pocahontas. Costs in the South, based on the actúal average loads are 1 per cent below those for the East, excluding Pocahontas. In the West they are 8 per cent higher than the latter.
Territorial comparisons based on average net ton-mile carload costs (1930-1939) adjusted for differences in the length of haul and the consist of the traffic were made. They showed that the costs for the South are approximately 1 or 2 per cent below those for the East, excluding Pocahontas. On the other hand, those costs for the West exceeded those of the East, excluding Pocahontas by from 5 to 7 per cent.
Territorial comparisons of the less-than-carload costs were also prepared. ’ They showed that those costs are lower in the South than in the East whether assumed identical loads or actual average loads are taken, and even if Pocahontas is included in the East. They are higher in the West than in the East. If Pocahontas is excluded from the East the following table shows the comparison for a 300 mile haul:
In all territories less-than-carload traffic (1939) was carried at a deficit, Southern making the best showing, Western the worst. That is revealed in the following table:
The Commission found that the difference in fully distributed costs for all traffic between the East and the West is largely in the constant or fixed expenses and the passenger and less-than-carload deficits. Out-of-pocket expenses in the South and West are frequently as low as, or even lower than, the out-of-pocket costs in the East. The Commission further found that the increase in freight traffic volume received by the carriers subsequent to 1939 served to reduce the unit costs of transportation in the South and West in a proportionately greater degree than in the East. A somewhat larger percentage of out-of-pocket expenses in the East is variable with added traffic than is true of the South and West, due apparently to the fact that the East, with its higher traffic density, is closer to its maximum capacity than is true of the others. Thus the influence of added traffic in reducing average costs is greater in the West. On the other hand constant costs (proportionately larger in the South and West) do not increase with added traffic. As illustrative of those circumstances the Commission noted the effect of increases in 1941 of the ton-miles of revenue freight. They increased in 1941, as compared with 1939, 43 per cent in the East, 27 per cent in Pocahontas, 44 per cent in Southern and 46 per cent in Western Territory. The cost per revenue ton-mile decreased by only about 5 per cent in the East and in Pocahontas, as compared with decreases in excess of 10 per cent in the South and West.
The Commission summarized the results of the territorial cost comparisons as follows: There is little significant difference in the cost of furnishing transportation in the South as compared with the East, Pocahontas excluded. It is principally the low terminal costs in the South that account for its relatively low total costs. Based on the year 1939 and the period 1930-1939, the costs in the South are equal to or a little lower than those in the East. Based on the period 1937-1941, the costs in the South are substantially lower than those in the East. Based on the year 1939 and the period 1930-1939, the cost of rendering transportation service in the West is between 5 and 10 per cent higher than in the East, excluding Pocahontas. Based on 1941, that difference is reduced to 5 per cent or less.
The Commission recognized, of course, that carriers must obtain their revenue from the traffic which moves in their respective territories. Hence the revenue-producing or rate-bearing characteristics of the different commodities which compose the traffic of the several territories, i. e., the consists and volumes of traffic, are also important in determining whether territorial conditions justify differences in territorial rates.
The percentage distribution of total tons carried and revenue by commodity groups for 1939 is shown in the following table:
The Commission also considered the distribution of carload traffic based on revenue ton-miles for 1939 which it summarized as follows:
And the contribution which the major classes of commodities (carload lots) make in excess of out-of-pocket costs (1939) appears as follows:
A large volume of all traffic moves across territorial boundaries and therefore becomes common to two or more territories. And as respects the balance, the Commission found striking similarity in the consists of the traffic so far as its revenue-producing characteristics are concerned. The manufactures and miscellaneous commodity group embraces traffic which moves at relatively high rates, %. e., rates which, ton-mile for ton-mile, make a substantially greater than average contribution to the constant costs. The percentages of the total tons carried in that group and the corresponding percentages for revenue produced by them are quite close to each other — particularly the East and the West.
The Commission stated that the revenue-producing qualities, or rate-bearing characteristics, of the commodities which compose the traffic in those several territories constituted “the governing factor” so far as the problem of the consists and volume of traffic was concerned. 262 I. C. C. p. 694. It appraised the evidence we have related as meaning that “the differences that exist in the consists of traffic in these respective territories are not so substantial or of such character as to warrant the present differences in class rates.” Id., p. 695.
The findings of the Commission both as to the consists of the freight and the costs of rendering the service in the respective territories are vigorously challenged, especially by the western roads.
As to the consists, it is said that the eastern roads have a much heavier percentage of freight of a kind that produces excess revenue to carry the general expenses. Findings of the Commission are relied upon as showing that the eastern roads’ preponderance of high-grade traffic affords a greater source of revenue than does the high percentage of low-rate products carried by the western roads. These undisputed facts are said to disprove the Commission’s finding that the consists of traffic in the respective territories do not warrant the present differences in class rates.
These facts, however, relate to density of traffic, the effect of which is merged in the final cost figures. But the relation of the consist problem to the problem of rate structures is somewhat different. It is relevant in order to determine whether the consists of traffic are so different in the several territories that separate rate structures with different distributions of the transportation burden amongst commodities and classes of freight are necessary. It is apparent from the statistics which we have reviewed that, while there is a diversity in traffic moved in the several territories, the diversity largely disappears when commodity groups are considered. Then, also, the percentages of the total traffic in each territory which fall under the several commodity groups are not only very similar in the East, South, and West, but each group yields about the same percentage of the total revenues in each of the territories. The choice of groupings is plainly a specialized problem in transportation economics upon which the Commission is peculiarly competent to pass. Its judgment that the differences in consists between the territories do not justify the present differences in interterri-torial class rates is, indeed, an expert judgment entitled to great weight. We could not disturb its findings on the facts of this record without invading the province reserved for the expert administrative body.
As to the cost study little need be said concerning the South. Once the integrity of the cost study is assumed, the finding of the Commission that there is little significant difference in the cost of furnishing transportation in the South as compared with the East has support in the facts. Moreover, the data on rates of return and freight operating ratios, to which we will shortly refer, corroborate the conclusion reached from the cost study that the differences in class rates between the East and the South are not justified by territorial conditions. The finding that the discrimination against the South is unlawful under § 3 (1) is thus amply supported — a conclusion that the southern carriers do not challenge here.
The question is a closer one when we turn to the West. For, as we have seen, the costs in the West on the average run higher than those in the East. Based on the year 1939 and the period 1930-1939, the cost of rendering transportation service in the West is between 5 and 10 per cent higher than in the East, excluding Pocahontas. Based on 1941, that difference is reduced to 5 per cent or less.
As we have seen, the class rate structure is discriminatory as between the East and the West. The level of class rates in the West is from 30 to 59 per cent higher than that in the East. The problem of the Commission, therefore, was to determine whether that disparity is justified by territorial conditions. The Commission found that it was not so justified. The problem for us is whether the Commission had a basis for its conclusion.
While the western roads vigorously challenge the Commission’s finding, their argument is in the main directed to the point that some disparity in rates between East and West is justified by differing territorial costs. No particular effort is made to prove that those costs are a fair measure of the existing rate differences.
We start, of course, from the premise that on a subject of transportation economics, such as this one, the Commission’s judgment is entitled to great weight. The appraisal of cost figures is itself a task for experts, since these costs involve many estimates and assumptions and, unlike a problem in calculus, cannot be proved right or wrong. They are, indeed, only guides to judgment. Their weight and significance require expert appraisal.
The Commission has concluded that while cost studies are highly relevant to these rate problems they are not conclusive. It said in this case:
“Discretion and flexibility of judgment within reasonable limits have always attended the use of costs in the making of rates. Costs alone do not determine the maximum limits of rates. Neither do they control the contours of rate scales or fix the relations between rates or between rate scales. Other factors along with costs must be considered and given due weight in these aspects of rate making.” 262 I. C. C. p. 693.
In appraising the cost figures relevant here the Commission proceeded on the assumption that the 1941 traffic level is most likely to prevail in the postwar period. It therefore started with the assumption that the margin of difference between the costs in the West and those in the East was slight and not accurately measured by 1939 figures, and that if, as has been the fact, the freight carried in the West increased above that level the unit costs of transportation in the West would be reduced to a greater degree than those in the East, for reasons which we have already stated.
The Commission also had before it certain data relative to the financial condition of the various roads, data which we have not yet discussed. Thus comparative analyses of the rates of return of the roads in the several territories showed that while the western roads have had many lean years, the recent period has put them ahead of the roads in the East. The following table shows the rates of return in percentages based on the net railway operating income and the book investment, increased for cash, materials and supplies:
The Commission also considered the territorial freight operating ratios — the per cent of operating revenues from freight absorbed by operating expenses attributed to the freight. They are shown in the following table:
In light of such data the Commission said:
“Making due allowance for a substantial decline in traffic from the war peak and for the fact that in the decade preceding 1940 the earnings of the western rail respondents were relatively low, nevertheless, insofar as the prospects of traffic and revenues in the immediate future can be foreseen, there is no reason to conclude that the interim adjustment will have any serious effect upon those respondents.” 264 I. C. C. 63-64.
The Commission went on to note that intrastate class rates generally in most of the western States and many of the interstate class rates in western territory were already lower than those prescribed in the interim orders. It accordingly concluded that the western roads “cannot consistently maintain these sub-normal class rates, and continue to maintain the relatively high basis of interstate class rates . . . .” 264 I. C. C. p. 64.
Moreover, as we have already noted, class rates have to a great extent fallen into disuse. This fact is relevant here in two respects. In the first place, the orders of the Commission affect class rates and class rates alone, the Commission not dealing with exception and commodity rates by the interim action which it has taken. So far as present freight movement is concerned, the orders affect a much smaller fraction of the traffic in the West than in the East. The Commission said:
“The record does not support the contentions that the revenue needs of the western rail respondents with respect to their class-rate traffic are greater than those of the eastern rail respondents. From the carriers’ reports to us for the years 1942, 1943, as shown in our original report, and 1944, it clearly appears that there is a greater need for revenue by rail carriers in the eastern district as compared with rail carriers in the western district or in the southern region. The report shows also that a much larger percentage of the total traffic in the eastern district moves on class rates than in the western district or in the southern region.” 264 I. C. C. pp. 64-65.
In the second place, the existing rate structure singles out the class rate traffic in the West for the payment of unusually high rates. The class rate traffic is largely that of small shippers, who do not have the ability to obtain the benefit of the lower exception or commodity rates.
We cannot, therefore, treat this case as if it were one where the Commission, in spite of a showing of some increased cost in the West, reduced all freight rates to a level of equality with the East. It is a case of determining whether the discrimination against one small class of traffic is warranted by the showing of some increased cost in the West. The earning power of the carriers, their freight operating ratios, their rates of return, the estimate of the volume of traffic in the future, the nature and amount of traffic presently involved in the class rate movements are all relevant to the finding of unlawful discrimination. We cannot say that these considerations do not counterbalance or outweigh the disparity in costs between East and West. The appraisal of these numerous factors is for transportation experts. They may err. But the error, if any, is not of the egregious type which is within our reach on judicial review.
As we have noted, Interstate Commerce Commission v. Diffenbaugh, supra, p. 46, held that the Act, in its condemnation of discrimination, “does not attempt to equalize fortune, opportunities or abilities.” But the Commission made no such effort here. It eliminated inequalities in the class rates because it concluded that the differences in them were not warranted by territorial conditions. We think that the findings supporting that conclusion are based on adequate evidence.
It is argued that the comparison of rates of return and freight operating ratios overlooks the fact that both reflect the higher freight revenue level that prevails in the West. And it is urged that without the rate advantage which the western carriers now enjoy, any comparison which now appears to favor the western carriers would disappear. That argument assumes a constancy in freight traffic and on that assumption could be mathematically demonstrated. But we are dealing here with a problem of discrimination — a western rate structure which, as compared with the eastern, is not warranted by territorial conditions and which prejudices the growth and dévelopment- of the West. It would be a large order to say that the removal of that trade barrier will have no effect in increasing traffic. The assumption on which the finding of prejudice is made is, indeed, to the contrary. Moreover, that argument would protect a discriminatory rate structure from the power of revision granted the Commission under § 3 (1) by the easy assumption that without discrimination the carriers would not thrive. But that flies in the face of history and is contrary to the Commission’s expert judgment on these facts.
Sixth. An extended argument is made by the western roads, challenging the class rate reduction on less-than-carload lots. The argument is twofold — first, that the case of unlawful discrimination has not been made out for this type of class rate traffic; second, that the new less-than-carload class rates are confiscatory.
We have referred to some of the cost figures on less-than-carload lots. We have seen that those cost figures run higher in the West than in the East; that even when no constant costs common to all traffic are allocated to less-than-carload traffic, the deficit in the West is substantially higher than that in the East. The Commission noted that less-than-carload traffic as a whole is carried at a deficit in all territories, except possibly in the South. It also noted that in all territories it was not bearing its proper share of the costs of transportation; that, apart from wartime loading, it was not yielding, on the average, its out-of-pocket costs plus constant expenses solely related to less-than-carload traffic plus the cost of collection and delivery, in any territory except possibly the Southern. 2621. C. C. p. 697.
Little need be said concerning the argument that a case of unlawful discrimination has not been established in the case of less-than-carload traffic. The Commission concluded that if less-than-carload class rates were left unchanged while carload class rates in Southern, Southwestern and Western Trunk-Line territories were reduced 10 per cent, “the competitive relations between shippers shipping in less-than-carload quantities and those shipping in carloads” would be materially affected. 264 I. C. C. p. 66. Less-than-carload traffic is less than 2 per cent of total railroad freight tonnage, and much of that moves, not on class rates, but on exception rates and commodity rates. In Western Trunk-Line and Southwestern territories many intrastate and interstate class rates are now voluntarily maintained on less-than-carload traffic which are lower than the corresponding reduced interstate class rates required by the interim orders. There are other circumstances, to which we will shortly advert, which reinforce the action of the Commission in reducing class rates on less-than-carload traffic. But the ones we have mentioned are adequate to support the Commission on the discrimination phase of the problem. The Commission was dealing not with discrimination against a particular commodity but with discrimination against entire regions. It was a complete rate structure that was subject to inquiry and revision. Once the Commission concluded that unlawful discrimination existed in the main features of that rate structure, it was justified in removing it. In eliminating the discrimination and establishing the uniformity required by the law, it was warranted in making minor collateral readjustments so that the Commission itself would not in turn create new discriminations. The adjustment of the less-than-carload class rates was permissible on that ground alone. The traffic affected was only a fraction of 2 per cent of the total traffic. Without that readjustment that class of traffic would be prejudiced. With that readjustment the prejudice would be removed and the entire rate structure — intrastate and interstate— would be more nearly rationalized.
That does not, of course, answer the argument on confiscation. The latter requires more extended treatment.
The western roads in their petition for rehearing before the Commission raised the confiscation point. But in doing so they rested on the record before the Commission and tendered no additional evidence. In the District Court, however, they presented further evidence which was received over objection and considered by that court.
This, therefore, is not a case like Baltimore & Ohio R. Co. v. United States, 298 U. S. 349, 363, 371-372, where the Commission refused to receive evidence proffered on the point of confiscation. Here, as we have said, the Commission received all evidence that was offered; and when its order was announced and made known and the petition for rehearing was filed, the opportunity to tender additional evidence to bolster the confiscation point was not accepted. As stated in Manufacturers R. Co. v. United States, 246 U. S. 457, 489-490, and in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 53-54, correct practice requires that, where the opportunity exists, all pertinent evidence bearing on the issues tendered the Commission should be submitted to it in the first instance and should not be received by the District Court as though it were conducting a trial de novo. The reason is plain enough. These problems of transportation economics are complicated and involved. For example, the determination of transportation costs and their allocation among various types of trafile is not a mere mathematical exercise. Like other problems in cost accounting, it involves the exercise of judgment born of intimate knowledge of the particular activity and the making of adjustments and qualifications too subtle for the uninitiated. Moreover, the impact of a particular order on revenues and the ability of the enterprise to thrive under it are matters for judgment on the part of those who know the conditions which create the revenues and the flexibility of managerial controls. For such reasons, we stated in Board of Trade v. United States, 314 U. S. 534, 546:
“The process of rate making is essentially empiric. The stuff of the process is fluid and changing — the resultant of factors that must be valued as well as weighed. Congress has therefore delegated the enforcement of transportation policy to a permanent expert body and has charged it with the duty of being responsive to the dynamic character of transportation problems.”
Thus we think that if the additional evidence was necessary to pass on the issue of confiscation, the cause should have been remanded to the Commission for a further preliminary appraisal of the facts which bear on that question. But we do not take that course here for reasons which will shortly appear.
The Commission explained its finding that less-than-carload traffic was being carried at large deficits and was not bearing its proper share of transportation costs. That finding was based on the operation of the roads in 1939 when the average load per car of less-than-carload shipments amounted to only 4.3 tons in the West. Since 1939 there has been a substantial increase in the average loading of such shipments, which was brought about under wartime conditions and which has materially decreased the unit costs attributable to less-than-carload traffic. In the judgment of the Commission it was not shown that loadings in the immediate postwar period were likely to decline to 1939 levels. Moreover, the cost data on less-than-carload traffic related to such traffic as a whole and not solely to that moving on class rates. As we have noted, much of this traffic moves not on class rates but on exception rates and commodity rates. The class-rate traffic bears the highest rates. The past failure of this traffic, as a whole, to carry its proper share of the costs may well have been due in large measure to the maintenance of exception and commodity rates.
The western roads present elaborate analysis (based both on the Commission’s cost figures and on costs as adjusted by the evidence introduced in the District Court) which shows less-than-carload traffic largely carried at deficits irrespective of the class rate paid under the interim orders. They contend that the loading figure of 4.3 tons is the only reliable one to use in projecting the costs and revenues into the postwar period, since it was in fact the average loading prior to the war, and will be once more, as soon as the order of the Office of Defense Transportation which requires ten-ton loading is revoked. And computations are presented based on that figure which show deficits in less-than-carload traffic, deficits which are increased when the Commission’s cost figures are adjusted to reflect cost increases to January 1, 1946. All of those computations include as constant costs only those which related to this traffic. And it is pointed out that if all constant costs were included, the computed deficits would substantially increase.
On the other hand the Commission shows that on the basis of the new interim rates this traffic in the West would produce revenues in excess of out-of-pocket expenses plus 4 per cent return plus collection and delivery expenses plus loss and damage payments. That computation is based on a ten-ton loading figure. And on the basis of those types of costs, there is an excess of revenue even though the costs are increased to the January 1,1946 level. The 1939 less-than-carload costs in the West were 30 per cent greater than revenues from all such traffic. If the class-rate portion of less-than-carload traffic is taken, the costs are 81 per cent of the revenues, provided certain adjustments are made: (1) increased revenues from the increase in the minimum charge per shipment from 55 to 75 cents which the Commission authorized in this proceeding; (2) the elimination of less-than-carload traffic moving on exception, commodity, and intrastate rates; (3) a 10-ton load; and (4) a 2.47 per cent rate of return, which was the actual rate of return of 1939.
We do not stop to analyze the various computations in order to ascertain the exact relation between revenues and costs of less-than-carload traffic. That, indeed, would not be feasible on this record. For even the Commission made no attempt to determine what share of all costs should fairly be allocated to less-than-carload traffic. Hence, if the Commission had spoken its final word, and if it were believed necessary as a matter of constitutional law, see Northern Pacific R. Co. v. North Dakota, 236 U. S. 585; cf. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 602, to fix a less-than-carload class rate which produced a fair return on that particular traffic, the case would have to be remanded to the Commission for appropriate findings on this phase. The difficulty of treating the issue on the present record is illustrated in another way. Less-than-carload traffic, more than carload traffic, carries costs which to a degree are dependent on the carrier. Heavy or light loadings, speed of service, ratio of empty return cars, methods of loading freight so as to reduce damage claims, substitution of auxiliary truck service and the like turn on competitive conditions. Certainly rates need not compensate carriers for the most expensive way of handling less-than-carload service. Yet the present findings do not illuminate that problem nor provide the standard in terms of service for measuring the compensatory character of the less-than-carload class rates. And on such a problem the Commission’s highest expert judgment would be called into play.
But the Commission has not finished with this problem. In the first place, as we point out hereafter, the Commission, subsequent to the issuance of these interim orders, granted a nationwide increase in freight rates, including an increase on less-than-carload rates. The temporary injunction has prevented the interim orders reducing class rates in the West by 10 per cent from going into effect. When, therefore, the interim orders do go into effect, the actual rates chargeable presumably will be increased from the level fixed by the interim orders to the level prescribed by the recent order increasing all freight rates. Thus no loss has been suffered by the 10 per cent reduction on less-than-carload class rates; and any loss which would have been suffered by that rate reduction has probably been at least lessened, if not eliminated, by the general rate increase. Though it is argued that such is not the case, the showing is too speculative on this record for us to decide what the precise effect of the revised class rates on less-than-carload traffic will be. In the second place, as we have noted, the Commission made the present interim adjustment of class rates on less-than-carload traffic as a consequence of its reduction in carload class rates so that less-than-carload shippers would not suffer a disadvantage from the removal of the major discrimination in the class rate structure. The interim or temporary nature of the adjustment was recognized by the Commission when it admonished the carriers “to give careful consideration to the rates maintained by them on less-than-carload traffic with a view to making readjustments in ratings or rates, as promptly as possible, which will insure that the rates on such traffic are on a compensatory level.” 264 I. C. C. 66-67. And it recognized but left untouched the problem of determining what would be the proper share of transportation costs to be borne by less-than-carload traffic.
The justification the Commission had for leaving the problem in that condition at this stage of the proceedings is apparent. The carriers are now preparing the new uniform classification. They have it within their power to follow the lead suggested by the Commission and to propose classification differences between carload and less-than-carload traffic which will obviate any issue of confiscation respecting less-than-carload rates. And it has likewise left open the question of readjustment of the class rates on less-than-carload traffic when the total program, of which these interim orders are but a part, is put into effect.
Where the result of a rate order is not clearly shown to be confiscatory but its precise effect must await operations under it, the Court has refused to set it aside despite grave doubts as to its consequences. See Knoxville v. Knoxville Water Co., 212 U. S. 1, 17-18. And see Willcox v. Consolidated Gas Co., 212 U. S. 19, 54-55; Darnell v. Edwards, 244 U. S. 564, 570; Brush Electric Co. v. Galveston, 262 U. S. 443, 446; St. Joseph Stock Yards Co. v. United States, supra, p. 69. The reasons for following a like course are equally impelling here. The Commission has not placed the western roads in a strait jacket. It has made an interim reduction on less-than-carload class rates as an incident to its removal of discriminations in carload class rates. It has indicated the course to be followed by the carriers, as a part of the overall classification and class rate problem, to make certain that these rates are compensatory. We are thus dealing with a problem which is in flux, an interim order made necessary as a result of a comprehensive revision of entire rate structures. Moreover, the conclusion to be drawn from the recent general increase in freight rates is too uncertain and speculative on this record for us to pass on the confiscation issue. See Brush Electric Co. v. Galveston, supra. The District Court amply protected appellants when it overruled their claim that the interim rates are confiscatory without prejudice to another suit to challenge the legality of those rates if, after a fair test, they prove to be below the lowest reaches of a reasonable minimum or if the permanent rates do not meet that standard. See Darnell v. Edwards, supra, p. 570.
Seventh. It was held in Texas & Pacific R. Co. v. United States, supra, p. 650, that where the Commission makes an order under § 3 to remove an unlawful discrimination, the carriers must be afforded the opportunity to “abate the discrimination by raising one. rate, lowering the other, or altering both.” But that ruling was qualified by the statement that the Commission need not follow that course in case it acts under § 15 (1). Id., p. 650, note 39. Section 1 (5) (a) of the Act provides that all charges for the transportation of property “shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.” And see § 1 (4). Section 15 (1) provides that when the Commission finds that “any individual or joint rate, fare, or charge” of a common carrier is “unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,” the Commission may determine and prescribe “what will be the just and reasonable” rate. And see § 15 (3). The words “unjustly discriminatory or unduly preferential or prejudicial” plainly refer to practices condemned by § 3 (1). A proper finding of unlawful discrimination under § 3 (1) thus enables the Commission not only to direct the carriers to eliminate the practice but also, pursuant to § 15, to prescribe the alternative. See Youngstown Sheet & Tube Co. v. United States, 295 U. S. 476. Thus the Commission in this type of situation, as in the case where intrastate commerce is involved, Georgia Public Service Commission v. United States, 283 U. S. 765, may remove unlawful dis-criminations and prescribe new rates.
In Texas & Pacific R. Co. v. United States, supra, p. 650, it was also stated that, “A carrier or group of carriers must be the common source of the discrimination — must effectively participate in both rates, if an order for the correction of the disparity is to run against it or them.” And it was held in Central R. Co. v. United States, 257 U. S. 247, 259, that mere participation in joint rates does not make connecting carriers partners in discrimination; that they can be held responsible for unjust discrimination only if each carrier has participated in some way in the practice which causes the discrimination, “as where a lower joint rate is given to one locality than to another similarly situated.” It is argued that the same, rule applies in this case since, for example, the western carriers have no control of or participation in the lower Official intraterritorial rates, although they do participate in the joint or through in ter territorial rates.
In reply it is said that carriers in Official Territory control rates within that area and also control, jointly with the carriers in each of the other territories, the rates from each of them into Official. That common source of discrimination is said to be sufficient to sustain the Commission’s action. See St. Louis Southwestern R. Co. v. United States, 245 U. S. 136; Chicago, I. & L. R. Co. v. United States, 270 U. S. 287. But we do not need to decide the question. For the principle announced in Central R. Co. v. United States and Texas & Pacific R. Co. v. United States, supra, is applicable only where the Commission is directing the carriers to remove the discrimination. Those cases hold that the Commission may not require carriers to do what they are powerless to perform. But the Court recognized in Central R. Co. v. United States, supra, p. 257, that where the Commission acts pursuant to § 1 to require carriers to establish, in connection with through routes and joint rates, reasonable rules and regulations, that problem is not involved. For then the Commission corrects the unlawful discriminatory practice in the case of each carrier by prescribing the just and reasonable rate or practice. The same is true where, as here, the Commission in order to eliminate territorial discriminations proceeds under § 15 (1) to fix new reasonable rates. If the hands of the Commission are tied and it is powerless to protect regions and territories from discrimination unless all rates involved in the rate relationship are controlled by the same carriers, then the 1940 amendment to § 3 (1) fell far short of its goal. We do not believe Congress left the Commission so impotent.
It may not be said in this case, as it was held in Texas & Pacific R. Co. v. United States, supra, p. 633, that there was no evidence of the unreasonableness of the rates, or that that question was not in issue. The Commission here found that the rates were unjust and unreasonable under § 1 and it proceeded to fix new rates under § 15 (1). The facts which establish that the differences in rates as between the several territories are not warranted by territorial conditions plainly sustain its findings under § 1.
As we have said, this proceeding pertains only to class rates, which move but a small percentage of the traffic. It is, therefore, argued that the Commission should not have made adjustments in those rates without bringing about some equalization of exception and commodity rates under which the bulk of the traffic is moved. But there is no reason in law why the Commission need tackle all evils in the rate structure or none. It may take one step at a time. Cf. United States v. Wabash R. Co., 321 U. S. 403. The 10 per cent interim rate order did not attempt to bring about complete elimination of the discriminatory features of the class rate structure. It was only an approximation of that result, the complete step awaiting the new uniform classification. But the reasons justifying that partial measure likewise support the action of the Commission in commencing with class rates when it tackled the problem of territorial discriminations.
Eighth. A different problem is presented when we turn to the 10 per cent increase in class rates which the Commission prescribed for Official Territory. Appellants strenuously urge that this action of the Commission was unauthorized under the Act, even if the other portions of its orders were justified.
The finding of the Commission on this phase of the case was that the present class rates in Official Territory were below a just and reasonable level and should be increased 10 per cent as a part of the adjustment of the rate structure in order to remove the unlawfulness both as respects their unreasonable low level and their unduly preferential character. 262 I. C. C. 700-701, 704-705; 264 I. C. C. 62. That finding is said to be without support in the record and to lack the preliminary findings necessary to support it.
It is argued that rates are not unreasonably low in violation of § 1 unless they are either noncompensatory or otherwise threaten harmful effects upon the revenues and transportation efficiency of the carriers in question, or of their competitors. It is said, as is the fact, that no such findings were made by the Commission and that on this record there are no facts which could support such a finding.
If this were a case of determining whether existing rates passed below the lowest or above the highest reaches of reasonableness, the point might be well taken. See United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 506. But we do not have here such a revenue problem. This case presents problems in rate relationships, that is to say, problems of a discriminatory rate structure condemned by § 3 (1). The Commission may remove a discrimination effected by rates, even when they are within the zone of reasonableness, if the discrimination is forbidden by § 3 (1). As Mr. Justice Brandéis stated in United States v. Illinois Central R. Co., supra, p. 524, the mere fact that one rate is “inherently reasonable, and that the rate from competing points is not shown to be unreasonably low, does not establish that the discrimination is just. Both rates may lie within the zone of reasonableness and yet result in undue prejudice.” The Commission has the power to adjust the rates upwards and downwards, within that zone, in order to eradicate the discrimination. That power is not unlimited; there are standards which control its exercise. But as we shall see, the Commission acted within permissible limits here.
Once the Commission has found rates to be “unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,” it is empowered to prescribe rates which are “just and reasonable” or “the maximum or minimum, or maximum and minimum, to be charged . . . .” §15(1). In Youngstown Sheet & Tube Co. v. United States, supra, the Commission, acting under § 15 (1), increased rail rates by prescribing what it found' to be reasonable minimum rates. There was no finding that the existing, lower rates were not compensatory. The finding of reasonableness was premised on the grounds that “lower rates would create undue discrimination against shippers in origin districts who cannot use the water-rail route, and would tend to disrupt the rate structure, and to destroy the proper differentials between various producing districts on shipments to Ohio destinations.” P. 479. The Commission relied not only on evidence bearing upon the character of the service and cost but also on a comparison of other rates in the same or adjacent territory. The Court sustained the order saying, “The existing rate structure furnished support for the finding of reasonableness.” P. 480. In Scandrett v. United States, 32 F. Supp. 995, 996, aff’d 312 U. S. 661, the Commission had found that proposed reduced rates were “compensatory, considering all costs” but that they were below a minimum reasonable level and therefore unlawful. It took that action to prevent destructive competition between rail, water, and motor carriers. The court sustained the order. And see Jefferson Island Salt Min. Co. v. United States, 6F. 2d 315.
These cases, to be sure,, recognize the power of the Commission so to fix minimum rates as to keep in competitive balance the various types of carriers and to prevent ruinous rate wars between them. That plainly is one of the objectives of the Act, and one of the reasons why the Commission was granted the power to fix minimum rates by the Transportation Act of 1920. See H. R. Rep. No. 456, 66th Cong., 1st Sess., p. 19. Cf. Mississippi Valley Barge Co. v. United States, 292 U. S. 282. But the elimination of discrimination occupies an equally high place in the statutory scheme. And, as we have said, the power granted the Commission under § 15 (1) includes the power to prescribe rates which will substitute lawful for discriminatory rate structures. If the Commission were powerless to increase rates to a reasonable minimum in order to eliminate an unlawful discrimination, unless existing rates were shown to be non-compensatory or unless ruinous competition would result, it would in some cases be powerless to prescribe the remedy for unlawful practices. The present case is a good illustration. A 10 per cent reduction of rates in the South and West would remove only part of the discrimination. On this record it is most doubtful that a full reduction of those rates to the level of Official Territory would be warranted. Yet if the rates in Official Territory may not be increased unless the present ones are shown to be non-compensatory, discrimination against the South and West and in favor of Official Territory would continue to thrive. For shippers in Official Territory would still have a preferred rate, as compared with shippers from the South and West, in reaching the great markets of the East — a preference not shown to be warranted by territorial conditions. The raising of rates to a reasonable minimum was, therefore, as relevant here as it was in Youngstown Sheet & Tube Co. v. United States, supra, to the Commission’s task of providing a rational rate structure.
The authority of the Commission to increase rates in order to remove discrimination, even though existing rates may be compensatory, is not unlimited. Section 15a (2) of the Act provides:
“In the exercise of its power to prescribe just and reasonable rates the Commission shall give due consideration, among other factors, to the effect of rates on the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service.”
The balancing and weighing of these interests is a delicate task. “Whether a discrimination in rates or services of a carrier is undue or unreasonable has always been regarded as peculiarly a question committed to the judgment of the administrative body, based upon an appreciation of all the facts and circumstances affecting the traffic.” Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 304. And see United States v. Chicago Heights Trucking Co., 310 U. S. 344, 352-353; Barringer & Co. v. United States, 319 U. S. 1, 6-7. We may assume, however, that if the rates of return of the eastern carriers were substantially above that for the South and the West, an increase of the rates for the former would not be permissible, even in order to remove a discrimination. But, as we have seen, the rate of return in recent years has favored the southern and western carriers, as have the freight operating ratios. The Commission took those factors, as well as the others we have reviewed, into consideration in determining that an increase in rates in Official Territory was warranted. 264 I. C. C. 61-62.
Revenue needs, like costs of rendering the transportation service, are germane to the question whether differences in territorial rate structures are justified by territorial conditions. They are amongst the standards written into § 15a; they reflect the totality of conditions under which the carriers in the respective territories operate. Should the Commission fail to consider them in determining whether the discrimination inherent in the rate structures was unwarranted, it would have not completed its task. There may be differences of opinion concerning the weight to be given those factors, especially the weight to be given the rate of return in the current years as opposed to that in the preceding decade. But their significance is for the Commission to determine; and, though we had doubts, we would usurp the administrative function of the Commission if we overruled it and substituted our own appraisal of these factors.
Ninth. After the present interim orders were issued, the Commission granted a nationwide increase in all freight rates. It is argued that this rate increase has rendered the interim orders with which we are here concerned obsolete and unenforcible. It is said that in making the general rate increase, the Commission found greatly different conditions affecting transportation rates from those it found in these proceedings; that the greater increases allowed in Official Territory undo the uniformity policy on which the interim orders are framed; and that the enforcement of the interim orders in light of these changed conditions would produce results plainly not contemplated.
This is not a case where by reason of changed conditions the record is stale. The changed circumstances do not affect the issues here. Cf. Interstate Commerce Commission v. Jersey City, 322 U. S. 503, 515; United States v. Pierce Auto Lines, 327 U. S. 515, 535. To repeat, this is a proceeding to eliminate territorial rate differences not justified by territorial conditions. The general rate increase recently granted by the Commission was a revenue proceeding. Revenue adjustments can be and are superimposed on such rate structures as exist. The fact that revenue adjustments may produce lack of uniformity in rates is not inconsistent with the decision in the present case. As we said earlier, §3(1) does not dictate a policy of national uniformity in rates; it only requires that the lack of uniformity in rates among and between territories be justified by territorial conditions. The finding of the Commission, if supported by evidence, that the revenue needs of carriers in one territory demand a lower or a higher rate in that territory is a justification for a difference in rates as between that territory and other territories. The order of the Commission granting the general rate increase is not before us and we intimate no opinion on it. It is sufficient for our present purposes to say that it emphasizes the distinction between revenue and rate-relationship cases and in no way impairs the finding in the present case that the existing class-rate structure that has prevailed in the several territories stands condemned under § 3 (1). Nor is there any inherent inconsistency between the interim orders reducing class rates and the recent order increasing all rates. The latter was based on conditions in a period subsequent to the discrimination proceedings. Whether the general rate increase will require adjustments in the new permanent uniform scale which awaits the new uniform classification is a question for the Commission when the new classification is ready.
Other issues raised by appellants need not be discussed. The injunction staying the orders of the Commission is vacated and the judgment of the District Court dismissing the petitions is
Affirmed.
Commodities are grouped into classes, those commodities in each class paying the same freight rate per 100 pounds. Frequently a commodity is in several classes depending upon whether carload or less-than-carload lots are involved, and upon the method of packaging. One class is called first-class or class 100 and each other class has been fixed as a percentage, or multiple, of first-class. Thus the freight classifications involved in these cases consist of lists containing descriptions of every commodity moving by freight and the class or classes to which it is assigned, i. e., its classification rating or ratings. See 2621. C. C. pp. 465-472.
The class rates are in the form of a schedule which shows the price per 100 pounds for moving first-class freight every possible distance it may be moved. The cost of shipment for a given commodity is determined by ascertaining its classification rating, the first-class rate per 100 pounds for the haul involved, and the percentage of the first-class rate to which the classification rating in question is subject. See 2621. C. C. pp. 515-519.
There are three other kinds of rates:
Exception rates are rates resulting from the transfer of a commodity out of its regularly assigned class in the classification and into another class.
Commodity rates are special rates established for particular commodities. For purposes of these rates a commodity is not given a classification rating; the result is that the commodity rates have no fixed percentage relationships to first-class rates.
Column rates are fixed as definite percentages of first-class rates but like commodity rates they apply only to particular commodities and are assigned no regular class.
See 2621. C. C.p. 562.
Some rate territories have subdivisions in which rate differentials are applicable which vary the class rates within the territory in question.
The Official Classification applies within Official Territory and from Western Trunk-Line Territory to Official. The Southern Classification applies within Southern Territory, between Official and Southern, and from Western Trunk-Line to Southern. Western Classification includes Western Trunk-Line, Southwestern and Mountain Pacific rate territories. It applies within those three territories, between Southwestern and Official, between Southwestern and Southern, from Official to Western Trunk-Line, between Mountain Pacific and Official, from Southern to Western Trunk-Line, and between Mountain-Pacific and Southern.
Western Classification, 25 I. C. C. 442; Consolidated Classification, 54 I. C. C. 1; Southern Class Rate Investigation, 100 I. C. C. 513; Consolidated Southwestern Cases, 123 I. C. C. 203; Western Trunk-Line Class Rates, 164 I. C. C. 1; Eastern Class-Rate Investigation, 164 I. C. C. 314.
Eastern Class-Rate Investigation, 164 I. C. C. 314, 171 I. C. C. 481, 177 I. C. C. 156, 203 I. C. C. 357; Southern Class Rate Investigation, 100 I. C. C. 513, 109 I. C. C. 300, 113 I. C. C. 200, 128 I. C. C. 567; Western Trunk-Line Class Rates, 1641. C. C. 1, 173 I. C. C. 637, 178 I. C. C. 619, 181 I. C. C. 301, 196 I. C. C. 494, 197 I. C. C. 57, 204 I. C. C. 595, 210 I. C. C. 312, 246 I. C. C. 119; Consolidated Southwestern Cases, 123 I. C. C. 203, 205 I. C. C. 601. See the discussion in 262 I. C. C. pp. 526 et seq.
The consist of freight in a given territory is the totality of commodities carried in that territory.
No change in intrastate class rates was made. Nor was any change made in existing exception, column or commodity rates. See note 3, supra.
Alabama, Arkansas, Florida, Georgia, Kansas, Louisiana, Mississippi, Minnesota, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, the State Commissions of a number of these States, the Southern Governors’ Conference, and the Southeastern Association of Railroad and Utilities Commissioners.
We denied the motion of the United States to dissolve the injunction. 328 U. S. 824. See Fed. R. Civ. P. 62 (g).
The Commission advised Congress that its investigations instituted in 1939 (the basis of the orders challenged in the present cases) would be carried out pursuant to this mandate. See 262 I. C. C. p. 689.
Section 3(1) now reads:
“It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.”
It is pointed out in this connection that Texas & Pacific R. Co. v. United, States, swpra, while holding that a port was not a “locality” when it was only a gateway through which shipments were made, recognized that a port was a “locality” when it was a point of origin or destination. 289 U. S. p. 638.
Senator Wheeler who had charge of the bill on the floor of the Senate stated concerning the amendment to § 3 (1): “The previous provision with regard to ‘discrimination' simply referred to discrimination as to 'locality, port, port district, gateway, transit point’ without specifying the region, district, or territory. So we felt that by broadening the language we would at least take away that excuse, and we would provide expressly that the Commission should not discriminate in its rate structures.” 84 Cong. Rec., p. 5889.
See note 2, sufrg,.
See note 3, supra.
The Commission stated, 2621. C. C. pp. 695-696:
“Although manufacturing has grown in the South and Southwest and to a lesser extent in western trunk-line territory in the last decade, it is still vastly less in diversification and amount than in official territory. The increases in manufacturing in these territories has created a demand for rates which will at once permit the free movement of the manufactured articles, but because of the level of the intraterri-torial and interterritorial class rates, such free movement has been impeded insofar as such commodities move at class rates. In most instances it has been necessary either to reduce the class-rate levels or to establish exception or commodity rates in order that the manufactured products may move freely, and this action has frequently been subject to long delays because of the failure of individual carriers or groups of carriers to agree upon a basis.
“Official territory is the greatest consuming territory in the country, and is the market that nearly all manufacturers desire to reach, particularly where they have a surplus of their products to sell. In shipping to official territory, manufacturers in the other territories not only have the disadvantage of location, but are subjected to an additional burden in those instances where they must pay class rates on a much higher level than their competitors in official territory. This situation reacts to the disadvantage of manufacturers in the other territories, and to the advantage of those in official territory, tends to restrict the growth and expansion of the manufacturers in the other territories, and, to some extent, to prevent the establishment of new manufacturing plants in those territories.”
In Northern Pacific R. Co. v. North Dakota, 236 U. S. 585, 597, the Court stated, “The outlays that exclusively pertain to a given class of traffic must be assigned to that class, and the other expenses must be fairly apportioned. It may be difficult to make such an apportionment, but when conclusions are based on cost the entire cost must be taken into account.”
For description of exact boundaries, see 262 I. C. C. 605. For some cost purposes the United States is also , divided into 11 cost territories, various combinations of which are equivalent to the rate territories. For definitions of these cost territories, and a collection of a substantial portion of the Commission’s cost data, see S. Doc. No. 63, 78th Cong., 1st Sess.
The sum of the out-of-pocket costs plus a pro rata distribution of the constant or fixed costs is referred to as fully distributed cost.
262 I. C. C. p. 578. Similar conditions call for the exclusion of Kentucky in considering figures for the Southern region. And see General Commodity Bate Increases, 223 I. C. C. 657.
Not including Pocahontas in Eastern Territory figures. Relative costs were not shown separately for Western Trunk-Line, Southwestern, and Mountain Pacific territories, the Commission noting that differences between costs for the total West and for each of those three rate territories were relatively small. 262 I. C. C. p. 578.
Weighting given to the costs for each class of equipment was based on the volume of traffic'handled in each type of equipment in the United States. Terminal costs for each class of equipment were weighted for the total United States traffic handled in each class of equipment as measured by tons originated plus tons terminated. Line-haul costs by classes of equipment were weighted for the ton-miles of traffic handled in each class of equipment.
If Pocahontas is included in the East, the costs for the South, based on the year 1939, are between 3 and 6 per cent above those for the East; for the years 1930-1939, between 6 and 8 per cent higher; for the years 1937-1941, about the same.
If Pocahontas is included in the East for 1930-1939, the cost in the West is 18 per cent higher; based on 1939, approximately 15 per cent higher; based on 1941, about 10 per cent higher.
It is pointed out, as the Commission found, that livestock is a commodity which cannot do more than pay its own way; that products of the forest are subject to freight rates below the higher brackets; that agricultural products carry a low rate. The western district roads originated 36.91 per cent of the total tons of carload traffic originated in the United States (excluding Pocahontas) in 1941, while the eastern roads originated 47.40 per cent. To that disparity is added the fact that of the total agricultural products originated in the country in 1941 the western district roads originated 68.82 per cent as contrasted to 20.88 per cent by the eastern carriers excluding Pocahontas. For manufactures and miscellaneous tonnage the percentages were 28.06 per cent and 60.66 per cent, respectively. It is pointed out that while the difference between the percentage of agricultural products originated by the western carriers (68.82 per cent) and the percentage of manufactures and miscellaneous originated by the eastern carriers (60.66 per cent) is only 8 per cent, the eastern roads’ tonnage of the latter group of commodities (which are high-grade traffic) is almost three times the tonnage of products of agriculture originated by the western carriers. Like comparisons are made between other groups of commodities carried by the eastern and western carriers respectively. Of the total tons of animals and products originated in the country in 1941 (excluding Pocahontas), the western roads originated 63.03 per cent, the eastern, 28.51 per cent. Of the total tons of products of forests originated in 1941, the respective percentages were 58.73 per cent and 7.52 per cent. And for products of mines the percentages were 33.31 per cent and 49.85 per cent, respectively.
The 1941 revenue ton miles per mile of line were as follows:
Eastern District (excluding Pocahontas). 3,392,964
Pocahontas Region. 7,519,840
Western District. 1,358,041
Costs developed in the cost scales and the carriers’ total known expenses by cost territories were reconciled within a very close margin as appears from the following table:
The Commission stated, “Judging from the above table, whatever errors may exist in the . . . studies, they have not had the effect of overstating or understating the carriers’ costs in the aggregate to any appreciable degree.” 262 I. C. C. p. 587.
In the twelve months ended October 31, 1946, the revenue tons carried in the West were 26 per cent higher than for the year 1941, and the revenue ton miles were 43 per cent higher than in 1941.
See White, Analysis of Railroad Operations (1946) pp. 14r-15, pp. 69, et seq.; Locklin, Economics of Transportation (1938) p. 681; Miller, Inland Transportation (1933) pp. 500-502.
Constant costs solely related to less-than-carload traffic are those costs which do not vary with the volume of the traffic, but which could be eliminated if no less-than-carload traffic were handled.
See Hamilton, Cost as a Standard for Price, 4 Law & Contemp. Prob., 321, 329:
"Now and then a hardy soul, equipped with simple faith and a calculating machine, essays the adventure of rates based upon the true costs of particular services. The feat is, of course, technically impossible, for value judgments or empirical rules are essential to the distribution of overhead. A calculation of the real cost of transpbrting cotton-seed in less than carload lots from Lampassas, Texas to Kan-kakee, Illinois, is a stubborn exercise in imputation.”
Out-of-pocket costs plus solely related constant costs.
The point might also be well taken if this were a proceeding under § 13 (4) to determine whether intrastate traffic was producing its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the property devoted to interstate and intrastate transportation. Florida v. United States, supra; United States v. Louisiana, 290 U. S. 70; North Carolina v. United States, supra.
As we point out hereafter, after the present interim orders were issued, the Commission granted a general freight rate increase. See Ex parte No. 162, note 37, infra. In that case it reviewed the rates of return of the roads in the several territories based on the rates in effect at the time, which of course did not include the 10 per cent increase in class rates for Official Territory authorized in this proceeding but stayed by the District Court. What the Commission said in Ex parte No. 162 corroborates its finding in the present case concerning the greater relative revenue needs of the roads in Official Territory:
“On the basis of the interim rates in effect since July 1, 1946, the rate of return for the eastern district will be considerably less for 1946 than in the Pocahontas region, the southern region, or the western district, even though an additional increase of 5 percent in certain rates in official territory was authorized and has been in effect since July 1, 1946. It also appears that even on the basis of the increases sought in Ex Parte No. 162 and the railroads’ estimates of revenue, the rate of return in the eastern district for 1946 will be less than the rate of return in the Pocahontas region, the southern region, or the western district.” 2661. C. C. 548.
The latter estimates of the rate of return in per cent are as follows:
Eastern District. 2.06
Pocahontas Region. 6.26
Southern Region. 4.01
Western District. 3.31
Ex parte No. 162, interim report 264 I. C. C. 695, final report December 5, 1946, 266 I. C. C. 537. This increased most basic freight rates by 15 to 25 per cent. Rates on articles under the general commodity grouping of Manufactures and Miscellaneous, class rates and rates on less-than-carload and any-quantity traffic were increased 25 per cent in Official Territory, 20 per cent within and between other territories, and 22.5 per cent between Official Territory and points in other territories. Express rates were increased October 28,1946. Ex parte No. 163, 266 I. C. C. 369.
See note 37, supra.
That the order granting the general freight rate increase did not affect the orders in the present proceeding is made clear by the following provision:
“That outstanding unexpired orders in other proceedings are hereby modified so as to permit the increases in freight rates and charges herein authorized to be established; Provided., however, that the provisions of this paragraph shall not be construed to suspend or supersede or modify or affect the findings and order entered in Class Rate Investigation, 1939, Docket No. 28300, the operation of which is stayed by court order . . . .”
See Ex parte No. 163, supra, note 37.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
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] |
[
65
] |
RICE et al. v. SANTA FE ELEVATOR CORP. et al.
NO. 470.
Argued February 13, 14, 1947. —
Decided May 5, 1947.
Lee A. Freeman argued the cause and filed a brief for petitioners in No. 470.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for petitioners in No. 472. With him on the brief was George F. Barrett, Attorney General.
Leo F. Tierney argued the cause for respondents. With him on the brief were Ferre C. Watkins, Charles F. Meyers, Floyd E. Thompson, Frederick Mayer, Carl Meyer and Louis A. Kohn.
Acting Solicitor General Washington, Assistant Attorney General Berge, Robert C. Barnard, W. Carroll Hunter and Lewis A. Sigler filed a brief for the United States, as amicus curiae, urging affirmance.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Black.
Respondents in these two cases are warehousemen engaged in the business of operating public warehouses for the storage of grain in Illinois. Their warehouses are operated under licenses issued by the Secretary of Agriculture pursuant to the United States Warehouse Act, 39 Stat. 486, as amended, 7 U. S. C. § 241 et seq. The Rice partnership, one of the petitioners, is an owner, shipper, and dealer in grain and is a customer of respondents. The Illinois Commerce Commission, another petitioner, has certain regulatory jurisdiction, to which we will later refer, over public grain warehouses and other public utility companies.
In 1944 Rice filed a complaint with the Commission, charging respondents with maintaining unjust, unreasonable, and excessive rates and charges contrary to the Illinois Public Utilities Act, Ill. Rev. Stats. 1945, oh. Ill 2/3. It charged them with discrimination in storage rates in favor of the Federal Government and its agencies and against other customers, contrary to the Public Utilities Act and the Illinois Grain Warehouse Act, Ill. Rev. Stats. 1945, ch. 114, § 189 et seq. It alleged that respondents were both warehousemen and dealers in grain and by reason of those dual and conflicting positions had received undue preferences and advantages to the detriment of and in discrimination against petitioners and other customers of respondents, all in violation of provisions of the Public Utilities Act, the Grain Warehouse Act, or the Illinois Constitution of 1870, Article XIII. It charged respondents with having failed to provide reasonable, safe, and adequate public grain warehouse service and facilities, with issuing securities, with abandoning service, and with entering into various contracts with their affiliates without prior approval of the Commission; with rendering storage and warehousing services without having filed and published their rates; with operating without a state license; and with mixing public grain with grains of different grades — all in violation of provisions of the Public Utilities Act or the Grain Warehouse Act. Among the remedies sought were the fixing of just, reasonable, and non-discriminatory rates, the prohibition of unlawful discriminatory practices, the establishment of reasonable, safe and adequate storage and warehousing service, and the assessment of penalties for violations of Illinois law, including the cancellation of grain warehouse licenses.
Respondents moved to dismiss on the ground that the United States Warehouse Act superseded the authority of the Commission to regulate in the manner sought by the complaint. The Commission denied the motion and set the cause for a hearing on the merits. Thereupon respondents brought these suits in the District Court to enjoin further proceedings before the Commission and to enjoin the Attorney General of Illinois from instituting any proceedings against respondents to enforce any order of the Commission in the matter. Motions of petitioners to dismiss were granted. On appeal the Circuit Court of Appeals reversed, holding that the United States Warehouse Act superseded state regulation of respondents as to the matters presented in petitioners’ complaint. 156 F. 2d 33. The cases are here on petitions for writs of cer-tiorari which we granted because of the public importance of the questions presented.
The United States Warehouse Act, as originally enacted in 1916 (39 Stat. 486), made federal regulation in this field subservient to state regulation. It provided in § 29 that “nothing in this Act shall be construed to conflict with, or to authorize any conflict with, or in any way to impair or limit the effect or operation of the laws of any State relating to warehouses, warehousemen . . . .” And § 6 required an applicant for a federal warehouse license to provide a bond “to secure the faithful performance of his obligations as a warehouseman” under state as well as under federal law.
In 1931 Congress amended the Act. 46 Stat. 1463. Section 29 was amended to provide that although the Secretary of Agriculture “is authorized to cooperate with State officials charged with the enforcement of State laws relating to warehouses, warehousemen,” and their personnel, “the power, jurisdiction, and authority conferred upon the Secretary of Agriculture under this Act shall be exclusive with respect to all persons securing a license hereunder so long as said license remains in effect.” Section 6 was amended to omit the requirement that the bond be conditioned on compliance with requirements of state law.
First. The chief matters which are the basis of the complaint before the Commission are treated as follows by the Illinois law and by the Federal Act:
(1) Just and reasonable rates. The complaint charges that respondents’ rates are unjust and unreasonable. Under the Illinois statute public utility rates must be just and reasonable; and the Commission after a hearing may fix rates which meet that standard. §§ 32, 36, 41, Public Utilities Act. The Secretary of Agriculture is authorized by the Federal Act to license warehousemen on condition that they conform to the requirements of the Act and the rules and regulations prescribed thereunder. §§ 4, 9. Every receipt of a licensed warehouse must disclose “the rate of storage charges.” § 18 (e). Before a license is granted the applicant must file his proposed rates with the Secretary. Reg. 5, § 3. He must also file any proposed changes in rates before making them effective. Id. Rates which are “unreasonable or exorbitant” are prohibited. Id. And the Secretary may, after hearing, suspend or revoke the license if “unreasonable or exorbitant charges have been made for services rendered.” §25; Reg. 2, § 7.
(2) Discrimination. The complaint alleges that respondents discriminate against the public and in favor of the Federal Government and its agencies by granting the latter preferential storage rates. The power of the Illinois Commission to fix rates, to which we have referred, includes the power to eliminate discriminatory rates. And see Grain Warehouse Act § 15. The Federal Act requires the publication and disclosure of licensed warehousemen’s rates, as we have seen. Section 13 of the Federal Act makes it the duty of a licensed warehouseman to receive agricultural products for storage “in the usual manner in the ordinary and usual course of business, without making any discrimination between persons desiring to avail themselves of warehouse facilities.” And by § 25 the Secretary is granted authority to suspend or revoke any license of a warehouseman “for any violation of or failure to comply with any provision of this Act . . . .”
(3) Dual position of warehousemen. The complaint charged violations of Illinois law by acts of respondents in storing and dealing in their own grain while storing grain for the public. See Hannah v. People, 198 Ill. 77, 64 N. E. 776. The Federal Act requires every receipt issued for agricultural products by a licensed warehouseman to disclose “if the receipt be issued for agricultural products of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership . . . .” § 18 (i). In addition, the receipts for grain must contain “in event the relationship existing between the warehouseman and any depositor is not that of strictly disinterested custodianship, a statement setting forth the actual relationship . . . Reg. 4, § 1 (a) (3). Moreover, § 5a (7) of the Commodity Exchange Act, 49 Stat. 1491, 1498, 7 U. S. C. § 7a (7) provides that receipts issued under the United States Warehouse Act “shall be accepted in satisfaction of any futures contract . . . without discrimination and notwithstanding that the warehouseman issuing such receipts is not also licensed as a warehouseman under the laws of any State or enjoys other or different privileges than under State law . . . .”
(4) Mixing high quality public grain with inferior grain owned by respondents, delay in loading grain. The complaint charges that these practices are part of the abuses flowing from the conflicting positions of respondents as public grain warehousemen and dealers in grain. They are alleged to violate the rule of Hannah v. People, supra, and provisions of the Public Utilities Act which prohibit any preference or advantage to any person and which disallow any act of prejudice or disadvantage to any person. § 38. And see Grain Warehouse Act § 17. Section 13 of the Federal Act, as we have seen, provides that every licensed warehouseman “shall receive for storage” any agricultural product “without making any discrimination between persons desiring to avail themselves of warehouse facilities.” Section 15 provides for the inspection and grading of fungible agricultural products by federal inspectors. Section 16 permits licensed warehousemen “if authorized by agreement or by custom” to mingle fungible products with other products “of the same kind and grade.” Section 16 likewise prohibits the mixing of fungible products “of different grades.” Section 30 provides fine and imprisonment for any person who fraudulently classifies, grades, or weighs any agricultural product stored under the provisions of the Act. Section 21 provides that a warehouseman in absence of some lawful excuse shall deliver "without unnecessary delay” the stored products on proper demand.
(5) Sacrificing or rebating storage charges, retaining desirable transit tonnage, utilizing preferred storage space. These practices, charged in the complaint, are alleged to be other manifestations of the evils of a public warehouseman also being a dealer in grain. They are said to be vio-lative of the principles announced in Central Elevator Co. v. People, 174 Ill. 203, 208-209, 51 N. E. 254, 256. And these practices are said to be acts of prejudice or disadvantage outlawed by § 38 of the Public Utilities Act which we have already mentioned. On the other hand, the Federal Act, as we have seen, requires every licensed warehouseman to "receive for storage” any agricultural product “without making any discrimination between persons desiring to avail themselves of warehouse facilities.” § 13.
(6) Maintenance of unsafe and inadequate elevators; inadequate and inefficient warehouse service. The complaint alleges that as a result of these practices fire insurance premiums have become exorbitant and prohibitive; that owners of grain have suffered damages due to the deterioration of grain. The Illinois Commission is granted broad powers over the maintenance of facilities which are adequate and efficient (§§ 32, 49, Public Utilities Act) including the power to order the making of additions, extensions, repairs, improvements, or changes. Id., § 50. By § 3 of the Federal Act the Secretary of Agriculture is authorized “to determine whether warehouses for which licenses are applied for or have been issued under this Act are suitable for the proper storage of any agricultural product . . . .” Section 3 also grants the Secretary authority to prescribe the duties of warehousemen “with respect to their care of and responsibility for agricultural products stored” in licensed warehouses. No license will be granted if the warehouse is found “not suitable for the proper storage of grain.” Reg. 2, § 5. Every warehouseman must exercise “such care in regard to grain in his custody as a reasonably careful owner would exercise under the same circumstances and conditions.” Reg. 5, § 8. Every warehouseman must keep “his warehouse reasonably clean at all times and free from straw, rubbish, or accumulations of materials that will increase the fire hazard or interfere with the handling of grain.” Reg. 5, 1 15.
(7) Operating without a state license. The complaint charges that respondents may not lawfully operate without a license from Illinois. See Grain Warehouse Act § 3. The Federal Act gives the Secretary of Agriculture authority to issue licenses on terms and conditions specified. §§3,4,5.
(8) Abandonment of warehousing service. The complaint alleges that respondents have abandoned services without consent of the Illinois commission. Approval of the Commission to abandon or discontinue service is required. § 49a, Public Utilities Act. Licenses issued under the Federal Act “shall terminate as therein [§§ 4, 9] provided, or in accordance with the terms of this Act and the regulations thereunder . . . § 5. By § 25 the Secretary is authorized to suspend or revoke a license for any violation of the Act or the regulations. Among the grounds for revocation specified in the regulations is ceasing to conduct the licensed warehouse. Reg. 2, § 7.
(9) Failure to file and publish rate schedules; rendering warehousing service without filing and publishing schedules. These matters, charged in the complaint, are regulated by §§33 and 35 of the Public Utilities Act. Under the Federal Act a warehouseman must file his rate schedules before a license issues; proposed changes in them must be filed before made; the current schedule of charges must be posted in a conspicuous place in the principal office where receipts issued by the warehouseman are delivered to the public. Reg. 5, § 3; Reg. 2, § 6.
As we have seen, Congress in 1931 made the “power, jurisdiction, and authority” of the Secretary of Agriculture conferred by the Act “exclusive with respect to all persons securing a license” under the Act, so long as the license remains in effect. It is argued by respondents that § 29 should be construed to mean that the subjects which the Secretary’s authority touches may not be regulated in any way by any state agency, though the scope of federal regulation is not as broad as the regulatory scheme of the State and even though there is or may be no necessary conflict between what the state agency and the federal agency do. On the other hand, petitioners argue that since the area taken over by the Federal Government is limited, the rest may be occupied by the States; that state regulation should not give way unless there is a precise coincidence of regulation or an irreconcilable conflict between the two.
It is clear that since warehouses engaged in the storage of grain for interstate or foreign commerce are in the federal domain, United States v. Hastings, 296 U. S. 188, Congress may, if it chooses, take unto itself all regulatory authority over them (see New York Central R. Co. v. New York & Pa. Co., 271 U. S. 124), share the task with the States, or adopt as federal policy the state scheme of regulation. See Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 430-436. The question in each case is what the purpose of Congress was.
Congress legislated here in a field which the States have traditionally occupied. See Munn v. Illinois, 94 U. S. 113; Davies Warehouse Co. v. Bowles, 321 U. S. 144, 148-149. So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611; Allen-Bradley Local v. Wisconsin Employment Board, 315 U. S. 740, 749. Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n, 250 U. S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U. S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U. S. 439; Charleston & W. C. R. Co. v. Varnville Co., 237 U. S. 597; New York Central R. Co. v. Winfield, 244 U. S. 147; Napier v. Atlantic Coast Line R. Co., supra. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U. S. 538. It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide. Townsend v. Yeomans, 301 U. S. 441; Kelly v. Washington, 302 U. S. 1; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177; Union Brokerage Co. v. Jensen, 322 U. S.202.
A forceful argument is made here for the view that the ! Illinois regulatory scheme should be allowed to supplement the Federal Act and that the Illinois Commission should not be prevented from acting on any of the matters covered by Rice’s complaint, unless what the Commission ¡ does runs counter in fact to the federal policy. That is to say, the actual operation of the state system may be harmonious with the “measure of control” over ware-housemen which the Federal Act imposes. Federal Compress Co. v. McLean, 291 U. S. 17, 23. That, it is said, can only be determined after the Illinois Commission has acted.
That argument is illustrated in several ways. The Illinois Commission may fix rates; the Secretary of Agriculture cannot. He may, to be sure, suspend or revoke licenses if unreasonable or exorbitant charges are made. If the Commission fixes unreasonable or exorbitant rates, there will be a conflict with the Federal Act and the state rate order must fall. But until it is known what the Commission will do, no conflict with the Federal Act can be shown. If indeed it reduces rates, as may be presumed, no conflict with the Federal Act will likely exist. Another illustration concerns the dual position of the warehouse-men. It is pointed out that all the Federal Act requires is disclosure; that the more basic state policy of uprooting the practice of public warehousemen storing and dealing in their own grain is not inconsistent with the federal policy of disclosure. Another illustration relates to the preferential and discriminatory practices in connection with the rebate of storage charges, retention of desirable transit tonnage, and the utilization of preferred storage space. All the Federal Act requires is that warehousemen receive products for storage without making discrimina-tions between persons. What the Illinois Commission promulgates or requires, if the proceedings before it are allowed to go ahead, might indeed strengthen and bolster the federal regulatory scheme and in no way dilute, impair or oppose it. Such reasoning could be applied to each of the nine charges which we have summarized, even including, perhaps, the requirements for a state license and the filing and publishing of rate schedules. See Union Brokerage Co. v. Jensen, supra.
At first blush that construction of the Federal Act has great plausibility. It preserves intact the federal system of warehouse regulation, leaves the State free to protect local interests, and strikes down state power only in case what the State does in fact dilutes or diminishes the federal program.
But the special and peculiar history of the Warehouse Act indicates to us that such a construction would thwart the federal policy which Congress adopted when it amended the Act in 1931. Prior to that time, as we have pointed out, the Federal Act by reason of its express terms had been subservient to state laws relating to warehouses and warehousemen. Congress in 1931 found that condition unfavorable and undertook to change it. If Congress had done no more than to eliminate from § 29 the language which resulted in the Act’s subservience, there would be a strong case for holding that state regulatory systems were not to be affected unless they collided with the Act. That construction would receive reinforcement from the provision in § 29 that the Secretary “is authorized to cooperate with State officials charged with the enforcement of State laws” relating to warehouses and warehousemen. Cf. Union Brokerage Co. v. Jensen, supra, p. 209. But Congress did not choose that simple expedient. It went further and added to § 29 the mandatory words “the power, jurisdiction, and authority” of the Secretary conferred under the Act “shall be exclusive with respect to all persons” licensed under the Act. And the original provisions of § 6 requiring a bond from licensees securing the faithful performance of their obligations as warehousemen under state law were deleted.
These actions were explained in the Committee Reports.
The previous subservience of the Act to state law was said to have militated “against the full value of Federal warehouse receipts for collateral purposes.” S. Rep. No. 1775, 71st Cong., 3d Sess., p. 2. The amendment to § 6 followed “naturally” the revision of § 29. Id. The amendment to § 29 was designed to make “the Federal act independent of State laws” and to “place the Federal act on its own bottom.” Id. While a warehouseman need not operate under the Act, if he chose to be licensed under it, he would then “be authorized to operate without regard to State acts and be solely responsible to the Federal act.” Id. Warehousemen, having made their choice to operate under state or federal law, should “then be permitted to operate without interference on the part of any agency.” Id., pp. 2-3. Or, as stated by the House Committee, the purpose of the amendment to § 29 was to make the Act “independent of any State legislation on the subject.” H. R. Rep. No. 2314, 70th Cong., 2d Sess., p. 4.
That is strong language. It makes unambiguous what was meant by the deletion from § 6 of any requirement that federal licensees comply with state laws regulating warehousemen. It makes clear the significance to be attached to the special wording of § 29. The amendments to § 6 and § 29, read in light of the Committee Reports, say to us in plain terms that a licensee under the Federal Act can do business “without regard to State acts”; that the matters regulated by the Federal Act cannot be regulated by the States; that on those matters a federal licensee (so far as his interstate or foreign commerce activities are concerned) is subject to regulation by one agency and by one agency alone. That is to say, Congress did more than make the Federal Act paramount over state law in the event of conflict. It remedied the difficulties which had been encountered in the Act’s administration by terminating the dual system of regulation. Cf. First Iowa Hydro-Electric Coop. v. Federal Power Commission, 328 U. S. 152. As stated by the Supreme Court of South Dakota, warehousemen electing to come under the Federal Act need serve but one master, and that one the federal agency. In re Farmers Cooperative Assn., 69 S. D. p. 202, 8 N. W. 2d p. 562. The cooperation which the Secretary was authorized to undertake with state officials was cooperation in harmonizing the exclusively federal and the exclusively state systems of regulation.
In this view of the Act, Congress formulated a policy on numerous phases of the warehouse business. The policy on rates was not the fixing of them but control over them through issuance, suspension, or revocation of licenses. Dual or conflicting positions of warehousemen were regulated by disclosure, by general prohibitions against discrimination between customers, by control over the license. Unsafe and inadequate warehouses were protected by the power of the Secretary to determine whether the warehouses of applicants or licensees were suitable. Mixing of grain was authorized under specified conditions and prohibited under others. On each of the nine matters charged in the complaint and listed above Congress legislated. And as we read the Act, Congress in effect said that the policy which it adopted in each of the nine was exclusive of all others; and that if a licensed warehouseman complied with each requirement, he did all that he need do. He could not be required by a State to do more or additional things or conform to added regulations, even though they in no way conflicted with what was demanded of him under the Federal Act. We recently noted that Congress can act so unequivocally as to make clear that it intends no regulation except its own. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. In these fields Congress has done just that by the 1931 amendments.
Thus, by eliminating dual regulation and substituting regulation by one agency, Congress sought to achieve “fair and uniform business practices” which, as noted in Federal Compress Co. v. McLean, supra, p. 23, was the purpose of the amended Act.
The test, therefore, is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act. If it is, the federal scheme prevails though it is a more modest, less pervasive regulatory plan than that of the State. By that test each of the nine matters we have listed is beyond the reach of the Illinois Commission, since on each one Congress has declared its policy in the Warehouse Act. The provisions of Illinois law on those subjects must therefore give way by virtue of the Supremacy Clause. U. S. Const., Art. VI, Cl. 2.
Second. There were matters, other than those we have mentioned, which were charged in the complaint before the Commission.
(1) Failure to secure prior approval of the Illinois Commission for management, construction, engineering, supply, financial and other contracts between respondents and affiliates. Such approval is said to be required by § 8 (a) (3) of the Public Utilities Act.
(2) Failure to secure prior approval of contracts and leases between respondents and other public utilities. Such approval is said to be required by § 27 of the Public Utilities Act.
(3) Failure to secure approval of issuance of securities payable at periods of more than twelve months after date. Such approval is said to be required by § 21 of the Public Utilities Act.
These regulatory measures, it is said, are designed to prevent unwarranted drains on utility funds or the creation of unsound financial structures which would affect the ability of warehousemen to render adequate service at reasonable rates.
The United States Warehouse Act contains no provisions relating expressly to these three matters. And we are told that the Secretary of Agriculture has made no attempt to exercise any jurisdiction over them. But possibilities of conflict and repugnancy are conjured up. It is stated, for example, that the Secretary might determine that a warehouseman could not offer suitable warehouse service without an addition to his warehouse, that the financing of an addition might require the warehouseman to issue securities, that state disapproval of the issue might prevent the licensee from making the required additions. But it will be time to consider such asserted conflicts between the State and Federal Acts when and if they arise. Any such objections are at this stage premature. Congress has not foreclosed state action by adopting a policy of its own on these matters. Into these fields it has not moved. By nothing that it has done has it preempted those areas. And see Federal Compress Co. v. McLean, supra, p. 23. In more ambiguous situations than this we have refused to hold that state regulation was superseded by a federal law. Penn Dairies, Inc. v. Milk Control Commission, 318 U. S. 261.
We accordingly affirm in part and reverse in part the judgment of the Circuit Court of Appeals and remand the cause to the District Court for proceedings in conformity with this opinion.
So ordered.
The Chicago Board of Trade was also joined as a defendant in the proceedings before the Illinois Commerce Commission. The issues raised concerning it are considered in the companion cases decided this day, Rice v. Board of Trade, and Illinois Commerce Commission v. Board of Trade, post, p. 247.
The preferences were alleged to have arisen from the practice of respondents in “(a) Mixing high quality public grain -with inferior grain owned or acquired by the defendant warehouseman to reduce grain delivered to the point of minimum quality within the established grain trade [sic], (b) Sacrificing part of storage charges to offset purchases and sales of grain and otherwise manipulating and rebating storage charges on grain stored in private warehouse space, (c) Furnishing transit tonnage to owners of public grain of the most undesirable type, while withholding for their own use the most desirable transit tonnage, thereby placing the owners of public grain at a distinct disadvantage in merchandising grain in storage, (d) Providing for storage of public grain in old wooden warehouses carrying exorbitant insurance premium rates, while storing the warehousemen’s own grain in modern warehouses -with reasonable insurance premium rates, (e) Unduly and imprudently delaying loading of grain after return of warehouse receipt issued by the particular warehouseman, the tender of proper charges and the receipt of instructions to load grain for delivery.”
Accord: In re Farmers Co-op. Assn., 69 S. D. 191, 8 N. W. 2d 557.
The Secretary of Agriculture who recommended the 1931 amendment to § 29 gave the following reasons:
“The amendment suggested relative to section 29 aims to make the Federal warehouse act independent of any State legislation on the subject. As the law now reads, it can be nullified by State legislation. There are conflicts at present between the State laws and the Federal act. For instance, under certain State laws warehousemen are permitted to ship the products from their warehouses to a terminal or other warehouse while the receipts are outstanding. The prime purpose of the Federal warehouse act is to make it possible to finance, properly, agricultural products while in storage. No banker can safely loan on a warehouse receipt representing a product to be in a certain warehouse when, as a matter of fact, it may be moved under authority of State law to some other and distant warehouse. The Federal warehouse act, as now worded, specifically prohibits removal of the product prior to the return of the receipts. This department emphatically believes that this requirement of the Federal act is sound and the banking fraternity generally shares that same feeling. It is at once apparent to you, of course, that if the Federal act may be nullified by State laws with respect to a feature as important as this that the value of Federal warehouse receipts might be destroyed. For that reason, then, we have suggested amending section 29 so as to make the Federal warehouse act independent of any State legislation on warehousing.”
Hearing before Senate Committee on Agriculture and Forestry on H. R. 7, 71st Cong., 3d Sess., p. 10. And see id., pp. 22-26.
Independent Gin & W. Co. v. Dunwoody, 40 F. 2d 1, arose under the law as originally enacted. It was a suit brought by warehousemen, who were licensed under the Federal Act, to enjoin officials of Alabama from enforcing provisions of Alabama warehouse law. These were provisions requiring payment of a graduated license or privilege tax, for the giving of a bond, for the obtaining of a license and for submission to state regulation concerning the suitability and adequacy of the warehouse structure, the character of records to be kept, the inspection, of the warehouse buildings and the audit of the books. Agr. Code Ala. 1927, §§ 388-407. The Federal Act was construed not to exclude such state regulation.
Section 2 of the Act includes in the definition of “warehouse” every building “in which any agricultural product is or may be stored for interstate or foreign commerce . . . .”
The regulations are contained in 7 C. F. R., Part 102.
See note 2, supra.
The regulations promulgated under the Federal Act implement these provisions. Reg. 5, § 12 provides that licensed warehousemen shall accept grain for storage and deliver grain out of storage in ac-cordanee with the grades of such grain determined by a federal inspector. Reg. 5, § 16 provides that such warehousemen shall deliver to the lawful holder of a receipt grain of the grade and quantity named in the receipt. Reg. 5, § 18 provides that grain of different grades may not be mixed except, inter alia, when the identity of the grain to be stored is to be preserved.
See note 2, supra.
And see § 23 requiring reports to the Secretary “concerning such warehouse and the condition, contents, operation, and business thereof” and providing that the licensee “shall conduct said warehouse in all other respects in compliance with this Act and the rules and regulations made hereunder.”
The Senate Report also stated, p. 2:
“Bankers have repeatedly pointed out that this section of the warehouse act is its weakest feature. This amendment will clarify and remove many uncertainties from the credit man’s viewpoint. As the law now reads, for fear the Federal act may be negatived by State legislation or regulation, a banker is obliged to follow closely the laws of the 48 different States, the regulations thereunder, and the administrative rulings thereunder. This is an impossible task. The suggested amendment will place the Federal act independent of State acts and should enhance the value of receipts for collateral purposes.”
And see H. R. Rep. No. 4, 71st Cong., 1st Sess. As stated in note 4, supra, the amendment was recommended by the Secretary of Agriculture “so as to make the Federal warehouse act independent of any State legislation on warehousing.”
That is, of course, subject to those express exceptions in the Warehouse Act which subject phases of the business to state law. See e. g., §§ 18 and 20.
The basic program reflected in the Act was described in H. R. Rep. No. 60, 64th Cong., 1st Sess., p. 1, as follows:
“The outbreak of the European war emphasized the fact that the farm marketing machinery of this country is seriously weak, insufficient, and inadequate — a condition which already had been more or less recognized by students of farm economics. From a very thorough study of our system of marketing there will appear: (1) A lack of adequate storage facilities; (2) a lack of proper control and regulation of such storage systems as exist; (3) an absence of uniformity in their methods of operation and the form of receipts issued; (4) a multiplicity of standards for grading and classification, or in some cases an entire absence of such standards for grading and classification; (5) a lack of disinterested graders, classifiers, and weighers; (6) a lack of proper relationship between the storage and banking systems of the country.
“The inauguration under this bill of a permissive system of warehouses licensed and bonded under authority of the Federal Government for the storage of staple and nonperishable agricultural products upon which uniform receipts may be issued, the weights and grades of the products specified therein having been previously determined by licensed weighers and graders in accordance with Government standards, would go far in the direction of standardizing warehouse construction, storage conditions, insurance, accounting, financing, and the handling and marketing of farm products.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
MOOG INDUSTRIES, INC., v. FEDERAL TRADE COMMISSION.
No. 77.
Argued January 14, 1958.
Decided January 27, 1958.
Malcolm, I. Frank argued the cause for petitioner in No. 77. With him on the brief were Bernard Mellitz and James W. Cassedy.
Earl W. Kintner argued the causes for the Federal Trade Commission. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Hansen, Charles H. Weston and James E. Corkey.
Charles R. Sprowl argued the cause and filed a brief for respondent in No. 110.
Together with No. 110, Federal Trade Commission v. C. E. Nie-hoff & Co., on certiorari to the United States Court of Appeals for the Seventh Circuit.
Per Curiam.
The general question presented by these two cases is whether it is within the scope of the reviewing authority of a Court of Appeals to postpone the operation of a valid cease and desist order of the Federal Trade Commission against a single firm until similar orders have been entered against that firm’s competitors. In proceedings arising out of alleged violations of the price discrimination provisions of the Clayton Act, § 2, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13, two Courts of Appeals reached opposed results on this underlying issue. In order to resolve the conflict we granted certiorari, 353 U. S. 908, 982.
In No. 77, petitioner (Moog Industries, Inc.) was found by the Commission to have violated the Act and was ordered to cease and desist from further violation. 51 F. T. C. 931. Petitioner sought review in the United States Court of Appeals for the Eighth Circuit. Upon affirmance of the order, 238 F. 2d 43, petitioner moved the court to hold the entry of judgment in abeyance on the ground that petitioner would suffer serious financial loss if prohibited from engaging in pricing practices open to its competitors. The court denied the requested relief.
In No. 110, respondent (C. E. Niehoff & Co.) requested the Commission to hold in abeyance the cease and desist order that had been recommended by the hearing examiner, on the ground that respondent would have to go out of business if compelled to sell at a uniform price while its competitors were not under similar restraint. The Commission found that respondent had violated the Act and, in issuing its order, denied respondent’s request. 51 F. T. C. 1114, 1153. On review in the United States Court of Appeals for the Seventh Circuit, the Commission’s determination of statutory violation was affirmed; however, the court (one judge dissenting) directed that the cease and desist order should take effect “at such time in the future as the United States Court of Appeals for the Seventh Circuit may direct, sua sponte or upon motion of the Federal Trade Commission.” 241 F. 2d 37, 43.
In view of the scope of administrative discretion that Congress has given the Federal Trade Commission, it is ordinarily not for courts to modify ancillary features of a valid Commission order. This is but recognition of the fact that in the shaping of its remedies within the framework of regulatory legislation, an agency is called upon to exercise its specialized, experienced judgment. Thus, the decision as to whether or not an order against one firm to cease and desist from engaging in illegal price discrimination should go into effect before others are similarly prohibited depends on a variety of factors peculiarly within the expert understanding of the Commission. Only the Commission, for example, is competent to make an initial determination as to whether and to what extent there is a relevant “industry” within which the particular respondent competes and whether or not the nature of that competition is such as to indicate identical treatment of the entire industry by an enforcement agency. Moreover, although an allegedly illegal practice may appear to be operative throughout an industry, whether such appearances reflect fact and whether all firms in the industry should be dealt with in a single proceeding or should receive individualized treatment are questions that call for discretionary determination by the administrative agency. It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is .empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.
The question, then, of whether orders such as those before us should be held in abeyance until the respondents’ competitors are proceeded against is for the Commission to decide. If the question has not been raised before the Commission, as was the situation in No. 77, a reviewing court should not in any event entertain it. If the Commission has decided the question, its discretionary determination should not be overturned in the absence of a patent abuse of discretion. Accordingly, the judgment in No. 77 is affirmed, and the judgment in No. 110 is vacated and the cause remanded to the Court of Appeals with directions to affirm the order of the Commission in its entirety.
It is so ordered.
Mr. Justice Whittaker took no part in the consideration or decision of these cases.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
56
] |
MOSES LAKE HOMES, INC., et al. v. GRANT COUNTY.
No. 212.
Argued March 23, 1961.
Decided April 17, 1961.
Lyle L. Iverson argued the cause and filed a brief for petitioners.
Paul A. Klasen, Jr. argued the cause for respondent. With him on the brief was Jennings P. Felix.
Solicitor General Rankin, Assistant Attorney General Rice and I. Henry Kuts filed a brief for the United States, as amicus curiae, urging reversal.
Mr. Justice Whittaker
delivered the opinion of the Court.
Among their various contentions, petitioners sought our writ of certiorari on the ground that, although finding that the State of Washington had discriminatorily, and therefore unconstitutionally, valued and taxed their federal Wherry Act leaseholds, the Court of Appeals for the Ninth Circuit, nevertheless, sustained and enforced those taxes. 276 F. 2d 836. We granted the writ, limited to that question. 364 U. S. 814. Understanding of our decision will require a brief statement of the relevant facts of the case.
Acting pursuant to the provisions of §§801 to 809 of Title VIII of the National Housing Act (12 U. S. C. (1958 ed.) §§ 1748, 1748a to 1748h-l), the Secretary of the Air Force, on behalf of the United States, entered into a separate lease, with each of Moses Lake Homes, Inc., Larsonaire Homes, Inc., and Larson Heights, Inc., Washington corporations, demising, in each instance, a particularly described tract of land, within the Larson Air Force Base in Grant County, Washington, for a term of 75 years, unless sooner terminated by the Government, for use as a housing project at a nominal rental of $100 per year.
The leases were on the same form, and each bound the lessee to erect on its leasehold a described housing project, and to maintain and operate it throughout the life of the lease. Each lease contemplated and provided that the lessee would raise the money necessary to construct the project by an F. H. A. insured mortgage loan on its leasehold and the improvements, to be serviced and amortized by the lessee out of its rents from the housing units, which were to be rented at such rates and to such military and civilian personnel as the Commanding Officer of the air base might designate. The leases further provided that the buildings and improvements, “as completed,” would become the property of the United States and so remain, regardless of any termination of the lease, without further compensation to the lessee.
With the proceeds of F. H. A. insured mortgage loans on their respective leaseholds and the improvements, aggregating more than $6,000,000, the lessees erected the respective housing projects and undertook their management and operation as agreed in the leases.
In June 1964, the Grant County assessor placed the Moses Lake leasehold on his assessment list for taxation in the year 1955, but he did not then levy any tax against it. Moses Lake promptly sued for and obtained a decree in the Superior Court of the State enjoining the County from levying any taxes on its leasehold for the year 1955 and thereafter. Upon the County's appeal, the Supreme Court of Washington reversed on November 14, 1957, holding that the leasehold was taxable by the County, and further holding, upon its understanding of our opinion in Offutt Housing Co. v. Sarpy County, 351 U. S. 253, that it would be proper, for such purpose, to value the leasehold at “the full value of the buildings and improvements” thereon. Moses Lake Homes, Inc., v. Grant County, 51 Wash. 2d 285, 287, 317 P. 2d 1069, 1070.
Thereafter, in December 1957, the County valued these Wherry Act leaseholds on the basis of the full value of the buildings and improvements, and, acting under § 84.40.080, Revised Code of Washington, retrospectively assessed its taxes against the Moses Lake leasehold for the years 1955 through 1958, against the Larsonaire leasehold for the years 1956 through 1958, and against the Larson Heights leasehold for the years 1957 and 1958 as “omitted property” as authorized by that section. Later, the County assessed and levied its taxes against the leaseholds, on the same basis, for the year 1959.
On January 21, 1958, the County issued its distraints, and also its notices of sales of these leaseholds and the improvements thereon to be held on March 4, 1958, to satisfy its tax demands. Very soon thereafter, the United States instituted this condemnation action in the United States District Court for the Eastern District of Washington against the lessees and Grant County,. and on March 1, 1958, it filed therein its declaration of taking, and took, these leasehold estates — depositing in the registry of the court $253,000 as their estimated value — and thereupon, on motion of the United States, the court enjoined Grant County from proceeding with its tax sales pending final determination of the case.
By its answer, the County claimed, and asked the court to award it, the greater part of the deposit to satisfy its tax demands. The lessees disputed the County’s claim, contending, inter alia, that the asserted taxes were invalid because discriminatorily assessed in violation of § 511 of the Housing Act of 1956 (70 Stat. 1091, c. 1029, 42 U. S. C. (1958 ed.) § 1594, note) and in violation of the United States Constitution. That issue, among others, was litigated between those parties as adversary codefendants.
Although the District Court found that Washington’s “taxes and assessments on Wherry housing [leaseholds] are . . . levied upon a basis different and higher than [other leaseholds],” it, nevertheless, held that, but for the state court injunction, the 1955 and 1956 taxes against the Moses Lake leasehold would have been validly assessed and levied before the effective period of § 511 of the Housing Act of 1956 (June 15, 1956), and it allowed those items of the County’s claim; but it denied all other items of the claim. On appeal, the Ninth Circuit “sustained [the District] court’s finding that the method used in assessing the Moses Lake leaseholds resulted in a higher tax than would have been true in the case of a non-Wherry Act leasehold,” 276 F. 2d, at 847, but it held that “the fact that the taxes are higher does not invalidate the entire tax. It only requires that the amount collectible be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis,” 276 F. 2d, at 847, and — otherwise upholding the County’s levies against the Moses Lake leasehold for the years 1955, 1956 and 1957 — it remanded the case to the District Court to make the proper reduction in the amount of those taxes, and also for further proceedings respecting the other taxpayers and-tax years involved, except it held that the 1959 taxes were invalid because levied on the leaseholds after the United States had acquired them.
In addition to the weight properly to be accorded to the conclusions of the two courts below that Washington imposes a higher tax on Wherry Act leaseholds than on other similar leaseholds, it is eminently clear that this is so. Section 84.40.030 of the Revised Code of Washington provides that all property shall be assessed at 50 percent of its fair value, and that “Taxable leasehold estates shall be valued at such price as they would bring at a fair, voluntary sale for cash.” Consonant with that statute, the Washington Supreme Court has consistently held, save as to Wherry Act leaseholds, that all leaseholds, including leaseholds on the State’s own tax-exempt lands, are to be valued for tax purposes on the basis of their fair market value, considering their burdens as well as their benefits. Metropolitan Building Co. v. King County, 72. Wash. 47, 129 P. 883; Metropolitan Building Co. v. King County, 64 Wash. 615, 117 P. 495; Metropolitan Building Co. v. King County, 62 Wash. 409, 113 P. 1114. And see Bellingham Community Hotel Co. v. Whatcom County, 190 Wash. 609, 612-613, 70 P. 2d 301, 303, and Dexter Horton Bldg. Co. v. King County, 10 Wash. 2d 186, 116 P. 2d 507.
Even the facts of the Metropolitan cases are remarkably similar to the facts here. There the Metropolitan Company acquired a 50-year lease of land owned by the State. As required by the lease, the lessee erected very substantial improvements upon the land — funding their cost with a large issue of mortgage bonds — which improvements, immediately upon completion, became the property of the State. In the first of those cases, 62 Wash. 409, 113 P. 1114, the Court held that the leasehold should not be assessed at a “speculative” value, but at its “actual . . . value in money . . . ,” and that it was error to assess it at the value of the improvements. In the two later Metropolitan cases (64 Wash. 615, 117 P. 495; 72 Wash. 47, 129 P. 883), the court emphasized that, in determining the fair market value of the leasehold, consideration must be given to its burdens, including mortgages upon it, as well as to its benefits.
Yet, without overruling or departing those cases with respect to state-created leaseholds, the Washington Supreme Court held in Moses Lake Homes, Inc., v. Grant County, 51 Wash. 2d 285, 317 P. 2d 1069, that Wherry Act leaseholds are taxable at “the full value of the buildings and improvements” thereon. It felt bound, as it said, to apply that special valuation rule to Wherry Act leaseholds because of our opinion in Offutt Housing Co. v. Sarpy County, 351 U. S. 253. In this, the Washington Supreme Court mistakenly read and misapplied the Offutt case. Nothing in that case requires the States to assess Wherry Act leaseholds on the basis of the value of the improvements thereon. In this respect, it holds only that such a valuation is not unconstitutional per se. That case did not involve any issue or question of discrimination. It involved the law of Nebraska which requires all leaseholds in tax-exempt property to be assessed at the full value of the buildings and improvements thereon, and the Offutt case held that such might constitutionally be done. It did not hold, as the Supreme Court of Washington has construed it in the Moses Lake case, that a State might constitutionally discriminate against leaseholds on federally owned lands in favor of leaseholds on state-owned lands.
If anything is settled in the law, it is that a State may not discriminate against the Federal Government or its lessees. See, e. g., Phillips Co. v. Dumas School District, 361 U. S. 376; United States v. City of Detroit, 355 U. S. 466, 473; City of Detroit v. Murray Corp., 355 U. S. 489. In United States v. City of Detroit, supra, we said:
“It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals.” 355 U. S., at 473.
The Dumas case, supra, is closely in point and controlling. There the State of Texas taxed the leasehold estate of a government lessee at the “full value of the leased premises” (361 U. S., at 378), while it imposed “a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions.” 361 U. S., at 379. We there said, “[I]t does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself,” 361 U. S., at 385, and we held the tax to be void because it “discriminates unconstitutionally against the United States and its lessees.” 361 U. S., at 379. That case is indistinguishable from this one on the point here.
The Court of Appeals was also in error in holding that “the fact that the taxes are higher does not invalidate the entire tax [but] only requires that the amount collectible be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis” (276 F. 2d, at 847), and in remanding the case to the District Court to make the necessary adjustment. We held in the Dumas case, supra, that a discriminatory tax is void and “may not be exacted.” 361 U. S., at 387. The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one. When, as here, the tax is invalid, it “may not be exacted.” Phillips Co. v. Dumas School District, 361 U. S., at 387.
Nor is there any merit in respondent’s contention that the opinion and judgment of the Supreme Court of Washington in the Moses Lake case, supra, is res judicata of the County’s tax claims against the Moses Lake leasehold for at least the years 1955 and 1956. This is so because no tax whatever had then been assessed and levied against the Moses Lake leasehold, and hence no issue of discrimination was or could have been presented and adjudicated in that case.
Inasmuch as the taxes, presently assessed and levied, discriminate unconstitutionally against the United States and its lessees, they are void, and hence may not be exacted.
Reversed.
The Moses Lake lease was entered into on May 31, 1950, the Larsonaire lease on August 6, 1953, and the Larson Heights lease on August 2,1954.
Section 84.40.080 of the Revised Code of Washington provides, in relevant part, as follows:
“The assessor . . . shall enter in the detail and assessment list of the current year any property shown to have been omitted from the assessment list of any preceding year, at the valuation of that year, or if not then valued, at such valuation as the assessor shall determine from the preceding year .... When such an omitted assessment is made, the taxes levied thereon may be paid within one year of the due date of the taxes for the year in which the assessment is made without penalty or interest.”
The County’s tax claims against petitioners’ leaseholds were as follows: Moses Lake, $142,285.73; Larsonaire, $68,838; and Larson Heights, $47,088.
The deposited sum of $253,000 was allocated among the three petitioners as follows: Moses Lake, $126,500; Larsonaire, $65,300; and Larson Heights, $61,200. Thus, the County’s claims against the Moses Lake and Larsonaire leaseholders were greater than the amount deposited by the United States as their reasonable value. See note 3. Had the County been successful on all items of its claim, it would have received all but $14,112 of the deposited sum.
See note 4.
Section 408 of the Housing Amendments of 1955, as amended by § 511 of the Housing Act of 1956 (70 Stat. 1091, c. 1029, 42 U. S. C. (1958 ed.) § 1594, note), contains the following relevant provision:
"... Nothing contained in the provisions of title VIII of the National Housing Act in effect prior to August 11, 1955, or any related provision of law, shall be construed to exempt from State or local taxes or assessments the interest of a lessee from the Federal Government in or with respect to any property covered by a mortgage insured under such provisions of title VIII: Provided, That, no such taxes or assessments (not paid or encumbering such property or interest prior to June 15, 1956) on the interest of such lessee shall exceed the amount of taxes or assessments on other similar property of similar value . . . .”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
KIMM v. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 139.
Argued May 16-17, 1960.
Decided June 13, 1960.
Joseph Forer argued the cause for petitioner. With him on the brief was David Rein.
John F. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Philip R. Monahan.
Per Curiam.
Petitioner applied for suspension of an order directing his deportation to Korea or permitting his voluntary departure. He does not question the validity of the deportation order, but contends that he is within the eligible statutory class whose deportation may be suspended at the discretion of the Attorney General. § 19 (c) of the Immigration Act of 1917, as amended. Relief on this score was denied on the basis that the Attorney General has no power to exercise his discretion in that regard since petitioner failed to prove his eligibility under that section and the Internal Security Act of 1950.
Before the hearing officer, petitioner was asked if he was a member of the Communist Party. He refused to answer, claiming the Fifth Amendment privilege against self-incrimination. The officer refused the suspension on the grounds that petitioner had failed to prove that he was a person of good moral character and that he had not met the statutory requirement of showing that he was not a member of or affiliated with the Communist Party. The Board of Immigration Appeals affirmed on the latter ground, as did the Court of Appeals. 263 F. 2d 773.
Petitioner contends that he presented “clear affirmative evidence” as to eligibility which stands uncontradicted and that the burden was on the Government to show his affiliations, if any, with the Party. He contends that the disqualifying factor of Communist Party membership is an exception to § 19 (c) which the Government must prove. We think not. Rather than a proviso, it is an absolute disqualification, since that class of aliens is carved out of the section at its very beginning by the words “other than one to whom subsection (d) of this section is applicable.” Subsection (d) referred to aliens deportable under the Act of October 16, 1918. Section 22 of the Internal Security Act of 1950 amended the 1918 Act to include Communists, and thus terminated the discretionary authority under § 19 (c) as ta any alien who was deportable because of membership in the Communist Party; Petitioner offered no evidence on this point, although the regulations place on him the burden of proof as to “the statutory requirements precedent to the exercise of discretionary relief.” 8 CFR, 1949 ed., § 151.3 (e), as amended, 15 Fed. Reg. 7638. This regulation is corn-pletely consistent with § 19 (c). The language of that section, in contrast with the statutory provisions governing deportation, imposes the general burden of proof upon the applicant.
It follows that an applicant for suspension, “a matter of discretion and of administrative grace,” Hintopoulos v. Shaughnessy, 353 U. S. 72, 77 (1957), must, upon the request of the Attorney General, supply such information that is within his knowledge and has a direct bearing on his eligibility under the statute. The Attorney General may, of course, exercise his authority of grace through duly delegated agents. Jay v. Boyd, 351 U. S. 345 (1956). Perhaps the petitioner was justified in his personal refusal to answer — a question we do not pass upon — but this did not relieve him under the statute of the burden of establishing the authority of the Attorney General to exercise his discretion in the first place.
, _ Affirmed.
Section 19 (c) provided, in relevant part:
“In the case of any alien (other than one to whom subsection (d) of this section is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may ... (2) suspend deportation of such alien if he is not ineligible for naturalization . . . if he finds . . . (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of this Act. ...” 8 U. S. C. (1946 ed., Supp. II) § 155 (c).
Section 19 (d), as amended:
“The provisions of subsection (c) shall not be applicable in the case of any alien who is deportable under (1) the Act of October 16, 1918 (40 Stat. 1008; U. S. C., title 8, sec. 137), entitled ‘An Act to exclude and expel from the United States aliens who are members of the anarchist and similar classes,’ as amended . . . .” 54 Stat. 672, 8 U. S. C. (1946 ed.) §155 (d).
The Act of October 16, 1918, c. 186, 40 Stat. 1012, as amended by the Internal Security Act of 1950, c. 1024, § 22, 64 Stat. 1006-1008, provided in pertinent part:
“Any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“ (2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
“(C) Aliens who are members of or affiliated with (i) the Commu- ' nist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt;
“Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported ....’’
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
6
] |
UNITED STATES v. SKELLY OIL CO.
No. 280.
Argued January 15, 1969.
Decided April 21, 1969.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Rogovin, Harris Weinstein, Myron C. Baum, and Loring W. Post.
Robert L. Casey argued the cause for respondent. With him on the brief were Thomas E. Tyre, John A. Craig, and Thomas J. McCoy, Jr.
Mr. Justice Marshall
delivered the opinion of the Court.
During its tax year ending December 31,1958, respondent refunded $505,536.54 to two of its customers for overcharges during the six preceding years. Respondent, an Oklahoma producer of natural gas, had set its prices during the earlier years in accordance with a minimum price order of the Oklahoma Corporation Commission. After that order was vacated as a result of a decision of this Court, Michigan Wisconsin Pipe Line Co. v. Corporation Comm’n of Oklahoma, 355 U. S. 425 (1958), respondent found it necessary to settle a number of claims filed by its customers; the repayments in question represent settlements of two of those claims. Since respondent had claimed an unrestricted right to its sales receipts during the years 1952 through 1957, it had included the $505,536.54 in its gross income in those years. The amount was also included in respondent’s “gross income from the property” as defined in § 613 of the Internal Revenue Code of 1954, the section which allows taxpayers to deduct a fixed percentage of certain receipts to compensate for the depletion of natural resources from which they derive income. Allowable percentage depletion for receipts from oil and gas wells is fixed at 27%% of the “gross income from the property.” Since respondent claimed and the Commissioner allowed percentage depletion deductions during these years, 27%% of the receipts in question was added to the depletion allowances to which respondent would otherwise have been entitled. Accordingly, the actual increase in respondent’s taxable income attributable to the receipts in question was not $505,536.64, but only $366,513.99. Yet, when respondent made its refunds in 1958, it attempted to deduct the full $505,536.54. The Commissioner objected and assessed a deficiency. Respondent paid and, after its claim for a refund had been disallowed, began the present suit. The Government won in the District Court, 255 F. Supp. 228 (D. C. N. D. Okla. 1966), but the Court of Appeals for the Tenth Circuit reversed, 392 F. 2d 128 (1968). Upon petition by the Government, we granted certiorari, 393 U. S. 820 (1968), to consider whether the Court of Appeals decision had allowed respondent “the practical equivalent of double deduction,” Charles Ilfeld Co. v. Hernandez, 292 U. S. 62, 68 (1934), in conflict with past decisions of this Court and sound principles of tax law. We reverse.
I.
The present problem is an outgrowth of the so-called “claim-of-right” doctrine. Mr. Justice Brandeis, speaking for a unanimous Court in North American Oil Consolidated v. Burnet, 286 U. S. 417, 424 (1932), gave that doctrine its classic formulation. “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” Should it later appear that the taxpayer was not entitled to keep the money, Mr. Justice Brandéis explained, he would be entitled to a deduction in the year of repayment; the taxes due for the year of receipt would not be affected. This approach was dictated by Congress’ adoption of an annual accounting system as an integral part of the tax code. See Burnet v. Sanford & Brooks Co., 282 U. S. 359, 365-366 (1931). Of course, the tax benefit from the deduction in the year of repayment might differ from the increase in taxes attributable to the receipt; for example, tax rates might have changed, or the taxpayer might be in a different tax “bracket.” See Healy v. Commissioner, 345 U. S. 278, 284-285 (1953). But as the doctrine was originally formulated, these discrepancies were accepted as an unavoidable consequence of the annual accounting system.
Section 1341 of the 1954 Code was enacted to alleviate some of the inequities which Congress felt existed in this area. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., 86-87 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 118-119 (1954). As an alternative to the deduction in the year of repayment which prior law allowed, §1341 (a)(5) permits certain taxpayers to recompute their taxes for the year of receipt. Whenever § 1341 (a)(5) applies, taxes for the current year are to be reduced by the amount taxes were increased in the year or years of receipt because the disputed items were included in gross income. Nevertheless, it is clear that Congress did not intend to tamper with the underlying claim-of-right doctrine; it only provided an alternative for certain cases in which the new approach favored the taxpayer. When the new approach was not advantageous to the taxpayer, the old law was to apply under § 1341 (a)(4).
In this case, the parties have stipulated that § 1341 (a) (5) does not apply. Accordingly, as the courts below recognized, respondent’s taxes must be computed under § 1341 (a) (4) and thus, in effect, without regard to the special relief Congress provided through the enactment of § 1341. Nevertheless, respondent argues, and the Court of Appeals seems to have held, that the language used in § 1341 requires that respondent be allowed a deduction for the full amount it refunded to its customers. We think the section has no such significance.
In describing the situations in which the section applies, § 1341 (a)(2) talks of cases in which “a deduction is allowable for the taxable year because it was established after the close of [the year or years of receipt] that the taxpayer did not have an unrestricted right to such item . . . The “item” referred to is first mentioned in § 1341 (a)(1); it is the item included in gross income in the year of receipt. The section does not imply in any way that the “deduction” and the “item” must necessarily be equal in amount. In fact, the use of the words “a deduction” and the placement of § 1341 in subchapter Q — the subchapter dealing largely with side effects of the annual accounting system — make it clear that it is necessary to refer to other portions of the Code to discover how much of a deduction is allowable. The regulations promulgated under the section make the necessity for such a cross-reference clear. Treas. Reg. on Income Tax (1954 Code) § 1.1341-1 (26 CFR § 1.1341-1). Therefore, when § 1341 (a) (4) — the subsection applicable here — speaks of “the tax . . . computed with such deduction,” it is referring to the deduction mentioned in § 1341 (a) (2); and that deduction must be determined, not by any mechanical equation with the “item” originally included in gross income, but by reference to the applicable sections of the Code and the case law developed under those sections.
II.
There is some dispute between the parties about whether the refunds in question are deductible as losses under § 165 of the 1954 Code or as business expenses under § 162. Although in some situations the distinction may have relevance, cf. Equitable Life Ins. Co. of Iowa v. United States, 340 F. 2d 9 (C. A. 8th Cir. 1965), we do not think it makes any difference here. In either case, the Code should not be interpreted to allow respondent “the practical equivalent of double deduction,” Charles Ilfeld Co. v. Hernandez, 292 U. S. 62, 68 (1934), absent a clear declaration of intent by Congress. See United States v. Ludey, 274 U. S. 295 (1927). Accordingly, to avoid that result in this case, the deduction allowable in the year of repayment must be reduced by the percentage depletion allowance which respondent claimed and the Commissioner allowed in the years of receipt as a result of the inclusion of the later-refunded items in respondent’s “gross income from the property” in those years. Any other approach would allow respondent a total of $1.27% in deductions for every $1 refunded to its customers.
Under the annual accounting system dictated by the Code, each year’s tax must be definitively calculable at the end of the tax year. “It is the essence of any system of taxation that it should produce revenue ascertainable, and payable to the government, at regular intervals.” Burnet v. Sanford & Brooks Co., supra, at 365. In cases arising under the claim-of-right doctrine, this emphasis on the annual accounting period normally requires that the tax consequences of a receipt should not determine the size of the deduction allowable in the year of repayment. There is no requirement that the deduction save the taxpayer the exact amount of taxes he paid because of the inclusion of the item in income for a prior year. See Healy v. Commissioner, supra.
Nevertheless, the annual accounting concept does not require us to close our eyes to what happened in prior years. For instance, it is well settled that the prior year may be examined to determine whether the repayment gives rise to a regular loss or a capital loss. Arrow- smith v. Commissioner, 344 U. S. 6 (1952). The rationale for the Arrowsmith rule is easy to see; if money was taxed at a special lower rate when received, the taxpayer would be accorded an unfair tax windfall if repayments were generally deductible from receipts taxable at the higher rate applicable to ordinary income. The Court in Arrowsmith was unwilling to infer that Congress intended such a result.
This case is really no different. In essence, oil and gas producers are taxed on only 72%% of their “gross income from the property” whenever they claim percentage depletion. The remainder of their oil and gas receipts is in reality tax exempt. We cannot believe that Congress intended to give taxpayers a deduction for refunding money that was not taxed when received. Cf. O’Meara v. Commissioner, 8 T. C. 622, 634—635 (1947). Accordingly, Arrowsmith teaches that the full amount of the repayment cannot, in the circumstances of this case, be allowed as a deduction.
This result does no violence to the annual accounting system. Here, as in Arrowsmith, the earlier returns are not being reopened. And no attempt is being made to require the tax savings from the deduction to equal the tax consequences of the receipts in prior years. In addition, the approach here adopted will affect only a few cases. The percentage depletion allowance is quite unusual; unlike most other deductions provided by the Code, it allows a fixed portion of gross income to go untaxed. As a result, the depletion allowance increases in years when disputed amounts are received under claim of right; there is no corresponding decrease in the allowance because of later deductions for repayments. Therefore, if a deduction for 100% of the repayments were allowed, every time money is received and later repaid the taxpayer would make a profit equivalent to the taxes on 27%% of the amount refunded. In other situations when the taxes on a receipt do not equal the tax benefits of a repayment, either the taxpayer or the Government may, depending on circumstances, be the beneficiary. Here, the taxpayer always wins and the Government always loses. We cannot believe that Congress would have intended such an inequitable result.
The parties have stipulated that respondent is entitled to a judgment for $20,932.64 plus statutory interest for claims unrelated to the matter in controversy here; the District Court entered a judgment for that amount. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court with instructions that it be returned to the District Court for re-entry of the original District Court judgment.
Reversed and remanded.
Section 1341 (a) provides:
“If—
“(1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item;
“(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
“(3) the amount of such deduction exceeds $3,000,
“then the tax imposed by this chapter for the taxable year shall be the lesser of the following:
“(4) the tax for the taxable year computed with such deduction; or
“(5) an amount equal to—
“(A) the tax for the taxable year computed without such deduction, minus
“(B) the decrease in tax under this chapter (or the corresponding provisions of prior revenue laws) for the prior taxable year (or years) which would result solely from the exclusion of such item (or portion thereof) from gross income for such prior taxable year (or years).
“For purposes of paragraph (5)(B), the corresponding provisions of the Internal Revenue Code of 1939 shall be chapter 1 of such code (other than subchapter E, relating to self-employment income) and subchapter E of chapter 2 of such code.”
Section 1341 (b) (2) contains an exclusion covering certain eases involving sales of stock in trade or inventory. However, because of special treatment given refunds made by regulated public utilities, both parties agree that § 1341 (b) (2) is inapplicable to this case and that, accordingly, § 1341 (a) applies.
In the case of an accrual-basis taxpayer, the legislative history makes it clear that the deduction is allowable at the proper time for accrual. H. R. Rep. No. 1337, 83d Cong., 2d Sess., a294 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 451-452 (1954).
The Commissioner has long recognized that a deduction under some section is allowable. G. C. M. 16730, XV-1 Cum. Bull. 179 (1936).
The analogy would be even more striking if in Arrowsmith the individual taxpayers had not utilized the alternative tax for capital gains, as they were permitted to do by what is now § 1201 of the 1954 Code. Where the 25% alternative tax is not used, individual taxpayers are taxed at ordinary rates on 50% of their capital gains. See § 1202. In such a situation, the rule of the Arrowsmith case prevents taxpayers from deducting 100% of an item refunded when they were taxed on only 50% of it when it was received. Although Arrowsmith prevents this inequitable result by treating the repayment as a capital loss, rather than by disallowing 50% of the deduction, the policy behind the decision is applicable in this case. Here it would be inequitable to allow a 100% deduction when only 72%% was taxed on receipt.
Compare the analogous approach utilized under the “tax benefit” rule. Alice Phelan Sullivan Corp. v. United States, 180 Ct. Cl. 659, 381 F. 2d 399 (1967); see Internal Revenue Code of 1954 § 111. In keeping with the analogy, the Commissioner has indicated that the Government will only seek to reduce the deduction in the year of repayment to the extent that the depletion allowance attributable to the receipt directly or indirectly reduced taxable income. Proposed Treas. Reg. § 1.613-2 (e)(8), 33 Fed. Reg. 10702-10703 (1968).
The 10% standard deduction mentioned in Mr. Justice Stewart's dissent, post, at 697, differs in that it allows as a deduction a percentage of adjusted gross income, rather than of gross income. See § 141 ; cf. §§ 170, 213. As a result, repayments may in certain cases cause a decrease in the 10% standard deduction allowable in the year of repayment, assuming that the repayment is of the character to be deducted in calculating adjusted gross income. See § 62.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
68
] |
SERVICE STORAGE & TRANSFER CO., INC., v. VIRGINIA.
No. 92.
Argued February 26, 1959.
Decided March 30, 1959.
.Francis W.McInerny argued the cause and filed a brief for petitioner.
Robert D. Mcllwaine, III, argued the cause for respondent. On the brief were A. S. Harrison, Jr., Attorney General of Virginia, and Reno S. Harp, III, Assistant Attorney General.
Austin L. Roberts, Jr. and R. Ev'erette Kreeger filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging affirmance.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of an intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia. The shipments in question originated at Virginia points and were destined to Virginia points but were routed through Bluefield, West Virginia, where petitioner maintains its main, terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield the freight destined to Virginia was removed and consolidated with freight coming to the terminal from non-Virginia origins. It then moved back into Virginia to its destinations. • The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed but directed that the fine be reduced to $3,500 because of . a failure of the Commonwealth’s case on three of the shipments. 199 Va. 797, 102 S. E. 2d 339. Petitioner pleads that Virginia’s interpretation of its operations conflicts with its interstate certificate as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U. S. 810, to.test out the conflicting contentions. We agree with the petitioner that under the facts here the interpretation of petitioner’s interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204 (c) of the Interstate Commerce Act, 49 U. S. C. §'304 (c).
Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner’s present I. C. C. certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating . rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce:
“Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va. “Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that-part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U. S. Highway 29 and south of U.-S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U. S. Highway 60 which is within 80 miles of Bluefield, W. Va.”
Petitioner’s method of operation is uncontradicted, in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less-than-truckload shipments. In order to gather the shipments and, by combining them, make up a full truck load it operates “peddler runs” from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another while the remainder is -directed from points within to those outside that State. The freight gathered by the “peddler runs” is combined at a terminal and placed in an “over the road” tractor trailer unit and carried to Bluefield, West Virginia. There it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through “peddler runs” operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination and is “filed out” by “over the road” operation: Upon arrival at the. latter terminal it is delivered by “peddler runs” to its local destination.
■ The Commonwealth’s criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face interstate shipments, Virginia takes the position that they were clearly intrastate in character because had they been moved over direct routes none would ever have left the Commonwealth. It contends that petitioner’s circuitous and unnecessarily long routes were a mere subterfuge to escape intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth’s evidence consisted solely of maps substantiating its position that petitioner’s routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia.
On the other hand, petitioner offered .the testimony of its manager and others as to the bona fides of . its operation. It proved that it and its predecessor-operator had been carrying on its business in Virginia in a similar manner for many years and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous but claims this is because of its method of gathering less-than-truckload shipments regardless of final destination and routing them through its “gateway” terminal at Bluefield where they are assorted according to final destination. It stands uncontradicted that , its operation is not only practical, efficient and profitable, but also that the creation of this “flow of traffic” is a time-saver to the shipper since there is less time lost waiting for the making up of a full truck load. It also claims a unique service for less-than-truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries or would be obliged to ship by special truck at higher rates. While these considerations are. not controlling, they throw light on petitioner’s claim of bona fides.
In Castle v. Hayes Freight Lines, 348 U. S. 61, 63-64 (1954), we observed that “Congress in the Motor Carrier Act adopted „a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce.” We pointed out that 49 U. S. C. § 312 provides “that all certificates, permits or licenses issued by the Commission ‘shall remain in effect until suspended of terminated as herein provided’.... Under these circumstances, it would be odd if a state-could take action amounting to a suspension or revocation of an interstate carrier’s commission-granted right to operate.” To uphold' the criminal fines here assessed would be tantamount to a partial suspension of petitioner’s federally granted certificate. .Even though the questioned operations constitute only a minor, i. e., three percent, portion of the petitioner’s business, that portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical and the freight is often transported in the same vehicle. The certificate on its face covers the whole operation. In -fact, in 1953, in approving the acquisition of petitioner by another carrier, the I. C. C. expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted:
“Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U. S. Highway 29 and on the south of U. S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a. gateway.” MC-F-5361, Smith’s Transfer Corporation of Staunton, Va. — Control— Service ■ Storage and Transfer Company, Inc., 59 M. C. C. 803 (report not published.)
It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action.. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Comm’n, 163 Pa. Super. 215, 60 A. 2d 589, with Atlantic Freight Lines, Inc. — Petition for Declaratory Order, 51 M. C. C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of, the Virginia Commission’s decision, Service petitioned the I. C. C. for a declaratory order interpreting its certificate. The Commonwealth, although it had notice of the I. C. C. proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the I. C. C. issued an opinion, 71 M. C. C. 304, in which it construed petitioner’s certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia. This was but a reaffirmation of its prior interpretation of the certificate. 59 M. C. C. 803, supra. Such conflicts can best be avoided if the interpretation of I. C. C. certificates is left to the Interstate Commerce Commission.
Nor is Eichholz v. Public Service Comm’n, 306 U. S. 268 (1939) to the contrary. There Missouri revoked a carrier’s interstate permit because it-crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court’s opinion was premised on this fact rather than that the interstate operations were merely a subterfuge and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present:
“When the [Missouri] Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant’s application under the Federal Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded.” 306 U. S., at 273.
Eichholz followed naturally from the holding of the Court in Welch Co. v. New Hampshire, 306 U. S. 79 (1939), that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That, it has admittedly done here.
Finally, the Commonwealth is not helpless to act. If it believes that petitioner’s operation is not bona fide interstate but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204 (c), supra, note 2, authorizes the filing of a “complaint in writing to the Commission by any . . . State board . . . [that] any . . . carrier . . .” has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved.
The judgment is
Reversed.
ya. Code, 1950, § 56-278, provides:
“No common carrier by motor vehicle or restricted common carrier by motor vehicle not herein exempted shall engage in intrastate operation on any highway within the State without first having obtained from the Commission a certificate of public' convenience and necessity authorizing such operation, and a statement of the State Highway Commission that the law applicable to the proposed route or routes has been complied with as to size, weight, and type of vehicles to be used, and a like statement as to any increase in size, weight, and type of vehicles proposed to be operated by the applicant after such application is granted.”
That section provides:
(c) “Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or .with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.” 49 U. S. C. § 304 (c).
49 U. S..C. §303 (10) defines “interstate commerce” as including “commerce . . . between places in the same State through another State, 49 Stat. 544.
In its declaratory opinion the Commission noted:
“In the absence of any showing that petitioner’s use of its authorized route is a subterfuge to avoid State regulation, or other than a logical and normal, operation through the carrier’s headquarters, we are of the opinion that petitioner’s operations, in the manner described, constitute bona fide transportation in interstáte commerce.
“We find that the operations described between points in Virginia through Bluefield, W. Va., are bona fide operations in interstate .commerce within the authority granted to petitioner in certificate No.' MC — 30471.” Service Storage & Transfer Co., Inc. — Petition for Declaratory Order, 71 M. C. C. 304, 306.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
GOMEZ v. TOLEDO
No. 79-5601.
Argued April 16, 1980
Decided May 27, 1980
Marshall, J., delivered the opinion for a unanimous Court. RbhN-quist, J., filed a concurring statement, post, p. 642.
Michael Avery argued the cause for petitioner. With him on the brief was David Budovsky.
Federico Cedo Alzamora argued the cause and filed a brief for respondent.
Leon Friedman and Bruce J. Ennis filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Mr. Justice Marshall
delivered the opinion of the Court.
The question presented is whether, in an action brought under 42 U. S. C. § 1983 against a public official whose position might entitle him to qualified immunity, a plaintiff must allege that the official has acted in bad faith in order to state a claim for relief or, alternatively, whether the defendant must plead good faith as an affirmative defense.
I
Petitioner Carlos Rivera Gomez brought this action against respondent, the Superintendent of the Police of the Commonwealth of Puerto Rico, contending that respondent had violated his right to procedural due process by discharging him from employment with the Police Department’s Bureau of Criminal Investigation. Basing jurisdiction on 28 U. S. C. § 1343 (3), petitioner alleged the following facts in his complaint. Petitioner had been employed as an agent with the Puerto Rican police since 1968. In April 1975, he submitted a sworn statement to his supervisor in which he asserted that two other agents had offered false evidence for use in a criminal case under their investigation. As a result of this statement, petitioner was immediately transferred from the Criminal Investigation Corps for the Southern Area to Police Headquarters in San Juan, and a few weeks later to the Police Academy in Gurabo, where he was given no investigative authority. In the meantime respondent ordered an investigation of petitioner’s claims, and the Legal Division of the Police Department concluded that all of petitioner's factual allegations were true.
In April 1976, while still stationed at the Police Academy, petitioner was subpoenaed to give testimony in a criminal case arising out of the evidence that petitioner had alleged to be false. At the trial petitioner, appearing as a defense witness, testified that the evidence was in fact false. As a result of this testimony, criminal charges, filed on the basis of information furnished by respondent, were brought against petitioner for the allegedly unlawful wiretapping pf the agents’ telephones. Respondent suspended petitioner in May 1976 and discharged him without a hearing in July. In October, the District Court of Puerto Rico found no probable cause to believe that petitioner was guilty of the allegedly unlawful wiretapping and, upon appeal by the prosecution, the Superior Court affirmed. Petitioner in turn sought review of his discharge before the Investigation, Prosecution, and Appeals Commission of Puerto Rico, which, after a hearing, revoked the discharge order rendered by respondent and ordered that petitioner be reinstated with backpay.
Based on the foregoing factual allegations, petitioner brought this suit for damages, contending that his discharge violated his right to procedural due process, and that it had caused him anxiety, embarrassment, and injury to his reputation in the community. In his answer, respondent denied a number of petitioner’s allegations of fact and asserted several affirmative defenses. Respondent then moved to dismiss the complaint for failure to state a cause of action, see Fed. Rule Civ. Proc. 12(b)(6), and the District Court granted the motion. Observing that respondent was entitled to qualified immunity for acts done in good faith within the scope of his official duties, it concluded that petitioner was required to plead as part of his claim for relief that, in committing the actions alleged, respondent was motivated by bad faith. The absence of any such allegation, it held, required dismissal of the complaint. The United States Court of Appeals for the First Circuit affirmed. 602 F. 2d 1018 (1979).
We granted certiorari to resolve a conflict among the Courts of Appeals. 444 U. S. 1031 (1980). We now reverse.
II
Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U. S. C. § 1983. This statute, enacted to aid in “ The preservation of human liberty and human rights,’ ” Owen v. City of Independence, 445 U. S. 622, 636 (1980), quoting Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (Rep. Shellabarger), reflects a congressional judgment that a “damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees,” 445 U. S., at 651. As remedial legislation, § 1983 is to be construed generously to further its primary purpose. See 445 U. S., at 636.
In certain limited circumstances, we have held that public officers are entitled to a qualified immunity from damages liability under § 1983. This conclusion has been based on an unwillingness to infer from legislative silence a congressional intention to abrogate immunities that were both “well established at common law” and “compatible with the purposes of the Civil Rights Act.” 445 U. S., at 638. Findings of immunity have thus been “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, 424 U. S. 409, 421 (1976). In Pierson v. Ray, 386 U. S. 547, 555 (1967), for example, we concluded that a police officer would be “excus[ed] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” And in other contexts we have held, on the basis of “[c]ommon-law tradition . . . and strong public-policy reasons,” Wood v. Strickland, 420 U. S. 308, 318 (1975), that certain categories of executive officers should be allowed qualified immunity from liability for acts done on the basis of an objectively reasonable belief that those acts were lawful. See Procunier v. Navarette, 434 U. S. 555 (1978) (prison officials); O’Connor v. Donaldson, 422 U. S. 563 (1975) (superintendent of state hospital); Wood v. Strickland, supra (local school board members); Scheuer v. Rhodes, 416 U. S. 232 (1974) (state Governor and other executive officers). Cf. Owen v. City of Independence, supra (no qualified immunity for municipalities).
Nothing in the language or legislative history of § 1983, however, suggests that in an action brought against a public official whose position might entitle him to immunity if he acted in good faith, a plaintiff must allege bad faith in order to state a claim for relief. By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 U. S. 167, 171 (1961). Petitioner has made both of the required allegations. He alleged that his discharge by respondent violated his right to procedural due process, see Board of Regents v. Roth, 408 U. S. 564 (1972), and that respondent acted under color of Puerto Rican law. See Monroe v. Pape, supra, at 172-187.
Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff’s cause of action; instead we have described it as a defense available to the official in question. See Procunier v. Navarette, supra, at 562; Pierson v. Ray, supra, at 556, 557; Butz v. Economou, 438 U. S. 478, 508 (1978). Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed. Rule Civ. Proc. 8 (c) (defendant must plead any “matter constituting an avoidance or affirmative defense”) ; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969). It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith.
Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus we have stated that “[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” Scheuer v. Rhodes, supra, at 247-248. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether “[t]he official himself [is] acting sincerely and with a belief that he is doing right,” Wood v. Strickland, supra, at 321. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official’s belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.
The decision of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Rehnquist joins the opinion of the Court, reading it as he does to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity.
The complaint originally named the Commonwealth of Puerto Rico and the police of the Commonwealth of Puerto Rico as additional defendants, but petitioner consented to their dismissal from the action. See App. 14, n. 1.
That section grants the federal district courts jurisdiction “[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for, equal rights of citizens or of all persons within the jurisdiction of the United States.”
At this stage of the proceedings, of course, all allegations of the complaint must be accepted as true.
This decision was in accord with earlier decisions in that Circuit. See, e. g., Gaffney v. Silk, 488 F. 2d 1248 (1973); Kostka v. Hogg, 560 F. 2d 37 (1977); Maiorana v. MacDonald, 596 F. 2d 1072 (1979).
Other Courts of Appeals have held that the burden of pleading a defense of good faith lies with the defendant. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F. 2d 1339, 1348 (CA2 1972) ; Skehan v. Board of Trustees of Bloomsburg State College, 538 F. 2d 53, 61-62 (CA3) (en banc), cert. denied, 429 U. S. 979 (1976); Bryan v. Jones, 530 F. 2d 1210, 1213 (CA5) (en banc), cert. denied, 429 U. S. 865 (1976); Jones v. Perrigan, 459 F. 2d 81, 83 (CA6 1972); Tritsis v. Backer, 501 F. 2d 1021, 1022-1023 (CA7 1974); Landrum v. Moats, 576 F. 2d 1320, 1324-1325, 1329 (CA8), cert. denied, 439 U. S. 912 (1978); Martin v. Duffie, 463 F. 2d 464, 468 (CA10 1972); Dellums v. Powell, 184 U. S. App. D. C. 275, 284-285, 566 F. 2d 167, 175-176 (1977), cert. denied, 438 U. S. 916 (1978). Cf. McCray v. Burrell, 516 F. 2d 357, 370 (CA4 1975) (en banc) (burden of proof), cert. dism’d, 426 U. S. 471 (1976); Gilker v. Baker, 576 F. 2d 245 (CA9 1978) (same).
Section 1983 provides in full: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Actions under Puerto Rican law come within both § 1983 and its jurisdictional predicate, 28 U. S. C. § 1343 (3). Examining Board v. Flores de Otero, 426 U. S. 672 (1976).
As then Dean Charles Clark stated over 40 years ago: “It seems to be considered only fair that certain types of things which in common law pleading were matters in confession and avoidance — i. e., matters which seemed more or less to admit the general complaint and yet to suggest some other reason why there was no right — must be specifically pleaded in the answer, and that has been a general rule.” ABA, Proceedings Institute at Washington and Symposium at New York City on the Federal Rules of Civil Procedure 49 (1939). See also 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1270-1271 (1969). Cf. FTC v. A. E. Staley Mfg. Co., 324 U. S. 746, 759 (1945) (good-faith defense under Robinson-Patman Act); Barcellona v. Tiffany English Pub., Inc., 597 F. 2d 464, 468 (CA5 1979); Cohen v. Ayers, 596 F. 2d 733, 739-740 (CA7 1979); United States v. Kroll, 547 F. 2d 393 (CA7 1977).
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Office of Workers' Compensation Programs",
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"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
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"Renegotiation Board",
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"Unidentifiable",
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] |
[
116
] |
UNITED STATES v. DANN ET AL.
No. 83-1476.
Argued November 5, 1984
Decided February 20, 1985
Brennan, J., delivered the opinion for a unanimous Court.
Assistant Attorney General McConnell argued the cause for the United States. On the briefs were Solicitor General Lee, Assistant Attorney General Habicht, Joshua I. Schwartz, Jacques B. Gelin, Dean K. Dunsmore, and Robert L. Klarquist.
John D. O’Connell argued the cause and filed a brief for respondents.
William T. Finley, Jr., filed a brief for the American Land Title Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Indian Law Resource Center by Steven M. Tullberg and Robert T. Coulter; and for the Western Shoshone National Council by Thomas E. Luebben and Richard W. Hughes.
Justice Brennan
delivered the opinion of the Court.
The question presented in this case is whether the appropriation of funds into a Treasury account pursuant to 31 U. S. C. §724a (1976 ed., Supp. V) constitutes “payment” under § 22(a) of the Indian Claims Commission Act, 60 Stat. 1055, 25 U. S. C. § 70u(a) (1976 ed.).
r-H
This case is an episode in a longstanding conflict between the United States and the Shoshone Tribe over title to lands in the western United States. In 1951 certain members of the Shoshone Tribe sought compensation for the loss of aboriginal title to lands located in California, Colorado, Idaho, Nevada, Utah, and Wyoming. Eleven years later, the Indian Claims Commission entered an interlocutory order holding that the aboriginal title of the Western Shoshone had been extinguished in the latter part of the 19th century, Shoshone Tribe v. United States, 11 Ind. Cl. Comm’n 387, 416 (1962), and later awarded the Western Shoshone in excess of $26 million in compensation. Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm’n 318 (1977). The Court of Claims affirmed this award. Temoak Band of Western Shoshone Indians v. United States, 219 Ct. Cl. 346, 593 F. 2d 994 (1979). On December 6, 1979, the Clerk of the Court of Claims certified the Commission’s award to the General Accounting Office. Pursuant to 31 U. S: C. §724a (1976 ed., Supp. V), this certification automatically appropriated the amount of the award and deposited it for the Tribe in an interest-bearing trust account in the Treasury of the United States.
Under 25 U. S. C. § 1402(a) and § 1403(a), the Secretary of the Interior is required, after consulting with the Tribe, to submit to Congress within a specified period of time a plan for the distribution of the fund. In this case, the Secretary has yet to submit a plan of distribution of the $26 million owing to the refusal of the Western Shoshone to cooperate in devising the plan. The fund apparently has now grown to $43 million. Reply Brief for United States 20.
In 1974, the United States brought an action in trespass against two sisters, Mary and Carrie Dann, members of an autonomous band of the Western Shoshone, alleging that the Danns, in grazing livestock without a permit from the United States, were acting in violation of regulations issued by the Secretary of the Interior under the authority of the Taylor Grazing Act, 43 U. S. C. §315b. The 5,120 acres at issue in the suit are located in the northeast corner of Nevada. In response to the United States’ suit, the Danns claimed that the land has been in the possession of their family from time immemorial and that their aboriginal title to the land precluded the Government from requiring grazing permits. The United States District Court for the District of Nevada rejected the Danns’ argument and ruled that aboriginal title had been extinguished by the collateral-estoppel effect of the Indian Claims Commission’s judgment in 1962. United States v. Mary and Carrie Dann, Civil No. R-74-60 (Jan. 5, 1977). The Court of Appeals for the Ninth Circuit reversed and remanded, however, on the ground that “[wjhatever may have been the implicit assumptions of both the United States and the Shoshone Tribes during the litigation . . . , the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided.” United States v. Dann, 572 F. 2d 222, 226-227 (1978).
On remand, the District Court held that aboriginal title was extinguished when the final award of the Indian Claims Commission was certified for payment on December 6, 1979. Civil No. R-74-60 (Apr. 25, 1980). On appeal, the Government defended the judgment of the District Court,on the ground that the “full discharge” language of § 22(a) of the Indian Claims Commission Act, see n. 2, supra, precluded the Danns from raising the defense of aboriginal title. Although Congress had not yet approved a plan for the distribution of the funds to the Western Shoshone, the United States maintained that the requirement of “payment” under § 22(a) was satisfied by the congressional appropriation of the $26 million award into the Treasury account. The Danns argued that until Congress approved a plan for the distribution of the money to the Tribe, “payment” was not satisfied.
The Court of Appeals held that “payment” had not occurred within the meaning of § 22(a) and reversed the District Court. 706 F. 2d 919, 926 (1983). The court reasoned that until a plan of distribution was adopted by the Congress, there remained “significant legal blocks in the way of delivery to the payee,” and thus the “ordinary meaning” of payment was not satisfied. We granted certiorari to resolve the question of whether the certification of the award and appropriation under § 724a constitutes payment under § 22(a). 467 U. S. 1214 (1984). We reverse.
HH
H-H
The legislative purposes of the Indian Claims Commission Act arid the principles of payment under the common law of trust as they have been applied to the context of relations between native American communities and the United States require that we hold that “payment” occurs under § 22(a) when funds are placed by the United States into an account in the Treasury of the United States for the Tribe pursuant to 31 U. S. C. §724a (1976 ed., Supp. V).
A
The Indian Claims Commission Act had two purposes. The “chief purpose of the [Act was] to dispose of the Indian claims problem with finality.” H. R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945). This purpose was effected by the language of § 22(a): “When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims . . . .” Section 22(a) also states that the “payment of any claim . . . shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.” To hold, as the court below has, that payment does not occur until a final plan of distribution has been approved by Congress would frustrate the purpose of finality by postponing the preclusive effects of § 22(a) while subjecting the United States to continued liability for claims and demands that “touch” the matter previously litigated and resolved by the Indian Claims Commission.
The second purpose of the Indian Claims Commission Act was to transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims. In the course of hearings on the creation of the Indian Claims Commission, Congressman Henry Jackson, Chairman of the House Committee on Indian Affairs, made this clear:
. . [T]he very purpose of this act, the reason we are coming to Congress, is that we are being harassed constantly by various individual pieces of legislation. I do not want to act on separate legislation and Congress is being told to act on those bills, without knowing the facts, and the purpose of this legislation will be to dispose of all those routine claims and let the commission decide what the obligation is of this Government to the Indians; and, acting upon those findings made by the Commission, Congress will appropriate the money.” Hearings on H. R. 1198 and H. R. 1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 68 (1945).
During the floor debate on the Act, Congressman Jackson observed that the House was acting in response to a study by the Brookings Institution that had concluded that “there ought to be a prompt and final settlement of all claims between the Government and its Indian citizens, and that the best way to accomplish this purpose is to set up temporarily an Indian Claims Commission which will sift all these claims, subject to appropriate judicial review, and bring them to a conclusion once and for all.” 92 Cong. Rec. 5312 (1946).
Prior to the adoption of the Indian Claims Commission Act by the House of Representatives, Attorney General Clark issued the following warning:
“The bill would provide that when the report of the Commission determining any claimant to be entitled to recover has been filed with the Congress, such report would have the effect of a final judgment to be paid in like manner as are judgments of the Court of Claims. This provision would make the Commission virtually a court with the power to determine claims based both upon legal and moral grounds rather than a fact finding body as an aid to Congress. In view of the vague basis upon which many of the claims presented to the Commission would be predicated, and the extremely novel character of the functions delegated to the Commission, the question is raised of whether or not the recognition of the claims should not rest finally with Congress. The provision making the findings of the Commission binding upon Congress would constitute a surrender by Congress of its very necessary prerogative to sift and control this unusual type of claim against the Government.” Id., at 5311 (letter to Congressman John Cochran in response to his request for the Attorney General’s “views with respect to the bill (H. R. 4497) to create a Indian Claims Commission.” Id., at 5310).
Despite this warning, the House left the language of the Act unchanged. The Senate, however, deleted from the House bill the language that Attorney General Clark asserted would give the decisions of the Indian Claims Commission the effect of a final judgment binding upon Congress. The Conference adopted the House version “in order to make perfectly clear the intention of both houses that the determinations of the Commission should, unless reversed [by the Court of Claims], have the same finality as judgments of the Court of Claims.” H. R. Conf. Rep. No. 2693, 79th Cong., 2d Sess., 8 (1946). As enacted, the Indian Claims Commission Act explicitly incorporated this standard of finality in § 22(a).
The court below justified its decision on the ground that in making “payment” turn on the submission and approval of a final plan of distribution, Congress would have one last opportunity to review the merits of claims litigated before the Indian Claims Commission. 706 F. 2d, at 927. This justification for delay obviously conflicts with the purpose of relieving Congress of the burden of having to resolve these claims.
B
Aside from its departure from the purposes of the Indian Claims- Commission Act, the Court of Appeals’ interpretation is in conflict with the accepted legal uses of the word “payment” — uses we assume Congress intended to adopt when it enacted § 22(a). To accept the argument of the Court of Appeals would give the word “payment” a meaning that differs markedly from its common-law meaning, which has long been applied by this Court to the relations between native American tribes and the United States.
The common law recognizes that payment may be satisfied despite the absence of actual possession of the funds by the creditor. Funds transferred from a debtor to an agent or trustee of the creditor constitute payment, and it is of no consequence that the creditor refuses to accept the funds from the agent or the agent misappropriates the funds. The rationale for this is that fiduciary obligations and the rules of agency so bind the trustee or agent to the creditor (i. e., the beneficiary or principal) as to confer effective control of the funds upon the creditor.
The Court has applied these principles to relations between native American communities and the United States. In Seminole Nation v. United States, 316 U. S. 286 (1942), the United States was obligated by treaty to pay annual annuities to members of the Seminole Nation. Instead, the Government transferred the money to the Seminole General Council. Members of the Tribe argued that because the Seminole General Council had- misappropriated the money, the Government had not satisfied its obligation to pay the individual members of the Tribe. In disposing of the case, the Court relied upon the rule that “a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary.” Id., at 296. The Court’s holding was based on its recognition of the traditional rule that a debtor’s payment to a fiduciary of the creditor satisfies the debt. Absent actual knowledge of the fraudulent intent of the trustee — or some other recognized exception to the general rule — the Government’s payment to the Council would have discharged its treaty obligations. Ibid. The order remanding the case for purposes of determining whether the Government had fraudulent intent, id., at 300, would have made sense only if the Court believed that, absent such knowledge, the Government’s treaty obligations were discharged.
The Court’s reliance on the general rule in Seminole Nation is authority for our holding that the United States has made “payment” under § 22(a). The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a manner consistent with the best interests of the Tribe. In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected.
Ill
The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the “final discharge” of § 22(a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits.
The judgment of the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
The statute provided:
“There are appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary for the payment, not otherwise provided for, as certified by the Comptroller General, of final judgments, awards, and compromise settlements, which are payable in accordance with the terms of . . . awards rendered by the Indian Claims Commission . . . .”
The statute provided:
“When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission.
“The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.”
The Indian Claims Commission was terminated on September 30, 1978, pursuant to 25 U. S. C. § 70v (1976 ed.).
For a discussion of aboriginal title, see Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667 (1974); Johnson v. McIntosh, 8 Wheat. 543, 573-574 (1823); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); F. Cohen, Handbook of Federal Indian Law 486-493 (1982). On the theoretical origins of aboriginal rights, see J. Scott, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (1934); Cohen, Spanish Origin of Indian Rights, 31 Geo. L. J. 1 (1942); Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947).
Section 2 of the Indian Claims Commission Act, 60 Stat. 1050, as amended, 25 U. S. C. § 70a (1976 ed.), authorized claims to be brought on behalf of “any Indian tribe, band, or other identifiable group of American Indians” for “claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant. . . .”
Section 20(b) of the Indian Claims Commission Act, 60 Stat. 1054, as amended, 25 U. S. C. § 70s(b) (1976 ed.), provided for an appeal to the Court of Claims from any “final determination” of the Indian Claims Commission.
The statute provides:
“Within one year after appropriation of funds to pay a judgment of the Indian Claims Commission. . . , the Secretary of the Interior shall prepare and submit to Congress a plan for the use and distribution of the funds.”
The statute provides:
“The Secretary shall prepare a plan which shall best serve the interests of all those entities and individuals entitled to receive funds of each Indian judgment. Prior to the final preparation of the plan, the Secretary shall—
“(1) receive and consider any resolution or communication, together with any suggested use or distribution plan, which any affected Indian tribe may wish to submit to him; and
“(2) hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members of the Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds . . . .”
See Steward, The Foundations of Basin-Plateau Shoshonean Society, in Languages and Cultures of Western North America 113, 115 (E. Swanson ed. 1970) (“ ‘[B]and’ can have no precise definition. Although it generally signifies cohesion and interaction between families that constitute a group of permanent membership, it may range in size from a few families that are closely related to many families which include some not related, or it may be structured on unilineal or bilateral principles, and interaction between the families may take many forms”).
The statute provides:
“The Secretary of the Interior is authorized to issue or cause to be issued permits to graze livestock on such grazing districts to such bona fide settlers, residents, and other stock owners as under his rules and regulations are entitled to participate in the use of the range, upon the payment annually of reasonable fees in each case to be fixed or determined from time to time in accordance with governing law.”
On the finality of judgments of the Court of Claims, see 28 U. S. C. §2519 (1976 ed.) (“A final judgment of the Court of Claims against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the matters involved in the case or controversy”); United States v. O’Grady, 22 Wall. 641, 647 (1875); W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, Part II, pp. 22-25 (1978).
See G. Bogert, Law of Trusts and Trustees § 902 (2d rev. ed. 1982) (footnotes omitted) (“[I]t is now universally the law that the purchaser of trust property from the trustee . . . may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser, in the absence of notice to the contrary, may safely assume that the price will be applied in an appropriate manner as trust property”); 4 A. Scott, Law of Trusts § 321 (3d ed. 1967); Stone, Some Legal Problems Involved in the Transmission of Funds, 21 Colum. L. Rev. 507 (1921). See also, the Uniform Fiduciaries Act § 2, 7A U. L. A. 135 (1978) (“A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary”).
The Court’s acknowledgment of this general rule is apparent from its citation to 4 G. Bogert, Law of Trusts and Trustees § 901 (1935), which stated: “It is now the law that the purchaser of trust property from the trustee, where the trustee has a power to sell and has properly executed his power, may pay the purchase money to the trustee without making any inquiry as to the use to which the trustee intends to put the money. The purchaser may safely assume that the price will be applied in an appropriate manner as trust property, unless special circumstances come to his notice indicating the opposite.”
In suggesting that significant obstacles to the distribution of the money remain despite the transfer of the fund into a trust account, the Court of Appeals failed to recognize the legal strictures ensuring that the money will be applied to the benefit of the Tribe. We have, for example, held that the United States, as a fiduciary, is obligated to make the funds productive and is fully accountable if those funds are converted or mismanaged. See, e. g., United States v. Mitchell, 463 U. S. 206, 226 (1983); United States v. Sioux Nation of Indians, 448 U. S. 371, 408-409 (1980); United States v. Shoshone Tribe, 304 U. S. 111, 115-116 (1938); Shoshone Tribe v. United States, 299 U. S. 476, 497 (1937).
Cramer v. United States, 261 U. S. 219, 227 (1923); United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 357-358 (1941); see generally Cohen, Original Indian Title, 32 Minn. L. Rev., at 53-54.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
66
] |
TRAYNOR v. TURNAGE, ADMINISTRATOR, VETERANS’ ADMINISTRATION, et al.
No. 86-622.
Argued December 7, 1987
Decided April 20, 1988
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens and O’Connor, JJ., joined, and in Parts I and II of which Brennan, Marshall, and Blackmun, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, post, p. 552. Scalia and Kennedy, JJ., took no part in the consideration or decision of the cases.
Keith A. Teel argued the cause for petitioners. With him on the briefs were Margaret K. Brooks, Catherine H. O’Neill, John A. Powell, Arthur B. Spitzer, Elizabeth Symonds, and Steven R. Shapiro.
Jerrold J. Ganzfried argued the cause for respondents. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, Anthony J. Steinmeyer, and Robert V. Zener.
Together with No. 86-737, McKelvey v. Turnage, Administrator of Veterans’ Affairs, et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit.
Elizabeth Bartholet filed a brief for the National Council on Alcoholism, Inc., as amicus curiae urging reversal in both cases.
Briefs of amici curiae were filed in both cases for the American Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, and Joel I. Klein; and for Vietnam Veterans of America by Samuel M. Sipe, Jr., and Barton F. Stichman.
Justice White
delivered the opinion of the Court.
These cases arise from the Veterans’ Administration’s refusal to grant two recovered alcoholics extensions of time in which to use their veterans’ educational benefits. We must decide whether the Veterans’ Administration’s decision is subject to judicial review and, if so, whether that decision violates § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U. S. C. § 794, which requires that federal programs not discriminate against handicapped individuals solely because of their handicap.
I
Veterans who have been honorably discharged from the United States Armed Forces are entitled to receive educational assistance benefits under the Veterans’ Readjustment Benefit Act of 1966 (“GI Bill”) to facilitate their readjustment to civilian life. See 38 U. S. C. § 1661. These benefits generally must be used within 10 years following discharge or release from active duty. § 1662(a)(1). Veterans may obtain an extension of the 10-year delimiting period, however, if they were prevented from using their benefits earlier by “a physical or mental disability which was not the result of [their] own willful misconduct.” Ibid.
Petitioners are honorably discharged veterans who did not exhaust their educational benefits during the decade following their military service. They sought to continue to receive benefits after the expiration of the 10-year delimiting period on the ground that they had been disabled by alcoholism during much of that period. The Veterans’ Administration determined that petitioners’ alcoholism constituted “willful misconduct” under 38 CFR § 3.301(c)(2) (1987), and accordingly denied the requested extensions.
Petitioner Traynor sought review of the Veterans’ Administration’s decision in the United States District Court for the Southern District of New York. The District Court held that it was not foreclosed from exercising jurisdiction over the case by 38 U. S. C. § 211(a), which bars judicial review of “the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans,” because the complaint “requires us to examine constitutional and statutory questions and not merely issues of VA policy.” Traynor v. Walters, 606 F. Supp. 391, 396 (1985). The court rejected Traynor’s claim that the Veterans’ Administration’s refusal to extend his delimiting period violated the Due Process Clause and the equal protection component of the Fifth Amendment. However, the court concluded that alcoholism is a handicap within the meaning of the Rehabilitation Act, and that the Veterans’ Administration therefore had engaged in the sort of discrimination on the basis of handicap that is forbidden by that Act.
A divided panel of the Court of Appeals for the Second Circuit reversed on the ground that § 211(a) barred judicial review of the Rehabilitation Act claim. Traynor v. Walters, 791 F. 2d 226 (1986). The court reasoned that, while “many veterans have in the service of our country suffered injuries that qualify them as ‘handicapped individuals]’ for purposes of [the Rehabilitation Act],” Congress evinced no intent in enacting that statute “to grant to ‘handicapped’ veterans the judicial review traditionally denied all other veterans” under §211(a). Id., at 229.
Meanwhile, petitioner McKelvey sought review of the Veterans’ Administration’s decision in the District Court for the District of Columbia. The District Court exercised jurisdiction over McKelvey’s claims on the ground that §211 (a) permits judicial review of decisions rejecting claims that Veterans’ Administration regulations of general applicability violate a federal statute that is “completely independent of the complex statutory and regulatory scheme for dispersing veterans’ benefits.” McKelvey v. Walters, 596 F. Supp. 1317, 1321 (1984). The court then invalidated 38 CFR § 3.301(c) (2) (1987) as contrary to the Rehabilitation Act. The court ordered the Veterans’ Administration to determine without resort to the regulation whether McKelvey had suffered a disability attributable to his own misconduct.
On appeal, the Court of Appeals for the District of Columbia Circuit agreed that judicial review was not foreclosed by § 211(a), which was held to apply only to claims “resolved by an actual ‘decision of the Administrator.’” 253 U. S. App. D. C. 126, 130, 792 F. 2d 194, 198 (1986) (per curiam) (quoting Johnson v. Robison, 415 U. S. 361, 367 (1974)). The court found that no such decision had been rendered by the Veterans’ Administration as to the validity of 38 CFR §3.301(c)(2) (1987) under the Rehabilitation Act. On the merits, however, the Court of Appeals reversed, holding that the Veterans’ Administration could consistently with the Rehabilitation Act distinguish between veterans who are at least to some extent responsible for their disabilities and veterans who are not. With respect to alcoholism, this distinction could be effected by means of § 3.301(c)(2), said the court, because the Veterans’ Administration could reasonably conclude that alcoholism is a “willfully caused handicap” unless attributable to an underlying psychiatric disorder. 253 U. S. App. D. C., at 132-133, 792 F. 2d, at 200-201. The court expressed disagreement with Tinch v. Walters, 765 F. 2d 599 (CA6 1985), which had invalidated the regulation in light of the Rehabilitation Act. See 253 U. S. App. D. C., at 133, n. 4, 792 F. 2d, at 201, n. 4.
We granted certiorari to resolve the conflicts between the Courts of Appeals as to whether Veterans’ Administration decisions challenged under the Rehabilitation Act are subject to judicial review and, if so, whether that Act bars the Veterans’ Administration from characterizing petitioners’ alcoholism as “willful misconduct” for purposes of 38 U. S. C. § 1662(a)(1). 480 U. S. 916 (1987).
II
We must first consider whether §211(a)’s bar against judicial review of “the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans” extends to petitioners’ claim that the Veterans’ Administration regulation defining primary alcoholism as “willful misconduct” discriminates against handicapped persons in violation of the Rehabilitation Act.
We have repeatedly acknowledged “the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670 (1986); see also Dunlop v. Bachowski, 421 U. S. 560, 567 (1975); Barlow v. Collins, 397 U. S. 159, 166-167 (1970). The presumption in favor of judicial review may be overcome “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967) (citations omitted). We look to such evidence as “‘specific language or specific legislative history that is a reliable indicator of congressional intent,’ or a specific congressional intent to preclude judicial review that is ‘fairly discernible in the detail of the legislative scheme.’” Bowen v. Michigan Academy of Family Physicians, supra, at 673 (quoting Block v. Community Nutrition Institute, 467 U. S. 340, 349, 351 (1984)).
In Johnson v. Robison, supra, we held that the federal courts could entertain constitutional challenges to veterans’ benefits legislation. We determined that “neither the text nor the scant legislative history of § 211(a)” provided the requisite “clear and convincing” evidence of congressional intent to foreclose judicial review of challenges to the constitutionality of a law administered by the Veterans’ Administration., 415 U. S., at 373-374. In that case, the Veterans’ Administration, acting under 38 U. S. C. §§ 101(21), 1652(a)(1), and 1661(a), denied educational benefits to a conscientious objector who had completed the required alternative civilian service. The claimant brought suit in the District Court, challenging those statutory sections on First and Fifth Amendment grounds. The District Court denied a motion to dismiss based on § 211(a) and gave judgment to the plaintiff. Robison v. Johnson, 352 F. Supp. 848 (Mass. 1973). We agreed that § 211(a) did not bar the suit, but reversed the judgment on the merits. On the § 211(a) issue, we reasoned that “[t]he prohibitions [of § 211(a)] would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans’ Administration of a statute providing benefits for veterans.” 415 U. S., at 367. The'questions of law presented in that case, however, arose under the Constitution rather than under the veterans’ benefits statute and concerned whether there was a valid law on the subject for the Veterans’ Administration to execute. We went on to conclude that the principal purposes of § 211(a)— “(1) to insure that veterans’ benefits claims will not burden the courts and the Veterans’ Administration with expensive and time-consuming litigation, and (2) to insure that the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’ benefits decisions will be adequately and uniformly made,” id., at 370 — would not be frustrated if federal courts were permitted to exercise jurisdiction over constitutional challenges to the very statute that was sought to be enforced. We noted that such challenges “cannot be expected to burden the courts by their volume, nor do they involve technical consideration of Veterans’ Administration policy.” Id., at 373.
The text and legislative history of § 211(a) likewise provide no clear and convincing evidence of any congressional intent to preclude a suit claiming that § 504 of the Rehabilitation Act, a statute applicable to all federal agencies, has invalidated an otherwise valid regulation issued by the Veterans’ Administration and purporting to have the force of law. Section 211(a) insulates from review decisions of law and fact “under any law administered by the Veterans’ Administration,” that is, decisions made in interpreting or applying a particular provision of that statute to a particular set of facts. Id., at 367. But the cases now before us involve the issue whether the law sought to be administered is valid in light of a subsequent statute whose enforcement is not the exclusive domain of the Veterans’ Administration. There is no claim that the regulation at issue is inconsistent with the statute under which it was issued; and there is no challenge to the Veterans’ Administration’s construction of any statute dealing with veterans’ benefits, except to the extent that its construction may be affected by the Rehabilitation Act. Nor is there any reason to believe that the Veterans’ Administration has any special expertise in assessing the validity of its regulations construing veterans’ benefits statutes under a later passed statute of general application. Permitting these cases to go forward will not undermine the purposes of § 211(a) any more than did the result in Johnson. It cannot be assumed that the availability of the federal courts to decide whether there is some fundamental inconsistency between the Veterans’ Administration’s construction of veterans’ benefits statutes, as reflected in the regulation at issue here, and the admonitions of the Rehabilitation Act will enmesh the courts in “the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’ benefits decisions” or “burden the courts and the Veterans’ Administration with expensive and time-consuming litigation.” Id., at 370. Of course, if experience proves otherwise, the Veterans’ Administration is fully capable of seeking appropriate relief from Congress.
Accordingly, we conclude that the question whether a Veterans’ Administration regulation violates the Rehabilitation Act is not foreclosed from judicial review by § 211(a). We therefore turn to the merits of petitioners’ Rehabilitation Act claim.
Ill
Congress historically has imposed time limitations on the use of “GI Bill” educational benefits. Veterans of World War II were required to use their benefits within nine years after their discharge from military service, while Korean Conflict veterans had eight years in which to use their benefits. See S. Rep. No. 93-977, p. 13 (1974) (letter to Hon. Vance Hartke from Veterans’ Administrator Johnson). The delimiting period under the current “GI Bill” was raised from 8 years to 10 years in 1974. Pub. L. 93-337, § 2(1), 88 Stat. 292, 38 U. S. C. §§ 1712(b)(1), (2). In 1977, Congress created an exception to this 10-year delimiting period for veterans who delayed their education because of “a physical or mental disability which was not the result of [their] own willful misconduct.” Pub. L. 95-202, Tit. II, § 203(a)(1), 91 Stat. 1429, 38 U. S. C. § 1662(a)(1).
Congress did not use the term “willful misconduct” inadvertently in § 1662(a)(1). The same term had long been used in other veterans’ benefits statutes. For example, veterans are denied compensation for service-connected disabilities that are “the result of the veteran’s own willful misconduct.” 38 U. S. C. § 310. See also § 521 (compensation for disabilities not connected with military service). The Veterans’ Administration had long construed the term “willful misconduct” for purposes of these statutes as encompassing primary alcoholism (i. e., alcoholism that is not “secondary to and a manifestation of an acquired psychiatric disorder”). See n. 2, supra.
“It is always appropriate to assume that our elected representatives, like other citizens, know the law.” Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979). Hence, we must assume that Congress was aware of the Veterans’ Administration’s interpretation of “willful misconduct” at the time that it enacted § 1662(a)(1), and that Congress intended that the term receive the same meaning for purposes of that statute as it had received for purposes of other veterans’ benefits statutes. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985); Morrison-Knudsen Construction Co. v. Director, Office of Workers’ Compensation Programs, 461 U. S. 624, 633 (1983); Bob Jones University v. United States, 461 U. S. 574, 586-587, and n. 10 (1983). In these cases, however, we need not rely only on such assumptions. The legislative history confirms that Congress intended that the Veterans’ Administration apply the same test of “willful misconduct” in granting extensions of time under § 1662(a)(1) as the agency already was applying in granting disability compensation under § 310 and § 521. Specifically, the Report of the Senate Veterans’ Affairs Committee on the 1977 legislation states:
“In determining whether the disability sustained was a result of the veteran’s own ‘willful misconduct,’ the Committee intends that the same standards be applied as are utilized in determining eligibility for other VA programs under title 38. In this connection, see 38 CFR, part III, paragraphs 3.1(n) and 3.301, and VA Manual M21-1, section 1404.” S. Rep. No. 95-468, pp. 69-70 (1977).
The cited regulations include 38 CFR § 3.301(c)(2) (1987), the regulation that characterizes primary alcoholism as “willful misconduct.” The Veterans’ Administration Manual provision states, inter alia, that “[b]asic principles for application in deciding cases involving alcoholism are stated in Administrator’s Decision No. 988,” the decision on which § 3.301(c)(2) is based. VA Manual M21-1, change 132, subch. I, § 14.04c (Jan. 29, 1976). See n. 2, supra. These sources set forth the criteria for determining whether a veteran’s alcoholism is the result of “willful misconduct.” These criteria therefore are among the “standards” that, according to the Senate Report, Congress intended to be utilized in determining eligibilty for extended educational benefits.
It is thus clear that the 1977 legislation precluded an extension of time to a veteran who had not pursued his education because of primary alcoholism. If Congress had intended instead that primary alcoholism not be deemed “willful misconduct” for purposes of § 1662(a)(1), as it had been deemed for purposes of other veterans’ benefits statutes, Congress most certainly would have said so.
It was the same Congress that one year later extended §504’s prohibition against discrimination on the basis of handicap to “any program or activity conducted by any Executive agency.” Pub. L. 95-602, Tit. IV, §§ 119, 122(d)(2), 92 Stat. 2982, 2987, 29 U. S. C. § 794. Yet, in enacting the 1978 Rehabilitation Act amendments, Congress did not affirmatively evince any intent to repeal or amend the “willful misconduct” provision of § 1662(a)(1). Nor did Congress anywhere in the language or legislative history of the 1978 amendments expressly disavow its 1977 determination that primary alcoholism is not the sort of disability that warrants an exemption from the time constraints of § 1662(a)(1).
Accordingly, petitioners can prevail under their Rehabilitation Act claim only if the 1978 legislation can be deemed to have implicitly repealed the “willful misconduct” provision of the 1977 legislation or forbade the Veterans’ Administration to classify primary alcoholism as willful misconduct. They must thereby overcome the “ ‘cardinal rule . . . that repeals by implication are not favored.’” Morton v. Mancari, 417 U. S. 535, 549-550 (1974) (quoting Posadas v. National City Bank, 296 U. S. 497, 503 (1936); Wood v. United States, 16 Pet. 342, 363 (1842); Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968)). “It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum,” Radzanower v. Touche Ross & Co., 426 U. S. 148, 153 (1976), unless the later statute “‘expressly contradices] the original act’” or unless such a construction “‘is absolutely necessary ... in order that [the] words [of the later statute] shall have any meaning at all.’” Ibid, (quoting T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874)). “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, supra, at 551.
As we have noted, the 1978 legislation did not expressly contradict the more “narrow, precise, and specific” 1977 legislation. Moreover, the 1978 legislation is not rendered meaningless, even with respect to those who claim to have been handicapped as a result of alcoholism, if the “willful misconduct” provision of § 1662(a)(1) is allowed to retain the import originally intended by Congress.
First, the “willful misconduct” provision does not undermine the central purpose of §504, which is to assure that handicapped individuals receive “evenhanded treatment” in relation to nonhandicapped individuals. Alexander v. Choate, 469 U. S. 287, 304 (1985); Southeastern Community College v. Davis, 442 U. S. 397, 410 (1979). This litigation does not involve a program or activity that is alleged to treat handicapped persons less favorably than nonhandicapped persons. Cf. School Board of Nassau County v. Arline, 480 U. S. 273 (1987); Southeastern Community College, supra. Rather, petitioners challenge a statutory provision that treats disabled veterans more favorably than able-bodied veterans: The former may obtain extensions of time in which to use their educational benefits so long as they did not become disabled as a result of their own “willful misconduct”; the latter are absolutely precluded from obtaining such extensions regardless of how compelling their reasons for having delayed their schooling might be. In other words, § 1662(a)(1) merely provides a special benefit to disabled veterans who bear no responsibility for their disabilities that is not provided to other disabled veterans or to any able-bodied veterans.
There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons. Hence, the regulations promulgated by the Department of Health, Education, and Welfare in 1977 with regard to the application of §504 to federally funded programs provide that “exclusion of a specific class of handicapped persons from a program limited by Federal statute or executive order to a different class of handicapped persons” is not prohibited. 42 Fed. Reg. 22676, 22679 (1977), promulgating 45 CFR § 84.4(c) (1986). It is therefore not inconsistent with the Rehabilitation Act for only those veterans whose disabilities are not attributable to their own “willful misconduct” to be granted extensions of the 10-year delimiting period applicable to all other veterans. Congress is entitled to establish priorities for the allocation of the limited resources available for veterans’ benefits, cf. McDonald v. Board of Election Comm’rs of Chicago, 394 U. S. 802, 809 (1969), and thereby to conclude that veterans who bear some responsibility for their disabilities have no stronger claim to an extended eligibility period than do able-bodied veterans. Those veterans are not, in the words of § 504, denied benefits “solely by reason of [their] handicap,” but because they engaged with some degree of willfulness in the conduct that caused them to become disabled.
Furthermore, § 1662(a)(1) does not deny extensions of the delimiting period to all alcoholics but only to those whose drinking was not attributable to an underlying psychiatric disorder. It is estimated by some authorities that mental illness is responsible for 20% to 30% of all alcoholism cases. Brief for American Medical Association as Amicus Curiae 7. Each veteran who claims to have been disabled by alcoholism is entitled under § 1662(a)(1) to an individualized assessment of whether his condition was the result of a mental illness.
Petitioners, however, perceive an inconsistency between § 504 and the conclusive presumption that alcoholism not motivated by mental illness is necessarily “willful.” They contend that § 504 mandates an individualized determination of “willfulness” with respect to each veteran who claims to have been disabled by alcoholism. It would arguably be inconsistent with § 504 for Congress to distinguish between categories of disabled veterans according to generalized determinations that lack any substantial basis. If primary alcoholism is not always “willful,” as that term has been defined by Congress and the Veterans’ Administration, some veterans denied benefits may well be excluded solely on the basis of their disability. We are unable to conclude that Congress failed to act in accordance with § 504 in this instance, however, given what the District of Columbia Circuit accurately characterized as “a substantial body of medical literature that even contests the proposition that alcoholism is a disease, much less that it is a disease for which the victim bears no responsibility.” 253 U. S. App. D. C., at 132-133, 792 F. 2d, at 200-201. Indeed, even among many who consider alcoholism a “disease” to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary. See Fingarette, The Perils of Powell: In Search of a Factual Foundation for the “Disease Concept of Alcoholism,” 83 Harv. L. Rev. 793, 802-808 (1970). As we see it, §504 does not demand inquiry into whether factors other than mental illness rendered an individual veteran’s drinking so entirely beyond his control as to negate any degree of “willfulness” where Congress and the Veterans’ Administration have reasonably determined for purposes of the veterans’ benefits statutes that no such factors exist.
In sum, we hold that a construction of § 1662(a)(1) that reflects the original congressional intent that primary alcoholics not be excused from the 10-year delimiting period for utilizing “GI Bill” benefits is not inconsistent with the prohibition on discrimination against the handicapped contained in § 504 of the Rehabilitation Act. Accordingly, since we “are not at liberty to pick and choose among congressional enactments . . . when two statutes are capable of co-existence,” Morton v. Mancari, 417 U. S., at 551, we must conclude that the earlier, more specific provisions of § 1662(a)(1) were neither expressly nor implicitly repealed by the later, more general provisions of § 504.
IV
This litigation does not require the Court to decide whether alcoholism is a disease whose course its victims cannot control. It is not our-role to resolve this medical issue on which the authorities remain sharply divided. Our task is to decide whether Congress intended, in enacting § 504 of the Rehabilitation Act, to reject the position taken on the issue by the Veterans’ Administration and by Congress itself only one year earlier. In our view, it is by no means clear that § 504 and the characterization of primary alcoholism as a willfully incurred disability are in irreconcilable conflict. If petitioners and their proponents continue to believe that this position is erroneous, their arguments are better presented to Congress than to the courts.
The judgment of the Court of Appeals for the District of Columbia Circuit in No. 86-737 is affirmed. The judgment of the Court of Appeals for the Second Circuit in No. 86-622 is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia and Justice Kennedy took no part in the consideration or decision of this case.
Section 504, 29 U. S. C. § 794, provides, in pertinent part, that “[n]o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program' or activity conducted by any Executive agency.”
The applicable regulation, 38 CFR § 3.301(c)(2) (1987), provides:
“Alcoholism: The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.”
This regulation was intended by the Veterans’ Administration to incorporate the principles of a 1964 administrative decision. 37 Fed. Reg. 20335, 20336 (1972) (proposed regulation); 37 Fed. Reg. 24662 (1972) (final regulation). The 1964 decision provided that alcoholism that is “secondary to and a manifestation of an acquired psychiatric disorder” would not be characterized as willful misconduct. Administrator’s Decision, Veterans’ Administration No. 988, Interpretation of the Term “Willful Misconduct” as Related to the Residuals of Chronic Alcoholism, Aug. 13, 1964, App. 142-143. The Veterans’ Administration refers to this type of alcoholism as “secondary,” and to alcoholism unrelated to an underlying psychiatric disorder as “primary.” See ibid.; Veterans’ Administration Manual M21-1, change 149, subch. XI, § 50.32 (Dec. 23, 1979) (hereinafter VA Manual). Petitioners were found to have suffered from primary alcoholism.
Title 38 U. S. C. § 211(a) provides, in pertinent part:
“[T]he decision of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”
Petitioners have not raised constitutional claims before this Court.
The dissent maintained that § 211(a) was inapplicable both because the Rehabilitation Act neither provides benefits to veterans nor is administered by the Veterans’ Administration and because the Administrator had not issued a decision as to whether the challenged regulation violated that Act. 791 F. 2d, at 232. Neither the majority nor the dissent reached the merits of Traynor’s Rehabilitation Act claim.
The court acknowledged that the Veterans’ Administration had decided the Rehabilitation Act issue while the case was on appeal. However, the court held that “Section 211(a)’s application is to be determined firmly and finally as of the date that plaintiff commences litigation.” 253 U. S. App. D. C., at 131, 792 F. 2d, at 199. Otherwise, the court reasoned, “[t]he agency could allow a challenge to its action to proceed in the district court secure in the knowledge that if the VA lost there, it could retroactively shield the action from judicial review.” Ibid.
The panel was divided on both the jurisdictional issue and the merits.
The President has designated the Department of Justice as the federal agency responsible for coordinating and enforcing § 504 of the Rehabilitation Act. Exec. Order No. 12250, 3 CFR 298 (1981).
Indeed, petitioners submit that, in the four Circuits that have held that § 211(a) does not bar judicial review of statutory challenges to Veterans’ Administration regulations, only eight such challenges have been filed. See Brief for Petitioners 46-47, n. 32 (citing American Federation of Government Employees, AFL-CIO v. Nimmo, 711 F. 2d 28 (CA4 1983); Plato v. Roudebush, 397 F. Supp. 1295 (Md. 1975); Tinch v. Walters, 573 F. Supp. 346 (ED Tenn. 1983), aff’d, 765 F. 2d 599 (CA6 1985); Taylor v. United States, 385 F. Supp. 1035 (ND Ill. 1974), vacated and remanded, 528 F. 2d 60 (CA7 1976); Arnolds v. Veterans’ Administration, 507 F. Supp. 128 (ND Ill. 1981); Burns v. Nimmo, 545 F. Supp. 544 (Iowa 1982); Waterman v. Cleland, No. 4-77-Civ. 70 (Minn., Oct. 24, 1978)).
We have previously recognized that the regulations promulgated by the Department of Health, Education, and Welfare (later the Department of Health and Human Services) to implement the Rehabilitation Act “were drafted with the oversight and approval of Congress,” School Board of Nassau County v. Arline, 480 U. S. 273, 279 (1987), and therefore constitute “‘an important source of guidance on the meaning of §504.’” Ibid. (quoting Alexander v. Choate, 469 U. S. 287, 304, n. 24 (1985)).
Our decision in School Board of Nassau County v. Arline, supra, is not to the contrary. In Arline, we recognized that the district courts should “in most cases” undertake an individualized inquiry into whether a handicapped person has been denied a job for which he is otherwise qualified. 480 U. S., at 287. In contrast to the instant case, Arline did not involve a handicapping condition as to which Congress had specifically determined that no individualized inquiry was necessary. We might well have reached a different conclusion in Arline had the employer relied on a congressional determination supported by substantial medical evidence that all employees suffering from acute tuberculosis pose a serious health threat to others in the workplace.
If the position urged by the dissent were to prevail, the Veterans’ Administration would be hard put to avoid making an individualized determination as to whether a veteran’s alcoholism is sufficiently “willful” to disqualify him from disability compensation under §§ 310 and 521. Such a requirement would saddle the Government with additional administrative and financial burdens that Congress could not have contemplated in extending § 504 to federal programs.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
113
] |
CENTRAL RAILROAD COMPANY OF PENNSYLVANIA v. PENNSYLVANIA.
400.
Argued March 20, 1962.
Decided June 25, 1962.
Boy J. Keefer argued the cause and filed briefs for appellant.
George W. Keitel, Deputy Attorney General of Pennsylvania, argued the cause for appellee. With him on the briefs was David Stahl, Attorney General.
Mr. Justice Harlan
delivered the opinion of the Court.
In this case we must decide whether the Commonwealth of Pennsylvania may, consistently with the Commerce Clause and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States, impose an annual property tax on the total value of freight cars owned by the appellant, a Pennsylvania corporation, despite the fact that a considerable number of such cars spend a substantial portion of the tax year on the lines of other railroads located outside the State. The Supreme Court of Pennsylvania upheld the application of the State’s Capital Stock Tax, Purdon’s Pa. Stat. Ann., 1949, Tit. 72, §§ 1871, 1901, to the full value of all appellant’s freight cars. 403 Pa. 419, 169 A. 2d 878. We postponed consideration of the question of jurisdiction to the hearing on the merits, 368 U. S. 912, and now find that the appeal is appropriately before us under 28 U. S. C. § 1257 (2). E. g., Standard Oil Co. v. Peck, 342 U. S. 382.
We take the facts pertinent to decision from a stipulation submitted by the parties to the trial court. The appellant is a Pennsylvania corporation authorized to operate a railroad only within the State. It has not been licensed to do business elsewhere. The company’s track runs from the anthracite coal region in Pennsylvania to the Pennsylvania-New Jersey border, at Easton, where it connects with the lines of the Central Railroad Company of New Jersey (hereinafter CNJ), a New Jersey corporation which owns all the outstanding shares of appellant’s stock.
In 1951, the year for which the tax was assessed, the appellant owned 3,074 freight cars which were put to use in ordinary transport operations in three ways: (1) by the appellant on its own tracks; (2) by CNJ on that company’s tracks in New Jersey; (3) by other unaffiliated railroads on their own lines in various parts of the country. CNJ’s use of appellant’s cars was pursuant to operating agreements under which CNJ was obliged to pay a daily rental equal to the then-effective rate prescribed by the Association of American Railroads. In order to facilitate interstate transportation by the interchange of equipment among carriers, as prescribed by 49 U. S. C. § 1, pars. (4), (10), (12), the members of the Association, including the appellant, had entered into a separate “Car Service and Per Diem Agreement” under which each subscriber was authorized to use on its own lines the available freight cars of other subscribers at the established per diem rental. Consequently, during 1951 many of the appellant’s freight cars were also used by other railroads on lines outside Pennsylvania.
Appellant contended in the state courts, as it does here, that in computing its Pennsylvania capital stock tax, which is measured by the value of such property as is not exempt from taxation (note 1, supra), it was constitutionally entitled to deduct from the value of its taxable assets a proportional share reflecting the time spent by its freight cars outside Pennsylvania. In support of this claim appellant offered a statistical summary of the use of its freight cars during 1951, seeking to prove that a daily average of more than 1,659 of its 3,074 cars were located on the lines of railroads (including CNJ) which owned no track in Pennsylvania.
It also claimed that a daily average of approximately 1,056 other cars had been used by railroads having lines both within and without Pennsylvania. As to such cars, appellant sought to allocate to Pennsylvania only such portions of their value as the combined ratio of road miles of each user-railroad’s tracks within Pennsylvania bore to its total road mileage throughout the United States.
These claims were disallowed by the Pennsylvania Board of Finance and Revenue, by the Court of Common Pleas of Dauphin County, and by the Supreme Court of Pennsylvania. The state courts relied primarily on this Court’s decision in New York Central R. Co. v. Miller, 202 U. S. 584, which upheld the constitutionality of a domiciliary State’s ad valorem property tax levied upon the full value of a railroad’s rolling stock, albeit "some considerable proportion of the [railroad’s] . . . cars always . . . [was] absent from the State.” Id., at 595.
I.
Since Miller this Court has decided numerous cases touching on the intricate problems of accommodating, under the Due Process and Commerce Clauses, the taxing powers of domiciliary and other States with respect to the instrumentalities of interstate commerce. None of these decisions has weakened the pivotal holding in Miller— that a railroad or other taxpayer owning rolling stock cannot avoid the imposition of its domicile’s property tax on the full value of its assets merely by proving that some determinable fraction of its property was absent from the State for part of the tax year. This Court has consistently held that the State of domicile retains jurisdiction to tax tangible personal property which has “not acquired an actual situs elsewhere.” Johnson Oil Refining Co. v. Oklahoma, 290 U. S. 158, 161.
This is because a State casts no forbidden burden upon interstate commerce by subjecting its own corporations, though they be engaged in interstate transport, to nondiscriminatory property taxes. It is only “multiple taxation of interstate operations,” Standard Oil Co. v. Peck, 342 U. S. 382, 385, that offends the Commerce Clause. And obviously multiple taxation is possible only if there exists some jurisdiction, in addition to the domicile of the taxpayer, which may constitutionally impose an ad valorem tax.
Nor does the Due Process Clause confine the domiciliary State’s taxing power to such proportion of the value of the property being taxed as is equal to the fraction of the tax year which the property spends within the State’s borders. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, held only that the Due Process Clause prohibited ad valorem taxation by the owner’s domicile of tangible personal property permanently located in some other State. Northwest Airlines, Inc., v. Minnesota, 322 U. S. 292, reaffirmed the principle established by earlier cases that tangible property for which no tax situs has been established elsewhere may be taxed to its full value by the owner’s domicile. See New York Central R. Co. v. Miller, supra; Southern Pacific Co. v. Kentucky, 222 U. S. 63, 69; Johnson Oil Refining Co. v. Oklahoma, supra. If such property has had insufficient contact with States other than the owner’s domicile to render any one of these jurisdictions a “tax situs,” it is surely appropriate to presume that the domicile is the only State affording the “opportunities, benefits, or protection” which due process demands as a prerequisite for taxation. See Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169, 174.
Accordingly, the burden is on the taxpayer who contends that some portion of its total assets are beyond the reach of the taxing power of its domicile to prove that the same property may be similarly taxed in another jurisdiction. Cf. Dixie Ohio Express Co. v. State Revenue Comm’n, 306 U. S. 72.
The controlling question here is, therefore, the same as it was in Standard Oil Co. v. Peck, 342 U. S. 382, where the decision whether a state property tax might constitutionally be imposed on the full value of a domiciliary’s moving assets turned on whether “ ‘a defined part of the domiciliary corpus’ ” — there consisting of boats and barges traveling along inland waters — “could be taxed by the several states on an apportionment basis.” 342 U. S., at 384.
Since the burden of proving an exemption is on the taxpayer who claims it, we must consider whether the stipulated facts show that some determinable portion of the value of the appellant’s freight cars had acquired a tax situs in a jurisdiction other than Pennsylvania.
II.
With respect to the freight cars that had been used on the lines of CNJ during the taxable year, the stipulation establishes that they “were run on fixed routes and regular schedules . . . over the lines of CNJ ... in New Jersey.” Their habitual employment within the jiiris-diction in this manner would assuredly support New Jersey’s imposition of an apportioned ad valorem tax on the value of the appellant’s fleet of freight cars. Marye v. Baltimore & Ohio R. Co., 127 U. S. 117, 123-124; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, 23; Union Refrigerator Transit Co. v. Lynch, 177 U. S. 149; Johnson Oil Refining Co. v. Oklahoma, 290 U. S. 158, 162-163; cf. Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169; Braniff Airways, Inc., v. Nebraska Board of Equalization, 347 U. S. 590, 601. Consequently, the daily average of freight cars located on the CNJ lines in the 1951 tax year, 158 in number, could not constitutionally be included in the computation of this Pennsylvania tax. In this respect, the Pennsylvania Supreme Court’s decision (which is difficult to reconcile with its holding as to the similarly situated locomotives, note 4, supra) cannot be accepted.
III.
We conclude, however, that on the record before us Pennsylvania was constitutionally permitted to tax, at full value, the remainder of appellant’s fleet of freight cars, including those used by other railroads under the Car Service and Per Diem Agreement of the Association of American Railroads. These were, in the language of the stipulation, “regularly, habitually and/or continuously employed” in this manner, but they did not run “on fixed routes and regular schedules” as did the cars used by CNJ.
Since the domiciliary State is precluded from imposing an ad valorem tax on any property to the extent that it could be taxed by another State, not merely on such property as is subjected to tax elsewhere, the validity of Pennsylvania’s tax must be determined by considering whether the facts in the record disclose a possible tax situs in some other jurisdiction. Had the record shown that appellant’s cars traveled through other States along fixed and regular routes, even if it were silent with respect to the length of time spent in each nondomiciliary State, it would doubtless follow that the States through which the regular traffic flowed could impose a property tax measured by some fair apportioning formula. Cf. Braniff Airways, Inc., v. Nebraska Board of Equalization, 347 U. S. 590. And this would render unconstitutional any domiciliary ad valorem tax at full value on property that could thus be taxed elsewhere. Standard Oil Co. v. Peck, supra, at 384.
Alternatively a nondomiciliary tax situs may be acquired even if the rolling stock does not follow prescribed routes and schedules in its course through the nondomiciliary State. In American Refrigerator Transit Co. v. Hall, 174 U. S. 70, this Court sustained the constitutionality of a Colorado property tax on a stipulated average number of railroad cars that had been located within the territorial limits of Colorado during the tax year, although it was agreed' by the parties that the cars “never were run in said State in fixed numbers nor at regular times, nor as a regular part of particular trains.” Id., at 72. Habitual employment within the State of a substantial number of cars, albeit on irregular routes, may constitute sufficient contact to establish a tax situs permitting taxation of the average number of cars so engaged.
On the record before us, however, we find no evidence, except as to the CNJ cars, of either regular routes through particular nondomiciliary States or habitual presence, though on irregular missions, in particular nondomiciliary States. It is not disputed that many of the railroads listed as owning no track within Pennsylvania do have lines in more than one State, but there is no way of knowing which, if any, of these States may have acquired taxing jurisdiction over some of appellant’s freight cars. And even with respect to railroads whose lines do not extend beyond the borders of a single State, it cannot be determined whether their use of appellant’s cars was habitual or merely sporadic. It must be obvious that the fraction of a railroad’s lines located within Pennsylvania is wholly unilluminating as to the consistency with which that railroad used appellant’s cars in some other State.
In short, except as to freight cars traveling on the lines of the CNJ, this record shows only that a determinable number of appellant’s cars were employed outside the Commonwealth , of Pennsylvania during the relevant tax year. But as this leaves at large the possibility of their having a nondomiciliary tax situs elsewhere, that showing does not suffice under our cases to exclude Pennsylvania from taxing such cars to their full value. Neither Union Refrigerator Transit Co. v. Kentucky, supra, nor Standard Oil Co. v. Peck, supra, is properly read to the contrary. In the former, the case was remanded for further proceedings “not inconsistent” with the Court’s opinion that the cars in question, “so far as they were [permanently] located and employed in other States,” were not subject to the taxing power of the domiciliary State. 199 U. S., at 211. In the latter, the existence of a tax situs in one or more nondomiciliary States sufficiently appeared from the record. Note 6, supra. To accept the proposition that a mere general showing of continuous use of movable property outside the domiciliary State is sufficient to exclude the taxing power of that State with respect to it, would surely result in an unsound rule; in instances where it was ultimately found that a tax situs existed in no other State such property would escape this kind of taxation entirely.
As we have shown there is nothing to the contrary in Standard Oil Co. v. Peck. Note 6, supra. And neither the Braniff nor Ott case points to a different conclusion. In Braniff the airplanes held subject to nondomiciliary taxation were shown by the record to have flown on fixed and regular routes. 347 U. S., at 600-601. In Ott the Court was careful to point out that “the statute ‘was intended to cover and actually covers here, an average portion of property permanently within the State — and by permanently is meant throughout the taxing year.' ” 336 U. S., at 175. (Emphasis added.) In the case before us it is impossible to tell, except as to cars on the lines of the CNJ, what the average number of cars was annually in any given State.
IV.
Finally, we think that the appellant’s equal protection argument is insubstantial and that it was correctly rejected by the Pennsylvania Supreme Court. For purposes of this tax, Pennsylvania could reasonably differentiate ’ between railroads having tracks which lay only within its borders and those whose tracks were located both within and without the State. The various considerations that justify such a classification from a federal constitutional standpoint need hardly be elaborated. It is sufficient to note that the State might reasonably have concluded that the probability of a nondomiciliary apportioned ad valorem tax on a railroad’s total assets is greater if the railroad maintains tracks in another State than if it does not. Or it might have determined that the imposition of franchise or other taxes by nondomiciliary States in which the. railroad did business compelled some mitigation of the domiciliary’s property tax in order to prevent an oppressive tax burden. In either event, the possible basis for the taxing measure’s classification would be reasonable and could not be held to violate the Equal Protection Clause. Cf. Allied Stores of Ohio, Inc., v. Bowers, 358 U. S. 522, 526-528; Stebbins v. Riley, 268 U. S. 137, 142; Kidd v. Alabama, 188 U. S. 730.
Accordingly, we conclude that with respect to all cars other than those employed by CNJ on its lines in New Jersey the appellant has failed to sustain its burden of proving that a tax situs had been acquired elsewhere. The exemption was properly disallowed in this regard.
The judgment of the Supreme Court of Pennsylvania is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Frankfurter took no part in the decision of this case.
Mr. Justice White took no pait in the consideration or decision of this case.
The tax imposed by the state statute is denominated a “capital stock tax,” but it has been construed by the Pennsylvania courts as being the equivalent of a property tax. Pennsylvania v. Standard Oil Co., 101 Pa. 119, 145; Pennsylvania v. Union Shipbuilding Co., 271 Pa. 403, 114 A. 257. Property employed by a corporation in its operations in another State and permanently located there is not subject to this tax. Pennsylvania v. American Dredging Co., 122 Pa. 386, 15 A. 443. The value of the capital stock subjected to the tax is determined by multiplying the total value of the capital stock, as measured by the worth of all the corporation’s real and personal property, by the ratio that the value of such nonexempt property within Pennsylvania (including that temporarily outside the State) bears to the value of the corporation’s property everywhere. Purdon’s Pa. Stat. Ann., 1949, Tit. 72, § 1896; Pennsylvania v. Delaware, L. & W. R. Co., 145 Pa. 96, 22 A. 157. With reference to this precise taxing measure, this Court has said in the past that it, in practical effect, amounts to “a tax upon the specific property which gives the added value to the capital stock.” Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341, 357.
If appellant’s entire fleet of cars (3,074) is multiplied by the number of days in the year 1951 (365), the total number of “car days” comes to 1,122,010. Appellant’s schedules show that 605,678 “car days” were spent on railroads which owned no track in Pennsylvania. If this latter number is divided by 365, the quotient (1,659) represents the average number of cars located on such railroads on any one day during 1951.
For example, appellant computes 91,899 “car days” as having been spent on the lines of the New York Central Railroad. Since 7.36% of that railroad’s track mileage is within Pennsylvania, appellant allocates 6,764 “car days,” a proportional share, to Pennsylvania.
The Supreme Court of Pennsylvania did find, however, that certain diesel locomotives which had been leased to CNJ by the appellant and which traveled along fixed routes and schedules had acquired a tax situs in New Jersey and could not be taxed at their full value by Pennsylvania. The State has not sought review of this part of that decision.
E. g., Southern Pac. Co. v. Kentucky, 222 U. S. 63; Johnson Oil Refining Co. v. Oklahoma, 290 U. S. 158; Northwest Airlines, Inc., v. Minnesota, 322 U. S. 292; Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169; Standard Oil Co. v. Peck, 342 U. S. 382; Braniff Airways. Inc., v. Nebraska State Board of Equalization, 347 U. S. 590. See generally Developments, 75 Harv. L. Rev. 953, 979-987.
The record in Standard Oil Co. v. Peck discloses that the boats and barges which Ohio sought to tax had been traveling along three regular routes on the Mississippi and Ohio Rivers: from Memphis, Tennessee, to Mt. Vernon, Indiana; from Memphis, Tennessee, to Bromley, Kentucky; and from Baton Rouge or Gibson’s Landing, Louisiana, to Bromley, Kentucky. The States in which the vessels landed, as well as those through which they regularly traveled, could undoubtedly have traced these regular trips and levied appropriately apportioned ad valorem taxes.
The fact that revenues for the use of one or more of appellant’s cars were accounted for by a subscriber to the “Car Service and Per Diem Agreement” does not necessarily indicate that such cars were ever used on the lines of that subscriber. For under the Agreement subscribers were authorized to permit the use of another railroad’s cars by nonsubscribers, though they themselves remained liable to the owner railroad for the per diem rentals in respect of their nonsubscriber use.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
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"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
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"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
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"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
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"Federal Energy Administration",
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"Federal Housing Administration",
"Federal Home Loan Bank Board",
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"Comptroller General",
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"Department or Secretary of Health, Education and Welfare",
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"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
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"NO Admin Action",
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] |
[
116
] |
McCULLOCH, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, et al. v. SOCIEDAD NACIONAL de MARINEROS de HONDURAS.
No. 107.
Argued December 11-12, 1962.
Decided February 18, 1963.
Dominick L. Manoli argued the cause for petitioners in Nos. 91 and 107. With him on briefs for the Regional Director and members of the National Labor Relations Board in all three cases were Stuart Rothman and Norton J. Come.
Herman E. Cooper argued the cause for petitioner in No. 93. With him on the brief was H. Howard Ostrin.
Charles S. Rhyne argued the cause for respondent in No. 107. With him on the brief was Brice W. Rhyne.
Orison S. Marden argued the cause for respondent in Nos. 91 and 93. With him on the brief was Chester Bordeau.
Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Acting Assistant Attorney General Guilfoyle, Daniel M. Friedman and Morton Hollander.
Briefs of amici curiae, urging affirmance, were filed by Lawrence Hunt for the Government of the United Kingdom of Great Britain and Northern Ireland, by Robert MacCrate for Canada, by James F. Sams for the Government of the Republic of Honduras, and by Alfred Giardino for the United Fruit Company.
A brief urging reversal was filed by J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae.
Together with No. 91, McLeod, Regional Director, National Labor Relations Board, v. Empresa Hondurena de Vapores, S. A., and No.-93, National Maritime Union of America, AFL-CIO, v. Empresa Hondurena de Vapores, S. A., both on certiorari to the United States Court of Appeals for the Second Circuit, argued and decided on the same dates.
Mr. Justice Clark
delivered the opinion of the Court.
These companion cases, involving the same facts, question the coverage of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 641, 29 U. S. C. §§ 151 et seq. A corporation organized and doing business in the United States beneficially owns seagoing vessels which make regular sailings between United States, Latin American and other ports transporting the corporation’s products and other supplies; each of the vessels is legally owned by a foreign subsidiary of the American corporation, flies the flag of a foreign nation, carries a foreign crew and has other contacts with the nation of its flag. The question arising is whether the Act extends to the crews engaged in. such a maritime operation. The National Labor Relations Board in a representation proceeding on the application of the National Maritime Union held that it does and ordered an election. 134 N. L. R. B. 287. The vessels’ foreign owner sought to enjoin the Board’s Regional Director from holding the election, but the District Court for the Southern District of New York denied the requested relief. 200 F. Supp. 484. The Court of Appeals for the Second Circuit reversed, holding that the Act did not apply to the maritime operations here and thus the Board had no power to direct the election. 300 F. 2d 222. The N. M. U. had intervened in the proceeding, and it petitioned for a writ of certiorari (No. 93), as did the Regional Director (No. 91). Meanwhile, the United States District Court for the District of Columbia, on application of the foreign bargaining agent of the vessels’ crewmen, enjoined the Board members in No. 107. 201 F. Supp. 82. We granted each of the three petitions for certiorari, 370 U. S. 915, and consolidated the cases for argument.
We have concluded that the jurisdictional provisions of the Act do not extend to maritime operations of foreign-flag ships employing alien seamen.
I.
The National Maritime Union of America, AFL-CIO, filed a petition in 1959 with the National Labor Relations Board seeking certification under § 9 (c) of the Act, 29 U. S. C. § 159 (c), as the representative of the unlicensed seamen employed upon certain Honduran-flag vessels owned by Empresa Hondurena de Vapores, S. A., a Honduran corporation. The petition was filed against United Fruit Company, a New Jersey corporation which was alleged to be the owner of the majority of Empresa’s stock. Empresa intervened and on hearing it was shown that United Fruit owns all of its stock and elects its directors, though no officer or director of Empresa is an officer or director of United Fruit and all are residents of Honduras. In turn the proof was that United Fruit is owned by citizens of the United States and maintains its principal office at Boston. Its business was shown to be the cultivation, gathering, transporting and sale of bananas, sugar, cacao and other tropical produce raised in Central and South American countries and sold in the United States.
United Fruit maintains a fleet of cargo vessels which it utilizes in this trade. A portion of the fleet consists of 13 Honduran-registered vessels operated by Empresa and time chartered to United Fruit, which vessels were included in National Maritime Union’s representation proceeding. The crews on these vessels are recruited by Empresa in Honduras. They are Honduran citizens (save one Jamaican) and claim that country as their residence and home port. The crew are required to sign Honduran shipping articles, and their wages, terms and condition of employment, discipline, etc., are controlled by a bargaining agreement between Empresa and a Honduran union, Sociedad Nacional de Marineros de Honduras. Under the Honduran Labor Code only a union whose “juridic personality” is recognized by Honduras and which is composed of at least 90% of Honduran citizens can represent the seamen on Honduran-registered ships. The N. M. U. fulfils neither requirement. Further, under Honduran law recognition of Sociedad as the bargaining agent compels Empresa to deal exclusively with it on all matters covered by the contract. The current agreement in addition to recognition of Sociedad provides for a union shop, with a no-strike-or-lockout provision, and sets up wage scales, special allowances, maintenance and cure provisions, hours of work, vacation time, holidays, overtime, accident prevention, and other details of employment as well.
United Fruit, however, determines the ports of call of the vessels, their cargoes and sailings, integrating the same into its fleet organization. While the voyages are for the most part between Central and South American ports and those of the United States, the vessels each call at regular intervals at Honduran ports for the purpose of taking on and discharging cargo and, where necessary, renewing the ship’s articles.
II.
The Board concluded from these facts that United Fruit operated a single, integrated maritime operation within which were the Empresa vessels, reasoning that United Fruit was a joint employer with Empresa of the seamen covered by N. M. U.’s petition. Citing its own West India Fruit & Steamship Co. opinion, 130 N. L. R. B. 343 (1961), it concluded that the maritime operations involved substantial United States contacts, outweighing the numerous foreign contacts present. The Board held that Empresa was engaged in “commerce” within the meaning of §2(6) of the Act and that the maritime operations “affected commerce” within § 2 (7), meeting the jurisdictional requirement of § 9 (c) (l). It therefore ordered an election to be held among the seamen signed on Empresa’s vessels to determine whether they wished N. M. U., Sindicato Maritimo Nacional de Honduras, or no union to represent them.
As we have indicated, both Empresa and Sociedad brought suits in Federal District Courts to prevent the election, Empresa proceeding in New York against the Regional Director — Nos. 91 and 93 — and Sociedad in the District of Columbia against the members of the Board— No. 107. In Nos. 91 and 93 the jurisdiction of the District Court was challenged on two grounds: first, that review of representation proceedings is limited by § 9 (d) of the Act, 29 U. S. C. § 169 (d), to indirect review as part of a petition for enforcement or review of an order entered under § 10 (c), 29 U. S. C. § 160 (e); and, second, that the Board members were indispensable parties to the action. The challenge based upon § 9 (d) was not raised or adjudicated in Sociedad’s action against the Board members — No. 107 — and the indispensable-parties challenge is of course not an issue. Sociedad is not a party in Nos. 91 and 93, although the impact of the Board order— the same order challenged in No. 107 — is felt by it. That order has the effect of canceling Sociedad’s bargaining agreement with Empresa’s seamen, since Sociedad is not on the ballot called for by the Board. No. 107, therefore, presents the question in better perspective, and we have chosen it as the vehicle for our adjudication on the merits. This obviates our passing on the jurisdictional questions raised in Nos. 91 and 93, since the disposition of those cases is controlled by our decision in No. 107.
We are not of course precluded from reexamining the jurisdiction of the District Court in Sociedad’s action, merely because no challenge was made by the parties. Mitchell v. Maurer, 293 U. S. 237, 244 (1934). Having examined the question whether the District Court had jurisdiction at the instance of Sociedad to enjoin the Board’s order, we hold that the action falls within the limited exception fashioned in Leedom v. Kyne, 358 U. S. 184 (1958). In that case judicial intervention was permitted since the Board’s order was “in excess of its delegated powers and. contrary to a specific prohibition in the Act.” Id., at 188. While here the Board has violated no specific prohibition in the Act, the overriding consideration is that the Board’s assertion of power to determine the representation of foreign seamen aboard vessels under foreign flags has aroused vigorous protests from foreign governments and created international problems for our Government. Important interests of the immediate parties are of course at stake. But the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board’s power. No question of remotely comparable urgency was involved in Kyne, which was a purely domestic adversary situation. The exception recognized today is therefore not to be taken as an enlargement of the exception in Kyne.
III.
Since the parties all agree that the Congress has constitutional power to apply the National Labor Relations Act to the crews working foreign-flag ships, at least while they are in American waters, The Exchange, 7 Cranch 116, 143 (1812); Wildenhus’s Case, 120 U. S. 1, 11 (1887) ; Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 142 (1957), we go directly to the question whether Congress exercised that power. Our decision on this point being dispositive of the case, we do not reach the other questions raised by the parties and the amici curiae.
The question of application of the laws of the United States to foreign-flag ships and their crews has arisen often and in various contexts. As to the application of the National Labor Relations Act and its amendments, the Board has evolved a test relying on the relative weight of a ship’s foreign as compared with its American contacts. That test led the Board to conclude here, as in West India Fruit & Steamship Co., supra, that the foreign-flag ships’ activities affected “commerce” and brought them within the coverage of the Act. Where the balancing of the vessel’s contacts has resulted in a contrary finding, the Board has concluded that the Act does not apply.
Six years ago this Court considered the question of the application of the Taft-Hartley amendments to the Act in a suit for damages “resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel [was] temporarily in an American port.” Benz v. Compania Naviera Hidalgo, supra, at 139. We held that the Act did not apply, searching the language and the legislative history and concluding that the latter “inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions.” Id., at 144. Subsequently, in Marine Cooks & Stewards v. Panama S. S. Co., 362 U. S. 365 (1960), we held that the Norris-LaGuardia Act, 29 U. S. C. § 101, deprived a Federal District Court of jurisdiction to enjoin picketing of a foreign-flag ship, specifically limiting the holding to the jurisdiction of the court “to issue the injunction it did under the circumstances shown.” Id., at 372. That case cannot be regarded as limiting the earlier Benz holding, however, since no question as to “whether the picketing . . . was tortious under state or federal law” was either presented or decided. Ibid. Indeed, the Court specifically noted that the application of the Norris-LaGuardia Act “to curtail and regulate the jurisdiction of courts” differs from the application of the Taft-Hartley Act “to regulate the conduct of people engaged in labor disputes.” Ibid.; see Comment, 69 Yale L. J. 498, 523-525 (1960).
It is contended that this case is nonetheless distinguishable from Benz in two respects. First, here there is a fleet of vessels not temporarily in United States waters but operating in a regular course of trade between foreign ports and those of the United States; and, second, the foreign owner of the ships is in turn owned by an American corporation. We note that both of these points rely on additional American contacts and therefore necessarily presume the validity of the “balancing of contacts” theory of the Board. But to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American, ports. Such activity would raise considerable disturbance not only in the field of maritime law but in our international relations as well. In addition, enforcement of Board orders would project the courts into application of the sanctions of the Act to foreign-flag ships on a purely ad hoc weighing of contacts basis. This would inevitably lead to embarrassment in foreign affairs and be entirely infeasible in actual practice. The question, therefore, appears to us more basic; namely, whether the Act as written was intended to have any application to foreign registered vessels employing alien seamen.
Petitioners say that the language of the Act may be read literally as including foreign-flag vessels within its coverage. But, as in Benz, they have been unable to point to any specific language in the Act itself or in its extensive legislative history that reflects such a congressional intent. Indeed, the opposite is true as we found in Benz, where we pointed to the language of Chairman Hartley characterizing the Act as “a bill of rights both for American workingmen and for their employers.” 353 U. S., at 144. We continue to believe that if the sponsors of the original Act or of its amendments conceived of the application now sought by the Board they failed to translate such thoughts into describing the boundaries of the Act as including foreign-flag vessels manned by alien crews. Therefore, we find no basis for a construction which would exert United States jurisdiction over and apply its laws to the internal management and affairs of the vessels here flying the Honduran flag, contrary to the recognition long afforded them not only by our State Department but also by the Congress. In addition, our attention is called to the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus’s Case, supra, at 12; Colombos, The International Law of the Sea (3d rev. ed. 1954), 222-223. The possibility of international discord cannot therefore be gainsaid. Especially is this true on account of the concurrent application of the Act and the Honduran Labor Code that would result with our approval of jurisdiction. Sociedad, currently the exclusive bargaining agent of Empresa under Honduran law, would have a head-on collision with N. M. U. should it become the exclusive bargaining agent under the Act. This would be aggravated by the fact that under Honduran law N. M. U. is prohibited from representing the seamen on Honduran-flag ships even in the absence of a recognized bargaining agent. Thus even though Socie-dad withdrew from such an intramural labor fight — a highly unlikely circumstance — questions of such international import would remain as to invite retaliatory action from other nations as well as Honduras.
The presence of such highly charged international circumstances brings to mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118 (1804), that “an act of congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .” We therefore conclude, as we did in Benz, that for us to sanction the exercise of local sovereignty under such conditions in this “delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.” 353 U. S., at 147. Since neither we nor the parties are able to find any such clear expression, we hold that the Board was without jurisdiction to order the election. This is not to imply, however, “any impairment of our own sovereignty, or limitation of the power of Congress” in this field. Lauritzen v. Larsen, 345 U. S. 571, 578 (1953). In fact, just as we directed the parties in Benz to the Congress, which “alone has the facilities necessary to make fairly such an important policy decision,” 353 U. S., at 147, we conclude here that the arguments should be directed to the Congress rather than to us. Cf. Lauritzen v. Larsen, supra, at 593.
The judgment of the District Court is therefore affirmed in No. 107. The judgment of the Court of Appeals in Nos. 91 and 93 is vacated and the cases are remanded to that court, with instructions that it remand to the District Court for dismissal of the complaint in light of our decision in No. 107. It is so ordered.
Mr. Justice Goldberg took no part in the consideration or decision of these cases.
In No. 107, appeal was perfected to the Court of Appeals for the District of Columbia Circuit, to which court we granted a writ of certiorari before judgment.
Ten of the 13 vessels are owned and operated by Empresa. Three are owned by Balboa Shipping Co., Inc., a Panamanian subsidiary of United Fruit. Empresa acts as an agent for Balboa in the management of the latter vessels.
29 U. S. C. § 152 (6):
“The term ‘commerce’ means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.”
29 U. S. C. § 152 (7):
“The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.”
29 U. S. C. §159 (c)(1):
“Whenever a petition shall have been filed . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing . . . .”
Section 10 (a) of the Act, 29 U. S. C. § 160 (a), imposes the same requirement, empowering the Board to “prevent any person from engaging in any unfair labor practice . . . affecting commerce.”
Sindicato, a Honduran union, had intervened in the proceeding. Sociedad was invited to intervene but declined to do so.
See generally Comment, 69 Yale L. J. 498, 506-511 (1960); Boczek, Flags of Convenience (1962).
E. g., Dalzell Towing Co., 137 N. L. R. B. No. 48, 50 L. R. R. M. 1164 (1962).
Our conclusion does not foreclose such a procedure in differeiit contexts, such as the Jones Act, 46 U. S. C. § 688, where the pervasive regulation of the internal order of a ship may not be present. As regards application of the Jones Act to maritime torts on foreign ships, however, the Court has stated that “[p]erhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag.” Lauritzen v. Larsen, 345 U. S. 571, 584 (1953); see Romero v. International Terminal Operating Co., 358 U. S. 354, 381-384 (1959); Boczek, op. cit., supra, note 7, at 178-180.
In 1959 Congress enacted § 14 (c)(1) of the Act, 29 U. S. C. (Supp. II) §164 (c)(1), granting the Board discretionary power to decline jurisdiction over labor disputes with insubstantial effects, with a proviso that:
“. . . the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959.”
It is argued that the Board would have exerted jurisdiction over Empresa’s vessels and crewmen under those “standards,” as illustrated by its action in Peninsular & Occidental Steamship Co., 120 N. L. R. B. 1097 (1958), about which case the Congress is presumed to have known. Aside from the fact that Congress presumably was aware also of our decision in Benz, the argument is unconvincing. Nothing in the language or the legislative history of the 1959 amendments to the Act clearly indicates a congressional intent to apply the Act to foreign-flag ships and their crews. The “standards” to which § 14 (c) (1) refers are the minimum dollar amounts established by the Board for jurisdictional purposes, and the problem to which § 14 (c) is addressed is the “no-man’s land” created by Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957). See 25 N. L. R. B. Ann. Rep. 18-19 (1960); II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959), 1153-1154, 1720; 105 Cong. Rec. 6548-6549, 18134.
State Department regulations provide that a foreign vessel includes “any vessel regardless of ownership, which is documented under the laws of a foreign country.” 22 CFR § 81.1 (f).
Article X of the Treaty of Friendship, Commerce and Consular Rights between Honduras and the United States, 45 Stat. 2618 (1927), provides that merchant vessels flying the flags and having the papers of either country “shall, both within the territorial waters of the other High Contracting Party and on the high seas, be deemed to be the vessels of the Party whose flag is flown.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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WYETH v. LEVINE
No. 06-1249.
Argued November 3, 2008
Decided March 4, 2009
Stevens, J., delivered the opinion of the Court, in which Kennedy, Soutee, Ginsbukg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, post, p. 581. Thomas, J., filed an opinion concurring in the judgment, post, p. 582. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia, J., joined, post, p. 604.
Seth P. Waxman argued the cause for petitioner. With him on the briefs were Paul R. Q. Wolfson, Bert W. Rein, Allan R. Keyes, and R. Joseph O’Rourke.
Then-Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Clem ent, then-Assistant Attorney General Katsas, Daryl Josef-fer, Douglas N. Letter, Peter R. Maier, and Gerald F. Masoudi.
David C. Frederick argued the cause for respondent. With him on the brief were Scott H. Angstreich, Scott K. Attaway, Brendan J. Crimmins, and Richard I. Rubin.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Alan E. Untereiner, Robin S. Conrad, and Amar D. Sarwal; for DRI-The Voice of the Defense Bar by Daniel E. Troy, Rebecca K. Wood, Eamon P. Joyce, and Michael W. Davis; for the Generic Pharmaceutical Association by Jay P. Lefkowitz and Michael D. Shumsky; for PhRMA et al. by Robert A. Long, Jr., and Paul W. Schmidt; for the Product Liability Advisory Council, Inc., by Kenneth S. Getter and Andrew E. Tauber; for the Washington Legal Foundation et al. by Eric G. Lasker, Daniel J. Popeo, and Richard A. Samp; and for John E. Calfee et al. by Joe G. Hollingsworth, Katharine R. Latimer, and Erie G. Lasker.
Briefs of amici curiae urging affirmance were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, Kevin O. Leske, Assistant Attorney General, by Dan Schweitzer, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Tails J. Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Steve Six of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary K. King of New Mexico, Andrew M. Cuomo of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Nancy Rogers of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for A ARP et al. by Charles L. Becker, Bruce Vignery, Stacy J. Canan, and Michael R. Schuster; for the American Association for Justice by Louis M. Bograd, Francine A. Hochberg, and Les Weisbrod; for the California Medical Association by Collyn A. Peddie and Francisco J. Silva; for the Center for State Enforcement of Antitrust and Consumer Protection Laws, Inc., by Thomas W. Merrill and Stephen D. Houck; for the Constitutional Accountability Center by Elizabeth B. Wydra, Sean H. Donahue, and David T. Goldberg; for Constitutional and Administrative Law Scholars by Ernest A. Young and Erin Glenn Busby; for the Consumers Union of United States, Inc., by Mark R. Savage; for DES Action by Aaron M. Levine; for former FDA Commissioner Dr. Donald Kennedy et al. by David C. Vladeck; for Members of Congress by Jonathan S. Massey; for the National Conference of State Legislatures by Elizabeth J. Cabraser; for the New England Journal of Medicine Editors and Authors by Gerson H. Smoger, Arthur H. Bryant, and Leslie A. Brueckner; for the Senior Citizens League by John S. Miles, Herbert W. Titus, and William J. Olson; for the Texas Medical Association et al. by R. Brent Cooper, Diana L. Faust, Jay H. Henderson, and Donald P. Wilcox; for Anju Budhwani, M.D., et al. by Stanley D. Bernstein; for Daniel Paul Carpenter et al. by Gregory S. Coleman and Christian J. Ward; for Mark P. Gergen et al. by Michael F. Sturley; for David B. Ross, M.D., Ph.D., et al. by Michael J. Quirk, Mark R. Cuker, and Esther E. Berezofsky; and for Kim Witczak et al. by Earl Landers Vickery and W. Mark Lanier.
Briefs of amici curiae were filed for the Citizens Commission on Human Rights by Kendrick L. Moxon; and' for the National Coalition Against Censorship by Erwin Chemerinsky and Sharon J. Arkin.
Justice Stevens
delivered the opinion of the Court.
Directly injecting the drug Phenergan into a patient’s vein creates a significant risk of catastrophic consequences. A Vermont jury found that petitioner Wyeth, the manufacturer of the drug, had failed to provide an adequate warning of that risk and awarded damages to respondent Diana Levine to compensate her for the amputation of her arm. The warnings on Phenergan’s label had been deemed sufficient by the federal Food and Drug Administration (FDA) when it approved Wyeth’s new drug application in 1955 and when it later approved changes in the drug’s labeling. The question we must decide is whether the FDA’s approvals provide Wyeth with a complete defense to Levine’s tort claims. We conclude that they do not.
I
Phenergan is Wyeth’s brand name for promethazine hydrochloride, an antihistamine used to treat nausea. The inject-able form of Phenergan can be administered intramuscularly or intravenously, and it can be administered intravenously through either the “IV-push” method, whereby the drug is injected directly into a patient’s vein, or the “IV-drip” method, whereby the drug is introduced into a saline solution in a hanging intravenous bag and slowly descends through a catheter inserted in a patient’s vein. The drug is corrosive and causes irreversible gangrene if it enters a patient’s artery.
Levine’s injury resulted from an IV-push injection of Phenergan. On April 7, 2000, as on previous visits to her local clinic for treatment of a migraine headache, she received an intramuscular injection of Demerol for her headache and Phenergan for her nausea. Because the combination did not provide relief, she returned later that day and received a second injection of both drugs. This time, the physician assistant administered the drugs by the IV-push method, and Phenergan entered Levine’s artery, either because the needle penetrated an artery directly or because the drug escaped from the vein into surrounding tissue (a phenomenon called “perivascular extravasation”) where it came in contact with arterial blood. As a result, Levine developed gangrene, and doctors amputated first her right hand and then her entire forearm. In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician.
After settling claims against the health center and clinician, Levine brought an action for damages against Wyeth, relying on common-law negligence and strict-liability theories. Although Phenergan’s labeling warned of the danger of gangrene and amputation following inadvertent intraarterial injection, Levine alleged that the labeling was defective because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method. More broadly, she alleged that Phenergan is not reasonably safe for intravenous administration because the foreseeable risks of gangrene and loss of limb are great in relation to the drug’s therapeutic benefits. App. 14-15.
Wyeth filed a motion for summary judgment, arguing that Levine’s failure-to-warn claims were pre-empted by federal law. The court found no merit in either Wyeth’s field preemption argument, which it has since abandoned, or its conflict pre-emption argument. With respect to the contention that there was an “actual conflict between a specific FDA order,” id., at 21, and Levine’s failure-to-warn action, the court reviewed the sparse correspondence between Wyeth and the FDA about Phenergan’s labeling and found no evidence that Wyeth had “earnestly attempted” to strengthen the intra-arterial injection warning or that the FDA had “specifically disallowed” stronger language, id., at 23. The record, as then developed, “lack[ed] any evidence that the FDA set a ceiling on this matter.” Ibid.
The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection or perivascular ex-travasation can be almost entirely eliminated through the use of IV-drip, rather than IV-push, administration. An IV drip is started with saline, which will not flow properly if the catheter is not in the vein and fluid is entering an artery or surrounding tissue. See id., at 50-51, 60, 66-68, 75. By contrast, even a careful and experienced clinician using the IV-push method will occasionally expose an artery to Phenergan. See id., at 73, 75-76. While Phenergan’s labeling warned against intra-arterial injection and perivascular ex-travasation and advised that “[w]hen administering any irritant drug intravenously it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily,” id., at 390, the labeling did not contain a specific warning about the risks of IV-push administration.
The trial record also contains correspondence between Wyeth and the FDA discussing Phenergan’s label. The FDA first approved injectable Phenergan in 1955. In 1973 and 1976, Wyeth submitted supplemental new drug applications, which the agency approved after proposing labeling changes. Wyeth submitted a third supplemental application in 1981 in response to a new FDA rule governing drug labels. Over the next 17 years, Wyeth and the FDA intermittently corresponded about Phenergan’s label. The most notable activity occurred in 1987, when the FDA suggested different warnings about the risk of arterial exposure, and in 1988, when Wyeth submitted revised labeling incorporating the proposed changes. The FDA did not respond. Instead, in 1996, it requested from Wyeth the labeling then in use and, without addressing Wyeth’s 1988 submission, instructed it to “[rjetain verbiage in current label” regarding intra-arterial injection. Id., at 359. After a few further changes to the labeling not related to intra-arterial injection, the FDA approved Wyeth’s 1981 application in 1998, instructing that Phenergan’s final printed label “must be identical” to the approved package insert. Id., at 382.
Based on this regulatory history, the trial judge instructed the jury that it could consider evidence of Wyeth’s compliance with FDA requirements but that such compliance did not establish that the warnings were adequate. He also instructed, without objection from Wyeth, that FDA regulations “permit a drug manufacturer to change a product label to add or strengthen a warning about its product without prior FDA approval so long as it later submits the revised warning for review and approval.” Id., at 228.
Answering questions on a special verdict form, the jury found that Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had broken the causal connection between the product defects and the plaintiff’s injury. Id., at 233-235. It awarded total damages of $7,400,000, which the court reduced to account for Levine’s earlier settlement with the health center and clinician. Id., at 235-236.
On August 3, 2004, the trial court filed a comprehensive opinion denying Wyeth’s motion for judgment as a matter of law. After making findings of fact based on the trial record (supplemented by one letter that Wyeth found after the trial), the court rejected Wyeth’s pre-emption arguments. It determined that there was no direct conflict between FDA regulations and Levine’s state-law claims because those regulations permit strengthened warnings without FDA approval on an interim basis and the record contained evidence of at least 20 reports of amputations similar to Levine’s since the 1960’s. The court also found that state tort liability in this case would not obstruct the FDA’s work because the agency had paid no more than passing attention to the question whether to warn against IV-push administration of Phenergan. In addition, the court noted that state law serves a compensatory function distinct from federal regulation. Id., at 249-252.
The Vermont Supreme Court affirmed. It held that the jury’s verdict “did not conflict with FDA’s labeling requirements for Phenergan because [Wyeth] could have warned against IV-push administration without prior FDA approval, and because federal labeling requirements create a floor, not a ceiling, for state regulation.” 183 Vt. 76, 84, 944 A. 2d 179,184 (2006). In dissent, Chief Justice Reiber argued that the jury’s verdict conflicted with federal law because it was inconsistent with the FDA’s conclusion that intravenous administration of Phenergan was safe and effective.
The importance of the pre-emption issue, coupled with the fact that the FDA has changed its position on state tort law and now endorses the views expressed in Chief Justice Reiber’s dissent, persuaded us to grant Wyeth’s petition for certiorari. 552 U. S. 1161 (2008). The question presented by the petition is whether the FDA’s drug labeling judgments “preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.” Pet. for Cert. i.
II
Wyeth makes two separate pre-emption arguments: first, that it would have been impossible for it to comply with the state-law duty to modify Phenergan’s labeling without violating federal law, see Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), and second, that recognition of Levine’s state tort action creates an unacceptable “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), because it substitutes a lay jury’s decision about drug labeling for the expert judgment of the FDA. As a preface to our evaluation of these arguments, we identify two factual propositions decided during the trial court proceedings, emphasize two legal principles that guide our analysis, and review the history of the controlling federal statute.
The trial court proceedings established that Levine’s injury would not have occurred if Phenergan’s label had included an adequate warning about the risks of the IV-push method of administering the drug. The record contains evidence that the physician assistant administered a greater dose than the label prescribed, that she may have inadvertently injected the drug into an artery rather than a vein, and that she continued to inject the drug after Levine complained of pain. Nevertheless, the jury rejected Wyeth’s argument that the clinician’s conduct was an intervening cause that absolved it of liability. See App. 234 (jury verdict), 252-254. In finding Wyeth negligent as well as strictly liable, the jury also determined that Levine’s injury was foreseeable. That the inadequate label was both a but-for and proximate cause of Levine’s injury is supported by the record and no longer challenged by Wyeth.
The trial court proceedings further established that the critical defect in Phenergan’s label was the lack of an adequate warning about the risks of IV-push administration. Levine also offered evidence that the IV-push method should be contraindicated and that Phenergan should never be administered intravenously, even by the IV-drip method. Perhaps for this reason, the dissent incorrectly assumes that the state-law duty at issue is the duty to contraindicate the IV-push method. See, e. g., post, at 611, 628. But, as the Vermont Supreme Court explained, the jury verdict established only that Phenergan’s warning was insufficient. It did not mandate a particular replacement warning, nor did it require contraindicating IV-push administration: “There may have been any number of ways for [Wyeth] to strengthen the Phenergan warning without completely eliminating IV-push administration.” 183 Vt., at 92, n. 2, 944 A. 2d, at 189, n. 2. We therefore need not decide whether a state rule proscribing intravenous administration would be pre-empted. The narrower question presented is whether federal law preempts Levine’s claim that Phenergan’s label did not contain an adequate warning about using the IV-push method of administration.
Our answer to that question must be guided by two cornerstones of our pre-emption jurisprudence. First, “the purpose of Congress is the ultimate touchstone in every preemption case.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Second, “[i]n all pre-emption cases, and particularly in those in which Congress has ‘legislated ... in a field which the States have traditionally occupied,’ . . . we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Lohr, 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).
In order to identify the “purpose of Congress,” it is appropriate to briefly review the history of federal regulation of drugs and drug labeling. In 1906, Congress enacted its first significant public health law, the Federal Food and Drugs Act, ch. 3915, 34 Stat. 768. The Act, which prohibited the manufacture or interstate shipment of adulterated or misbranded drugs, supplemented the protection for consumers already provided by state regulation and common-law liability. In the 1930’s, Congress became increasingly concerned about unsafe drugs and fraudulent marketing, and it enacted the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq. The FDCA’s most substantial innovation was its provision for premarket approval of new drugs. It required every manufacturer to submit a new drug application, including reports of investigations and specimens of proposed labeling, to the FDA for review. Until its application became effective, a manufacturer was prohibited from distributing a drug. The FDA could reject an application if it determined that the drug was not safe for use as labeled, though if the agency failed to act, an application became effective 60 days after the filing. FDCA, § 505(c), 52 Stat. 1052.
In 1962, Congress amended the FDCA and shifted the burden of proof from the FDA to the manufacturer. Before 1962, the agency had to prove harm to keep a drug out of the market, but the amendments required the manufacturer to demonstrate that its drug was “safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling” before it could distribute the drug. §§ 102(c), 104(b), 76 Stat. 781, 784. In addition, the amendments required the manufacturer to prove the drug’s effectiveness by introducing “substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling.” § 102(c), id., at 781.
As it enlarged the FDA’s powers to “protect the public health” and “assure the safety, effectiveness, and reliability of drugs,” id., at 780, Congress took care to preserve state law. The 1962 amendments added a saving clause, indicating that a provision of state law would only be invalidated upon a “direct and positive conflict” with the FDCA. § 202, id., at 793. Consistent with that provision, state common-law suits “continued unabated despite ... FDA regulation.” Riegel v. Medtronic, Inc., 552 U. S. 312, 340 (2008) (Ginsburg, J., dissenting); see ibid., n. 11 (collecting state cases). And when Congress enacted an express pre-emption provision for medical devices in 1976, see § 2, 90 Stat. 574 (codified at 21 U. S. C. § 360k(a)), it declined to enact such a provision for prescription drugs.
In 2007, after Levine’s injury and lawsuit, Congress again amended the FDCA. 121 Stat. 823. For the first time, it granted the FDA statutory authority to require a manufacturer to change its drug label based on safety information that becomes available after a drug’s initial approval. § 901(a), id., at 924-926. In doing so, however, Congress did not enact a provision in the Senate bill that would have required the FDA to preapprove all changes to drug labels. See S. 1082, 110th Cong., 1st Sess., §208, pp. 107-114 (2007) (as passed) (proposing new §506D). Instead, it adopted a rule of construction to make it clear that manufacturers remain responsible for updating their labels. See 121 Stat. 925-926.
Ill
Wyeth first argues that Levine’s state-law claims are preempted because it is impossible for it to comply with both the state-law duties underlying those claims and its federal labeling duties. See De la Cuesta, 458 U. S., at 153. The FDA’s premarket approval of a new drug application includes the approval of the exact text in the proposed label. See 21 U. S. C. § 355; 21 CFR § 314.105(b) (2008). Generally speaking, a manufacturer may only change a drug label after the FDA approves a supplemental application. There is, however, an FDA regulation that permits a manufacturer to make certain changes to its label before receiving the agency’s approval. Among other things, this “changes being effected” (CBE) regulation provides that if a manufacturer is changing a label to “add or strengthen a contraindication, warning, precaution, or adverse reaction” or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” it may make the labeling change upon filing its supplemental application with the FDA; it need not wait for FDA approval. §§314.70(c)(6)(iii)(A), (C).
Wyeth argues that the CBE regulation is not implicated in this case because a 2008 amendment provides that a manufacturer may only change its label “to reflect newly acquired information.” 73 Fed. Reg. 49609. Resting on this language (which Wyeth argues simply reaffirmed the interpretation of the regulation in effect when this case was tried), Wyeth contends that it could have changed Phenergan’s label only in response to new information that the FDA had not considered. And it maintains that Levine has not pointed to any such information concerning the risks of IV-push administration. Thus, Wyeth insists, it was impossible for it to discharge its state-law obligation to provide a stronger warning about IV-push administration without violating federal law. Wyeth’s argument misapprehends both the federal drug regulatory scheme and its burden in establishing a pre-emption defense.
We need not decide whether the 2008 CBE regulation is consistent with the FDCA and the previous version of the regulation, as Wyeth and the United States urge, because Wyeth could have revised Phenergan’s label even in accordance with the amended regulation. As the FDA explained in its notice of the final rule, “ ‘newly acquired information’ ” is not limited to new data, but also encompasses “new analyses of previously submitted data.” Id., at 49604. The rule accounts for the fact that risk information accumulates over time and that the same data may take on a different meaning in light of subsequent developments: “[I]f the sponsor submits adverse event information to FDA, and then later conducts a new analysis of data showing risks of a different type or of greater severity or frequency than did reports previously submitted to FDA, the sponsor meets the requirement for ‘newly acquired information.’” Id., at 49607; see also id., at 49606.
The record is limited concerning what newly acquired information Wyeth had or should have had about the risks of IV-push administration of Phenergan because Wyeth did not argue before the trial court that such information was required for a CBE labeling change. Levine did, however, present evidence of at least 20 incidents prior to her injury in which a Phenergan injection resulted in gangrene and an amputation. See App. 74, 252. After the first such incident came to Wyeth’s attention in 1967, it notified the FDA and worked with the agency to change Phenergan’s label. In later years, as amputations continued to occur, Wyeth could have analyzed the accumulating data and added a stronger warning about IV-push administration of the drug.
Wyeth argues that if it had unilaterally added such a warning, it would have violated federal law governing unauthorized distribution and misbranding. Its argument that a change in Phenergan’s labeling would have subjected it to liability for unauthorized distribution rests on the assumption that this labeling change would have rendered Phenergan a new drug lacking an effective application. But strengthening the warning about IV-push administration would not have made Phenergan a new drug. See 21 U. S. C. §321(p)(l) (defining “new drug”); 21 CFR § 310.3(h). Nor would this warning have rendered Phenergan misbranded. The FDCA does not provide that a drug is misbranded simply because the manufacturer has altered an FDA-approved label; instead, the misbranding provision focuses on the substance of the label and, among other things, proscribes labels that fail to include “adequate warnings.” 21 U. S. C. § 352(f). Moreover, because the statute contemplates that federal juries will resolve most misbranding claims, the FDA’s belief that a drug is misbranded is not conclusive. See §§331, 332, 334(a)-(b). And the very idea that the FDA would bring an enforcement action against a manufacturer for strengthening a warning pursuant to the CBE regulation is difficult to accept — neither Wyeth nor the United States has identified a case in which the FDA has done so.
Wyeth’s cramped reading of the CBE regulation and its broad reading of the FDCA’s misbranding and unauthorized distribution provisions are premised on a more fundamental misunderstanding. Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market. See, e. g., 21 CFR § 201.80(e) (requiring a manufacturer to revise its label “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug”); § 314.80(b) (placing responsibility for postmarketing surveillance on the manufacturer); 73 Fed. Reg. 49605 (“Manufacturers continue to have a responsibility under Federal law ... to maintain their labeling and update the labeling with new safety information”).
Indeed, prior to 2007, the FDA lacked the authority to order manufacturers to revise their labels. See 121 Stat. 924-926. When Congress granted the FDA this authority, it reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval. See id., at 925-926 (stating that a manufacturer retains the responsibility “to maintain its label in accordance with existing requirements, including subpart B of part 201 and sections 314-.70 and 601.12 of title 21, Code of Federal Regulations (or any successor regulations)” (emphasis added)). Thus, when the risk of gangrene from IV-push injection of Phenergan became apparent, Wyeth had a duty to provide a warning that adequately described that risk, and the CBE regulation permitted it to provide such a warning before receiving the FDA’s approval.
Of course, the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications. But absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements.
Wyeth has offered no such evidence. It does not argue that it attempted to give the kind of warning required by the Vermont jury but was prohibited from doing so by the FDA. See Tr. of Oral Arg. 12-13; see also Brief for United States as Amicus Curiae 25. And while it does suggest that the FDA intended to prohibit it from strengthening the warning about IV-push administration because the agency deemed such a warning inappropriate in reviewing Phenergan’s drug applications, both the trial court and the Vermont Supreme Court rejected this account as a matter of fact. In its decision on Wyeth’s motion for judgment as a matter of law, the trial court found “no evidence in this record that either the FDA or the manufacturer gave more than passing attention to the issue of” IV-push versus IV-drip administration. App. 249. The Vermont Supreme Court likewise concluded that the FDA had not made an affirmative decision to preserve the IV-push method or intended to prohibit Wyeth from strengthening its warning about IV-push administration. 183 Vt., at 91-92, 944 A. 2d, at 188-189. Moreover, Wyeth does not argue that it supplied the FDA with an evalnation or analysis concerning the specific dangers posed by the IV-push method. We accordingly cannot credit Wyeth’s contention that the FDA would have prevented it from adding a stronger warning about the IV-push method of intravenous administration.
Impossibility pre-emption is a demanding defense. On the record before us, Wyeth has failed to demonstrate that it was impossible for it to comply with both federal and state requirements. The CBE regulation permitted Wyeth to unilaterally strengthen its warning, and the mere fact that the FDA approved Phenergan’s label does not establish that it would have prohibited such a change.
IV
Wyeth also argues that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation. Levine’s tort claims, it maintains, are pre-empted because they interfere with “Congress’s purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.” Brief for Petitioner 46. We find no merit in this argument, which relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law.
Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation: Once the FDA has approved a drug’s label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue. The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary. Building on its 1906 Act, Congress enacted the FDCA to bolster consumer protection against harmful products. See Kordel v. United States, 335 U. S. 345, 349 (1948); United States v. Sullivan, 332 U. S. 689, 696 (1948). Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers. It may also have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings.
If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the FDCA’s 70-year history. But despite its 1976 enactment of an express preemption provision for medical devices, see §2, 90 Stat. 574 (codified at 21 U. S. C. § 360k(a)), Congress has not enacted such a provision for prescription drugs. See Riegel, 552 U. S., at 327 (“Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices”). Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness. As Justice O’Connor explained in her opinion for a unanimous Court: “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 166-167 (1989) (internal quotation marks omitted); see also supra, at 565 (discussing the presumption against pre-emption).
Despite this evidence that Congress did not regard state tort litigation as an obstacle to achieving its purposes, Wyeth nonetheless maintains that, because the FDCA requires the FDA to determine that a drug is safe and effective under the conditions set forth in its labeling, the agency must be presumed to have performed a precise balancing of risks and benefits and to have established a specific labeling standard that leaves no room for different state-law judgments. In advancing this argument, Wyeth relies not on any statement by Congress, but instead on the preamble to a 2006 FDA regulation governing the content and format of prescription drug labels. See Brief for Petitioner 8, 11, 42, 45, and 50 (citing 71 Fed. Reg. 3922 (2006)). In that preamble, the FDA declared that the FDCA establishes “both a ‘floor’ and a ‘ceiling,’” so that “FDA approval of labeling .. . preempts conflicting or contrary State law.” Id., at 3934-3935. It further stated that certain state-law actions, such as those involving failure-to-warn claims, “threaten FDA’s statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.” Id., at 3935.
This Court has recognized that an agency regulation with the force of law can pre-empt conflicting state requirements. See, e. g., Geier v. American Honda Motor Co., 529 U. S. 861 (2000); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 713 (1985). In such cases, the Court has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption. We are faced with no such regulation in this case, but rather with an agency’s mere assertion that state law is an obstacle to achieving its statutory objectives. Because Congress has not authorized the FDA to pre-empt state law directly, cf. 21 U. S. C. § 360k (authorizing the FDA to determine the scope of the Medical Devices Amendments’ pre-emption clause), the question is what weight we should accord the FDA’s opinion.
In prior cases, we have given “some weight” to an agency’s views about the impact of tort law on federal objectives when “the subject matter is technica[l] and the relevant history and background are complex and extensive.” Geier, 529 U. S., at 883. Even in such cases, however, we have not deferred to an agency’s conclusion that state law is preempted. Rather, we have attended to an agency’s explanation of how state law affects the regulatory scheme. While agencies have no special authority to pronounce on preemption absent delegation by Congress, they. do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67; see Geier, 529 U. S., at 883; Lohr, 518 U. S., at 495-496. The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf. United States v. Mead Corp., 533 U. S. 218, 234-235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
Under this standard, the FDA’s 2006 preamble does not merit deference. When the FDA issued its notice of proposed rulemaking in December 2000, it explained that the rule would “not contain policies that have federalism implications or that preempt State law.” 65 Fed. Reg. 81103; see also 71 id., at 3969 (noting that the “proposed rule did not propose to preempt state law”). In 2006, the agency finalized the rule and, without offering States or other interested parties notice or opportunity for comment, articulated a sweeping position on the FDCA’s pre-emptive effect in the regulatory preamble. The agency’s views on state law are inherently suspect in light of this procedural failure.
Further, the preamble is at odds with what evidence we have of Congress’ purposes, and it reverses the FDA’s own longstanding position without providing a reasoned explanation, including any discussion of how state law has interfered with the FDA’s regulation of drug labeling during decades of coexistence. The FDA’s 2006 position plainly does not reflect the agency’s own view at all times relevant to this litigation. Not once prior to Levine’s injury did the FDA suggest that state tort law stood as an obstacle to its statutory mission. To the contrary, it cast federal labeling standards as a floor upon which States could build and repeatedly disclaimed any attempt to pre-empt failure-to-warn claims. For instance, in 1998, the FDA stated that it did “not believe that the evolution of state tort law [would] cause the development of standards that would be at odds with the agency’s regulations.” 68 id., at 66384. It further noted that, in establishing “minimal standards” for drug labels, it did not intend “to preclude the states from imposing additional labeling requirements.” Ibid.
In keeping with Congress’ decision not to pre-empt common-law tort suits, it appears that the FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the post-marketing phase as new risks emerge. State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation. The agency’s 2006 preamble represents a dramatic change in position.
Largely based on the FDA’s new position, Wyeth argues that this case presents a conflict between state and federal law analogous to the one at issue in Geier. There, we held that state tort claims premised on Honda’s failure to install airbags conflicted with a federal regulation that did not require airbags for all cars. The Department of Transportion (DOT) had promulgated a rule that provided car manufacturers with a range of choices among passive restraint devices. Geier, 529 U. S., at 875. Rejecting an “‘all airbag’ ” standard, the agency had called for a gradual phase-in of a mix of passive restraints in order to spur technological development and win consumer acceptance. Id., at 879. Because the plaintiff’s claim was that car manufacturers had a duty to install airbags, it presented an obstacle to achieving “the variety and mix of devices that the federal regulation sought.” Id., at 881.
Wyeth and the dissent contend that the regulatory scheme in this case is nearly identical, but, as we have described, it is quite different. In Geier, the DOT conducted a formal rulemaking and then adopted a plan to phase in a mix of passive restraint devices. Examining the rule itself and the DOT’s contemporaneous record, which revealed the factors the agency had weighed and the balance it had struck, we determined that state tort suits presented an obstacle to the federal scheme. After conducting our own pre-emption analysis, we considered the agency’s explanation of how state law interfered with its regulation, regarding it as further support for our independent conclusion that the plaintiff’s tort claim obstructed the federal regime.
By contrast, we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law. And the FDA’s newfound opinion, expressed in its 2006 preamble, that state law “frustrate[s] the agency’s implementation of its statutory mandate,” 71 Fed. Reg. 3934, does not merit deference for the reasons we have explained. Indeed, the “complex and extensive” regulatory history and background relevant to this case, Geier, 529 U. S., at 883, undercut the FDA’s recent pronouncements of pre-emption, as they reveal the longstanding coexistence of state and federal law and the FDA’s traditional recognition of state-law remedies — a recognition in place each time the agency reviewed Wyeth’s Phenergan label.
In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.
V
We conclude that it is not impossible for Wyeth to comply with its state- and federal-law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed.
It is so ordered.
The warning for “Inadvertent Intra-arterial Injection” stated: “Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances. Intravenous injection was intended in all the cases reported but perivascular extravasation or arterial placement of the needle is now suspect. There is no proven successful management of this condition after it occurs. .. . Aspiration of dark blood does not preclude intraarterial needle placement, because blood is discolored upon contact with Phenergan Injection. Use of syringes with rigid plungers or of small bore needles might obscure typical arterial backflow if this is relied upon alone. When used intravenously, Phenergan Injection should be given in a concentration no greater than 25 mg per mL and at a rate not to exceed 25 mg per minute. When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily. In the event that a patient complains of pain during intended intravenous injection of Phenergan Injection, the injection should be stopped immediately to provide for evaluation of possible arterial placement or perivascular extravasation.” App. 390.
The dissent nonetheless suggests that physician malpractice was the exclusive cause of Levine’s injury. See, e.g., post, at 605 (opinion of Alito, J.) (“[I]t is unclear how a ‘stronger’ warning could have helped respondent”); post, at 619-621 (suggesting that the physician assistant’s conduct was the sole cause of the injury). The dissent’s frustration with the jury’s verdict does not put the merits of Levine’s tort claim before us, nor does it change the question we must decide — whether federal law pre-empts Levine’s state-law claims.
Wyeth argues that the presumption against pre-emption should not apply to this case because the Federal Government has regulated drug labeling for more than a century. That argument misunderstands the principle: We rely on the presumption because respect for the States as “independent sovereigns in our federal system” leads us to assume that “Congress does not cavalierly pre-empt state-law causes of action.”, Lohr, 518 U. S., at 485. The presumption thus accounts for the historic presence of state law but does not rely on the absence of federal regulation.
For its part, the dissent argues that the presumption against preemption should not apply to claims of implied conflict pre-emption at all, post, at 623-624, but this Court has long held to the contrary. See, e. g., California v. ARC America Corp., 490 U. S. 93, 101-102 (1989); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 716 (1985); see also Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355, 387 (2002). The dissent’s reliance on Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001), see post, at 624, and n. 14, is especially curious, as that case involved state-law fraud-on-the-ageney claims, and the Court distinguished state regulation of health and safety as matters to which the presumption does apply. See 531 U. S., at 347-348.
Levine also introduced evidence that Pfizer had withdrawn Vistaril, another antinausea drug, from intravenous use several decades earlier because its intravenous injection had resulted in gangrene and amputations. See App. 79.
The record would not, in any event, support such an argument. In 1988, Wyeth did propose different language for Phenergan’s warning about intra-arterial injection, adapted from revisions the FDA proposed in 1987. See id., at 339-341, 311-312. When the FDA approved Wyeth’s application, it instructed Wyeth to retain the wording in its current label. During the trial court proceedings, Levine indicated that the language proposed in 1988 would have more strongly warned against IV-push administration. But the trial court and the Vermont Supreme Court found that the 1988 warning did not differ in any material respect from the FDA-approved warning. See 183 Vt. 76, 92, 944 A. 2d 179, 189 (2006) (“Simply stated, the proposed warning was different, but not stronger. It was also no longer or more prominent than the original warning . . . ”); App. 248-250. Indeed, the United States concedes that the FDA did not regard the proposed warning as substantively different: “[I]t appears the FDA viewed the change as non-substantive and rejected it for formatting reasons.” Brief for United States as Amicus Curiae 25; see also 183 Vt., at 92-93, 944 A. 2d, at 189.
The dissent’s suggestion that the FDA intended to prohibit Wyeth from strengthening its warning does not fairly reflect the record. The dissent creatively paraphrases a few FDA orders — for instance by conflating warnings about IV-push administration and intra-arterial injection, see, e. g., post, at 612-613, 614-651, 618-619 — to suggest greater agency attention to the question, and it undertakes a study of Phenergan’s labeling that is more elaborate than any FDA order. But even the dissent’s account does not support the conclusion that the FDA would have prohibited Wyeth from adding a stronger warning pursuant to the CBE regulation.
Although the first version of the bill that became the FDCA would have provided a federal cause of action for damages for injured consumers, see H. R. 6110, 73d Cong., 1st Sess., §25 (1933) (as introduced), witnesses testified that such a right of action was unnecessary because common-law claims were already available under state law. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 400 (1933) (statement of W. A. Hines); see id., at 403 (statement of J. A. Ladds) (“This act should not attempt to modify or restate the common law with respect to personal injuries”).
In 1997, Congress pre-empted certain state requirements concerning over-the-counter medications and cosmetics but expressly preserved product liability actions. See 21 U. S. C. §§ 379r(e), 379s(d) (“Nothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State”).
For similar examples, see 47 U. S. C. §§ 253(a), (d) (2000 ed.) (authorizing the Federal Communications Commission to pre-empt “any [state] statute, regulation, or legal requirement” that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”); 30 U. S. C. § 1254(g) (2006 ed.) (pre-empting any statute that conflicts with “the purposes and the requirements of this chapter” and permitting the Secretary of the Interior to “set forth any State law or regulation which is preempted and superseded”); and 49 U. S. C. § 5125(d) (2000 ed. and Supp. V) (authorizing the Secretary of Transportation to decide whether a state or local statute that conflicts with the regulation of hazardous waste transportation is pre-empted).
See also 44 Fed. Reg. 37437 (1979) (“It is not the intent of the FDA to influence the civil tort liability of the manufacturer”); 59 Fed. Reg. 3948 (1994) (“[P]roduct liability plays an important role in consumer protection”); Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L. J. 7, 10 (1997) (former chief counsel to the FDA stating that the FDA regarded state law as complementing the agency’s mission of consumer protection).
In 1955, the same year that the agency approved Wyeth’s Phenergan application, an FDA advisory committee issued a report finding “conclusively” that “the budget and staff of the [FDA] are inadequate to permit the discharge of its existing responsibilities for the protection of the American public.” Citizens Advisory Committee on the FDA, Report to the Secretary of Health, Education, and Welfare, H. R. Doe. No. 227, 84th Cong., 1st Sess., 53. Three recent studies have reached similar conclusions. See FDA Science Board, Report of the Subcommittee on Science and Technology: FDA Science and Mission at Risk 2, 6 (2007), online at http://Avww.fda.gov/ohrms/dockets/ac/07/briefing/2007-4329b_02_01_FD A% 20Report%20on%20Science%20and%20Teehnology.pdf (all Internet materials as visited Feb. 23, 2009, and available in Clerk of Court’s case file) (“[T]he Agency suffers from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities”); National Academies, Institute of Medicine, The Future of Drug Safety: Promoting and Protecting the Health of the Public 193-194 (2007) (“The [FDA] lacks the resources needed to accomplish its large and complex mission .... There is widespread agreement that resources for postmarketing drug safety work are especially inadequate and that resource limitations have hobbled the agency’s ability to improve and expand this essential component of its mission”); GAO, Drug Safety: Improvement Needed in FDA’s Postmarket Decision-making and Oversight Process 5 (GAO-06-402, 2006), http://www.gao.gov/new.items/d06402.pdf (“FDA lacks a clear and effective process for making decisions about, and providing management oversight of, postmarket safety issues”); see also House Committee on Oversight and Government Reform, Majority Staff Report, FDA Career Staff Objected to Agency Preemption Policies 4 (2008) (“[T]he Office of Chief Counsel ignored the warnings from FDA scientists and career officials that the preemption language [of the 2006 preamble] was based on erroneous assertions about the ability of the drug approval process to ensure accurate and up-to-date drug labels”).
See generally Brief for Former FDA Commissioners Drs. Donald Kennedy and David Kessler as Amici Curiae; see also Kessler & Vladeck, A Critical Examination of the FDA’s Efforts To Preempt Failure-To-Warn Claims, 96 Geo. L. J. 461, 463 (2008); Bates v. Dow Agrosciences LLC, 544 U. S. 431, 451 (2005) (noting that state tort suits “can serve as a catalyst” by aiding in the exposure of new dangers and prompting a manufacturer or the federal agency to decide that a revised label is required).
The United States’ amicus brief is similarly undeserving of deference. Unlike the Government’s brief in Geier v. American Honda Motor Co., 529 U. S. 861 (2000), which explained the effects of state law on the DOT’s regulation in a manner consistent with the agency’s prior accounts, see ibid., the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case.
Wyeth’s more specific contention — that this case resembles Geier because the FDA determined that no additional warning on IV-push administration was needed, thereby setting a ceiling on Phenergan’s label — is belied by the record. As we have discussed, the FDA did not consider and reject a stronger warning against IV-push injection of Phenergan. See also App. 249-250 (“[A] tort case is unlikely to obstruct the regulatory process when the record shows that the FDA has paid very little attention to the issues raised by the parties at trial”).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
39
] |
February 14, 1955.
No. 80.
Federal Trade Commission v. Rhodes Pharmacal Co., Inc. et al.
Argued February 8, 1955.
Decided February 14, 1955.
Daniel M. Friedman argued the cause for petitioner.
With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Barnes, Charles F. Barber, Earl W. Kintner and Robert B. Dawkins.
Edward Brodkey argued the cause for respondents. With him on the brief were Frank E. Gettleman and Arthur Gettleman.
Certiorari, 348 U. S. 812, to the United States Court of Appeals for the Seventh Circuit.
Per Curiam:
The Court finds that the order of the Commission is not ambiguous. The judgment of the Court of Appeals, insofar as it modified paragraph 1 (c) of the Commission's order, is reversed and the case is remanded to that court with instructions to restore the order of the Commission.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
56
] |
INTERSTATE COMMERCE COMMISSION v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD CO. et al.
No. 108.
Argued February 28, 1963.
Decided April 22, 1963.
Robert W. Ginnane, Warren Price, Jr. and Ralph S. Spritzer argued the cause for appellants. Solicitor General Cox, Assistant Attorney General Loevinger and Lionel Kestenbaum were on the brief for the United States. Robert W. Ginnane and B. Franklin Taylor, Jr. were on the brief for the Interstate Commerce Commission. Warren Price, Jr. was on the brief for appellant in No. 109. Ralph D. Ray and Warren E. Baker were on the brief for appellant in No. 110.
Carl Helmeiag, Jr. argued the cause for appellees. With him on the brief were James A. Bistline, Ernest D. Grinnell, Jr., J. Edgar McDonald, Charles P. Reynolds and Albert B. Russ.
Briefs of amici curiae, urging reversal, were filed by Peter T. Beardsley, Richard R. Sigmon and Bryce Rea, Jr. for American Trucking Associations, Inc., et al., and by Samuel H. Moerman, Arthur L. Winn, Jr., J. Raymond Clark and James M. Henderson for Waterways Freight.
Brief of the National Industrial Traffic League, as amicus curiae, urging affirmance, was filed by John F. Donelan and John M. Cleary.
Together with No. 109, Sea-Land Service, Inc., v. New York, New Haven & Hartford Railroad Co. et al.; No. 110, Seatrain Lines, Inc., v. New York, New Haven & Hartford Railroad Co. et al.; and No. 125, United States v. New York, New Haven & Hartford Railroad Co. et al., on appeals from the same Court.
Mr. Justice Harlan
delivered the opinion of the Court.
This case, involving four consolidated appeals from a three-judge District Court judgment setting aside an order of the Interstate Commerce Commission to the extent that it rejected certain proposed railroad rate decreases, brings before us important questions relating to the role of the Commission in its task of overseeing competition among different modes of transportation. The case is the first in which this Court has considered the interpretation and application of § 15a (3) of the Interstate Commerce Act, added by Congress in the Transportation Act of 1958.
I.
The two corporate appellants here, Sea-Land Service, Inc. (formerly Pan-Atlantic Steamship Corporation), and Seatrain Lines, Inc., are common carriers by water engaged in the Atlantic-Gulf coastwise trade; they are the only two companies now performing this service. Sea-Land, which had operated as a “break-bulk” carrier for many years, in 1957 suspended that service and converted four ships into crane-equipped trailerships, each capable of holding 226 demountable truck trailers. With these ships, freight could be moved by highway trailers to the port of origin, the trailers lifted onto the ships, and the process reversed at the port of destination. As a result, Sea-Lañd was able to provide a motor-water-motor service which afforded door-to-door delivery of goods from and to all shippers and consignees, even if not situated on a railroad siding, in containers that would not have to be opened in transit. Traditionally water rates, including water-rail and water-motor rates, have been lower than the corresponding all-rail rates, and when Sea-Land inaugurated its new trailership service in 1957, it published reduced rates which were generally 5% to 7%% lower than the corresponding all-rail boxcar rates. Some 700 of these reduced rates were placed under investigation by the Commission.
In Seatrain’s service, freight is transported to the company’s dock in railroad cars, the cars and their contents are then lifted onto Seatrain’s vessels, and at destination the cars are unloaded and delivered by rail to the consignee. This rail-water-rail service is similar to railroad boxcar service, in that it permits carriage from shipper to consignee without breaking bulk when both shipper and consignee are located on railroad sidings.
Railroad “piggy-back,” or trailer-on-flatcar (TOFC), service is like that provided by Sea-Land. A motor carrier trailer is hauled by road to a railhead, loaded onto a flatcar, and demounted at destination for delivery by motor carrier to the consignee.
Before 1957, railroad TOFC rates were generally higher than all-rail boxcar, water, and land-water rates. But in 1957, primarily in answer to the new improved service and lower rates offered by Sea-Land, the appellee railroads proposed to establish, on an experimental basis, reduced rates on 66 commodity movements between certain eastern points on the one hand and Fort Worth and Dallas, Texas, on the other. These rates, which were substantially on a parity with Sea-Land and Seatrain rates on the same traffic, were suspended and placed under investigation by the Commission. In December 1960 the Commission disposed of 43 docket proceedings by issuing a consolidated report embracing the railroad TOFC rates involved here as well as a number of Sea-Land and Seatrain rates not now before us. 313 I. C. C. 23.
The Commission found that the proposed TOFC rates were compensatory, that is, they equaled or exceeded out-of-pocket costs; for all of the listed movements by railroad-leased flatcars capable of carrying two trailers (TTX cars), and for all but six of the listed movements by railroad-owned single trailer cars. The Commission further found that the proposed rates equaled or exceeded fully distributed costs for 43 of the 66 movements by TTX cars and 14 of 66 movements by railroad-owned cars.
Having made these findings, the Commission addressed itself to what it considered the “most important” question — “whether these [TOFC] rates constitute destructive competition.” 313 I. C. C., at 44. It noted at the outset that, apart from the question of rates, most shippers prefer rail service to Sea-Land and Seatrain service and that, in order to attract trafile, the latter carriers must therefore establish rates somewhat below those of the railroads. As to relative costs, the Commission stated that Sea-Land costs, both out-of-pocket and fully distributed, were below railroad TOFC costs for all 66 movements using railroad-owned flatcars and for all but 2 of the 66 movements using TTX cars. But the Commission explicitly refrained from relying on these findings. Instead it concluded that because of a number of factors:
“[W]e cannot determine on these records where the inherent advantages may lie as to any of the rates in issue. We must recognize, also, that cost is only one of the elements which may appropriately be considered in passing upon the lawfulness of rates. In the exceptional circumstances here presented, other considerations, herein discussed, appear to us determinative of the issues.” 313 I. C. C., at 46. (Emphasis added.)
The Commission acknowledged that the recently enacted § 15a (3) prohibited it from holding rail rates up to a particular level merely to protect the traffic of another mode but emphasized that the prohibition was qualified by the phrase “giving due consideration to the objectives of the national transportation policy declared in this Act.” In this case, the Commission stated, the reduced TOFC rates were an initial step in a program of rate reductions that could “fairly be said to threaten the continued operation, and thus the continued existence, of the coastwise water-carrier industry generally.” 313 I. C. C., at 47. Since in the Commission’s view the coastwise shipping so threatened was important to the national defense, to the shipping public, and to the economy of ports and coastal areas, it concluded that the objectives of the National Transportation Policy required the establishment and maintenance of a differential between rail rates and those of Sea-Land and Seatrain which would enable the coastwise carriers to continue their service. The Commission decided that an appropriate differential to accomplish this purpose would be 6% over Sea-Land rates for TOFC service and somewhat less than 6% for boxcar service. Accordingly, the proposed TOFC rates were ordered to be canceled, without prejudice to the filing of new schedules in conformity with the Commission’s views.
The appellee railroads then brought this action before a three-judge District Court seeking to have the Corn-mission’s order set aside to the extent that it required cancellation of the proposed TOFC rates. In November 1961, the court handed down its opinion, setting aside the Commission’s order in part and enjoining the Commission from canceling TOFC rates which return at least fully-distributed costs, except on the basis of certain specified findings. 199 F. Supp. 635. The court held that “at least on this record,” § 15a (3) prohibited the imposition of a rate differential to protect the water carriers. The reference to the National Transportation Policy in § 15a (3), the court said, was intended to qualify the prohibition of mandatory differentials
“. . . only when factors other than the normal incidents of fair competition intervened, such as a practice which would destroy a competing mode of transportation by setting rates so low as to be hurtful to the proponent as well as his competitor or so low as to deprive the competitor of the 'inherent advantage’ of being the low-cost carrier.” 199 F. Supp., at 642.
The court went on to discuss in some detail its understanding of the way in which costs of service for the different transportation modes were determined, the possible reasons why the Commission had been reluctant to accept relative costs as critical, and the precise circumstances under which the Commission could properly require cancellation of certain TOFC rates. Finally, in rejecting the argument that a differential was required in the interests of the national defense, the court stated that the reference to the national defense in the National Transportation Policy was merely a “hoped-for 'end,’ ” not an operative policy, and that in any event the Commission’s conclusion with respect to the national defense was not supported by adequate evidence.
We noted probable jurisdiction, 371 U. S. 808, because of the importance of the questions presented in effectuating the congressional design embodied in the Interstate Commerce Act.
II.
The significance of § 15a (3) to the determination of these appeals can best be understood after consideration of the legislative history of this provision.
Section 15a (3) was the result of several years of congressional consideration of the problems of the transportation industry as a whole and of the railroads in particular. Concerned with their declining share in an expanding market, and with what they regarded as improper administrative interference with their efforts to compete, the railroads vigorously supported legislation introduced in 1955 on the basis of a proposal by the Secretary of Commerce. H. R. 6141, 84th Cong., 1st Sess. This bill, which became known as “the three shall-nots,” would have amended § 15a (1) of the Act to provide that in determining whether a rate is less than a reasonable minimum, the Commission
. . shall not consider the effect of such charge on the traffic of any other mode of transportation; or the relation of such charge to the charge of any other mode of transportation; or whether such charge is lower than necessary to meet the competition of any other mode of transportation . . .
This bill was strongly opposed by the Commission and by other carriers, and died in committee. A substantially similar bill, however, was introduced in the next Congress, H. R. 5523, 85th Cong., 1st Sess., and the Commission renewed its opposition. When, after hearings, a Senate subcommittee recommended a bill to its parent committee, it explicitly rejected the three “shall-nots.” But at the same time it expressed its concern with “over-regulation” and emphasized that its own proposal to add a new § 15a (3) was designed to encourage competition among the different modes and to permit each mode to assert its inherent advantages. S. Rep. No. 1647, 85th Cong., 2d Sess. 10,18-19. The bill at this stage provided that in a proceeding involving competition with another mode
“. . . the Commission, in determining whether a rail rate is lower than a reasonable minimum rate, shall consider the facts and circumstances attending the movement of the traffic by railroad and not by such other mode.” Id., at 18. (Emphasis added.)
At hearings before the full Senate Commerce Committee, the Commission opposed the bill as drafted, not because it disagreed with the principles set out in the subcommittee report but because it feared that the language used, particularly the italicized portion, was inconsistent with those principles and was substantially equivalent to the three “shall-nots.” Hearings on S. 3778 before the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess. 165-185. In particular Commissioner (then Chairman) Freas expressed concern that if the Commission were foreclosed from considering the effect of a rate on a competing mode, it would be powerless to reject a railroad rate which covered the railroad’s out-of-pocket costs, even if that rate had the effect of destroying the inherent advantages of a lower-cost carrier. He stated:
“Whenever conditions permit, given transportation should return the full cost of performing carrier service. ... In many instances, however, the full cost of the low-cost form of transportation exceeds the out-of-pocket cost of another. If, then, we are required to accept the rates of the high cost carrier merely because they exceed its out-of-pocket costs, we see no way of preserving the inherent advantages of the low cost carrier.” Id., at 168.
Commissioner Freas made it clear that the Commission believed the railroads should be permitted to assert their inherent advantages too, id., at 172, and suggested that any proposal specifically authorize the Commission to give “due consideration to the inherent cost and service advantages of the respective carriers,” id., at 169. In further discussion, it was indicated that it would be inconsistent with the National Transportation Policy to permit destruction of the inherent advantages of any mode of transportation, id., at 170-171, 177, and when Senator Potter suggested the deletion of the phrase “and not by such other mode” and the addition of a reference to the National Transportation Policy, Chairman Freas answered: “We will buy Senator Potter’s suggestion.” Id., at 177-178. Senator Potter’s suggestion was adopted in the final version of the bill.
Other testimony of particular interest here is that of John L. Weller, President of Seatrain, who testified on behalf of Seatrain and Pan-Atlantic (now Sea-Land). In opposing the bill recommended by the subcommittee, Mr. Weller emphasized that he did not seek any more than to make it possible for the Commission to preserve the inherent advantages of the water carriers he represented:
“As I explained, our kind of operation can only exist with a differential under the railroad rates; that is No. 1. We are not entitled to have such a differential, nor do I urge one, except in the case where cost is lower than the railroad cost. We have no right to ask for anything more than that.” Id., at 30. (Emphasis added.)
The proposal reported out by the Senate Commerce Committee was in the form ultimately adopted by Congress and contained the key provision that rates “shall not be held up to a particular level to protect the traffic of any other mode of transportation, giving due consideration to the objectives of the national transportation policy declared in this Act.” The Committee, quoting with approval the subcommittee’s report, made it clear that the purpose of the proposal was to permit each mode of transportation to assert its “inherent advantages, whether they be of service or of cost.” S. Rep. No. 1647,85th Cong., 2d Sess. 3. The new subsection, the Committee stated, was designed to reaffirm the intent of the 1940 Act, an intent that had been correctly construed by the Commission in 1945 in New Automobiles in Interstate Commerce, 259 I. C. C. 475, but which, in the Committee’s view, had not been consistently followed. The particular passage in the New Automobiles decision which the Committee endorsed contained the statement:
“[T]here appears no warrant for believing that rail rates, for example, should be held up to a particular level to preserve a motor-rate structure, or vice versa.” 259 I. C. C., at 538.
This theme — that Congress was firmly opposed to rates maintained by the Commission at an artificially high level merely to protect competing modes — :was repeated in the House Commerce Committee report, H. R. Rep. No. 1922, 85th Cong., 2d Sess., and in the debates on the floor of both Houses. 104 Cong. Rec. 10822, 10841-10843, 10858-10859, 12524, 12531, 15528. As stated by Representative Harris, Chairman of the House Commerce Committee, if a carrier could provide a rate that was “fully compensatory,” the Commission could not force it up to a higher level “just because it is necessary"to keep another mode of transportation in business.” Id., at 12531. The mood of Congress was perhaps best summarized by Senator Smathers when he said:
“[W]e are going to eliminate some of the paternalism which has heretofore existed in the minds of the Interstate Commerce Commission. I think we will breathe into our whole system of transportation some new competition, which of course is needed, because the public and the consumer will benefit therefrom.” Id., at 15528.
This revealing legislative history fills out the contours of § 15a (3). There can be no doubt that the purpose of this provision was to permit the railroads to respond to competition by asserting whatever inherent advantages of cost and service they possessed. The Commission, in the view of the proponents of the bill, had thwarted effective competition by insisting that each form of transportation subject to its jurisdiction must remain viable at all costs and must therefore receive a significant share of the traffic. It had, in the words of one Congressman, become a “giant handicapper.”
Moreover, it is clear that Congress did not consciously or inadvertently defeat this purpose when it included in § 15a (3) a reference to the National Transportation Policy. The principal reason for this reference, as the hearings show, was to emphasize the power of the Commission to prevent the railroads from destroying or impairing the inherent advantages of other modes. And the precise example given to the Senate Committee, which led to the language adopted, was a case in which the railroads, by establishing on a part of their operations a compensatory rate below their fully distributed cost, forced a smaller competing lower cost mode to go below its own fully distributed cost and thus perhaps to go out of business.
III.
We agree with the District Court that “at least on this record,” the Commission’s rejection of the TOFC rates here at issue and the requirement of a differential over the rates of the coastwise carriers were not consistent with the mandate of § 15a (3). In light of the findings and conclusions underlying the Commission’s decision, and more particularly its putting aside the question of “inherent advantages,” its insistence that TOFC rates, in the words of the prohibition in § 15a (3), “be held up to a particular level to protect the traffic” of the coastwise carriers cannot be justified on the basis of the objectives of the National Transportation Policy. Since the Commission appears to have relied principally on two aspects of that policy — (i) the prohibition of “unfair or destructive competitive practices,” and (ii) the objective of preserving a transportation system “adequate to meet the needs of the commerce of the United States . . . and of the national defense” (note 6, supra)- — -we shall consider each of these aspects separately.
1. Unfair or Destructive Competitive Practices. — If there is one fact that stands out in bold relief in the legislative history of § 15a (3), it is that Congress did not regard the setting of a rate at a particular level as constituting an unfair or destructive competitive practice simply because that rate would divert some or all of the traffic from a competing mode. Moreover, neither the Commission representative nor the witness who testified on behalf of the appellant carriers (supra, pp. 754-756) took this position, since they too recognized that such an interpretation would be inconsistent with the mandate of the National Transportation Policy to “preserve the inherent advantages of each” mode of transportation. If a carrier is prohibited from establishing a reduced rate that is not detrimental to its own revenue requirements merely because the rate will divert traffic from others, then the carrier is thwarted from asserting its own inherent, advantages of cost and service. Nor should the selective character of such a rate reduction, made in response to a particular competitive situation, be permitted, without more, to furnish a basis for rejecting the rate. Section 15a (3), in other words, made it clear that something more than even hard competition must be shown before a particular rate can be deemed unfair or destructive. The principal purpose of the reference to the National Transportation Policy, as we have seen, was to prevent a carrier from setting a rate which would impair or destroy the inherent advantages of a competing carrier, for example, by setting a rate, below its own fully distributed costs, which would force a competitor with a cost advantage on particular transportation to establish an unprofitable rate in order to attract traffic.
It is true that in the present case the Commission found that with respect to virtually all of the TOFC movements involved, Sea-Land’s out-of-pocket and fully distributed costs were below those of the railroads. But the Commission at the same time explicitly stated that “we cannot determine on these records where the inherent advantages may lie as to any of the rates in issue.” 313 I. C. C., at 46. (Emphasis added.) It is not for us to make this determination at this stage, or to decide in advance precisely how either carrier’s inherent advantages should be measured or protected. It may be, for example, that neither a comparison of “out-of-pocket” nor a comparison of “fully distributed” costs, as those terms are defined by the Commission, is the appropriate method of deciding which of two competing modes has the cost advantage on a given movement. And even if the cost advantage on each movement were determined to lie with the coast-wise carriers, it may be that some or all of the TOFC rates at issue here should be allowed to stand because they would not unduly impair that advantage. These and other similar questions should be left for initial resolution to the Commission’s informed judgment.
The court below set out at some length its understanding of the Commission’s methods of arriving at carrier costs, its analysis of the role of “value-of-service” concepts in rate making, and its views of the precise circumstances under which the Commission could lawfully disallow the TOFC rates at issue. We find it unnecessary to consider that discussion in this instance, since we hold only that on the present record, the disallowance of the rates in question was not adequately supported. Cf. Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, 87.
2. The Needs of the Commerce of the United States and of the National Defense. — The Commission gave considerable weight to the factor of “national defense” and perhaps of “commerce” in arriving at its decision. But the District Court discounted these factors, concluding that the reference in the National Transportation Policy to the national defense (and presumably to commerce as well) represented merely a “hoped-for 'end,’ ” not an operative policy. We disagree with this conclusion, but hold that the Commission’s reliance on these factors was not supported by adequate findings or substantial evidence.
The primary reason for the reference to the National Transportation Policy in § 15a (3) was to confirm the Commission’s power to protect the inherent advantages of all carriers from destructive competition. But we cannot conclude that this was the only reason, especially in view of the choice not to accept the Commission’s proposal, which would have expressed the qualification in terms of the inherent advantage element alone. See p. 755, supra. Nor can we conclude that the statutory references to such vital considerations as national defense are mere window dressing, without any practical significance in terms of the Commission’s function. "Congress unequivocally reserved to the Commission power to regulate reasonableness of interstate rates in the light of the needs of national defense.” United States v. Capital Transit Co., 325 U. S. 357, 362.
On the other hand, by recognizing the relevance of such considerations as national defense, we do not imply that these broad policy factors may be applied so freely as to nullify either the more particularized mandates of the National Transportation Policy or the clear congressional design embodied in § 15a (3). Normally, it is these more specific considerations that should govern the lawfulness of proposed rates in a case involving intermodal competition. Only under extraordinary circumstances may the Commission properly permit them to be outweighed. To justify such a result, we believe it must be demonstrated that the proposed rates in themselves genuinely threaten the continued existence of a transportation service that is uniquely capable of filling a transcendent national defense or other public need.
Measured against this standard, the Commission’s conclusions cannot be sustained. The Commission did state that the proposed rates were an "initial step” in a program of rate reductions that “can fairly be said to threaten” the existence of the coastwise carriers, but it made no findings, and referred to no supporting evidence, to the effect that these particular TOFC rates would drive the corresponding water carrier rates below a profitable level or otherwise endanger the carriers’ survival. Cf. Burlington Truck Lines, Inc., v. United States, 371 U. S. 156, 167-168; Gilbertville Trucking Co. v. United States, 371 U. S. 115, 130-131. It is not enough to rely on the possible effect of other rate reductions not here in issue, a situation with which the Commission has ample power to deal if occasion arises.
Nor did the Commission present an adequate basis for concluding that either the national defense or any significant segment of the country’s commerce depends upon the operation of Sea-Land or Seatrain. We need not consider the question whether reliance on other additional sources might have been sufficient, for we believe that the question is one for initial determination by the Commission, and that all parties should have an opportunity to adduce relevant evidence, including any evidence tending to indicate that disallowance of the proposed TOFC rates might adversely affect the commerce or the national defense of the country. Once raised, these considerations (like the factor of inherent advantage) do not exist solely for the benefit of protesting carriers.
In conclusion: We agree with the District Court that the Commission’s order, insofar as it related to the TOFC rates at issue, must be set aside. We disagree, however, with that court’s determination that the needs of the national defense are not an operative part of the National Transportation Policy, and we deem it inappropriate to approve or disapprove of other aspects of the court’s opinion. Accordingly, we decide that the judgment below should be vacated, the order of the Commission set aside to the extent that it related to certain railroad TOFC rates described herein, and the cause remanded to the Commission for further proceedings consistent with this opinion.
It is so ordered.
Section 15a (3) of the Interstate Commerce Act, 72 Stat. 572, 49 U. S. C. § 15a (3), provides:
“In a proceeding involving competition between carriers of different modes of transportation subject to this Act, the Commission, in determining whether a rate is lower than a reasonable minimum rate, shall consider the facts, and circumstances attending the movement of the traffic by the carrier or carriers to which the rate is applicable. Rates of a carrier shall not be held up to a particular level to protect the traffic of any other mode of transportation, giving due consideration to the objectives of the national transportation policy declared in this Act.”
This break-bulk service involved the physical unloading of freight from rail car or truck and the loading of the cargo into the ships, with the operation reversed at the port of destination.
Since the establishment of these reduced rates would leave higher rates in effect to and from certain intermediate points involving shorter hauls, thus violating the long- and short-haul provisions of § 4 (1) of the Act, 49 U. S. C. § 4 (1), the railroads also applied to the Commission for the relief from these provisions which §4 (1) permits the Commission to grant. This fourth-section application was denied by the Commission because, for reasons summarized in the text of this opinion, the Commission found the proposed TOFC rates not shown to be just and reasonable. With respect to the fourth-section application itself, the Commission noted that “[n]o shippers or receivers located at the intermediate points oppose the granting of fourth-section relief.” 313 I. C. C., at 33. Indeed, no individual shippers came forward to urge that the selective character of the reduced TOFC rates here involved in any way discriminated against them, and in this Court the National Industrial Traffic League, a nationwide organization of shippers, has filed a brief as amicus curiae urging affirmance of the decision below.
The rates for these six movements were withdrawn and are not at issue. (The Commission had stated that it had no way of knowing the percentages of TOFC traffic that would move in TTX cars and the percentage that would move in railroad-owned cars and had thus concluded that the rates for the six movements in question had not been shown to be compensatory.)
The Commission has stated, in discussing railroad costs, that: “Fully distributed costs based on the out-of-pocket costs plus a revénue-ton and revenue ton-mile distribution of the constant costs, including deficits, indicate the revenue necessary to a fair return on the traffic, disregarding ability to pay.” New Automobiles in Interstate Commerce, 259 I. C. C. 475, 513 (1945).
The National Transportation Policy, 54 Stat. 899, 49 U. S. C. preceding § 1, was added to the Interstate Commerce Act in 1940. It provides:
“It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discrimina-tions, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions; — -all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.”
In support of these conclusions, the Commission quoted with approval passages from a 1955 report of the United States Maritime Administration, “A Review of the Coastwise and Intercoastal Shipping Trades,” which emphasized the national defense importance of break-bulk cargo ships; from a 1950 congressional report, S. Rep. No. 2494, 81st Cong., 2d Sess. 17, which referred to “the importance to national defense of having domestic tonnage readily available”; and from a 1945 Commission decision, War Shipping Admin. T. A. Application, 260 I. C. C. 589, 591, which spoke of the “dependency of ports and coastal areas upon the existence of water transportation.”
Five of the 10 Commissioners then in office joined in the entire report. A sixth, Commissioner Hutchinson, concurred, stating that he was “in general agreement with the majority report,” 313 I. C. C., at 50, adding his own view that “the ultimate effect of approval of the [TOFC] schedules would be to allow rates of the high-cost carrier [TOFC] to gravitate to a level whereby the low-cost carrier [sea-land] will be forced to go below its full costs in order to participate in the traffic.” Id., at 51. He also expressed some doubt as to whether a 6% differential was warranted. Commissioner McPherson, concurring in part, would have approved all compensatory rates but would have imposed no differential. Three Commissioners (Commissioner Freas, joined by Chairman Winchell and Commissioner Webb) dissented on the ground that the Act neither required nor permitted “blanket protection” for water carriers or for any mode of transportation. Id., at 51-52.
In view of our disposition of this case, it is not necessary to consider whether, in light of Commissioner Hutchinson’s concurrence, the “majority report” in fact represented the views of a majority of the Commission and, if not, whether the Commission’s decision could be sustained in the absence of any rationale commanding the support of a majority of the agency. Cf. Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80.
There is some question as to precisely what rates are in issue here; the United States and the Commission suggest that these appeals relate only to the TOFC rates which are equal to or exceed fully distributed costs, since the court below did not enjoin the Commission from canceling compensatory TOFC rates under that level. As we read the opinion and judgment below, however, the Commission’s order was set aside insofar as it canceled all of the proposed TOFC before the court, and thus any order entered by the Commission in the future with respect to those rates would be subject to full judicial review. Accordingly, we reject as too narrow the position that the relevance of the present appeals is limited to TOFC rates that return at least the fully distributed costs of carriage.
During the hearings, Senator Smathers had referred to several Commission decisions, e. g., Petroleum Products in III. Territory, 280 I. C. C. 681, 691 (1951); Petroleum Products from Los Angeles to Arizona and New Mexico, 280 I. C. C. 509 (1951), which were believed to have substantially departed from the principles laid down in New Automobiles. Hearings on S. 3778 before the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess. 174-175.
Hearings, supra, note 10, at 82.
It was argued below, and at least intimated here, that the railroads had failed to sustain the burden of proving that they had the relative cost advantage. But we agree with the court below that if a carrier shows a proposed rate to be just and reasonable from the standpoint of its own revenue requirements, it is for a protesting carrier who relies on a claim of inherent cost advantage to bear the burden of persuading the Commission of the existence of that advantage. Of course, when such an issue is raised, each carrier should bring forward the data relating to its own costs that are required for resolution of the issue. See Various Commodities from or to Ark. & Tex., 314 I. C. C. 215.
The utility of the concepts of fully distributed and out-of-pocket costs may be limited to the area in which they have traditionally been used — that of determining the reasonableness of a rate from the standpoint of a carrier’s own revenue requirements. If so, some different measure may be preferred for comparing the costs of two or more modes of transportation.
Even though carrier A may have lower costs than carrier B, the overall advantage may rest with-B, for example, if the difference in cost is very slight but the service of B is so superior as to outweigh any such marginal cost difference. In this event a rate established by B may be lawful even if it has the effect of diverting some or all of A’s traffic.
Conversely, the cost advantage of A over B may be so great that even if B were to reduce its rate to the level of its out-of-pocket costs, A might be able to continue to compete effectively and still charge a profitable rate. In this event B’s reduced rate would not appear to impair A’s inherent cost advantage.
The materials relied upon by the Commission are referred to in note 7, supra. These materials were general in nature, and the most recent dated back to 1955. Further, they were not sufficiently related to the specific service rendered by Sea-Land and Seatrain, which, we were informed by Sea-Land’s counsel at oral argument, have a combined total of only eight ships currently in operation.
The Commission in its brief has cited the 1960 testimony of Vice Admiral Wilson and of the Mayor of Savannah, Georgia, in Decline of Coastwise and Intercoastal Shipping Industry, Hearings before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., 2d Sess. 83-86, 105-106, and has also cited a 1961 letter from Vice Admiral Sylvester to Senator Butler, reproduced at 107 Cong. Rec. 7299-7302.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
65
] |
UNITED STATES v. CALIFORNIA et al.
No. 91-2003.
Argued February 23, 1993
Decided April 26, 1993
O’Connor, J., delivered the opinion for a unanimous Court.
Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Acting Assistant Attorney General Bruton, Deputy Solicitor General Wallace, David, English Carmack, and John J. McCarthy.
Robert D. Milam, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were Daniel E. Lungren, Attorney General, and Timothy G. Laddish, Assistant Attorney General.
Briefs of amici curiae urging affirmance were filed for the State of Arizona et al. by Tom Udall, Attorney General of New Mexico, and Frank D. Katz, Special Assistant Attorney General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Robert A Marks of Hawaii, Roland W. Burris of Illinois, Bonnie J. Campbell of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Frankie Sue Del Papa of Nevada, George Dana Bisbee of New Hampshire, Robert J. Del Tufo of New Jersey, Robert Abrams of New York, Lee Fisher of Ohio, Susan B. Loving of Oklahoma, Charles S. Crookham of Oregon, Ernest D. Preate, Jr., of Pennsylvania, Charles W. Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, and Joseph B. Meyer of Wyoming; and for the Council of State Governments et al. by Richard Ruda.
Justice O'Connor
delivered the opinion of the Court.
This is another in the long line of cases, beginning with McCulloch v. Maryland, 4 Wheat. 316 (1819), in which the Federal Government asks this Court for relief from what it considers illegal state taxes. Unlike the typical tax immunity case, however, we are not presented with a claim that the state tax is unconstitutional; instead, the question is whether the Federal Government may recover taxes it claims were wrongfully assessed under California law against one of the Government’s private contractors.
I
The United States has established three Naval Petroleum Reserves in California and Wyoming, one of which is Naval Petroleum Reserve No. 1, located in Kern County, California. 10 U. S. C. § 7420. First through the Department of the Navy and later through the Department of Energy, the United States contracted with Williams Brothers Engineering Company (WBEC) to manage oil drilling operations at Reserve No. 1 from 1975 to 1985. Under the contract, WBEC received an annual fixed fee plus reimbursement for costs, which the contract defined to include state sales and use taxes.
California assessed approximately $14 million in sales and use taxes, pursuant to Cal. Rev. & Tax. Code Ann. §6384 (West 1987), against WBEC for the years 1975 through 1981. The State informed WBEC of the tax deficiencies through two notices, one issued in July 1978 and the other in December 1982. WBEC, at the direction of the United States, applied to the California Board of Equalization for administrative redetermination of the assessments, see § 6932. WBEC argued that the State had misapplied its own law, taxing property that was outside the scope of §6384. The Board of Equalization denied each claim, with minor exceptions. Thereafter, WBEC paid the assessments under protest, using funds the Federal Government provided. It then filed timely actions in state court. In January 1988, the State and WBEC stipulated to a $3 million refund, for erroneous assessments on property that WBEC had purchased and that Government personnel had installed, and to dismissal of both actions without prejudice. The remaining $11 million resulted from assessments on property that WBEC had purchased and that private subcontractors, managed by WBEC, had installed.
In May 1988, the United States filed suit in the Eastern District of California, seeking a declaratory judgment that California had classified and taxed WBEC erroneously under California law and that the taxed property actually was exempt. It sought a refund of the $11 million plus interest. In the course of the suit, the United States argued it was entitled to recovery based on the federal common-law cause of action for money had and received. The District Court rejected both grounds for recovery and granted summary judgment for the State.
The Court of Appeals for the Ninth Circuit affirmed. 932 F. 2d 1346 (1991). The court began by noting that the Government did not claim that either it or WBEC was constitutionally immune from the tax, an argument this Court rejected in United States v. New Mexico, 455 U. S. 720 (1982). 932 F. 2d, at 1347-1348. Because the United States lacked “a colorable constitutional challenge,” id., at 1349, the Court of Appeals looked to whether federal common law might provide a cause of action. It declined to accept the Government’s argument that the simple act of disbursing federal funds was a “constitutional function” that created a federal interest in conflict with state law. The Government had done no more than pay state taxes pursuant to state law; this did not rise to the level of a federal interest requiring the application of federal law. Ibid. The Court of Appeals then held that the Government could not maintain a quasi-contract cause of action because the facts did not support a claim of unjust enrichment. Among other things, “WBEC, backed throughout by the United States, had a fair chance to argue against the validity of the assessments in the administrative and state court proceedings.” Id., at 1350. Finally, the Court of Appeals relied on the fact that the Government’s quasi-contract argument was “posited upon the interpretation of a state-created exemption from a state[]created sales tax.” Ibid. The court found that the State’s claim filing requirements, including that a court action be filed within 90 days of an administrative denial, were conditions precedent to a cause of action for a tax refund. Id., at 1350-1351. The Government had failed to satisfy the conditions; therefore, the Court of Appeals held, the Government had no state cause of action and no quasi-contract action. “Since federal statutes of limitations become determinative only after the government acquires a cause of action, and since the United States never acquired a cause of action,” the court reasoned, the 6-year statute of limitations of “28 U. S. C. §2415 does not apply.” Id., at 1351.
The Court of Appeals acknowledged that the Court of Appeals for the Eleventh Circuit, in a factually similar case, recently had reached the opposite conclusion. Id., at 1351-1352. In United States v. Broward County, 901 F. 2d 1005 (1990), the Eleventh Circuit rejected the argument on which the Ninth Circuit relied and held that the Government had a “federal common law cause of action in quasi-contract for money had and received.” Id., at 1008-1009. We granted certiorari to resolve the conflict. 506 U. S. 813 (1992).
I HH
The Government concedes that it could have intervened in WBEC’s administrative and state-court proceedings. Tr. of Oral Arg. 17. But it argues that whether it complied with state procedural requirements or whether it could have intervened is irrelevant, because it has a federal right to recover the taxes under the federal common-law cause of action for money had and received (also known as indebitatus assumpsit). Prior to the creation of federal administrative and statutory remedies for the recovery of federal taxes, this Court held that a taxpayer could bring an action for money had and received to recover erroneously or illegally assessed taxes. In City of Philadelphia v. The Collector, 5 Wall. 720 (1867), the Court stated:
“[The] [appropriate remedy to recover back money paid [to federal tax collectors] under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or under protest, or with notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received.” Id., at 731-732 (citing Elliott v. Swartwout, 10 Pet. 137, 150 (1836)).
The Government reasons that it paid WBEC’s taxes, that the taxes were wrongfully assessed, and that therefore it may recover the funds used to pay those taxes. Since an action for money had and received is based on a contract implied in law, see Bayne v. United States, 93 U. S. 642, 643 (1877), the Government further reasons, that its claims are governed by the 6-year statute of limitations in 28 U. S. C. § 2415(a), and not the 90-day limitation period in the California Code.
The taxpayers in both City of Philadelphia and the case on which it relies, Elliott v. Swartwout, were attempting to recover money they had paid under protest to the federal tax collector in settlement of tax assessments erroneously made against them. In this case, by contrast, the taxpayer — WBEC—has had its day in court and gone home. The Government attempts to recover money it paid in reimbursement for state tax assessments against the contractor, even though the contractor already has challenged the assessment and accepted a resolution of its claims. The Government contends that, because its contract with WBEC involved an advanced funding arrangement, the Government was the one that actually paid the state taxes. Because the disbursement of federal funds is involved, the Government asserts, the federal action for money had and received is appropriate. Even assuming that federal courts may entertain a federal common-law action for the recovery of state taxes paid by the Government, we conclude that a federal action is inappropriate here because the Government is in no better position than as a subrogee of its contractor WBEC.
The management contract between the Government and WBEC is in all relevant respects identical to the contracts we discussed in United States v. New Mexico, 455 U. S. 720 (1982). There, as here, the State had imposed sales and use taxes on private contractors managing Department of Energy sites. Like WBEC, two of the contractors received costs plus a fixed fee. Id., at 723-724. Like WBEC’s contracts, the contracts provided that title to all tangible personal property passed directly from the vendor to the Government. Id., at 724. “Finally, and most importantly, the contracts use[d] a so-called ‘advanced funding’ procedure to meet contractor costs.” Id., at 725. The contractors paid creditors and employees with drafts drawn on a special bank account in which the Government deposited funds, so that only federal funds were expended when the contractors made purchases. Id., at 726. Cf. App. 142-143 (Declaration of Kenneth Meeks in Support of United States’ Motion for Summary Judgment, describing similar funding operations with WBEC).
In New Mexico, the Government brought an action arguing that the contractors’ expenditures, other than those made out of the fixed fees, were constitutionally immune from taxation. We noted that the doctrine of federal immunity from state taxation is “one that has been marked from the beginning by inconsistent decisions and excessively delicate distinctions.” 455 U. S., at 730. After surveying our “confusing” precedents, we concluded it was time to return to the underlying constitutional principle of tax immunity: A State may not lay a tax “ ‘directly upon the United States.’ ” Id., at 733 (quoting Mayo v. United States, 319 U. S. 441, 447 (1943)). But whereas the Government is absolutely immune from direct taxes, it is not immune from taxes merely because they have an “effect” on it, or “even because the Federal Government shoulders the entire economic burden of the levy.” 455 U. S., at 734. In fact, it is “constitutionally irrelevant that the United States reimburse[s] all the contractor’s expenditures, including those going to meet the tax.” Ibid, (citing Alabama v. King & Boozer, 314 U. S. 1 (1941)). Tax immunity is “appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities.” 455 U. S., at 735.
It is beyond peradventure that California did not tax— indeed, could not have taxed — the Federal Government in this case. California taxed WBEC. And the Government’s voluntary agreement to reimburse (or even fund in advance) WBEC for those taxes does not make the Government’s payments direct disbursements of federal funds to the State. We addressed an analogous indemnification relationship in Brady v. Roosevelt S. S. Co., 317 U. S. 575 (1943). The United States had contracted with a private corporation to operate a Maritime Commission vessel. A customs inspector suffered injuries on the vessel that led to his death, and his widow brought a maritime tort action against the private corporation. In defense, respondent contended “that if the judgment against [it] stands, the United States ultimately will have to pay it by reason of provisions of the contract between respondent and the [Maritime] Commission. It is therefore urged that the United States is the real party in interest.” Id., at 582. We rejected respondent’s argument that petitioner could be deprived of her cause of action by reason of the contract. “Immunity from suit on a cause of action which the law creates cannot be so readily obtained.” Id., at 583. Absent congressional action, we would not allow “concessions made by contracting officers of the government” to make such a “basic alteration” in the law. Id., at 584.
We conclude from Brady and New Mexico that the Government cannot use the existence of an obligation to indemnify WBEC to create a federal causé of action for money had and received to recover state taxes paid by WBEC any more than the Roosevelt Steamship Company could use the existence of a right to indemnity from the Government to defeat a claim for recovery. See Brady, supra, at 584. Cf. Farid v. Smith, 850 F. 2d 917, 923 (CA2 1988) (a State’s decision to indemnify its public servants does not confer Eleventh Amendment immunity on state officials sued in their personal capacity).
Although the Government does not cite Brady, it does cite two other cases that suggest the lesson of Brady might not apply in an action for money had and received. According to the Government, Bayne v. United States, 93 U. S. 642 (1877), and Gaines v. Miller, 111 U. S. 395 (1884), stand for the proposition that an action for money had and received may “be employed by the United States to recover money from a third party who received federal funds that had been misappropriated by a government agent.” Brief for United
States 14. We find these cases inapposite. In Bayne, an Army paymaster withdrew money from the paymaster’s bank account, endorsed the checks in blank, and sent them to Merchants’ Bank with instructions to credit the account of Bayne & Co. The Court affirmed the Government’s judgment against Bayne & Co. under an action for money had and received. 93 U. S., at 643. In Gaines, the agent of an estate’s executors sold estate property and illegally kept a portion of the money. Ill U. S., at 396. Many years later, the agent had died, but Gaines, the legatee of the first estate, brought an action in equity against the administrator of the agent’s estate. The Court affirmed the lower court’s judgment against Gaines because, among other reasons, she had an adequate remedy at law: an action for money had and received. Id., at 397-398.
Bayne and Gaines share two features this case lacks. The first is that, in each, the rightful owner of the money lost it by way of theft. That is, the money passed from the first party to the second party unlawfully. See Bayne, supra, at 643; Gaines, supra, at 396. The second feature is that in both cases the rightful owner of the money sued a third party who had a relationship that, at least for our purposes, made that party legally responsible for the actions of the one who unlawfully took the money. The Court was satisfied in Bayne that the transactions between the paymaster, the banks, and Bayne & Co. were “the result of a fraudulent purpose to secure the use of the public money to Bayne & Co., who received it with full knowledge that it belonged to the United States, and had been applied in manifest violation of the act of Congress.” 93 U. S., at 643. In other words, Bayne & Co. and the paymaster were accomplices, each liable for the acts of the other. Cf. 18 U. S. C. §2. In Gaines, petitioner sued the administrator of the agent’s estate, who was legally responsible for paying the agent’s debts out of the estate. See, e. g., 2 J. Perkins, Law of Executors and Administrators 988-990 (6th Am. ed. 1877).
The Government does not contend that WBEC stole the money at issue in this case or otherwise took money from the Government unlawfully. WBEC did not. Nor does the Government contend that California and WBEC had a relationship that would make California liable for WBEC’s actions. They did not. In fact, California and WBEC had an adverse relationship: that of creditor and debtor. California’s demand that WBEC pay what California believed to be a lawful debt does not make California legally responsible for the Government’s indemnification of WBEC. In these circumstances, we do not imply a contract in law between California and the Government. Without an implied contract, an action for money had and received will not lie against the State.
Although the Government cannot proceed in an action for money had and received, our discussion of indemnification suggests the Government may not be without recourse: Because it indemnified the contractor, the Government has a right to be subrogated to the contractor’s claims against the State. See 10 W. Jaeger, Williston on Contracts § 1265 (3d ed. 1967); Brief for Respondents 13 (conceding the same). When proceeding by subrogation, the subrogee “stands in the place of one whose claim he has paid.” United States v. Munsey Trust Co., 332 U. S. 234, 242 (1947). Here WBEC’s rights have lapsed and its claims are barred. Under traditional subrogation principles then, the claims of the United States also would be barred. The subrogee, who has all the rights of the subrogor, usually “cannot acquire by subrogation what another whose rights he claims did not have.” Ibid. Although WBEC filed actions in state court within 90 days of the Board of Equalization’s administrative decisions, WBEC later dismissed those cases without prejudice. A dismissal without prejudice terminates the action and “concludes the rights of the parties in that particular action.” Gagnon Co. v. Nevada Desert Inn, 45 Cal. 2d 448, 455, 289 R 2d 466, 472 (1955). A subrogee could have proceeded only if WBEC could have filed a new state-court action at that time, which it could not do.
The traditional rules of subrogation, however, do not necessarily apply to the Government. But cf. United States v. Standard Oil Co. of Cal, 332 U. S. 301,309 (1947) (suggesting that state law controls “where the Government has simply substituted itself for others as successor to rights governed by state law”). The Government argues strenuously that, at the very least, state statutes of limitations do not bind it. It cites three cases to support this position. See United States v. Summerlin, 310 U. S. 414, 416 (1940); Board of Comm’rs of Jackson County v. United States, 308 U. S. 343, 361 (1939); United States v. John Hancock Mut. Life Ins. Co., 364 U.. S. 301, 308 (1960). In the cases the Government cites, however, either the right at issue was obtained by the Government through, or created by, a federal statute, see Summerlin, supra, at 416 (United States suing under claim received by assignment pursuant to Act of June 27, 1934, 48 Stat. 1246); Board of Comm’rs, supra, at 349-350 (United States suing as Indian trustee pursuant to congressional statute); or a federal statute provided the statute of limitations, see John Hancock, supra, at 301 (United States redeeming mortgage foreclosure pursuant to statute of limitations in 28 U. S. C. § 2410(c)). Moreover, in each case, the Government was proceeding in its sovereign capacity. As the 'Government rightly notes:
“When the United States becomes entitled to a claim, acting in its governmental capacity, and asserts its claim in that right, it cannot be deemed to have abdicated its governmental authority so as to become subject to a state statute putting a time limit upon enforcement.” Summerlin, supra, at 417.
In contrast, the Government here became entitled to its claim by indemnifying a private contractor's state-law debt. It can assert its claim only by way of subrogation, an equitable action created by the courts. Summerlin is clearly distinguishable.
Whether in general a state-law action brought by the United States is subject to a federal or state statute of limitations is a difficult question. We need not resolve it today, however, because Guaranty Trust Co. v. United States, 304 U. S. 126 (1938), provides guidance in this case. There the United States was proceeding as the assignee of the Soviet Government and sought to collect under state law. The petitioner argued that the statute of limitations had run, and the United States asserted, among other defenses, that it was not bound by state statutes of limitations. We found that the circumstances of the case “admitted] of no appeal to such a policy.” Id., at 141. Even if the United States had a right to be free from the statute of limitations, it was deprived of no right on those facts. “[F]or the proof demonstrated] that the United States never acquired a right free of a pre-existing infirmity, the running of limitations against its assignor, which public policy does not forbid.” Id., at 142.
Here, although the Government acquired a right to subro-gation to WBEC’s claims upon payment of the taxes, the Government did not assert that right until it filed the federal judicial proceeding. As the California Supreme Court has held: “ ‘[A] surety by payment does not become ipso facto subrogated to the rights of the creditor, but only acquires a right to such subrogation, and . . . before the substitution or equitable assignment can actually take place he must actively assert his equitable right thereto. It is not a substantive tangible right of such nature and character that it can be seized and held and enjoyed independently of a judicial proceeding.’” Offer v. Superior Court of San Francisco, 194 Cal. 114, 117, 228 P. 11, 12 (1924) (quoting 25 Ruling Case Law 1391 (1919)). Accord, 10 Jaeger, Williston on Contracts § 1265, at 848, and n. 9 (citing cases). Because the Government waited until after the state statute of limitations had run against WBEC to bring suit, the Government was not subrogated to “a right free of a pre-existing infirmity.” Guaranty Trust, supra, at 142. That the doctrine of subro-gation is one of equity only strengthens our conclusion that the Government may not proceed: The Government waited 10 years after the first notice of deficiency was issued, 8 years after the second notice was issued, and almost 6 years after the state statute of limitations ran to bring this suit.
The Government argues that affirming the Court of Appeals often will leave it “without an effective remedy to contest a tax improperly exacted from a federal contractor” and subject it to the “vagaries” of 50 state tax-law procedures. Brief for United States 26-27. But federal contractors already are subject to the substantive tax laws of the 50 States. Nothing in our decision prevents the Government from including in its contracts a requirement that its contractors be responsible for all taxes the Government believes are wrongfully assessed, a contract term that likely would remove any disinterest a contractor may have toward litigating in state court. If our decision today results in an intolerable drain on the public fisc, Congress, which can take into account 'the concerns of the States as well as the Federal Government, is free to address the situation. See New Mexico, 455 U. S., at 737-738.
III
In United States v. New Mexico, we held that the Federal Government is immune only from state taxes imposed on it directly. Id., at 734. In so holding, we hoped to “forestall, at least to a degree, some of the manipulation and wooden formalism that occasionally have marked tax litigation — and that have no proper place in determining the allocation of power between coexisting sovereignties.” Id., at 737. Today we hold that shouldering the “entire economic burden of the levy,” id., at 734, through indemnification does not give the Federal Government a federal common-law cause of action for money had and received to challenge a state tax on state-law grounds simply because it is the Government. To do otherwise would be to return to the “manipulation and wooden formalism” we put aside in New Mexico.
The judgment of the Court of Appeals is
Affirmed.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
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"Defense Base Closure and REalignment Commission",
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"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
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"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
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"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
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"Information Security Oversight Office",
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"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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"Office of Personnel Management",
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"Subversive Activities Control Board",
"Small Business Administration",
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"Social Security Administration or Commissioner",
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"State Agency",
"Unidentifiable",
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"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
BLOUNT, POSTMASTER GENERAL, et al. v. RIZZI, dba THE MAIL BOX
No. 55.
Argued November 10, 1970
Decided January 14, 1971
BkeNNan, J., delivered the opinion of the Court,-in which Burger, C. J., and Douglas, Harlan, Stewart, White, Marshall, and Blackmun, JJ.', joined. Black, J., concurred in the result.
Peter L. Strauss argued the cause fqr appellants in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Robert V. Zener, Donald L. Horowitz, David Nelson, and Charles D. Hawley.
Stanley Fleishman argued the cause for appellee in No. 55. With him on the. brief was Sam Rosenwein. Robert Eugene Smith argued the cause, for appellee in No. 58. With him on- the brief was Hugh W. Gibert.
Together with No. 58, United States et al. v. The Book Bin, on appeal from the United States District Court for the Northern District of Georgia.
Me. Justice Brennan
delivered the opinion of the. Court.
No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U. S. C. §4006-(now 39 U. S. C. § 3006, Postal Reorganization Act, 84 Stat. 747), under which the Postmaster General, following administrative hearings, may halt use of the mails and of postal money orders-for commerce in allegedly obscene materials. No. 58 (hereafter Book Bin) also draws into question the constitutionality of §4006, and, in addition, the constitutionality of 39 U. S. C. § 4007 (now 39 U. S. C. § 3007), 84 Stat. 748, under which the Postmaster General may obtain a court order permitting him to detain the defendant’s incoming mail pending the outcome of § 4006 proceedings against him.
39 U. S. C. § 4006 provides in pertinent part:
“Upon evidence satisfactory to the Postmaster Genéral that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene . . . matter ..., or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the. same may be obtained, the Postmaster General may—
“(1) direct postmasters at-the office at which registered letters or other letters- or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful’; and
“(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.”
Proceedings under ■ § 4006 are conducted according to departmental regulations. A proceeding js begun by the General Counsel of the Post Office Department by written complaint and notice of hearing. 39 CFR §§ 952.5, 952.7,- 952.8. The Judicial Officer of the Department holds a trial-type hearing at which a full record is transcribed. He renders an opinion -which includes findings of fact and a statement of reasons. 39 CFR §§ 952.9-952.25. The decision is to “be rendered with all due speed,” 39 CFR § 952.24 (a), and there is an administrative appeal. 39 CFR § 952.25. No § 4006 order may issue against the defendant until completion of the administrative proceeding. If, however,- the Postmaster General wishes to detain the defendant’s incoming mail before the termination of the § 4006 proceedings, he may apply to the United States District Court for the district in which the defendant resides, under 39 U. S. C. § 4007, which in pertinent part provides:
“In preparation for or during the pendency of proceedings under [§4006] of this title, the United States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postmaster General and upon a showing of probable cause to believe the statute is being violated, enter a temporary restraining order and preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant’s incoming mail by the postmaster pending the conclusion of the statutory proceedings and any appeal therefrom. .The district court may provide in the order that the- detained mail be open to examination by the defendant, and such mail be delivered as is clearly not connected with the alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.”
In Mail Box, the Postmaster General Began administrative proceedings under § 4006 on November 1, 1968. The administrative hearing was concluded December 5, 1968. The Judicial Officer, filed his decision December 31, Í968, finding that the specified magazines were obscene and, therefore, entered a § 4006 order — 6Í days after the complaint was filed. Mail Box filed a complaint in the United States District Court for the Central District of California seeking a declaratory judgment that § 4006 was unconstitutional and an injunction against enforcement of the administrative order. A three-judge court was convened and held that 39 U. S. C. § 4006 “is unconstitutional on its face, because it fails to meet the requirements of Freedman v. Maryland (1965) 380 U. S. 51....” 305 F. Supp. 634, 635 (1969). The court, therefore, vacated the administrative order, directed the delivery “forthwith” of all mail addressed to Mail Box, and enjoined any proceedings to enforce § 4006.
In Book Bin, the Postmaster General applied to the District Court for the Northern District of Georgia for a § 4007 order, pending the completion of § 4006 proceedings against Book Bin. Book Bin counterclaimed, asserting that both §§ 4006 and 4007 were unconstitutional and that their énforcement should be enjoined. A three-judge court was convened and held both sections unconstitutional. It agreed with the three-judge court in Mail Box that the procedures of § 4006 were fatally deficient under Freedman v. Maryland, 380 U. S. 51. (1965), and also held that the finding under § 4007 merely of “probable cause” to believe material was obscene was hot a constitutionally sufficient standard to support a temporary mail detention order. 306 F. Supp. 1023 (1969).
We noted probable jurisdiction of the Government’s appeals. 397 U. S. 959, 960 (1970). We affirm the judgment in each case.
Our discussion appropriately begins with Mr. Justice Holmes’ frequently quoted admonition that, “The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .” Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921) (dissenting opinion); see also Lamont v. Postmaster General, 381. U. S. 301 (1965). Since § 4006 on its face, and §4007 as applied, are procedures designed to deny use of the mails to commercial distributors of obscene. literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment .of constitutionally protected expression, for Government “is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrant, 367 U. S. 717, 731 (1961). Rather, the First Amendment requires that procedures be incorporated- that “ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. . . . Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards . . . is . . ; but a special instance of the larger principle that the freedoms of expression must; be ringed about with adequate bulwarks. . . .” Bantam, Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963). Since we have recognized that “the line between speech unconditionally guaranteed and speech which may legitimately be regulated ... is finely drawn. . . . [t]he separation of legitimate from illegitimate speech calls for . . . sensitive tools . . . .” Speiser v. Randall, 357 U. S. 513, 525 (1958).
The procedure established by § 4006 and the imple- ■ menting regulations omit those “sensitive tools” essential to satisfy the requirements of the First Amendment. The three-judge courts correctly held in these cases that our decision in Freedman v. Maryland, 380 U. S. 51 (1965) compels this conclusion. We there considered the constitutionality of a motion picture censorship procedure administered by a State Board of Censors. We held that to avoid constitutional infirmity a scheme of administrative censorship must: place the burdens of initiating judicial review and. of proving that the material is unprotected expression on the censor; require “prompt judicial review” — a final judicial determination on the merits within a specified, brief period — to prevent the administrative decision of the censor from achieving an effect of finality; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determination. 380 U. S., at 58-60.
These safeguards are lacking in the administrative censorship scheme created by §§4006, 4007, and the regulations.
The scheme has no statutory provision requiring gov-ernmentally-initiated judicial participation in the procedure which bars- the magazines from the mails, or even any provision assuring prompt judicial review. The scheme does differ from the Maryland scheme involved in-Freedman in that under the Maryland scheme the motion picture could not be exhibited pending conclusion of the administrative hearing, whereas under § 4006 the order to return mail or to refuse to pay money orders is. not imposed until there has been an administrative determination that the magazines are obscene. This, however, does not redress the fatal flaw of the procedure in failing to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material; rather, once the administrative proceedings disapprove the magazines the distributor “must assume the burden of instituting judicial proceedings and of persuading the courts that the . . . [magazines are] protected expression.”' 380 U. S., at 59-60. The First Amendment demands that the Government must assume this burden. “The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U. S., at 58.
Moreover, once a § 4006 administrative order has been entered against the distributor, there being no provision for judicial review, the Postmaster may stamp as “Unlawful” and immediately return to the sender orders for purchase of the magazines addressed to the distributor, and prohibit the payment of postal money orders to him. Such a scheme “presents peculiar dangers tó constitutionally protected speech. . . . Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” 380 U. S., at 57-58. Appellants suggest that we avoid the constitutional question raised by the failure of § 4006 to provide that the Government seek a prompt judicial determination by construing that section to deny the administrative order any effect whatever, if judicial review is sought by the distributor, until the completion of that review. Apart from the fact that this suggestion neither requires that the appellants initiate judicial proceedings, nor provides for a prompt judicial determination, it is for Congress, not this Court, to rewrite the statute.
The authority of the Postmaster General under § 4007 to apply to a district court for an order directing the detention of the distributor’s incoming mail pending the conclusion of the § 4006 administrative proceedings and any appeal therefrom plainly does not remedy the defects in § 4006. That section does not provide a prompt proceeding for a judicial adjudication of the challenged obscenity of the magazine. First, it is entirely discretionary with the Attorney General whether to institute a § 4007 action and, therefore, the section does not satisfy the requirement that the appellants assume the burden of seeking a judicial determination of the alleged obscenity of the magazines. Second, the district court is required to grant the relief sought by the Postmaster General upon a showing merely of “probable cause” to believe § 4006 is being violated. We agree with the three-judge court in Book Bin that to satisfy the demánd of the First Amendment “it is vital that prompt judicial review on the issue of obscenity — rather than merely probable cause — be assured on the Government’s initiative before the seyere restrictions in §§4006, 4007, are invoked.” 306 F. Supp., at 1028. Indeed, the statute expressly provides that, “An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.”
Moreover, § 4007 does not in any event itself meet the requisites of the First Amendment. Any order is-suéd by the district court remains in effect “pending the conclusion of the statutory proceedings and any appeal therefrom.” Thus, the statute not only fails to provide that the district court should make a final judicial determination of the question of obscenity, expressly giving that authority to the Judicial Officer, but it fails to provide that “[a]ny restraint imposed in advance of a final judicial determination on the merits must ... be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.” 380 U. S., at 59.
The appellees here not only were not afforded “prompt judicial review” but they “can only get full judicial review on the question of obscenity — by which the Postmaster would be actually bound — after lengthy administrative proceedings, and then only by [their] own initiative. During the interim, the prolonged threat of an adverse administrative] decision in §4006 or the reality of a sweeping § 4007 order, will have a severe restriction on the exercise of [appellees’] First Amendment rights — all without a final judicial determination of obscenity.” 306 F. Supp., at 1028. .
The judgments of the three-judge courts in Nos. 55 and 58 are
Affirmed.
Mr. Justice Black concurs in the result.
The codification of the Act will appear in. the 1970 edition of the United States Code. This opinion treats the old Code sections as current.
Section 4006 was enacted in 1950. 64 Stat. 451. In 1956 the Postmaster General sought and obtained the power himself to enter an order, pending administrative proceedings under § 4006, that all mail' addressed to the defendant in the § 4006 proceeding be impounded. The order was to expire at the end of 20 days unless the Postmaster General sought in a federal district court, an order continuing the impounding. 70 Stat. 699. In 1959, extensive hearings, were held in the House on the Post Office’s request that the 20-day period be extended to 45 days, and that the standard of necessity be changed to “public interest.” Hearings on Obscene Matter Sent Through the Mail .before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess., pts. 1, 2, and 3 (1959); Hearings on-Detention of Mail for Temporary Periods before the House Committee on Post Office and Civil 'Service, 86th Cong., 1st Sess. (1959). Instead, Congress enacted § 4007 which stripped, the Postmaster General of his power to issue an interim order for toy period, and directed him to seek such an order in a federal district court. One Senate Report expressed misgivings when the Postmaster General-had originally sought the impounding power: “The committee recognizes .that even' in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person’s mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business — or change the name of their business or their business address — before normal legal procedures can be brought into operation. • The Post Office Department has not recommended, nor does this committee approve, the use of the temporary impounding procedure under this bill as a substitute for the. normal practice of an advance hearing or the bringing of an indictment for violation- of the criminal code in all cases involving legitimate and well-established business operations. The committee would not approve the use of the extraordinary- summary procedure under the bill against legitimate publishers of newspapers, .magazines, or books in cases in which a Postmaster General might take objection to an article, an issue, or a volume.” S. Rep. No. 2234, 84th Cong., 2d Sess., 2-3 (1956).
Section 4007 also authorizes the Postmaster General to apply for an impounding order during the pendency of proceedings under 39 U. S. C. §4005 (1964 ed., Supp. V), now §3005. Section 4005, as amended (82 Stat. 1153), permits the return to the sender of any mail sent to the perpetrator of what the Postmaster General finds to be a scheme for .obtaining money by means of false representations. That section has been upheld against First Amendment attack. Donaldson v. Read Magazine, 333 U. S. 178 (1948). The Government does not argue in its brief that Donaldson, compels the conclusion that § 4006 also is constitutional but only that “Section 4006, ’ like the fraud statute upheld in Donaldson . . . meets all necessary constitutional standards.” Brief for Appellants 20. On oral argument, the Government suggested that an affirmance in this case might jeopardize the validity of § 4005 and the continued vitality of Donaid-son. But no argument was offered to support the suggestion.
The order was sought with respect to a' single issue of one
We therefore have no occasion to consider the argument of ap-pellees that Stanley v. Georgia, 394 U. S. 557 (1969), presupposes that an individual has a constitutional right to obtain possession of the challenged materials by delivery through the mail.
In 1962,- three Justices of the Court stated: “[We have] ... no doubt that Congress could constitutionally authorize a noncriminal process in the nature of a judicial proceeding under closely defined procedural safeguards. But the suggestion that Congress may constitutionally authorize any process other than a fully .judicial one immediately raises the gravest doubts.” Manual Enterprises v. Day, 370 U. S. 478, 518-519 (1962) (opinion of BreNNAN, J.).
The Judicial Officer is appointed by the Postmaster General to “perform such quasi-judicial duties as the Postmaster General may designate.” 39 U. S. C. § 308a. He functions as hearing examiner in many proceedings in addition to those under § 4006. The appellants argue that the Judicial Officer enjoys “many of the insulations that judges enjoy.” What the Constitution requires, however, is that a noncriminal censoring process require govemmentally initiated full judicial participation. ■ Clearly, § 4006 does not so provide.
The Court said in Freedman v. Maryland that the procedure considered in Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957), provides “a model ... [of an] . . . injunctive procedure designed to prevent the sale of. obscene books.” 380 U. S., at 60.
This provision was added at the request of Postmaster General Summerfield who desired it expressly to forestall judicial review pending completion of the administrative proceeding. ' “This would guarantee that counsel for a mailer will not be able to raise successfully a bar to all further administrative proceedings in a case in which the Government failed to prevail .on its motion for a preliminary injunction.” Letter from Arthur E. Summerfield, Postmaster General, to Senator Olin D. Johnston, Chairman, Senate Committee on Post Office and Civil Service, U. S. Code Cong. & Admin. News, 86th Cong., 2d Sess., 3249 (1960), In 1959, Postmaster General Summer-field had testified:
“In spite of the frustrations and the legal complications, and even the court decisions [which the Postmaster General had described as handing down 'the'very broad definition of obscenity’], I feel, a responsibility to the public to attempt to prevent the use of the mails for indecent material, and to seek indictments and prosecutions for such offenses, even though it may be argued that it falls in the category of material concerning which there have been previous rulings favorable to the promoters.” Hearing on Obscene Matter Sent Through the Mail before the Subcommittee on Postal Operations of the House Committee on Post Office and Civil Service, 86th Cong., 1st Sess., pt. 1, p. 6 (1959).
Appellants point out that orders under §§ 4006 and 4007 generally allow the addressee to open his mail at the post office and receive any first class mail demonstrated clearly not to be connected with the allegedly unlawful use. This provision is provided in light of 39 U. S. C. § 4057 which provides that “[o]nly an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the Department.” See also 39 CFR § 117.1. But, query whether such provision of the order requires an “official act,” viz., examining the mail, which constitutes an unconstitutional limitation on the addressee’s First Amendment rights. Lamont v. Postmaster General, 381 U. S. 301 (1965).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Army and Air Force Exchange Service",
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"Secretary or administrative unit or personnel of the U.S. Air Force",
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"National Enforcement Commission",
"National Highway Traffic Safety Administration",
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"National Mediation Board",
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"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
111
] |
NATIONAL LABOR RELATIONS BOARD v. WARREN COMPANY, INC.
No. 27.
Argued October 20, 1955.
Decided December 12, 1955.
David P. Findling argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Theophil C. Kammholz and Dominick L. Manoli.
John Wesley Weekes argued the cause and filed a brief for respondent.
Mr. Chief Justice
Warren delivered the opinion of the Court.
On August 7, 1952, the United States Court of Appeals for the Fifth Circuit entered its decree enforcing in full an order of the National Labor Relations Board issued on June 30, 1950, against respondent herein directing it (1) to cease and desist from refusing to bargain collectively with District Lodge No. 46, International Association of Machinists, a labor union, as the exclusive bargaining agent of all its tool and die makers, machinists, etc., and from discouraging membership in the union; (2) to take affirmative action upon request to bargain collectively with the union as the exclusive representative of respondent’s said employees and, if an understanding should be reached, to embody such understanding in a signed agreement; and (3) to post at its plant a notice to be furnished by the Regional Director of the National Labor Relations Board and signed by the officers of respondent agreeing to desist from certain unfair labor practices, and to bargain collectively with the union upon request as required in the order. 197 F. 2d 814.
Respondent had posted the notice and restored certain employees to their jobs as required by the order, but declined to bargain collectively with the union, although requested by the latter to do so on numerous occasions over a period of seven months, basing its refusal to do so on the ground that the union had lost its alleged majority status by reason of a turnover in personnel. It demanded proof from the union that it represented a majority of the employees then employed in the bargaining unit. The union replied that its majority status had been determined by the Board and by the Court of Appeals in its decree of enforcement. Respondent never bargained collectively with the union, either before or after the decree, contending at all times that the latter did not have majority status, although in 1948 the employees had designated the union as their bargaining agent and the Board had found that respondent had avoided collective bargaining through its lack of good faith and because of its own unfair labor practices. This finding was not challenged by respondent and was adopted by the Court of Appeals in its enforcement decree of August 7, 1952. Respondent then filed a petition with the Board on January 27, 1953, requesting an election in the bargaining unit. Because of respondent’s failure to remedy its unfair labor practice by good-faith bargaining with the union for a reasonable period, the Board sustained its Regional Director’s dismissal of the petition.
On September 22, 1953, the Board filed its petition in the Court of Appeals, specifically setting forth the conduct of respondent showing its failure and refusal to comply with the court’s decree enforcing the Board’s order, and asking that respondent be required to show cause why it should not be adjudged in civil contempt. The Board also asked the court to institute a prosecution for criminal contempt against respondent. Respondent answered, claiming compliance with the decree except that since the decree of the court it had refused to bargain collectively with the union as the bargaining agent of its employees because for a long time the union had not represented its employees as such bargaining agent.
The Court of Appeals concluded that no case for a civil contempt order had been made out and dismissed the proceeding. The court held that, notwithstanding the prior entry of a decree directing respondent to bargain collectively with the union, respondent’s compliance with other provisions of the decree entitled it to refuse to bargain collectively since it had ascertained that even before the decree, because of a turnover in personnel, the union had lost majority status. The court stated that to hold respondent liable in contempt under these circumstances would do violence to its decree and to the Act rather than to vindicate them.
Because of the importance of the question in the administration of the National Labor Relations Act, we granted certiorari, 348 U. S. 958. Petitioner does not press here its prayer in the court below for an adjudication of criminal contempt.
In arriving at its decision purging respondent of contempt, the Court of Appeals stated that respondent had “complied fully with all the provisions” of its enforcement order; that it had “made an offer to bargain with the union;” that the union’s alleged loss of majority status was “without fault” on the respondent’s part; and that the Board took the position that respondent was required “to bargain indefinitely” notwithstanding the union’s loss of majority status.
If we had so understood the record, certiorari would not have been granted, but we do not so understand it. We believe the facts are to the contrary in each instance.
The original order of the Board found not only that respondent for a period of four years after notification by the union of its majority status had refused to bargain with it, but had also used deliberate and flagrant unfair labor practices to deprive the union of its majority status. In its opinion enforcing this cease and desist order, the Court of Appeals stated:
“With commendable candor respondent’s counsel has stated its position as follows:
“ ‘We have controverted the findings of fact of the Board in our Response, but in all fairness to this Court we are constrained to admit that there is sufficient evidence, even though disputed, upon which to base the Board’s order.’ ” 197 F. 2d 814.
The findings of both the Board and the Court of Appeals are, therefore, clear that there had been no willingness on respondent’s part up to that date, August 7, 1952, to bargain with the union.
In its “Answer of the Respondent to the petition of the Board for adjudication in Civil Contempt and other Civil Relief,” filed November 12, 1953, respondent alleged:
“As shown hereinbefore and hereinafter Respondent has refused to bargain collectively with the Union because it did not represent a majority of the employees.”
There is nothing in the record to indicate that this situation has ever changed in the slightest respect, and this in face of the fact that the union has at all times been willing to bargain.
Neither does the record indicate that the Board insisted upon respondent’s bargaining with the union indefinitely; on the contrary, it demonstrates that the Board has urged here and in the court below that respondent should bargain in good faith only for a reasonable length of time after designation of the union as the bargaining agency.
It cannot be said that respondent is “without fault,” because the record is clear that at no time has respondent bargained in good faith with the union. It has met with the union but twice since 1948 and on neither of those occasions did it bargain. It has avoided other meetings by evasion and refusal or failure to respond to a request therefor.
The sole question necessary for determination here is whether an employer who has been found guilty by the Board of unfair labor practices in refusing to bargain with a union designated as the exclusive representative of its employees and who has been directed to so bargain, is, after a decree enforcing the order and without remedying its unfair labor practices, legally justified in refusing to bargain with the union because it contends the union does not in fact have majority status in its plant, or must such employer bargain fairly for a reasonable length of time in accordance with the order to avoid an adjudication in civil contempt.
We believe that an employer in such circumstances cannot lawfully refuse to bargain; that he must do so for a reasonable time; and that for a failure to so bargain it is the statutory duty of the Court of Appeals on petition of the Board to adjudge him in contempt of its enforcement decree. To conclude otherwise would greatly weaken the administration of the National Labor Relations Act.
That Act contemplates cooperation between the Board and the Courts of Appeals both at the enforcement and the contempt stages in order to effectuate its purposes. It consigns certain statutory functions to each, and where the Board has acted properly within its designated sphere, the court is required to grant enforcement of the Board’s order. The decree, like the order it enforces, is aimed at the prevention of unfair labor practices, an objective of the Act, and so long as compliance is not forthcoming that objective is frustrated. It is for this reason that Congress gave the judicial remedy of contempt as the ultimate sanction to secure compliance with Board orders. The granting or withholding of such remedial action is not wholly discretionary with the court. This is true not only under the National Labor Relations Act but also under general principles of equity jurisprudence.
It seems clear to us that in the light of these principles and the facts of this case, the court below exceeded the allowable limits of its discretion in denying relief to the Board and that its judgment must be reversed and remanded for proceedings in conformity with this opinion.
Reversed and remanded.
There was only one meeting after entry of the enforcement decree. At this meeting, on January 19, 1953, respondent stated that it was in doubt as to the majority status of the union and for that reason "hesitated” to bargain with the union on the matter of a contract. This position was confirmed in a letter dated January 20, 1953, in which respondent advised the union of its intention to petition the Board for a decertification election.
United States v. Morgan, 307 U. S. 183.
Labor Board v. Bradford Dyeing Assn., 310 U. S. 318.
Labor Board v. Mexia Textile Mills, 339 U. S. 563.
McComb v. Jacksonville Paper Co., 336 U. S. 187.
International Salt Co. v. United States, 332 U. S. 392; Union Tool Co. v. Wilson, 259 U. S. 107; Penfield Co. v. Securities and Exchange Commission, 330 U. S. 585.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
81
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UNITED STATES v. NAVAJO NATION
No. 07-1410.
Argued February 23, 2009
Decided April 6, 2009
Then-Acting Solicitor General Kneedler argued the cause for the United States. With him on the briefs were former Solicitor General Garre, Assistant Attorney General Tencas, Anthony A. Yang, and Elizabeth A. Peterson.
Carter G. Phillips argued the cause for respondent. With him on the brief were Virginia A. Seitz, Robert A. Parker, Paul E. Frye, Lisa M. Enfield, and Louis Denetsosie
A brief of amici curiae urging reversal was filed for Peabody Western Coal Co. et al. by Charles G. Cole, Antonia B. lanniello, Shannen W. Coffin, Paul R. Hurst, G. Michael Halfenger, and Lawrence G. McBride.
Briefs of amici curiae urging affirmance were filed for the State of New Mexico et al. by Gary King, Attorney General of New Mexico, and David Thomson, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona and Mark Shurtleff of Utah; for Law Professors by Richard B. Collins and Carole E. Goldberg, both pro se; for the National Congress of American Indians et al. by Reid Peyton Chambers, Douglas B. L. Endreson, William R. Perry, and John T. Harrison; and for former Secretary of the Interior Cecil D. Andrus et al. by Kathleen M. Sullivan, Daniel H. Bromberg, and Margret M. Caruso.
Justice Scalia
delivered the opinion of the Court.
For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the Federal Government based on an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. The original lease took effect in 1964. The amendments were approved in 1987. The litigation was initiated in 1993. Six years ago, we held that “the Tribe’s claim for compensation... fails,” United States v. Navajo Nation, 537 U. S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of Appeals for the Federal Circuit resuscitated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe’s claim for compensation fails. This matter should now be regarded as closed.
I. Legal Background
The Federal Government cannot be sued without its consent. FDIC v. Meyer, 510 U. S. 471, 475 (1994). Limited consent has been granted through a variety of statutes, including one colloquially referred to as the Indian Tucker Act:
“The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe ... whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.” 28 U. S. C. § 1505.
The last clause refers to the (ordinary) Tucker Act, which waives immunity with respect to any claim “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” § 1491(a)(1).
Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e. g., statutes or contracts). United States v. Testan, 424 U. S. 392, 400 (1976); United States v. Mitchell, 445 U. S. 535, 538 (1980) (Mitchell I). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’” Testan, supra, at 400 (quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)); see also United States v. Mitchell, 463 U. S. 206, 218 (1983) (Mitchell II); Navajo I, 537 U. S., at 503.
As we explained in Navajo I, there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id., at 506. “If that threshold is passed, the court must then determine whether the relevant source of substantive law ‘can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’” Ibid, (alteration in original). At the second stage, principles of trust law might be relevant “in drawing the inference that Congress intended damages to remedy a breach.” United States v. White Mountain Apache Tribe, 537 U. S. 465, 477 (2003).
II. History of the Present Case
A. The Facts
A comprehensive recitation of the facts can be found in Navajo I, supra, at 495-502. By way of executive summary: The Tribe occupies a large Indian reservation in the American Southwest, on which there are significant coal deposits. In 1964 the Secretary of the Interior approved a lease (Lease 8580), executed by the Tribe and the predecessor of Peabody Coal Company, allowing the company to engage in coal mining on a tract of the reservation in exchange for royalty payments to the Tribe. The term of the lease was set at “ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities,” App. 189; it is still in effect today. The royalty rates were originally set at a maximum of 37.5 cents per ton of coal, but the lease also said that the rates were “subject to reasonable adjustment by the Secretary of the Interior” after 20 years and again “at the end of each successive ten-year period thereafter.” Id., at 194.
The dispute in this case concerns the Tribe’s attempt to secure such an adjustment to the royalty rate after the initial 20-year period elapsed in 1984. At that point, the Tribe requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds. Id., at 8-9. But Peabody filed an administrative appeal, and while it was pending the Tribe and the company reached a negotiated agreement to set a rate of 12.5 percent of gross proceeds instead. As a result, the Area Director’s decision was vacated, the administrative appeal was dismissed, and the Secretary approved the amendments to the lease.
B. This Litigation Through Navajo I
The Tribe launched the present lawsuit in 1993, claiming that the Secretary’s actions in connection with the approval of the lease amendments constituted a breach of trust. In particular, the Tribe alleged that the Secretary, following upon improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Tribe to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Indians’ best interests. The Tribe sought $600 million in damages, invoking the Indian Tucker Act to bypass sovereign immunity.
The Court of Federal Claims granted summary judgment to the United States, concluding that “the Navajo Nation has failed to present statutory authority which can be fairly interpreted as mandating compensation for the government’s fiduciary wrongs,” Navajo Nation v. United States, 46 Fed. Cl. 217, 236 (2000), and therefore could not sue under the Indian Tucker Act. The Federal Circuit reversed that ruling and held that the Indian Mineral Leasing Act of 1938 (IMLA), Ch. 198, 52 Stat. 347, 25 U. S. C. §396a et seq., among other statutes, gave the Government broad control over mineral leasing on Indian lands, thus creating a fiduciary duty enforceable through suits for monetary damages. Navajo Nation v. United States, 263 F. 3d 1325, 1330-1332 (2001). Finding that the Government had in fact violated its obligations, the Court of Appeals reinstated the suit.
We granted certiorari, United States v. Navajo Nation, 535 U. S. 1111 (2002), and (as described by the author of the ensuing opinion, concurring in a companion case) considered “the threshold question” presented by the Tribe’s attempt to invoke the Indian Tucker Act: “whether the IMLA and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government,” White Mountain, supra, at 480 (Ginsburg, J., concurring). The answer was an unequivocal no.
The relevant provision of the IMLA provided as follows:
“[U]nallotted lands within any Indian reservation or lands owned by any tribe . .. may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” 25 U. S. C. § 396a.
Another provision of the IMLA authorized the Secretary to promulgate regulations governing operations under such leases, § 396d, but during the relevant period the regulations applicable to coal leases, beyond setting a minimum royalty rate of 10 cents per ton, 25 CFR § 211.15(c) (1985), did not limit the Secretary’s approval authority.
We construed the IMLA in light of its purpose: to “enhance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties.” Navajo I, 537 U. S., at 508. Consistent with that goal, the IMLA gave the Secretary not a “comprehensive managerial role,” id., at 507, but only the power to approve coal leases already negotiated by Tribes. That authority did not create, expressly or otherwise, a trust duty with respect to coal leasing and so there existed no enforceable fiduciary obligations that the Tribe could sue the Government for having neglected. Id., at 507-508.
We distinguished Mitchell II, which involved a series of statutes and regulations that gave the Federal Government “full responsibility to manage Indian resources and land for the benefit of the Indians.” 463 U. S., at 224. Title 25 U. S. C. § 406(a) permitted Indians to sell timber with the consent of the Secretary of the Interior, but directed the Secretary to base his decisions on “a consideration of the needs and best interests of the Indian owner and his heirs” and enumerated specific factors to guide that decision-making. We understood that statute — in combination with several other provisions and the applicable regulations — to create a fiduciary duty with respect to Indian timber. Mitchell II, supra, at 219-224. But neither the IMLA nor its regulations established any analogous duties or obligations in the coal context. Navajo I, supra, at 507-508.
Nor did the other statutes cited by the Tribe — 25 U. S. C. §399 and the Indian Mineral Development Act of 1982 (IMDA), 96 Stat. 1938, 25 U. S. C. §2101 et seq. — help its case. Section 399 “is not part of the IMLA and [did] not govern Lease 8580,” Navajo I, 537 U. S., at 509; rather, it granted to the Secretary the power to lease Indian land on his own say-so. We therefore found it irrelevant to the question whether “the Secretary’s more limited approval role under the IMLA” created any enforceable duties. Ibid. And while the IMDA did set standards to govern the Secretary’s approval of other mining-related agreements, Lease 8580 “falls outside the IMDA’s domain,” ibid.; that law was accordingly beside the point.
Having resolved that “we ha[d] no warrant from any relevant statute or regulation to conclude that [the Secretary’s] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act,” this Court reversed the Federal Circuit’s judgment in favor of the Tribe and “remanded for further proceedings consistent with this opinion.” Id., at 514.
C. Proceedings on Remand
On remand, the Tribe argued that even if its suit could not be maintained on the basis of the IMLA, the IMDA, or § 399, a “network” of other statutes, treaties, and regulations could provide the basis for its claims. The Government objected that our opinion foreclosed that possibility, but the Federal Circuit disagreed and remanded for consideration of the argument in the first instance. 347 F. 3d 1327 (2003). The Court of Federal Claims, however, persisted in its original decision to dismiss the Tribe’s claim, explaining that nothing in the suggested “network” succeeded in tying “specific laws or regulatory provisions to the issue at hand,” namely, the Secretary’s approval of royalty rates in coal leases negotiated by tribes. 68 Fed. Cl. 805, 811 (2005).
Once again the Federal Circuit reversed, this time relying primarily on three statutory provisions — two sections of the Navajo-Hopi Rehabilitation Act of 1950, §§5,8,64 Stat. 46,25 U. S. C. §§ 635(a), 638; and one section of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. § 1300(e)— to allow the Tribe’s claim to proceed. The court held that the Government had violated the specific duties created by those statutes, as well as “common law trust duties of care, candor, and loyalty” that arise from the comprehensive control over tribal coal that is exercised by the Government. 501 F. 3d 1327, 1346 (2007).
Once again we granted the Government’s petition for a writ of certiorari. 554 U. S. 944 (2008).
III. Analysis
A. Threshold Matter
The Government points to our categorical concluding language in Navajo I: “[W]e have no warrant from any relevant statute or regulation to conclude that [the Secretary’s] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act,” 537 U. S., at 514. This proves, the Government claims, that this Court definitively terminated the Tribe’s claim last time around, so that the lower court’s later resurrection of the suit was flatly inconsistent with our mandate. But, to be fair, our opinion (like the Court of Appeals decision we were reviewing, Navajo Nation, 263 F. 3d, at 1327, 1330-1331) did not analyze any statutes beyond the IMLA, the IMDA, and § 399. It is thus conceivable, albeit unlikely, that some other relevant statute, though invoked by the Tribe at the outset of the litigation, might have gone unmentioned by the Federal Circuit and unanalyzed by this Court.
So we cannot say that our mandate completely foreclosed the possibility that such a statute might allow for the Tribe to succeed on remand. What we can say, however, is that our reasoning in Navajo I — in particular, our emphasis on the need for courts to “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506 — left no room for that result based on the sources of law that the Court of Appeals relied upon.
B. 25U.S.C. § 635(a)
The first of the two discussed provisions of the Navajo-Hopi Rehabilitation Act of 1950 — like the IMLA — permits Indians to lease reservation lands if the Secretary approves of the deal:
“Any restricted Indian lands owned by the Navajo Tribe, members thereof, or associations of such members . . . may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, or business purposes, including the development or utilization of natural resources in connection with operations under such leases. All leases so granted shall be for a term of not to exceed twenty-five years, but may include provisions authorizing their renewal for an additional term of not to exceed twenty-five years, and shall be made under such regulations as may be prescribed by the Secretary.... Nothing contained in this section shall be construed to repeal or affect any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law.” 25 U. S. C. § 635(a).
The Tribe contends that this section renders the Government liable for any breach of trust in connection with the approval of leases executed pursuant to the authority it grants. Whether or not that is so, the provision only even arguably matters if Lease 8580 was issued under its authority.
In Navajo I we presumed, as did the parties, that the lease had been issued pursuant to the IMLA. 537 U. S., at 495. But now the Tribe has changed its tune, and contends that Lease 8580 was approved under § 635(a), not under the IMLA at all. Brief for Respondent 39. The Government says otherwise. Section 635(a) permits leasing only for “public, religious, educational, recreational, or business purposes,” and the Government contends that mining is not embraced by those terms. While leases under § 635(a) may provide for “the development or utilization of natural resources,” they may do so only “in connection with operations under such leases,” i. e., in connection with operations for the enumerated purposes. By contrast, mining leases were permitted and governed by the IMLA even before the Navajo-Hopi Rehabilitation Act was enacted in 1950.
We need not decide whether the Government is correct on that point, or whether mining could ever qualify as a “business purpos[e]” under the statute, because the Tribe’s argument suffers from a more fundamental problem. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows “for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” 25 U. S. C. § 396a. Lease 8580, mirroring the latter language, sets a term of “ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities.” App. 189. That indefinite lease term strongly suggests that it was negotiated by the Tribe and approved by the Secretary under the powers authorized by the IMLA, not the Rehabilitation Act.
The Tribe’s only responses to this apparently fatal defect in its argument are (1) that § 635(a) expressly leaves unaffected “any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law,” including the authority to lease for indefinite terms; and (2) that Stewart Udall, who served as Secretary of the Interior during the 1960’s, recently testified that “coal leasing and related development was the centerpiece of the resources development program” under the Rehabilitation Act, id., ¶3, at 569.
As to the former: That is precisely the point. Section 635(a) creates a supplemental authority for leasing Indian land; it does not displace authority granted elsewhere. But in light of the different conditions attached to the different grants, it is apparent that a particular lease must be executed and approved pursuant to a particular authorization. The saving clause in § 635(a) does not allow the Tribe to mix-and-match, to combine the (allegedly) duty-creating mechanism of the Rehabilitation Act with the indefinite lease term of the IMLA. It must be one or the other, and the record persuasively demonstrates that Lease 8580 is an IMLA lease.
As to Secretary Udall’s testimony: That is not inconsistent with our conclusion. The Interior Department may have viewed coal leasing as an important part of the program to rehabilitate the Navajo Tribe but that does not prove that Lease 8580 was issued pursuant to the supplemental leasing authority granted by the Rehabilitation Act, rather than the pre-existing leasing authority of the IMLA preserved by the Rehabilitation Act. The latter, perhaps because of its longer lease terms, was evidently preferable to the Tribe or the coal company or both.
Because the lease in this case “falls outside” § 635(a)’s “domain,” Navajo I, supra, at 509, the Tribe cannot invoke it as a source of money-mandating rights or duties.
C. 25 U. S. C. §638
Next, the Tribe points to a second provision in the Navajo-Hopi Rehabilitation Act:
“The Tribal Councils of the Navajo and Hopi Tribes and the Indian communities affected shall be kept informed and afforded opportunity to consider from their inception plans pertaining to the program authorized by this subchapter. In the administration of the program, the Secretary of the Interior shall consider the recommendations of the tribal councils and shall follow such recommendations whenever he deems them feasible and consistent with the objectives of this subchapter.” 25 U.S. C. §638.
In the Tribe’s view, the Secretary violated this provision by failing promptly to abide by its wishes to affirm the Area Director’s order increasing the royalty rate under Lease 8580 to a full 20 percent of gross proceeds.
We cannot agree. The “program” twice mentioned in §638 refers back to the Act’s opening provision, which directs the Secretary to undertake “a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more productive employment of their manpower, and the supplying of means to be used in their rehabilitation.” § 631. The statute then enumerates various projects to be included in that program, and authorizes appropriation of funds (in specific amounts) for each. E. g., “Soil and water conservation and range improvement work, $10,000,000.” §631(1).
The only listed project even remotely related to this case is “[s]urveys and studies of timber, coal, mineral, and other physical and human resources.” § 631(3). Of course a lease is neither a survey nor a study. To read §688 as imposing a money-mandating duty on the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act, and to allow for the enforcement of that duty through the Indian Tucker Act, would simply be too far a stretch.
D. 30 U.S.C. §1201 etseq.
The final statute invoked by the Tribe is the most easily dispensed with. The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 91 Stat. 445, 30 U. S. C. § 1201 et seq., is a comprehensive statute that regulates all surface coal mining operations. See generally § 1202; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 268-272 (1981). One section of the Act, §1300, deals with coal mining specifically on Indian lands, and the Tribe cites subsection (e): “With respect to leases issued after [the date of enactment of this Act], the Secretary shall include and enforce terms and conditions in addition to those required by subsections (c) and (d) of this section as may be requested by the Indian tribe in such leases.”
According to the Tribe, this provision requires the Secretary to enforce whatever terms the Indians request with respect to coal leases. In light of the fact that the referenced subsections (c) and (d) refer exclusively to environmental protection standards, that interpretation is highly suspect. In any event, because Lease 8580 was issued in 1964 — some 13 years before the date of enactment of the SMCRA — the provision is categorically inapplicable. The Federal Circuit concluded otherwise on the theory that the amendments to the lease were approved after 1977. But § 1300(e) is limited to leases “issued” after that date; and even the Tribe does not contend that a lease is “issued” whenever it is amended. The SMCRA is irrelevant here.
E. Government’s “Comprehensive Control” Over Coal
The Federal Circuit’s opinion also suggested that the Government’s “comprehensive control” over coal on Indian land gives rise to fiduciary duties based on common-law trust principles. It noted that the Government had conducted surveys and studies of the Tribe’s coal resources, 501 F. 3d, at 1341; that the Interior Department imposed various requirements on coal mining operations on Indian land — regulating, for example, “signs and markers, postmining use of land, backfilling and grading, waste disposal, topsoil handling, protection of hydrologic systems, revegetation, and steep-slope mining,” id., at 1342; and that the Government in practice exercised control over the calculation of coal values and quantities for royalty purposes, even though such control was codified by regulation only after the events at issue here, id., at 1342-1343.
The Federal Government’s liability cannot be premised on control alone. The text of the Indian Tucker Act makes clear that only claims arising under “the Constitution, laws or treaties of the United States, or Executive orders of the President” are cognizable (unless the claim could be brought by a non-Indian plaintiff under the ordinary Tucker Act). 28 U. S. C. § 1505. In Navajo I we reiterated that the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions.” 537 U. S., at 506. If a plaintiff identifies such a prescription, and if that prescription bears the hallmarks of a “conventional fiduciary relationship,” White Mountain, 537 U. S., at 473, then trust principles (including any such principles premised on “control”) could play a role in “inferring that the trust obligation [is] enforceable by damages,” id., at 477. But that must be the second step of the analysis, not (as the Federal Circuit made it) the starting point.
Navajo I determined that the IMLA, which governs the lease at issue here, does not create even a “‘limited trust relationship’ ” with respect to coal leasing. 537 U. S., at 508 (quoting Mitchell I, 445 U. S., at 542). Since the statutes discussed in the preceding subparts, supra, at 296-300, do not apply to the lease at all, they likewise create no such relationship. Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common-law trust principles matter.
* * *
None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its breach-of-trust lawsuit against the Federal Government than those we analyzed in Navajo I. This case is at an end. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to affirm the Court of Federal Claims’ dismissal of the Tribe’s complaint.
It is so ordered.
Justice Souter, with whom Justice Stevens joins, concurring.
I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514-521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
25
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AMBACH, COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, et al. v. NORWICK et al.
No. 76-808.
Argued January 10, 1979
Decided April 17, 1979
Powell, J., delivered the opinion of the Court, in which BuRGER, C. J., and Stewart, White, and RehNquist, JJ., joined. BlacemuN, J., filed a dissenting opinion, in which BreNNAN, Marshall, and SteveNS, JJ., joined, post, p. 81.
Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellants. With her on the briefs were Robert Abrams, Attorney General, Louis J. Lefkowitz, former Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman, Assistant Solicitor General.
Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief were David Carliner and Burt Neuborne.
Albert E. Arent, Vilma S. Martinez, Peter Boos, and Roderic V. O. Boggs filed a brief for the Washington Lawyers’ Committee for Civil Rights Under Law et al. as amici curiae urging affirmance.
Mr. Justice Powell
delivered the opinion of the Court.
This case presents the question whether a State, consistently with the Equal Protection Clause of the Fourteenth Amendment, may refuse to employ as elementary and secondary school teachers aliens who are eligible for United States citizenship but who refuse to seek naturalization.
I
New York Education Law § 3001 (3) (McKinney 1970) forbids certification as a public school teacher of any person who is not a citizen of the United States, unless that person has manifested an intention to apply for citizenship. The Commissioner of Education is authorized to create exemptions from this prohibition, and has done so with respect to aliens who are not yet eligible for citizenship. Unless a teacher obtains certification, he may not work in a public elementary or secondary school in New York.
Appellee Norwick was born in Scotland and is a subject of Great Britain. She has resided in this country since 1965 and is married to a United States citizen. Appellee Dachinger is a Finnish subject who came to this country in 1966 and also is married to a United States citizen. Both Norwick and Dachinger currently meet all of the educational requirements New York has set for certification as a public school teacher, but they consistently have refused to seek citizenship in spite of their eligibility to do so. Norwick applied in 1973 for a teaching certificate covering nursery school through sixth grade, and Dachinger sought a certificate covering the same grades in 1975. Both applications were denied because of appellees’ failure to meet the requirements of §3001 (3). Norwick then filed this suit seeking to enjoin the enforcement of § 3001 (3), and Dachinger obtained leave to intervene as a plaintiff.
A three-judge District Court was convened pursuant to 28 U. S. C. § 2281 (1970 ed.). Applying the "close judicial scrutiny” standard of Graham v. Richardson, 403 U. S. 365, 372 (1971), the court held that § 3001 (3) discriminated against aliens in violation of the Equal Protection Clause. Norwick v. Nyquist, 417 F. Supp. 913 (SDNY 1976). The court believed that the statute was overbroad, because it excluded all resident aliens from all teaching jobs regardless of the subject sought to be taught, the alien’s nationality, the nature of the alien’s relationship to this country, and the alien’s willingness to substitute some other sign of loyalty to this Nation’s political values, such as an oath of allegiance. Id., at 921. We noted probable jurisdiction over the state school officials’ appeal, 436 U. S. 902 (1978), and now reverse.
II
A
The decisions of this Court regarding the permissibility of statutory classifications involving aliens have not formed air unwavering line over the years. State regulation of the employment of aliens long has been subject to constitutional constraints. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court struck down an ordinance which was applied to prevent aliens from running laundries, and in Truax v. Raich, 239 U. S. 33 (1915), a law requiring at least 80% of the employees of certain businesses to be citizens was held to be an unconstitutional infringement of an alien’s “right to work for a living in the common occupations of the community. ...” Id., at 41. At the same time, however, the Court also has recognized a greater degree of latitude for the States when aliens were sought to be excluded from public employment. At the time Truax was decided, the governing doctrine permitted States to exclude aliens from various activities when the restriction pertained to “the regulation or distribution of the public domain, or of the common property or resources of the people of the State . . . .” Id., at 39. Hence, as part of a larger authority to forbid aliens from owning land, Frick v. Webb, 263 U. S. 326 (1923); Webb v. O’Brien, 263 U. S. 313 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Terrace v. Thompson, 263 U. S. 197 (1923); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U. S. 138 (1914); McCready v. Virginia, 94 U. S. 391 (1877); or maintaining an inherently dangerous enterprise, Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927), States permissibly could exclude aliens from working on public construction projects, Crane v. New York, 239 U. S. 195 (1915), and, it appears, from engaging in any form of public employment at all, see Truax, supra, at 40.
Over time, the Court’s decisions gradually have restricted the activities from which States are free to exclude aliens. The first sign that the Court would question the constitutionality of discrimination against aliens even in areas affected with a “public interest” appeared in Oyama v. California, 332 U. S. 633 (1948). The Court there held that statutory presumptions designed to discourage evasion of California’s ban on alien landholding discriminated against the citizen children of aliens. The same Term, the Court held that the “ownership” a State exercises over fish found in its territorial waters “is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so.” Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 421 (1948). This process of withdrawal from the former doctrine culminated in Graham v. Richardson, supra, which for the first time treated classifications based on alien-age as “inherently suspect and subject to close judicial scrutiny.” 403 U. S., at 372. Applying Graham, this Court has held invalid statutes that prevented aliens from entering a State’s classified civil service, Sugarman v. Dougall, 413 U. S. 634 (1973), practicing law, In re Griffiths, 413 U. S. 717 (1973), working as an engineer, Examining Board v. Flores de Otero, 426 U. S. 572 (1976), and receiving state educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977).
Although our more recent decisions have departed substantially from the public-interest doctrine of Truax’s day, they have not abandoned the general principle that some state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government. In Sugar-man, we recognized that a State could, “in an appropriately defined class of positions, require citizenship as a qualification for office.” We went on to observe:
“Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.’. . . And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” 413 U. S., at 647 (citation omitted).
The exclusion of aliens from such governmental positions would not invite as demanding scrutiny from this Court. Id., at 648. See also Nyquist v. Mauclet, supra, at 11; Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), summarily aff’d, 426 U. S. 913 (1976).
Applying the rational-basis standard, we held last Term that New York could exclude aliens from the ranks of its police force. Foley v. Connelie, 435 U. S. 291 (1978). Because the police function fulfilled “a most fundamental obligation of government to its constituency” and by necessity cloaked policemen with substantial discretionary powers, we viewed the police force as being one of those appropriately defined classes of positions for which a citizenship requirement could be imposed. Id., at 297. Accordingly, the State was required to justify its classification only “by a showing of some rational relationship between the interest sought to be protected and the limiting classification.” Id., at 296.
The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than 11 times, see Suffarman v. Dougall, supra, at 651-652 (Rehnquist, J., dissenting), indicating that the status of citizenship was meant to have significance in the structure of our government. The assumption of that status, whether by birth or naturalization, denotes an association with the polity which, in a democratic republic, exercises the powers of governance. See Foley v. Connelie, supra, at 295. The form of this association is important: an oath of allegiance or similar ceremony cannot substitute for the unequivocal legal bond citizenship represents. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.
B
In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role. See Foley v. Connelie, supra, at 297. Each of these considerations supports the conclusion that public school teachers may be regarded as performing a task “that go[es] to the heart of representative government.” Sugarman v. Dougall, supra, at 647.
Public education, like the police function, “fulfills a most fundamental obligation of government to its constituency.” Foley, supra, at 297. The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions:
“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” Brown v. Board of Education, 347 U. S. 483, 493 (1954).
See also Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 246 (1973) (Powell, J., concurring in part and dissenting in part); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 29-30 (1973); Wisconsin v. Yoder, 406 U. S. 205, 213 (1972); id., at 238-239 (White, J., concurring); Abington School Dist. v. Schempp, 374 U. S. 203, 230 (1963) (Brennan, J., concurring); Adler v. Board of Education, 342 U. S. 485, 493 (1952); McCollum v. Board of Education, 333 U. S. 203, 212 (1948) (opinion of Frankfurter, J.); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U. S. 79 (1907). Other authorities have perceived public schools as an “assimilative force” by which diverse and conflicting elements in our society are brought together on a broad but common ground. See, e. g., J. Dewey, Democracy and Education 26 (1929); N. Edwards & H. Richey, The School in the American Social Order 623-624 (2d ed. 1963). These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists. See R. Dawson & K. Prewitt, Political Socialization 146-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 114, 168-171, 217-220 (1967); V. Key, Public Opinion and American Democracy 323-343 (1961).
Within the public school system, teachers play a critical part in developing students’ attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-today contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students’ experience to achieve educational goals, teachers by necessity have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities. This influence is crucial to the continued good health of a democracy.
Furthermore, it is clear that all public school teachers, and not just those responsible for teaching the courses most directly related to government, history, and civic duties, should help fulfill the broader function of the public school system. Teachers, regardless of their specialty, may be called upon to teach other subjects, including those expressly dedicated to political and social subjects. More importantly, a State properly may regard all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Certainly a State also may take account of a teacher’s function as an example for students, which exists independently of particular classroom subjects. In light of the foregoing considerations, we think it clear that public school teachers come well within the “governmental function” principle recognized in Sugarman and Foley. Accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bear a rational relationship to a legitimate state interest. See Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 314 (1976):
III
As the legitimacy of the State’s interest in furthering the educational goals outlined above is undoubted, it remains only to consider whether § 3001 (3) bears a rational relationship to this interest. The restriction is carefully framed to serve its purpose, as it bars from teaching only those aliens who have demonstrated their unwillingness to obtain United States citizenship. Appellees, and aliens similarly situated, in effect have chosen to classify themselves. They prefer to retain citizenship in a foreign country with the obligations it entails of primary duty and loyalty. They have rejected the open invitation extended to qualify for eligibility to teach by applying for citizenship in this country. The people of New York, acting through their elected representatives, have made a judgment that citizenship should be a qualification for teaching the young of the State in the public schools, and § 3001 (3) furthers that judgment.
Reversed
The statute provides:
“No person shall be employed or authorized to teach in the public schools of the state who is:
“3. Not a citizen. The provisions of this subdivision shall not apply, however, to an alien teacher now or hereafter employed, provided such teacher shall make due application to become a citizen and thereafter within the time prescribed by law shall become a citizen. The provisions of this subdivision shall not apply after July first, nineteen hundred sixty-seven, to an alien teacher employed pursuant to regulations adopted by the commissioner of education permitting such employment.” N. Y. Educ. Law § 3001 (3) (McKinney 1970).
The statute contains an exception for persons who are ineligible for United States citizenship solely because of an oversubscribed quota. §3001-a (McKinney 1970). Because this statutory provision is in all respects narrower than the exception provided by regulation, see n. 2, infra, as a practical matter it has no effect.
The State does not certify the qualifications of teachers in the private schools, although it does require that such teachers be “competent.” N. Y. Educ. Law § 3204 (2) (McKinney Supp. 1978-1979). Accordingly, we are not presented with the question of, and express no view as to, the permissibility of a citizenship requirement pertaining to teachers in private schools.
The following regulation governs here:
“Citizenship. A teacher who is not a citizen of the United States or who has not declared intention of becoming a citizen may be issued a provisional certificate providing such teacher has the appropriate educational qualifications as defined in the regulations and (1) possesses skills or competencies not readily available among teachers holding citizenship, or (2) is unable to declare intention of becoming a citizen for valid statutory reasons.” 8 N. Y. C. R. R. § 80.2 (i) (1978).
Certification by the Commissioner of Education is not required of teachers at state institutions of higher education and the citizenship restriction accordingly does not apply to them. Brief for Appellants 13 n. *.
At the time of her application Norwick had not yet met the postgraduate educational requirements for a permanent certificate and accordingly applied only for a temporary certificate, which also is governed by § 3001 (3). She since has obtained the necessary graduate degree for full certification. Dachinger previously had obtained a temporary certificate, which had lapsed at the time of her 1975 application. The record does not indicate whether Dachinger previously had declared an intent to obtain citizenship or had obtained the temporary certificate because of some applicable exception to the citizenship requirement.
That the significance of citizenship has constitutional dimensions also has been recognized by several of our decisions. In Trop v. Dulles, 356 U. S. 86 (1958), a plurality of the Court held that the expatriation of an American citizen constituted cruel and unusual punishment for the crime of desertion in time of war. In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that the Constitution forbade Congress from depriving a person of his citizenship against his will for any reason.
The dissenting opinion of Mr. Justice Blackmun, in reaching an opposite conclusion, appears to apply a different analysis from that employed in our prior decisions. Rather than considering whether public school teachers perform a significant government function, the inquiry mandated by Foley v. Connelie, 435 U. S. 291 (1978), and Sugarman v. Dougall, the dissent focuses instead on the general societal importance of primary and secondary school teachers both public and private. Thus, the dissent on the one hand depreciates the importance of New York’s citizenship requirement because it is not applied to private school teachers, and on the other hand argues that the role teachers perform in our society is no more significant than that filled by attorneys. This misses the point of Foley and Sugarman. New York’s citizenship requirement is limited to a governmental function because it applies only to teachers employed by and acting as agents of the State. The Connecticut statute held unconstitutional in In re Griffiths, 413 U. S. 717 (1973), by contrast, applied to all attorneys, most of whom do not work for the government. The exclusion of aliens from access to the bar implicated the right to pursue a chosen occupation, not access to public employment. Cf. Nyquist v. Mauclet, 432 U. S. 1, 15-16, n. (1977) (Powell, J., dissenting). The distinction between a private occupation and a government function was noted expressly in Griffiths:
“Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers.” 413 U. S., at 729.
As San Antonio Independent School Dist. v. Rodriguez recognized, there is no inconsistency between our recognition of the vital significance of public education and our holding that access to education is not guaranteed by the Constitution. 411 U. S., at 30-35.
The curricular requirements of New York’s public school system reflect some of the ways a public school system promotes the development of the understanding that is prerequisite to intelligent participation in the democratic process. The schools are required to provide instruction “to promote a spirit of patriotic and civic service and obligation and to foster in the children of the state moral and intellectual qualities which are essential in preparing to meet the obligations of citizenship in peace or in war . . ..” N. Y. Educ. Law § 801 (1) (McKinney 1969). Flag and other patriotic exercises also are prescribed, as loyalty is a characteristic of citizenship essential to the preservation of a country. § 802 (McKinney 1969 and Supp. 1978-1979). In addition, required courses include classes in civics, United States and New York history, and principles of American government. §§ 3204 (3) (a) (1), (2) (McKinney 1970).
Although private schools also are bound by most of these requirements, the State has a stronger interest in ensuring that the schools it most directly controls, and for which it bears the cost, are as effective as possible in teaching these courses.
Although the findings of scholars who have written on the subject are not conclusive, they generally reinforce the common-sense judgment, and the experience of most of us, that a teacher exerts considerable influence over the development of fundamental social attitudes in students, including those attitudes which in the broadest sense of the term may be viewed as political. See, e. g., R. Dawson & K. Prewitt, Political Socialization 158-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 162-163, 217-218 (1967). Cf. Note, Aliens’ Right to Teach: Political Socialization and the Public Schools, 85 Yale L. J. 90, 99-104 (1975).
Appellees contend that restriction of an alien’s freedom to teach in public schools is contrary to principles of diversity of thought and academic freedom embodied in the First Amendment. See also id., at 106-109. We think that the attempt to draw an analogy between choice of citizenship and political expression or freedom of association is wide of the mark, as the argument would bar any effort by the State to promote particular values and attitudes toward government. Section 3001 (3) does not inhibit appellees from expressing freely their political or social views or from associating with whomever they please. Cf. Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 415-416 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274 (1977); Pickering v. Board of Education, 391 U. S. 563 (1968). Nor are appellees discouraged from joining with others to advance particular political ends. Cf. Shelton v. Tucker, 364 U. S. 479 (1960). The only asserted liberty of appellees withheld by the New York statute is the opportunity to teach in the State’s schools so long as they elect not to become citizens of this country. This is not a liberty that is accorded constitutional protection.
At the primary school level, for which both appellees sought certification, teachers are responsible for all of the basic curriculum.
In New York, for example, all certified teachers, including those in the secondary schools, are required to be available for up to five hours of teaching a week in subjects outside their specialty. 8 N. Y. C. R. R. § 80.2(c) (1978).
See n. 2, supra.
As our cases have emphasized, resident aliens pay taxes, serve in the Armed Forces, and have made significant contributions to our country in private and public endeavors. See In re Griffiths, 413 U. S., at 722; Sugarman v. Dougall, 413 U. S., at 645; Graham v. Richardson, 403 U. S. 365, 376 (1971). No doubt many of them, and we do not exclude appellees, would make excellent public school teachers. But the legislature, having in mind the importance of education to state and local governments, see Brown v. Board of Education, 347 U. S. 483, 493 (1954), may determine eligibility for the key position in discharging that function on the assumption that generally persons, who are citizens, or who have not declined the opportunity to seek United States citizenship, are better qualified than are those who have elected to remain aliens.' We note in this connection that regulations promulgated pursuant to § 3001 (3) do provide for situations where a particular alien’s special qualifications as a teacher outweigh the policy primarily served by the statute. See 8 N. Y. C. R. R. §80.2 (i) (1) (1978). The appellants inform us, however, that the authority conferred by this regulation has not been exercised. Brief for Appellants 7 n. *.
Appellees argue that the State cannot rationally exclude aliens from teaching positions and yet permit them to vote for and sit on certain local school boards. We note, first, that the State’s legislature has not expressly endorsed this policy. Rather, appellants as an administrative matter have interpreted the statute governing New York City’s unique community school boards, N. Y. Educ. Law § 2590-c (4) (McKinney Supp. 1978-1979), to permit aliens who are the parents of public school students to participate in these boards. See App. 27, 29. We also may assume, without having to decide, that there is a rational basis for a distinction between teachers and board members based on their respective responsibilities. Although possessing substantial responsibility for the administration of the schools, board members teach no classes, and rarely if ever are known or identified by the students.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
116
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WASHINGTON et al. v. WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION et al.
No. 77-983.
Argued February 28, 1979
Decided July 2, 1979
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and Blackmun, JJ., joined and in Parts I, II, and III of which Stewart, Powell, and Rehnquist, JJ., joined. Powell, J., filed an opinion dissenting in part, in which Stewart and Rehnquist, JJ., joined, post, p. 696.
Slade Gorton, Attorney General of Washington, argued the cause for the State of Washington. With him on the briefs were Edward B. Mackie, Deputy Attorney General, James M. Johnson, Senior Assistant Attorney General, and Timothy R. Malone, Assistant Attorney General. Philip A. Lacovara argued the cause for the Puget Sound Gillnetters Association et al. With him on the briefs were Charles E. Yates, Douglas Fryer, Joseph T. Mijich, and Gerald Goldman. Richard W. Pierson filed a brief for the Washington State Commercial Passenger Fishing Vessel Association in all cases.
Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, and Kathryn A. Oberly. Mason D. Morisset argued the cause for the Lummi Indian Tribe et al. With him on the brief were Steven S. Anderson, Thomas P. Schlosser, Alan C. Stay, Robert Pelcyger, Daniel A. Raas, William H. Rodgers, Jr., and John Clinebell. Michael Taylor filed a brief for the Quinault Indian Nation. James B. Hovis filed a brief for the Yakima Nation, respondent in Nos. 78-119 and 78-139. Dennis C. Karnopp and Douglas Nash filed a brief for the Confederated Tribes of the Warm Springs Reservation Oregon et al., respondents in Nos. 78-119 and 78-139.
Together with Washington et al. v. Puget Sound Gillnetters Assn. et al., also on certiorari to the same court (see this Court’s Rule 23 (5)); and No. 78-119, Washington et al. v. United States et al., and No. 78-139, Puget Sound Gillnetters Assn, et al. v. United States District Court for the Western District of Washington (United States et al., Real Parties in Interest), on certiorari to the United States Court of Appeals for the Ninth Circuit.
Briefs of amici curiae urging reversal in No. 77-983 and affirmance in Nos. 78-119 and 78-139 were filed by David H. Getches, Burt Neuborne, and Stephen L. Pevar for the American Civil Liberties Union et al.; and by Arthur Lazarus, Jr., for the Nez Perce Tribe of Idaho.
Briefs of amici curiae were filed by Frederick L. Noland for the American Friends Service Committee et al.; by J. Carl Mundt and Henry H. Happel III for the American Institute of Fishery Research Biologists; by Don S. Willner for the Northwest Steelhead and Salmon Council of Trout Unlimited; by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation; and by Paul W. Steere for the Pacific Seafood Processors Association.
Mr. Justice Stevens
delivered the opinion of the Court.
To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington, the United States entered into a series of treaties with Indian tribes in 1854 and 1855. The Indians relinquished their interest in most of the Territory in exchange for monetary payments. In addition, certain relatively small parcels of land were reserved for their exclusive use, and they were afforded other guarantees, including protection of their “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory.” 10 Stat. 1133.
The principal question presented by this litigation concerns the character of that treaty right to take fish. Various other issues are presented, but their disposition depends on the answer to the principal question. Before answering any of these questions, or even stating the issues with more precision, we shall briefly describe the anadromous fisheries of the Pacific Northwest, the treaty negotiations, and the principal components of the litigation complex that led us to grant these three related petitions for certiorari.
I
Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn. Different species have different life cycles, some spending several years and traveling great distances in the ocean before returning to spawn and some even returning to spawn on more than one occasion before dying. 384 F. Supp. 312, 384, 405. See Comment, State Power and the Indian Treaty Right to Fish, 59 Calif. L. Rev. 485, 501, and n. 99 (1971). The regular habits of these fish make their “runs” predictable; this predictability in turn makes it possible for both fishermen and regulators to forecast and to control the number of fish that will be caught or “harvested.” Indeed, as the terminology associated with it suggests, the management of anadromous fisheries is in many ways more akin to the cultivation of “crops” — with its relatively high degree of predictability and productive stability, subject mainly to sudden changes in climatic patterns — than is the management of most other commercial and sport fisheries. 384 F. Supp., at 351, 384.
Regulation of the anadromous fisheries of the Northwest is nonetheless complicated by the different habits of the various species of salmon and trout involved, by the variety of methods of taking the fish, and by the fact that a run of fish may pass through a series of different jurisdictions. Another complexity arises from the fact that the State of Washington has attempted to reserve one species, steelhead trout, for sport fishing and therefore conferred regulatory jurisdiction over that species upon its Department of Game, whereas the various species of salmon are primarily harvested by commercial fishermen and are managed by the State’s Department of Fisheries. Id., at 383-385, 389-399. Moreover, adequate regulation not only must take into account the potentially conflicting interests of sport and commercial fishermen, as well as those of Indian and nontreaty fishermen, but also must recognize that the fish runs may be harmed by harvesting either too many or too few of the fish returning to spawn. Id., at 384, 390.
The anadromous fish constitute a natural resource of great economic value to the State of Washington. Millions of salmon, with an average weight of from 4 or 5 to about 20 pounds, depending on the species, are harvested each year. Over 6,600 nontreaty fishermen and about 800 Indians make their livelihood by commercial fishing; moreover, some 280,000 individuals are licensed to engage dn sport fishing in the State. Id., at 387. See id., at 399.
II
One hundred and twenty-five years ago when the relevant treaties were signed, anadromous fish were even more important to most of the population of western Washington than they are today. At that time, about three-fourths of the approximately 10,000 inhabitants of the area were Indians. Although in some respects the cultures of the different tribes varied — some bands of Indians, for example, had little or no tribal organization while others, such as the Makah and the Yakima, were highly organized — all of them shared a vital and unifying dependence on anadromous fish. Id., at 350. See Puyallup Tribe v. Washington Game Dept., 433 U. S. 165, 179 (Brennan, J., dissenting in part).
Religious rites were intended to insure the continual return of the salmon and the trout; the seasonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes. 384 F. Supp., at 343, 351, 382; 459 F. Supp. 1020,1079; 520 F. 2d 676, 682. Fish constituted a major part of the Indian diet, was used for commercial purposes, and indeed was traded in substantial volume. The Indians developed food-preservation techniques that enabled them to store fish throughout the year and to transport it over great distances. 384 F. Supp., at 351. They used a wide variety of methods to catch fish, including the precursors of all modern netting techniques. Id., at 351, 352, 362, 368, 380. Their usual and accustomed fishing places were numerous and were scattered throughout the area, and included marine as well as fresh-water areas. Id., at 353, 360, 368-369.
All of the treaties were negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisers. Contemporaneous documents make it clear that these people recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries. Id., at 355, 363. There is no evidence of the precise understanding the Indians had of any of the specific English terms and phrases in the treaty. Id., at 356. It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off the reservations, id., at 355, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.
Referring to the negotiations with the Yakima Nation, by far the largest of the Indian tribes, the District Court found:
“At the treaty council the United States negotiators promised, and the Indians understood, that the Yakimas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising. The Yakimas relied on these promises and they formed a material and basic part of the treaty and of the Indians’ understanding of the meaning of the treaty.” Id., at 381 (record citations omitted).
See also id., at 363 (similar finding regarding negotiations with the Makah Tribe).
• The Indians understood that non-Indians would also have the right to fish at their off-reservation fishing sites. But this was not understood as a significant limitation on their right to take fish. Because of the great abundance of fish and the limited population of the area, it simply was not contemplated that either party would interfere with the other’s fishing rights. The parties accordingly did not see the need and did not intend to regulate the taking of fish by either Indians or non-Indians, nor was future regulation foreseen.. Id., at 334, 355, 357.
Indeed, for several decades after the treaties were signed, Indians continued to harvest most of the fish taken from the waters of Washington, and they moved freely about the Territory and later the State in search of that resource. Id., at 334. The size of the fishery resource continued to obviate the need during the period to regulate the taking of fish by either Indians or non-Indians. Id., at 352. Not until major economic developments in canning and processing occurred in the last few years of the 19th century did a significant non-Indian fishery develop. It was as a consequence of these developments, rather than of the treaty, that non-Indians began to dominate the fisheries and eventually to exclude most Indians from participating in it — a trend that was encouraged by the onset of often discriminatory state regulation in the early decades of the 20th century. Id., at 358, 394, 404, 407; 459 F. Supp., at 1032.
In sum, it is fair to conclude that when the treaties were negotiated, neither party realized or intended that their agreement would determine whether, and if so how, a resource that had always been thought inexhaustible would be allocated between the native Indians and the incoming settlers when it later became scarce.
Ill
Unfortunately, that resource has now become scarce, and the meaning of the Indians' treaty right to take fish has accordingly become critical. The United States Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington have issued conflicting decisions on its meaning. In addition, their holdings raise important ancillary questions that will appear from a brief review of this extensive litigation.
The federal litigation was commenced in the United States District Court for the Western District of Washington in 1970. The United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians’ share of the anadro-mous fish runs. Additional Indian tribes, the State’s Fisheries and Game Departments, and one commercial fishing group, were joined as parties at various stages of the proceedings, while various other agencies and groups, including all of the commercial fishing associations that are parties here, participated as amici curiae. 384 F. Supp., at 327, 328, and n. 4; 459 F. Supp., at 1028.
During the extensive pretrial proceedings, four different interpretations of the critical treaty language were advanced. Of those, three proceeded from the assumption that the language required some allocation to the Indians of a share of the runs of fish passing through their traditional fishing areas each year. The tribes themselves contended that the treaties had reserved a pre-existing right to as many fish as their commercial and subsistence needs dictated. The United States argued that the Indians were entitled either to a 50% share of the “harvestable” fish that originated in and returned to the “case area” and passed through their fishing places, or to their needs, whichever was less. The Department of Fisheries agreed that the Indians were entitled to “a fair and equitable share” stated in terms of a percentage of the har-vestable salmon in the area; ultimately it proposed a share of “one-third.”
Only the Game Department thought the treaties provided no assurance to the Indians that they could take some portion of each run of fish. That agency instead argued that the treaties gave the Indians no fishing rights not enjoyed by non-treaty fishermen except the two rights previously recognized by decisions of this Court — the right of access over private lands to their usual and accustomed fishing grounds, see Seufert Bros. Co. v. United States, 249 U. S. 194; United States v. Winans, 198 U. S. 371, and an exemption from the payment of license fees. See Tulee v. Washington, 315 U. S. 681.
The District Court agreed with the parties who advocated an allocation to the Indians, and it essentially agreed with the United States as to what that allocation should be. It held that the Indians were then entitled to a 45% to 50% share of the harvestable fish that will at some point pass through recognized tribal fishing grounds in the case area. The share was to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. Fish caught by Indians for ceremonial and subsistence purposes as well as fish caught within a reservation were excluded from the calculation of the tribes’ share. In addition, in order to compensate for fish caught outside of the case area, i. e., beyond the State’s jurisdiction, the court made an “equitable adjustment” to increase the allocation to the Indians. The court left it to the individual tribes involved to agree among themselves on how best to divide the Indian share of runs that pass through the usual and accustomed grounds of more than one tribe, and it postponed until a later date the proper accounting for hatchery-bred fish. 384 F. Supp., at 416-417; 459 F. Supp., at 1129. With a slight modification, the Court of Appeals for the Ninth Circuit affirmed, 520 F. 2d 676, and we denied certiorari, 423 U. S. 1086.
The injunction entered by the District Court required the Department of Fisheries (Fisheries) to adopt regulations protecting the Indians' treaty rights. 384 F. Supp., at 416-417. After the new regulations were promulgated, however, they were immediately challenged by private citizens in suits commenced in the Washington state courts. The State Supreme Court, in two cases that are here in consolidated form in No. 77-983, ultimately held that Fisheries could not comply with the federal injunction. Puget Sound Gillnetters Assn. v. Moos, 88 Wash. 2d 677, 565 P. 2d 1151 (1977); Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 571 P. 2d 1373 (1977).
As a matter of federal law, the state court first accepted the Game Department's and rejected the District Court’s interpretation of the treaties and held that they did not give the Indians a right to a share of the fish runs, and second concluded that recognizing special rights for the Indians would violate the Equal Protection Clause of the Fourteenth Amendment. The opinions might also be read to hold, as a matter of state law, that Fisheries had no authority to issue the regulations because they had a purpose other than conservation of the resource. In this Court, however, the Attorney General of the State disclaims the adequacy and independence of the state-law ground and argues that the state-law authority of Fisheries is dependent on the answers to the two federal-law questions discussed above. Brief for State of Washington 99. See n. 34, infra. We defer to that interpretation, subject, of course, to later clarification by the State Supreme Court. Because we are also satisfied that the constitutional holding is without merit our review of the state court’s judgment will be limited to the treaty issue.
When Fisheries was ordered by the state courts to abandon its attempt to promulgate and enforce regulations in compliance with the federal court’s decree — and when the Game Department simply refused to comply- — the District Court entered a series of orders enabling it, with the aid of the United States Attorney for the Western District of Washington and various federal law enforcement agencies, directly to supervise those aspects of the State’s fisheries necessary to the preservation of treaty fishing rights. 459 F. Supp. 1020. The District Court’s power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceeding was affirmed by the United States Court of Appeals for the Ninth Circuit. 573 F. 2d 1123. That court, in a separate opinion, 573 F. 2d 1118, also held that regulations of the International Pacific Salmon Fisheries Commission posed no impediment to the District Court’s interpretation of the treaty language and to its enforcement- of that interpretation. Subsequently, the District Court entered -an enforcement order regarding the salmon fisheries for the 1978 and subsequent seasons, which, prior to our issuance of a writ of cer-tiorari to review the case, was pending on appeal in the Court of Appeals. App. 486-490.
Because of the widespread defiance of the District Court’s orders, this litigation has assumed unusual significance. We granted certiorari in the state and federal cases to interpret this important treaty provision and thereby to resolve the conflict between the state and federal courts regarding what, if any, right the Indians have to a share of the fish, to address the implications of international regulation of the fisheries in the area, and to remove any doubts about the federal court’s power to enforce its orders. 439 U. S. 909.
IV
The treaties secure a “right of taking fish.” The pertinent articles provide:
“The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens.”
At the time the treaties were executed there was a great abundance of fish and a relative scarcity of people. No one had any doubt about the Indians’ capacity to take as many fish as they might need. Their right to take fish could therefore be adequately protected by guaranteeing them access to usual and accustomed fishing sites which could be — and which for decades after the treaties were signed were — comfortably shared with the incoming settlers.
Because the sparse contemporaneous written materials refer primarily to assuring access to fishing sites “in common with all citizens of the Territory,” the State of Washington and the commercial fishing associations, having all adopted the Game Department’s original position, argue that it was merely access that the negotiators guaranteed. It is equally plausible to conclude, however, that the specific provision for access was intended to secure a greater right — a right to harvest a share of the runs of anadromous fish that at the time the treaties were signed were so plentiful that no one could question the Indians’ capacity to take whatever quantity they needed. Indeed, a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and this Court’s prior construction of the treaties, mandates that conclusion.
A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. E. g., Lone Wolf v. Hitchcock, 187 U. S. 553. When the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm’s length. There is no reason to doubt that this assumption applies to the treaties at issue here. See 520 F. 2d, at 684.
Accordingly, it is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties. When Indians are involved, this Court has long given special meaning to this rule. It has held that the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. “[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” Jones v. Meehan, 175 U. S. 1, 11. This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians' favor. Tulee v. Washington, 315 U. S. 681; Seufert Bros. Co. v. United States, 249 U. S. 194; United States v. Winans, 198 U. S. 371. See also Washington v. Yakima Indian Nation, 439 U. S. 463, 484.
Governor Stevens and his associates were well aware of the “sense” in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians’ assent. See supra, at 666-668. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter “should be excluded from their ancient fisheries,” see n. 9, supra, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. That each individual Indian would share an “equal opportunity” with thousands of newly arrived individual settlers is totally foreign to the spirit of the negotiations. Such a “right,” along with, the $207,500 paid the Indians, would hardly have been sufficient to compensate them for the millions of acres they ceded to the Territory.
It is true that the words “in common with” may be read either as nothing more than a guarantee that individual Indians would have the same right as individual non-Indians or as securing an interest in the fish runs themselves. If we were to construe these words by. reference to 19th-century property concepts, we might accept the former interpretation, although even “learned lawyers” of the day would probably have offered differing interpretations of the three words. But we think greater importance should be given to the Indians’ likely understanding of the other words in the treaties and especially the reference to the “right of taking fish” — a right that had no special meaning at common law but that must have had obvious significance to the tribes relinquishing a portion of their pre-existing rights to the United States in return for this promise. This language is particularly meaningful in the context of anadromous fisheries — which were not the focus of-the common law — because of the relative predictability of the “harvest.” In this context, it makes sense to say that a party has a right to “take” — rather than merely the “opportunity” to try to catch — some of the large quantities of fish that will almost certainly be available at a given place at a given time.
This interpretation is confirmed by additional language in the treaties. The fishing clause speaks of “securing” certain fishing rights, a term the Court has previously interpreted as synonymous with “reserving” rights previously exercised. Winans, 198 U. S., at 381. See also New York ex rel. Kennedy v. Becker, 241 U. S. 556, 563-564. Because the Indians had always exercised the right to meet their subsistence and commercial needs by taking fish from treaty area waters, they would be unlikely to perceive a “reservation” of that right as merely the chance, shared with millions of other citizens, occasionally to dip their nets into the territorial waters. Moreover, the phrasing of the clause quite clearly avoids placing each individual Indian on an equal footing with each individual citizen of the State. The referent of the “said Indians” who are to share the right of taking fish with “all citizens of the Territory” is not the individual Indians but the various signatory “tribes and bands of Indians” listed in the opening article of each treaty. Because it was the tribes that were given a right in common with non-Indian citizens, it is especially likely that a class right to a share of fish, rather than a personal right to attempt to land fish, was intended.
In our view, the purpose and language of the treaties are unambiguous; they secure the Indians’ right to take a share of each run of fish that passes through tribal fishing areas. But our prior decisions provide an even more persuasive reason why this interpretation is not open to question. For notwithstanding the bitterness that this litigation has engendered, the principal issue involved is virtually a “matter decided” by our previous holdings.
The Court has interpreted the fishing clause in these treaties on six prior occasions. In all of these cases the Court placed a relatively broad gloss on the Indians’ fishing rights and — more or less explicitly — rejected the State’s “equal opportunity” approach; in the earliest and the three most recent cases, moreover, we adopted essentially the interpretation that the United States is reiterating here.
In United States v. Winans, supra, the respondent, having acquired title to property on the Columbia River and having obtained a license to use a “fish wheel” — a device capable of catching salmon by the ton and totally destroying a run of fish — asserted the right to exclude the Yakimas from one of their “usual and accustomed” places. The Circuit Court for the District of Washington sustained respondent, but this Court reversed. The Court initially rejected an argument that is analogous to the “equal opportunity” claim now made by the State:
“[I]t was decided [below] that the Indians acquired no rights but what any inhabitant of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention; which seemed to promise more and give the word of the Nation for more. . . . How the treaty in question was understood may be gathered from the circumstances.
“The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them— a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. . . . There was an exclusive right to fishing reserved within certain boundaries. There was a right outside of those boundaries reserved fin common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given The right of taking fish at all usual and accustomed places/ and the right 'of erecting temporary buildings for curing them.’ The contingency of the future ownership of the lands, therefore, was foreseen and provided for — in other words, the Indians were given a right in the land — the right of crossing it to the river — the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty.” 198 U. S., at 380-381.
See also Seufert Bros., 249 U. S., at 198, and Tulee, 315 U. S., at 684, both of which repeated this analysis, in holding that treaty Indians had rights, “beyond those which other citizens may enjoy,” to fish without paying license fees in ceded areas and even in accustomed fishing places lying outside of the lands ceded by the Indians. See n. 22, supra.
But even more significant than the language in Winans is its actual disposition. The Court not only upheld the Indians’ right of access to respondent’s private property but also ordered the Circuit Court on remand to devise some “adjustment and accommodation” that would protect them from total exclusion from the fishery. 198 Ü. S., at 384. Although the accommodation it suggested by reference to the Solicitor General’s brief in the case is subject to interpretation, it clearly included removal of enough of the fishing wheels to enable some fish to escape and be available to Indian fishermen upstream. Brief for United States, O. T. 1904, No. 180, pp. 54 — 56. In short, it assured the Indians a share of the fish.
In the more recent litigation over this treaty language between the Puyallup Tribe and the Washington Department of Game, the Court in the context of a dispute over rights to the run of steelhead trout on the Puyallup River reaffirmed both of the holdings that may be drawn from Winans — the treaty guarantees the Indians more than simply the “equal opportunity” along with all of the citizens of the State to catch fish, and it in fact assures them some portion of each relevant run. But the three Puyallup cases are even more explicit; they clearly establish the principle that neither party to the treaties may rely on the State’s regulatory powers or on property law concepts to defeat the other’s right to a “fairly apportioned” share of each covered run of harvestable anadromous fish.
In Puyallup I, the Court sustained the State’s power to impose nondiscriminatory regulations on treaty fishermen so long as they were “necessary” for the conservation of the various species. In so holding, the Court again explicitly rejected the equal-opportunity theory. Although nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation.
When the Department of Game sought to impose a total ban on commercial net fishing for steelhead, the Court held in Puyallup II that such regulation was not a “reasonable and necessary conservation measure” and would deny the Indians their “fairly apportioned” share of the Puyallup River run. 414 U. S. 44, 45, 48. Although under the challenged regulation every individual fisherman would have had an equal opportunity to use a hook and line to land the steelhead, most of the fish would obviously have been caught by the 145,000 nontreaty licensees rather than by the handful of treaty fishermen. This Court vindicated the Indians’ treaty right to “take fish” by invalidating the ban on Indian net fishing and remanding the case with instructions to the state courts to determine the portion of harvestable steelhead that should be allocated to net fishing by members of the tribe. Id., at 48-49. Even if Winans had not already done so, this unanimous holding foreclosed the basic argument that the State is now advancing.
On remand, the Washington state courts held that 45% of the steelhead run was allocable to commercial net fishing by the Indians. We shall later discuss how that specific percentage was determined; what is material for present purposes is the recognition, upheld by this Court in Puyallup III, that the treaty secured the Tribe’s right to a substantial portion of the run, and not merely a right to compete with nontreaty fishermen on an individual basis.
Puyallup III also made it clear that the Indians could not rely on their treaty right to exclude others from access to certain fishing sites to deprive other citizens of the State of a “fair apportionment” of the runs. For- although it is clear that the Tribe may exclude non-Indians from access to fishing within the reservation, we unequivocally rejected the Tribe’s claim to an untrammeled right to take as many of the steel-head running through its reservation as it chose. In support of our holding that the State has regulatory jurisdiction over on-reservation fishing, we reiterated Mr. Justice Douglas’ statement for the Court in Puyallup II that the “Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets.” 414 U. S., at 49. It is in this sense that treaty and nontreaty fishermen hold “equal” rights. For neither party may deprive the other of a “fair share” of the runs.
Not only all six of our cases interpreting the relevant treaty language but all federal courts that have interpreted the treaties in recent times have reached the foregoing conclusions, see Sohappy v. Smith, 302 F. Supp. 899, 908, 911 (Ore. 1969) (citing cases), as did the Washington Supreme Court itself prior to the present litigation. State v. Satiacum, 50 Wash. 2d 513, 523-524, 314 P. 2d 400, 406 (1957), A like interpretation, moreover, has been followed by the Court with respect to hunting rights explicitly secured by treaty to Indians “ ‘in common with all other persons,’ ” Antoine v. Washington, 420 U. S. 194, 205-206, and to water rights that were merely implicitly secured to the Indians by treaties reserving land— treaties that the Court enforced by ordering an apportionment to the Indians of enough water to meet their subsistence and cultivation needs. Arizona v. California, 373 U. S. 546, 598-601, following United States v. Powers, 305 U. S. 527, 528-533; Winters v. United States, 207 U. S. 564, 576.
The purport of our cases is clear. Nontreaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other “citizens of the Territory.” Both sides have a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens.
Y
We also agree with the Government that an equitable measure of the common right should initially divide the harvesta-ble portion of each run that passes through a “usual and accustomed” place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Although this method of dividing the resource, unlike the right to some division, is not mandated by our prior cases, it is consistent with the 45%-55% division arrived at by the Washington state courts, and affirmed by this Court, in Puyallup III with respect to the steelhead run on the Puyallup River. The trial court in the Puyallup litigation reached those figures essentially by starting with a 50% allocation based on the Indians’ reliance on the fish for their livelihoods and then adjusting slightly downward due to other relevant factors. App. to Pet. for Cert. in Puyallup III, O. T. 1976, No. 76-423, pp. C-56 to C-57. The District Court took a similar tack in this case, i. e., by starting with a 50-50 division and adjusting slightly downward on the Indians’ side when it became clear that they did not need a full 50%. 384 F. Supp., at 402, 416-417 ; 459 F. Supp., at 1101; 573 F. 2d, at 1129.
The division arrived at by the District Court is also consistent with our earlier decisions concerning Indian treaty rights to scarce natural resources. In those cases, after determining that at the time of the treaties the resource involved was necessary to the Indians’ welfare, the Court typically ordered a trial judge or special master, in his discretion, to devise some apportionment that assured that the Indians’ reasonable livelihood needs would be met. Arizona v. California, supra, at 600; Winters, supra. See Winans, 198 U. S., at 384. This is precisely what the District Court did here, except that it realized that some ceiling should be placed on the Indians’ apportionment to prevent their needs from exhausting the entire resource and thereby frustrating the treaty right of “all [other] citizens of the Territory.”
Thus, it first concluded that at the time the treaties were signed, the Indians, who comprised three-fourths of the territorial population, depended heavily on anadromous fish as a source of food, commerce, and cultural cohesion. Indeed, it found that the non-Indian population depended on Indians to catch the fish that the former consumed. See supra, at 664r-669, and n. 7. Only then did it determine that the Indians’ present-day subsistence and commercial needs should be met, subject, of course, to the 50% ceiling. 384 F. Supp., at 342-343.
It bears repeating, however, that the 50% figure imposes a maximum but not a minimum allocation. As in Arizona v. California and its predecessor cases, the central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living. Accordingly, while the maximum possible allocation to the Indians is fixed at 50%, the minimum is not; the latter will, upon proper submissions to the District Court, be modified in response to changing circumstances. If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappropriate because the livelihood of the tribe under those circumstances could not reasonably require an allotment of a large number of fish.
Although the District Court’s exercise of its discretion, as slightly modified by the Court of- Appeals, see n. 18, supra, is in most respects unobjectionable, we are not satisfied that all of the adjustments it made to its division are consistent with the preceding analysis.
The District Court determined that the fish taken by the Indians on their reservations should not be counted against their share. It based this determination on the fact that Indians have the exclusive right under the treaties to fish on their reservations. But this fact seems to us to have no greater significance than the fact that some nontreaty fishermen may have exclusive access to fishing sites that are not “usual and accustomed” places. Shares in the fish runs should not be affected by the place where the fish are taken. Cf. Puyallup III, 433 U. S., at 173-177. We therefore disagree with the District Court’s exclusion of the Indians’ on-reservation catch from their portion of the runs.
This same rationale, however, validates the Court-of-Appeals-modified equitable adjustment for fish caught outside the jurisdiction of the State by nontreaty fishermen from the State of Washington. See n. 18, supra, and accompanying text. So long as they take fish from identifiable runs that are destined for traditional tribal fishing grounds, such persons may not rely on the location of their take to justify excluding it from their share. Although it is true that the fish involved are caught in waters subject to the jurisdiction of the United States, rather than of the State, see 16 U. S. C.. §§ 1811, 1812, the persons catching them are nonetheless “citizens of the Territory” and as such the beneficiaries of thé Indians’ reciprocal grant of land in the treaties as well as the persons expressly named in the treaties as sharing fishing rights with the Indians. Accordingly, they may justifiably be treated differently from nontreaty fishermen who are not citizens of Washington. The statutory provisions just cited are therefore important in this context only because they clearly place a responsibility on the United States, rather than the State, to police the take of fish in the relevant waters by Washington citizens insofar as is necessary to assure compliance with the treaties.
On the other hand, as long as there are enough fish to satisfy the Indians’ ceremonial and subsistence needs, we see no justification for the District Court’s exclusion from the treaty share of fish caught for these purposes. We need not now decide whether priority for such uses would be required in a period of short supply in order to carry out the purposes of the treaty. See 384 F. Supp., at 343. For present purposes, we merely hold that the total catch — rather than the commercial catch — is the measure of each party’s right.
Accordingly, any fish (1) taken in Washington waters or in United States waters off the coast of Washington, (2) taken from runs of fish that pass through the Indians' usual and accustomed fishing grounds, and (3) taken by either members of the Indian tribes that are parties to this litigation, on the one hand, or by non-Indian citizens of Washington, on the other hand, shall count against that party’s respective share of the fish.
VI
Regardless of the Indians’ other fishing rights under -the treaties, the State argues that an agreement between Canada and the United States pre-empts their rights with respect to the sockeye and pink salmon runs on the Fraser River.
In 1930, the United States and Canada agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen. Convention of May 26, 1930, 50 Stat. 1355, as amended by [1957] 8 U. S. T. 1058. To implement this agreement, the two Governments established the International Pacific Salmon Fisheries Commission (IPSFC). Each year that Commission proposes regulations to govern the time, manner, and number of the catch by the fishermen of the two countries; those regulations become.effective upon approval of both countries.
In the United States, pursuant to statute and Presidential designation, enforcement of those regulations is vested in the National Marine Fisheries Service, which-, in turn, may authorize the State of Washington to act as the enforcing agent. Sockeye Salmon or Pink Salmon Fishing Act of 1947, 61 Stat. 511, as amended, 16 U. S. C. § 776 et seq. (hereinafter Sockeye Act). For many years Washington has accepted this responsibility and enacted IPSFC regulations into state statutory law.
The Fraser River salmon run passes through certain “usual and accustomed” places of treaty tribes. The Indians have therefore claimed a share of these runs. Consistently with its basic interpretation of the Indian treaties, the District Court in its original decision held that the tribes are entitled to up to one-half of the American share of any run that passes through their “usual and accustomed” places. To implement that holding, the District Court also entered an order authorizing the use by Indians of certain gear prohibited by IPSFC regulations then in force. 384 F. Supp., at 392-393, 411. The Court of Appeals affirmed, 520 F. 2d, at 689-690, and we denied certiorari. 423 U. S. 1086.
In later proceedings commenced in 1975, the State of Washington contended in the District Court that any Indian rights to Fraser River salmon were extinguished either implicitly by the later agreement with Canada or more directly by the IPSFC regulations promulgated pursuant to those agreements insofar as they are inconsistent with the District Court’s order. The State’s claim was rejected by the District Court and the Court of Appeals. 459 F. Supp., at 1050-1056; 573 F. 2d, at 1120-1121.
First, we agree with the Court of Appeals that the Convention itself does not implicitly extinguish the Indians’ treaty rights. Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights, e. g., Menominee Tribe v. United States, 391 U. S. 404, and there is no reason to do so here. Indeed, the Canadian Government has long exempted Canadian Indians from regulations promulgated under the Convention and afforded them special fishing rights.
We also agree with the United States that the conflict between the District Court’s order and IPSFC does not present us with a justiciable issue. The initial conflict occasioned by the regulations for the 1975 season has been mooted by the passage of time, and there is little prospect that a similar conflict will revive and yet evade review. See DeFunis v. Odegaard, 416 U. S. 312, 316. Since 1975, the United States, in order to protect the Indian rights, has exercised its power under Art. VI of the Convention and refused to give the necessary approval to those portions of the IPSFC regulations that affected Indian fishing rights. Those regulations have accordingly not gone into effect in the United States. The Indians’ fishing rights and responsibilities have instead been the subject of separate regulations promulgated by.the Interior Department, under its general Indian powers, 25 U. S. C. §§ 2, 9; see 25 CFR § 256.11 et seq. (1978); 50 CFR § 371.1 et seq. (1978); 25 CFR § 256.11 et seq. (1979), and enforced by the National Marine Fisheries Service directly, rather than by delegation to the State. The District Court’s order is fully consistent with those regulations. To the extent that any Washington State statute imposes any conflicting obligations, the statute is without effect under the Sockeye Act and must give way to the federal treaties, regulations, and decrees. E. g., Missouri v. Holland, 252 U. S. 416, 432.
VII
In addition to their challenges to the District Court’s basic construction of the treaties, and to the scope of its allocation of fish to treaty fishermen, the State and the commercial fishing associations have advanced two objections to various remedial orders entered by the District Court. It is claimed that the District Court has ordered a state agency to take action that it has no authority to take as a matter of state law and that its own assumption of the authority to manage the fisheries in the State after the state agencies refused or were unable to do so was unlawful.
These objections are difficult to evaluate in view of the representations to this Court by the Attorney General of the State that definitive resolution of the basic federal question of construction of the treaties will both remove any state-law impediment to enforcement of the State’s obligations under the treaties, and enable the State and Fisheries to carry out those obligations. Once the state agencies comply, of course, there would be no issue relating to federal authority to order them to do so or any need for the District Court to continue its own direct supervision of enforcement efforts.
The representations of the Attorney General are not binding on the courts and legislature of the State, although we assume they are authoritative within its executive branch. Moreover, the State continues to argue that the District Court exceeded its authority when it assumed control of the fisheries in the State, and the commercial fishing groups continue to argue that the District Court may not order the state agencies to comply with its orders when they have no state-law authority to do so. Accordingly, although adherence to the Attorney General’s representations by the executive, legislative, and judicial officials in the State would moot these two issues, a brief discussion should foreclose the possibility that they will not be respected. State-law prohibition against compliance with the District Court’s decree cannot survive the command of the Supremacy Clause of the United States Constitution. Cooper v. Aaron, 358 U. S. 1; Ableman v. Booth, 21 How. 506. It is also clear that Game and Fisheries, as parties to this litigation, may be ordered to prepare a set of rules that will implement the Court’s interpretation of the rights of the parties even if state law withholds from them the power to do so. E. g., North Carolina Board of Education v. Swann, 402 U. S. 43; Griffin v. County School Board, 377 U. S. 218; Tacoma v. Taxpayers, 357 U. S. 320. Once again the answer to a question raised by this litigation is largely dictated by our Puyallup trilogy. There, this Court mandated that state officers make precisely the same type of allocation of fish as the District Court ordered in this case. See Puyallup III, 433 U. S., at 177.
Whether Game and Fisheries may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful. But the District Court may prescind that problem by assuming direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. It is therefore absurd to argue, as do the fishing associations, both that the state agencies may not be ordered to implement the decree and also that the District Court may not itself issue detailed remedial orders as a substitute for state supervision. The federal court unquestionably has the power to enter the various orders that state official and private parties have chosen to ignore, and even to displace local enforcement of those orders if necessary to remedy the violations of federal law found by the court. E. g., Hutto v. Finney, 437 U. S. 678; Milliken v. Bradley, 433 U. S. 267, 280-281, 290; Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15. Even if those orders may have been erroneous in some respects, all parties have an unequivocal obligation to obey them while they remain in effect.
In short, we trust that the spirit of cooperation motivating the Attorney General’s representation will be confirmed by the conduct of state officials. But if it is not, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of the appropriate federal law enforcement agents in carrying out those steps. Moreover, the comments by the Court of Appeals strongly imply that it is prepared to uphold the use of stern measures to require respect for federal-court orders.
The judgments of the Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington are vacated and the respective causes are remanded to those courts for further proceedings not inconsistent with this opinion, except that the judgment in United States v. Washington, 573 F. 2d 1118 (the International Fisheries case) is affirmed.
So ordered.
By three earlier treaties the United States had extinguished the conflicting claims of Spain in 1820 and Russia in 1824, 8 Stat. 252, 302, and Great Britain in 1846, 9 Stat. 869. In 1848, Congress established the Oregon Territory, 9 Stat. 323; that statute provided that nothing contained therein “shall be construed to impair the rights of person or property now pertaining to the Indians and said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.” In 1850, Congress authorized the negotiation of treaties to extinguish the Indian claims to land lying west of the Cascade Mountains, 9 Stat. 437. In 1853, the Washington Territory, which includes the present State of Washington, was organized out of the Oregon Territory. Ch. 90, 10 Stat. 172.
Treaty of Medicine Creek (10 Stat. 1132); Treaty of Point Elliott (12 Stat. 927); Treaty of Point No Point (12 Stat. 933); Treaty of Neah Bay (12 Stat. 939); 'Treaty with the Yakamas (12 Stat. 951); and Treaty of Olympia (12 Stat. 971). The parties to the treaties and to this litigation include these Indian tribes: Hoh; Lower Elwha Band of Clallam Indians; Lummi; Makah; Muckleshoot; Nisqually; Nooksack; Port Gamble Band of Clallam Indians; Puyallup; Quileute; Quinault; Sauk-Suiattle; Skokomish; Squaxin Island; Stillaguamish; Suquamish; Swinomish; Tulalip; Upper Skagit; and Yakima Nation. 384 F. Supp. 312, 349; 459 F. Supp. 1020, 1028.
For example, pink and soekeye salmon hatched in Canada’s Fraser River pass through the Strait of Juan de Fuca in the State of Washington, swim out into international waters on the open sea, and return through the strait to the river, passing on the way the usual and accustomed fishing grounds of the Makah Indian Tribe once again in Washington. 384 F. Supp., at 392. During much of the return run during which they pass through international, state, and Canadian waters, the fish are in optimum harvestable condition. See also id., at 386-387, regarding the Puget Sound and Olympic Peninsula origin chinook salmon that pass through international waters, as well as those of Washington, Canada, and Alaska.
Although in terms of the number and weight of the fish involved, the commercial salmon catch is far more substantial than the recreational steelhead catch, the latter apparently provides the State with more revenue than the former, involves more people, and has accordingly been a more controversial political issue within the State. See id,., at 399.
Indeed, the record shows that the territorial officials who negotiated the treaties on behalf of the United States took the initiative in aggregating certain loose bands into designated tribes and even appointed many of the chiefs who signed the treaties. Id., at 354-355, 366.
“From the earliest known times, up to and beyond the time of the . . . treaties, the Indians comprising each of the treating tribes and bands were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegetative resources of the region for their subsistence and culture. They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood. They cured and dried large quantities for year around use, both for themselves and for others through sale, trade, barter and employment.” Id., at 406. See also 520 F. 2d 676, 682 (“The Indians west of the Cascade Mountains were known as 'fish-eaters’; their diets, social customs, and religious practices centered on the capture of fish”).
“At the time of the treaties, trade was carried on among the Indian groups throughout a wide geographic area. Fish was a basic element of the trade. There is some evidence that the volume of this intra-tribal trade was substantial, but it is not possible to compare it with the volume of present day commercial trading in salmon. Such trading was, however, important to the Indians at the time of the treaties. In addition to potlatching, which is a system of exchange between communities in a social context often typified by competitive gifting, there was a considerable amount of outright sale and trade beyond the local community and sometimes over great distances. In the decade immediately preceding the treaties, Indian fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. Those involved in negotiating the treaties recognized the contribution that Indian fishermen made to the territorial economy because Indians caught most of the non-Indians’ fish for them, plus clams and oysters.” 384 F. Supp., at 351-352 (citations to record omitted). See also id., at 364 (Makah Tribe “maintained from time immemorial a thriving economy based on commerce” in “marine resources”).
In late December 1854, one territorial official wrote the Commissioner of Indian Affairs that “[t]he Indians on Puget Sound . . . form a very considerable portion of the trade of the Sound. . . . They catch most of our fish, supplying not only our people with clams and oysters, but salmon to those who cure and export it.” App. 329.
Governor Stevens in discussing the policy that he intended to pursue during negotiations with the tribes, in a letter dated September 16, 1854, to the Commissioner of Indian Affairs, said:
“The subject of the right of fisheries is one upon which legislation is demanded. It never could have been the intention of Congress that Indians should be excluded from their ancient fisheries; but, as no condition to this effect was inserted in the donation act, the question has been raised whether persons taking claims, including such fisheries, do not possess the right of monopolizing. It is therefore desirable that this question should be set at rest by law.” Id., at 327. See also id., at 332.
The Governor’s concern with protecting the Indians’ continued exploitation of their accustomed fisheries was reflected in his assurances to the Indians during the treaty negotiations that under the treaties they would be able to go outside of reservation areas for the purpose of harvesting fish. His statement at the signing of the Treaty of Point Elliott on Monday, January 22, 1855, was characteristic:
“We want to place you in homes where you can cultivate the soil, using potatoes and other articles of food, and where you will be able to pass in canoes over the waters of the Sound and catch fish and back to the mountains to get roots and berries.” Id., at 329-330.
Indeed, the translation of the English words was difficult because the interpreter used a “Chinook jargon” to explain treaty terms, and that jargon not only was imperfectly (and often not) understood by many of the Indians but also was composed of a simple 300-word commercial vocabulary that did not include words corresponding to many of the treaty terms. 384 F. Supp., at 330, 355-356, 364, 381; 520 F. 2d, at 683.
For example, Governor Stevens made the following statement to the Indians gathered at Point-No-Point to negotiate the treaty bearing that name:
“Are you not my children and also children of the Great Father? What will I not do for my children, and what will you not for yours? Would you not die for them? This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish? Does not a father give food to his children?” App. 330-331.
“There is nothing in the written records of the treaty councils or other accounts of discussions with the Indians to indicate that the Indians were told that their existing fishing activities or tribal control over them would in any way be restricted or impaired by the treaty. The most that could be implied from the treaty context is that the Indians may have been told or understood that non-Indians would be allowed to take fish at the Indian fishing locations along with the Indians.” 384 F. Supp., at 357.
“The non-Indian commercial fishing industry did not fully develop in the ease area until after the invention and perfection of the canning process. The first salmon cannery in Puget Sound began in 1877 with a small operation at Mukilteo. Large-scale development of the commercial fisheries did not commence in Puget Sound until the mid-1890’s. The large-scale development of the commercial fishing industry in the last decades of the Nineteenth Century brought about the need for regulation of fish harvests.” Id., at 352 (record citations omitted). See also id., at 406.
The impact of illegal regulation, see Tulee v. Washington, 315 U. S. 681, and of illegal exclusionary tactics by non-Indians, see United States v. Winans, 198 U. S. 371, in large measure accounts for the decline of the Indian fisheries during this century and renders that decline irrelevant to a determination of the fishing rights the Indians assumed they were securing by initialing the treaties in the middle of the last century.
The “harvestable” amount of fish is determined by subtracting from the total number of fish in each run the number that must be allowed to escape for conservation purposes.
The “ease area” was defined by the District Court as
“that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas.” 384 F. Supp., at 328.
A factual dispute exists on the question of what percentage of the fish in the ease area actually passes through Indian fishing areas and is therefore subject to the District Court’s allocations. In the absence of any relevant findings by the courts below, we are unable to express any view on the matter.
Moreover, fish caught by individual Indians at off-reservation locations that are not “usual and accustomed” sites, were treated as if they had been caught by nontreaty fishermen. 384 F. Supp., at 410.
The Court of Appeals held that fish caught by nonresidents of Washington should be eliminated from the equitable adjustment for fish caught beyond the State’s jurisdiction. 520 F. 2d, at 689.
Despite our earlier denial of certiorari on the treaty interpretation issue, we decline the Government’s invitation to treat the matter as having been finally adjudicated. Our earlier denial came at an interlocutory stage in the proceedings — the District Court has retained continuing enforcement jurisdiction over the case — so that we certainly are not required to treat the earlier disposition as final for our purposes. Reece v. Georgia, 350 U. S. 85, 87. Moreover, the reason for our recent grant of certiorari on the question remains because the state courts are — and, at least since the State Supreme Court’s decision in Department of Game v. Puyallup Tribe, 86 Wash. 2d 664, 548 P. 2d 1058 (1976), have been — on record as interpreting the treaties involved differently from the federal courts. Accordingly, there is strong reason not to treat it as final as a discretionary matter.
The Washington Supreme Court held that the treaties would violate equal protection principles if they provided fishing rights to Indians that were not also available to non-Indians. The simplest answer to this argument is that this Court has already held that these treaties confer enforceable special benefits on signatory Indian tribes, e. g., Tulee v. Washington, 315 U. S. 681; United States v. Winans, 198 U. S. 317, and has repeatedly held that the peculiar semisovereign and constitutionally recognized status of Indians justifies special treatment on their behalf when rationally related to the Government’s “unique obligation toward the Indians.” Morton v. Mancari, 417 U. S. 535, 555. See United States v. Antelope, 430 U. S. 641; Antoine v. Washington, 420 U. S. 194. See also Fishing Vessel Assn. v. Tollefson, 89 Wash. 2d 276, 287-288, 571 P. 2d 1373, 1379-1380 (1977) (Utter, J., dissenting).
The language is quoted from Art. Ill of the Treaty of Medicine Creek, 10 Stat. 1133. Identical, or almost identical, language is included in each of the other treaties.
The State characterizes its interpretation of the treaty language as assuring Indians and non-Indians an “equal opportunity” to take fish from the State’s waters. This appellation is misleading. In the first place, even the State recognizes that the treaties provide Indians with certain rights — i. e., the right to fish without a license and to cross private lands — that non-Indians do not have. See Tulee v. Washington, 315 U. S. 681; Seufert Bros. Co. v. United States, 249 U. S. 194; United States v. Winans, 198 U. S. 371. See also Puyallup Tribe v. Washington Game Dept., 433 U. S. 165. Whatever opportunities the treaties assure Indians with respect to fish are admittedly not “equal” to, but are to some extent greater than, those afforded other citizens. It is therefore simply erroneous to suggest that the treaty language “confers upon non-Indians precisely the same right to fish that it confers upon Indians.” Powell, J., dissenting, post, at 698.
Moreover, in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians’ “equal opportunity” to take advantage of a scarce resource is likely in practice to mean that the Indians’ “right of taking fish” will net them virtually no catch at all. For the “opportunity” is at best theoretical. Indeed, in 1974, before the District Court’s injunction took effect, and while the Indians were still operating under the “equal opportunity” doctrine, their take amounted to approximately 2% of the total harvest of salmon and trout in the treaty area. 459 F. Supp., at 1032.
The State argues that at common law a “common fishery” was merely a nonexclusive right of access, see 3 J. Kent, Commentaries 412 . (5th ed. 1844), and that the right of a fishery was appurtenant to specific parcels of real property. The State does not suggest, however, that these concepts were understood by, or explained to, the Indians. Indeed, there is no evidence that Governor Stevens understood them, although one of his advisers, George Gibbs, was a lawyer.
But even if we indulge in the highly dubious assumption that Gibbs was learned in the intricacies of water law, that he incorporated them in the treaties, and that he explained them fully to the Indians, the treaty language would still be subject to the different interpretations presented by the parties to this litigation. For in addition to “common fisheries,” the “in common with” language was used in two other relevant senses during the period. First, a “common of fishery” meant a limited right, acquired from the previously exclusive owner of certain fishing rights (in this case the Indians), “of taking fish in common with certain others in waters flowing through [the grantor’s] land.” J. Gould, Laws of Waters § 183 (3d ed. 1900) (emphasis added); see 3 Kent, swpra, at 410. Under that understanding of the language, it would hardly make sense that the Indians effectively relinquished all of their fishing rights by granting a merely nonexclusive right.
Even more to the point, the United States had previously used the “in common with” language in two treaties with Britain, including one signed in 1854, that dealt with fishing rights in certain waters adjoining the United States and Canada. Treaty of Oct. 20, 1818, 8 Stat. 248; Treaty of June 5, 1854, 10 Stat. 1089. As interpreted by the Department of State during the 19th century, these treaties gave each signatory country an “equal” and apportionable “share” of the take of fish in the treaty areas. See H. R. Ex. Doc. No. 84, 46th Cong., 2d Sess., 7 (1880); 5 American State Papers (For. Rel.) 528-529 (1823); J. Q. Adams, The Duplicate Letters, The Fisheries and the Mississippi 184H85 (1822).
Puyallwp Tribe v. Washington Game Dept., 391 U. S. 392 (Puyallup I); Washington Game Dept. v. Puyallup Tribe, 414 U. S. 44 (Puyallup II); and Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (Puyallup III).
Mr. Justice Douglas wrote for the Court:
“The right to fish 'at all usual and accustomed’ places may, of course, not be qualified by the State .... But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.” 391 U. S., at 398.
In describing the “appropriate standards” referred to, Mr. Justice Douglas continued:
“As to a ‘regulation’ concerning the time and manner of fishing . . . , the power of the State [is] measured by whether [the regulation is] ‘necessary for the conservation of fish.’ [Tulee¡\ 315 II. S., at 684.
“The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 II. S. 726 .. . .” Id., at 402 n. 14.
See also Antoine v. Washington, 420 U. S., at 207-208; Tulee, 315 U. S., at 684; Winans, 198 U. S., at 384; Ward v. Race Horse, 163 U. S. 504.
Although some members of the Washington Supreme Court in their opinions in Puyallup III expressed the view that the treaties could not be interpreted as affording treaty fishermen an allocable share of the fish, Department of Game v. Puyallup Tribe, 86 Wash. 2d, at 674-681, 548 P. 2d, at 1066-1070; see id., at 690-698, 548 P. 2d, at 1075-1080 (Rosellini, J., concurring); but see id., at 688-690, 548 P. 2d, at 1074-1075 (Stafford, C. J., concurring in result), they recognized that any other interpretation would be inconsistent with “the express language on the face of [this Court’s decision in] Puyallup II . . . .”
Because the 50% figure is only a ceiling, it is not correct to characterize our holding “as guaranteeing the Indians a specified percentage” of the fish. See Powell, J., dissenting, post, at 697.
The logic of the 50% ceiling is manifest. For an equal division— especially between parties who presumptively treated with each other as equals — is suggested, if not necessarily dictated, by the word “common” as it appears in the treaties. Since the days of Solomon, such a division has been accepted as a fair apportionment of a common asset, and Anglo-American common law has presumed that division when, as here, no other percentage is suggested by the language of the agreement or the surrounding circumstances. E. g., 2 American Law of Property § 6.5, p. 19 (A. Casner ed. 1952); E. Hopkins, Handbook on the Law of Real Property § 209, p. 336 (1896).
This Court’s decision in Puyallup III, which approved state regulation of on-reservation fishing in the interest of conservation, was issued after the District Court excluded the Indians’ on-reservation take and the Court of Appeals affirmed. See 520 F. 2d, at 690.
A like reasoning requires the fish taken by treaty fishermen off the reservations and at locations other than “usual and accustomed” sites, see n. 17, supra, to be counted as part of the Indians’ share. Of course, the District Court, in its discretion, may determine that so few fish fit into this, or any other, category (e. g., “take-home” fish caught by nontreaty commercial fishermen for personal use) that accounting for them individually is unnecessary, and that an estimated figure may be relied on in making the annual computation. Indeed, if the amount is truly de minimis, no accounting at all may be required.
The Government suggests that the District Court's exclusion of the "take-home” catch of nontreaty fishermen from the nontreaty share makes up for any losses to those fishermen occasioned by the exclusion of the Indians' ceremonial and subsistence take. We see nothing in the District Court’s findings to verify this allegation, see 384 F. Supp., at 343, although the District Court may wish to address the issue in this light on remand.
Although there is some discussion in the briefs concerning whether the treaties give Indians the same right to take hatchery-bred fish as they do to take native fish, the District Court has not yet reached a final decision on this issue, see 459 F. Supp., at 1072-1085, and it is not therefore fairly subsumed within our grant of certiorari. See Puyallup III, 433 U. S., at 177 n. 17.
Although the IPSFC has refused to accede to the suggestions of the United States that special regulations be promulgated to cover the Indian fisheries, we are informed by the Solicitor General that the Canadian Government has no objection to those suggestions, has unilaterally implemented similar rules on behalf of its own Indians, and has expressed no dissatisfaction with the unilateral actions taken by the United States in this regard. Brief for United States 40 n. 26.
Because the Department of the Interior regulations assure that no disproportion will occur, the equitable adjustment ordered by the District Court to cover the possibility that IPSFC regulations would result in a disproportionate nontreaty take will not be effectuated. We accordingly have no issue before us concerning the validity of that adjustment.
The associations advance a third objection as well — that the District Court had no power to enjoin individual nontreaty fishermen, who were not parties, to its decisions, from violating the allocations that it has ordered. The reason this issue has arisen is that state officials were either unwilling or unable to enforce the District Court’s orders against nontreaty fishermen by way of state regulations and state law enforcement efforts. Accordingly, nontreaty fishermen were openly violating Indian fishing rights, and, in order to give federal law enforcement officials the power via contempt to end those violations, the District Court was forced to enjoin them. 459 F. Supp., at 1043, 1098-1099, 1113-1117. The commercial fishing organizations, on behalf of their individual members, argue that they should not be bound by these orders because they were not parties to (although the associations all did participate as amici curiae in) the proceedings that led to their issuance.
If all state officials stand by the Attorney General’s representations that the State will implement the decision of this Court, see nn. 34 and 35, infra, this issue will be rendered moot because the District Court no longer will be forced to enforce its own decisions. Nonetheless, the issue is still live since state implementation efforts are now at a standstill and the orders are still in effect. Accordingly, we must decide it.
In our view, the commercial fishing associations and their members are probably subject to injunction under either the rule that nonparties who interfere with the implementation of court orders establishing public rights may be enjoined, e. g., United States v. Hall, 472 F. 2d 261 (CA5 1972), cited approvingly in Golden State Bottling Co. v. NLRB, 414 U. S. 168, 180, or the rule that a court possessed of the res in a proceeding in rem, such as one to apportion a fishery, may enjoin those who would interfere with that custody. See Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623, 641. But in any case, these individuals and groups are citizens of the State of Washington, which was a party to the relevant proceedings, and “they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment.” Tacoma v. Taxpayers, 357 U. S. 320, 340-341. Moreover, a court clearly may order them to obey that judgment. See Golden State Bottling, supra, at 179-180.
The State has also argued that absent congressional legislation the treaties involved here are not enforceable. This argument flies directly in the face of Art. XIII of the treaties which states that they “shall be obligatory on the contracting parties as soon as [they are] ratified by the President and Senate of the United States.” Moreover, the argument was implicitly rejected in Winans and our ensuing decisions regarding these treaties, all of which assumed that the treaties are self-enforcing. E. g., Puyallup I, 391 U. S., at 397-398.
Significantly, Congress thrice rejected efforts in the early 1960’s to terminate the Indians' fishing rights under these treaties. See S. J. Res. 170 and 171, 88th Cong., 2d Sess. (1964); H. J. Res. 48, 88th Cong., 1st Sess. (1963); H. J. Res. 698, 87th Cong., 2d Sess. (1962).
In his brief, the Attorney General represented:
“If this Court now concludes that Indian treaty fishermen and all other fishermen are not members of the same class with respect to an allocation of fishery, it will thereby lay the foundation for the validity under state law of a separate classification of treaty Indian fishermen for the purpose of allocation. We would respectfully submit that if the Court rejects our earlier argument and finds that treaty Indian fishermen are a special class for allocation purposes, such a conclusion would remove the impediment found by the Washington Supreme Court to the exercise of necessary regulatory power by the Department of Fisheries to allocate between Indian and non-Indian fishermen.
“Fisheries will be able to comply with the Court's decision in this case even if it requires some type of allocation of the fishery.” Brief for State of Washington 99.
See also Department of Game v. Puyallup Tribe, 86 Wash. 2d 664, 681, 684-688, 548 P. 2d 1058, 1070, 1072-1074 (1976), in which the Washington Supreme Court held that the Department of Game had authority to allocate a certain portion of the steelhead trout run on the Puyallup River to treaty fishermen.
According to the Attorney General:
“The State of Washington and its Department of Fisheries cannot emphasize too strongly that they .do not propose to inhibit the enforcement of proper federal court orders. . . .
“Whatever the decision of this Court, the state will implement it. The state believes that after a decision by this Court it will be in a position to comply with District Court orders, if the same are necessary to comply with this Court’s decision. We do not believe the state courts could or would take a different point of view: We are confident that they will accede to this Court’s interpretation of the treaties in the future just as they have in the past, as this Court expressly found in Puyallup III, [433 U. S.,] at 177.” Brief for State of Washington 95, 96.
We note the omission of the same firm representation on behalf of the Game Department. Although the history of that agency is not nearly as favorable as that of Fisheries with respect to attempting to comply with the District Court’s order, e. g., 384 F. Supp., at 395, 398; 459 F. Supp., at 1043, 1045, 1099, we assume that this omission stems from the fact that only Fisheries was named as a party in the litigation in the state courts regarding the state agencies’ authority to comply with the District Court’s order. See 88 Wash. 2d, at 679, 565 P. 2d, at 1152. See also Department of Game v. Puyallup Tribe, discussed in n. 34, supra.
“The state’s extraordinary machinations in resisting the [1974] decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases . . . , the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who offered the court no reasonable choice.” 573 E. 2d 1123, 1126 (CA9 1978).
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
|
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[
116
] |
LUKHARD, COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES v. REED et al.
No. 85-1358.
Argued January 14, 1987
Decided April 22, 1987
Scalia, J., announced the judgment of the Court and delivered an opinion in which Rehnquist, C. J., and White and Stevens, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 383. Powell, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and O’CONNOR, JJ., joined, post, p. 384.
Thomas J. Czelusta, Assistant Attorney General of Virginia, argued the cause for petitioner. With him on the briefs were Mary Sue Terry, Attorney General, R. Claire Guthrie, Deputy Attorney General, and John A. Rupp, Senior Assistant Attorney General.
Glen D. Nager argued the cause pro hac vice for the Secretary of Health and Human Services, as respondent under this Court’s Rule 19.6, in support of petitioner. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marleigh D. Dover.
Jill A. Hanken argued the cause for respondents. With her on the brief were Martin Wegbreit and Claire Curry
A brief of amici curiae urging reversal was filed for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Roma Jones Stewart, Solicitor General, James C. O’Connell, Steven V. Hogroian, and Owen M. Field, Special Assistant Attorneys General, Linley E. Pearson, Attorney General of Indiana, Charles G. Brown, Attorney General of West Virginia, Silas B. Taylor, Deputy Attorney General, Mary Beth Kershner, Assistant Attorney General, Michael J. Bowers, Attorney General of Georgia, William C. Joy, Senior Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, Cathy J. Rosenthal, Assistant Attorney General, T. Travis Medlock, Attorney General of South Carolina, Brian McKay, Attorney General of Nevada, LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Allen C. Warshaw, Deputy Attorney General.
Briefs of amici curiae urging affirmance were filed for Legal Services of North Carolina by David H. Harris, Jr., Susan M. Perry, and Richard M. Taylor, Jr.; and for Jeannette Rochford by Robert Mann.
Justice Scalia
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice Stevens join.
In this case, the United States Court of Appeals for the Fourth Circuit held that a state social-services agency could not lawfully treat personal injury awards as income when determining the eligibility of families seeking Aid to Families with Dependent Children (AFDC) benefits. Reed v. Health & Human Services, 774 F. 2d 1270 (1985). The United States Court of Appeals for the Seventh Circuit has reached the opposite conclusion. Watkins v. Blinzinger, 789 F. 2d 474 (1986). We granted certiorari to resolve the conflict. 477 U. S. 903 (1986).
I
Under the AFDC program, participating States that provide financial assistance to families with needy, dependent children are partially reimbursed by the Federal Government. 49 Stat. 627, as amended, 42 U. S. C. §§601-615 (1982 ed. and Supp. III). Although the States are largely free to determine the appropriate standard of need and the level of assistance, they must administer their assistance plans in conformity with applicable federal statutes and with regulations promulgated by the United States Department of Health and Human Services (HHS). Those statutes require States to consider a family’s “income and resources” when determining whether or not it is needy, 53 Stat. 1379, as amended, 42 U. S. C. §602(a)(7)(A) (1982 ed., Supp. Ill), and prohibit them from providing AFDC benefits for any month in which either income or resources exceed state-prescribed limits (subject to a federal ceiling), 95 Stat. 844, as amended, 42 U. S. C. §§ 602(a)(7)(B), 602(a)(17), 602(a)(18) (1982 ed., Supp. III).
Because income eligibility and resource eligibility are separately computed (and also because state limits for the two generally differ), whether and for how long a family that acquires a sum of money is rendered ineligible for AFDC benefits may depend on whether the sum is classified as income or as a resource. Prior to 1981, however, the importance of the classification was minimized by an HHS requirement that States treat any income received in a given month as a resource in following months. Thus, a family that received an amount of income that exceeded the State’s income limit would be automatically ineligible for one month; whether or not it remained ineligible in subsequent months would depend on whether the amount of that income that had not yet been spent, combined with the value of the family’s other resources, exceeded the State’s resource limit. The Secretary of HHS became concerned that AFDC recipients who acquired a large amount of income had an incentive to spend it as rapidly as possible, in order to regain eligibility by reducing their resources to a level beneath the State’s resource limit. To solve this problem, the Secretary proposed and Congress passed an amendment to the AFDC statute. Under that amendment, AFDC recipients who receive an amount of income that exceeds the State’s standard of need are rendered ineligible for as many months as that income would last if the recipients spent an amount equal to the State’s standard of need each month. Section 2304 of the Omnibus Budget Reconciliation Act of 1981 (OBRA), 95 Stat. 845, as amended, 42 U. S. C. §602(a)(17) (1982 ed., Supp. III).
Because the OBRA amendment applies by its terms only to income, the distinction between income and resources took on new importance. If a given sum of money were treated as a resource, the family that received the sum would be ineligible only until it spent enough of the sum to bring its resources down to the State’s resource limit; but if the sum were treated as income, no matter how much was spent, the family would remain ineligible for the statutory period. In response to the OBRA amendment, the Virginia Department of Social Services (the agency responsible for administering Virginia’s AFDC program) revised its regulations to treat various lump-sum payments, including personal injury awards, as income rather than as resources. Virginia Department of Social Services, ADC Manual (Va. ADC Manual) §305.4C (Jan. 1983), App. to Pet. for Cert. 71. It did not, however, alter its policy of treating the proceeds of the sale or conversion of real or personal property — including property damage awards — as resources. §303.3, App. 25.
Respondents, who had received personal injury awards and were disqualified from Virginia’s AFDC program for varying periods pursuant to Virginia’s revised regulations, filed a class action against the Secretary and petitioner Lukhard, the Commissioner of the Virginia Department of Social Services, in the United States District Court for the District of Western Virginia. They alleged that treating personal injury awards as income was inconsistent with the federal AFDC statute, and they sought monetary, injunc-tive, and declaratory relief under Rev. Stat. §1979, as amended, 42 U. S. C. §1983, 5 U. S. C. §§701-706, and 28 U. S. C. §§2201-2202. After certifying a class of those whose AFDC benefits had been or would be decreased as a result of Virginia’s revised regulations, the District Court granted summary judgment in the class’ favor. It held that the common meaning of the term “income” precluded application of that term to personal injury awards, and that it was irrational for Virginia to treat personal injury awards as income but at the same time treat awards for property loss as resources. The District Court therefore issued an injunction forbidding Lukhard to apply the revised regulations to recipients of personal injury awards, ordering him to begin paying AFDC benefits to the named plaintiffs and other class members who would presently have been receiving them but for application of the revised regulations, and requiring him to notify AFDC recipients who had been deprived of past AFDC benefits as a result of the revised regulations. The court declined, however, to order Lukhard to pay retroactive AFDC benefits, and stayed the injunction pending appeal except insofar as it required Lukhard to begin paying AFDC benefits to the named plaintiffs. Lukhard and the Secretary appealed and the respondents cross-appealed. After the Court of Appeals for the Fourth Circuit affirmed the judgment in all respects, Reed v. Health & Human Services, 774 F. 2d 1270 (1985), Lukhard filed this petition. The Secretary did not file a separate petition but supported Lukhard’s petition and supports Lukhard’s position on the merits.
r-H ) — I
Respondents principal contention is that Virginia’s revised regulations are inconsistent with the meaning of “income” and “resources” as those terms are used in the AFDC statute. To support this argument they first advance the broader proposition that it does violence to common usage to interpret “income” to include personal injury awards. This argument begins from the premise that since personal injury awards are purely compensatory, they do not result in any gain to their recipients. And since both general and legal sources define “income” as involving gain, see, e. g., Webster’s Third New International Dictionary 1143 (1976) (“a gain or recurrent benefit that is usu. measured in money . . .”); 42 C. J. S., Income, p. 531 (1944) (“In common speech ‘income’ generally is understood as gain or profit. . .” (footnote omitted)); Eisner v. Macomber, 252 U. S. 189, 207 (1920) (“‘Income may be defined as the gain derived from capital, from labor, or from both combined/ provided it be understood to include profit gained through a sale or conversion of capital assets ...” (quoting Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415 (1913); Doyle v. Mitchell Brothers Co., 247 U. S. 179, 185 (1918))), respondents conclude that personal injury awards cannot fairly be characterized as income. But the premise that personal injury awards cannot involve gain is obviously false, since they often are intended in significant part to compensate for the loss of gain, e. g., lost wages. See Watkins v. Blinzinger, 789 F. 2d, at 476. Since the gain would have been income, surely at least that part of a personal injury award that replaces it must also be income. More importantly, however, as Lukhard and the Secretary point out, general and legal sources also commonly define “income” to mean “any money that comes in,” without regard to any related expenses incurred and without any requirement that the transactions producing the money result in a net gain. See, e. g., 5 Oxford English Dictionary 162 (1933) (“That which comes in. . . (considered in reference to its amount, and commonly expressed in money); ... receipts . . .”); 42 C. J. S., Income, p. 529 (1944) (“Generally or ordinarily the term means all that comes in; . . . something which is paid over and delivered to the recipient;. . . without reference to the outgoing expenditures ...” (footnotes omitted)); Heckler v. Turner, 470 U. S. 184 (1985) (“income” under the AFDC statute means gross income, without reference to expenses reasonably attributable to its earning). Heckler is particularly significant, since there we indicated that the part of an employee’s salary that is allocated to work-related expenses — clearly not a gain in the sense that term is used by respondents —is properly treated as “income” under the AFDC statute. Id., at 202. Although that con-elusion was based in part on a provision not involved in this case, it demonstrates that the AFDC statute itself contradicts the theory that payments that do not constitute gain (as respondents use the term) to their recipients cannot reasonably be described as “income.” Thus, contrary to respondents’ assertion, Virginia’s revised regulations are consistent with a perfectly natural use of “income.”
Respondents also seek to derive support from the fact that personal injury awards are not treated as income under the Internal Revenue Code, the Food Stamp program, or the HHS poverty guidelines. See 26 U. S. C. § 104(a); 91 Stat. 962, 7 U. S. C. § 2014(d)(8); 48 Fed. Reg. 7010, 7011 (1983). But in each of these instances there is an express provision that personal injury awards are not to be treated as income— which causes them not only to fail to support the proposition that the term “income” automatically excludes personal injury awards, but to support the opposite proposition that absent express exclusion it embraces them. Moreover, the fact that Congress was silent in the AFDC statute but has elsewhere been explicit when it wished to exclude personal injury awards from income tends to refute rather than support a legislative intent to exclude them from AFDC computations. Cf. Russello v. United States, 464 U. S. 16, 23 (1983). Nor is there any merit to respondents’ slightly different argument that since the relevant provisions of the Food Stamp program, the HHS poverty guidelines, and the AFDC statute have the common goal of defining who is needy, they should be presumed to have a common definition of “income” — one that necessarily excludes personal injury awards. The explicit differences between the definition of “income” in the Food Stamp program and the HHS poverty guidelines on the one hand and the AFDC statute on the other are simply too great to permit any such presumption. Compare 91 Stat. 962, 7 U. S. C. § 2014(d)(8) (Food Stamp program excludes all nonrecurring lump-sum payments, including retroactive lump-sum Social Security benefits), and 48 Fed. Reg. 7010, 7011 (1983) (HHS poverty guidelines exclude capital gains, gifts, and lump-sum inheritances), with Brief for Respondents 47 (conceding that retroactive Social Security benefits and other lump-sum payments that represent a true gain are income under the AFDC statute).
Respondents’ next contention is that Virginia’s treatment of personal injury awards is inconsistent with the administrative and legislative history of the AFDC statute. They first argue that for many years, and at least until 1981, HHS in fact took the position that personal injury awards were not “income” under the AFDC statute. But the materials upon which respondents rely do not support this contention, and indicate at most that HHS took no position on the question. See HHS Handbook of Public Assistance Administration, Part IV, S-3120, Supplement for Administrative Use (Sept. 6, 1957), App. 58 (retroactive Social Security payments are income, but an award to compensate for the loss of a hand or foot might not be); HHS Memorandum of June 7, 1973, App. 55-56 (retroactive Social Security payments are income); Brief for United States as Amicus Curiae in Lockhart v. Harden, No. C74-390A (ND Ga.), App. 61 (HHS regulations require that retroactive Social Security payments be treated as income but do not require that awards for damages be so treated). In fact, as Lukhard and the Secretary point out, there is evidence that HHS has for many years interpreted the AFDC statute to at least 'permit States to treat personal injury awards as income. See, e. g., 51 Fed. Reg. 9191, 9196 (1986) (“[U]nder longstanding federal policy . . . , a State agency has had the option to treat [e. g., personal injury awards] as resources instead of as income”); HHS Letter of October 17, 1983, App. 66 (“Based on longstanding precedent, States have historically had the option to consider nonrecurring lump-sum payments as either unearned income or resources. With the implementation of [the OBRA amendment], States continued to exercise this latitude”); HHS Memorandum of July 6, 1983, App. 47 (under current HHS policy, States are free to treat insurance settlements either as income or as resources; California apparently treats them as income); HHS Letter of April 8, 1982, App. 62-63 (States are free to treat damage claim settlements as income or as resources). See also Brief for State of Illinois et al. as Amici Curiae 5 (HHS has permitted States to treat personal injury awards as income under the OBRA amendment). Thus, the Secretary’s interpretation of the AFDC statute— which is entitled to deference, see, e. g., Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 126 (1986) — actually undermines rather than supports respondents’ claim that Virginia cannot lawfully treat personal injury awards as income.
Respondents also make two arguments based upon the legislative history of the 1981 OBRA amendment. First, they argue that the Congress that passed the OBRA amendment must have been aware of HHS’ longstanding position that “income” excluded personal injury awards, and that its use of “income” in the OBRA amendment therefore necessarily indicated an intent that the term be interpreted in that manner. It is of course not true that whenever Congress enacts legislation using a word that has a given administrative interpretation it means to freeze that administrative interpretation in place. See Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101 (1939). But if that were the case here, it would damage rather than aid respondents’ cause, since, as we have seen, HHS’ position at the time of the OBRA amendment was that it was permissible for States to treat personal injury awards as income.
At oral argument, respondents sought to derive support from a legislative hearing conducted while the OBRA amendment was under consideration, in which the Secretary submitted to the House Ways and Means Committee a document estimating that the amendment would eliminate 5,000 families from the AFDC rolls each year. Hearings on Tax Aspects of the President’s Economic Program before the House Committee on Ways and Means, 97th Cong., 1st Sess., pt. 1, pp. 266-266 (1981), App. 75-76. The record suggests that Virginia has been terminating over 400 families each year under the revised regulations it promulgated to implement the OBRA amendment. Since Virginia has only 1.6% of the national AFDC caseload, respondents argue, it should only be terminating 80 families each year according to the Secretary’s estimate. But even granting the accuracy of respondents’ numerical analysis —which petitioner and the Secretary have had no opportunity to contest — and ignoring the dubious authority of an unexplained forecast made during a committee hearing, the disparity respondents note does not provide the faintest support for an inference that the Congress which passed the OBRA amendment understood the AFDC statute to exclude personal injury awards from income. The record indicates that only about one-third of the families removed from the rolls in Virginia were removed as a result of personal injury awards; since the number of remaining terminations still far exceeds the Secretary’s forecast (about 270 instead of 80), the disparity certainly is not explicable by Virginia’s decision to treat personal injury awards as income. One is left with the suspicion that the error was in the Secretary’s forecast. Nothing respondents have identified in the legislative history of the OBRA amendment supports the conclusion that Virginia’s revised regulations are unlawful.
Respondents’ penultimate argument is that logic requires personal injury awards to be treated as resources rather than income. The argument rests upon the following syllogism: (1) healthy bodies are resources; (2) personal injury awards merely compensate for damage to healthy bodies; and therefore (3) personal injury awards necessarily are resources too. We have already noted that the minor premise of this syllogism is false, see supra, at 375-376. More importantly, however, so is the major premise. Although there is a sense in which a healthy body can be said to be a resource, it certainly is not one within the meaning of the AFDC statute and regulations, which count only real and personal property (including liquid assets). See 95 Stat. 844, as amended, 42 U. S. C. § 602(a)(7)(B) (1982 ed., Supp. III); 45 CFR §§ 233.20(a)(3)(i)(B), (ii)(E) (1986). Since healthy bodies are worth far more than the statute’s $1,000 family resource limit, 42 U. S. C. § 602(a)(7)(B), acceptance of respondents’ major premise would render every family ineligible for AFDC benefits. The fact that the AFDC statute and its implementing regulations consider only real and personal property in determining families’ resources permits (if it does not indeed require) the conclusion that personal injury awards are compensation for diminution of well-being of a kind not covered by the AFDC statute, except to the extent they compensate for lost wages (to which extent they clearly are gain, see supra, at 375) or for economic expenses caused by the injury (to which extent Virginia permits them to be in large part offset, see n. 1, supra). Thus, personal injury awards are almost entirely a gain in well-being, as well-being is measured under the AFDC statute, and can reasonably be treated as income even on respondents’ definition of the term.
Once this is understood, it is clear that Virginia’s policy of treating personal injury awards as income but property damages awards as resources is also reasonable. The former can be viewed as increasing their recipients’ pecuniary well-being, and the latter as merely restoring resources to previous levels. The existence of this distinction, coupled with the substantial deference owed to the Secretary’s conclusion that Virginia’s revised regulations are consistent with HHS’ regulations, see, e. g., Lyng v. Payne, 476 U. S. 926, 939 (1986), leads us to reject respondents’ argument that the difference in treatment violates HHS’ regulation requiring that “eligibility conditions imposed must not exclude individuals or groups on an arbitrary or unreasonable basis, and must not result in inequitable treatment of individuals or groups_” 45 CFR § 233.10(a)(1) (1986).
It is of course true that, by considering only real and personal property as the measure of well-being, the AFDC program evaluates need in a way that does not reflect the fullness of life. That portion of a personal injury award which constitutes compensation for loss of earnings will not result in a loss of eligibility, since it merely replaces future income that would otherwise have been earned; but the portion attributable to pain and suffering replaces no other economic income, and will reduce AFDC payments. It can reasonably be urged that a family with monthly pain-and-suffering-award income but with a family member in physical and emotional pain is not better off than the family without that additional income but also without that suffering. Physical and emotional well-being, however, is not what the AFDC statute is designed to take into account — as is evident from the fact that there is no argument for increasing AFDC payments above the normal income limit where pain and suffering exists without a tortfeasor who is compensating it. Compensating for the noneconomic inequities of life is a task daunting in its complexity, and the AFDC statute is neither designed nor interpreted unreasonably if it leaves them untouched.
Finally, we do not agree with the dissent’s contention that our holding “‘override[s] the States’ traditional power to define the measure of damages applicable to state-created causes of action.’” Post, at 389 (quoting Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 500, n. 3 (1980) (Blackmun, J., dissenting)). That could not possibly be so, since in this case Virginia wants to treat the proceeds of personal injury awards as income. It is a peculiar solicitude for States’ prerogatives that would prevent Virginia from striking its own balance between directing limited AFDC funds to the least wealthy and compensating tort victims. It is true that the Secretary has now promulgated a regulation requiring States to treat personal injury awards as income under the AFDC statute. See n. 5, supra. But since this is not a case in which a State challenges that regulation, the dissent’s objection is simply irrelevant.
Ill
Respondents have not demonstrated that Virginia’s policy of treating personal injury awards as income is inconsistent with the AFDC statute or HHS’ regulations. The contrary judgment of the Court of Appeals is
Reversed.
The revised regulations also permitted recipients to deduct from such a payment any directly related expenses that were incurred prior to or within 30 days after receipt of the payment. Va. ADC Manual § 305.4C (Jan. 1983), App. to Pet. for Cert. 72. During the pendency of this law1 suit, Congress amended the OBRA amendment to give States the option of reducing the period of ineligibility otherwise mandated so as to take into account various expenditures related to the lump-sum payment. Section 2632(a) of the Deficit Reduction Act of 1984, 98 Stat. 1141, 42 U. S. C. § 602(a)(17) (1982 ed., Supp. III). Virginia has since availed itself of this option. Va. ADC Manual § 305.4C (Oct. 1984), App. to Pet. for Cert. 83-86.
Moreover, as we discuss below, see infra, at 380-383, other typical components of personal injury awards, including compensation for pain and suffering, can reasonably be treated as gain under the AFDC statute.
The dissent apparently thinks it appropriate to speculate upon what Congress would have said if it had spoken. Post, at 389 (“[I]f Congress had considered the question, it is reasonable to believe that it would have . . . excluded [personal injury awards] from income”). As we demonstrate below, it also is reasonable to believe that Congress would have included personal injury awards in income. More importantly, however, the legality of Virginia’s policy must be measured against the AFDC statute Congress passed, not against the hypothetical statute it is most “reasonable to believe” Congress would have passed had it considered the question of personal injury awards. For the purpose of determining the application of an existing agency-interpreted statute to a point on which “Congress did not actually have an intent,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845 (1984), we have held that “a court may not substitute its own construction... for a reasonable interpretation made by the administrator of an agency.” Id., at 844. As we note below, see infra this page and 378-379, Virginia’s policy is consistent with the Secretary’s interpretation.
Respondents observe that none of the evidence relied upon by Luk-hard and the Secretary antedates the passage of the OBRA amendment. Although true, the observation is of dubious significance. Older documents demonstrating the existence of a longstanding interpretation would of course be better evidence than are recent documents asserting its existence. But in the absence of any contrary evidence, the latter form of evidence is certainly sufficient to support a conclusion that the interpretation existed. Similarly, although respondents observe that the record does not reveal whether any States actually availed themselves of the option allegedly given them prior to passage of the OBRA amendment, we see no reason to draw any inference at all from that lacuna.
After this suit was filed, the Secretary proposed a rule requiring States to treat all lump-sum payments as income. 49 Fed. Reg. 46558, 45568 (1984). Such a rule has since been promulgated. 45 CFR § 233.20(a)(3)(ii)(F) (1986). Lukhard and the Secretary argue that the Secretary’s determination that this rule is consistent with the AFDC statute and the OBRA amendment is entitled to deference, while respondents argue that the rule was invalidly promulgated and is in any event due no deference. Since we uphold Virginia’s practice without reference to the new HHS regulation, we need not reach these questions.
As has already been noted, since this suit was filed Virginia has altered its treatment of personal injury awards by adopting a regulation reducing the ineligibility period established by the OBRA amendment to take into account various expenditures related to the award and other equitable considerations. Va. ADC Manual §305.4C (Oct. 1984), App. to Pet. for Cert. 83-86. Moreover, the Secretary contends that a new regulation he has promulgated, 45 CFR § 233.20(a)(3)(ii)(F1) (1986), requires Virginia to treat property damages awards as income, thus rendering prospectively moot respondents’ claim that Virginia’s disparate treatment violates the HHS regulation. Respondents claim, however, that the new regulation is invalid because improperly promulgated, that it does not require Virginia to alter its treatment of property damages awards, and that even if it did it would not result in equal treatment of personal injury awards and property damages awards. We need not consider the consequences of these subsequent developments. The legality of the original disparity in treatment is still a live issue, since its resolution will determine whether respondents were entitled to the AFDC benefits they have received under the injunction issued by the District Court. And our conclusion that the original disparity was not unreasonable necessarily implies that the diminished disparity created by Virginia’s subsequently more lenient treatment of personal injury awards is not unreasonable.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
62
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NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL LONGSHOREMEN’S ASSN., AFL-CIO, et al.
No. 84-861.
Argued April 23, 1985
Decided June 27, 1985
BRENNAN, J., delivered the opinion of the Court, in which White, MARSHALL, Blackmun, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and O’Connor, J., joined, post, p. 84.
Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Fried, David A. Strauss, and Linda Sher. J. Alan Lips argued the cause for the American Trucking Associations, Inc., et al., respondents under this Court’s Rule 19.6 in support of petitioner. With him on the briefs were Mark E. Lutz and Kenneth E. Siegel. Briefs in support of petitioner were filed by William L. Auten for Houff Transfer, Inc., William H. Towle for the American Warehouse-men’s Association, and David Previant, Robert M. Baptiste, and Roland P. Wilder, Jr., for the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, all respondents under this Court’s Rule 19.6.
Donato Caruso argued the cause for respondent New York Shipping Association, Inc. Ernest L. Mathews, Jr., argued the cause for respondent International Longshoremen’s Association, AFL-CIO. With them on the brief were C. P. Lambos, Thomas W. Gleason, and Francis A. Scanlan.
Dixie L. Atwater and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
George Kaufmann, David Silberman, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Stephen E. Tallent and William F. Highberger filed a brief for Delta Steamship Lines, Inc., as amicus curiae.
Justice Brennan
delivered the opinion of the Court.
The Rules on Containers are collectively bargained-for guidelines requiring marine shipping companies to allow some of the large cargo containers that they own or lease to be loaded or unloaded by longshoremen at the pier. In NLRB v. Longshoremen, 447 U. S. 490 (1980) (ILA I), we reviewed the National Labor Relations Board’s conclusion that the Rules and their enforcement constituted unlawful secondary activity under §§ 8(b)(4)(B) and 8(e) of the National Labor Relations Act, as amended, 29 U. S. C. §§ 158(b)(4) (B) and 158(e). Respondent union, the International Longshoremen’s Association (ILA), defended the Rules as lawful under the “work preservation” doctrine of National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612 (1967). We ruled, however, that the Board’s preliminary definition of the work in dispute had been legally erroneous, because it focused on the off-pier work of nonlongshoremen rather than on the work of longshoremen sought to be preserved. 447 U. S., at 507-508. We therefore affirmed the Court of Appeals’ remand of the Rules to the Board, directing it to “focus on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work.” Id., at 507. The Board then sustained the Rules, but held that their enforcement against “short-stopping” truckers and “traditional” warehousers is unlawful. 266 N. L. R. B. 230 (1983). The question now presented is whether the Board’s partial invalidation of the Rules as applied in these two contexts is consistent with ILA I.
I
At issue is the response of unionized dockworkers to a technological innovation known as “containerization.” Traditionally, longshoremen employed by steamship or steve-doring companies loaded and unloaded cargo into and out of oceangoing vessels at the pier. Cargo arriving at the pier by truck was “transferred piece by piece from the truck’s tailgate to the ship by longshoremen .... The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship’s hold. The process was reversed for cargo taken off incoming ships.” 447 U. S., at 495. As we explained in some detail in ILA I, the advent of containerization some 25 years ago profoundly transformed this traditional pattern, by reducing the cost of ocean cargo transport and “largely eliminat[ing] the need for cargo handling at intermediate stages.” Id., at 509.
It is thus unsurprising that “the amount of on-pier work involved in cargo handling has been drastically reduced” and that containerization has been since its inception a “hotly disputed topic of collective bargaining” between the ILA and the marine shipping companies. Id., at 495-496. The Rules are the evolutionary product of the ILA’s bargaining efforts that began with the introduction of the first oceangoing container ship in the Port of New York in 1957.
The Rules do not require that all containers be loaded or unloaded by longshoremen at the pier. Instead, they apply only to containers that would otherwise be loaded or unloaded within the local port area, defined for convenience as anywhere within a 50-mile radius of the port. Rule 1(a). Containers directly coming from or going to points beyond the 50-mile radius are not affected by the Rules. Rule 2. Even within the 50-mile area, containers that go directly to the owner of the cargo or to “bona fide” warehouses are exempted from the Rules. Rules 1(a)(2) and (3), 2(B)(4). To ensure compliance, a fine of $1,000 is levied against a marine shipping company for each of its containers that it allows to be handled in violation of the Rules. Rule 7(c). As we noted in ILA I: “The practical effect of the Rules is that some 80% of containers pass over the piers intact. The remaining 20% are [loaded and unloaded] by longshoremen, regardless of whether that work duplicates work done by non-ILA employees off-pier.” 447 U. S., at 499.
Although the marine shipping companies and longshoremen have accepted the various compromises that the Rules represent, three groups of non-ILA employers are unhappy with the Rules. Freight consolidators, truckers, and ware-housers all also load and unload containers. Freight consolidators are in the business of arranging for small loads of cargo to be delivered to their off-pier facilities, where consolidator employees combine the cargo with cargo from other parties to pack full containers, which are then delivered to the pier. Consolidators also receive from incoming vessels containers packed with several parties’ cargo, which they unload and disperse to the respective owners.
Unlike consolidators, many of whose businesses have been founded on containerization, some truckers and warehousers have always performed some off-pier cargo handling work. For example, prior to containerization, some interstate truckers would pick up cargo at the pier, drive a short distance to a central facility, and then unload and reload the cargo to meet weight, safety, or delivery requirements. Such unloading and reloading near the pier still sometimes occurs, even if the cargo is picked up in containers. The trucking practice of stopping in the vicinity of the pier to unload and reload cargo for reasons related to trucking requirements is known as “shortstopping.” Similarly, some warehousers have always performed some loading and unloading of cargo stored at the warehouse for reasons unrelated to marine transportation; such cargo handling is still sometimes necessary even though cargo is shipped in containers.
All these facts were before the Court in ILA I. We did not find that any of them required invalidation of the Rules. Instead, because we found that the Board had erred as a matter of law in defining the “work” in controversy, we remanded to the Board for further proceedings. 447 U. S., at 512-513. Nine cases involving charges of unfair labor practices filed by consolidators, truckers, or warehousers against the ILA were then consolidated by the Board and sent to an Administrative Law Judge (ALJ) for factfinding and disposition. The charging parties claimed generally that the Rules constitute an unlawful agreement in violation of § 8(e), and that enforcement of the Rules, which has resulted in marine transport companies not dealing with certain off-pier employers, constitutes secondary boycotting illegal under § 8(b)(4)(B).
In a detailed opinion, the ALJ sustained the Rules as a valid work preservation agreement. He found that the “historic jurisdiction” of longshoremen “includes all work in connection with the loading and unloading of cargo on ships, . . . including such related intermediate steps as receipt, storage, sorting, checking, palletizing, cargo repair, carpentry, maintenance and delivery.” 266 N. L. R. B., at 247. He rejected the argument that containerization has so changed the character of the cargo transportation industry that this work has simply disappeared. Noting that the Rules are “narrowly tailored” to preserve only the work of loading and unloading containers, and that “[n]o other work is sought,” id., at 251, the ALJ also found that “the Rules merely restore to the unit work traditionally performed by the ILA.” Id., at 252. With regard to the alleged secondary nature of the Rules, the ALJ found that the Rules have a clear work-preserving objective and that no secondary motivation was shown: “On this record, there can be little question that. . . the Rules represented a negotiated response to accommodate the . . . inroads on ILA work jurisdiction” caused by containerization, and “the evidence fails to disclose any significant ILA interest in the labor relations of the [off-pier] employers boycotted by the Rules.” Id., at 248-249.
The ALJ did not end his inquiry there, however. He concluded that despite the work preservation objective of the Rules, they might still be invalid if they had the effect of reserving for longshoremen cargo handling work that had been done by nonlongshore labor prior to containerization and thus was not “created” by containerization. Id., at 252. The ALJ reasoned that “to the extent that the Rules seek to compensate longshoremen for losses at the expense of inland employees whose jobs did not derive from containerization, a proscribed ‘work acquisition’ objective would attach.” Ibid. He then found that, although the “skills utilized . . . are indistinct from those of deep sea longshoremen,” cargo handling work done by shortstoppers and “traditional” warehousers is work “assumed for a different purpose” than longshore cargo handling and “preexisted” containerization. Id., at 256. He declared that the Rules therefore took on an impermissible secondary character when applied in those two contexts, and sustained unfair labor charges in three cases.
The Board adopted the ALJ’s findings and conclusions, stating that “the ILA had an overall work preservation objective in negotiating the Rules,” and that “the work of loading and unloading containers claimed by the Rules is functionally related to the traditional loading and unloading work of the longshoremen.” Id., at 236, 237. The Board therefore held the Rules lawful as a general matter. It also agreed with the ALJ’s partial invalidation “as applied,” however, after modifying the ALJ’s views in two respects.
First, the Board provided a definition of “the work in dispute,” because the ALJ had not done so explicitly. Id., at 236. Second, the Board rejected the ALJ’s “findings that an illegal work acquisition objective is revealed in the Rules,” because his analysis “appeared] to conflict” with the direction in ILA I to focus on the work of longshoremen, not off-pier laborers. 266 N. L. R. B., at 236-237.
“By focusing on the economic character of the trucking and warehousing industry and on the work historically performed by trucking and warehousing employees, the [ALJ’s] . . . findings give undue emphasis to the work historically performed by trucking and warehousing employees and to the fact that this work was not created by containerization.” Ibid.
Nevertheless, the Board held the Rules unlawful “as applied to ‘shortstopping’ and ‘traditional’ warehousing practices.” Id., at 236. The Board reasoned that some cargo loading and unloading work required to be performed by longshoremen under the Rules would unnecessarily duplicate the similar work done by “shortstopping” truckers and “traditional” warehousers. Because cargo in containers can now be moved directly to and from warehouses and trucking terminals without loading or unloading at the pier, the necessity for such longshore labor has been removed, while “traditional” warehousers and “shortstopping” truckers must still do some container loading and unloading at their facilities. Thus, the Board concluded, the loading and unloading work of the longshoremen “no longer exists as a step in the cargo handling process” and “essentially was eliminated” in these two contexts. Id., at 237. Because the Rules seek to preserve this “eliminated” work, the Board concluded that they have “an illegal work acquisition objective” as applied. Ibid.
The Court of Appeals for the Fourth Circuit affirmed the Board’s general validation of the Rules, concluding that the Board’s crucial dual findings — that the shipping companies have the “right to control” container work, and that the Rules had a bona fide work preservation objective — were supported by substantial evidence. American Trucking Assns., Inc. v. NLRB, 734 F. 2d 966, 977-978 (1984). For two reasons, however, the Court of Appeals refused to enforce the Board’s decision that the Rules constitute unlawful secondary activity when applied to containers destined for “shortstopping” truckers and “traditional” warehousers.
First, in concluding that a partial objective of the Rules is “work acquisition,” the Board had failed to make any factual finding that the Rules actually operate to deprive “short-stopping” truckers or “traditional” warehousers of any work. Id., at 979. Second, the Court of Appeals concluded that, as a matter of law, an agreement that preserves duplicative or technologically “eliminated” work simply does not constitute “work acquisition.” National Woodwork had approved as lawful primary activity a collective-bargaining agreement whose objective was “protection of union members from a diminution of work flowing from changes in technology.” 386 U. S., at 648 (Harlan, J., concurring). The ALJ and the Board both had found that the same work-preserving purpose underlies the Rules on Containers. The Rules do not “in any way prevent the identical off-pier work,” and although such work may be economically inefficient, “it is not our function as a court of review to weigh the economic cost of the Rules.” 734 F. 2d, at 979. The Court of Appeals therefore concluded that “the Rules are lawful in their entirety and may be enforced.” Id., at 980.
Although a number of the charging parties sought review of the Fourth Circuit’s decision, we granted only the Board’s petition for certiorari, 469 U. S. 1188 (1985), thereby limiting our inquiry to the alleged unlawfulness of the Rules with regard to “shortstopping” truckers and “traditional” warehousers.
II
A
We have labored in the past to determine Congress’ will as expressed in §§ 8(b)(4)(B) and 8(e) — this case requires no new development. In light of the Board’s factual findings, we believe the Court of Appeals’ conclusion that the Rules do not violate these provisions, flows as a matter of course from National Woodwork and ILA 7.
In National Woodwork, after reviewing in detail the relevant legislative and judicial history, we concluded that “Congress meant that both § 8(e) and § 8(b)(4)(B) reach only secondary pressures.” 386 U. S., at 638; accord, Houston Contractors Assn. v. NLRB, 386 U. S. 664, 668 (1967). In this regard, the prohibitory scope of § 8(e) was found to be no broader than that of § 8(b)(4)(B). 386 U. S., at 635, 638. The purpose of §8(e) had been to close a “loophole” in the labor laws that allowed unions to employ “hot cargo” agreements to pressure neutral employers not to handle nonunion goods. Id., at 634-637; see Carpenters v. NLRB, 357 U. S. 93 (1958) (Sand Door). However, we concluded, “Congress in enacting § 8(e) had no thought of prohibiting agreements directed to work preservation.” 386 U. S., at 640. Such agreements “are not used as a sword” to achieve secondary objectives, but as “a shield carried solely to preserve the members’ jobs.” Id., at 630. Because the labor laws do not prohibit bona fide primary activity, we stated that the central inquiry for evaluating claims of work preservation is
“whether, under all the surrounding circumstances, the Union’s objective was preservation of work for [the primary employer’s] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. . . . The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis a vis his own employees.” Id., at 644-645.
We expressly noted that a different case might be presented if a union engaged in activity “to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened . . . .” Id., at 630-631 (emphasis added).
We reaffirmed the National Woodwork analysis in ILA I, and noted that “a lawful work preservation agreement must pass two tests”: the objective of the agreement must be preservation of work for members of the union rather than some secondary goal, and the “right of control” test of NLRB v. Pipefitters, 429 U. S. 507 (1977), must be satisfied. 447 U. S., at 504. We ruled, however, that the Board had erred as an initial matter by defining the “work in dispute” as “off-pier” container loading and unloading. Id., at 506. Because technological innovation may significantly change the character of an industry, work preservation agreements negotiated to address such change “typically come into being when employees’ traditional work is displaced.” Id., at 505. Consequently, the place where work is to be done often lies at the heart of the controversy, and is seldom relevant to the definition of the work itself. See id., at 506-507. The Board’s focus on the container work performed off-pier by nonlongshoremen was erroneous because it ignored the question whether “the parties have tailored their agreement to the objective of preserving the essence of the traditional work patterns,” id., at 510, n. 24, and “foreclosed — by definition — any possibility that the longshoremen could negotiate an agreement to permit them to continue to play any part in the loading or unloading of containerized cargo.” Id., at 508.
ILA I concluded, however, that collective-bargaining agreements designed to “accommodate change” while still preserving some type of work for union members may nevertheless be lawful primary agreements; the work preservation doctrine does not require that unions block progress by refusing to permit any use at all of new technology in order to avoid the prohibitions of §§8(b)(4)(B) and 8(e). Id., at 506. The inquiry is whether “the objective of the agreement was work preservation rather than the satisfaction of union goals elsewhere,” id., at 510, and the analytical focus must be “on the work of the bargaining unit employees, not on the work of other employees . . . doing the same or similar work.” Id., at 507. “The effect of work preservation agreements on the employment opportunities of employees not represented by the union, no matter how severe, is of course irrelevant. . . so long as the union had no forbidden secondary purpose.” Id., at 507, n. 22.
Because the Board’s analysis had proceeded from an erroneous premise, we remanded. We directed the Board to examine “how the contracting parties sought to preserve . . . work, to the extent possible, in the face of” containerization, and “to evaluate the relationship between traditional long-shore work and the work which the Rules attempt to assign to ILA members.” Id., at 509. If, on remand, the Rules were found to be a bona fide attempt to preserve longshore work, rather than an effort “‘tactically calculated to satisfy union objectives elsewhere,’” then the Rules would be valid. Id., at 511, quoting National Woodwork, 386 U. S., at 644. “[T]he question is not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs.” 447 U. S., at 511.
B
We accept the Board’s factual findings as supported by substantial evidence, Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951), and are mindful of the rule that the Board’s construction of the Act is due our deference. See, e. g., Beth Israel Hospital v. NLRB, 437 U. S. 483, 500-501 (1978); NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963). We are in agreement with the Board’s basic statutory conclusions: §§ 8(b)(4)(B) and 8(e) prohibit secondary, but not primary, union activity, and bona fide work preservation agreements and their enforcement may constitute protected primary goals. Now that the Board has fully developed the factual record regarding the Rules, the only question presented is whether, as a matter of law, the Board applied the “work preservation” doctrine consistently with our prior eases.
In our view, the Board committed two fundamental errors. First, by focusing on the effect that the Rules may have on “shortstopping” truckers and “traditional” warehousers, the Board contravened our direction that such extra-unit effects, “no matter how severe,” are “irrelevant” to the analysis. 447 U. S., at 507, n. 22. “So long as the union had no forbidden secondary purpose” to disrupt the business relations of a neutral employer, ibid., such effects are “incidental to primary activity.” Pipefitters, 429 U. S., at 526. Here the ALJ, Board, and Court of Appeals all have agreed that the Rules were motivated entirely by the longshoremen’s understandable desire to preserve jobs against “the steadily dwindling volume” of cargo work at the pier. 734 F. 2d, at 978. Given this clear primary objective to preserve work in the face of a threat to jobs, extra-unit effects of a work preservation agreement alone provide an insufficient basis for concluding that the agreement has an unlawful secondary objective. Absent some additional showing of an attempt “to reach out to monopolize jobs,” National Woodwork, supra, at 630, that is, proof of an attempt “not to preserve, but to aggrandize,” Pipefitters, supra, at 528-530, n. 16, such an agreement is lawful.
Second, we believe the Board misconstrued our cases in suggesting that “eliminated” work can never be the object of a work preservation agreement. Technological innovation will often by design eliminate some aspect of an industry’s work. For example, in National Woodwork the agreement at issue strove to preserve carpentry work done by hand at the jobsite, even though new off-site machining techniques had eliminated the necessity for much of this work. Yet the jobs of carpenters were no less threatened, nor was their attempt to preserve them any less primary, than if the contractor had decided to subcontract the cutting and fitting of doors to nonunion workers. Cf. Fibreboard Corp. v. NLRB, 379 U. S. 203, 209 (1964). Similarly, containers have eliminated some of the work of loading and unloading cargo by hand for all participants in the industry — longshoremen, truckers, and warehousers alike. “Elimination” of work in the sense that it is made unnecessary by innovation is not of itself a reason to condemn work preservation agreements under §§ 8(b)(4)(B) and 8(e); to the contrary, such elimination provides the very premise for such agreements.
It must not be forgotten that the relevant inquiry under §§ 8(b)(4)(B) and 8(e) is whether a union’s activity is primary or secondary — that is, whether the union’s efforts are directed at its own employer on a topic affecting employees’ wages, hours, or working conditions that the employer can control, or, instead, are directed at affecting the business relations of neutral employers and are “tactically calculated” to achieve union objectives outside the primary employer-employee relationship. See National Woodwork, 386 U. S., at 644-645; Pipefitters, 429 U. S., at 528-529, and n. 16. The various linguistic formulae and evidentiary mechanisms we have employed to describe the primary/secondary distinction are not talismanic nor can they substitute for analysis. See generally Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 386-390 (1969). The inquiry is often an inferential and fact-based one, at times requiring the drawing of lines “more nice than obvious.” Electrical Workers v. NLRB, 366 U. S. 667, 674 (1961); see Pipefitters, supra, at 531 (“commonsense inference”). In this case, however, the ALJ, Board, and Court of Appeals all found that the ILA negotiated the Rules on Containers with the sole object of preserving work for its members and that there is no evidence of “any significant ILA interest in the labor relations of the class of employers boycotted by the Rules.” 266 N. L. R. B., at 249. Furthermore, as the Fourth Circuit noted, this is not a case in which an avowed work preservation agreement “seeks to claim work so different from that traditionally performed by the bargaining unit employees” that a secondary objective might be inferred. 734 F. 2d, at 980. When the objective of an agreement and its enforcement is so clearly one of work preservation, the lawfulness of the agreement under §§ 8(b)(4)(B) and 8(e) is secure absent some other evidence of secondary purpose.
In sum, we believe that the Board correctly identified as erroneous the ALJ’s focus on the effect of the Rules on the work of employees outside the bargaining unit, but then fell into the same analytical trap. The crucial findings are that the ILA’s objective consistently has been to preserve long-shore work, and that the ILA’s employers have the power to control assignment of that work. ILA I, 447 U. S., at 504. In light of these facts, further inquiry into the effects of the Rules as applied was inconsistent with our precedents in this concededly difficult area.
C
In ILA I it was argued that the Rules preserve work made “utterly useless” by containerization and thus are “nothing less than an invidious form of ‘featherbedding’ to block full implementation of modern technological progress.” Id., at 526-527 (Burger, C. J., dissenting). Similar arguments are repeated today, see post, at 89, 90, and were presented in National Woodwork as well. See 386 U. S., at 644. Our response is no different than it was 18 years ago: “Those arguments are addressed to the wrong branch of government.” Ibid. Justice Harlan wrote separately in National Woodwork to underscore the Court’s reasoning on this point:
“The only question thus to be decided ... is whether Congress meant, in enacting §§ 8(b)(4)(B) and 8(e) of the National Labor Relations Act, to prevent this kind of labor-management arrangement designed to forestall possible adverse effects upon workers arising from changing technology.
“[BJoth sides of today’s division in the Court agree that we must be especially careful to eschew a resolution of the issue according to our own economic ideas and to find one in what Congress has done.
“In view of Congress’ deep commitment to the resolution of matters of vital importance to management and labor through the collective bargaining process, and its recognition of the boycott as a legitimate weapon in that process, it would be unfortunate were this Court to attribute to Congress, on the basis of such an opaque legislative record, a purpose to outlaw the kind of collective bargaining and conduct involved in these cases. Especially at a time when Congress is continuing to explore methods for meeting the economic problems increasingly arising in this technological age from scientific advances, this Court should not take such a step until Congress has made unmistakably clear that it wishes wholly to exclude collective bargaining as one avenue of approach to solutions in this elusive aspect of our economy.” Id., at 648-650.
Congress has not altered the provisions at issue in the 18 years since National Woodwork was decided, nor has any new evidence been offered regarding Congress’ original intent. In the meantime, management and labor alike have relied on the work preservation doctrine to guide their bargaining. In such circumstances we should follow the normal presumption of stare decisis in cases of statutory interpretation. See Illinois Brick Co. v. Illinois, 431 U. S. 720, 736-737 (1977); Edelman v. Jordan, 415 U. S. 651, 671 (1974).
Ill
Under the Rules on Containers, the ILA has given up some 80% of all containerized cargo work and the technological “container revolution” has secured its position in the industry. We have often noted that a basic premise of the labor laws is that “collective discussions backed by the parties’ economic weapons will result in decisions that are better for both management and labor and for society as a whole.” First National Maintenance Corp. v. NLRB, 452 U. S. 666, 678 (1981). The Rules represent a negotiated compromise of a volatile problem bearing directly on the well-being of our national economy. We concur with the ALJ, Board, and Court of Appeals that the Rules on Containers are a lawful work preservation agreement. Nothing in this record supports a conclusion that their enforcement has had a secondary, rather than primary, objective. The judgment below is therefore
Affirmed.
Containers are large metal boxes designed to fit without adjustment into the holds of special ships and onto the chassis of special trucks and railroad cars. “Because cargo does not have to be handled and repacked as it moves from the warehouse by truck to dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are greatly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most significantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship. As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo.” NLRB v. Longshoremen, 447 U. S. 490, 494-495 (1980).
The Administrative Law Judge (ALJ) in this case characterized the ILA’s position regarding containers as “one of resistence [sic]” from the outset. 266 N. L. R. B. 230, 244 (1983). The 1959 agreement between the ILA and the New York Shipping Association, a multiemployer bargaining group for marine shipping companies in New York, reserved for longshoremen “[a]ny work performed in connection with the loading and discharging of containers. . . which is performed in the Port.” Ibid. Discontent continued, however, over increasing off-pier use of containers. In 1969, after the lengthiest longshoremen’s strike in the history of the Port of New York, a set of Rules substantially similar to the current Rules was negotiated. The Rules were recognized as a compromise, reserving for the ILA only about 20% of the total containerized cargo handled in New York. Nevertheless, the next five years were marked by work slowdowns and stoppages related to containerization, and the Rules were amended several times to increase their enforceability.
The text of the current Rules is substantively identical to the Rules printed as an Appendix to ILA I. 447 U. S., at 513-522. These Rules have been negotiated between the ILA and the Council of North Atlantic Shipping Associations, a multiemployer bargaining group encompassing the marine shipping companies in 36 major ports on the Atlantic and Gulf coasts. Longshoremen on the west coast are represented by a different union, the International Longshoremen and Warehousemen’s Union. Although containerization has been a controversial collective-bargaining topic on the west coast as well, see Ross, Waterfront Lab. Response to Technological Change: A Tale of Two Unions, 21 Labor L. J. 397 (1970), only the ILA and the Atlantic and Gulf coast shippers are before the Court in this case.
The ALJ found that the 50-mile rule developed from the use of the description “50 miles from Columbus Circle” to resolve early container-related grievances in New York. 266 N. L. R. B., at 245, n. 24. The Board approved the 50-mile rule as “a rational attempt to claim only that work actually performed in the general area surrounding the port.” Id., at 235.
A warehouse is deemed “bona fide” if the container is to remain in storage at the warehouse for 30 days or more. Rule 2(B)(4). The ALJ found that this 30-day rule, like the 50-mile rule, represents a negotiated attempt to preserve traditional work patterns; it distinguishes traditional, pre-containerization warehouse functions from “warehouses . . . being used as ‘drop points’ for [container unloading] and reloading immediately onto trucks.” 266 N. L. R. B., at 257. As the Board found, prior to containerization some short-term cargo storage work was performed by longshoremen at marine terminal warehouses, and containerization has “diverted” some of this traditional longshore work to off-pier warehouses. Id., at 236. The 30-day rule was therefore approved as “a rational attempt to distinguish between short-term storage at a marine terminal warehouse and long-term storage at an inland public warehouse.” Ibid.
The Rules also do not apply to “container loads of mail, household effects of a person who is relocating his place of residence, with no other type of cargo in the container, or personal effects of military personnel.” Rules 2(A)(4) and (B)(4).
The Board accepted the ALJ’s findings that such “traditional” warehouse cargo handling work is performed in connection with, for example, “the ongoing storage of a manufacturer’s goods for distribution on short notice to customers based on future orders and the ongoing storage of a company’s purchased inventory for distribution on short notice to its foreign facilities as demand required.” 266 N. L. R. B., at 236.
Two eases were vacated and remanded in ILA I. International Longshoremen’s Assn. (Dolphin Forwarding), 236 N. L. R. B. 525 (1978) (consolidators), and International Longshoremen’s Assn. (Associated Transport), 231 N. L. R. B. 351 (1977) (truckers), enf. denied, 613 F. 2d 890 (1979), vacated and remanded, 447 U. S. 490 (1980). Three cases were remanded by Courts of Appeals in light of ILA I. International Longshoremen’s Assn. (Consolidated Express), 221 N. L. R. B. 956 (1975) (consolidators), enf’d, 537 F. 2d 706 (CA2 1976), cert. denied, 429 U. S. 1041, same case, 602 F. 2d 494 (CA3 1979), vacated and remanded, 448 U. S. 902 (1980), remanded, 641 F. 2d 90 (CA3 1981); International Longshoremen’s Assn. (Beck Arabia), 245 N. L. R. B. 1325 (1979) (remanded by CA4) (warehousers); International Longshoremen’s Assn. (Puerto Rico Marine Management), 245 N. L. R. B. 1320 (1979) (remanded by CA5) (consolidators). The Board itself decided to reconsider one case, International Longshoremen’s Assn. (Terminal Corp.), 250 N. L. R. B. 8 (1980) (warehousers), and to add two other pending complaints, International Longshoremen’s Assn. (Hill Creek Farms), Nos. 4-CC-1133 and 4-CE-55 (warehousers), and International Longshoremen’s Assn. (Custom Brokers), No. 12-CE-30 (consolidators). The ninth case was added by the Board when its General Counsel subsequently issued a complaint. International Longshoremen’s Assn. (American Trucking), Nos. 22-CC-806, 807, 808, 809, and 810 and 22-CE-44, 45, 46, 47, and 48 (truckers). See American Trucking Assns., Inc. v. NLRB, 734 F. 2d 966, 975, n. 6 (1984); 266 N. L. R. B., at 232.
“It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforci-ble [sic] and void_” 29 U. S. C. § 158(e).
“It shall be an unfair labor practice for a labor organization or its agents—
“(4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce where in either ease an object thereof is—
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person . . . Provided: that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . .” 29 U. S. C. § 168(b)(4)(B).
Some of the unfair labor charges in these cases were filed due to cessations of business with off-pier employers by marine shipping companies after the companies were fined by the ILA for allowing “shortstoppers” and warehousers to handle containers in violation of the Rules. See ILA I, 447 U. S., at 500-602. Others were filed prior to the Rules taking effect in various ports. See, e. g., 266 N. L. R. B., at 267-268. Thus the charges are based on facts somewhat attenuated from a direct application of the Rules themselves. The record is silent regarding whether any off-pier employers have actually “lost” work when longshoremen load or unload containers in compliance with the Rules.
In ILA I we noted that the charging parties argued that “containerization has worked such fundamental changes in the industry that the work formerly done at the pier by both longshoremen and employees of motor carriers has been completely eliminated.” 447 U. S., at 510-511. We remanded the issue to the Board without commenting on the merits because it was “not appropriate for initial consideration by reviewing courts.” Id., at 511. On -remand, the ALJ found that someone must still move cargo into and out of containers, and that “[t]here is no inseparable integration of these tasks with other labor functions or technology.” 266 N. L. R. B., at 251 (emphasis in original).
The ALJ also found that (1) the ILA has not “abandoned” its claim to container work, id., at 260; (2) the marine shipping companies have the “right to control” the work in question because they own or lease the containers themselves, id., at 261; and (3) the shipping companies’ right to control the containers they own was not affected by a ruling by the Federal Maritime Commission (which has since been vacated by the Court of Appeals for the District of Columbia Circuit, Council of North Atlantic Shipping Assns. v. FMC, 223 U. S. App. D. C. 323, 690 F. 2d 1060 (1982)). 266 N. L. R. B., at 266-267. These findings were approved by the Board and the Court of Appeals as supported by substantial evidence, and are not at issue here.
Associated Transport (“shortstopping”); Terminal Carp, (warehousing); Beck Arabia (warehousing). 266 N. L. R. B., at 268, 269-270. Unfair labor charges also were sustained in Custom Brokers, but on a finding that the Rules had been employed in an unlawful attempt to organize two nonunion off-pier employers. 266 N. L. R. B., at 270-271. This finding was not challenged on appeal, 734 F. 2d, at 976, n. 7, and the Customs Brokers violations are not before us.
With respect to freight consolidators, the ALJ found that their container loading and unloading are performed “pursuant to a reallocation of work from the piers to off[-pier] facilities created virtually in its entirety by the development of containerization.” 266 N. L. R. B., at 254. The ALJ consequently declared the Rules entirely valid as applied to preserve container work destined for consolidators. Ibid. The consolidators’ charges were dismissed, as were the charges of one warehouser, Hill Creek Farms, found not to be engaged in “traditional” warehousing. Id., at 268-269.
The dissent apparently agrees with this assessment of our precedents, as its criticisms are directed largely at the rationales of National Woodwork and ILA I. See post, at 88-90. The rationale of our third major precedent in this area, NLRB v. Pipefitters, 429 U. S. 507 (1977), is not directly implicated in this case. Pipefitters held that activity taken to enforce a valid work preservation agreement will violate § 8(b)(4)(B) if the primary employer “does not have control over the assignment of the work sought by the union.” Id., at 510-511. In this case, the ALJ, Board, and Court of Appeals have unanimously concluded that the longshoremen’s employers, marine shipping companies, have the “right to control” container loading and unloading work by virtue of their ownership or leasing control of the containers. See 734 F. 2d, at 978; 266 N. L. R. B., at 234, 260-267. Thus the Pipefitters test is satisfied here.
Our review in National Woodwork extended back to § 20 of the Clayton Act of 1914, 38 Stat. 738, and the decisions in Duplex Printing Press Co. v. Deering, 254 U. S. 443 (1921), and Bedford Cut Stone Co. v. Stone Cutters, 274 U. S. 37 (1927), which had held that § 20 immunized from the antitrust laws only those union activities “directed against an employer by his own employees.” 386 U. S., at 621. We determined that Congress’ intent in enacting the Taft-Hartley Act in 1947, 61 Stat. 136, and the Landrum-Griffin Amendments in 1959, 73 Stat. 519, which contained § 8(b) (4)(B) and §8(e), respectively, had been to maintain this early distinction between primary and secondary union activity. 386 U. S., at 620-638. Today’s dissent cites no new legislative history or other evidence to the contrary. See post, at 88; see also post, at 90-91 (§ 8(e) cannot be read literally, “because many labor-management ‘agreements’ will entail some secondary effects”).
Specifically at issue in National Woodwork was an agreement between a general contractor and its carpenters’ union that union workers would not handle prefabricated doors. Carpenters had traditionally cut and installed blank doors at the jobsite, and the will-not-handle clause had been bargained for with the objective of preserving that work in the face of more efficient off-site technology. The record in National Woodwork indicated that it took a machine eight minutes to finish a door with on-site installation requiring only a few more minutes, while a carpenter at the jobsite would take over an hour to perform the same work. Brief for Petitioners in National Woodwork Manufacturers Assn. v. NLRB, O. T. 1966, No. 110, p. 5, n. 4. Unfair labor charges were filed by suppliers of the prefabricated doors, who claimed that the will-not-handle agreement was unlawfully secondary because it caused the contractor to cancel his business with the suppliers. We upheld the agreement and its enforcement, however, as lawful primary activity engaged in to preserve the carpenters’ work. 386 U. S., at 645-646.
On this basis (the absence of a threat to union members’ jobs) we distinguished boycotts of the type described in Allen Bradley Co. v. Electrical Workers, 325 U. S. 797 (1945), which the congressional sponsors of § 8(b)(4)(B) had sought to prohibit. In Allen Bradley, unionized employees of New York City electrical contractors had agreed with their local employers to boycott electrical equipment manufactured outside the city, in an effort “to secure benefits” for unionized employees of a different group of employers, the local electrical equipment manufacturers. 386 U. S., at 628-629; see 325 U. S., at 799-800. The union’s agreement in Allen Bradley “was not in pursuance of any objective relating to pressuring their employers in the matter of their wages, hours, and working conditions; there was no work preservation or other primary objective” involved. 386 U. S., at 629 (emphasis in original). In this sense, the activity was purely acquisitive, indicating an unlawful secondary objective. Cf. Pipefitters, supra, at 528-530, n. 16 (condemning union attempts “not to preserve, but to aggrandize” its position); see Lesniek, Job Security and Secondary Boycotts: the Reach of NLRA §§ 8(b)(4) and 8(e), 113 U. Pa. L. Rev. 1000, 1017-1018 (1965).
Pipefitters also reaffirmed the basic premises of National Woodwork, noting that so long as the “right to control” test is satisfied, it will not normally violate § 8(b)(4)(B) to engage in activity against one’s own employer “for the purpose of preserving work traditionally performed by union members even though in order to comply with the union’s demand the employer would have to cease doing business with another employer.” 429 U. S., at 510. See n. 12, supra. Pipefitters involved a refusal by union steamfitters to install equipment containing factory-installed piping specified by the general contractor, based on the unit’s agreement with its employer, a subcontractor on the job, not to handle such equipment. Because the subcontractor did not have the right to control equipment specifications for the job, the union’s refusal was found to violate § 8(b)(4)(B). 429 U. S., at 511-513, 528-531.
Thus the definition of the work in dispute under the Rules on Containers used by the Board on remand was simply “the work of loading and unloading containers.” 266 N. L. R. B., at 237. Although the Board also stated a precise description of the work claimed by the Rules — “the initial loading and unloading of cargo within 60 miles of a port into and out of containers owned or leased by shipping lines having a collective bargaining relationship with the ILA,” id., at 236 — the less complex definition more accurately describes the work in controversy as opposed to the precise means used to secure it in the collective-bargaining agreement at issue.
Cf. NLRB v. Retail Store Employees, 447 U. S. 607, 614 (1980) (“As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott”); NLRB v. Operating Engineers, 400 U. S. 297, 303-304 (1971) (“primary activity is protected even though it may seriously affect neutral third parties” because “[s]ome disruption of business relationships is the necessary consequence of the purest form of primary activity”).
Amicus AFL-CIO suggests that any distinction between “work preservation” and “work acquisition” in this area distorts the primary/ secondary inquiry under §§ 8(b)(4)(B) and 8(e) and “virtually defies principled application in a situation in which technological advances have altered the nature of the work to be performed.” Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 2-3. However, while we acknowledge that the dichotomy may be susceptible to wooden application, we are not prepared to abandon it. The “acquisition” concept in the work preservation area originated in National Woodwork, where we distinguished Allen Bradley, 325 U. S. 797 (1945), as involving “a boycott to reach out to monopolize jobs or acquire new job tasks when [union members’] own jobs are not threatened.” 386 U. S., at 630-631 (emphasis added); see n. 15, supra. An agreement bargained for with the objective of work preservation in the face of a genuine job threat, however, is not “acquisitive” in the sense that concept was used in National Woodwork, even though it may have the incidental effect of displacing work that otherwise might be done elsewhere or not be done at all. See Pipefitters, 429 U. S., at 510, 526, 528-529, n. 16. Yet as the facts of Allen Bradley demonstrate, an agreement that reserves work for union members may also have an unlawful secondary objective. The preservation/acquisition dichotomy, when employed with the Allen Bradley distinction firmly in mind, can serve the useful purpose of aiding the inquiry regarding unlawful secondary objectives when an agreement attempts to secure work but “jobs are not threatened.”
See, e. g., 266 N. L. R. B., at 255 (“With the introduction of containers, the off[-pier] [truckjdrivers and their helpers . . . lost work themselves in connection with truckloading operations at pierside. In addition, dockworkers employed at trucking stations by motor carriers, after containerization, lost work in connection with FSL containers delivered directly over the road to warehouses, consignees, or interlining trucking stations . . .”).
There is no disagreement among the factfinders that the loading and unloading of containers is the “functional equivalent” of the traditional work of longshoremen, that is, handling cargo going onto or coming from a ship, Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 270 (1977); 266 N. L. R. B., at 237, and that this work is entirely separable from other aspects of container handling. Id,., at 234.
It should also be noted that the same Congress that wrote § 8(b)(4)(B) enacted a separate “antifeatherbedding” provision. Section 8(b)(6) of the Act makes it an unfair labor practice for a union “to . . . cause an employer to pay . . . any money ... for services which are not performed or not to be performed.” 29 U. S. C. § 158(b)(6). We have noted that this provision is a “narrow prohibition,” Scofield v. NLRB, 394 U. S. 423, 434 (1969), that does not prohibit payment- for work actually done or offered, even if that work might be viewed as unnecessary or inefficient. NLRB v. Gam ble Enterprises, Inc., 345 U. S. 117, 123-124 (1953); American Newspaper Publishers Assn. v. NLRB, 345 U. S. 100, 104-106 (1953); see 93 Cong. Rec. 6441 (1947) (remarks of Sen. Taft) (§ 8(b)(6) not intended “to give to a board or a court the power to say that so many men are all right, and so many men are too many”). Because the Rules seek to preserve the actual work of loading and unloading containers at the pier, they do not constitute “featherbedding” that Congress has seen fit to prohibit. “If the company wants to require more work of its employees, let it strike a better bargain. The labor laws as presently drawn will not do so for it.” Scofield, supra, at 434.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
|
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[
81
] |
INTERSTATE COMMERCE COMMISSION v. ATLANTIC COAST LINE R. CO. et al.
No. 14.
Argued December 6, 1965.
Decided March 22, 1966.
Robert W. Ginnane argued the cause for petitioner. With him on the briefs for petitioner and for the United States, as amicus curiae, were Solicitor General Marshall, former Solicitor General Cox, Bruce J. Terris, Leonard S. Goodman and Richard A. Posner.
J. Edgar McDonald argued the cause for respondents. With him on the brief were Phil C. Beverly and Urchie B. Ellis.
Mr. Justice White
delivered the opinion of the Court.
This case is before the Court for a determination of when and in what proceedings a common carrier by rail may challenge an order of the Interstate Commerce Commission awarding reparations to a shipper claiming injury because of the carrier’s violation of the Act.
A shipper, Thomson Phosphate Company, filed a complaint with the Commission alleging that certain rates charged by respondent railroads were unjust and unreasonable and seeking reimbursement of those transportation charges to the extent they were unlawful. Interstate Commerce Act §§ 8 and 9, 24 Stat. 382, as amended, 49 U. S. C. §§ 8 and 9 (1964 ed.). The Commission sustained the complaint and issued a report finding that the assailed rates were unjust and unreasonable and that the shipper was entitled to reparations. Thomson Phosphate Co. v. Atlantic Coast Line R. Co., 303 I. C. C. 25 (Div. 2, 1958). When respondents refused to certify the shipper’s statements showing the shipments made during the period involved, the Commission reopened the proceeding for a determination of the amount of reparations due. After such additional proceedings, the Commission found Thomson was entitled to reparations of $8,889.76 with interest, and an order was entered authorizing and directing respondents to pay such sum by a specified date, later amended to August 28, 1961. 311 I. C. C. 315. Respondents refused to comply with the order and brought suit in the United States District Court for the Middle District of Florida under § 17 (9) of the Interstate Commerce Act, 24 Stat. 385, as amended, 49 U. S. C. § 17 (9), and 28 U. S. C. §§ 1336 and 1398 (1964 ed.) to enjoin, set aside, and annul the orders of the Commission. Respondents claimed, inter alia, that the Commission erred in finding the rates unreasonable and in not finding Thomson’s claims barred by the Act’s limitation provision, Interstate Commerce Act § 16 (3), 24 Stat. 384, as amended, 49 U. S. C. § 16 (3) (1964 ed.). Thomson, which was not a party to the carriers’ action, filed in the Southern District of New York a suit against respondents and other railroads to enforce the Commission’s reparation award pursuant to § 16 (2) of the Interstate Commerce Act, 49 U. S. C. § 16 (2) (1964 ed.). By stipulation, the New York case has been held in abeyance pending the outcome of the Florida case, which is presently before this Court.
The Commission moved to dismiss the carriers’ injunction action, contending that reparation orders are not reviewable in such a suit and that the carriers were required to await the shipper’s enforcement action to attack the Commission’s order. The Florida District Court denied the motion to dismiss and, on the merits, held that Thomson’s claims were barred by limitations. 213 F. Supp. 199. The sole issue raised on appeal was whether the District Court had jurisdiction. The Court of Appeals affirmed, sustaining the jurisdiction of the Florida District Court. 334 F. 2d 46. We granted cer-tiorari because of the importance of this question in the administration of the Act. 379 U. S. 957. We reverse and hold that when the Commission issues a reparation order, not accompanied by a cease-and-desist order, a carrier may obtain review of the Commission’s order only in the court where the shipper commences its enforcement action — or where the shipper seeks review of the Commission’s order, see Consolo v. Federal Maritime Comm’n, post, p. 607.
I.
The Interstate Commerce Act contains detailed provisions governing the presentation and adjudication of claims for reparations. Section 8 is the basic provision creating liability and declares that any common carrier by rail which violates the Act “shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation . . . .” By § 9, the complainant is given the alternatives of seeking such damages by complaint to the Commission, under the procedures established by § 13 (1), or of bringing suit in a federal district court. But the primary jurisdiction doctrine requires initial submission to the Commission of questions that raise “issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by [the] Act.” United States v. Western Pac. R. Co., 352 U. S. 59, 65; Texas & Pac. R. Co. v. American Tie & Timber Co., 234 U. S. 138. Accordingly, a shipper who commences his § 9 reparation proceeding in the District Court will nevertheless be required to repair to the Commission for decision of issues, like the reasonableness of rates, which call the primary jurisdiction doctrine into play. When that occurs, the court ordering the reference of such issues to the Commission has exclusive jurisdiction of any civil action to enforce, enjoin, set aside, or annul a Commission order arising out of the referral, 28 U. S. C. § 1336 (b) (1964 ed.), such action to be brought within 90 days of the entry of the Commission’s final order, 28 U. S. C. § 1336 (c) (1964 ed).
Our concern here, however, is with the alternative procedure provided in § 9, which involves an initial complaint before the Commission and culminates in the § 16 (2) suit to enforce the Commission’s reparation award. Section 16 (1) provides that if the Commission determines the complainant is entitled to reparations it “shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16 (2) to file suit in either federal or state court to enforce the Commission’s reparation award. Moreover, Congress has provided that in such a suit the shipper is to have certain procedural advantages designed to discourage “harassing resistance by a carrier to [the] reparation order.” St. Louis & S. F. R. Co. v. Spiller, 275 U. S. 156, 159; see also Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 433; Baldwin v. Milling Co., 307 U. S. 478. The shipper has a broad choice of venue. If the suit is brought in a federal court, see Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U. S. 654, 661, the shipper is free from liability for costs, except as they accrue on its appeal, and it may introduce at trial the findings and order of the Commission, which “shall be prima facie evidence of the facts therein stated. . . .” In addition, the shipper is to be allowed a reasonable attorney’s fee if it prevails, an advantage also accorded under § 8 to shippers who elect to proceed in court in the first instance.
The Interstate Commerce Act likewise contains general provision for judicial review of Commission orders. Section 17 (9) provides that after an application for rehearing, reargument, or reconsideration has been denied or otherwise disposed of, a suit may be brought to enforce, enjoin, suspend, or set aside the Commission decision, order or requirement.
Jurisdiction of both § 16 (2) and § 17 (9) suits is vested in the federal district courts by 28 U. S. C. § 1336 (a) (1964 ed.). Venue is determined by 28 U. S. C. § 1398 (a) (1964 ed.), which, “except as otherwise provided by law,” limits suits to the judicial district where the party bringing the action has his residence or principal office. But because of the quoted exception, this venue restriction does not apply to suits commenced pursuant to § 16 (2), as that section contains its own venue provision.
Procedures for review of Commission orders “other than for the payment of money,” see 28 U. S. C. § 2321 (1964 ed.), are governed by 28 U. S. C. §§ 2321-2325 (1964 ed.). Such actions must be brought by or against the United States, § 2322; the Commission and parties in interest appearing before the Commission may intervene as of right, § 2323; and no interlocutory or permanent injunction restraining enforcement of a Commission order may be granted unless the application is heard and determined by a three-judge district court, § 2325, with direct review here, 28 U. S. C. § 1253 (1964 ed.). In United States v. Interstate Commerce Comm’n, 337 U. S. 426, however, this Court held that Commission orders which determine in a reparation proceeding that assailed rates are unlawful but do not direct the carrier to cease and desist charging such rates, because the rates have been discontinued, “are not of sufficient public importance to justify the accelerated judicial review procedure,” 337 U. S., at 442. Thus, though the procedures set out in 28 U. S. C. §§ 2321-2325 (1964 ed.) otherwise govern § 17 (9) proceedings to review such orders, § 2325 is not applicable and the matter may be adjudicated by a single judge. Because § 16 (2) actions seek enforcement of an order “for the payment of money,” the above-described procedures do not apply. Section 16 (2) directs that actions thereunder “shall proceed in all respects like other civil suits for damages,” with the exception of the special procedural advantages accorded the shipper to which we have previously referred.
II.
From the foregoing summary it will be observed that § 16 (2) actions for enforcement of Commission reparation awards and § 17 (9) actions to set aside Commission orders are quite distinct proceedings, with different venue restrictions and different procedures. Moreover, Congress conferred certain procedural advantages on shippers bringing § 16 (2) actions that may well be lost or impaired if carriers may attack the Commission’s order in a direct review proceeding pursuant to § 17 (9). Accordingly, we are asked to harmonize the language and purposes of the two provisions.
At the outset, however, it should be emphasized that we are here concerned with a narrow, though important, category of cases. First, it is conceded that if the Commission’s reparation order is accompanied by a cease-and-desist order, as it usually will be when the proceeding originates before the Commission and the rates or practices under attack continue in use, the carrier may obtain immediate review of the cease-and-desist order pursuant to § 17 (9); and such review will ordinarily determine the validity of the finding of statutory violation on which the reparation order is founded. A Commission cease-and-desist order respecting rates and charges, for example, which may be issued pursuant to the authority granted by § 15 (1) to prescribe just and reasonable rates, subjects the carrier to $5,000 per day penalties for noncompliance, 49 U. S. C. § 16 (8) (1964 ed.), and is typical of orders reviewed in suits to set aside Commission orders since the first such suit, Stickney v. Interstate Commerce Comm’n, 164 F. 638 (C. C. D. Minn.), aff’d, 215 U. S. 98; see also Interstate Commerce Comm’n v. Delaware, L. & W. R. Co., 220 U. S. 235; United States v. Interstate Commerce Comm’n, 337 U. S. 426, 454 (Frankfurter, J., dissenting). Second, even when a cease-and-desist order is not joined with the reparation order, the latter order will be subject to direct review when no other means of securing review is available, regardless of whether review is sought by a shipper, United States v. Interstate Commerce Comm’n, 337 U. S. 426; Consolo v. Federal Maritime Comm’n, post, p. 607, or the carrier, Pennsylvania R. Co. v. United States, 363 U. S. 202. In the cited cases the party seeking review could not obtain such review in a § 16 (2) suit, either directly or through interposition of a defense.
Thus in United States v. Interstate Commerce Comm’n, supra, the Government filed with the Commission a complaint seeking reparations, but the Commission found the assailed charges did not violate the Act and dismissed the complaint. As there was no award upon which to base a § 16 (2) suit, the United States would have been denied all review had jurisdiction of the § 17 (9) action not been sustained. Similarly, in Consolo v. Federal Maritime Comm’n, post, p. 607, we hold that a shipper may challenge in a direct review proceeding the adequacy of a reparation award, such a challenge being one that could not be pressed in an enforcement action, see Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 457-458; D. L. Piazza Co. v. West Coast Line, 210 F. 2d 947 (C. A. 2d Cir. 1954), cert. denied, 348 U. S. 839.
Pennsylvania R. Co. v. United States, supra, involved a suit by a carrier in the Court of Claims to collect the charges due under its tariff. The United States defended on the ground that the rates were unreasonable, and the Court of Claims referred that issue to the Commission pursuant to the primary jurisdiction doctrine, United States v. Western Pac. R. Co., 352 U. S. 59, 62-70. The Commission found certain rates unjust and unreasonable, without ordering reparations or issuing a cease- and-desist order, and the carrier filed a § 17 (9) suit in federal district court to set the order aside. On review of the Court of Claims’ refusal to further suspend its proceedings pending the District Court action, this Court held that the carrier was entitled to judicial review of the Commission order, that the Court of Claims had no jurisdiction to afford such review, and that the Court of Claims should therefore have suspended its proceedings. Because of the holding that the Court of Claims could not review the Commission order, failure to sustain the District Court’s jurisdiction of the carrier’s § 17 (9) action would again have precluded judicial review.
The essential question in this case is the extent to which United States v. Interstate Commerce Comm’n and Pennsylvania R. Co. v. United States, compel allowance of respondents’ direct review action. The Commission asks us to limit those cases to their facts — situations where judicial review would not have been available if the § 17 (9) suit was not permitted. It argues that sufficient opportunity to obtain review of the Commission’s finding that a statutory violation has occurred is afforded respondents by their right to challenge that determination in defense of Thomson’s § 16 (2) action to enforce the reparation award. If jurisdiction to review in a § 17 (9) suit should be sustained, the Commission further contends, shippers will be deprived of many of the advantages bestowed by § 16 (2). And the historical development of § 16 (2) and the direct review proceeding is said to establish that Congress did not contemplate that the carrier could obtain direct review in a case like that at bar and thereby short-circuit the shipper’s suit. Finally, the Commission urges that in reparation cases where the assailed rates are no longer in effect and no cease-and-desist order issues the Commission’s order has little continuing or general significance but is comparable to an adjudication in a private damages action of interest only to the parties involved; therefore, it is appropriate for the order to be defended by the shipper, who is in effect compensated for such defense by the procedural advantages accorded by § 16 (2), rather than by the United States and the Commission.
Respondents argue that, to the contrary, past practice and the decisions of this Court establish that the exclusive method of reviewing Commission findings that a statutory violation has occurred is through a § 17 (9) proceeding and that such a finding may not be challenged and is not open to review in a § 16 (2) action. Respondents also argue that limiting review to the § 16 (2) proceeding would result in disparate treatment of shippers, through conflicting decisions in enforcement suits, and would thus violate the Act’s cardinal principle of uniformity of rates.
As will appear more fully below, we take a middle course. We conclude that carriers may obtain full review by defending the § 16 (2) action and that the policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shipper. But we find no obstacle to the carriers’ bringing a § 17 (9) cross-proceeding in the forum selected by the shipper, should they so desire.
III.
A threshold question is raised by respondents’ contention that the statutory violation issue is not open to review in a §16(2) enforcement action, the Commission’s finding being conclusive on the enforcement court unless set aside in a §17 (9) proceeding. If respondents are correct on this point, their § 17 (9) action must be allowed under even the Commission’s interpretation of United States v. Interstate Commerce Comm’n, 337 U. S. 426, and Pennsylvania R. Co. v. United States, 363 U. S. 202.
To support their view of the scope of review in the enforcement action, respondents refer principally to Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247. In that case, a shipper commenced its reparation suit under §§ 8 and 9 in a federal district court. This Court held that since the dispute raised “administrative” questions concerning the reasonableness of rates, the primary jurisdiction doctrine required the shipper to proceed first before the Commission. Regarding the weight to be accorded the Commission’s resulting order, the Court said:
“Such orders, so far as they are administrative are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers, who have been or may be affected by the rate, can take advantage of the ruling and avail themselves of the reparation order. They are quasi-judicial and only prima jade correct in so far as they determine the fact and amount of damage — as to which, since it involves the payment of money and taking of property, the carrier is by § 16 of the act given its day in court and the right to a judicial hearing . . . .” 230 U. S., at 258.
Accord, Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304.
The prima facie evidence provision in § 16 (2), however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430, that “[i]t cuts off no defense [and] interposes no obstacle to a full contestation of all the issues . . . .” See also United States v. Inter state Commerce Comm’n, 337 U. S. 426, 435 (§16 (2) proceedings afford “railroads complete judicial review of adverse reparation orders”). Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a §16(2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission’s determination that the disputed rates were unreasonable. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297. See also Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370. The seemingly contradictory statements in the contemporaneous Mitchell Coal and Meeker decisions require explanation, which we believe can be found in the general course of decisions in that era respecting the scope of review of Commission orders.
From our brief résumé of the Court’s opinion in Mitchell Coal it should be immediately apparent that the case did not, strictly speaking, require the determination of the scope of judicial review in § 16 (2) enforcement actions. The proceeding under review had been commenced in court pursuant to § 9 rather than § 16 and no Commission order had yet been entered. The question directly in issue concerned the applicability of the primary jurisdiction doctrine to cases involving discontinued, rather than present, rates.
Initially formulated in cases arising under the Interstate Commerce Act, the primary jurisdiction doctrine was premised in the early cases on the policy of the Act of assuring uniform rates. The Court reasoned that many questions arising under the Act, such as whether rates were unreasonable or discriminatory, were essentially questions of fact particularly appropriate for determination by an expert Commission. If shippers could challenge the filed rates by proceedings before a court, without prior resort to the Commission, different conclusions might be reached by different courts; and the prevailing shippers would thereby obtain a rate preference as compared to unsuccessful shippers, which would violate the principle of uniform rates. See, e. g., Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440-441; Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 493-495; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 255-260. Of course a preliminary determination by the Commission would have little effect in achieving uniformity if its determination were subject to de novo review, and it was for that reason that the Court pointed out in Mitchell Coal the “conclusive” effect that would be accorded “administrative” findings of the Commission in any ensuing § 16 action.
But other decisions rendered by the. Court during the same period indicate that it was not only in § 16 proceedings that the Commission findings would be conclusive, in the sense the Court was actually using that term. Under the original Act, failure to comply with any order of the Commission did not in itself entail any penalty. Commission orders were judicially enforceable at the instance of the Commission or any party in interest, and the Act provided that in an enforcement action “the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated.” Interstate Commerce Act, § 16, 24 Stat. 384 (1887), as amended, 25 Stat. 860 (1889). Though retaining the prima facie evidence provision for actions on reparation awards, the Hepburn Act of 1906 included no provision respecting the weight to be given Commission findings in nonreparation cases. Section 15 of the amended Act, however, made Commission orders, except orders for the payment of money, self-enforcing for purposes of incurring liability for penalties for noncompliance, unless such orders had been suspended or set aside by a court of competent jurisdiction. In Interstate Commerce Comm’n v. Illinois Central R. Co., 215 U. S. 452, a suit to set aside a cease-and-desist order, the changes effected by the Hepburn Act in making Commission orders self-enforcing were interpreted as reducing the scope of judicial review from that prevailing when Commission orders were only prima facie evidence. The Court stated it could consider whether the Commission action exceeded constitutional power or right, whether the administrative order was within the scope of authority delegated, and whether the exercise of authority was reasonable, but it could not “usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised. Power to make the order and not the mere expediency or wisdom of having made it, is the question.” 215 U. S., at 470. Through frequent repetition, see Interstate Commerce Comm’n v. Union Pac. R. Co., 222 U. S. 541, 547-548; Procter & Gamble Co. v. United States, 225 U. S. 282, 297-298, the principles elaborated in Illinois Central gradually became restated as a doctrine “that the findings of the Commission were made not merely prima facie but conclusively correct in case of judicial review, except to the extent pointed out in the Illinois Central and other cases . . . ,” United States v. Louisville & Nashville R. Co., 235 U. S. 314, 320. Accord, Central R. Co. v. United States, 257 U. S. 247, 256-257; United States v. Illinois Central R. Co., 263 U. S. 515, 525-526 and n. 7. See generally, Rochester Tel. Corp. v. United States, 307 U. S. 125, 139-140. By a parallel development, the Court placed increasing reliance in primary jurisdiction cases on the “conclusive” effect of Commission orders as a factor demonstrating that the requirement of preliminary resort to the Commission on administrative questions would indeed further the statutory policy of uniform treatment. Compare Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 494, with Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258, quoted, supra, p. 590.
When Mitchell Coal and Meeker are read together against the background of the Illinois Central and Louisville ■& Nashville cases it becomes clear that Commission orders are fully reviewable in § 16 (2) suits, but Commission findings on questions required under the primary jurisdiction doctrine to be determined first by the Commission are conclusive in the same sense that such findings would be conclusive in suits to set aside the Commission’s order. That is, findings on primary jurisdiction issues are to be reviewed by the Court on the administrative record under the familiar standards elaborated in direct review proceedings, while findings on other questions are subject to review under the prima facie evidence provision of § 16 (2), with the statutory rights of introducing evidence not before the Commission and obtaining a jury determination of disputed issues of fact. Such an interpretation of § 16 (2)’s prima facie evidence provision is required if that provision is to be consonant with the primary jurisdiction doctrine. That interpretation seems to have been applied by the Court in Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90—91; Louisville & Nashville R. Co. v. Sloss-Shef- field Co., 269 U. S. 217; News Syndicate Co. v. New York Central R. Co., 275 U. S. 179; Adams v. Mills, 286 U. S. 397, 409-410. It is urged in the present ease by the Commission and in a companion case by the Federal Maritime Commission, was accepted by the court below, 334 F. 2d, at 49, n. 12, and has been applied by several other lower federal courts, New Process Gear Corp. v. New York Central R. Co., 250 F. 2d 569, 571-572 (C. A. 2d Cir. 1957), cert. denied, 356 U. S. 959; Midland Valley R. Co. v. Excelsior Coal Co., 86 F. 2d 177, 181-182 (C. A. 8th Cir. 1936); Baltimore & O. R. Co. v. Brady, 61 F. 2d 242, 246, 248 (C. A. 4th Cir. 1932), rev’d on other grounds, 288 U. S. 448; City of Danville v. Chesapeake & O. R. Co., 34 F. Supp. 620, 625, 627-628 (D. C. W. D. Va. 1940); Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 237 F. 272, 275 (D. C. E. D. Pa. 1916). We adhere to that interpretation now.
IV.
Having established that the carrier has ample opportunity to secure review in the enforcement action, we must now consider whether affording the carrier the alternative of bringing direct review proceedings pursuant to § 17 (9) would vitiate the congressional policy expressed in § 16 (2) of encouraging prompt payment of reparation awards. To effectuate that policy, Congress has provided for the shipper certain procedural and substantive benefits pertaining to venue, freedom from costs, prima facie effect of the Commission’s order, and allowance of a reasonable attorney’s fee. The Commission contends that permitting the carrier to bring direct review proceedings will materially impair the benefits derived by the shipper from the procedural dispensations of § 16 (2). We conclude that although the degree of impairment would be less than that claimed by the Commission, it would nevertheless be substantial.
The Commission argument respecting venue, which we accept, proceeds as follows: Because the carrier may bring its § 17 (9) action as soon as the final Commission order is entered but the shipper’s § 16 (2) suit must await passage of the date set for compliance, the carrier may file its suit first and thus obtain priority. Although the carrier’s suit must be brought against the United States, 28 U. S. C. § 2322 (1964 ed.), the Commission and the shipper may intervene as of right, 28 U. S. C. § 2323 (1964 ed.), and the shipper will be under compulsion to do so to protect its interest since a decision setting aside the Commission’s order would destroy the foundation of the enforcement action. In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue as the § 17 (9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U. S. C. § 1398 (a), which may be far removed from the district in which the shipper resides or through which the road of the carrier runs — alternatives that are open to the shipper under § 16 (2) and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper’s choice.
By a similar analysis the Commission also contends that a shipper forced to intervene in the carrier’s § 17 (9) action would lose the advantages of freedom from costs and the right to a reasonable attorney’s fee, since those rights are conferred only in the § 16 (2) action and not in § 17 (9) actions. But since both the § 16 (2) action and the § 17 (9) action may be heard and determined by a single district judge when the reparation order is not accompanied by a cease-and-desist order, United States v. Interstate Commerce Comm’n, 337 U. S. 426, 440-443; Pennsylvania R. Co. v. United States, 363 U. S. 202, it would be possible, apart from venue problems, for the shipper to press its action in the same district as the carrier’s action, either by an independent action to be consolidated with the carrier’s action, Fed. Rule Civ. Proc. 42 (a), or by a counterclaim after intervention in the carrier’s action, see Switzer Bros., Inc. v. Locklin, 207 F. 2d 483 (C. A. 7th Cir. 1953); 3 Moore, Federal Practice ¶ 13.05 (2d ed. 1964), 4 Moore, Federal Practice ¶ 24.17 (2d ed. 1963). Then to the extent that the shipper’s costs and attorney’s fees were attributable to its § 16 (2) counterclaim or action the § 16 (2) advantages would clearly be applicable. And it would be arguable — an issue we do not decide — that the shipper would be entitled to the benefit of § 16 (2) as to all its costs and attorney’s fees in the combined action.
Since the Commission believes that the scope of review of findings on primary jurisdiction issues would be the same regardless of whether review was sought in a §16(2) or a §17(9) action, it makes no claim that allowance of the direct review proceeding would undercut the prima facie evidence provision of § 16 (2).
In summary, the principal, if not sole, effect of permitting respondents’ direct review proceeding would be to force on shippers the alternatives of either forgoing the opportunity to defend the Commission order or accepting the carrier’s choice of a distant venue. The first alternative is obviously counter to the policy expressed in § 16 (2), and, as we have said, it is to be expected that shippers would elect to defend the Commission’s order even at the expense of loss of their venue advantage. The importance of choice of venue in these actions should not be discounted. Since the record in the enforcement action is not limited to that made before the Commission, the shipper may desire to call witnesses or to introduce documentary evidence either in direct support of the Commission’s order or in rebuttal to opposing evidence produced by the carrier, thus bringing into play those factors relating to the convenience of witnesses and the relative burden of making proof that make the choice of venue so important in other contexts. See Mercantile National Bank v. Langdeau, 371 U. S. 555; Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260.
y.
But respondents contend that confining review to the enforcement action would introduce into the administration of the Act problems of greater severity and importance than any effect such a course might have in safeguarding the shipper’s § 16 (2) privileges. Respondents note that under the doctrine of Phillips Co. v. Grand Trunk Western R. Co., 236 U. S. 662, shippers who are not complainants before the Commission may nevertheless obtain the advantage of the Commission’s reparation order as a basis for their own § 16 (2) action. It is argued that the enforcement court has no power to set aside the Commission order and, therefore, a decision upholding a carrier’s attack on the Commission’s order in one enforcement proceeding would not preclude another shipper from successfully invoking that order in a separate enforcement proceeding, thus resulting in disparate treatment of shippers contrary to the Act’s objective of securing uniform rates.
It is of course true that the court may not formally set aside the Commission’s order in an action in which neither the Commission nor the United States is a party. Cf. United States v. Jones. 336 U. S. 641, 651-653, 670-671; Pennsylvania R. Co. v. United States, 363 U. S. 202, 205. But we do not read Phillips Co. v. Grand Trunk Western R. Co., supra, to permit reliance by a nonparticipating shipper on the Commission’s order when it has been disapproved in litigation between the complainant shipper and the railroad. In the Phillips case, the Commission had separately determined that challenged rates were unlawful and had issued a cease-and-desist order, which was sustained in an enforcement proceeding brought by the Commission. Illinois Central R. Co. v. Interstate Commerce Comm’n, 206 U. S. 441. Thereafter, some reparation claims were settled, and Phillips, which had not been a complainant before the Commission, commenced its reparation action. The Court reasoned that if Phillips could not rely on the Commission order, shippers prevailing before the Commission would obtain a preference as compared to nonparticipating shippers. Therefore, the Court ruled that if:
“there was a finding of unreasonableness in the proceedings begun by others, [the nonparticipating shipper] could, if in time, present his claim, and await the result of the litigation over the validity of any order made at the instance of those parties. If it was ultimately sustained by the court as valid he would then be in position to obtain reparation from the Commission — or a judgment from a court of competent jurisdiction, on a claim that had been seasonably presented.” 236 U. S., at 666.
The Phillips case thus contemplates that the suit of a nonparticipating shipper is to await the outcome of litigation over the validity of the Commission order and that the nonparticipating shipper may rely on the Commission’s order only when the policy of uniformity will thereby be served.
It might still be argued that disparity in treatment of shippers would result in cases involving multiple complainants before the Commission. The several shippers could commence separate enforcement actions in different courts, and those courts might disagree concerning the validity of the Commission’s order. But such conflicts could be completely avoided only by limiting review on the question of statutory violation to a single suit by a carrier to set aside the Commission’s order, and the long and unvarying course of decisions permitting review in the enforcement court precludes our limiting review to § 17 (9) proceedings. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370; Adams v. Mills, 286 U. S. 397; Brown Lumber Co. v. Louisville & N. R. Co., 299 U. S. 393; Porter Co. v. Central Vermont R. Co., 366 U. S. 272, 274, n. 6 (dictum). In any event, we do not believe that in practice such conflicts will frequently occur. If the first enforcement court to issue its decision sustains the Commission order, that decision will generally be accepted as persuasive authority by other courts. Such conflicts as do occur will be similar to those that may arise when, in a suit commenced in court under § 9, the primary jurisdiction doctrine is not applicable and the court is free to decide questions under the Act as an original matter; and such conflicts may ultimately be resolved here. If the first court to reach a decision strikes down the Commission order, it may do so on grounds permitting reconsideration of the matter by the Commission. When the primary jurisdiction doctrine requires initial decision by the Commission, it also precludes the court from redetermining the question itself should the Commission decision be defective. The proper course is to remand to the Commission, Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 302; Louisville & Nashville R. Co. v. Behlmer, 175 U. S. 648; compare United States v. Jones, 336 U. S. 641, 651-653, 670-671, with United States v. Bianchi & Co., 373 U. S. 709, 718, which has continuing power to suspend or to modify its orders, Interstate Commerce Act § 16 (6), 49 U. S. C. §16(6) (1964 ed.). The carrier will naturally request the Commission to reopen the prior order as to all shippers. See Baldwin v. Milling Co., 307 U. S. 478; but cf. Gulf, M. & N. R. Co. v. Merchants’ Specialty Co., 50 F. 2d 21 (C. A. 5th Cir. 1931). In some cases, however, a decision refusing to enforce the Commission’s order will finally determine its validity as between the parties to that action without any necessity for a remand to the Commission. Here too the first adjudication will generally be persuasive and, if not, conflicting decisions may be reviewed in this Court. Finally, under the interpretation of §§ 16 (2) and 17 (9) that we elaborate below the carrier may bring a direct review proceeding as a cross-action in the forum selected by a shipper, thus ensuring that the court will have power to affect the order itself and thereby maintain uniformity as between shippers.
VI.
Recent decisions of this Court have recognized that Commission orders determining a “right or obligation” so that “legal consequences” will flow therefrom are judicially reviewable. Pennsylvania R. Co. v. United States, 363 U. S. 202, 205; Rochester Telephone Corp. v. United States, 307 U. S. 125, 131, 132, 143. Such review “is equally available whether a Commission order relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission.” Pennsylvania R. Co. v. United States, supra, at 205. Under these established principles the order attacked in this case is unquestionably subject to review, and in Pennsylvania R. Co. v. United States, supra, and United States v. Interstate Commerce Comm’n, 337 U. S. 426, similar orders were held reviewable in direct proceedings.
The question before us now, however, is not whether review is to be afforded but where that review is to occur. In the three preceding sections of this opinion we have established three conclusions that must serve as guideposts for our decision of that question. First, respondents have ample opportunity to secure review of the Commission’s order through defense of the shipper’s enforcement action. By contrast, the Pennsylvania R. Co. and Interstate Commerce Comm’n cases dealt with situations where the order in dispute could only be reviewed in § 17 (9) proceedings, and those cases thus do not control decision here. Second, allowing respondents the alternative of bringing direct review proceedings would substantially impair the shipper’s § 16 (2) right to select a convenient venue. Third, contrary to respondents’ contention, limiting review to the enforcement action would not be likely to result in disparity in treatment of shippers. If, therefore, review can be limited to the enforcement forum selected by the shipper consistent with the language and history of the provisions establishing the direct review proceeding, we should adopt that course.
During the first 19 years of the Commission’s existence its orders were not reviewable through direct proceedings. Until 1906, noncompliance with a Commission order did not expose a carrier to immediate sanctions; an order was enforceable only after judicial proceedings in which the carrier could challenge its validity. The Hepburn Act imposed penalties of $5,000 a day for violation of Commission orders and “[t]he statutory jurisdiction to enjoin and set aside an order was granted in 1906, because then, for the first time, the rate-making power was conferred upon the Commission, and then disobedience of its orders was first made punishable,” United States v. Los Angeles R. Co., 273 U. S. 299, 309; see also 40 Cong. Rec. 5133 (remarks of Senator Foraker). Thus the genesis of the direct review proceeding was the desire to afford an injunctive remedy for persons faced with the threat of irreparable injury through exposure to liability for mounting penalties without any other opportunity for judicial review until the Commission or some interested party should choose to commence enforcement proceedings. Compare Ex parte Young, 209 U. S. 123, 147-148. The essentially equitable nature of the direct review proceeding was remarked in early cases denying review of “negative orders” that did not command any action by the carrier and therefore did not threaten the carrier with any sanctions. Compare United States v. Los Angeles R. Co., 273 U. S. 299, with Rochester Tel. Corp. v. United States, 307 U. S. 125. Similarly, as the per diem penalties do not apply to noncompliance with orders for the payment of money, two of the three courts to have considered the issue presented in the case at bar denied carriers direct review on the ground that no equitable cause of action had been stated. Pittsburgh & W. V. R. Co. v. United, States, 6 F. 2d 646, 648-649 (D. C. W. D. Pa. 1924); Baltimore & O. R. Co. v. United States, 12 F. Supp. 261, 263 (D. C. D. Del. 1935), appeal dismissed, 87 F. 2d 605 (C. A. 3d Cir. 1937); contra, Southern R. Co. v. United States, 193 F. 664 (Commerce Ct. 1911). And decisions sustaining direct review of reparation orders have stressed the absence of alternative means for obtaining review — in equity terms, inadequacy of remedies at law. See, supra, at pp. 587-588.
As the principles stated at the beginning of this section demonstrate, the test of reviewability is no longer pregnant with the concept of irreparable injury to the same extent as when the negative order doctrine held sway, and we do not mean to resurrect the strict equity approach. This history nevertheless establishes that the main concern of Congress in creating the direct review proceeding was with orders that were “self-enforcing” in the sense of exposing recalcitrant carriers to substantial monetary penalties. The legislative history permits absolutely no inference that Congress intended to undercut the shipper’s remedies in the enforcement action. To the contrary, the Hepburn Act simplified those enforcement procedures so as to provide additional assistance to shippers. H. R. Rep. No. 591, 59th Cong., 1st Sess., p. 5; 40 Cong. Rec. 2256 (remarks.of Congressman Hepburn). Moreover, the equitable nature of the direct review proceedings certainly affords ample basis for requiring the direct review court to defer its proceedings pending the outcome of the enforcement action, a course that is consistent with the legislative history of the direct review proceeding and that will maximize the remedial purposes of § 16 (2).
Lest there be any misunderstanding, we emphasize that our reasons for finding the direct review proceeding unavailable in a case such as this where the carriers began that proceeding in a forum other than that selected by the shipper for its enforcement action are inapplicable when the direct review proceeding is brought as a cross-action in the enforcement court. Obviously allowance of the cross-action will not impair the shipper’s venue right. And we think that the § 16 (2) provisions respecting court costs and attorney’s fees unquestionably would be applicable to the whole of the combined action in such a case. The Commission argues, nevertheless, that reparation orders respecting past rates are not of sufficient general importance to require their defense by the United States and the Commission, and that the direct review proceeding should not be permitted regardless of the court in which it is brought. That apparently is not the view of Congress, however, for when it provided in 1964 that review of Commission orders entered on reference of primary jurisdiction issues should be had only in the court making the reference, 28 U. S. C. §§ 1336 (b) and 1398 (b) (1964 ed.), it did so by placing jurisdiction and venue of the direct review proceeding in that court, see generally S. Rep. No. 1394, 88th Cong., 2d Sess. (1964), in 1964-2 U. S. Code Cong, and Admin. News 3235, rather than by providing for review as an incident of the original action. See also Brief for the United States in Pennsylvania R. Co. v. United States (No. 451 O. T. 1959), 7-9, 21-22. As we indicated in the preceding section, in some cases there will be some advantage for purposes of assuring the uniform application of the Act in the courts having jurisdiction to directly affect the Commission's order, and we see no justifiable reason for preventing the carrier from bringing the United States into the enforcement court should it so desire.
The proceeding before us, however, was not brought in the enforcement court. Indeed, proceedings in the latter court have been deferred pending the outcome of this case. For the reasons stated herein, the District Court erred in entertaining respondents’ action and the judgment of the Court of Appeals sustaining the District Court must be
Reversed.
Mr. Justice Douglas concurs in the result.
Mr. Justice Black took no part in the consideration or decision of this case.
The relevant text of the provisions discussed in text above reads as follows:
Ҥ 8. Liability in damages to persons injured by violation of law.
“In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every ease of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.
Ҥ 9. Remedies of persons damaged; election; witnesses.
“Any person or persons claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each ease elect which one of the two methods of procedure herein provided for he or they will adopt. . . .
Ҥ 13. Complaints to and investigations by Commission.
“(1) Complaint to Commission of violation of law by carrier; reparation; investigation.
“Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.
Ҥ 16. Orders of Commission and enforcement thereof.
“(1) Award of damages.
“If, after hearing on a complaint made as provided in section 13 of this title, the Commission shall determine that anj^ party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum- to which he is entitled on or before a day named.
“(2) Proceedings in courts to enforce orders; costs; attorney’s fee.
“If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent state of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” Interstate Commerce Act §§ 8, 9, 13 (1) and 16 (1) and (2), 49 U. S. C. §§ 8, 9,13 (1) and 16 (1) and (2) (1964 ed.).
Ҥ 17 (9) Judicial relief from decisions, etc., upon denial or other disposition of application for rehearing, etc.
“When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” Interstate Commerce Act § 17 (9), 49 U. S. C. §17 (9) (1964 ed.).
This provision was not added until 1940, Transportation Act of 1940, 54 Stat. 916, and is basically a provision requiring exhaustion of administrative remedies prior to resort to the courts. The first provision for direct judicial review of Commission orders appeared in §5 of the Hepburn Act of 1906, 34 Stat. 590, 592, which was phrased in terms of venue only. For ease of reference, we will refer to direct review proceedings as § 17 (9) proceedings.
The above-described provisions of. the Judicial Code read in pertinent part:
“§ 1336. Interstate Commerce Commission’s orders.
“(a) Except, as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order of the Interstate Commerce Commission.
“§ 1398. Interstate Commerce Commission’s orders.
“(a) Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.
Ҥ2321. Procedure generally; process.
“The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. . . .
Ҥ 2322. United States as party.
“All actions specified in section 2321 of this title shall be brought by or against the United States.
Ҥ2323. Duties of Attorney General; intervenors.
“The Attorney General shall represent the Government in the actions specified in section 2321 of this title ... in the district courts, and in the Supreme Court of the United States upon appeal from the district courts.
“The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of'such party. . . .
Ҥ2325. Injunctions; three-judge court required.
“An interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission shall not be granted unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” 28 U. S. C. §§1336 (a), 1398 (a), 2321-2323, 2325 (1964 ed.).
As is readily apparent from this opinion, the statutory provisions governing this case and the companion case, Console>, post, are an historical patchwork subject to more than one interpretation. The entire matter is surely ripe for congressional consideration, for it is of continuing significance and the competing considerations of yesterday may not be those of overriding importance today.
Frequent Commission practice, illustrated by the procedure adopted in the present case, is to separate from the issue of shipper’s damages issues respecting the existence of a statutory violation and the availability of statutory defenses such as the statute of limitations defense asserted by respondents and to try the latter issues first. The core of the dispute here concerns the forum for review of Commission findings on such issues of violation and limitations.
Section 16 (2), of course, does not limit the carrier to introducing opposing evidence to rebut the prima facie effect of the Commission’s order. It may also challenge the admissibility of the order on the grounds, for example, that the Commission did not afford the carrier a fair hearing or that the order was not based upon substantial evidence, Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, 126. But if a Commission order containing findings on all matters essential to the shipper’s recovery is admitted and the carrier produces no opposing evidence, the findings and order of the Commission may not be rejected by the jury and the shipper is entitled to judgment. Meeker v. Lehigh Valley R. Co., 236 U. S. 434, 439; see Pennsylvania R. Co. v. Jacoby & Co., 242 U. S. 89, 94 (dictum).
In Louisville & Nashville R. Co. v. Sloss-Sheffield Co., 269 U. S. 217, the Court considered a carrier’s statute of limitations defense on review of a judgment for the shipper in a § 16 (2) enforcement action. Accord, Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412. Thus, it would seem beyond question that respondents here could have presented in Thomson’s New York action the defense on which they prevailed in the courts below.
Venue of suits to set aside the Commission’s order is limited by 28 U. S. C. § 1398 (1964 ed.) to the district in which the party bringing the action has its residence or principal office. Section 16 (2) provides for venue in the district where the shipper resides “or in which is located the principal operating office of the carrier, or through which the road of the carrier runs . . . .” As § 16 (2) does not expressly provide for venue in the district in which the carrier resides and that district may not coincide with one of the districts that are listed, it would appear that in some cases in which the carrier elects to file its § 17 (9) action in the district of its residence, rather than the district of its principal office, the district chosen by the carrier will not be one where the shipper could originally have brought suit. It was primarily similar venue problems that prompted enactment in 1964 of 28 U. S. C. § 1336 (b), which provides that exclusive jurisdiction of a § 17 (9) action to set aside a Commission order arising out of a primary jurisdiction reference to the Commission shall be vested in the referring court. 1964-2 U. S. Code Cong, and Admin. News 3235-3239. When the § 17 (9) action is filed first, however, venue difficulties are less likely to occur as the § 16 (2) venue provisions are in general broader than those applicable to § 17 (9) actions. In any event, venue objections may perhaps be overcome by transfer of the § 17 (9) action, 28 U. S. C. § 1404 (1964 ed.), or by application of the doctrine of waiver, see 3 Moore, Federal Practice ¶ 13.16, at p. 45 (2d ed. 1964) (venue of counterclaims by interveners).
“Except as otherwise provided by law,” 28 TJ. S. C. § 1398 (a) (1964 ed.), quoted, supra, n. 3, limits venue of direct review proceedings to the judicial district of the residence or principal place of business of the party bringing the action. Since we interpret § 16 (2) as precluding a carrier from bringing an enforcement action in any court but the enforcement court, that section provides venue for the carrier’s cross-action under the “except as otherwise provided by law” provision of § 1398 (a). In the rare cases when the enforcement action is brought in state, rather than federal, court it will of course not be possible for the carrier to bring a § 17 (9) cross-action.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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] |
[
65
] |
RALSTON, WARDEN v. ROBINSON
No. 80-2049.
Argued October 5, 1981
Decided December 2, 1981
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 221. Stevens, J., filed a dissenting opinion, in which Brennan and O'Connor, JJ., joined, post, p. 223.
David A. Strauss argued the cause pro hac vice for petitioner. With him on the briefs were Solicitor General Lee, ■ Assistant Attorney General Jensen, Deputy Solicitor General Frey, and William G. Otis.
Jerold S. Solovy, by appointment of the Court, 453 U. S. 921, argued the cause and filed a brief for respondent.
Justice Marshall
delivered the opinion of the Court.
We granted certiorari in this case, 452 U. S. 960 (1981), to decide whether a youth offender who is sentenced to a consecutive adult term of imprisonment while serving a sentence imposed under the Federal Youth Corrections Act (YCA), 18 U. S. C. §5005 et seq., must receive YCA treatment for the remainder of his youth sentence. The Courts of Appeals are in conflict on this issue. We conclude that the YCA does not require such treatment if the judge imposing the subsequent adult sentence determines that the youth will not benefit from further YCA treatment during the remainder of his youth sentence. Accordingly, we reverse the judgment of the Court of Appeals.
I
In 1974 respondent, who was 17 years old, pleaded guilty to a charge of second-degree murder and was sentenced to a 10-year term of imprisonment under the YCA, § 5010(c). The sentencing judge recommended that he be placed at the Kennedy Youth Center in Morgantown, W. Va.; that he not be released until he had attained at least an eighth-grade level of education and had successfully completed a trade of his own choosing; and that he participate in intensive, individual therapy on a weekly basis and undergo a complete psychological reevaluation before being returned to the community. The sentence, like all YCA sentences, contemplated that the respondent be segregated from adult offenders. See 18 U. S. C. §5011.
Respondent’s subsequent conduct has not been exemplary. In 1975, while incarcerated at the Federal Correctional Institution (FCI) at Ashland, Ky., respondent was found guilty of assaulting a federal officer by use of a dangerous weapon, in violation of 18 U. S. C. §§ 111 and 1114. The United States District Court for the Eastern District of Kentucky imposed an additional 10-year adult sentence and stated in its commitment order: “The Court finds that the defendant will not benefit any further under thé provisions of the [YCA] and declines to sentence under said act.” After receiving a presentence report, the judge reduced the sentence to 66 months, to be served consecutively to the YCA sentence. The judge also recommended that respondent be transferred from the Kentucky institution “to a facility providing greater security.”
Respondent was placed in the Federal Correctional Institution at Oxford, Wis. Subsequent disciplinary problems resulted in his transfer to the FCI at Lompoc, Cal. In 1977, while confined in that institution, respondent pleaded guilty to another charge of assaulting a federal officer. The United States District Court for the Central District of California sentenced him under 18 U. S. C. § 5010(d) to an adult sentence of one year and one day and ordered that the sentence run consecutive to and not concurrent with the sentence that respondent was then serving.
After the second adult sentence, the Bureau of Prisons classified respondent as an adult offender. Accordingly, at least since that time, respondent has not been segregated from the adult prisoners, and has not been offered the YCA rehabilitative treatment that the initial trial court recommended. The Bureau of Prisons acted pursuant to a written policy when it classified respondent as an adult. In implementing the YCA’s treatment and segregation requirements, the Bureau narrowly defines a “YCA Inmate” as “any inmate sentenced under 18 USC Section 5010(b), (c), or (e) who is not also sentenced to a concurrent or consecutive adult term, whether state or federal.” Bureau of Prisons Policy Statement No. 5215.2, p. 1 (Dec. 12, 1978) (emphasis added).
Respondent exhausted his administrative remedies and filed a petition for habeas corpus on May 25, 1978. The Magistrate recommended transfer to an institution in which respondent would be segregated from adults and would receive YCA treatment. The United States District Court for the Southern District of Illinois issued an order granting the writ, which was affirmed by the United States Court of Appeals for the Seventh Circuit. 642 F. 2d 1077 (1981). The Court of Appeals held that the YCA forbids the reevaluation of a YCA sentence by a second judge, even if the second judge makes an explicit finding that further YCA treatment would not benefit the offender. The Court of Appeals also rejected petitioner’s broader argument that the YCA vests discretion in the Bureau of Prisons to modify the treatment terms of a YCA sentence when the offender has received a consecutive or concurrent adult sentence for a felony.
On January 9, 1982, respondent will be conditionally released from his YCA sentence and will begin his first adult sentence.
II
In Dorszynski v. United States, 418 U. S. 424 (1974), this Court exhaustively analyzed the history, structure, and underlying policies of the YCA. From that analysis, and from the language of the YCA, two relevant principles emerge. First, the YCA strongly endorses the discretionary power of a judge to choose among available sentencing options. Second, the YCA prescribes certain basic conditions of treatment for YCA offenders.
In Dorszynski, The Chief Justice, writing for the Court, found that the principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism:
“To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them . . . : first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U. S. C. §§ 5010(b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U. S. C. § 5010(a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act.” Id., at 438.
If a court wishes to sentence a youth to an adult sentence, it is authorized to do so under § 5010(d). In Dorszynski, a majority of this Court held that a judge must make an explicit “no benefit” finding to invoke this subsection, but need not give a statement of reasons to justify his decision. Both the majority and concurring opinions emphasized that the YCA was not intended to disturb the broad discretion traditionally available to federal judges in choosing among appropriate sentences. 418 U. S., at 436-442; id., at 450 (Marshall, J., with whom Douglas, Brennan, and Stewart, JJ., joined, concurring in judgment).
We reiterated that trial courts retain significant control over sentencing options in Durst v. United States, 434 U. S. 542 (1978), where we unanimously held that the YCA permits the court to impose a fine or require restitution when it places a youth on probation under § 5010(a). In his opinion for the Court, Justice Brennan explained the underlying purposes of the Act:
“The core concept of the YCA, like that of England’s Borstal System upon which it is modeled, is that rehabilitative treatment should be substituted for retribution as a sentencing goal. Both the Borstal System and the YCA incorporate three features thought essential to the operation of a successful rehabilitative treatment program: flexibility in choosing among a variety of treatment settings and programs tailored to individual needs; separation of youth offenders from hardened criminals; and careful and flexible control of the duration of commitment and of supervised release.” Id., at 545-546 (footnotes omitted).
A second important feature of the YCA is that it empowers, and indeed requires, a judge to prescribe certain basic conditions of YCA treatment. This prescription ensures that treatable youth offenders are segregated from adult criminals, and that they receive appropriate rehabilitative care.
The need to segregate youth from adult criminals drew special attention in the legislative history. Proponents of the statute criticized the practice of “herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and . . . subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques . . . H. R. Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950); see 96 Cong. Rec. 15036 (1950). This concern was expressed in the statutory requirement that offenders receiving youth sentences be segregated from adults. 18 U. S. C. §5011. More generally, “[t]he panoply of treatment options available under the Act is but further evidence that the YCA program was intended to be sufficiently comprehensive to deal with all but the ‘incorrigible’ youth.” Dorszynski, supra, at 449 (Marshall, J., concurring in judgment) (footnote omitted).
The YCA allocates responsibility for determining essential treatment conditions in an unusual way. Under traditional sentencing statutes, prison officials exercise almost unlimited discretion in imposing the security and treatment conditions that they believe appropriate. The YCA is different. By determining that the youth offender should be sentenced under the YCA, the trial court in effect decides two essential conditions of confinement: the Bureau of Prisons must comply with both the segregation and treatment requirements of the YCA. 18 U. S. C. §5011. See Brown v. Carlson, 431 F. Supp. 755, 765 (WD Wis. 1977); Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (statement of Judge Parker) (hereinafter 1949 Senate Hearings); Report to the Judicial Conference of the Committee on Punishment for Crime 8-9 (1942). The Bureau retains significant discretion in determining the conditions of confinement, see infra, at 211, but its discretion is limited by these requirements.
The history of the YCA’s passage buttresses the conclusion that correctional authorities may not exercise any of the sentencing powers established in the Act:
“The initial legislative proposal, an American Law Institute model Act, removed the power to sentence eligible offenders from the trial judges altogether and reposed that power in a correctional authority. Not surprisingly, that proposal brought swift and sharp criticism from the judges whose power was to be sharply curtailed. The next proposal, by the Judicial Conference, involved shared sentencing powers between trial judges and correctional authorities. It met with similar criticism. The 1949 proposal, which was finally enacted into law, retained sentencing power in the trial judge.” Dorszynski, 418 U. S., at 446-447 (Marshall, J., with whom Douglas, Brennan, and Stewart, JJ., joined, concurring in judgment) (footnotes omitted).
This unusual responsibility for treatment conditions demands that the sentencing judge thoroughly understand all available facts relevant to the offender’s treatment needs. Thus, the statute provides the trial court with the opportunity to obtain an extremely comprehensive presentence report, 18 U. S. C. § 5010(e). See S. Rep. No. 1180, 81st Cong., 1st Sess., 5 (1949); 1949 Senate Hearings, at 18-19 (statement of Chief Judge Laws); Hearings on H. R. 2139 and H. R. 2140 Before Subcommittee No. 3 of the House Committee on the Judiciary, 78th Cong., 1st Sess., 63-64 (1943) (statement of Judge Laws). With this framework in mind, we will review the parties’ statutory arguments.
III
Respondent asserts that the express language of the YCA prohibits any modification of the basic terms of a YCA sentence before its expiration. Respondent first points to § 5010(c), which authorizes a court to “sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period [beyond six years] that may be authorized by law for the offense ... or until discharged by the [United States Parole] Commission.” Respondent also relies on §5011, which provides that “[Committed youth offenders . . . shall undergo treatment in institutions . . . that will provide the essential varieties of treatment,” and that “[i]nsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment” (emphasis added). From this language, respondent argues that the essential segregation and treatment requirements of the initial YCA sentence cannot be modified before the sentence expires.
We are not persuaded by this interpretation. Section 5010 enables the sentencing court to determine whether a youth offender would benefit from treatment under the YCA. If the original sentencing court determines that such treatment would be beneficial, it may sentence the youth offender under § 5010(a), (b), or (c), or it may request additional information under § 5010(e). Once the original sentencing court has made this determination and has sentenced the offender under the YCA, §5011 requires the Bureau of Prisons to carry out the mandate of the court with respect to the offender’s segregation and treatment needs. We do not read that language as requiring the judge to make an irrevocable determination of segregation or treatment needs, or as precluding a subsequent judge from redetermining those needs in light of intervening events.
At the other extreme, petitioner asserts that the YCA gives the Bureau of Prisons independent statutory authority to determine that a YCA offender will not benefit from YCA treatment. Petitioner believes that the Bureau can make such a determination at any time, whether or not an offender has committed a subsequent offense. We reject this extraordinarily broad interpretation, and any interpretation that would grant the Bureau independent authority to deny an offender the treatment and segregation from adults that a sentencing court mandates.
Prison officials do have a significant degree of discretionary authority under the YCA relevant to the treatment of youth offenders. The Bureau is responsible for studying the treatment needs of committed youth offenders, 18 U. S. C. § 5014, and for confining offenders and affording treatment “under such conditions as [the Director of the Bureau] believes best designed for the protection of the public.” 18 U. S. C. § 5015(a)(3). It may commit or transfer offenders to any appropriate agency or institution, 18 U. S. C. §§ 5015(a)(2) and (b), and may provide treatment in a wide variety of institutional settings. 18 U. S. C. §5011. Moreover, it has authority to recommend conditional release and otherwise to consult with the United States Parole Commission in the implementation of the YCA. 18 U. S. C. §§5014, 5015(a)(1), 5016, 5017.
However, the statute does not give the Bureau any discretion to modify the basic terms of treatment that a judge imposes under §§5010 and 5011. When a judge imposes a youth sentence under the YCA, the sentence commits the youth to the custody of the Attorney General “for treatment and supervision pursuant to this chapter.” 18 U. S. C. §§ 5010(b) and (c). Section 5011 provides two elements of mandatory treatment: first, youths must undergo treatment in an appropriate institution that will “provide the essential varieties of treatment”; second, “[ijnsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.” These two elements of the program are statutorily mandated, and the discretion of the Bureau is limited to the flexible discharge of its responsibilities within these two broad constraints.
Even if the Bureau asserted only the right to treat YCA offenders as adults in accordance with its Policy Statement, see swpra, at 205, this assertion of power is much too broad. The policy would treat any youth offender with an adult consecutive sentence as an adult — even if 15 years of his YCA sentence remained and the adult sentence were only for 1 year. It is unreasonable, indeed callous, to assume that such an offender could not receive any further benefit from YCA treatment. This example underscores the importance of leaving such decisions to the sound discretion of a federal sentencing judge, rather than to prison officials. The fatal defect in petitioner’s argument is that it permits prison officials to make a determination — whether a YCA offender will benefit from YCA treatment — that the statute commits to the sentencing judge.
IV
No provision of the YCA explicitly governs the issue before us. The statute describes the sentencing options available to a judge after conviction but does not elucidate what options would be available after the defendant has been convicted of a second crime while serving his initial sentence. The purposes of the statute, however, revealed in its structure and legislative history, compel the conclusion that a court faced with a choice of sentences for a youth offender still serving a YCA term is not deprived of the option of finding no further benefit in YCA treatment for the remainder of the term.
Under § 5010(d), a court sentencing an offender who is serving a youth term may make a “no benefit” finding and then “sentence the youth offender under any other applicable penalty provision.” A judge is thus authorized to impose a consecutive adult term, as the second judge did in this case. However, the court also has before it the question whether the offender will benefit from YCA treatment during the remainder of the YCA term. Although § 5010(d) does not expressly authorize a second judge to make a “no benefit” finding with respect to the remainder of an unexpired YCA sentence, we believe that it implicitly authorizes such a determination, as well as the determination that YCA treatment during the consecutive sentence would not be beneficial. It assuredly does not authorize prison officials to make either determination.
Our review of the legislative history reveals no explicit discussion of the trial court’s options in sentencing a youth who commits a crime while serving a YCA sentence; Congress apparently did not consider this specific problem. But Congress did understand that the original treatment imposed by the sentencing judge might fail, and that protective as well as rehabilitative purposes might justify a lengthy confinement under § 5010(c). In commenting on that section, the House Report states: “This affords opportunity for the sentencing court to avail itself of the provisions of this bill and at the same time insure protection of the public if efforts at rehabilitation fail.” H. R. Rep. No. 2979, 81st Cong., 2d Sess., 4 (1950).
The history and structure of the YCA discussed above, supra, at 206-210, demonstrate Congress’ intent that a court — but not prison officials — may require a youth offender to serve the remainder of a YCA sentence as an adult after the offender has received a consecutive adult term. First, the YCA prescribes certain basic elements of treatment, segregation from adults and individualized, rehabilitative programs, as part of a YCA sentence. Second, sponsors of the Act repeatedly stated that its purpose was to prevent youths from becoming recidivists, and to insulate them from the insidious influence of more experienced adult criminals. Housing incorrigible youths with youths who show promise of rehabilitation would not serve this purpose. Third, the decision whether to employ the unique treatment methods of the YCA is exclusively committed to the discretion of the sentencing judge, rather than to prison officials. If segregation of a particular class of youths from adults would be futile, that is a decision to be made by a court, not by prison authorities.
Finally, in light of the above, we do not believe that when Congress withdrew from prison officials some of their traditional authority to adjust the conditions of confinement over time, Congress intended that no one exercise that authority. The result would be an inflexible rule requiring, in many cases, the continuation of futile YCA treatment. The only reasonable conclusion is that Congress reposed that authority in the court, the institution that the YCA explicitly invests with the discretion to make the original decision about basic treatment conditions.
We find further support for this conclusion from the fact that, in several circumstances, the YCA permits a youth offender initially sentenced under the YCA to be treated as an adult for what would otherwise be the remainder of the YCA sentence. For example, the statute permits a court to sentence a defendant to an adult term if he commits an adult offense after receiving a suspended sentence and probation under § 5010(a). If respondent had been sentenced initially to probation under § 5010(a) and had been subsequently convicted of criminal assault, the court could have imposed an adult sentence for the original crime, for the assault, or for both, to begin immediately. In fact, respondent committed his second crime while incarcerated. It hardly seems logical to prohibit an immediate modification of respondent’s treatment conditions simply because he originally received the harsher sentence of YCA incarceration.
Moreover, respondent concedes that the statute permits a judge to impose a concurrent adult sentence on an offender who is serving a YCA term. Such an adult sentence would commence at the time that it was imposed and would modify the YCA treatment that the offender would otherwise receive for the remainder of his term. Finally, every offender sentenced under the YCA must be released conditionally two years prior to the termination of his sentence. 18 U. S. C. § 5017. However, if the offender violates the terms of this conditional release by committing a crime, the conditional release may be revoked and an adult sentence may immediately be imposed, notwithstanding the fact that the youth sentence has not yet expired. Respondent concedes as much, since he does not challenge the commencement of his adult term in January 1982, even though two years of his youth sentence will still remain.
We therefore conclude that a judge who sentences a youth offender to a consecutive adult term may require that the offender also serve the remainder of his youth sentence as an adult. Only this interpretation can give meaning to both the language and the underlying purposes of the YCA. “[W]e cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate.” FTC v. Fred Meyer, Inc., 390 U. S. 341, 349 (1968). Accordingly, we hold that a judge may modify the essential terms of treatment of a continuing YCA sentence if he finds that such treatment would not benefit the offender further.
V
The standards that a district judge should apply in determining whether an offender will obtain any further benefit from YCA treatment are no different from the standards applied in imposing a sentence originally. Of course, the judge should consider the fact that the offender has been convicted of another crime. In light of all relevant factors, the court can exercise its sound discretion in determining whether the offender should receive youth or adult treatment for the remainder of his term. The court need not adopt a rigid rule of the type urged by petitioner. Rather, it should make a judgment informed by both the rehabilitative purposes of the YCA and the realistic circumstances of the offender.
Applying these principles to the facts before us, we conclude that the second sentencing judge made a sufficient finding that respondent would not benefit from YCA treatment during the remainder of his youth term. The judge found that respondent would not benefit “further” under the YCA, and he declined to impose a youth sentence under that Act, imposing instead a consecutive adult sentence. In the future, we expect that judges will eliminate interpretive difficulties by making an explicit “no benefit” finding with respect to the remainder of the YCA sentence.
In conclusion, we are convinced that Congress did not intend that a person who commits serious crimes while serving a YCA sentence should automatically receive treatment that has proved futile. On the other hand, Congress carefully designed this statute to require a sentencing judge, rather than the Bureau of Prisons, to evaluate whether the basic elements of treatment — segregation from adults and individualized programs — are appropriate and consistent with YCA policies over time. Our interpretation comports with the overriding legislative purpose that “once a person [is] committed for treatment under the Act, the execution of sentence [is] to fit the person, not the crime.” Dorszynski, 418 U. S., at 434.
We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.
It is so ordered.
In this case, the United States Court of Appeals for the Seventh Circuit gave an affirmative answer to the question presented. See 642 F. 2d 1077 (1981). The United States Court of Appeals for the Third Circuit, Thompson v. Carlson, 624 F. 2d 415 (1980), gave a negative answer, holding that a judge’s determination that the offender would not benefit from YCA treatment warrants treating him immediately as an adult. The United States Court of Appeals for the Fourth Circuit, Outing v. Bell, 632 F. 2d 1144 (1980), cert. denied sub nom. Outing v. Smith, 450 U. S. 1001 (1981), also gave a negative answer, holding that the policy of prison officials warrants treating him as an adult.
Respondent asserts that he has never been segregated from non-YCA prisoners nor received special YCA treatment. Although petitioner disputes this assertion, the record of frequent transfers lends some credence to respondent’s claim. Given our disposition of this case, we need not address this issue.
Under § 5010(b) and § 5017(c), a court is authorized to sentence an offender to an indeterminate YCA term of six years, even if the adult maximum sentence would be a lesser term. Under § 5010(c) and § 5017(d), if a court finds that the offender may not be able to derive maximum benefit from YCA treatment within six years, it may impose a YCA term of any length authorized by law for the crimes of which the offender is convicted. Respondent was initially sentenced under the latter provisions to a 10-year term; the maximum adult penalty for his crime (second-degree murder) was life imprisonment.
Section 5011 provides in full:
“Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.”
Although the Courts of Appeals consistently have rejected the argument that the Bureau of Prisons may ignore the obligations under § 5011, they have not agreed on the degree of the flexibility the Bureau possesses in complying with the segregation requirement. This conflict arises from the requirement in § 5011 that certain obligations be discharged “[i]nsofar as practical.” See n. 4, supra. See, e. g., Watts v. Hadden, 651 F. 2d 1354 (CA10 1981); Outing v. Bell, 632 F. 2d 1144 (CA4 1980), cert. denied sub nom. Outing v. Smith, 450 U. S. 1001 (1981); United States ex rel. Dancy v. Arnold, 572 F. 2d 107 (CA3 1978); Harvin v. United States, 144 U. S. App. D. C. 199, 445 F. 2d 675 (en banc), cert. denied, 404 U. S. 943 (1971); Brown v. Carlson, 431 F. Supp. 755 (WD Wis. 1977); Johnson v. Bell, 487 F. Supp. 977 (ED Mich. 1980).
We need not address the issue of the scope of the practicality exception in this case because petitioner’s reliance on it is misplaced. Petitioner argues that because some “hardened” youths may be serving YCA sentences, it is “impractical” to segregate them from adults. The sentencing courts, however, determined that these “hardened” youths would benefit from YCA treatment and consequently should be segregated from adults and integrated with other youth offenders. Petitioner really questions the wisdom, not the practicality, of that determination.
The same explanation was offered at the Senate hearings by the Chairman of the Committee that drafted the bill. 1949 Senate Hearings, at 62 (statement of Chief Judge Phillips). See also id., at 13 (statement of Chief Judge Laws) (section is to be used “if the judge feels that a youth offender convicted of an offense calling for a long term under existing statutes might not respond to treatment within 6 years or that so short a term might have an adverse effect on enforcement of the law . . .”).
In other circumstances, the YCA contemplates reevaluation of the initial sentence — a judge may reduce the severity of the terms of commitment in light of changed circumstances. The YCA does not disturb “the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation.” 18 U. S. C. § 5023. The YCA also permits a court to unconditionally discharge a youth on probation prior to the expiration of the probationary period and to issue a certificate to that effect. 18 U. S. C. § 5021. See Thompson v. Carlson, 624 F. 2d, at 421.
By virtue of § 5023(a), the YCA incorporates 18 U. S. C. § 3653. Under the latter section, if a court has suspended the imposition of sentence and placed an offender on probation, the court, after revoking probation, may impose any sentence that it might have imposed originally. See generally Durst v. United States, 434 U. S. 542, 551 (1978) (§ 5023(a) “pre-servéis] to sentencing judges their powers under the general probation statute when sentencing youth offenders to probation under § 5010(a)”). Section 5010(a) also authorizes the court to impose a YCA sentence but suspend its execution. If such an offender commits a crime while on probation, the court may require him to begin serving the YCA sentence immediately, or the court may impose an adult sentence for the second crime.
We have no doubt that the second sentencing judge could have modified respondent’s YCA treatment terms by imposing a concurrent sentence. The judge did not, however, avail himself of that option.
It would be anomalous to permit a concurrent sentence to modify the terms of the remainder of a YCA sentence but not to permit a consecutive term to have that effect, since a concurrent sentence is traditionally imposed as a less severe sanction than a consecutive sentence. See National Advisory Commission on Criminal Standards and Goals, Sentencing Standard 5.6 (1973); A. Campbell, Law of Sentencing § 76 (1978). Moreover, a consecutive sentence may be the preferable form of sentence for an offense committed while serving a sentence for a prior offense. See U. S. Dept, of Justice, Uniform Law Commissioners’ Model Sentencing and Corrections Act §3-107(c) (1979).
We see no relevant difference in the fact that concurrent sentences traditionally take effect immediately. As we hold today, a judge imposing a consecutive adult sentence may find that continued YCA treatment during the unexpired term would be futile, and his finding may take effect immediately. In either case, the YCA permits a judge to effectuate his finding with respect to whether future YCA treatment would be beneficial. Of course, a concurrent sentence of a given length will result in a shorter ultimate sentence than a consecutive sentence of that length; but a judge wishing to impose a longer ultimate sentence may simply increase the length of the concurrent sentence accordingly.
The unusual characteristics of a YCA sentence answer respondent’s complaint that a second judge cannot “revoke” the original sentence. To be sure, a judge’s sentence is traditionally left undisturbed, even when subsequent events indicate that the original sentence was unduly lenient. Such a sentence cannot be “revoked,” i. e., a second judge cannot increase its length. On the other hand, tradition has vested wide discretion in prison officials to tailor conditions of confinement to the security requirements and treatment needs of the offender. A prison official’s modification of such conditions because of an offender’s misconduct would not be considered a “revocation” of the initial sentence. It is simply an appropriate recognition of the offender’s changed circumstances. We think that a judge’s modification is no different as a matter of policy. For the same reasons, we do not think that the second judge’s modification of the conditions of the YCA sentence in light of the offender’s changed circumstances is an impermissible review of the first judge’s discretionary decision.
The dissenting opinion asserts that our interpretation of congressional intent is inconsistent with the common-law rule that “‘a punishment already partly suffered be not increased.’ ” Post, at 223. That common-law rule simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances. For example, a court may impose a suspended sentence and probation, under the general probation statute or under the YCA. 18 U. S. C. §3651 et seq., § 5010. If the defendant violates the terms of his probation, the court may “increase” the punishment by requiring him to serve the initial sentence. Here, the statute permits a judge to modify the conditions of a YCA sentence if the offender is convicted of a subsequent adult crime and if further YCA treatment would be futile. In each case, the sentencing statute invests the court with the power to modify conditions in light of the subsequent offense.
The dissent reviews selective portions of the legislative history but never addresses a critical point. When Congress decided to invest the court with unusual authority over treatment conditions and to deny such authority to prison officials, it did not intend that no institution would have the authority to modify treatment conditions which become futile over time. Justice Stevens candidly admits that the interpretation he recommends may not “serve any useful purpose for this particular offender.” Post, at 233-234. We do not believe that Congress was so shortsighted. In examining the sentencing options that the YCA grants to federal judges, we refuse to close our eyes to Congress’ unmistakable rehabilitative intent.
Apparently, the Court of Appeals believed that a rehabilitative purpose may have existed here. However, given the facts of this ease, any such belief is sheer speculation. After all, the second judge found that respondent would not benefit “further” from YCA treatment. In future cases, we emphasize, the sentencing judge has the responsibility for determining whether an offender would derive any rehabilitative benefit from receiving continued YCA treatment prior to serving an adult sentence.
The judge’s recommendation that respondent be transferred “to a facility providing greater security” is additional evidence that the judge did not believe that respondent would derive further benefit from YCA treatment.
We need not address the question whether a judge may modify the basic treatment terms of a youth sentence whose length exceeds the maximum penalty authorized by law for an adult, since respondent’s YCA sentence was imposed under § 5010(c), not § 5010(b). We recognize that if the basic treatment elements of a YCA sentence under § 5010(b) are modified at such a time that a youth effectively serves an adult sentence of greater length than an adult could receive, there would be a serious issue whether such a sentence is authorized by any statute and, if so, whether it violates the Equal Protection Clause. Cf. Carter v. United States, 113 U. S. App. D. C. 123, 125, 306 F. 2d 283, 285 (1962) (longer term under YCA constitutional, “essentially because such confinement cannot be equated with incarceration in an ordinary prison”) (Burger, J.). We assume that district judges will keep these considerations in mind when deciding whether to modify YCA treatment terms of a sentence imposed under § 5010(b).
The dissent insists that the quid pro quo argument applies even to a sentence under § 5010(c), because such a sentence is “longer than an adult would generally receive.” Post, at 231. Whether respondent’s sentence was longer than he would have received as an adult is speculation — as is the suggestion that respondent might not have pleaded guilty had he known that the YCA conditions of his unexpired term could be converted to adult conditions if he were later to commit an adult crime and if the second judge were to find that further YCA treatment would be futile.
Respondent argues that a statutory entitlement to segregation and treatment exists, and that a judge’s subsequent modification of those conditions is a deprivation of due process and equal protection and a violation of double jeopardy. Because the lower court had no occasion to address these issues, 642 P. 2d, at 1079, n. 4, we will not address them in the first instance.
The dissenting opinion implies that our interpretation of the statute may violate the Double Jeopardy Clause. Post, at 224, n. 3. Although the issue is not properly before us, the suggestion deserves a response. Congress intended that a YCA sentence contain within it the possibility that, if the offender commits a subsequent offense, the court may modify the YCA treatment terms. Such a scheme hardly constitutes multiple punishment, since the offender has,' by his own actions, triggered the condition that permits appropriate modification of the terms of confinement. After all, the imposition of confinement when an offender violates his term of probation has never been considered to raise a serious double jeopardy problem. See United States v. DiFrancesco, 449 U. S. 117, 137 (1980); id., at 148 (no double jeopardy problem because defendant is on notice that the sentence is conditional, and because “revocation of parole or probation only results from a change in circumstance subsequent to the grant of parole or probation”) (BREnnan, J., with whom White, Marshall, and Stevens, JJ., joined, dissenting). See also Ex parte Lange, 18 Wall. 163, 168 (1874) (Double Jeopardy Clause offers “complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence”) (emphasis added).
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
8
] |
REO MOTORS, INC. v. COMMISSIONER OF INTERNAL REVENUE.
No. 59.
Argued November 10, 14, 1949.
Decided January 9, 1950.
James O. Wynn argued the cause for petitioner. With him on the brief was N. Barr Miller.
Oscar H. Davis argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Melva M. Graney.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
An asserted conflict between the decision below and that of the Court of Appeals for the Fifth Circuit in Commissioner v. Moore, Inc., 151 F. 2d 527, made this an appropriate case for our review on writ of certiorari. A recital of the facts must precede definition of the issue.
Petitioner is a Michigan corporation engaged in the manufacture of motor vehicles. On February 1, 1941, Reo Sales Corp., a wholly-owned subsidiary, was dissolved and all of its assets, subject to all its liabilities, were transferred to petitioner. At the date of dissolution, Reo Sales was indebted to petitioner in an amount greater than the value of its net assets. Consequently, its stock, which had an adjusted basis in petitioner’s hands of $1,551,902.79, was worthless. This loss was a long-term capital loss under the law applicable in 1941. It was so claimed by petitioner and allowed by the Commissioner.
Petitioner realized no gains from the sale or exchange of capital assets in 1941. Its gross income amounted to $2,573,259.89, while allowable deductions under Chapter 1 of the Internal Revenue Code, exclusive of the capital loss on Reo Sales stock, amounted to $2,215,727.08. With the Reo Sales stock loss included, petitioner’s allowable deductions exceeded its gross income by $1,194,369.98.
Under the tax laws applicable in 1941, petitioner’s capital loss on Reo Sales stock could not have been utilized as a net operating loss to be carried over to subsequent years. Section 122 (a) of the Code defines “net operating loss” as “the excess of the deductions allowed by this chapter over the gross income, with the exceptions and limitations provided in subsection (d).” The exceptions outlined in § 122 (d) included the following, which is pertinent here:
“(4) Long-term capital gains and long-term capital losses shall be taken into account without regard to the provisions of section 117 (b). As so computed the amount deductible on account of long-term capital losses shall not exceed the amount includible on account of the long-term capital gains, and the amount deductible on account of short-term capital losses shall not exceed the amount includible on account of the short-term capital gains; . ...”
Since petitioner realized no long-term capital gains in 1941, its long-term capital loss on the Reo Sales stock could not enter into the computation of net operating loss.
In the Revenue Act of 1942, § 23 (g) of the Code, which defines capital losses, was amended by adding subsection (4). This amendment had the practical effect of making losses such as that suffered by petitioner in the dissolution of Reo Sales Corp. ordinary rather than capital losses. Under 1942 law, therefore, the exception set out in § 122 (d) (4) is inapplicable, and a loss of this kind may enter into the computation of net operating loss.
It is petitioner’s contention, reflected in its 1942 income tax returns, that although its loss in the liquidation of Reo Sales Corp. was incurred in 1941, determination of the amount of net operating loss was postponed until 1942, when it sought to carry over and deduct such net operating loss, and that the 1942 statutes therefore govern that determination. Since, under the 1942 statutes, its loss on Reo Sales stock was an ordinary loss, it claims the right to include that loss in the computation of net operating loss for carry-over and deduction from gross income in 1942. While § 101 of the Revenue Act of 1942 provides that “Except as otherwise expressly provided, the amendments made by this title shall be applicable only with respect to taxable years beginning after December 31, 1941,” petitioner contends that this simply means that such amendments shall be applicable only in computing tax liability for tax years after December 31, 1941.
The issue is, therefore, whether, in the computation of net operating loss, the governing statutes are those in effect during the year when the transaction occurred (1941), or whether the statutes in effect during the year when the net operating loss deduction is taken (1942) are controlling. The Commissioner’s disallowance of petitioner’s net operating loss deduction in 1942 was upheld by the Tax Court, 9 T. C. 314, and the Court of Appeals affirmed, 170 F. 2d 1001.
We think that a net operating loss must be computed on the basis of the tax laws applicable to the year in which the loss was suffered. What petitioner seeks here is not the kind of relief which the statute was designed to grant. It asks that the carry-over section be used as a vehicle by which it may take advantage of changes in the tax laws in years after the taxable event has occurred. We find nothing in the language or legislative history of the statutes to justify such an interpretation.
The scheme of the statute is this: Section 23 (s) of the Code permits as a deduction from gross income “the net operating loss deduction computed under section 122.” The amount of that deduction is determined in three separate steps. First, the net operating loss is determined. Section 122 (a) provides the definition and method of computation of net operating loss, specifically providing that the exceptions and limitations of § 122 (d) are applicable in its computation. Second, net operating loss having been determined, the amount and extent to which it may be utilized as a carry-over is set out in § 122 (b) (2), and as a carry-back in § 122 (b) (1). Finally, the amount which may actually be deducted from gross income under § 23 (s) is computed under the terms of § 122 (c). That section provides for the aggregation of permissible carry-overs and carry-backs and the application of certain adjustments thereto.
The starting point is thus the determination of net operating loss under § 122 (a). We may point briefly to several circumstances which, we think, require a holding that net operating loss must be computed solely with reference to the statutes in effect during the year when the loss occurred.
First, under petitioner’s theory, the net operating loss sustained in any given year would not be a fixed amount but would vary from year to year depending upon changes in the tax laws. But § 122 (a) defines net operating loss as “the excess of the deductions allowed by this chapter over the gross income.” Clearly, determination of the amount of gross income and of allowable deductions for any given year must depend upon the tax statutes in effect during that year. If, as petitioner contends, 1942 law governs although the loss occurred in 1941, it is difficult to see why the whole of its 1941 operations, and not merely the Reo Sales liquidation, should not be recomputed on the basis of the income and deduction provisions applicable in 1942. Petitioner does not suggest such a recomputation, in spite of the fact that the terms in which net operating loss is defined — “gross income” and “deductions allowed by this chapter” — are equally applicable in the computation of income taxes generally. And even if a distinction could be drawn, so far as applicable law is concerned, between computation of net operating loss and computation of ordinary tax liability, we should think it strained and anomalous to read § 122 (a) as defining net operating loss in this case as “the excess of the deductions allowed for 1942 incomes over the gross income earned in 1941 but computed according to 1942 law.”
Furthermore, the language of § 122 (b) negatives the contention that net operating loss for any given year is not a fixed amount but varies depending upon the law in effect during the year when the deduction is taken. Section 122 (b) (2), for example, states that “if for any taxable year the taxpayer has a net operating loss, such net operating loss” shall be a carry-over for the two succeeding years. Under petitioner’s interpretation, “such net operating loss” “for any taxable year” may be different amounts at different times. And, as in this case, what was no net operating loss at all for the year when the event occurred becomes a loss for that year through subsequent changes in the statutes. Similarly, in some cases in which the taxpayer had net income for the year under controlling law, subsequent changes in the law might produce a net operating loss for that year if petitioner’s construction of the statute prevailed. We find no warrant for the view that Congress intended that a statute designed to equalize tax burdens should be used to produce net losses where none had previously existed.
We also agree with the court below that the words of § 101 of the Revenue Act of 1942, which states that the amendments enacted therein “shall be applicable only with respect to taxable years beginning after December 31, 1941,” cannot be read to mean “shall be applicable only in computing tax liability for taxable years beginning after December 31, 1941.” To apply § 23 (g) (4) to establish a net operating loss is clearly to apply the 1942 amendment “with respect to” 1941, contrary to the statute.
Petitioner finds comfort in the fact that the 1924, 1926, 1928, and 1932 Revenue Acts, which permitted the carryover of net loss from an earlier year, expressly provided that such net loss should be computed under the law in effect during the earlier period, while the present Code contains no such provision. Two observations may be made: first, that in reviving carry-overs in 1939 after a seven year lapse, Congress patterned the new statute generally on the prior practice without any suggestion of change in this particular; and second, that while such express provisions were appropriate in Revenue Acts prior to the Code, when the law of a prior year was of no effect when superseded by a new Act unless specifically made applicable, the present Code has continuous application, and incorporation of previous statutes is unnecessary. Instead, the old provisions remain in effect for prior years, and general provisions, such as § 101 of the 1942 Act, give amendments prospective application only, unless otherwise specifically provided.
The result is that net operating loss must be computed solely on the basis of the statutes in effect during the taxable year when the loss was incurred. Only if such a loss exists under those statutes will a taxpayer have anything that may be carried over or back. § 122 (a) and (d). The amount of net operating loss which may be utilized as a carry-over or carry-back and the extent to which it may be used as an offset to net income in another year depend upon the law of the year in which the “carry” is effective, § 122 (b), while the net operating loss deduction which may be taken in any one year depends upon the law in effect during that year. §§23 (s) and 122 (c).
With respect to petitioner's other contentions, it is sufficient to say that they ignore the trichotomy plainly established with respect to § 122: determination of net operating loss; determination of the amount and extent of carry-over and carry-back; and determination of net operating loss deduction. The decision of the Court of Appeals is
Affirmed.
Mr. Justice Douglas took no part in the consideration or decision of this case.
337 U. S. 923.
Section 23 (g) of the Internal Revenue Code, 26 U. S. C. (1940 ed.) § 23 (g).
Section 122 (a) was amended by § 105 (e) (3) of the Revenue Act of 1942 to read . . with the exceptions, additions, and limitations provided in subsection (d).” (Italics added.)
Section 122 (d) (4) was amended by § 150 (e) of the Revenue Act of 1942 to read as follows:
“(4) Gains and losses from sales or exchanges of capital assets shall be taken into account without regard to the provisions of section 117 (b). As so computed the amount deductible on account of such losses shall not exceed the amount includible on account of such gains.”
It was this amendment that was involved in Commissioner v. Moore, Inc., 151 F. 2d 527. In 1941 Moore had a long-term capital loss of $17,025 and short-term capital gains of $2,844. Under § 122 (d) (4) as it stood in 1941 (see text, supra), long-term capital losses could not be deducted from short-term capital gains in computing net operating losses, while under the 1942 amendment the distinction between long and short-term capital losses was withdrawn. Taxpayer therefore had no net operating loss in 1941, but under the 1942 statute he would have had such a loss to the extent of his short-term capital gain of $2,844. The Court of Appeals for the Fifth Circuit approved such an offset in the computation of net operating loss to be carried over to 1942 and deducted in that year. That decision is obviously inconsistent with the view we take of the statute and must be disapproved.
Subsection (4), which was added by § 123 (a) (1) of the Revenue Act of 1942, provides that, for the purpose of determining capital losses, stock in a corporation affiliated with the taxpayer shall not be deemed a capital asset. “Affiliation” is defined in terms that clearly comprehend petitioner’s ownership of Reo Sales Corp.
See H. R. Rep. No. 855, 76th Cong., 1st Sess. (1939); S. Rep. No. 1631, 77th Cong., 2d Sess. (1942).
“ (a) Definition of net operating loss. — As usual in this section, the term 'net operating loss’ means the excess of the deductions allowed by this chapter over the gross income, with the exceptions and limitations provided in subsection (d).” See note 3, supra.
“(2) Net operating loss carry-over. — If for any taxable year the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-over for each of the two succeeding taxable years, except that the carry-over in the case of the second succeeding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the intervening taxable year . . .” computed in such a way that the carry-over must be used to offset certain nontaxable, as well as taxable, income. Section 122 (b) (1) is similar in language and theory.
“(c) Amount of net operating loss deduction. — The amount of the net operating loss deduction shall be the aggregate of the net operating loss carry-overs and of the net operating loss carry-backs to the taxable year reduced by the amount, if any, by which the net income (computed with the exceptions and limitations provided in subsection (d) (1), (2), (3), and (4)) exceeds, ... in the case of a corporation, the normal-tax net income (computed without such deduction and without the credit provided in section 26 (e)); ... .”
Italics added.
In commenting upon a similar possibility in connection with the net loss provisions of the Revenue Act of 1924, the House Committee on Ways and Means stated: “If capital losses were allowed as a deduction in computing the net loss, it would result in the anomalous situation of a taxpayer paying a tax in one year but at the same time having a net loss which he could carry over as a deduction in computing the tax for the subsequent year.” H. R. Rep. No. 179, 68th Cong., 1st Sess. 19 (1924).
Petitioner relies, inter alia, upon some language in the Report of the Senate Finance Committee on the Revenue Act of 1942, S. Rep. No. 1631, 77th Cong., 2d Sess., pp. 122, 123. But that portion of the Report is not concerned with computation of net operating loss but with establishment of carry-back provisions and amendment of the carry-over section. Its references are to the law applicable in determining the amount and extent of the carry-over and carry-back (§ 122 (b)), not to that applicable in determining net operating loss (§ 122 (a) and (d)).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
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"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
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"Environmental Protection Agency or Administrator",
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"Federal Credit Union Administration",
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"Federal Home Loan Bank Board",
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"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
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"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Tennessee Valley Authority",
"United States Forest Service",
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"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
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"State Agency",
"Unidentifiable",
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"NO Admin Action",
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] |
[
68
] |
CALIFORNIA DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT et al. v. JAVA et al.
No. 507.
Argued February 24, 1971 —
Decided April 26, 1971
Burger, C. J., delivered the opinion for a unanimous Court. Douglas, J., filed a concurring opinion, post, p. 135.
Asher Rubin, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Thomas C. Lynch, Attorney General.
Stephen P. Berzon argued the cause for appellees pro hac vice. With him on the brief was Kenneth F. Phillips.
Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Gray, Robert V. Zener, and Peter G. Nash for the United States; by Duke W. Dunbar, Attorney General, John P. Moore, Deputy Attorney General, and Robert L. Harris, Assistant Attorney General, for the State of Colorado; by Robert M. Robson, Attorney General, and R. LaVar Marsh, Assistant Attorney General, for the State of Idaho; by Francis B. Burch, Attorney General, and Louis B. Price, Special Assistant Attorney General, for the State of Maryland, joined by the State of Illinois; by Warren B. Rudman, Attorney General, and William F. Gann, Deputy Attorney General, for the State of New Hampshire, joined by David M. Pack, Attorney General, and Lance D. Evans, Assistant Attorney General, for the State of Tennessee; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for the State of New York; by Paul W. Brown, Attorney General, and Franklin R. Wright, Assistant Attorney General, for the State of Ohio; and by Willard Z. Carr, Jr., for the Southern California Edison Co. et al.
Briefs of amici curiae urging affirmance were filed by C. Lyonel Jones, Ed J. Polk, Don B. Kates, Jr., and Joseph A. Matera for California Rural Legal Assistance et al.; by J. Albert Woll, Laurence Gold, and Thomas E. Harris for American Federation of Labor and Congress of Industrial Organizations; by Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen for the International Union, UAW; and by the Employment Project, Center on Social Welfare Policy and Law.
Mr. Chief Justice Burger
delivered the opinion of the Court.
This case raises the issue of whether a State may, consistent with § 303 (a)(1) of the Social Security Act, suspend or withhold unemployment compensation benefits from a claimant, when an employer takes an appeal from an initial determination of eligibility. Section 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. § 503 (a)(1), provides that benefits must be paid “when due.”
In late summer 1969, appellees Judith Java and Carroll Hudson, having been discharged from employment, applied for unemployment insurance benefits under the California Unemployment Insurance Program. Appel-lees were given an eligibility interview at which the employer did not appear, although such an appearance was permitted. As a result of that interview both employees were ruled eligible for benefits. Payments began immediately. In each case the former employer filed an appeal after learning of the grant of benefits, contending that benefits should be denied because the claimants were discharged for cause. In accordance with the practice of the agency and pursuant to § 1335 of the California Unemployment Insurance Code payments automatically stopped. At the subsequent hearings before an Appeals Board Referee, which stage is essentially an appeal from the preliminary determination under California Unemployment Insurance Code §§ 1328, 1334, appellee Hudson’s eligibility was affirmed, but appellee Java was ruled ineligible and the initial determination was reversed.
Prior to the hearings before the Referee, appellees commenced a class action in the United States District Court on behalf of themselves and other claimants similarly situated. They sought a declaration that § 1335 of the California Unemployment Insurance Code is unconstitutional and inconsistent with the requirements of §303 (a)(1) of the Social Security Act, and an order enjoining the operation of § 1335.
A three-judge court was convened, and it concluded that § 1335 is defective on both constitutional and statutory grounds. The District Court held that by not providing for a pretermination hearing, the California procedure constitutes a denial of procedural due process, relying on Goldberg v. Kelly, 397 U. S. 254 (1970). It further held that the application of § 1335, so as to result in a median seven-week delay in payments to claimants who have been found eligible for benefits, constituted a failure to pay unemployment compensation “when due” within the meaning of § 303 (a) (1) of the Social Security Act. The court granted appellees’ motion for a preliminary injunction, ordering the State of California not to suspend unemployment benefits pursuant to § 1335 because an eligibility determination has been appealed.
(1)
We agree with the conclusion of the District Court that § 1335 of the California Unemployment Insurance Code conflicts with the requirements of § 303 (a)(1) of the Social Security Act. This holding makes it unnecessary to reach the constitutional issue involved in Goldberg v. Kelly, supra, on which the District Court relied.
(2)
The importance of this case to workers is obvious. Because an understanding and the resolution of the basic issue depends on familiarity with a series of detailed procedures, we set out fully the administrative scheme.
All federal-state cooperative unemployment insurance programs are financed in part by grants from the United States pursuant to the Social Security Act, 42 U. S. C. §§ 501-503. No grant may be made to a State for a fiscal year unless the Secretary of Labor certifies the amount to be paid, 42 U. S. C. § 502 (a). The Secretary of Labor may not certify payment of federal funds unless he first finds that the State’s program conforms to federal requirements. In particular, §303 (a)(1) of the Act requires that state methods of administration be found “to be reasonably calculated to insure full payment of unemployment compensation when due.”
The California Unemployment Insurance Compensation Program, certified by the Secretary of Labor under § 303 of the Act, provides for payment of insurance benefits, over an extended period of time, to persons who find themselves unemployed through no fault of their own. Cal. Unemp. Ins. Code § 1251 et seq. In order to be eligible for benefits a claimant is required to have earned a specified amount of wages during his base period. Id., §1281. Benefits are paid from the State Unemployment Fund, which consists of funds collected from private employers, id., § 976 et seq., and money credited to the State’s account in the federal Unemployment Trust Fund pursuant to 42 U. S. C. §§ 501-503, 1101-1105. The amount of money an employer is required to pay into the State Fund is based on benefits paid to terminated employees which are charged to its reserve account and disbursements from the State Unemployment Fund. Cal. Unemp. Ins. Code §§ 1025-1032, 976-978.
A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, “any facts then known which may affect the claimant’s eligibility for benefits.” Cal. Unemp. Ins. Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L. O. M.) used in California, the “responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.” L. O. M. § 1400.3 (2). “Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.” L. O. M. § 1400.5 (1)(a). This clearly contemplates inquiry to the latest employer, among others.
The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L. O. M. § 1404.4 (20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L. O. M. § 1404.4 (21).
The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L. O. M. § 1404.6 (2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L. O. M. § 1400.3 (2) (a).
From the foregoing it can be seen that the interview for the determination of eligibility is the critical point in the California procedure. In the Department’s own terms, it is “the point at which any issue affecting the claimant’s eligibility is decided and fulfills the Department’s legal obligation to insure that . . . [b]enefits are paid promptly if claimant is eligible.” L. O. M. § 1400.1 (1) (emphasis added). If the initial determination is favorable to the claimant, payments begin immediately, and for 95-98% of the claims, former employers do not appear or seek a hearing; no further problem arises as to initial eligibility. The Department sends out a notice to the employer informing him that the claimant has been found eligible, and that the employer may appeal within 10 days. Cal. Unemp. Ins. Code § 1328. The 10-day period may be extended for “good cause.” Ibid.
If the employer appeals, payment of the claimant's benefits is stopped pending determination on appeal before an Appeals Board Referee. Id., § 1335; see L. O. M. § 1474. The automatic suspension of benefits upon the employer’s appeal, after an initial determination of eligibility, is the aspect of the California procedure challenged here. By that time the claimant may have received one or perhaps two payments. When the employer appeals, a hearing is then scheduled at which both the parties may appear and be represented, call witnesses, and present evidence. “A referee after affording a reasonable opportunity for fair hearing, shall, unless such appeal is withdrawn, affirm, reverse, or modify any determination which is appealed . . . .” Cal. Unemp. Ins. Code § 1334. The appeal affords a de novo consideration. Generally, processing of the employer’s appeal takes between six and seven weeks, between the date of fifing the appeal and the date of mailing the decision or dismissal.
If upon appeal the Referee finds the claimant eligible, payments are reinstated at once and continue even if the employer exercises his right to appeal further to the Appeals Board. Cal. Unemp. Ins. Code § 1335 (b). Meanwhile as much as seven to 10 weeks may have elapsed. The record indicates that employers are successful in less than 50% of their appeals from initial determinations of eligibility. The Referee’s decision is final unless within 10 days further appeal is initiated to the Appeals Board. Cal. Unemp. Ins. Code §§ 1334, 1336. The Appeals Board must render a decision within 60 days after the filing of an appeal to it, unless it requires the taking of further evidence. Id., § 1337. If the claimant is successful on appeal, he receives a lump sum payment for weeks of unemployment prior to the Referee’s decision. Id., § 1338. If the employer is successful on appeal, his reserve account is immediately credited with all monies that have been paid his former employee. He has no responsibility for recoupment. Id., §§ 1335, 1380.
(3)
The dispositive issue is the determination of whether § 1335 of the California Unemployment Insurance Code violates the command of 42 U. S. C. § 503 (a)(1) that state unemployment compensation programs must “be reasonably calculated to insure full payment of unemployment compensation when due.” The purpose of the federal statutory scheme must be examined in order to reconcile the apparent conflict between the provision of the California statute and § 303 (a)(1) of the Social Security Act.
It is true, as appellants argue, that the unemployment compensation insurance program was not based on need in the sense underlying the various welfare programs that had their genesis in the same period of economic stress a generation ago. A kind of “need” is present in the statutory scheme for insurance, however, to the extent that any “salary replacement” insurance fulfills a need caused by lost employment. The objective of Congress was to provide a substitute for wages lost during a period of unemployment not the fault of the employee. Probably no program could be devised to make insurance payments available precisely on the nearest payday following the termination, but to the extent that this was administratively feasible this must be regarded as what Congress was trying to accomplish. The circumstances surrounding the enactment of the statute confirm this.
The Social Security Act received its impetus from the Report of the Committee on Economic Security, which was established by executive order of President Franklin D. Roosevelt to study the whole problem of financial insecurity due to unemployment, old age, disability, and health. In its report, transmitted to Congress by the President on January 17, 1935, the Committee recommended a program of unemployment insurance compensation as a “first line of defense for . . . [a worker] ordinarily steadily employed ... for a limited period during which there is expectation that he will soon be reemployed. This should be a contractual right not dependent on any means test. ... It will carry workers over most, if not all, periods of unemployment in normal times without resort to any other form of assistance.” Estimates of possible amounts and duration of unemployment benefits were made by the actuarial staff of the Committee. On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate. The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period.
Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that “when due” was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers “to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.” Unemployment benefits provide cash to a newly unemployed worker “at a time when otherwise he would have nothing to spend,” serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for “security during the period following unemployment” was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act “covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.” Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. “Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.” Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated:
“I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect. Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.”
We conclude that the word “due” in § 303 (a)(1), when construed in light of the purposes of the Act, means the time when payments are first administratively allowed as a result of a hearing of which both parties have notice and are permitted to present their respective positions; any other construction would fail to meet the objective of early substitute compensation during unemployment. Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not “reasonably calculated to insure full payment of unemployment compensation when due.”
(4)
We are not persuaded by appellants’ suggestion that the initial determination is clouded with sufficient uncertainty as to warrant withholding benefits until the appeal is decided to protect the interests of the State or of employers. The California procedure for initial determinations is effective in insuring that benefits are limited to legally eligible claimants. From 95%-98% of ineligible claimants are screened out at this stage. The primary inquiry at the preliminary interview is to examine the claimant’s basic eligibility under the California statute. It is an occasion when the claims of both the employer and the employee can be heard, however. The regulations contemplate that the interviewer shall make inquiries of the employer informally. This may not always flush out objections based on discharge for cause, as this case illustrates. Nonetheless, if the employer has notice of the time and place of the preliminary interview, as was the case here, it is his responsibility to present sufficient data to make clear his objections to the claim for benefits and put the interviewer in a position to broaden the inquiry if necessary. Any procedure or regulation that fails to give notice to the employer would, of course, be violative of the statutory scheme as we construe it.
Although the eligibility interview is informal and does not contemplate taking evidence in the traditional judicial sense, it has adversary characteristics and the minimum obligation of an employer is to inform the interviewer and the claimant of any disqualifying factors. So informed, the interviewer can direct the initial inquiry to identifying a frivolous or dilatory contention by either party.
It would frustrate one of the Act’s basic purposes— providing a “substitute” for wages — to permit an employer to ignore the initial interview or fail to assert and document a claimed defense, and then effectuate cessation of payments by asserting a defense to the claim by way of appeal. If the employer fails to present any evidence, he has in effect defaulted, and neither he nor the State can with justification complain if, on a prima jade showing, benefits are allowed. If the employer’s defenses are not accepted and the claim is allowed, that also constitutes a determination that the benefits are “due.”
As we have noted, this construction of the statutory scheme vindicates the congressional objective; California’s approach tends to frustrate it. Our reading of the statute imposes no hardship on either the State or the employer and gives effect to the congressional objective of getting money into the pocket of the unemployed worker at the earliest point that is administratively feasible. That is what the Unemployment Insurance program was all about.
For the reasons stated enforcement of § 1335- must be enjoined because it is inconsistent with § 303 (a)(1) of the Social Security Act. See King v. Smith, 392 U. S. 309, 333 (1968); Rosado v. Wyman, 397 U. S. 397, 420-421 (1970).
Affirmed.
Section 1335 of the California Unemployment Insurance Code provides:
“If an appeal is filed, benefits with respect to the period prior to the final decision on the appeal shall be paid only after such decision, except that:
“(a) If benefits for any week are payable in accordance with a determination by the department irrespective of any decision on the issues set forth in the appeal, such benefits shall be promptly paid regardless of such appeal, or
“(b) If a referee affirms a determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, and regardless of any action taken under Section 1336 or otherwise by the director, Appeals Board, or other administrative body or by any court.
“If such determination is finally reversed, no employer’s account shall be charged with benefits paid because of that determination.” (Emphasis added.)
Section 303 (a)(1) of the Social Security Act, 42 U. S. C. § 503 (a) (1), provides in part:
“(a) The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act, includes provision for—
“(1) Such methods of administration (including after January 1, 1940, methods relating to the establishment and maintenance of personnel standards on a merit basis, except that the Secretary of Labor shall exercise no authority with respect to the selection, tenure of office, and compensation of any individual employed in accordance with such methods) as are found by the Secretary of Labor to be reasonably calculated to insure full -payment of unemployment compensation when due.” (Emphasis added.)
Of the 226,066 claimants ruled ineligible in 1968, only 2,602 (1%) were found ineligible by a state referee upon an employer’s appeal.
Of 667,993 determinations on eligibility in 1968, 441,927 were favorable to the claimant.
In 1968 there were only 5,526 decisions on appeals filed by employers.
In 1968 the period was 49 days; in 1969 it was 40.5 days.
Of 4,159 appeals filed by an employer between January 1, 1969, and September 30, 1969, 2,023 resulted in decisions favorable to the employer. (During the same period there were 14,768 appeals filed by claimants, 4,838 of which were successful.) In 1968 there were 5,526 decisions on appeals filed by employers, resulting in 2,602 decisions favorable to the employer, and 2,924 favorable to the claimant.
Counsel informed the Court that recoupment is effected by the Department as to approximately 65% of the amounts erroneously paid; this is generally accomplished by way of offset against benefits subsequently granted in a later unemployment claim. The Department may also file a civil action for recovery. See Cal. Unemp. Ins. Code § 2739.
Report of the Committee on Economic Security, Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311 (1935); see generally Larson & Murray, The Development of Unemployment Insurance in the United States, 8 Vand. L. Rev. 181 (1955); Witte, Development of Unemployment Compensation, 55 Yale L. J. 21, 29-34 (1945).
Report of the Committee on Economic Security, supra, n. 9, at 1321-1322. See Note, Charity versus Social Insurance in Unemployment Compensation Laws, 73 Yale L. J. 357 (1963).
Hearings, supra, n. 9, at 1321, 1319.
H. R. Rep. No. 615, 74th Cong., 1st Sess., 7 (1935).
Statement of the Secretary of Labor, Hearings, supra, n. 9, at 119. Cf. Nash v. Florida Industrial Comm’n, 389 U. S. 235, 239 (1967).
See S. Rep. No. 628, 74th Cong., 1st Sess., 12 (1935).
Statement of Federal Relief Administrator and Member of the Committee on Economic Security, Hearings on H. R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 214 (1935).
Statement of Sen. Robert F. Wagner, Hearings, supra, n. 9, at 3.
Statement of the Secretary of Labor, Hearings, supra, n. 15, at 182. See Clague, The Economics of Unemployment Compensation, 55 Yale L. J. 53, 69 (1945).
It was uncontested in argument before the District Court that the average period of unemployment in California is approximately nine weeks.
For example, an employer’s reserve account is not charged if a claimant is ruled ineligible because of voluntary termination or discharge for cause, unless the employer fails to furnish the information required. Cal. Unemp. Ins. Code §§ 1032, 1030.
In disposing of the prayer for a permanent injunction, it may be appropriate to join the Secretary of Labor as a party in order that complete relief may be accorded.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
116
] |
LOUISIANA PUBLIC SERVICE COMMISSION v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 84-871.
Argued January 13, 1986
Decided May 27, 1986
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Rehnquist, and Stevens, JJ., joined. Burger, C. J., and Blackmun, J., dissented. Powell and O’Connor, JJ., took no part in the consideration or decision of the cases.
Lawrence G. Malone argued the cause for appellant in No. 84-871 and petitioners in Nos. 84-889, 84-1054, and 84-1069. With him on the briefs for petitioners in No. 84-889 were David E. Blabey, Margery F. Baker, Janice E. Kerr, J. Calvin Simpson, Gretchen Dumas, Jack Shreve, Steven W. Hamm, Raymon E. Lark, Jr., Christopher K. Sandberg, Philip Stoffregen, Patrick Nugent, Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General, Don L. Keskey and Leo H. Friedman, Assistant Attorneys General, Lynda S. Mounts, Stuart J. Bassin, William Paul Rodgers, Jr., Joel B. Shifman, Kenneth 0. Eikenberry, Attorney General of Washington, Larry V. Rogers, Assistant Attorney General, Irwin I. Kimmelman, Attorney General of New Jersey, Carla Vivian Bello, Deputy Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, William B. Gundling, Peter J. Jenkelunas, and Phyllis E. Lemell, Assistant Attorneys General, Brian Moline, Howard C. Davenport, Lloyd N. Moore, Jr., Steven M. Schur, and Robert Waldrum. Michael R. Fontham, Marshall B. Brinkley, William S. Bilenky, Paul Sexton, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Robert S. Tongren and Mary R. Brandt, Assistant Attorneys General, and Richard P. Rosenberry filed briefs for appellant in No. 84-871 and petitioners in Nos. 84-1054 and 84-1069.
Solicitor General Fried argued the cause for the federal parties. With him on the brief were Deputy Solicitor General Wallace, Christopher J. Wright, Jack D. Smith, Daniel M. Armstrong, and Jane E. Mago.
Michael Boudin argued the cause for respondents American Telephone and Telegraph Co. et al. With him on the brief for the American Telephone and Telegraph Co. et al. were Donald McG. Rose, John Wohlstetter, W. Preston Granbery, Albert H. Kramer, Mark J. Mathis, D. Michael Stroud, Vincent L. Sgrosso, William O’Keefe, Carolyn C. Hill, Thomas J. Reiman, Alfred Winchell Whittaker, and John B. Messenger. William R. Malone, Richard Mc-Kenna, and Philip A. Lacovara filed a brief for GTE Service Corp. et al.
Together with No. 84-889, California et al. v. Federal Communications Commission et al.; No. 84-1054, Public Utilities Commission of Ohio et al. v. Federal Communications Commission et al.; and No. 84-1069, Florida Public Service Commission v. Federal Communications Commission et al., on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and Stephen L. Skipper, William, James Samford, Jr., and Susan Shirock DePaola; for the State of Louisiana et al. by William J. Guste, Jr., Attorney General of Louisiana, Richard M. Troy and J. David McNeill III, Assistant Attorneys General, John L. Gubbins, Philip S. Shapiro, Barry Zitser, Corinne K. A. Watanabe, Attorney General of Hawaii, Ronald Shigekane, Deputy Attorney General, and Brian Burnett, Assistant Attorney General of Utah; for the State of Maine et al. by William E. Furber, James E. Tierney, Attorney General of Maine, Joseph G. Donahue, Mary L. Vanderpan, Assistant Attorney General of South Dakota, Michael J. Bowers, Attorney General of Georgia, James 0. Llewellyn, Senior Assistant Attorney General, Michael J. Henry, Assistant Attorney General, Steven Clark, Attorney General of Arkansas, John Doehm, Assistant Attorney General of Nebraska, John E. Archibold, Special Assistant Attorney General of Colorado, Kirk J. Emge, and Ellyn Elise Crutcher; for the National Conference of State Legislatures et al. by Benna Ruth Solomon and Joyce Holmes Benjamin; and for the Telephone Ratepayers Association for Cost-Based and Equitable Rates by Jack L. Landau.
Briefs of amici curiae urging affirmance were filed for MCI Telecommunications Corp. by Laurence H. Silberman and Henry D. Levine; and for the United States Telephone Association by Jack E. Herington, Joseph R. Fogarty, H. Russell Frisby, Jr., and Marcia Spielholz.
Justice Brennan
delivered the opinion of the Court.
In these consolidated cases, we are asked by 26 private telephone companies and the United States to sustain the holding of the Court of Appeals for the Fourth Circuit that orders of the Federal Communications Commission (FCC or Commission) respecting the depreciation of telephone plant and equipment pre-empt inconsistent state regulation. They are opposed by the Public Service Commissions of 23 States, backed by 30 amici curiae, who argue that the Communications Act of 1934 (Act), 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq., expressly denied the FCC authority to establish depreciation practices and charges insofar as they relate to the setting of rates for intrastate telephone service.
Respondents suggest that the heart of the cases is whether the revolution in telecommunications occasioned by the federal policy of increasing competition in the industry will be thwarted by state regulators who have yet to recognize or accept this national policy and who thus refuse to permit telephone companies to employ accurate accounting methods designed to reflect, in part, the effects of competition. We are told that already there may be as much as $26 billion worth of “reserve deficiencies” on the books of the Nation’s local telephone companies, a reserve which, it is insisted, represents inadequate depreciation of a magnitude that threatens the financial ability of the industry to achieve the technological progress and provide the quality of service that the Act was passed to promote. Petitioners answer that the Act clearly establishes a system of dual state and federal authority over telephone service. They contend that the Act vests in the States exclusive power over intrastate rate-making, which power, petitioners argue, includes final authority over how depreciation shall be calculated for the purpose of setting those intrastate rates. Petitioners note also that the Due Process Clause of the Fourteenth Amendment necessarily represents a check on the power of the States to set depreciation rates at what would amount to confiscatory levels, and that respondents therefore overstate the danger of the States crippling the financial vitality of phone companies.
In deciding these cases, it goes without saying that we do not assess the wisdom of the asserted federal policy of encouraging competition within the telecommunications industry. Nor do we consider whether the FCC should have the authority to enforce, as it sees fit, practices which it believes would best effectuate this purpose. Important as these issues may be, our task is simply to determine where Congress has placed the responsibility for prescribing depreciation methods to be used by state commissions in setting rates for intrastate telephone service. In our view, the language, structure, and legislative history of the Act best support petitioners’ position that the Act denies the FCC the power to dictate to the States as it has in these cases, and accordingly, we reverse.
I
The Act establishes, among other things, a system of dual state and federal regulation over telephone service, and it is the nature of that division of authority that these cases are about. In broad terms, the Act grants to the FCC the authority to regulate “interstate and foreign commerce in wire and radio communication,” 47 U. S. C. § 151, while expressly denying that agency “jurisdiction with respect to . . . intrastate communication service . . . .” 47 U. S. C. § 152(b). However, while the Act would seem to divide the world of domestic telephone service neatly into two hemispheres — one comprised of interstate service, over which the FCC would have plenary authority, and the other made up of intrastate service, over which the States would retain exclusive jurisdiction — in practice, the realities of technology and economics belie such a clean parceling of responsibility. This is so because virtually all telephone plant that is used to provide intrastate service is also used to provide interstate service, and is thus conceivably within the jurisdiction of both state and federal authorities. Moreover, because the same carriers provide both interstate and intrastate service, actions taken by federal and state regulators within their respective domains necessarily affect the general financial health of those carriers, and hence their ability to provide service, in the other “hemisphere.”
In 1980 and 1981, the FCC issued two orders that ultimately sparked this litigation. In the 1980 order the FCC changed two depreciation practices affecting telephone plant. Property Depreciation, 83 F. C. C. 2d 267, reconsideration denied, 87 F. C. C. 2d 916 (1981). First, the order altered how carriers could group property subject to depreciation. Because carriers employ so many individual items of equipment in providing service, it would be impossible to depreciate each item individually, and property is therefore classified and depreciated in groups. The order permitted companies the option of grouping plant for depreciation purposes based on its estimated service life (the “equal life” approach). This replaced the FCC’s prior practice of requiring companies to classify and depreciate property according to its year of installation (the “vintage year” method). This change was made to allow depreciation to be based on smaller and more homogeneous groupings, which, the FCC concluded, would result in more accurate matching of capital recovery with capital consumption.
The 1980 order further sought to promote improved accounting accuracy by replacing “whole life” depreciation with the “remaining life” method. Under remaining life, and unlike the treatment under a whole life regime, if estimates upon which depreciation schedules are premised prove erroneous, they may be corrected in midcourse in a way that assures that the full cost of the asset will ultimately be recovered.
The third FCC-mandated change in plant depreciation was announced in a 1981 order, and involved the cost of labor and material associated with the installation of wire inside the premises of a business or residence. The new rule provided that this so-called “inside wiring” no longer be treated as a capital investment to be depreciated over time, but rather as a cost to be “expensed” in the year incurred. Uniform System of Accounts, 85 F. C. C. 2d 818.
Later in 1981, the National Association of Regulatory Utility Commissioners (NARUC) petitioned the FCC for a “clarification” of its order respecting inside wiring. Specifically, NARUC sought a declaration that the FCC’s order did not restrict the discretion of state commissions to follow different depreciation practices in computing revenue requirements and rates for intrastate services.
On April 27, 1982, the FCC issued a memorandum opinion and order in which it agreed with NARUC that its order respecting the depreciation of inside wiring did not preclude state regulators “from using their own accounting and depreciation procedures for intrastate ratemaking purpose[s] . . . Uniform System of Accounts, 89 F. C. C. 2d 1094, 1095. In reaching this conclusion, the FCC declared that it had not intended the 1981 order to “have any preemptive effect that does not arise by operation of law,” and added that “[n]o policy of this Commission would be furthered by requiring state commissions to adhere to the rules we have adopted for the purposes of computing the interstate revenue requirement.” Id., at 1097. The FCC then examined the language and legislative history of sections of the Act dealing with jurisdiction and depreciation and found that they did not support the position that unwilling state commissions either were required by operation of law or could be required in the discretion of the FCC to follow all accounting and depreciation methods prescribed by the Commission. Two commissioners issued a written dissent in which they argued that the FCC had, in its 1981 order, intended to pre-empt inconsistent state depreciation practices, and that deference to the States was especially inappropriate where an important federal policy — that of maturing a “brave new world” of competition in the industry — was at stake.
Respondents petitioned for reconsideration of the order, and the FCC reversed itself and held that § 220 of the Act, which deals expressly with depreciation, does operate automatically to pre-empt inconsistent state action where the Commission has acted to prescribe depreciation rates for a carrier. Amendment of Part 31, 92 F. C. C. 2d 864 (1983). As an alternative ground in support of pre-emption, the FCC asserted that federal displacement of state regulation is justifiable under the Act when necessary “to avoid frustration of validly adopted federal policies.” Id., at 875. Applying this standard to the facts before it, the FCC then found preemption appropriate. It noted that “adequate capital recovery is important to ‘make available, so far as possible, to all the people of the United States a rapid, efficient, Nationwide, world-wide wire and radio communication service with adequate facilities at reasonable charges . . .’ 47 U. S. C. 151,” and that “[s]tate depreciation rate prescriptions that do not adequately provide for capital recovery in the competitive environment, which constitutes this Commission’s policy in those markets found capable of supporting competition, would frustrate the accomplishment of that policy and are preemptable by this Commission.” 92 F. C. C. 2d, at 876.
The Fourth Circuit affirmed. Virginia State Corporation Comm’n v. FCC, 737 F. 2d 388 (1984). It acknowledged that the Act “does reserve to the states the authority to prescribe rates for intrastate telephone service,” but determined that “reservation [of authority] is not to be read as preserving the states’ sphere of intrastate jurisdiction at the expense of an efficient, viable interstate telecommunications network.” Id., at 392. The court then noted that the FCC had intended to pre-empt state practices, held that the authority to do so was statutorily entrusted to the FCC, and found that the regulations at issue were reasonably designed to ensure that federal objectives would not be frustrated. The Court of Appeals did not reach the Commission’s holding that § 220 of the Act automatically operates to pre-empt state-prescribed depreciation at odds with depreciation ordered by the FCC. We granted certiorari to review the decision of the Court of Appeals. 472 U. S. 1025 (1985).
II
Both petitioners and respondents characterize this litigation as one in which two different persons seek to drive one car, a condition the parties agree is unsatisfactory. Where the parties disagree is with respect to who ought to be displaced from the controls. In order to address the contentions, it is appropriate to consider not only the structure of the Act and how it divides authority, but also the nature and function of depreciation as a component of utility regulation.
Depreciation is defined as the loss in service value of a capital asset over time. In the context of public utility accounting and regulation, it is a process of charging the cost of depreciable property, adjusted for net salvage, to operating expense accounts over the useful life of the asset. Thus, accounting practices significantly affect, among other things, the rates that customers pay for service. This is so because a regulated carrier is entitled to recover its reasonable expenses and a fair return on its investment through the rates it charges its customers, and because depreciation practices contribute importantly to the calculation of both the carrier’s investment and its expenses. See Knoxville v. Knoxville Water Co., 212 U. S. 1, 13-14 (1909). See generally, 1 A. Priest, Principles of Public Utility Regulation (1969); P. Garfield & W. Lovejoy, Public Utility Economics (1964); 1 A. Kahn, Economics of Regulation (1970).
The total amount that a carrier is entitled to charge for services, its “revenue requirement,” is the sum of its current operating expenses, including taxes and depreciation expenses, and a return on its investment “rate base.” The original cost of a given item of equipment enters the rate base when that item enters service. As it depreciates over time — as a function of wear and tear or technological obsolescence — the rate base is reduced according to a depreciation schedule that is based on an estimate of the item’s expected useful life. Each year the amount that is removed from the rate base is included as an operating expense. In the telephone industry, which is extremely capital intensive, depreciation charges constitute a significant portion of the annual revenue requirement recovered in rates; the parties agree that depreciation charges amount to somewhere between 10% to 15% of the intrastate revenue requirement.
In essence, petitioners’ argument is that the plain and unambiguous language of § 152(b) denies the FCC power to compel the States to employ FCC-set depreciation practices and schedules in connection with the setting of intrastate rates. In part, that section provides:
“[N]othing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier . . . .”
Petitioners maintain that “charges,” “classifications,” and “practices” are “terms of art” which denote depreciation and accounting, and thus that the question presented by these cases is expressly answered by the statute. They argue also that the legislative history shows on a more general level that § 152(b) was intended to reserve to the States exclusive regulatory jurisdiction over intrastate service, especially intrastate ratemaking, and that given the importance of depreciation to ratemaking, to require state regulators to follow FCC depreciation practices would frustrate the statutory design of preserving the States’ ratemaking authority over intrastate service. Petitioners maintain that to confer this power on the FCC would be, in effect, to write the jurisdictional limitation of § 152(b) out of the Act.
Where petitioners focus on § 152(b), respondents’ principal argument is that this litigation turns on §220 of the Act, which they insist constitutes an unambiguous grant of power to the FCC exclusively to regulate depreciation. Their argument is that once the FCC has acted pursuant to that section, States are automatically precluded from prescribing different depreciation practices or rates. Section 220(b) states:
“The Commission shall, as soon as practicable, prescribe for such carriers the classes of property for which depreciation charges may be properly included under operating expenses, and the percentages of depreciation which shall be charged with respect to each of such classes of property, classifying the carriers as it may deem proper for this purpose. The Commission may, when it deems necessary, modify the classes and percentages so prescribed. Such carriers shall not, after the Commission has prescribed the [classes] of property for which depreciation charges may be included, charge to operating expenses any depreciation charges on classes of property other than those prescribed by the Commission, or after the Commission has prescribed percentages of depreciation, charge with respect to any class of property a percentage of depreciation other than that prescribed therefor by the Commission. No such carrier shall in any case include in any form under its operating or other expenses any depreciation or other charge or expenditure included elsewhere as a depreciation charge or otherwise under its operating or other expenses.”
Respondents assert that their understanding of § 220(b) is bolstered by other substantive provisions of §220. They note, for example, that under § 220(g), once the FCC has prescribed the “forms and manner of keeping accounts,” it is “unlawful... to keep any other accounts . . . than those so prescribed ... or to keep the accounts in any other manner than that prescribed or approved by the Commission,” and that subsections (d) and (e) of § 220 provide for civil and criminal penalties for failing to keep accounts as determined by the Commission. Moreover, § 220(h) permits the FCC in its discretion, if it finds such action to be “consistent with the public interest,” to “except the carriers of any particular class or classes in any State from any of the requirements” under the section “in cases where such carriers are subject to State commission regulation with respect to matters to which this section relates.” Respondents argue that this provision strongly suggests that unless the FCC affirmatively acts to waive or delegate its authority, i. e., to “except” carriers from its regulation, then under § 220(h) the States impliedly cannot adopt inconsistent regulations. Respondents also assert that §220(i) makes clear that the role of the States in depreciation is essentially advisory only. That section provides that the FCC, before exercising its authority, “shall notify” the state commissions and provide an opportunity to the States to “present [their] views” and also instructs the FCC to “consider such views and recommendations.” According to respondents, “Congress gave the states an opportunity to present their views because it expected them to be bound by the resulting prescriptions.” Joint Brief for Listed Private Respondents 14 (Joint Brief). In sum, the position of respondents is that “Congress clearly intended that there be one regime — rather than multiple regimes — of depreciation for each subject carrier. The FCC was given responsibility for establishing such a regime, and its depreciation decisions have to be respected unless and until it relinquishes authority to the states in individual instances. The states’ interest is recognized but their role is confined to providing their Views and recommendations.’” Ibid.
Although respondents rely primarily on §220 to support pre-emption, they also urge as an alternative and independent ground the reasoning relied on by the Court of Appeals, namely that the FCC is entitled to pre-empt inconsistent state regulation which frustrates federal policy. It is in the context of this argument that respondents most forcefully contend that state regulators must not be permitted to jeopardize the continued viability of the telecommunications industry by refusing to permit carriers to depreciate plant in a way that allows for accurate and timely recapturing of capital. This argument, which is pressed especially by the Solicitor General, relies largely on §151, which in broad terms directs the FCC to develop a rapid and efficient national telephone network.
Ill
The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to pre-empt state law. Preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co., 430 U. S. 519 (1977), when there is outright or actual conflict between federal and state law, e. g., Free v. Bland, 369 U. S. 663 (1962), where compliance with both federal and state law is in effect physically impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947), or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Hines v. Davidowitz, 312 U. S. 52 (1941). Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 (1984).
In the present cases, two of these “varieties” of preemption are alleged. As noted above, respondents argue that §220 by its terms confers exclusive regulatory power over depreciation on the FCC, thus raising a claim that Congress has expressly manifested a clear intent to displace state law. In addition, respondents maintain that the refusal of the States to accept the FCC-set depreciation schedules and rules will frustrate the federal policy of increasing competition in the industry, and thus that state regulation “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” In our view, the jurisdictional limitations placed on the FCC by § 152(b), coupled with the fact that the Act provides for a “separations” proceeding to determine the portions of a single asset that are used for interstate and intrastate service, 47 U. S. C. § 410(c), answer both pre-emption theories.
The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law. Rice v. Santa Fe Elevator Corp., supra. The Act itself declares that its purpose is “regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges . . . .” 47 U. S. C. §151. In order to accomplish this goal, Congress created the FCC to centralize and consolidate the regulatory responsibility that had previously been the province of the Interstate Commerce Commission and the Federal Radio Commission under predecessor statutes. See generally McKenna, Pre-Emption Under the Communications Act, 37 Fed. Comm. L. J. 1, 12-18 (1985). To this degree, § 151 may be read as lending some support to respondents’ position that state regulation which frustrates the ability of the FCC to perform its statutory function of ensuring efficient, nationwide phone service may be impliedly barred by the Act.
We might be inclined to accept this broad reading of § 151 were it not for the express jurisdictional limitations on FCC power contained in § 152(b). Again, that section asserts that “nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service . . . .” By its terms, this provision fences off from FCC reach or regulation intrastate matters — indeed, including matters “in connection with” intrastate service. Moreover, the language with which it does so is certainly as sweeping as the wording of the provision declaring the purpose of the Act and the role of the FCC.
In interpreting §§ 151 and 152(b), we are guided by the familiar rule of construction that, where possible, provisions of a statute should be read so as not to create a conflict. Washington Market Co. v. Hoffman, 101 U. S. 112 (1879). We agree with petitioners that the sections are naturally reconciled to define a national goal of the creation of a rapid and efficient phone service, and to enact a dual regulatory system to achieve that goal. Moreover, were we to find the sections to be in conflict, we would be disinclined to favor the provision declaring a general statutory purpose, as opposed to the provision which defines the jurisdictional reach of the agency formed to implement that purpose.
Respondents advance a number of arguments to counter the view that § 152(b) forbids the FCC to prescribe depreciation practices and charges in the context of ratemaking for intrastate service. We address each in turn.
A
Respondents assert that the legislative history of § 152(b), as well as the structure of the Act, shows that “charges” and “classifications” refer only to “customer charges,” not depreciation charges, and thus that § 152(b) does not purport to limit the FCC power to regulate depreciation. They seek to support this narrow reading of § 152(b) by noting that the words “charges,” “classifications,” “practices,” and “regulations” appear throughout the Act in contexts where it is clear that what is meant is charges which relate directly to carriers’ rate and service relationships with their customers, rather than depreciation or accounting charges. See §§201-205. Reading the sections in pari materia, we are told, makes it apparent that Congress was concerned in § 152(b) with preserving state autonomy over the rates charged by carriers for specific services, not over depreciation. According to respondents, this reading is bolstered by the legislative history of the section, which reveals that the provision was proposed by state regulators in reaction to this Court’s decision in the so-called Shreveport Rate Case, Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342 (1914), which held, among other things, that the Interstate Commerce Commission had the power to order an increase in specific intrastate railroad rates charged to customers in order to avoid discrimination against interstate commerce. “In other words, Section 2(b)(1) was from the outset concerned with protection against federal preemption of the states’ setting of individual customer charges for specific intrastate services.” Joint Brief 34.
We reject this narrow reading of § 152(b). “Charges,” “classifications,” and “practices” are terms often used by accountants, regulators, courts, and commentators to denote depreciation treatment, see, e. g., United Railways & Elec tric Co v. West, 280 U. S. 234, 262 (1930); Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 158 (1930); Wheat, The Regulation of Interstate Telephone Rates, 51 Harv. L. Rev. 846, 859 (1938); A. Kahn, Economics of Regulation (1970), and in accordance with the rule of construction that technical terms of art should be interpreted by reference to the trade or industry to which they apply, Corning Glass Works v. Brennan, 417 U. S. 188 (1974), we find that they do embrace depreciation. It is worth noting that the FCC itself, in the very orders underlying this litigation, used “charges” to mean “depreciation charges.” E. g., Property Depreciation, 83 F. C. C. 2d, at 275.
Nor does the Shreveport Rate Case carry the load that respondents ask of it. In that case, this Court interpreted the constitutional and statutory authority of the Interstate Commerce Commission to include the power to regulate, indeed, set, intrastate rates in order to prevent discrimination against interstate traffic. It is certainly true, as respondents assert, that when Congress was drafting the Communications Act, § 152(b) was proposed and supported by the state commissions in reaction to what they perceived to be the evil of excessive federal regulation of intrastate service such as was sanctioned by the Shreveport Rate Case; but we find no authority in the legislative history to support respondents’ position that the sole concern of the state commissioners was with “protection against federal preemption of the states’ setting of individual customer charges for specific intrastate services.” Joint Brief 34. Rather, the legislative history reveals that representatives from the industry and the States were fully aware that what was at stake in the Act were broad powers to regulate, including, but not limited to, the setting of individual rates, and that “[t]he question of an appropriate division between federal and state regulatory power was a dominating controversy in 1934.” McKenna, 37 Fed. Comm. L. J., at 2. In other words, while we agree that provisions in both the Senate and House bills were designed to overrule the Shreveport Rate Case, we are not persuaded that it was anyone’s understanding that this “overruling” could or should be accomplished by merely including in the Act one section which forbade the FCC to establish specific rates for certain intrastate services; had this been the intention, it would hardly have been necessary to deny the FCC the jurisdiction over “charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service . . . Presumably, it would have sufficed simply to deny the FCC jurisdiction over “rates.” In sum, given the breadth of the language of § 152(b), and the fact that it contains not only a substantive jurisdictional limitation on the FCC’s power, but also a rule of statutory construction (“[N]othing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to . . . intrastate communication service . . .”), we decline to accept the narrow view urged by respondents, and hold instead that it denies the FCC the power to pre-empt state regulation of depreciation for intrastate ratemaking purposes.
B
Accordingly, we cannot accept respondents’ argument that § 152(b) does not control because the plant involved in this case is used interchangeably to provide both interstate and intrastate service, and that even if § 152(b) does reserve to the state commissions some authority over “certain aspects” of intrastate communication, it should be “confined to intrastate matters which are ‘separable from and do not substantially affect’ interstate communication.” Joint Brief 36. With respect to the present cases, respondents insist that the refusal of the States to employ accurate measures of depreciation will have a severe impact on the interstate communications network because investment in plant will be recovered too slowly or not at all, with the result that new investment will be discouraged to the detriment of the entire network. Numerous decisions of the Courts of Appeals are cited as authority for the proposition that § 152(b) applies as a jurisdictional bar to FCC pre-emptive action only when two factors are present; first, when the matter to be regulated is purely local and second, when interstate communication is not affected by the state regulation which the FCC would seek to pre-empt. E. g., North Carolina Utilities Comm’n v. FCC, 537 F. 2d 787 (CA4), cert. denied, 429 U. S. 1027 (1976); North Carolina Utilities Comm’n v. FCC, 552 F. 2d 1036 (CA4), cert. denied, 434 U. S. 874 (1977); Puerto Rico Telephone Co. v. FCC, 553 F. 2d 694 (CA1 1977); New York Telephone Co. v. FCC, 631 F. 2d 1059 (CA2 1980).
The short answer to this argument is that it misrepresents the statutory scheme and the basis and test for pre-emption. While it is certainly true, and a basic underpinning of our federal system, that state regulation will be displaced to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, Hines, 312 U. S., at 67, it is also true that a federal agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated authority. This is true for at least two reasons. First, an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. Second, the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency. Section 152(b) constitutes, as we have explained above, a congressional denial of power to the FCC to require state commissions to follow FCC depreciation practices for intrastate ratemaking purposes. Thus, we simply cannot accept an argument that the FCC may nevertheless take action which it thinks will best effectuate a federal policy. An agency may not confer power upon itself. To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do.
Moreover, we reject the intimation — the position is not strongly pressed — that the FCC cannot help but pre-empt state depreciation regulation of joint plant if it is to fulfill its statutory obligation and determine depreciation for plant used to provide interstate service, i. e., that it makes no sense within the context of the Act to depreciate one piece of property two ways. The Communications Act not only establishes dual state and federal regulation of telephone service; it also recognizes that jurisdictional tensions may arise as a result of the fact that interstate and intrastate service are provided by a single integrated system. Thus, the Act itself establishes a process designed to resolve what is known as “jurisdictional separations” matters, by which process it may be determined what portion of an asset is employed to produce or deliver interstate as opposed to intrastate service. 47 U. S. C. §§ 221(c), 410(c). Because the separations process literally separates costs such as taxes and operating expenses between interstate and intrastate service, it facilitates the creation or recognition of distinct spheres of regulation. See Smith v. Illinois Bell Telephone Co., 282 U. S. 133 (1930). As respondents concede, and as the Court of Appeals itself acknowledged, 737 F. 2d, at 396, it is certainly possible to apply different rates and methods of depreciation to plant once the correct allocation between interstate and intrastate use has been made, Brief for Respondent GTE 36, just as it is possible to determine that, for example, 75% of an employee’s time is devoted to the production of intrastate service, and only one quarter to interstate service, and to allocate the cost of that employee accordingly. Respondents maintain that if the FCC and the States apply different depreciation practices to the same property, then the “whole purpose of depreciation, which is to match depreciation charges of the equipment with the revenues generated by its use,” will be frustrated. Ibid. But this is true and a concern only to the degree that the principles, judgments, and considerations that underlie depreciation rules reflect only “real world” facts, rather than choices made by regulators partially on the basis of fact and partially on the basis of such factors as the perceived need to improve the industry’s cash flow, spur investment, subsidize one class of customer, or any other policy factor. What is really troubling respondents, of course, is their sense that state regulators will not allow them sufficient revenues. While we do not deprecate this concern, § 152(b) precludes both the FCC and this Court from providing the relief sought. As we so often admonish, only Congress can rewrite this statute.
C
We also reject respondents’ argument that §220, which deals specifically and expressly with depreciation, requires automatic pre-emption of all state regulation respecting depreciation. As noted above, § 220 directs the FCC to prescribe the classes of property for which depreciation charges may be included under operating expenses, and prohibits carriers from departing from FCC-set regulations respecting depreciation. While it is, no doubt, possible to find some support in the broad language of the section for respondents’ position, we do not find the meaning of the section so unambiguous or straightforward as to override the command of § 152(b) that “nothing in this chapter shall be construed to apply or to give the Commission jurisdiction” over intrastate service. We note, for example, that a very strict reading of §220 — which is what respondents urge and upon which they ultimately rely — is simply untenable. There can be no dispute, for example, regarding the fact that taxing authorities of the Federal Government are entitled to require the carriers to employ, for tax purposes, depreciation practices and schedules different from those which might be ordered by the FCC for interstate ratemaking purposes. We are advised by petitioners that carriers do, as a routine matter, keep “separate” books in this connection. Were respondents’ reading of § 220 correct, this practice would violate the Act, and taxing authorities would be compelled to compute taxation on the basis of depreciation schedules employed by the FCC for ratemaking purposes. Moreover, despite the sweeping language of § 220, nowhere does it even allude to, let alone expressly refer to, depreciation as a component of state ratemaking. Nor is the word “pre-emption” used.
It is thus at least possible, as some petitioners argue, that the section was intended to do no more than spell out the authority of the FCC over depreciation in the context of interstate regulation. It is similarly plausible, as other petitioners contend, that the section, which is captioned “Accounts, records, and memoranda,” was addressed to the plenary authority of the FCC to dictate how the carriers’ books would be kept for the purposes of financial reporting, in order to ensure that investors and regulators would be presented with an accurate picture of the financial health of the carriers. In any event, we need not, in order to decide these cases, define fully the scope of the section, and we hold only that § 220 does not operate to pre-empt state depreciation regulation for intrastate ratemaking purposes.
Like many statutes, the Act contains some internal inconsistencies, vague language, and areas of uncertainty. It is not a perfect puzzle into which all the pieces fit. Thus, it is with the recognition that there are not crisp answers to all of the contentions of either party that we conclude that § 152(b) represents a bar to federal pre-emption of state regulation over depreciation of dual jurisdiction property for intrastate ratemaking purposes.
For the reasons stated above, the judgment of the Court of Appeals for the Fourth Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
The Chief Justice and Justice Blackmun dissent.
Justice Powell and Justice O’Connor took no part in the consideration or decision of these cases.
Exclusive jurisdiction over final FCC orders lies with the courts of appeals. 28 U. S. C. §2342(1).
We originally postponed jurisdiction in No. 84-871, which came to us by way of appeal, rather than certiorari. A potential jurisdictional issue in that case arose as a result of the contention of the Government and the telephone companies that an appeal did not lie under 28 U. S. C. § 1254(2) because the decision of the Court of Appeals did not expressly strike down any particular state ratemaking order.
We need not address or resolve whether an appeal is proper in No. 84-871. The Louisiana Public Service Commission has asked that its jurisdictional statement be treated as a petition for a writ of certiorari, and we clearly have certiorari jurisdiction under 28 U. S. C. § 1254(1) to decide the case. We have, moreover, granted the petitions for certiorari in Nos. 84-889, 84-1054, and 84-1069, 472 U. S. 1025 (1985). In accordance with our customary practice, see, e. g., Renton v. Playtime Theatres, Inc., 475 U. S. 41, 43-44, n. 1 (1986), we dismiss the appeal in No. 84-871 and, treating the papers as a petition for certiorari, grant the writ of certiorari.
Petitioners suggest that overreaching by the FCC has resulted in a situation where one person has a foot on the accelerator of a car while another person is attempting to steer. Tr. of Oral Arg. 9, 21. Although it is not evident from the metaphor whether petitioners’ position is that the hand or the foot belongs to the FCC — whether, in other words, the FCC has stepped on the States’ authority, or, heavy-handedly grabbed the wheel — the notion is that it is the States’ responsibility under the Act to value property and to ascertain a rate base, and that it is inconsistent to confer depreciation authority — which is, according to the States, integrally bound up with valuation considerations and the determination of the rate base — on the FCC.
Respondents assert that this is “the case of two hands on the steering wheel,” id., at 40, by which, presumably, they mean to suggest that the hands belong to two different entities. Their position is that it makes no sense to have both the FCC and the state regulators depreciating the same piece of plant in two different ways.
Thus, these eases are readily distinguishable from those in which FCC pre-emption of state regulation was upheld where it was not possible to separate the interstate and the intrastate components of the asserted FCC regulation. See, e. g., North Carolina Utilities Comm’n v. FCC, 537 F. 2d 787 (CA4), cert. denied, 429 U. S. 1027 (1976), and North Carolina Utilities Comm’n v. FCC, 552 F. 2d 1036 (CA4), cert. denied, 434 U. S. 874 (1977) (Where FCC acted within its authority to permit subscribers to provide their own telephones, pre-emption of inconsistent state regulation prohibiting subscribers from connecting their own phones unless used ex-elusively in interstate service upheld since state regulation would negate the federal tariff).
Respondents maintain that since “[slpecific terms prevail over the general,” Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228 (1957), and § 220 deals specifically with depreciation, the general language of § 152(b) should not be read to bar FCC regulation of depreciation. The rule of construction cited by respondents is simply inapplicable in the context of these cases. First, § 152(b) deals with jurisdiction, and thus addresses a different subject than §220, which respondents correctly characterize as involving depreciation. Thus, while § 152(b) may be more “general’ than § 220, the sections are not general or specific with respect to each other. Second, § 152(b) not only imposes jurisdictional limits on the power of a federal agency, but also, by stating that nothing in the Act shall be construed to extend FCC jurisdiction to intrastate service, provides its own rule of statutory construction. In other words, the Act itself, in § 152(b), presents its own specific instructions regarding the correct approach to the statute which applies to how we should read § 220.
Respondents insist that the legislative history of the section proves that it was intended to provide the FCC with power to pre-empt state regulation over depreciation practices. They rely in particular on the fact that Congress, in drafting § 220, reenacted, almost verbatim, § 20(5) of the Interstate Commerce Act, 49 U. S. C. App. §20(5), which, respondents contend, had already been construed to require the ICC to prescribe depreciation for both telephone companies and railroads. Telephone and Railroad Depreciation Charges, 118 I. C. C. 295 (1926). Respondents note further that during hearings on an early version of the Act, state commissioners testifying before Congress argued that reenactment of § 20(5) and other provisions would permit the FCC to usurp “[a]ll matters of depreciation. . . without regard to the action upon the same subject by the State Commission.” Hearings on S. 6 before the Senate Committee on Interstate Commerce, 71st Cong., 2d Sess., pt. 15, p. 2243 (1930) (resolution of Montana Commission). They also note that state regulators did manage — initially—to persuade the drafters of the Act to add a new §220(j), which expressly permitted the States to prescribe their own depreciation practices for the purposes of determining intrastate rates. The fact that this section was rejected by the Conference Committee, despite the strong support of the States, we are told, is strong evidence that Congress intended to preserve in the FCC the broad power over depreciation that had been conferred on the ICC.
We are not persuaded. First, § 20(5) of the Interstate Commerce Act had never been interpreted to prohibit state commissioners from requiring carriers to keep additional records for the purposes of intrastate ratemaking. As the FCC itself noted in its 1982 order denying preemption, Uniform System of Accounts, 89 F. C. C. 2d 1094, 1101, it was only in dictum that the ICC suggested that it possessed authority under § 20(5) to prescribe depreciation for all property that might be used in interstate commerce, and that dictum did not even purport to address whether federal prescription of depreciation would pre-empt the States from prescribing additional depreciation practices for its regulatory purposes. Moreover, that is how this Court read the ICC order. Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 159 (1930). And in Northwestern Bell Telephone Co. v. Nebraska State Railway Comm’n, 297 U. S. 471, 478 (1936), we expressly left open whether an ICC prescription, if issued, would be pre-emptive of state regulation.
Moreover, while it is true that Congress rejected the state-proposed §220(j), again, as the FCC noted in its order denying pre-emption, respondents make too much of too little. “The record of the Congressional hearings indicates little more than that the supporters of original section 220(j) believed that the provision was desirable to resolve a previous unsettled point of law under the predecessor provision of the Interstate Commerce Act. ... At most, this legislative history indicates that the 1934 Congress was not sure whether reenactment of the Interstate Commerce Act language would or would not preempt state accounting and depreciation rules and did not choose to resolve the question at that time.” 89 F. C. C. 2d, at 1103, 1106.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
37
] |
Jefferson B. SESSIONS, III, Attorney General, Petitioner
v.
Luis Ramón MORALES-SANTANA.
No. 15-1191.
Supreme Court of the United States
Argued Nov. 9, 2016.
Decided June 12, 2017.
Edwin S. Kneedler, Washington, DC, for Petitioner.
Stephen A. Broome, Los Angeles, CA, for Respondent.
Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner.
Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Donald E. Keener, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, DC, for Petitioner.
Kathleen M. Sullivan, Todd Anten, Justin T. Reinheimer, Ellyde R. Thompson, Quinn Emanuel Urquhart, & Sullivan, New York, NY, Stephen A. Broome, Quinn Emanuel Urquhart, & Sullivan, LLP, Los Angeles, CA, for Respondent.
Justice GINSBURG delivered the opinion of the Court.
This case concerns a gender-based differential in the law governing acquisition of U.S. citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a citizen of another nation. The main rule appears in 8 U.S.C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years' physical presence prior to the child's birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child's birth.
The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)'s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons "the equal protection of the laws." Nevertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.
I
A
We first describe in greater detail the regime Congress constructed. The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), § 301, 66 Stat. 235-236. Section 1401 sets forth the INA's rules for determining who "shall be nationals and citizens of the United States at birth" by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth. § 1401(a) (1958 ed.) ; § 1401 (2012 ed.). The primacy of § 1401 in the statutory scheme is evident. Comprehensive in coverage, § 1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here, § 1401(a)(7) provided for the U.S. citizenship of
"a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."
Congress has since reduced the duration requirement to five years, two after age 14. § 1401(g) (2012 ed.).
Section 1409 pertains specifically to children with unmarried parents. Its first subsection, § 1409(a), incorporates by reference the physical-presence requirements of § 1401, thereby allowing an acknowledged unwed citizen parent to transmit U.S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c) -a provision applicable only to unwed U.S.-citizen mothers-states an exception to the physical-presence requirements of §§ 1401 and 1409(a). Under § 1409(c)'s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad.
B
Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U.S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household.
José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55-56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U.S. ----, ---- - ----, 136 S.Ct. 1863, 1868-1869, 195 L.Ed.2d 179 (2016) ; 8 U.S.C. § 1101(a)(38) (1958 ed.) ("The term United States ... means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U.S.] Virgin Islands." (internal quotation marks omitted)); § 1101(a)(38) (2012 ed.) (similar), and José became a U.S. citizen under the Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 953 (a predecessor to 8 U.S.C. § 1402 ). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)'s requirement of five years' physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U.S. company in the then-U.S.-occupied Dominican Republic. Ibid.
By 1959, José attested in a June 21, 1971 affidavit presented to the U.S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. Id., at 166-167. While the record before us reveals little about Morales-Santana's childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana's birth certificate as his father. Id., at 163-164, 167. José also related in the same affidavit that he was then saving money "for the susten[ance] of [his] family" in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369.
C
In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years' physical presence after age 14. See supra, at 1686 - 1687, and n. 3. An immigration judge rejected Morales-Santana's claim to citizenship derived from the U.S. citizenship of his father, and ordered Morales-Santana's removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a-49a. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution's equal protection guarantee. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a-44a.
The United States Court of Appeals for the Second Circuit reversed the BIA's decision. 804 F.3d 520, 524 (2015). Relying on this Court's post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. Id., at 527-535. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen. Id., at 535-538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar, 536 F.3d 990 (2008), see 804 F.3d, at 530, 535, n. 17. We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). Taking up Morales-Santana's request for review, 579 U.S. ---- (2016), we consider the matter anew.
II
Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana's birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father's right to the equal protection of the laws.
Ordinarily, a party "must assert his own legal rights" and "cannot rest his claim to relief on the legal rights ... of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). But we recognize an exception where, as here, "the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). José Morales' ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the "close relationship" requirement. So, too, is the "hindrance" requirement well met. José Morales' failure to assert a claim in his own right "stems from disability," not "disinterest," Miller v. Albright, 523 U.S. 420, 450, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring in judgment), for José died in 1976, Record 140, many years before the current controversy arose. See Hodel v. Irving, 481 U.S. 704, 711-712, 723, n. 7, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (children and their guardians may assert Fifth Amendment rights of deceased relatives). Morales-Santana is thus the "obvious claimant," see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the "best available proponent," Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), of his father's right to equal protection.
III
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (women are the "center of home and family life," therefore they can be "relieved from the civic duty of jury service"); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (States may draw "a sharp line between the sexes"). Today, laws of this kind are subject to review under the heightened scrutiny that now attends "all gender-based classifications." J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; see, e.g., United States v. Virginia, 518 U.S. 515, 555-556, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (state-maintained military academy may not deny admission to qualified women).
Laws granting or denying benefits "on the basis of the sex of the qualifying parent," our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee. Califano v. Westcott, 443 U.S. 76, 84, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) ; see id., at 88-89, 99 S.Ct. 2655 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, 430 U.S. 199, 206-207, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977)
(plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors' benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648-653, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688-691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76-77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child's estate).
Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed,Frontiero,Wiesenfeld,Goldfarb, and Westcott . As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an "exceedingly persuasive justification." Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) (internal quotation marks omitted).
A
The defender of legislation that differentiates on the basis of gender must show "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ; alteration in original); see Tuan Anh Nguyen v. INS, 533 U.S. 53, 60, 70, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Moreover, the classification must substantially serve an important governmental interest today, for "in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality ... that once passed unnoticed and unchallenged." Obergefell v. Hodges, 576 U.S. ----, ----, 135 S.Ct. 2584, 2603, 192 L.Ed.2d 609 (2015). Here, the Government has supplied no "exceedingly persuasive justification," Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted), for § 1409(a) and (c)'s "gender-based" and "gender-biased" disparity, Westcott, 443 U.S., at 84, 99 S.Ct. 2655 (internal quotation marks omitted).
1
History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940 (1940 Act), see 54 Stat. 1139-1140, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.
Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. "[D]ominance [of] the husband," this Court observed in 1915, "is an ancient principle of our jurisprudence." Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4-15. Through the early 20th century, a male citizen automatically conferred U.S. citizenship on his alien wife. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604; see Kelly v. Owen, 7 Wall. 496, 498, 19 L.Ed. 283 (1869) (the 1855 Act "confers the privileges of citizenship upon women married to citizens of the United States"); C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 15-16, 20-21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. See, e.g., Act of Mar. 3, 1903, ch. 1012, § 37, 32 Stat. 1221 (wives and children entering the country to join permanent-resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S.Rep. No. 1515, 81st Cong., 2d Sess., 415-417 (1950) (wives exempt from literacy and quota requirements). And from 1790 until 1934, the foreign-born child of a married couple gained U.S. citizenship only through the father.
For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child's natural and sole guardian. At common law, the mother, and only the mother, was "bound to maintain [a nonmarital child] as its natural guardian." 2 J. Kent, Commentaries on American Law *215-*216 (8th ed. 1854); see Nguyen, 533 U.S., at 91-92, 121 S.Ct. 2053 (O'Connor, J., dissenting). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice. See Hearings on H.R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op. Atty. Gen. 397, 397-398 (1939); 39 Op. Atty. Gen. 290, 291 (1939). See also Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2199-2205 (2014) (hereinafter Collins).
In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: "[T]he mother [of a nonmarital child] stands in the place of the father ... [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian." 1940 Hearings 431 (internal quotation marks omitted).
This unwed-mother-as-natural-guardian notion renders § 1409's gender-based residency rules understandable. Fearing that a foreign-born child could turn out "more alien than American in character," the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Id., at 426-427. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture. See id., at 431; Collins 2203 (in "nearly uniform view" of U.S. officials, "almost invariably," the mother alone "concern[ed] herself with [a nonmarital] child" (internal quotation marks omitted)).
2
For close to a half century, as earlier observed, see supra, at 1689 - 1690, this Court has viewed with suspicion laws that rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 ; see Wiesenfeld, 420 U.S., at 643, 648, 95 S.Ct. 1225. In particular, we have recognized that if a "statutory objective is to exclude or 'protect' members of one gender" in reliance on "fixed notions concerning [that gender's] roles and abilities," the "objective itself is illegitimate." Mississippi Univ. for Women, 458 U.S., at 725, 102 S.Ct. 3331.
In accord with this eventual understanding, the Court has held that no "important [governmental] interest" is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that "unwed fathers [are] invariably less qualified and entitled than mothers" to take responsibility for nonmarital children. Caban v. Mohammed, 441 U.S. 380, 382, 394, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on "[s]tereotypes about women's domestic roles," the Court has observed, may "creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver." Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. See ibid. In light of the equal protection jurisprudence this Court has developed since 1971, see Virginia, 518 U.S., at 531-534, 116 S.Ct. 2264, § 1409(a) and (c)'s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
B
In urging this Court nevertheless to reject Morales-Santana's equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 ; and Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115. None controls this case.
The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788-789, and n. 1, 97 S.Ct. 1473. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791, 97 S.Ct. 1473. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' "exceptionally broad power" to admit or exclude aliens. Id., at 792, 794, 97 S.Ct. 1473. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review. See Nguyen, 533 U.S., at 60-61, 70, 121 S.Ct. 2053 ; Miller, 523 U.S., at 434-435, n. 11, 118 S.Ct. 1428 (opinion of Stevens, J.).
The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U.S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U.S. citizenship to those children. See § 1409(a)(4) (2012 ed.). After Miller produced no opinion for the Court, see 523 U.S., at 423, 118 S.Ct. 1428 we took up the issue anew in Nguyen . There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. See 533 U.S., at 62-63, 121 S.Ct. 2053. Morales-Santana's challenge does not renew the contest over § 1409's paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana's father, by marrying Morales-Santana's mother, satisfied that requirement.
Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent's prebirth residency in the United States, not to the parent's filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman "in order to have assimilated citizenship-related values to transmit to [his] child." 804 F.3d, at 531. And unlike Nguyen 's parental-acknowledgment requirement, § 1409(a)'s age-calibrated physical-presence requirements cannot fairly be described as "minimal." 533 U.S., at 70, 121 S.Ct. 2053.
C
Notwithstanding § 1409(a) and (c)'s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing "statelessness," i.e., a child's possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, but see supra, at 1683 - 1693, neither rationale survives heightened scrutiny.
1
We take up first the Government's assertion that § 1409(a) and (c)'s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U.S. values than unmarried women do. See supra, at 1694. Instead, it presents a novel argument, one it did not advance in Flores-Villar .
An unwed mother, the Government urges, is the child's only "legally recognized" parent at the time of childbirth. Brief for Petitioner 9-10, 28-32. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the "competing national influence" of the alien mother. Id., at 9-10. Congress, the Government suggests, designed the statute to bracket an unwed U.S.-citizen mother with a married couple in which both parents are U.S. citizens, and to align an unwed U.S.-citizen father with a married couple, one spouse a citizen, the other, an alien.
Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U.S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the "competing national influence" that, according to the Government, justifies imposing on unwed U.S.-citizen fathers, but not unwed U.S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, see id., at 9, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. See supra, at 1690 - 1693. Lump characterization of that kind, however, no longer passes equal protection inspection. See supra, at 1692 - 1693, and n. 13.
Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U.S. citizen continuously present in the United States for one year at any point in her life prior to the child's birth. The transmission holds even if the mother marries the child's alien father immediately after the child's birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U.S.-citizen father who falls a few days short of meeting § 1401(a)(7)'s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child's birth and raises the child in the United States. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151-152, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (holding unconstitutional state workers' compensation death-benefits statute presuming widows' but not widowers' dependence on their spouse's earnings); Westcott, 443 U.S., at 88-89, 99 S.Ct. 2655.
2
The Government maintains that Congress established the gender-based residency differential in § 1409(a) and (c) to reduce the risk that a foreign-born child of a U.S. citizen would be born stateless. Brief for Petitioner 33. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U.S.-citizen mother than it was for the foreign-born child of an unwed U.S.-citizen father. Ibid. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers.
As the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and reports on the 1940 and 1952 Acts "refer[s] to the problem of statelessness for children born abroad." 804 F.3d, at 532-533. See Collins 2205, n. 283 (author examined "many hundreds of pre-1940 administrative memos ... defend[ing] or explain[ing] recognition of the nonmarital foreign-born children of American mothers as citizens"; of the hundreds, "exactly one memo by a U.S. official ... mentions the risk of statelessness for the foreign-born nonmarital children of American mothers as a concern"). Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. See 1940 Hearings 430 ("stateless[ness]" is "object" of section on foundlings). The justification for § 1409's gender-based dichotomy, however, was not the child's plight, it was the mother's role as the "natural guardian" of a nonmarital child. See supra, at 1690 - 1693; Collins 2205 ("[T]he pronounced gender asymmetry of the Nationality Act's treatment of nonmarital foreign-born children of American mothers and fathers was shaped by contemporary maternalist norms regarding the mother's relationship with her nonmarital child-and the father's lack of such a relationship."). It will not do to "hypothesiz[e] or inven[t]" governmental purposes for gender classifications "post hoc in response to litigation." Virginia, 518 U.S., at 533, 535-536, 116 S.Ct. 2264.
Infecting the Government's risk-of-statelessness argument is an assumption without foundation. "[F]oreign laws that would put the child of the U.S.-citizen mother at risk of statelessness (by not providing for the child to acquire the father's citizenship at birth)," the Government asserts, "would protect the child of the U.S.-citizen father against statelessness by providing that the child would take his mother's citizenship." Brief for Petitioner 35. The Government, however, neglected to expose this supposed "protection" to a reality check. Had it done so, it would have recognized the formidable impediments placed by foreign laws on an unwed mother's transmission of citizenship to her child. See Brief for Scholars on Statelessness as Amici Curiae 13-22, A1-A15.
Experts who have studied the issue report that, at the time relevant here, in "at least thirty countries," citizen mothers generally could not transmit their citizenship to nonmarital children born within the mother's country. Id., at 14; see id., at 14-17. "[A]s many as forty-five countries," they further report, "did not permit their female citizens to assign nationality to a nonmarital child born outside the subject country with a foreign father." Id., at 18; see id., at 18-21. In still other countries, they also observed, there was no legislation in point, leaving the nationality of nonmarital children uncertain. Id., at 21-22; see Sandifer, A Comparative Study of Laws Relating to Nationality at Birth and to Loss of Nationality, 29 Am. J. Int'l L. 248, 256, 258 (1935) (of 79 nations studied, about half made no specific provision for the nationality of nonmarital children). Taking account of the foreign laws actually in force, these experts concluded, "the risk of parenting stateless children abroad was, as of [1940 and 1952], and remains today, substantial for unmarried U.S. fathers, a risk perhaps greater than that for unmarried U.S. mothers." Brief for Scholars on Statelessness as Amici Curiae 9-10; see id., at 38-39. One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U.S.-citizen mothers while ignoring the same risk for children of unwed U.S.-citizen fathers.
In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024. See generally UNHCR, Ending Statelessness Within 10 Years, online at http://www.unhcr.org/en-us/protection/statelessness/546217229/special-report-ending-statelessness-10-years.html (all Internet materials as last visited June 9, 2017). Cognizant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key component of its project the elimination of gender discrimination in such laws. UNHCR, The Campaign To End Statelessness: April 2016 Update 1 (referring to speech of UNHCR "highlight[ing] the issue of gender discrimination in the nationality laws of 27 countries-a major cause of statelessness globally"), online at http://www.unhcr.org/ibelong/wp-content/uploads/Campaign-Update-April-2016.pdf; UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2016, p. 1 ("Ensuring gender equality in nationality laws can mitigate the risks of statelessness."), online at http://www.refworld.org/docid/56de83ca4.html. In this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women and men with regard to transmission of citizenship to their children.
In sum, the Government has advanced no "exceedingly persuasive" justification for § 1409(a) and (c)'s gender-specific residency and age criteria. Those disparate criteria, we hold, cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.
IV
While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term § 1409(c) reserves for unwed mothers.
There are "two remedial alternatives," our decisions instruct, Westcott, 443 U.S., at 89, 99 S.Ct. 2655 (quoting Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result)), when a statute benefits one class (in this case, unwed mothers and their children), as § 1409(c) does, and excludes another from the benefit (here, unwed fathers and their children). "[A] court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion." Westcott, 443 U.S., at 89, 99 S.Ct. 2655 (quoting Welsh, 398 U.S., at 361, 90 S.Ct. 1792 (opinion of Harlan, J.)). "[W]hen the 'right invoked is that to equal treatment,' the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." Heckler v. Mathews, 465 U.S. 728, 740, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 76 L.Ed. 265 (1931) ; emphasis deleted). "How equality is accomplished ... is a matter on which the Constitution is silent." Levin v. Commerce Energy, Inc ., 560 U.S. 413, 426-427, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010).
The choice between these outcomes is governed by the legislature's intent, as revealed by the statute at hand. See id., at 427, 130 S.Ct. 2323 ("On finding unlawful discrimination, ... courts may attempt, within the bounds of their institutional competence, to implement what the legislature would have willed had it been apprised of the constitutional infirmity."). See also Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ("the touchstone for any decision about remedy is legislative intent").
Ordinarily, we have reiterated, "extension, rather than nullification, is the proper course." Westcott, 443 U.S., at 89, 99 S.Ct. 2655. Illustratively, in a series of cases involving federal financial assistance benefits, the Court struck discriminatory exceptions denying benefits to discrete groups, which meant benefits previously denied were extended. See, e.g., Goldfarb, 430 U.S., at 202-204, 213-217, 97 S.Ct. 1021 (plurality opinion) (survivors' benefits), aff'g 396 F.Supp. 308, 309 (E.D.N.Y.1975) (per curiam ); Jimenez v. Weinberger, 417 U.S. 628, 630-631, and n. 2, 637-638, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (disability benefits); Department of Agriculture v. Moreno, 413 U.S. 528, 529-530, 538, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (food stamps); Frontiero, 411 U.S., at 678-679, and n. 2, 691, and n. 25 (plurality opinion) (military spousal benefits). Here, however, the discriminatory exception consists of favorable treatment for a discrete group (a shorter physical-presence requirement for unwed U.S.-citizen mothers giving birth abroad). Following the same approach as in those benefits cases-striking the discriminatory exception-leads here to extending the general rule of longer physical-presence requirements to cover the previously favored group.
The Court has looked to Justice Harlan's concurring opinion in Welsh v.
United States, 398 U.S., at 361-367, 90 S.Ct. 1792 in considering whether the legislature would have struck an exception and applied the general rule equally to all, or instead, would have broadened the exception to cure the equal protection violation. In making this assessment, a court should " 'measure the intensity of commitment to the residual policy' "-the main rule, not the exception-" 'and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.' " Heckler, 465 U.S., at 739, n. 5, 104 S.Ct. 1387 (quoting Welsh, 398 U.S., at 365, 90 S.Ct. 1792 (opinion of Harlan, J.)).
The residual policy here, the longer physical-presence requirement stated in §§ 1401(a)(7) and 1409, evidences Congress' recognition of "the importance of residence in this country as the talisman of dedicated attachment." Rogers v. Bellei, 401 U.S. 815, 834, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971) ; see Weedin v. Chin Bow, 274 U.S. 657, 665-666, 47 S.Ct. 772, 71 L.Ed. 1284 (1927) (Congress "attached more importance to actual residence in the United States as indicating a basis for citizenship than it did to descent.... [T]he heritable blood of citizenship was thus associated unmistakeably with residence within the country which was thus recognized as essential to full citizenship." (internal quotation marks omitted)). And the potential for "disruption of the statutory scheme" is large. For if § 1409(c)'s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U.S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.
Although extension of benefits is customary in federal benefit cases, see supra, at 1698 - 1699, n. 22, 25, all indicators in this case point in the opposite direction. Put to the choice, Congress, we believe, would have abrogated § 1409(c)'s exception, preferring preservation of the general rule.
V
The gender-based distinction infecting §§ 1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we must adopt the remedial course Congress likely would have chosen "had it been apprised of the constitutional infirmity." Levin, 560 U.S., at 427, 130 S.Ct. 2323. Although the preferred rule in the typical case is to extend favorable treatment, see Westcott, 443 U.S., at 89-90, 99 S.Ct. 2655 this is hardly the typical case. Extension here would render the special treatment Congress prescribed in § 1409(c), the one-year physical-presence requirement for U.S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)'s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U.S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, § 1401(a)(7)'s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers. See Brief for Petitioner 12, 51; Reply Brief 19, n. 3.
The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice GORSUCH took no part in the consideration or decision of this case.
Justice THOMAS, with whom Justice ALITO joins, concurring in the judgment in part.
The Court today holds that we are "not equipped to" remedy the equal protection injury that respondent claims his father suffered under the Immigration and Nationality Act (INA) of 1952. Ante, at 1698. I agree with that holding. As the majority concludes, extending 8 U.S.C. § 1409(c)'s 1-year physical presence requirement to unwed citizen fathers (as respondent requests) is not, under this Court's precedent, an appropriate remedy for any equal protection violation. See ante, at 1698. Indeed, I am skeptical that we even have the "power to provide relief of the sort requested in this suit-namely, conferral of citizenship on a basis other than that prescribed by Congress." Tuan Anh Nguyen v. INS, 533 U.S. 53, 73, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (Scalia, J., joined by THOMAS, J., concurring) (citing Miller v. Albright, 523 U.S. 420, 452, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (Scalia, J., joined by THOMAS, J., concurring in judgment)).
The Court's remedial holding resolves this case. Because respondent cannot obtain relief in any event, it is unnecessary for us to decide whether the 1952 version of the INA was constitutional, whether respondent has third-party standing to raise an equal protection claim on behalf of his father, or whether other immigration laws (such as the current versions of §§ 1401(g) and 1409 ) are constitutional. I therefore concur only in the judgment reversing the Second Circuit.
As this case involves federal, not state, legislation, the applicable equality guarantee is not the Fourteenth Amendment's explicit Equal Protection Clause, it is the guarantee implicit in the Fifth Amendment's Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) ("[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. This Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment." (citations and internal quotation marks omitted; alteration in original)).
Unless otherwise noted, references to 8 U.S.C. §§ 1401 and 1409 are to the 1958 edition of the U.S. Code, the version in effect when respondent Morales-Santana was born. Section 1409(a) and (c) have retained their numbering; § 1401(a)(7) has become § 1401(g).
The reduction affects only children born on or after November 14, 1986. § 8(r), 102 Stat. 2619; see §§ 12-13, 100 Stat. 3657. Because Morales-Santana was born in 1962, his challenge is to the ten-years, five-after-age-14 requirement applicable at the time of his birth.
See generally B. Calder, The Impact of Intervention: The Dominican Republic During the U.S. Occupation of 1916-1924, pp. 17, 204-205 (1984) (describing establishment of a U.S. military government in the Dominican Republic in 1916, and plans, beginning in late 1920, for withdrawal).
There is no question that Morales-Santana himself satisfied the five-year residence requirement that once conditioned a child's acquisition of citizenship under § 1401(a)(7). See § 1401(b).
We explain why Morales-Santana has third-party standing in view of the Government's opposition to such standing in Flores-Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). See Brief for United States, O.T. 2010, No. 09-5801, pp. 10-14.
See Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) ("It is difficult to understand [Reed ] without an assumption that some special sensitivity to sex as a classifying factor entered into the analysis.... Only by importing some special suspicion of sex-related means ... can the [Reed ] result be made entirely persuasive.").
The provision was first codified in 1940 at 8 U.S.C. § 605, see § 205, 54 Stat. 1139-1140, and recodified in 1952 at § 1409, see § 309, 66 Stat. 238-239. For simplicity, we here use the latter designation.
This "ancient principle" no longer guides the Court's jurisprudence. See Kirchberg v. Feenstra, 450 U.S. 455, 456, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) (invalidating, on equal protection inspection, Louisiana's former "head and master" rule).
See generally C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 58-61 (1998); Sapiro, Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, 13 Politics & Society 1, 4-10 (1984). In 1907, Congress codified several judicial decisions and prevailing State Department views by providing that a female U.S. citizen automatically lost her citizenship upon marriage to an alien. Act of Mar. 2, 1907, ch. 2534, § 3, 34 Stat. 1228; see L. Gettys, The Law of Citizenship in the United States 119 (1934). This Court upheld the statute. Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915).
Act of Mar. 26, 1790, ch. 3, 1 Stat. 104; Act of Jan. 29, 1795, § 3, 1 Stat. 415; Act of Apr. 14, 1802, § 4, 2 Stat. 155; Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604; see 2 J. Kent, Commentaries on American Law *52-*53 (8th ed. 1854) (explaining that the 1802 Act, by adding "fathers," "seem[ed] to remove the doubt" about "whether the act intended by the words, 'children of persons,' both the father and mother, ... or the father only"); Kerber, No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship 36 (1998); Brief for Professors of History et al. as Amici Curiae 5-6. In 1934, Congress moved in a new direction by allowing a married mother to transmit her citizenship to her child. Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797.
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), on which the Court relied in Tuan Anh Nguyen v. INS, 533 U.S. 53, 62-64, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001), recognized that laws treating fathers and mothers differently "may not constitutionally be applied ... where the mother and father are in fact similarly situated with regard to their relationship with the child," Lehr, 463 U.S., at 267, 103 S.Ct. 2985. The "similarly situated" condition was not satisfied in Lehr, however, for the father in that case had "never established any custodial, personal, or financial relationship" with the child. Ibid.
Here, there is no dispute that José Morales formally accepted parental responsibility for his son during Morales-Santana's childhood. See supra, at 1688. If subject to the same physical-presence requirements that applied to unwed U.S.-citizen mothers, José would have been recognized as Morales-Santana's father "as of the date of birth." § 1409(a) ; see § 1409(c) ("at birth").
Even if stereotypes frozen into legislation have "statistical support," our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 139, n. 11, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; see, e.g.,Craig v. Boren, 429 U.S. 190, 198-199, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ; Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). In fact, unwed fathers assume responsibility for their children in numbers already large and notably increasing. See Brief for Population and Family Scholars as Amici Curiae 3, 5-13 (documenting that nonmarital fathers "are [often] in a parental role at the time of their child's birth," and "most ... formally acknowledge their paternity either at the hospital or in the birthing center just after the child is born"); Brief for American Civil Liberties Union et al. as Amici Curiae 22 (observing, inter alia, that "[i]n 2015, fathers made up 16 percent of single parents with minor children in the United States").
In 1986, nine years after the decision in Fiallo, Congress amended the governing law. The definition of "child" that included offspring of natural mothers but not fathers was altered to include children born out of wedlock who established a bona fide parent-child relationship with their natural fathers. See Immigration Reform and Control Act of 1986, § 315(a), 100 Stat. 3439, as amended, 8 U.S.C. § 1101(b)(1)(D) (1982 ed., Supp. IV); Miller v. Albright, 523 U.S. 420, 429, n. 4, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (opinion of Stevens, J.).
Section 1409(a), following amendments in 1986 and 1988, see § 13, 100 Stat. 3657; § 8(k), 102 Stat. 2618, now states:
"The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, ... shall apply as of the date of birth to a person born out of wedlock if-
"(1) a blood relationship between the person and the father is established by clear and convincing evidence,
"(2) the father had the nationality of the United States at the time of the person's birth,
"(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
"(4) while the person is under the age of 18 years-
"(A) the person is legitimated under the law of the person's residence or domicile,
"(B) the father acknowledges paternity of the person in writing under oath, or
"(C) the paternity of the person is established by adjudication of a competent court."
In Flores-Villar, the Government asserted only the risk-of-statelessness rationale, which it repeats here. See Brief for United States, O.T. 2010, No. 09-5801, at 22-39; infra, at 1695 - 1698.
But see § 1409(a) (unmarried U.S.-citizen father who satisfies the physical-presence requirements and, after his child is born, accepts parental responsibility transmits his citizenship to the child "as of the date of birth").
When a child is born abroad to married parents, both U.S. citizens, the child ranks as a U.S. citizen at birth if either parent "has had a residence in the United States or one of its outlying possessions, prior to the birth of [the child]." § 1401(a)(3) (1958 ed.) ; § 1401(c) (2012 ed.) (same).
Brief for Respondent 26, n. 9, presents this example: "Child A is born in Germany and raised there by his U.S.-citizen mother who spent only a year of her life in the United States during infancy; Child B is born in Germany and is legitimated and raised in Germany by a U.S.-citizen father who spent his entire life in the United States before leaving for Germany one week before his nineteenth birthday. Notwithstanding the fact that Child A's 'legal relationship' with his U.S.-citizen mother may have been established 'at the moment of birth,' and Child B's 'legal relationship' with his U.S.-citizen father may have been established a few hours later, Child B is more likely than Child A to learn English and assimilate U.S. values. Nevertheless, under the discriminatory scheme, only Child A obtains U.S. citizenship at birth." For another telling example, see Brief for Equality Now et al. as Amici Curiae 19-20.
A Senate Report dated January 29, 1952, is the sole exception. That Report relates that a particular problem of statelessness accounts for the 1952 Act's elimination of a 1940 Act provision the State Department had read to condition a citizen mother's ability to transmit nationality to her child on the father's failure to legitimate the child prior to the child's 18th birthday. See 1940 Act, § 205, 54 Stat. 1140 ("In the absence of ... legitimation or adjudication [during the child's minority], ... the child" born abroad to an unmarried citizen mother "shall be held to have acquired at birth [the mother's] nationality status." (emphasis added)). The 1952 Act eliminated this provision, allowing the mother to transmit citizenship independent of the father's actions. S.Rep. No. 1137, 82d Cong., 2d Sess., 39 (1952) ("This provision establish[es] the child's nationality as that of the [citizen] mother regardless of legitimation or establishment of paternity...." (emphasis added)). This sole reference to a statelessness problem does not touch or concern the different physical-presence requirements carried over from the 1940 Act into the 1952 Act.
Justice THOMAS, joined by Justice ALITO, sees our equal protection ruling as "unnecessary," post, at 1701 - 1703, given our remedial holding. But, "as we have repeatedly emphasized, discrimination itself ... perpetuat[es] 'archaic and stereotypic notions' " incompatible with the equal treatment guaranteed by the Constitution. Heckler v. Mathews, 465 U.S. 728, 739, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ).
After silently following the path Justice Harlan charted in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), in several cases involving gender-based discrimination, see, e.g.,Wiesenfeld, 420 U.S., at 642, 653, 95 S.Ct. 1225 (extending benefits); Frontiero v. Richardson, 411 U.S. 677, 690-691, and n. 25, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) ( plurality opinion) (same), the Court unanimously adopted his formulation in Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979). See id., at 89-90, 99 S.Ct. 2655 (opinion for the Court); id., at 94-95, 99 S.Ct. 2655 (Powell, J., concurring in part and dissenting in part). The appropriate remedy, the Westcott majority held, was extension to unemployed mothers of federal family-aid unemployment benefits provided by statute only for families of unemployed fathers. Id., at 90-93, 99 S.Ct. 2655. In the dissent's view, nullification was the proper course. Id., at 94-96, 99 S.Ct. 2655.
Because the manner in which a State eliminates discrimination "is an issue of state law," Stanton v. Stanton, 421 U.S. 7, 18, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), upon finding state statutes constitutionally infirm, we have generally remanded to permit state courts to choose between extension and invalidation. See Levin v. Commerce Energy, Inc., 560 U.S. 413, 427, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010). In doing so, we have been explicit in leaving open on remand the option of removal of a benefit, as opposed to extension. See, e.g.,Orr v. Orr, 440 U.S. 268, 283-284, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) (leaving to state courts remedy for unconstitutional imposition of alimony obligations on husbands but not wives); Stanton, 421 U.S., at 17-18, 95 S.Ct. 1373 (how to eliminate unconstitutional age differential, for child-support purposes, between male and female children, is "an issue of state law to be resolved by the Utah courts").
We note, however, that a defendant convicted under a law classifying on an impermissible basis may assail his conviction without regard to the manner in which the legislature might subsequently cure the infirmity. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), for example, the defendant participated in a civil rights demonstration in front of a school. Convicted of violating a local "antipicketing" ordinance that exempted "peaceful picketing of any school involved in a labor dispute," he successfully challenged his conviction on equal protection grounds. Id., at 107, 92 S.Ct. 2294 (internal quotation marks omitted). It was irrelevant to the Court's decision whether the legislature likely would have cured the constitutional infirmity by excising the labor-dispute exemption. In fact, the legislature had done just that subsequent to the defendant's conviction. Ibid., and n. 2. "Necessarily," the Court observed, "we must consider the facial constitutionality of the ordinance in effect when [the defendant] was arrested and convicted." Id., at 107, n. 2, 92 S.Ct. 2294. See also Welsh, 398 U.S., at 361-364, 90 S.Ct. 1792 (Harlan, J., concurring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription).
Distinctions based on parents' marital status, we have said, are subject to the same heightened scrutiny as distinctions based on gender. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).
In crafting the INA in 1952, Congress considered, but did not adopt, an amendment that would have applied the shorter one-year continuous physical-presence requirement now contained in § 1409(c) to all foreign-born children of parents with different nationalities. See S. 2842, 82d Cong., 2d Sess., § 301(a)(5) (1952).
Compare with the remedial issue presented here suits under Title VII of the Civil Rights Act of 1964 challenging laws prescribing terms and conditions of employment applicable to women only, e.g., minimum wage, premium pay, rest breaks, or lunch breaks. Most courts, perhaps mindful of the mixed motives implicated in passage of such legislation (some conceiving the laws as protecting women, others, as discouraging employers from hiring women), and, taking into account the economic burdens extension would impose on employers, have invalidated the provisions. See, e.g.,Homemakers, Inc., of Los Angeles v. Division of Industrial Welfare, 509 F.2d 20, 22-23 (C.A.9 1974), aff'g 356 F.Supp. 1111 (1973) (N.D.Cal.1973); Burns v. Rohr Corp., 346 F.Supp. 994, 997-998 (S.D.Cal.1972) ; RCA del Caribe, Inc. v. Silva Recio, 429 F.Supp. 651, 655-658 (D.P.R.1976) ; Doctors Hospital, Inc. v. Recio, 383 F.Supp. 409, 417-418 (D.P.R.1974) ; State v. Fairfield Communities Land Co., 260 Ark. 277, 279-281, 538 S.W.2d 698, 699-700 (1976) ; Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 178-183, and n. 6, 281 N.E.2d 1, 6-9, and n. 6 (1972) ; Vick v. Pioneer Oil Co., 569 S.W.2d 631, 633-635 (Tex.Civ.App.1978).
The Court of Appeals found the remedial issue "the most vexing problem in this case." 804 F.3d 520, 535 (C.A.2 2015).
That Morales-Santana did not seek this outcome does not restrain the Court's judgment. The issue turns on what the legislature would have willed. "The relief the complaining party requests does not circumscribe this inquiry." Levin, 560 U.S., at 427, 130 S.Ct. 2323.
* * *
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
6
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TURNER v. DEPARTMENT OF EMPLOYMENT SECURITY OF UTAH et al.
No. 74-1312.
Decided November 17, 1975
Per Curiam.
The petitioner, Mary Ann Turner, challenges the constitutionality of a provision of Utah law that makes pregnant women ineligible for unemployment benefits for a period extending from 12 weeks before the expected date of childbirth until a date six weeks after childbirth. Utah Code Ann. § 35-4^5 (h) (1) (1974).
The petitioner was separated involuntarily from her employment on November 3, 1972, for reasons unrelated to her pregnancy. In due course she applied for unemployment compensation and received benefits until March 11, 1973, 12 weeks prior to the expected date of the birth of her child. Relying upon § 35-4-5 (h) (1), the respondent Department of Employment Security ruled that she was disqualified from receiving any further payments after that date and until six weeks after the date of her child’s birth. Thereafter, Mrs. Turner worked intermittently as a temporary clerical employee. After exhausting all available administrative remedies, the petitioner appealed the respondents’ rulings to the Utah Supreme Court, claiming that the statutory provision deprived her of protections guaranteed by the Fourteenth Amendment. The state court rejected her contentions, ruling that the provision violated no constitutional guarantee. 531 P. 2d 870. The petition for certiorari now before us brings the constitutional issues here.
The Utah unemployment compensation system grants benefits to persons who are unemployed and are available for employment. Utah Code Ann. § 35-4-4 (c) (1974). One provision of the statute makes a woman ineligible to receive benefits “during any week of unemployment when it is found by the commission that her total or partial unemployment is due to pregnancy.” § 35-4-5 (h)(2). In contrast to this requirement of an individualized determination of ineligibility, the challenged provision establishes a blanket disqualification during an 18-week period immediately preceding and following childbirth. § 35-4-5 (h)(1). The Utah Supreme Court’s opinion makes clear that the challenged ineligibility provision rests on a conclusive presumption that women are “unable to work” during the 18-week period because of pregnancy and childbirth. See 531 P. 2d, at 871.
The presumption of incapacity and unavailability for employment created by the challenged provision is virtually identical to the presumption found unconstitutional in Cleveland Board of Education v. LaFleur, 414 U. S. 632. In LaFleur, the Court held that a school board's mandatory maternity leave rule which required a teacher to quit her job several months before the expected birth of her child and prohibited her return to work until three months after childbirth violated the Fourteenth Amendment. Noting that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause,” 414 U. S., at 639, the Court held that the Constitution required a more individualized approach to the question of the teacher's physical capacity to continue her employment during pregnancy and resume her duties after childbirth since “the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter.” Id., at 645.
It cannot be doubted that a substantial number of women are fully capable of working well into their last trimester of pregnancy and of resuming employment shortly after childbirth. In this very case Mrs. Turner was employed intermittently as a clerical worker for portions of the 18-week period during which she was conclusively presumed to be incapacitated. The Fourteenth Amendment requires that unemployment compensation boards no less than school boards must achieve legitimate state ends through more individualized means when basic human liberties are at stake. We conclude that the Utah unemployment compensation statute's incorporation of a conclusive presumption of incapacity during so long a period before and after childbirth is constitutionally invalid under the principles of the LaFleur case.
Accordingly, the writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Supreme Court of Utah for further proceedings not inconsistent with this opinion.
So ordered.
The Chief Justice and Mr. Justice Biackmun would not summarily vacate the judgment of the Supreme Court of Utah. Instead, they would grant cer-tiorari and set the case for full briefing and oral argument.
Mr. Justice Rehnquist dissents.
The respondents contend that the challenged provision is a limitation on the coverage of the Utah unemployment compensation system and not a presumption of unavailability for employment based on pregnancy. This characterization of the statute, advanced in an attempt to analogize the provision to the law upheld in Geduldig v. Aiello, 417 U. S. 484, conflicts with the respondents’ argument to the Utah Supreme Court. Before that court respondents claimed that “ ‘near term pregnancy is an endemic condition relating to employability.’ ” The Utah Supreme Court’s decision is premised on the impact of pregnancy on a woman’s ability to work. Its opinion makes no mention of coverage limitations or insurance principles central to Aiello. The construction of the statute by the State’s highest court thus undermines the respondents’ belated claim that the provision can be analogized to the law sustained in Aiello.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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[
116
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FORSYTH COUNTY, GEORGIA v. NATIONALIST MOVEMENT
No. 91-538.
Argued March 31, 1992
Decided June 19, 1992
Blackmun, J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, Scalia, and Thomas, JJ., joined, post, p. 137.
Robert S. Stubbs III argued the cause for petitioner. With him on the briefs was Gordon A. Smith.
Richard Barrett argued the cause and filed a brief for respondent.
Jody M. Litchford filed a brief for the city of Orlando et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Eric Neisser, Steven B. Shapiro, John A Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for Public Citizen by David C. Vladeck and Alan B. Morrison.
Justice Blackmun
delivered the opinion of the Court.
In this case, with its emotional overtones, we must decide whether the free speech guarantees of the First and Fourteenth Amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order.
H-C
Petitioner Forsyth County is a primarily rural Georgia county approximately 30 miles northeast of Atlanta. It has had a troubled racial history. In 1912, in one month, its entire African-American population, over 1,000 citizens, was driven systematically from the county in the wake of the rape and murder of a white woman and the lynching of her accused assailant. Seventy-five years later, in 1987, the county population remained 99% white.
Spurred by this history, Hosea Williams, an Atlanta city councilman and civil rights personality, proposed a Forsyth County “March Against Fear and Intimidation” for January 17, 1987. Approximately 90 civil rights demonstrators attempted to parade in Cumming, the county seat. The marchers were met by members of the Forsyth County Defense League (an independent affiliate of respondent, The Nationalist Movement), of the Ku Klux Klan, and other Cumming residents. In all, some 400 counterdemonstrators lined the parade route, shouting racial slurs. Eventually, the counterdemonstrators, dramatically outnumbering police officers, forced the parade to a premature halt by throwing rocks and beer bottles.
Williams planned a return march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally. The 1,000 counterdemonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $670,000. in police protection, of which Forsyth County apparently paid a small portion. See App. to Pet. for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section, p. 5, col. 1.
“As a direct result” of these two demonstrations, the For-syth County Board of Commissioners enacted Ordinance 34 on January 27,1987. See Brief for Petitioner 6. The ordinance recites that it is “to provide for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes.” See App. to Pet. for Cert. 98. The board of commissioners justified the ordinance by explaining that “the cost of necessary and reasonable protection of persons participating in or observing said parades, assemblies, demonstrations, road closings and other related activities exceeds the usual and normal cost of law enforcement for which those participating should be held accountable and responsible.” Id., at 100. The ordinance required the permit applicant to defray these costs by paying a fee, the amount of which was to be fixed “from time to time” by the Board. Id., at 105.
Ordinance 34 was amended on June 8,1987, to provide that every permit applicant “ ‘shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place/ ” Id., at 119. In addition, the county administrator was empowered to “ ‘adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.’” Ibid.
In January 1989, respondent The Nationalist Movement proposed to demonstrate in opposition to the federal holiday commemorating the birthday of Martin Luther King, Jr. In Forsyth County, the Movement sought to “conduct a rally and speeches for one and a half to two hours” on the courthouse steps on a Saturday afternoon. Nationalist Movement v. City of Cumming, 913 F. 2d 885, 887 (CA11 1990). The county imposed a $100 fee. The fee did not include any calculation for expenses incurred by law enforcement authorities, but was based on 10 hours of the county administrator’s time in issuing the permit. The county administrator testified that the cost of his time was deliberately undervalued and that he did not charge for the clerical support involved in processing the application. Tr. 135-139.
The Movement did not pay the fee and did not hold the rally. Instead, it instituted this action on January 19, 1989, in the United States District Court for the Northern District of Georgia, requesting a temporary restraining order and permanent injunction prohibiting Forsyth County from interfering with the Movement’s plans.
The District Court denied the temporary restraining order and injunction. It found that, although “the instant ordinance vests much discretion in the County Administrator in determining an appropriate fee,” the determination of the fee was “based solely upon content-neutral criteria; namely, the actual costs incurred investigating and processing the application.” App. to Pet. for Cert. 13-14. Although it expressed doubt about the constitutionality of that portion of the ordinance that permits fees to be based upon the costs incident to maintaining public order, the District Court found that “the county ordinance, as applied in this ease, is not unconstitutional.” Id., at 14.
The United States Court of Appeals for the Eleventh Circuit reversed this aspect of the District Court's judgment. Nationalist Movement v. City of Cumming, 913 F. 2d 885 (1990). Relying on its prior opinion in Central Florida Nuclear Freeze Campaign v. Walsh, 774 F. 2d 1515, 1521 (CA11 1985), cert. denied, 475 U. S. 1120 (1986), the Court of Appeals held: “An ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment.” 913 F. 2d, at 891 (internal quotation marks omitted). The court determined that a permit fee of up to $1,000 a day exceeded this constitutional threshold. Ibid. One judge concurred specially, calling for Central Florida to be overruled. 913 F. 2d, at 896.
-- The Court of Appeals then voted to vacate the panel's opinion ánd to rehear the ease en banc, 921 F. 2d 1125 (1990). After further briefing, the court issued a per cu-riam opinion reinstating the panel opinion in its entirety. 934 F. 2d 1482, 1483 (1991). Two judges, concurring in part and dissenting in part, agreed that any fee imposed on the exercise of First Amendment rights in a traditional public forum must be nominal if it is to survive constitutional scrutiny. Those judges, however, did not believe that the county ordinance swept so broadly that it was facially invalid, and would have remanded the case for the District Court to determine whether the fee was nominal. Ibid. Three judges dissented, arguing that this Court’s cases do not require that fees be nominal. Id., at 1493.
We granted certiorari to resolve a conflict among the Courts of Appeals concerning the constitutionality of charging a fee for a speaker in a public forum. 502 U. S. 1023 (1991).
II
Respondent mounts a facial challenge to the Forsyth County ordinance. It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 798-799, and n. 15 (1984); Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987). This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e.g., New York v. Ferber, 458 U.S. 747, 772 (1982); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in eases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Ala bama, 310 U. S. 88, 97 (1940); Freedman v. Maryland, 380 U. S. 51, 56 (1965); Taxpayers for Vincent, 466 U. S., at 798, n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U. S. 601 (1973); Jews for Jesus, 482 U. S., at 574-575.
The Forsyth County ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in “the archetype of a traditional public forum,” Frisby v. Schultz, 487 U. S. 474, 480 (1988), is a prior restraint on speech, see Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969); Niemotko v. Maryland, 340 U. S. 268, 271 (1951). Although there is a “heavy presumption” against the validity of a prior restraint, Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963), the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally, see Cox v. New Hampshire, 312 U. S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. See Freedman v. Maryland, supra. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. See United States v. Grace, 461 U. S. 171, 177 (1983).
-A
Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is “inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981). To curtail that risk, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license” must contain “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U. S., at 150-151; see also Niemotko, 340 U. S., at 271. The reasoning is simple: If the permit scheme “involves appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940), by the licensing authority, “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great” to be permitted, Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 553 (1975).
In evaluating respondent’s facial challenge, we must consider the county’s authoritative constructions of the ordinance, including its own implementation and interpretation of it. See Ward v. Rock Against Racism, 491 U. S. 781, 795-796 (1989); Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 770, n. 11 (1988); Gooding v. Wilson, 405 U. S. 518, 524-528 (1972). In the present litigation, the county has made clear how it interprets and implements the ordinance. The ordinance can apply to any activity on public property— from parades, to street corner speeches, to bike races — and the fee assessed may reflect the county’s police and administrative costs. Whether or not, in any given instance, the fee would include any or all of the county’s administrative and security expenses is decided by the county administrator.
In this case, according to testimony at the District Court hearing, the administrator based the fee on his own judgment of what would be reasonable! Although the county paid for clerical support and staff as an “expense incident to the administration” of the permit, the administrator testified that he chose in this instance not to include that expense in the fee. The administrator also attested that he had deliberately kept the fee low by undervaluing the cost of the time he spent processing the application. Even if he had spent more time on the project, he claimed, he would not have charged more. He further testified that, in this instance, he chose not to include any charge for expected security expense. Tr. 135-139.
The administrator also explained that the county had imposed a fee pursuant to a permit on two prior occasions. The year before, the administrator had assessed a fee of $100 for a permit for the Movement. The administrator testified that he charged the same fee the following year (the year in question here), although he did not state that the Movement was seeking the same use of county property or that it required the same amount of administrative time to process. Id, at 138. The administrator also once charged bike-race organizers $25 to hold a race on county roads, but he did not explain why processing a bike-race permit demanded less administrative time than processing a parade permit or why he had chosen to assess $25 in that instance. Id., at 143-144. At oral argument in this Court, counsel for Forsyth County stated that the administrator had levied a $5 fee on the Girl Scouts for an activity on county property. Tr. of Oral Arg. 26. Finally, the administrator testified that in other eases the county required neither a permit nor a fee for activities in other county facilities or on county land. Tr. 146.
Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards,” Niemotko, 340 U. S., at 271, guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time — or even whether to charge at all — is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.
B
The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.
The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said . . . activitfyj.” See App. to Pet. for Cert. 100. In order to assess accurately the cost of security for parade participants, the administrator “ ‘must necessarily examine the content of the message that is conveyed/” Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987), quoting FCC v. League of Women Voters of Cal., 468 U. S. 364, 383 (1984), estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.
Although petitioner agrees that the cost of policing relates to content, see Tr. of Oral Arg. 15 and 24, it contends that the ordinance is content neutral because it is aimed only at a secondary effect — the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee’s justification ‘“ha[s] nothing to do with content.’” Ward, 491 U. S., at 792, quoting Boos v. Barry, 485 U. S. 312, 320 (1988) (opinion of O’Connor, J.).
The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. See id., at 321 (opinion of O’Connor, J.); id., at 334 (opinion of Brennan, J.); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); Murdock v. Pennsylvania, 319 U. S. 105, 116 (1943); cf. Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) (fact that city is financially burdened when listeners throw leaflets on the street does not justify restriction on distribution of leaflets). Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob. See Gooding v. Wilson, 405 U. S. 518 (1972); Terminiello v. Chicago, 337 U. S. 1 (1949).
This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984); Simon & Schuster, Inc. v. Member of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991); Arkansas Writers' Project, 481 U. S., at 230. The county offers only one justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee. See id., at 229-231.
Petitioner insists that its ordinance cannot be unconstitutionally content based because it contains much of the same language as did the state statute upheld in Cox v. New Hampshire, 312 U. S. 569 (1941). Although the Supreme Court of New Hampshire had interpreted the statute at issue in Cox to authorize the municipality to charge a permit fee for the “maintenance of public order,” no fee was actually assessed. See id., at 577. Nothing in this Court’s opinion suggests that the statute, as interpreted by the New Hampshire Supreme Court, called for charging a premium in the case of a controversial political message delivered before a hostile audience. In light of the Court’s subsequent First Amendment jurisprudence, we do not read Cox to permit such a premium.
C
Petitioner, as well as the Court of Appeals and the District Court, all rely on the maximum allowable fee as the touchstone of constitutionality. Petitioner contends that the $1,000 cap on the fee ensures that the ordinance will not result in content-based discrimination. The ordinance was found unconstitutional by the Court of Appeals because the $1,000 cap was not sufficiently low to be “nominal.” Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of speech does not become more constitutional because it is a small tax.
The lower courts derived their requirement that the permit fee be “nominal” from a sentence in the opinion in Murdock v. Pennsylvania, 319 U. S. 105 (1943). In Murdock, the Court invalidated a flat license fee levied on distributors of religious literature. In distinguishing the case from Cox, where the Court upheld a permit fee, the Court stated: “And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors.” 319 U. S., at 116. This sentence does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are constitutionally permissible. It reflects merely one distinction between the facts in Murdock and those in Cox.
The tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest, not because it was of a particular size. Similarly, the provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
The 1910 census counted 1,098 African-Americans in Forsyth County. U. S. Dept, of Commerce, Bureau of Census, Negro Population 1790-1915, p. 779 (1918). For a description of the 1912 events, see generally Hack-worth, “Completing the Job” in Forsyth County, 8 Southern Exposure 26 (1980).
See J. Clements, Georgia Facts 184 (1989); Hackworth, 8 Southern Exposure, at 26 (“[0]ther than an occasional delivery truck driver or visiting government official, there are currently no black faces anywhere in the county”).
See Chicago Tribune, Jan. 25, 1987, p. 1; Los Angeles Times, Jan. 25, 1987, p. 1, col. 2; App. to Pet. for Cert. 89-91.
Petitioner Forsyth County does not indicate what portion of these costs it paid. Newspaper articles reported that the State of Georgia paid an estimated $579,148. Other government entities paid an additional $29,769. Figures were not available for the portion paid by the city of Atlanta for the police it sent. See id., at 95-97.
The ordinance was amended at other times, too, but those amendments are not under challenge here.
The demonstration proposed was to consist of assembling at the For-syth County High School, marching down a public street in Cumming to the courthouse square, and there conducting a rally. Only the rally was to take place on property under the jurisdiction of the county. The parade and assembly required permits from the city of Cumming and the Forsyth County Board of Education. Their permit schemes are not challenged here.
These judges also found that the ordinance contained sufficiently tailored standards for the administrator to use in reviewing permit applications. 934 F. 2d 1482, 1487-1489 (1991). This issue was raised by respondent, but the panel did not reach it.
Compare the Eleventh Circuit’s opinions in this litigation, 913 F. 2d 885, 891 (1990), and 934 F. 2d 1482, 1483 (1991), with Stonewall Union v. Columbus, 931 F. 2d 1130, 1136 (CA6) (permitting greater than nominal fees that are reasonably related to expenses incident to the preservation of public safety and order), cert. denied, 502 U. S. 899 (1991); Eastern Conn. Citizens Action Group v. Powers, 723 F. 2d 1050, 1056 (CA2 1983) (licensing fees permissible only to offset expenses associated with processing applications for public property); Fernandes v. Limmer, 663 F. 2d 619, 632-633 (CA5 1981) ($6 fiat fee for permit was unconstitutional), cert. dism’d, 458 U. S. 1124 (1982).
In pertinent part, the ordinance, as amended, states that the administrator “shall adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order.” §3(6) (emphasis added), App. to Pet. for Cert. 119. This could suggest that the administrator has no authority to reduce or waive these expenses. It has not been so understood, however, by the county. See 934 F. 2d, at 1488, n. 12 (opinion concurring in part and dissenting in part). In its February 23, 1987, amendments to the ordinance, the board of commissioners changed the permit form from “Have you paid the application fee?” to “Have you paid any application fee?,” see App. to Pet. for Cert. 115 (emphasis added), thus acknowledging the administrator’s authority to charge no fee.
The District Court’s finding that in this instance the Forsyth County administrator applied legitimate, content-neutral criteria, even if correct, is irrelevant to this facial challenge. Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 760, 770 (1988). “It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.” Thornhill v. Alabama, 310 U. S. 88, 97 (1940). Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.
Petitioner also claims that Cox v. New Hampshire, 312 U. S. 569 (1941), excuses the administrator’s discretion in setting the fee. Reliance on Cox is misplaced. Although the discretion granted to the administrator under the language in this ordinance is the same as in the statute at issue in Cox, the interpretation and application of that language are different. Unlike this case, there was in Cox no testimony or evidence that the statute granted unfettered discretion to the licensing authority. Id., at 576-577.
The dissent prefers a remand because there are no lower court findings on the question whether the county plans to base parade fees on hostile crowds. See post, at 142. We disagree. A remand is unnecessary because there is no question that petitioner intends the ordinance to recoup costs that are related to listeners’ reaction to the speech. Petitioner readily admits it did not charge for police protection for the 4th of July parades, although they were substantial parades, which required the closing of streets and drew large crowds. Petitioner imposed a fee only when it became necessary to provide security for parade participants from angry crowds opposing their message. Brief for Petitioner 6. The ordinance itself makes plain that the costs at issue are those needed for “necessary and reasonable protection of persons participating in or observing” the speech. See App. to Pet. for Cert. 100. Repayment for police protection is the “[m]ost importan[t]” purpose underlying the ordinance. Brief for Petitioner 6-7.
In this Court, petitioner specifically ruges reversal because the lower court has “taken away the right of local government to obtain reimbursement for administration and policing costs which are incurred in protecting those using government property for expression.” Id., at 17 (emphasis added). When directly faced with the Court, of Appeals’ concern about “the enhanced cost associated with policing expressive activity which would generate potentially violent reactions,” id., at 36, petitioner responded not by arguing that it did not intend to charge for police protection, but that such a charge was permissible because the ordinance provided a cap. See id., at 36-37; Tr. of Oral Arg. 24. At no point, in any level of proceedings, has petitioner intimated that it did not construe the ordinance consistent with its language permitting fees to be charged for the cost of police protection from hostile crowds. We find no disputed interpretation of the ordinance necessitating a remand.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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] |
[
116
] |
SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS
No. 78-711.
Argued April 23, 1979 —
Decided June 11, 1979
Powell, J., delivered the opinion for a unanimous Court.
Eugene Gressman argued the cause for petitioner. With him on the briefs was Edward L. Williamson.
Marc P. Charmatz argued the cause for respondent. With him on the brief were Seymour DuBovo, Philip A. Diehl, and Warren L. Pate.
A brief of amici curiae urging reversal was filed by the Attorneys General for their respective States as follows: Francis X. Bellotti for Massachusetts, J. Marshall Coleman for Virginia, Robert K. Corbin for Arizona, Carl R. Afelio for Connecticut, Richard S. Cebelein for Delaware, Jim Smith for Florida, Arthur K. Bolton for Georgia, Wayne Minami for Hawaii, David H. Leroy for Idaho, Theodore L. Sendak for Indiana, Tom Miller for Iowa, Robert T. Stephan for Kansas, William J. Guste, Jr., for Louisiana, Stephen H. Sachs for Maryland, A. F. Summer for Mississippi, John D. Ashcroft for Missouri, Michael T. Greely for Montana, Paul L. Douglas for Nebraska, Thomas D. Rath for New Hampshire, John J. Degnan for New Jersey, Robert Abrams for New York, Rufus L. Edmisten for North Carolina, Allen I. Olson for North Dakota, William J. Brown for Ohio, Jan Eric Cartwright for Oklahoma, James A. Redden for Oregon, Daniel R. McLeod for South Carolina, William M. Leech, Jr., for Tennessee, Mark White for Texas, Slade Gorton for Washington, Chauncey H. Browning, Jr., for West Virginia, and Bronson C. LaFollette for Wisconsin. Briefs of amici curiae urging reversal were filed by Joseph A. Keyes, Jr., for the Association of American Medical Colleges; by Daniel I. Sherry for the Board of Trustees of Prince George’s Community College; by Susan A. Cahoon, William A. Wright, and Douglas S. McDowell for the Equal Employment Advisory Council; and by Richard A. Fulton and David M. Dorsen for the National Institute for Independent Colleges and Universities et al.
Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Assistant Attorney General Days, Brian K. Landsberg, Jessica Dunsay Silver, and Vincent F. O’Rourke, Jr., for the United States; by George Deukmejian, Attorney General, and Katherine E. Stone and G. R. Overton, Deputy Attorneys General, for the State of California; by Frank J. Laski and Michael Churchill for the American Coalition of Citizens with Disabilities et al.; by Stanley Fleishman for the California Association for the Physically Handicapped et al.; by Ann Fagan Ginger for the Center for Independent Living et al.; by Douglas L. Parker for the Institute' for Public Representation et al.; and by John E. Kirklin for the New York City Council of Organizations Serving the Deaf et al.
Briefs of amici curiae were filed by Edward G. Biester, Jr., Attorney General, and Robert E. Rains, Allen C. Warshaw, and J. Justin Blewitt, Jr., Deputy Attorneys General, for Pennsylvania; by John D. Lane for the American Association for the Advancement of Science et al.; by Fred Okrand and Sam Rosenwein for the American Civil Liberties Union et al.; by Sheldon Elliot Steinbach for the American Council on Education; and by Elizabeth C. Bunting for the Board of Governors of the University of North Carolina.
Mr. Justice Powell
delivered the opinion of the Court.
This case presents a matter of first impression for this Court: Whether § 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an “otherwise qualified handicapped individual” in federally funded programs “solely by reason of his handicap,” forbids professional schools from imposing physical qualifications for admission to their clinical training programs.
I
Respondent, who suffers from a serious hearing disability, seeks to be trained as a registered nurse. During the 1973-1974 academic year she was enrolled in the College Parallel program of Southeastern Community College, a state institution that receives federal funds. Respondent hoped to progress to Southeastern’s Associate Degree Nursing program, completion of which would make her eligible for state certification as a registered nurse. In the course of her application to the nursing program, she was interviewed by a member of the nursing faculty. It became apparent that respondent had difficulty understanding questions asked, and on inquiry she acknowledged a history of hearing problems and dependence on a hearing aid. She was advised to consult an audiologist.
On the basis of an examination at Duke University Medical Center, respondent was diagnosed as having a “bilateral, sensori-neural hearing loss.” App. 127a. A change in her hearing aid was recommended, as a result of which it was expected that she would be able to detect sounds “almost as well as a person would who has normal hearing.” Id., at 127ar-128a. But this improvement would not mean that she could discriminate among sounds sufficiently to understand normal spoken speech. Her lipreading skills would remain necessary for effective communication: “While wearing the hearing aid, she is well aware of gross sounds occurring in the listening environment. However, she can only be responsible for speech spoken to her, when the talker gets her attention and allows her to look directly at the talker.” Id., at 128a.
Southeastern next consulted Mary McRee, Executive Director of the North Carolina Board of Nursing. On the basis of the audiologist’s report, McRee recommended that respondent not be admitted to the nursing program. In McRee’s view, respondent’s hearing disability made it unsafe for her to practice as a nurse. In addition, it would be impossible for respondent to participate safely in the normal clinical training program, and those modifications that would be necessary to enable safe participation would prevent her from realizing the benefits of the program: “To adjust patient learning experiences in keeping with [respondent’s] hearing limitations could, in fact, be the same as denying her full learning to meet the objectives of your nursing programs.” Id., at 132a-133a.
After respondent was notified that she was not qualified for nursing study because of her hearing disability, she requested reconsideration of the decision. The entire nursing staff of Southeastern was assembled, and McRee again was consulted. McRee repeated her conclusion that on the basis of the available evidence, respondent “has hearing limitations which could interfere with her safely caring for patients.” Id., at 139a. Upon further deliberation, the staff voted to deny respondent admission.
Respondent then filed suit in the United States District Court for the Eastern District of North Carolina, alleging both a violation of § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. § 794 (1976 ed., Supp. Ill), and a denial of equal protection and due process. After a bench trial, the District Court entered judgment in favor of Southeastern. 424 F. Supp. 1341 (1976). It confirmed the findings of the audiologist that even with a hearing aid respondent cannot understand speech directed to her except through lipreading, and further found:
“[I]n many situations such as an operation room intensive care unit, or post-natal care unit, all doctors and nurses wear surgical masks which would make lipreading impossible. Additionally, in many situations a Registered Nurse would be required to instantly follow the physician’s instructions concerning procurement of various types of instruments and drugs where the physician would be unable to get the nurse’s attention by other than vocal means.” Id., at 1343.
Accordingly, the court concluded:
“[Respondent’s] handicap actually prevents her from safely performing in both her training program and her proposed profession. The trial testimony indicated numerous situations where [respondent’s] particular disability would render her unable to function properly. Of particular concern to the court in this case is the potential of danger to future patients in such situations.” Id., at 1345.
Based on these findings, the District Court concluded that respondent was not an “otherwise qualified handicapped individual” protected against discrimination by § 504. In its view, “[otherwise qualified, can only be read to mean otherwise able to function sufficiently in the position sought in spite of the handicap, if proper training and facilities are suitable and available.” 424 F. Supp., at 1345. Because respondent’s disability would prevent her from functioning “sufficiently” in Southeastern’s nursing program, the court held that the decision to exclude her was not discriminatory within the meaning of § 504.
On appeal, the Court of Appeals for the Fourth Circuit reversed. 574 F. 2d 1158 (1978). It did not dispute the District Court's findings of fact, but held that the court had misconstrued § 504. In light of administrative regulations that had been promulgated while the appeal was pending, see 42 Fed. Reg. 22676 (1977), the appellate court believed that § 504 required Southeastern to “reconsider plaintiff’s application for admission to the nursing program without regard to her hearing ability.” 574 F. 2d, at 1160. It concluded that the District Court had erred in taking respondent’s handicap into account in determining whether she was “otherwise qualified” for the program, rather than confining its inquiry to her “academic and technical qualifications.” Id., at 1161. The Court of Appeals also suggested that § 504 required “affirmative conduct” on the part of Southeastern to modify its program to accommodate the disabilities of applicants, “even when such modifications become expensive.” 574 F. 2d, at 1162.
Because of the importance of this issue to the many institutions covered by § 504, we granted certiorari. 439 U. S. 1065 (1979). We now reverse.
II
As previously noted, this is the first case in which this Court has been called upon to interpret § 504. It is elementary that “[t]he starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring) ; see Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U. S. 322, 330 (1978); Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 472 (1977). Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an “otherwise qualified handicapped individual” not be excluded from participation in a federally funded program “solely by reason of his handicap,” indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.
The court below, however, believed that the "otherwise qualified” persons protected by § 504 include those who would be able to meet the requirements of a particular program in every respect except as to limitations imposed by their handicap. See 574 F. 2d, at 1160. Taken literally, this holding would prevent an institution from taking into account any limitation resulting from the handicap, however disabling. It assumes, in effect, that a person need not meet legitimate physical requirements in order to be “otherwise qualified.” We think the understanding of the District Court is closer to the plain meaning of the statutory language. An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.
The regulations promulgated by the Department of HEW to interpret § 504 reinforce, rather than contradict, this conclusion. According to these regulations, a “[q]ualified handicapped person” is, “[w]ith respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the [school’s] education program or activity . . . .” 45 CFR § 84.3 (k)(3) (1978). An explanatory note states:
“The term 'technical standards’ refers to all nonacademic admissions criteria that are essential to participation in the program in question.” 45 CFR pt. 84, App. A, p. 405 (1978) (emphasis supplied).
A further note emphasizes that legitimate physical qualifications may be essential to participation in particular programs. We think it clear, therefore, that HEW interprets the “other” qualifications which a handicapped person may be required to meet as including necessary physical qualifications.
Ill
The remaining question is whether the physical qualifications Southeastern demanded of respondent might not be necessary for participation in its nursing program. It is not open to dispute that, as Southeastern’s Associate Degree Nursing program currently is constituted, the ability to understand speech without reliance on lipreading is necessary for patient safety during the clinical phase of the program. As the District Court found, this ability also is indispensable for many of the functions that a registered nurse performs.
Respondent contends nevertheless that § 504, properly interpreted, compels Southeastern to undertake affirmative action that would dispense with the need for effective oral communication. First, it is suggested that respondent can be given individual supervision by faculty members whenever she attends patients directly. Moreover, certain required courses might be dispensed with altogether for respondent. It is not necessary, she argues, that Southeastern train her to undertake all the tasks a registered nurse is licensed to perform. Rather, it is sufficient to make § 504 applicable if respondent might be able to perform satisfactorily some of the duties of a registered nurse or to hold some of the positions available to a registered nurse.
Respondent finds support for this argument in portions of the HEW regulations discussed above. In particular, a provision applicable to postsecondary educational programs requires covered institutions to make “modifications” in their programs to accommodate handicapped persons, and to provide “auxiliary aids” such as sign-language interpreters. Respondent argues that this regulation imposes an obligation to ensure full participation in covered programs by handicapped individuals and, in particular, requires Southeastern to make the kind of adjustments that would be necessary to permit her safe participation in the nursing program.
We note first that on the present record it appears unlikely respondent could benefit from any affirmative action that the regulation reasonably could be interpreted as requiring. Section 84.44 (d)(2), for example, explicitly excludes “devices or services of a personal nature” from the kinds of auxiliary aids a school must provide a handicapped individual. Yet the only evidence in the record indicates that nothing less than close, individual attention by a nursing instructor would be sufficient to ensure patient safety if respondent took part in the clinical phase of the nursing program. See 424 F. Supp., at 1346. Furthermore, it also is reasonably clear that § 84.44 (a) does not encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program. In light of respondent’s inability to function in clinical courses without close supervision, Southeastern, with prudence, could allow her to take only academic classes. Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally gives. Such a fundamental alteration in the nature of a program is far more than the “modification” the regulation requires.
Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.
The language and structure of the Rehabilitation Act of 1973 reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps. Section 501 (b), governing the employment of handicapped individuals by the Federal Government, requires each federal agency to submit “an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals . . . .” These plans “shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.” Similarly, § 503 (a), governing hiring by federal contractors, requires employers to “take affirmative action to employ and advance in employment qualified handicapped individuals . . . .” The President is required to promulgate regulations to enforce this section.
Under § 501 (c) of the Act, by contrast, state agencies such as Southeastern are only “encourage [d] ... to adopt and implement such policies and procedures.” Section 504 does not refer at all to affirmative action, and except as it applies to federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.
Although an agency’s interpretation of the statute under which it operates is entitled to some deference, “this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history.” Teamsters v. Daniel, 439 U. S. 551, 566 n. 20 (1979). Here, neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself, it lacks the authority to do so.
IV
We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW.
In this case, however, it is clear that Southeastern’s unwillingness to make major adjustments in its nursing program does not constitute such discrimination. The uncontroverted testimony of several members of Southeastern’s staff and faculty established that the purpose of its program was to train persons who could serve the nursing profession in all customary ways. See, e. g., App. 35a, 52a, 53a, 71a, 74a. This type of purpose, far from reflecting any animus against handicapped individuals, is shared by many if not most of the institutions that train persons to render professional service. It is undisputed that respondent could not participate in Southeastern’s nursing program unless the standards were substantially lowered. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards, to accommodate a handicapped person.
One may admire respondent’s desire and determination to overcome her handicap, and there well may be various other types of service for which she can qualify. In this case, however, we hold that there was no violation of § 504 when Southeastern concluded that respondent did not qualify for admission to its program. Nothing in the language or history .of § 504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that airy action short of a substantial change in Southeastern’s program would render unreasonable the qualifications it imposed.
V
Accordingly, we reverse the judgment of the court below, and remand for proceedings consistent with this opinion.
So ordered.
McRee also wrote that respondent’s hearing disability could preclude her practicing safely in “any setting” allowed by “a license as Licensed] P[raetieal] N[urse].” App. 132a. Respondent contends that inasmuch as she already was licensed as a practical nurse, McRee’s opinion was inherently incredible. But the record indicates that respondent had “not worked as a licensed practical nurse except to do a little bit of private duty,” id., at 32a, and had not done that for several years before applying to Southeastern. Accordingly, it is at least possible to infer that respondent in fact could not work safely as a practical nurse in spite of her license to do so. In any event, we note the finding of the District Court that “a Licensed Practical Nurse, unlike a Licensed Registered Nurse, operates under constant supervision and is not allowed to perform medical tasks which require a great degree of technical sophistication.” 424 F. Supp. 1341, 1342-1343 (EDNC 1976).
The statute, as set forth in 29 U. S. C. §794 (1976 ed., Supp. Ill), provides in full:
“No otherwise qualified handicapped individual in the United States, as defined in section 706 (7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitar tion, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate aur thorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.”
The italicized portion of the section was added by § 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 92 Stat. 2982. Respondent asserts no claim under this portion of the statute.
The District Court also dismissed respondent’s constitutional claims. The Court of Appeals affirmed that portion of the order, and respondent has not sought review of this ruling.
Relying on the plain language of the Act, the Department of Health, Education, and Welfare (HEW) at first did not promulgate any regulations to implement § 504. In a subsequent suit against HEW, however, the United States District Court for the District of Columbia held that Congress had intended regulations to be issued and ordered HEW to do so. Cherry v. Mathews, 419 F. Supp. 922 (1976). The ensuing regulations currently are embodied in 45 CFR pt. 84 (1978).
In addition to challenging the construction of § 504 by the Court of Appeals, Southeastern also contends that respondent cannot seek judicial relief for violations of that statute in view of the absence of any express private right of action. Respondent asserts that whether or not § 504 provides a private action, she may maintain her suit under 42 U. S. C. § 1983. In light of our disposition of this case on the merits, it is unnecessary to address these issues and we express no views on them. See Norton v. Mathews, 427 U. S. 524, 529-531 (1976); Moor v. County of Alameda, 411 U. S. 693, 715 (1973); United States v. Augenblick, 393 U. S. 348, 351-352 (1969).
The Act defines “handeapped individual” as follows:
“The term ‘handicapped individual’ means any individual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to subchapters I and III of this chapter. For the purposes of subchapters IV and V of this chapter, such term means any person who (A) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment.” § 7 (6) of the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 88 Stat. 1619, 89 Stat. 2-5, 29 U. S. C. § 706 (6).
This definition comports with our understanding of § 504. A person who has a record of, or is regarded as having, an impairment may at present have no actual incapacity at all. Such a person would be exactly the kind of individual who' could be “otherwise qualified” to participate in covered programs. And a person who suffers from a limiting physical or mental impairment still may possess other abilities that permit him to meet the requirements of various programs. Thus, it is clear that Congress included among the class of “handicapped” persons covered by § 504 a range of individuals who could be “otherwise qualified.” See S. Rep. No. 93-1297, pp. 38-39 (1974).
The note states:
“Paragraph (k) of § 84.3 defines the term 'qualified handicapped person.’ Throughout the regulation, this term is used instead of the statutory term 'otherwise qualified handicapped person.’ The Department believes that the omission of the word 'otherwise’ is necessary in order to comport with the intent of the statute because, read literally, 'otherwise’ qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their handicap. Under such a literal reading, a blind person possessing all the qualifications for driving a bus except sight could be said to be ‘otherwise qualified’ for the job of driving. Clearly, such a result was not intended by Congress. In all other respects, the terms ‘qualified’ and ‘otherwise qualified’ are intended to be interchangeable.” 45 CFR pt. 84, App. A, p. 405 (1978).
The court below adopted a portion of this argument:
“[Respondent’s] ability to read lips aids her in overcoming her hearing disability; however, it was argued that in certain situations such as in an operating room environment where surgical masks are used, this ability would be unavailing to her.
"Be that as it may, in the medical community, there does appear to be a number of settings in which the plaintiff could perform satisfactorily as an RN, such as in industry or perhaps a physician’s office. Certainly [respondent] could be viewed as possessing extraordinary insight into the medical and emotional needs of those with hearing disabilities.
"If [respondent] meets all the other criteria for admission in the pursuit of her RN career, under the relevant North Carolina statutes, N. C. Gen. Stat. §§ 90-158, et seq., it should not be foreclosed to her simply because she may not be able to function effectively in all the roles which registered nurses may choose for their careers.” 574 F. 2d 1158, 1161 n. 6 (1978).
This regulation provides:
“(a) Academic requirements. A recipient [of federal funds] to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against' a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.
“(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
“(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.” 45 CFR § 84.44 (1978).
Section 115 (a) of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 added to the 1973 Act a section authorizing grants to state units for the purpose of providing “such information and technical assistance (including support personnel such as interpreters for the deaf) as may be necessary to assist those entities in complying with this Act, particularly the requirements of section 504.” 92 Stat. 2971, 29 U. S. C. §775 (a) (1976 ed., Supp. III). This provision recognizes that on occasion the elimination of discrimination might involve some costs; it does not imply that the refusal to undertake substantial changes in a program by itself constitutes discrimination. Whatever effect the availability of these funds might have on ascertaining the existence of discrimination in some future case, no such funds were available to Southeastern at the time respondent sought admission to its nursing program.
The Government, in a brief amicus curiae in support of respondent, cites a Report of the Senate Committee on Labor and Public Welfare on the 1974 amendments to the 1973 Act and several statements by individual Members of Congress during debate on the 1978 amendments, some of which indicate a belief that § 504 requires affirmative action. See Brief for United States as Amicus Curiae 44r-50. But these isolated statements by individual Members of Congress or its committees, all made after the enactment of the statute under consideration, cannot substitute for a clear expression of legislative intent at the time of enactment. Quern v. Mandley, 436 U. S. 725, 736 n. 10 (1978); Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 714 (1978). Nor do these comments, none of which represents the will of Congress as a whole, constitute subsequent “legislation” such as this Court might weigh in construing the meaning of an earlier enactment. Cf. Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969).
The Government also argues that various amendments to the 1973 Act contained in the Rehabilitation Act Amendments of 1978 further reflect Congress’ approval of the affirmative-action obligation created by HEW’s regulations. But the amendment most directly on point undercuts this position. In amending § 504, Congress both extended that section’s prohibition of discrimination to “any program or activity conducted by any Executive agency or by the United States Postal Service” and authorized administrative regulations to implement only this amendment. See n. 2, supra. The fact that no other regulations were mentioned supports an inference that no others were approved.
Finally, we note that the assertion by HEW of the authority to promulgate any regulations under § 504 has been neither consistent nor longstanding. For the first three years after the section was enacted, HEW maintained the position that Congress had not intended any regulations to be issued. It altered its stand only after having been enjoined to do so. See n. 4, supra. This fact substantially diminishes the deference to be given to HEW’s present interpretation of the statute. See General Electric Co. v. Gilbert, 429 U. S. 125, 143 (1976).
Respondent contends that it is unclear whether North Carolina law requires a registered nurse to be capable of performing all functions open to that profession in order to obtain a license to practice, although McRee, the Executive Director of the State Board of Nursing, had informed Southeastern that the law did so require. See App. 138a-139a. Respondent further argues that even if she is not capable of meeting North Carolina’s present licensing requirements, she still might succeed in obtaining a license in another jurisdiction.
Respondent’s argument misses the point. Southeastern’s program, structured to train persons who will be able to perform all normal roles of a registered nurse, represents a legitimate academic policy, and is accepted by the State. In effect, it seeks to ensure that no graduate will pose a danger to the public in any professional role in which he or she might be cast. Even if the licensing requirements of North Carolina or some other State are less demanding, nothing in the Act requires an educational institution to lower its standards.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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] |
[
116
] |
FEDERAL TRADE COMMISSION v. ANHEUSER-BUSCH, INC.
No. 389.
Argued March 2, 1960.
Decided June 20, 1960.
Philip Elman argued the cause for petitioner. With him on the briefs were Solicitor General Rankin, Acting Assistant Attorney General Bicks, Ralph S. Spritzer, Richard A. Solomon, Irwin A. Seibel, Daniel J. McCauley, Jr. and Alan B. Hobbes.
Edgar Barton argued the cause for respondent. With him on the brief were Charles M. Price, Robert C. Keck and Thomas J. Carroll.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The question presented is whether certain pricing activities of respondent, Anheuser-Busch, Inc., constituted price discrimination within the meaning of § 2 (a) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13 (a).
Section 2 (a) provides in pertinent part:
“That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. . . .”
This controversy had its genesis in a complaint issued by the Federal Trade Commission in 1955, which charged respondent, a beer producer, with a violation of § 2 (a). The complaint alleged that respondent had “discriminated in price between different purchasers of its beer of like grade and quality by selling it to some of its customers at higher prices than to other [s]”; that, more specifically, respondent had lowered prices in the St. Louis, Missouri, market, without making similar price reductions in other markets; that this discrimination had already diverted substantial business from respondent’s St. Louis competitors; that it was “sufficient” to have the same impact in the future; that there was a “reasonable probability” it would substantially lessen competition in respondent’s line of commerce; and that it might also tend to create a monopoly or to injure, destroy, or prevent competition with respondent. Thus the complaint described a pricing pattern which had adverse effects only upon sellers’ competition, commonly termed primary-line competition, and not upon buyers’ competition, commonly termed secondary-line competition.
Both the hearing examiner and, on appeal, the Commission held that the evidence introduced at the hearing established a violation of §2 (a). The Commission found the facts to be as follows:
Respondent, a leading national brewer, sells a so-called premium beer, which is priced higher than the beers of regional and local breweries in the great majority of markets, although both the price of respondent’s beer and the premium differential vary from market to market and from time to time. During the period relevant to this case, respondent had three principal competitors in the St. Louis area, all regional breweries: Falstaff Brewing Corporation, Griesedieck Western Brewing Company, and Griesedieck Brothers Brewery Company. In accord with the generally prevailing price structure, these breweries normally sold their products at a price substantially lower than respondent’s.
In 1953, most of the national breweries, including respondent, granted their employees a wage increase, and on October 1, 1953, they put into effect a general price increase. Although many regional and local breweries throughout the country followed suit by raising their prices, Faistaff, Griesedieck Western, and Griesedieck Brothers maintained their pre-October price of $2.35 per standard case. Although respondent’s sales in the St. Louis area did not decline, its national sales fell, along with industry sales in general.
On January 4, 1954, respondent lowered its price in the St. Louis market from $2.93 to $2.68 per case, thereby reducing the previous 580 differential to 330. A second price cut occurred on June 21, 1954, this time to $2.35, the same price charged by respondent’s three competitors. On January 3, 1954, the day before the first price cut, respondent’s price in the St. Louis market had been lower than its price in other markets, and during the period of the price reductions in the St. Louis area, respondent made no similar price reductions in any other market. In March, 1955, respondent increased its St. Louis price 45$ per case, and Falstaff, Griesedieck Western, and Griese-dieck Brothers almost immediately raised their prices 150, which re-established a substantial differential. This ended the period of alleged price discrimination.
The Commission concluded:
“As a result of maintaining higher prices to all purchasers outside of the St. Louis area and charging the lower prices, as reduced in 1954, to only those customers in the St. Louis area, respondent discriminated in price as between purchasers differently located.”
Since, as will appear, it is this aspect of the decision which concerns us, it is necessary only to sketch summarily the remaining elements in the Commission’s decision. The Commission’s finding of competitive injury was predicated to a substantial degree upon what it regarded as a demonstrated diversion of business to respondent from its St. Louis competitors during the period of price discrimination. For example, by comparing that period with a similar period during the previous year, the Commission determined that respondent’s sales had risen 201.5%, Falstaff’s sales had dropped slightly, Griesedieck Western’s sales had fallen about 33%, and Griesedieck Brothers’ sales had plummeted about 41%. In tabular form, the relative market positions of the St. Louis sellers were as follows:
Dec. SI June 30 Mar. 1 July 31 1953 1954 1955 1955
Respondent . 12.5 16.55 39.3 21.03
Griesedieck Brothers. 14.4 12.58 4.8 7.36
Falstaff . 29.4 32.05 29.1 36.62
Griesedieck Western. 38.9 33. 23.1 27.78
All others. 4.8 5.82 3.94 7.21
The Commission rejected respondent’s contention that its price reductions had been made in good faith to meet the equally low price of a competitor within the meaning of the proviso to § 2 (b) of the Act, 49 Stat. 1526, 15 U. S. C. § 13 (b), and also found respondent’s attack upon the examiner’s cease-and-desist order to be meritless. The Commission thereupon adopted and issued that order, with only slight modification.
On review, the Court of Appeals set aside the order. 265 F. 2d 677. We granted certiorari, 361 U. S. 880, because a conflict had developed among the Courts of Appeals on a question of importance in the administration of the statute. See Atlas Building Products Co. v. Diamond Block & Gravel Co., 269 F. 2d 950 (C. A. 10th Cir.).
The limited nature of our inquiry can be fully appreciated only in the light of the correspondingly narrow decision of the Court of Appeals, which rested entirely upon the holding that the threshold statutory element of price discrimination had not been established. Thus the Court of Appeals did not consider whether the record supported a finding of the requisite competitive injury, whether respondent’s good faith defense was valid, or whether the Commission’s order was unduly broad. We have concluded that the Court of Appeals erred in its construction of § 2 (a) and that the evidence fully warranted the Commission’s finding of price discrimination. Respondent would have us affirm nonetheless on any of the alternative grounds it strongly urged below. While this is, to be sure, an appropriate course of action under proper circumstances, we believe that it would be unwise for us to grapple with these intricate problems, the solution to which requires a careful examination of a voluminous record, before they have been dealt with by the Court of Appeals. Therefore, the case will be remanded, and of course nothing in this opinion should be interpreted as intimating a view upon the remaining aspects of the controversy.
A discussion of the import of the § 2 (a) phrase “discriminate in price,” in the context of this case, must begin with a consideration of the purpose of the statute with respect to primary-line competition. The Court of Appeals expressed some doubt that § 2 (a) was designed to protect this competition at all, but respondent has not undertaken to defend that position here. This is entirely understandable. While “precision of expression is not an outstanding characteristic of the Robinson-Patman Act,” Automatic Canteen Co. v. Federal Trade Comm’n, 346 U. S. 61, 65, it is certain at least that § 2 (a) is violated where there is a price discrimination which deals the requisite injury to primary-line competition, even though secondary-line and tertiary-line competition are unaffected. The statute could hardly be read any other way, for it forbids price discriminations “where the effect . . . may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.” (Emphasis added.)
The legislative history of § 2 (a) is equally plain. The section, when originally enacted as part of the Clayton Act in 1914, was born of a desire by Congress to curb the use by financially powerful corporations of localized price-cutting tactics which had gravely impaired the competitive position of other sellers. It is, of course, quite true — and too well known to require extensive exposition — that the 1936 Robinson-Patman amendments to the Clayton Act were motivated principally by congressional concern over the impact upon secondary-line competition of the burgeoning of mammoth purchasers, notably chain stores. However, the legislative history of these amendments leaves no doubt that Congress was intent upon strengthening the Clayton Act provisions, not weakening them, and that it was no part of Congress' purpose to curtail the pre-existing applicability of § 2 (a) to price discriminations affecting primary-line competition.
The federal courts, both before and after the amendment of § 2 (a), have taken this view of the scope of the statute in cases involving impairment of primary-line competition. See Porto Rican American Tobacco Co. v. American Tobacco Co., 30 F. 2d 234 (C. A. 2d Cir. 1929); E. B. Muller & Co. v. Federal Trade Comm’n, 142 F. 2d 511 (C. A. 6th Cir. 1944); Maryland Baking Co. v. Federal Trade Comm’n, 243 F. 2d 716 (C. A. 4th Cir. 1957); Atlas Building Products Co. v. Diamond Block & Gravel Co., supra (1959). In fact, the original focus of § 2 (a) on sellers’ competition was so evident that this Court was compelled to hold explicitly, contrary to lower court decisions, that the statute was not restricted to price discrim-inations impeding primary-line competition, but protected secondary-line competition as well. Van Camp & Sons v. American Can Co., 278 U. S. 245 (1929). And more recently, in Moore v. Mead’s Fine Bread Co., 348 U. S. 115 (1954), the Court sustained a treble damage judgment in favor of a competing seller which was based partly upon a violation of § 2 (a).
Thus neither the language of § 2 (a), its legislative history, nor its judicial application countenances a construction of the statute which draws strength from even a lingering doubt as to its purpose of protecting primary-line competition. But the rationale of the Court of Appeals appears to have been shaped by precisely this type of doubt. The view of the Court of Appeals was that, before there can be a price discrimination within the meaning of § 2 (a), “[t]here must be some relationship between the different purchasers which entitles them to comparable treatment.” 265 F. 2d, at 681. Such a relationship would exist, the court reasoned, if different prices were being charged to competing purchasers. But the court observed that in this case all competing purchasers paid respondent the same price, so far as the record disclosed. Consequently, the court concluded that, even assuming the price cuts “were directed at [Anheuser-Busch’s] local competitors, they were not discriminatory.” Ibid.
This qualification upon the applicability of § 2 (a) to primary-line-competition cases is in no way adumbrated by the prevailing line of relevant decisions. In Mead’s Fine Bread Co., supra, in Maryland Baking Co., supra, and in Porto Rican American Tobacco Co., supra, violations of § 2 (a) were predicated upon injury to primary-line competition without reliance upon the presence or absence of competition among purchasers as a relevant factor. And in Muller & Co., supra, while there was evidence that the purchasers in question were competing, the court explicitly rejected the notion that this was a necessary element of a violation in a primary-line case. 142 F. 2d, at 518. But cf. Balian Ice Cream Co. v. Arden Farms Co., 231 F. 2d 356.
More important, however, is the incompatibility of the Circuit Court’s rule with the purpose of § 2 (a). The existence of competition among buyers who are charged different prices by a seller is obviously important in terms of adverse effect upon secondary-line competition, but it would be merely a fortuitous circumstance so far as injury to primary-line competition is concerned. Since, as we have indicated, an independent and important goal of § 2 (a) is to extend protection to competitors of the discriminating seller, the limitation of that protection by the alien factor of competition among purchasers would constitute a debilitating graft upon the statute.
Although respondent’s starting point is the same as that of the Court of Appeals — that a price discrimination is not synonymous with a price difference — its test of price discrimination is somewhat broader. Respondent concedes that a competitive relationship among purchasers is not a prerequisite of price discrimination, but maintains that at least there must be “proof that the lower price is below cost or unreasonably low for the purpose or design to eliminate competition and thereby obtain a monopoly.” Since such a finding is lacking here, respondent argues that it cannot be said that there was price discrimination.
Respondent asserts that its view is supported by legislative history, court decisions, and reason. Respondent relies heavily, as did the Court of Appeals, upon a statement made during Congress’ consideration of the Robinson-Patman legislation by Representative Utterback, a manager of the conference bill which became §2 (a). In this rather widely quoted exegesis of the section, Representative Utterback declared that “a discrimination is more than a mere difference,” and exists only when there is “some relationship . . . between the parties to the discrimination which entitles them to equal treatment.” Such a relationship would prevail among competing purchasers, according to the Congressman, and also “where . . . the price to one is so low as to involve a sacrifice of some part of the seller’s necessary costs and profit,” so that “it leaves that deficit inevitably to be made up in higher prices to his other customers.” 80 Cong. Rec. 9416. Respondent also cites expressions in the legislative history of the Clayton Act which reflect Congress’ concern over classic examples of predatory business practices. See H. R. Rep. No. 627, 63d Cong., 2d Sess. 8; S. Rep. No. 698, 63d Cong., 2d Sess. 2-4. Moreover, respondent maintains that the principle it advances has found expression in the decisions of the federal courts in primary-line-competition cases, which consistently emphasize the unreasonably low prices and the predatory intent of the defendants. Respondent also urges that its view is grounded upon the statutory scheme of § 2 (a), which penalizes sellers only if an anticompetitive effect stems from a discriminatory pricing pattern, not if it results merely from a low price. Thus, the argument goes, unless there is proof that high prices in one area have subsidized low prices in another, the price differential does not fall within the compass of the section. In such a case, it is contended, § 3 of the Robinson-Patman Act, 49 Stat. 1528, 15 U. S. C. § 13a, may be applicable, but not § 2 (a). Finally, respondent argues that, unless its position is accepted, the law will impose rigid price uniformity upon the business world, contrary to sound economics and the policy of the antitrust laws.
The trouble with respondent’s arguments is not that they are necessarily irrelevant in a § 2 (a) proceeding, but that they are misdirected when the issue under consideration is solely whether there has been a price discrimination. We are convinced that, whatever may be said with respect to the rest of §§ 2 (a) and 2 (b) — and we say nothing here — there are no overtones of business buccaneering in the § 2 (a) phrase “discriminate in price.” Rather, a price discrimination within the meaning of that provision is merely a price difference.
When this Court has spoken of price discrimination in § 2 (a) cases, it has generally assumed that the term was synonymous with price differentiation. In Federal Trade Comm’n v. Cement Institute, 333 U. S. 683, 721, the Court referred to “discrimination in price” as “selling the same kind of goods cheaper to one purchaser than to another.” And in Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 45, the Court said, “Congress meant by using the words 'discrimination in price’ in § 2 that in a case involving competitive injury between a seller’s customers the Commission need only prove that a seller had charged one purchaser a higher price for like goods than he had charged one or more of the purchaser’s competitors.” The commentators have generally shared this view.
These assumptions, we now conclude, were firmly rooted in the structure of the statute, for it is only by equating price discrimination with price differentiation that § 2 (a) can be administered as Congress intended. As we read that provision, it proscribes price differences, subject to certain defined defenses, where the effect of the differences “may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit” of the price differential, “or with customers of either of them.” See Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 45-47. In other words, the statute itself spells out the conditions which make a price difference illegal or legal, and we would derange this integrated statutory scheme were we to read other conditions into the law by means of the nondirective phrase, “discriminate in price.” Not only would such action be contrary to what we conceive to be the meaning of the statute, but, perhaps because of this, it would be thoroughly undesirable. As one commentator has succinctly put it, “Inevitably every legal controversy over any price difference would shift from the detailed governing provisions— 'injury/ cost justification, 'meeting competition/ etc.— over into the 'discrimination’ concept for ad hoc resolution divorced from specifically pertinent statutory text.” Rowe, Price Differentials and Product Differentiation: The Issues Under the Robinson-Patman Act, 66 Yale L. J. 1, 38.
In the face of these considerations, we do not find respondent’s arguments persuasive. The fact that activity which falls within the civil proscription of § 2 (a) may also be criminal under § 3 is entirely irrelevant. The partial overlap between these sections, which was to a significant extent the by-product of the tortuous path of the Robinson-Patman bills through Congress/ has been widely recognized. . " [T]his section [§ 3] does not restrict the operation of the prohibitions, with civil sanctions, of the Robinson-Patman amendments to § 2 (a) of the Clayton Act.” Corn Products Co. v. Federal Trade Comm’n, 324 U. S. 726, 734.
The other materials adduced by respondent do no more than indicate that the factors in question — predatory intent and unreasonably low local price cuts — may possibly be relevant to other matters which may be put in issue in a § 2 (a) proceeding. For example, it might be argued that the existence of predatory intent bears upon the likelihood of injury to competition, and that a price reduction below cost tends to establish such an intent. Practically all of the legislative materials and court decisions relied upon by respondent are explicable on this basis, since hardly any of them are concerned specifically with the meaning of price discrimination. Moreover, many of the legislative expressions cited by respondent may merely be descriptive of the prototype of the evil with which Congress dealt in § 2 (a), rather than delinea-tive of the outer reach of that section. A possible exception is the statement of Representative Utterback. But the primary function of statutory construction is to effectuate the intent of Congress, and that function cannot properly be discharged by reliance upon a statement of a single Congressman, in the face of the weighty countervailing considerations which are present in this case.
Nothing that we have said, of course, should be construed to be the expression of any view concerning the relevance of the factors stressed by respondent to statutory standards other than price discrimination. We wish merely to point out, on the one hand, why respondent’s arguments in our view are not pertinent to the issue at bar, and, on the other, that we are not foreclosing respondent from urging in the Court of Appeals that such arguments are material to issues not now before us.
What we have said makes it quite evident, we believe, that our decision does not raise the specter of a flat prohibition of price differentials, inasmuch as price differences constitute but one element of a § 2 (a) violation. In fact, as we have indicated, respondent has vigorously contested this very case on the entirely separate grounds of insufficient injury to competition and good faith lowering of price to meet competition. Nor is it relevant that the Commission did not proceed upon the basis of the respondent’s price differentials which existed prior to the period in question in this case. This choice is committed to the discretion of the Commission; and it may well be that the Commission did not believe the remaining statutory elements could be established with respect to other differentials. Our interest is solely with this case, and at this stage of the litigation that interest is confined exclusively to identifying and keeping distinct the various statutory standards which are part of the § 2 (a) complex.
The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Reversed.
Anheuser-Busch ranked second nationally in gross sales in 1952 and 1955, and first in 1953 and 1954.
It appears that Griesedieck Western sold out to Carling Brewing Company in October, 1954.
Respondent maintains — and petitioner agrees — that the evidence establishes that it did not raise its prices in Missouri or Wisconsin. In view of our disposition of the case, this is immaterial to the issue presented on this review.
Possibly we should note that most of the facts in this particular paragraph are taken from the initial decision. Although the Commission adopted “the findings, conclusions, and order, as modified, contained in the initial decision,” there is some disagreement as to how encompassing this incorporation order was. See note 10, infra. Since that dispute concerns matters not relevant to our decision, and since the facts set forth above are merely background and appear to be unquestioned, we find it unnecessary to resolve the disagreement.
The following table discloses the degree of this price spread:
St. Louis, Mo. $2.93
Chicago, Ill. 3.44
Cincinnati, Ohio. 3.75
Houston, Tex. 3.70
Bronx, N. Y. 3.68
Kearney, Nebr. 3.68
St. Joseph, Mo. 3.17
Buffalo, N. Y. 3.60
Baltimore, Md. 3.62
Washington, D. C. $3.65
Detroit, Mich. 3.55
Boston, Mass. 3.69
Kansas City, Mo. 3.15
St. Paul, Minn. 3.53
Sioux Falls, S. Dak. 3.50
Denver, Colo.
San Francisco, Calif. 3.79
Los Angeles, Calif. 3.80
“It Is Ordered that the respondent, Anheuser-Busch, Inc., a corporation, and its officers, representatives, agents and employees, directly or through any corporate or other device, in the sale of beer of like grade and quality, do forthwith cease and desist from discriminating, directly or indirectly, in price, between different purchasers engaged in the same line of commerce, where either, or any, of the purchases involved in such discrimination are in commerce, as ‘commerce’ is defined in the Clayton Act, by a price reduction in any market where respondent is in competition with any other seller, unless it proportionally reduces its prices everywhere for the same quantity of beer.”
“Section 2 of the bill ... is expressly designed with the view of correcting and forbidding a common and widespread unfair trade practice whereby certain great corporations and also certain smaller concerns which seek to secure a monopoly in trade and commerce by aping the methods of the great corporations, have heretofore endeavored to destroy competition and render unprofitable the business of competitors by selling their goods, wares, and merchandise at a less price in the particular communities where their rivals are engaged in business than at other places throughout the country. ... In the past it has been a most common practice of great and powerful combinations engaged in commerce — notably the Standard Oil Co., and the American Tobacco Co., and others of less notoriety, but of great influence — to lower prices of their commodities, oftentimes below the cost of production in certain communities and sections where they had competition, with the intent to destroy and make unprofitable the business of their competitors, and with the ultimate purpose in view of thereby acquiring a monopoly in the particular locality or section in which the discriminating price is made. . . .” H. R. Rep. No. 627, 63d Cong., 2d Sess. 8. See also S. Rep. No. 698, 63d Cong., 2d Sess. 2-4.
See H. R. Rep. No. 2287, 74th Cong., 2d Sess.; S. Rep. No. 1502, 74th Cong., 2d Sess.; F. T. C., Final Report on the Chain-Store Investigation, S. Doe. No. 4, 74th Cong., 1st Sess.; Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 43; Report of the Attorney General’s National Committee to Study the Antitrust Laws, 155-156; Austin, Price Discrimination and Related Problems under the Robinson-Patman Act (2d rev. ed., 1959), 8-11; Palamountain, The Politics of Distribution, 188-234; Rowe, The Evolution of the Robinson-Patman Act: A Twenty-Year Perspective, 57 Col. L. Rev. 1059.
See sources cited in note 7, supra.
See Mennen Co. v. Federal Trade Comm’n, 288 F. 774; National Biscuit Co. v. Federal Trade Comm’n, 299 F. 733.
There is a dispute as to whether the Commission adopted a finding by the examiner which related to the purpose of the price reductions. Since we conclude that the issue of predatory intent is irrelevant to the question before us, it is unnecessary for us to resolve this dispute.
Respondent maintains that the opinion of the Court of Appeals may and should be read to encompass respondent's views. It is true that there are certain passages in the opinion which lend some support to respondent’s interpretation. In view of our disposition of the case, it is unnecessary for us either to accept or reject that construction.
The statement in full is as follows:
“In its meaning as simple English, a discrimination is more than a mere difference. Underlying the meaning of the word is the idea that some relationship exists between the parties to the discrimination which entitles them to equal treatment, whereby the difference granted to one casts some burden or disadvantage upon the other. If the two are competing in the resale of the goods concerned, that relationship exists. Where, also, the price to one is so low as to involve a sacrifice of some part of the seller’s necessary costs and profit as applied to that business, it leaves that deficit inevitably to be made up in higher prices to his other customers; and there, too, a relationship may exist upon which to base the charge of discrimination. But where no such relationship exists, where the goods are sold in different markets and the conditions affecting those markets set different price levels for them, the sale to different customers at those different prices would not constitute a discrimination within the meaning of this bill.”
See, e. g., Porto Rican American Tobacco Co. v. American Tobacco Co., supra; Atlas Building Products Co. v. Diamond Block & Gravel Co., supra; Maryland Baking Co. v. Federal Trade Comm’n, supra.
Section 3 provides:
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, to be a party to, or assist in, any transaction of sale, or contract to sell, which discriminates to his knowledge against competitors of the purchaser, in that, any discount, rebate, allowance, or advertising service charge is granted to the purchaser over and above any discount, rebate, allowance, or advertising service charge available at the time of such transaction to said competitors in respect of a sale of goods of like grade, quality, and quantity; to sell, or contract to sell, goods in any part of the United States at prices lower than those exacted by said person elsewhere in the United States for the purpose of destroying competition, or eliminating a competitor in such part of the United States; or, to sell, or contract to sell, goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor.”
See also Federal Trade Comm'n v. Staley Co., 324 U. S. 746, 757; Samuel H. Moss, Inc., v. Federal Trade Comm’n, 148 F. 2d 378, 379, 155 F. 2d 1016. Compare Automatic Canteen Co. v. Federal Trade Comm’n, supra, at 70 n. 10, 71.
See Att’y Gen. Natl Comm. Antitrust Rep. 156; Austin, Price Discrimination and Related Problems Under the Robinson-Patman Act (2d rev. ed. 1959), 18-20; McAllister, Price Control by Law in the United States: A Survey, 4 Law and Contemp. Prob. 273, 291-293; Rowe, Price Differentials and Product Differentiation: The Issues Under the Robinson-Patman Act, 66 Yale L. J. 1, 36-38; Comment, 12 Stan. L. Rev. 460, 461. But see Zorn and Feldman, Business Under The New Price Laws, 75.
In addition to the statutory provisions regarding injury to competition, set out at p. 537, supra, there are other relevant portions of the statute, such as the seller’s § 2 (b) defense of “showing that his lower price . . . was made in good faith to meet an equally low price of a competitor . . . .” And a proviso to § 2 (a) states:
“That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or- quantities in which such commodities are to such purchasers sold or delivered . . .
And still another proviso to § 2 (a) states:
“That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.”
See also Austin, Price Discrimination and Related Problems Under the Robinson-Patman Act (2d rev. ed. 1959), 18-20; McAllister, Price Control by Law in the United States: A Survey, 4 Law and Contemp. Prob. 273, 291-293.
See Palamountain, The Politics of Distribution, 188-234; Rowe, The Evolution of the Robinson-Patman Act: A Twenty-Year Perspective, 57 Col. L. Rev. 1059.
“Subsection (h) of the Senate amendment . . . appears in the conference report as section 3 of the bill itself. It contains the operative and penal provisions of what was originally the Borah-Van Nuys bill (S. 4171). While they overlap in some respects, they are in no way inconsistent with the provisions of the Clayton Act amendment provided for in section 1. Section 3 authorizes nothing-which that amendment prohibits, and takes nothing from it. On the contrary, where only civil remedies and liabilities attach to violations of the amendment provided in section 1, section 3 sets up-special prohibitions as to the particular offenses therein described and attaches to them also the criminal penalties therein provided.” H. R. Rep. No. 2951, 74th Cong., 2d Sess. 8. See also Nashville Milk Co. v. Carnation Co., 355 U. S. 373, 378; Austin, Price Discrimination and Related Problems Under the Robinson-Patman Act (2d rev. ed. 1959), 3-4; 108 U. of Pa. L. Rev. 116, 121; 45 Va. L. Rev. 1397, 1400; sources cited in note 19, supra.
Of course we do not depart from our holding in Federal Trade Comm’n v. Morton Salt, supra, at pp. 50-51, as to adequacy of proof of tendency to injure competition in cases involving discrimination between purchasers. The instant case, as we have pointed out, involves differences in prices among competing sellers.
See Balian Ice Cream Co. v. Arden Farms Co., supra, at 369; Report of the Attorney General's National Committee to Study the Antitrust Laws, 165; Rowe, Price Discrimination, Competition, and Confusion: Another Look at Robinson-Patman, 60 Yale L. J. 929, 956; The "New” Federal Trade Commission and the Enforcement of the Antitrust Laws, 65 Yale L. J. 34, 74r-75; A Symposium on the Robinson-Patman Act, 49 N. W. U. L. Rev. 197, 215, 224. But cf. Nashville Milk Co. v. Carnation Co., 355 U. S. 373, 378; Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470, 484 (dissenting opinion).
Perhaps it is worth noting in this connection that the Senate and House committee reports appear to use the words “discrimination” and “differential” interchangeably. See H. R. Rep. No. 2287, 74th Cong., 2d Sess. 10; S. Rep. No. 1502, 74th Cong., 2d Sess. 5.
Representative Utterback’s comment has been criticized as "ambiguous and misleading and . . . too often accepted without analysis.” Austin, Price Discrimination and Related Problems Under the Robinson-Patman Act (2d rev. ed. 1959), 18. It is, of course, possible that the Congressman was so intent upon the immediate problem — protection of secondary-line competition — that he did not reflect upon the significance of his statement when applied to primary-line cases.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Unidentifiable",
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] |
[
56
] |
HENSLEY et al. v. ECKERHART et al.
No. 81-1244.
Argued November 3, 1982
Decided May 16, 1983
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, 'post, p. 440. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 441.
Michael L. Boicourt, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief was John Ashcroft, Attorney General.
Stanley J. Eichner argued the cause and filed a brief for respondents.
Robert E. Williams, Douglas S. McDowell, and Lorence L. Kessler filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Norman J. Chachkin, and E. Richard Larson filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed for the State of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Andrew S. Gordon and Allen C. Warshaw, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Wilson L. Condon, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, John Steven Clark, Attorney General of Arkansas, George Deukmejian, Attorney General of California, J.D. MacFarlane, Attorney General of Colorado, Richard S. Gebelein, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Tany S. Hong, Attorney General of Hawaii, David H. Leroy, Attorney General of Idaho, Tyrone C. Fahner, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Steven L. Beshear, Attorney General of Kentucky, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Francis X. Bellotti, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Warren R. Spannaus, Attorney General of Minnesota, William A. Attain, Attorney General of Mississippi, Paul L. Douglas, Attorney General of Nebraska, Richard H. Bryan, Attorney General of Nevada, Gregory H. Smith, Attorney General of New Hampshire, Irwin I. Kim-melman, Attorney General of New Jersey, JeffBingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Robert 0. Wefald, Attorney General of North Dakota, William J. Brown, Attorney General of Ohio, Jan Eric Cartwright, Attorney General of Oklahoma, Hector Reichard, Attorney General of Puerto Rico, Daniel R. McLeod, Attorney General of South Carolina, Mark D. Meierhenry, Attorney General of South Dakota, William M. Leech, Jr., Attorney General of Tennessee, Mark White, Attorney General of Texas, David L. Wil kinson, Attorney General of Utah, John J. Easton, Attorney General of Vermont, Gerald L. Baliles, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, Chauncey H. Browning, Attorney General of West Virginia, Bronson C. LaFollette, Attorney General of Wisconsin, and Steven F. Freudenthal, Attorney General of Wyoming; and for the American Bar Association by David R. Brink and M. D. Taracido.
Justice Powell
delivered the opinion of the Court.
Title 42 U. S. C. § 1988 provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The issue in this case is whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.
I — I
A
Respondents brought this lawsuit on behalf of all persons involuntarily confined at the Forensic Unit of the Fulton State Hospital in Fulton, Mo. The Forensic Unit consists of two residential buildings for housing patients who are dangerous to themselves or others. Maximum-security patients are housed in the Marion 0. Biggs Building for the Criminally Insane. The rest of the patients reside in the less restrictive Rehabilitation Unit.
In 1972 respondents filed a three-count complaint in the District Court for the Western District of Missouri against petitioners, who are officials at the Forensic Unit and members of the Missouri Mental Health Commission. Count I challenged the constitutionality of treatment and conditions at the Forensic Unit. Count II challenged the placement of patients in the Biggs Building without procedural due process. Count III sought compensation for patients who performed institution-maintaining labor.
Count II was resolved by a consent decree in December 1973. Count III largely was mooted in August 1974 when petitioners began compensating patients for labor pursuant to the Fair Labor Standards Act, 29 U. S. C. §201 et seq. In April 1975 respondents voluntarily dismissed the lawsuit and filed a new two-count complaint. Count I again related to the constitutionality of treatment and conditions at the Forensic Unit. Count II sought damages, based on the Thirteenth Amendment, for the value of past patient labor. In July 1976 respondents voluntarily dismissed this back-pay count. Finally, in August 1977 respondents filed an amended one-count complaint specifying the conditions that allegedly violated their constitutional right to treatment.
In August 1979, following a three-week trial, the District Court held that an involuntarily committed patient has a constitutional right to minimally adequate treatment. 475 F. Supp. 908, 915 (1979). The court then found constitutional violations in five of six general areas: physical environment; individual treatment plans; least restrictive environment; visitation, telephone, and mail privileges; and seclusion and restraint. With respect to staffing, the sixth general area, the District Court found that the Forensic Unit’s staffing levels, which had increased during the litigation, were minimally adequate. Id., at 919-920. Petitioners did not appeal the District Court’s decision on the merits.
B
In February 1980 respondents filed a request for attorney’s fees for the period from January 1975 through the end of the litigation. Their four attorneys claimed 2,985 hours worked and sought payment at rates varying from $40 to $65 per hour. This amounted to approximately $150,000. Respondents also requested that the fee be enhanced by 30 to 50 percent, for a total award of somewhere between $195,000 and $225,000. Petitioners opposed the request on numerous grounds, including inclusion of hours spent in pursuit of unsuccessful claims.
The District Court first determined that respondents were prevailing parties under 42 U. S. C. § 1988 even though they had not succeeded on every claim. It then refused to eliminate from the award hours spent on unsuccessful claims:
“[Petitioners’] suggested method of calculating fees is based strictly on a mathematical approach comparing the total number of issues in the case with those actually prevailed upon. Under this method no consideration is given for the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.” No. 75-CV-87-C, p. 7 (WD Mo., Jan. 23, 1981), Record 220.
Finding that respondents “have obtained relief of significant import,” id., at 231, the District Court awarded a fee of $133,332.25. This award differed from the fee request in two respects. First, the court reduced the number of hours claimed by one attorney by 30 percent to account for his inexperience and failure to keep contemporaneous records. Second, the court declined to adopt an enhancement factor to increase the award.
The Court of Appeals for the Eighth Circuit affirmed on the basis of the District Court’s memorandum opinion and order. 664 F. 2d 294 (1981). We granted certiorari, 455 U. S. 988 (1982), and now vacate and remand for further proceedings.
II
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), this Court reaffirmed the “American Rule” that each party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary. In response Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, authorizing the district courts to award a reasonable attorney’s fee to prevailing parties in civil rights litigation. The purpose of § 1988 is to ensure “effective access to the judicial process” for persons with civil rights grievances. H. R. Rep. No. 94-1558, p. 1 (1976). Accordingly, a prevailing plaintiff “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” S. Rep. No. 94-1011, p. 4 (1976) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968)).
The amount of the fee, of course, must be determined on the facts of each case. On this issue the House Report simply refers to 12 factors set forth in Johnson v. Georgia High way Express, Inc., 488 F. 2d 714 (CA5 1974). The Senate Report cites to Johnson as well and also refers to three District Court decisions that “correctly applied” the 12 factors. One of the factors in Johnson, “the amount involved and the results obtained,” indicates that the level of a plaintiff’s success is relevant to the amount of fees to be awarded. The importance of this relationship is confirmed in varying degrees by the other cases cited approvingly in the Senate Report.
In Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), aff’d, 550 F. 2d 464 (CA9 1977), rev’d on other grounds, 436 U. S. 547 (1978), the plaintiffs obtained a declaratory judgment, then moved for a preliminary injunction. After the defendants promised not to violate the judgment, the motion was denied. The District Court awarded attorney’s fees for time spent pursuing this motion because the plaintiffs “substantially advanced their clients’ interests” by obtaining “a significant concession from defendants as a result of their motion.” 64 F. R. D., at 684.
In Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (CD Cal. 1974), the plaintiffs won an important judgment requiring the Los Angeles County Fire Department to undertake an affirmative-action program for hiring minorities. In awarding attorney’s fees the District Court stated:
“It also is not legally relevant that plaintiffs’ counsel expended a certain limited amount of time pursuing certain issues of fact and law that ultimately did not become litigated issues in the case or upon which plaintiffs ultimately did not prevail. Since plaintiffs prevailed on the merits and achieved excellent results for the represented class, plaintiffs’ counsel are entitled to an award of fees for all time reasonably expended in pursuit of the ultimate result achieved in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter.” Id., at 5049.
Similarly, the District Court in Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 484 (WDNC 1975), based its fee award in part on a finding that “[t]he results obtained were excellent and constituted the total accomplishment of the aims of the suit,” despite the plaintiffs’ losses on “certain minor contentions.”
In each of these three cases the plaintiffs obtained essentially complete relief. The legislative history, therefore, does not provide a definitive answer as to the proper standard for setting a fee award where the plaintiff has achieved only limited success. Consistent with the legislative history, Courts of Appeals generally have recognized the relevance of the results obtained to the amount of a fee award. They have adopted varying standards, however, for applying this principle in cases where the plaintiff did not succeed on all claims asserted.
In this case petitioners contend that “an award of attorney’s fees must be proportioned to be consistent with the extent to which a plaintiff has prevailed, and only time reasonably expended in support of successful claims should be compensated.” Brief for Petitioners 24. Respondents agree that a plaintiff’s success is relevant, but propose a less stringent standard focusing on “whether the time spent prosecuting [an unsuccessful] claim in any way contributed to the ultimate results achieved.” Brief for Respondents 46. Both parties acknowledge the discretion of the district court in this area. We take this opportunity to clarify the proper relationship of the results obtained to an award of attorney’s fees.
III
A
A plaintiff must be a “prevailing party” to recover an attorney’s fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Nadeau v. Helgemoe, 581 F. 2d 275, 278-279 (CA1 1978). This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is “reasonable.”
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” S. Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, 'billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Copeland v. Marshall, 205 U. S. App. D. C. 390, 401, 641 F. 2d 880, 891 (1980) (en banc) (emphasis in original).
B
The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the “results obtained.” This factor is particularly crucial where a plaintiff is deemed “prevailing” even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers, as in this case — counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been “expended in pursuit of the ultimate result achieved.” Davis v. County of Los Angeles, 8 E. P. D., at 5049. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of Los Angeles, supra, at 5049. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
Application of this principle is particularly important in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy and demands many hours of lawyers’ services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a “prevailing party” therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved. In this case, for example, the District Court’s award of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief obtained. But had respondents prevailed on only one of their six general claims, for example the claim that petitioners’ visitation, mail, and telephone policies were overly restrictive, see n. 1, supra, a fee award based on the claimed hours clearly would have been excessive.
There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.
C
A request for attorney’s fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise “billing judgment” with respect to hours worked, see supra, at 434, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.
We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. "When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.
>
In this case the District Court began by finding that [t]he relief [respondents] obtained at trial was substantial and certainly entitles them to be considered prevailing . . . , without the need of examining those issues disposed of prior to trial in order to determine which went in [respondents’] favor.” Record 219. It then declined to divide the hours worked between winning and losing claims, stating that this fails to consider “the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.” Id., at 220. Finally, the court assessed the “amount involved/ results obtained” and declared: “Not only should [respondents] be considered prevailing parties, they are parties who have obtained relief of significant import. [Respondents’] relief affects not only them, but also numerous other institutionalized patients similarly situated. The extent of this relief clearly justifies the award of a reasonable attorney’s fee.” Id., at 231.
These findings represent a commendable effort to explain the fee award. Given the interrelated nature of the facts and legal theories in this case, the District Court did not err in refusing to apportion the fee award mechanically on the basis of respondents’ success or failure on particular issues. And given the findings with respect to the level of respondents’ success, the District Court’s award may be consistent with our holding today.
We are unable to affirm the decisions below, however, because the District Court’s opinion did not properly consider the relationship between the extent of success and the amount of the fee award. The court’s finding that “the [significant] extent of the relief clearly justifies the award of a reasonable attorney’s fee” does not answer the question of what is “reasonable” in light of that level of success. We emphasize that the inquiry does not end with a finding that the plaintiff obtained significant relief. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.
V
We hold that the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U. S. C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. On remand the District Court should determine the proper amount of the attorney’s fee award in light of these standards.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Under “physical environment” the court found that certain physical aspects of the Biggs Building were not minimally adequate. 475 F. Supp., at 916-919.
Under “individual treatment plans” the court found that the existing plans were adequate, but that the long delay in preparation of initial plans after patients were admitted and the lack of regular review of the plans operated to deny patients minimally adequate plans. Id,., at 921-922.
Under “least restrictive environment” the court found unconstitutional the delay in transfer of patients from the Biggs Building to the Rehabilitation Unit following a determination that they no longer needed maximum-security confinement. Id., at 922-923.
Under “visitation, telephone and mail” the court found that the visitation and telephone policies at the Biggs Building were so restrictive that they constituted punishment and therefore violated patients’ due process rights. Id., at 923-925.
Under “seclusion and restraint” the court rejected respondents’ claim that patients were given excessive medication as a form of behavior control. The court then found that petitioners’ practices regarding seclusion and physical restraint were not minimally adequate. Id., at 925-928.
A prevailing defendant may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant. See H. R. Rep. No. 94-1558, p. 7 (1976); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978) (“[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith”).
The 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719. These factors derive directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980).
“It is intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir.1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. ¶ 9444 (CD Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975). These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys. In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time reasonably expended on a matter.’ Davis, supra; Stanford Daily, supra at 684.” S. Rep. No. 94-1011, p. 6 (1976).
Some Courts of Appeals have stated flatly that plaintiffs should not recover fees for any work on unsuccessful claims. See, e. g., Bartholomew v. Watson, 665 F. 2d 910, 914 (CA9 1982); Muscare v. Quinn, 614 F. 2d 577, 579-581 (CA7 1980); Hughes v. Repko, 578 F. 2d 483, 486-487 (CA3 1978). Others have suggested that prevailing plaintiffs generally should receive a fee based on hours spent on all nonfrivolous claims. See, e. g., Sherkow v. Wisconsin, 630 F. 2d 498, 504-505 (CA7 1980); Northcross v. Board of Educ. of Memphis City Schools, 611 F. 2d 624, 636 (CA6 1979), cert. denied, 447 U. S. 911 (1980); Brown v. Bathke, 588 F. 2d 634, 636-637 (CA8 1978). Still other Courts of Appeals have held that recovery of a fee for hours spent on unsuccessful claims depends upon the relationship of those hours expended to the success achieved. See, e. g., Copeland v. Marshall, 205 U. S. App. D. C. 390, 401-402, n. 18, 641 F. 2d 880, 891-892, n. 18 (1980) (en banc); Jones v. Diamond, 636 F. 2d 1364, 1382 (CA5) (en banc), cert. dism’d, 453 U. S. 950 (1981); Gurule v. Wilson, 635 F. 2d 782, 794 (CA10 1980) (opinion on rehearing); Lamphere v. Brown Univ., 610 F. 2d 46, 47 (CA1 1979).
The parties disagree as to the results obtained in this ease. Petitioners believe that respondents “prevailed only to an extremely limited degree.” Brief for Petitioners 22. Respondents contend that they “prevailed on practically every claim advanced.” Brief for Respondents 23. As discussed in Part IV, infra, we leave this dispute for the District Court on remand.
As we noted in Hanrahan v. Hampton, 446 U. S. 754, 758, n. 4 (1980) (per curiam), “[t]he provision for counsel fees in § 1988 was patterned upon the attorney’s fees provisions contained in Titles II and VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U. S. C. § 1973i(e).” The legislative history of §1988 indicates that Congress intended that “the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act.” S. Rep. No. 94-1011, p. 4 (1976). The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a “prevailing party.” 8
See also Busche v. Burkee, 649 F. 2d 509, 521 (CA7 1981), cert. denied, 454 U. S. 897 (1981); Sethy v. Alameda County Water Dist., 602 F. 2d 894, 897-898 (CA9 1979) (per curiam). Cf. Taylor v. Sterrett, 640 F. 2d 663, 669 (CA5 1981) (“[T]he proper focus is whether the plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought”).
The district court also may consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717-719 (CA5 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate. See Copeland v. Marshall, 205 U. S. App. D. C. 390, 400, 641 F. 2d 880, 890 (1980) (en banc).
If the unsuccessful claim is frivolous, the defendant may recover attorney’s fees incurred in responding to it. See n. 2, supra.
We agree with the District Court’s rejection of “a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.” Record 220. Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors. Nor is it necessarily significant that a prevailing plaintiff did not receive all the relief requested. For example, a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time.
We recognize that there is no certain method of determining when claims are “related” or “unrelated.” Plaintiff’s counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures. See Nadeau v. Helgemoe, 581 F. 2d 275, 279 (CA1 1978) (“As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney’s fees in a suit in which plaintiffs were only partially successful if counsel’s records do not provide a proper basis for determining how much time was spent on particular claims”).
In addition, the District Court properly considered the reasonableness of the hours expended, and reduced the hours of one attorney by 30 percent to account for his inexperience and failure to keep contemporaneous time records.
The District Court expressly relied on Brown v. Bathke, 588 F. 2d 634 (CA8 1978), a ease we believe understates the significance of the results obtained. In that case a fired schoolteacher had sought reinstatement, lost wages, $25,000 in damages, and expungement of derogatory material from her employment record. She obtained lost wages and the requested expungement, but not reinstatement or damages. The District Court awarded attorney’s fees for the hours that it estimated the plaintiff’s attorney had spent on the particular legal issue on which relief had been granted. The Eighth Circuit reversed. It stated that the results obtained may be considered, but that this factor should not “be given such weight that it reduces the fee awarded to a prevailing party below the ‘reasonable attorney’s fee’ authorized by the Act.” Id., at 637. The court determined that the unsuccessful issues that had been raised by the plaintiff were not frivolous, and then remanded the case to the District Court. Id., at 638.
Our holding today differs at least in emphasis from that of the Eighth Circuit in Brown. We hold that the extent of a plaintiff’s success is a crucial factor that the district courts should consider carefully in determining the amount of fees to be awarded. In Brown the plaintiff had lost on the major issue of reinstatement. The District Court found that she had “ ‘obtained only a minor part of the relief she sought.’” Id., at 636. In remanding the Eighth Circuit implied that the District Court should not withhold fees for work on unsuccessful claims unless those claims were frivolous. Today we hold otherwise. It certainly was well within the Brown District Court’s discretion to make a limited fee award in light of the “minor” relief obtained.
The dissent errs in suggesting that the District Court’s opinion would have been acceptable if merely a single word had been changed. See post, at 451. We note, for example, that the District Court did not determine whether petitioners’ unilateral increase in staff levels was a result of the litigation. Petitioners asserted that 70%-80% of the attorney time in the case was spent on the question of staffing levels at the Forensic Unit. Memorandum in Opposition to Plaintiffs’ Request for an Award of Attorneys’ Fees, Expenses and Costs 30. If this is true, and if respondents’ lawsuit was not a catalyst for the staffing increases, then respondents’ failure to prevail on their challenge to the staffing levels would be material in determining whether an award based on over 2,500 hours expended was justifiable in light of respondents’ actual success. The District Court’s failure to consider this issue would not have been obviated by a mere conclusory statement that this fee was reasonable in light of the success obtained.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
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116
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IMMIGRATION AND NATURALIZATION SERVICE v. JONG HA WANG et ux.
No. 80-485.
Decided March 2, 1981
Per Curiam.
Section 244 of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254 (a)(1), provides that the Attorney General in his discretion may suspend deportation and adjust the status of an otherwise deportable alien who (1) has been physically present in the United States for not less than seven years; (2) is a person of good moral character; and (3) is “a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” The Attorney General is authorized to delegate his powers under the Act, 8 U. S. C. § 1103, and his authority under § 244 has been delegated by regulation to specified authorities in the Immigration and Naturalization Service. 8 CFR §2.1 (1979).
The § 244 issue usually arises in an alien’s deportation hearing. It can arise, however, as it did in this case, on a motion to reopen after deportation has been duly ordered. The Act itself does not expressly provide for a motion to reopen, but regulations promulgated under the Act allow such a procedure. The regulations also provide that the motion to reopen shall “state the new fact to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material.” 8 CFR § 3.8 (a) (1979). Motions to reopen are thus permitted in those cases in which the events or circumstances occurring after the order of deportation would satisfy the extreme-hardship standard of § 244. Such motions will not be granted “when a prima facie case of eligibility for the relief sought has not been established.” Matter of Lam, 141. & N. Dec. 98 (BIA 1972). See Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972).
Respondents, husband and wife, are natives and citizens of Korea who first entered the United States in January 1970 as nonimmigrant treaty traders. They were authorized to remain until January 10, 1972, but they remained beyond that date without permission and were found deportable after a hearing in November 1974. They were granted the privilege of voluntarily departing by February 1, 1975. They did not do so. Instead, they applied for adjustment of status under § 245 of the Act, 8 U. S. C. § 1255, but were found ineligible for this relief after a hearing on July 15, 1975. Their appeal from this ruling was dismissed by the Board of Immigration Appeals in October 1977. Respondents then filed a second motion to reopen their deportation proceedings in December 1977, this time claiming suspension under § 244 of the Act. Respondents by then had satisfied the 7-year-continuous-physical-presence requirement of that section. The motion alleged that deportation would result in extreme hardship to respondents’ two American-born children because neither child spoke Korean and would thus lose “educational opportunities” if forced to leave this country. Respondents also claimed economic hardship to themselves and their children resulting from the forced liquidation of their assets at a possible loss. None of the allegations was sworn or otherwise supported by evidentiary materials, but it appeared that all of respondents’ close relatives, aside from their children, resided in Korea and that respondents had purchased a dry-cleaning business in August 1977, some three years after they had been found deportable. The business was valued at $75,000 and provided an income of $650 per week. Respondents also owned a home purchased in 1974 and valued at $60,000. They had $24,000 in a savings account and some $20,000 in miscellaneous assets. Liabilities were approximately $81,000.
The Board of Immigration Appeals denied respondents’ motion to reopen without a hearing, concluding that they had failed to demonstrate a prima facie case that deportation would result in extreme hardship to either themselves or their children so as to entitle them to discretionary relief under the Act. The Board noted that a mere showing of economic detriment is not sufficient to establish extreme hardship under the Act. See Pelaez v. INS, 513 F. 2d 303 (CA5), cert. denied, 423 U. S. 892 (1975). This was particularly true since respondents had “significant financial resources and there [was] nothing to suggest that the college-educated male respondent could not find suitable employment in Korea.” With respect to the claims involving the children, the Board ruled that the alleged loss of educational opportunities to the young children of relatively affluent, educated Korean parents did not constitute extreme* hardship within the meaning of § 244.
The Court of Appeals for the Ninth Circuit, sitting en banc, reversed. 622 F. 2d 1341 (1980). Contrary to the Board’s holding, the Court of Appeals found that respondents had alleged a sufficient prima facie case of extreme hardship to entitle them to a hearing. The court reasoned that the statute should be liberally construed to effectuate its ameliorative purpose. The combined effect of the allegation of harm to the minor children, which the court thought was hard to discern without a hearing, and the impact on respondents’ economic interests was sufficient to constitute a prima facie case requiring a hearing where the Board would “consider the total potential effect of deportation on the alien and his family.” Id., at 1349.
The Court of Appeals erred in two respects. First, the court ignored the regulation which requires the alien seeking suspension to allege and support by affidavit or other eviden-tiary material the particular facts claimed to constitute extreme hardship. Here, the allegations of hardship were in the main conclusory and unsupported by affidavit. By requiring a hearing on such a motion, the Court of Appeals circumvented this aspect of the regulation, which was obviously designed to permit the Board to select for hearing only those motions reliably indicating the specific recent events that would render deportation a matter of extreme hardship for the alien or his children.
Secondly, and more fundamentally, the Court of Appeals improvidently encroached on the authority which the Act confers on the Attorney General and his delegates. The crucial question in this case is what constitutes “extreme hardship.” These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of § 244 and in any event noted that respondents had significant financial resources while finding nothing to suggest that Mr. Wang could not find suitable employment in Korea. It also followed that respondents’ two children would not suffer serious economic deprivation if they returned to Korea. Finally, the Board could not believe that the two “young children of affluent, educated parents” would be subject to such educational deprivations in Korea as to amount to extreme hardship. In making these determinations, the Board was acting within its authority. As we see it, nothing in the allegations indicated that this is a particularly unusual case requiring the Board to reopen the deportation proceedings.
The Court of Appeals nevertheless ruled that the hardship requirement of § 244 is satisfied if an alien produces sufficient evidence to suggest that the “hardship from deportation would be different and more severe than that suffered by the ordinary alien who is deported.” 622 F. 2d, at 1346. Also, as Judge Goodwin observed in dissent, the majority of the Court of Appeals also strongly indicated that respondents should prevail under such an understanding of the statute. Id., at 1352. In taking this course, the Court of Appeals extended its “writ beyond its proper scope and deprived the Attorney General of a substantial portion of the discretion which § 244 (a) vests in him.” Id., at 1351 (Sneed, J., dissenting).
The Attorney General and his delegates have the authority to construe “extreme hardship” narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the “extreme hardship” language, which itself indicates the exceptional nature of the suspension remedy. Moreover, the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new arid meritorious considerations. Under the standard applied by the court below, many aliens could obtain a hearing based upon quite minimal showings. As stated in dissent below, “by using the majority opinion as a blueprint, any foreign visitor who has fertility, money, and the ability to stay out of trouble with the police for seven years can change his status from that of tourist or student to that of permanent resident without the inconvenience of immigration quotas. This strategy is not fair to those waiting for a quota.” Id., at 1352 (Goodwin, J., dissenting). Judge Goodwin further observed that the relaxed standard of the majority opinion “is likely to shift the administration of hardship deportation cases from the Immigration and Naturalization Service to this court.” Id., at 1351.
We are convinced that the Board did not exceed its authority and that the Court of Appeals erred in ordering that the case be reopened. Accordingly, the petition for certio-rari is granted, and the judgment of the Court of Appeals is reversed.
So ordered.
Justices Brennan, Marshall, and Blackmun would grant the petition for certiorari and give the case plenary consideration.
Initially, the Attorney General had no discretion in ordering deportation, and an alien’s sole remedy was to obtain a private bill from Congress. See Foti v. INS, 375 U. S. 217, 222 (1963). The first measure of statutory relief was included in the Alien Registration Act of 1940, 54 Stat. 670. Under the statutory predecessor of §244, suspension of a deportation order could be granted only if the alien demonstrated “exceptional and extremely unusual hardship.” Immigration and Nationality Act of 1952, §244 (a)(1), Pub. L. 414, 66 Stat. 214. This provision was amended to require that the alien show that deportation would result in “extreme hardship,” Act of Oct. 24, 1962, Pub. L. 87-885, § 4, 76 Stat. 1248.
Section 2.1 of the regulations delegates the Attorney General’s power to the Commissioner of Immigration and Naturalization, and permits the Commissioner to redelegate the authority through appropriate regulations. The power to consider § 244 applications in deportation hearings is delegated to special inquiry officers, whose decisions are subject to review by the Board of Immigration Appeals, 8 CFR §§242.8, 242.21 (1979). See Bastidas v. INS, 609 F. 2d 101, 103, n. 1 (CA3 1979). The Board of Immigration Appeals has the power to consider the question if it is raised on a motion to reopen where the Board has already made a decision in the case. 8 CFR §3.2 (1979).
Title 8 CFR §3.2 (1979) provides in pertinent part:
“Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted . . . unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.”
Relief was denied because the immigration judge determined that visa numbers for nonpreference Korean immigrants were not available, thus rendering respondents ineligible for the requested relief. The immigration judge also stated that he would have denied the application given respondents’ failure to move to Salt Labe City where Mr. Wang’s sponsoring employer was located, thus causing doubt whether his services were in fact needed.
Other Courts of Appeals have enforced the evidentiary requirement stated in 8 CFR § 3.8 (1979). See, e. g., Oum v. INS, 613 F. 2d 51, 54 (CA4 1980); Acevedo v. INS, 538 F. 2d 918, 920 (CA2 1976). See also Tupacyupanqui-Marin v. INS, 447 F. 2d 603, 607 (CA7 1971); Luna-Benalcazar v. INS, 414 F. 2d 254, 256 (CA6 1969).
Prior to the present procedures, the grant or denial of a motion to reopen was solely within the discretion of the Board. See Arabas v. Zimmerman, 200 F. 2d 322, 323-324, and n. 2 (CA3 1952). The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened. See Villena v. INS, 622 F. 2d 1352 (CA9 1980) (en banc) (Wallace, J., dissenting). In his dissent, Judge Wallace stated that INS had discretion beyond requiring proof of a prima facie case:
“If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations.” Id., at 1362.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
6
] |
ROWAN, dba AMERICAN BOOK SERVICE, et al. v. UNITED STATES POST OFFICE DEPARTMENT et al.
No. 399.
Argued January 22, 1970
Decided May 4, 1970
Joseph Taback argued the cause and filed a brief for appellants.
Assistant Attorney General Ruckelshaus argued the cause for appellees. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Robert V. Zener, and Donald L. Horowitz.
Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Lloyd G. Milliken filed a brief for the Attorney General of New York as amicus curiae urging affirmance. David E. McGiffert filed a brief for the Direct Mail Advertising Association, Inc., as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39 U. S. C. §4009 (1964 ed., Supp. IY), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.
A brief description of the statutory framework will facilitate our analysis of the questions raised in this appeal. Section 4009 is entitled “Prohibition of pandering advertisements in the mails.” It provides a procedure whereby any householder may insulate himself from advertisements that offer for sale “matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.” 39 U. S. C. § 4009 (a) (1964 ed., Supp. IV).
Subsection (b) mandates the Postmaster General, upon receipt of a notice from the addressee specifying that he has received advertisements found by him to be within the statutory category, to issue on the addressee's request an order directing the sender and his agents or assigns to refrain from further mailings to the named addressee. Additionally, subsection (c) requires the Postmaster General to order the affected sender to delete the name of the designated addressee from all mailing lists owned or controlled by the sender and prohibits the sale, rental, exchange, or other transactions involving mailing lists bearing the name of the designated addressee.
If the Postmaster General has reason to believe that an order issued under this section has been violated, subsection (d) authorizes him to notify the sender by registered or certified mail of his belief and the reasons therefor, and grant him an opportunity to respond and have a hearing on whether a violation has occurred.
If the Postmaster General thereafter determines that the order has been or is being violated, he is authorized to request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants to the district court jurisdiction to issue a compliance order upon application of the Attorney General.
Appellants initiated an action in the United States District Court for the Central District of California upon a complaint and petition for declaratory relief on the ground that 39 U. S. C. §4009 (1964 ed., Supp. IV) is unconstitutional. They alleged that they had received numerous prohibitory orders pursuant to the provisions of the statute. Appellants contended that the section violates their rights of free speech and due process guaranteed by the First and Fifth Amendments to the United States Constitution. Additionally, appellants argued that the section is unconstitutionally vague, without standards, and ambiguous.
A three-judge court was convened pursuant to 28 U. S. C. § 2284 and it determined that the section was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee. 300 F. Supp. 1036.
The District Court construed subsections (b) and (c) to prohibit “advertisements similar” to those initially mailed to the addressee. Future mailings, in the view of the District Court, “are to be measured by the objectionable material of such first mailing.” 300 F. Supp., at 1041. In our view Congress did not intend so restrictive a scope to those provisions.
I. Background and Congressional Objectives
Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not seek and did not want it. Use of mailing lists of youth organizations was part of the mode of doing business. At the congressional hearings it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony of child psychology specialists and psychiatrists before the House Committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.
To accomplish these objectives Congress provided in subsection (a) that the mailer is subject to an order "to refrain from further mailings of such materials to designated addressees.” Subsection (b) states that the Postmaster General shall direct the sender to refrain from “further mailings to the named addressees.” Subsection (c) in describing the Postmaster’s order states that it shall “expressly prohibit the sender . . . from making any further mailings to the designated addressees . . . .” Subsection (c) also requires the sender to delete the addressee’s name “from all mailing lists” and prohibits the sale, transfer, and exchange of lists bearing the addressee’s name.
There are three plausible constructions of the statute, with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressees, all future mailings of advertising material to the addressees, or all future mailings of similar materials.
The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was initially proposed. The section as originally reported by the House Committee prohibited “further mailings of such pandering advertisements,” § 4009 (a), “further mailings of such matter,” § 4009 (b), and “any further mailings of pandering advertisements,” § 4009 (c). H. R. Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, “as that term is used in the Ginzburg case.” Id., at 69.
The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove “the right of the Government to involve itself in any determination of the content and nature of these objectionable materials . . . .” 113 Cong. Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee’s name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment Congressman Waldie stated:
“So I have said in my amendment that if you receive literature in your household that you consider objectionable . . . you can inform the Postmaster General to have your name stricken from that mailer’s mailing list.” 113 Cong. Rec. 28660.
The Senate Committee Report on the bill contained similar language:
“If a person receives an advertisement which . . . he . . . believes to be erotically arousing ... he may notify the Postmaster General of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind to such person.” S. Rep. No. 801, 9fith Cong., 1st Sess., 38.
Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows:
“With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address . . . .” 113 Cong. Rec. 34231 (1967).
The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General “shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.” 39 U. S. C. § 4009 (c) (1964 ed., Supp. IV).
It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee’s name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. See n. 6, infra. The impact of this aspect of the statute is on the mailer, not the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open to at least two criticisms: (a) it would expose the householder to further burdens of scrutinizing the mail for objectionable material and possible harassment, and (b) it would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship. It is difficult to see how the Postmaster General could decide whether the materials were “similar” or possessing touting or pandering characteristics without an evaluation suspiciously like censorship. Additionally, such an interpretation would be incompatible with the unequivocal language in subsection (c).
II. First Amendment Contentions
The essence of appellants’ argument is that the statute violates their constitutional right to communicate. One sentence in appellants’ brief perhaps characterizes their entire position:
“The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever is imperative to a free and sane society.” Brief for Appellants 15.
Without doubt the public postal system, is an indispensable adjunct of every civilized society and communication is imperative to a healthy social order. But the right of every person “to be let alone” must be placed in the scales with the right of others to communicate. *
In today’s complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today’s merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman’s mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.
In Martin v. Struthers, 319 U. S. 141 (1943), Mr. Justice Black, for the Court, while supporting the “[fjreedom to distribute information to every citizen,” id., at 146, acknowledged a limitation in terms of leaving “with the homeowner himself” the power to decide “whether distributors of literature may lawfully call at a home.” Id., at 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.
The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra; cf. Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U. S. 875 (1948). In this case the mailer’s right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that “a man’s home is his castle” into which “not even the king may enter” has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U. S. 523 (1967).
Both the absoluteness of the citizen’s right under § 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents — or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.
In effect, Congress has erected a wall — or more accurately permits a citizen to erect a wall — that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped.
We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good” ideas on an unwilling recipient. That we are often “captives” outside the sanctuary of the home and subject to objectionable speech and other sound does, not mean we must be captives everywhere. See Public Utilities Comm’n v. Pollak, 343 U. S. 451 (1952). The asserted right of a mailer, we repeat, stops at the outer boundary of every person’s domain.
The statutory scheme at issue accords to the sender an “opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944). It thus comports with the Due Process Clause of the Fifth Amendment. The statutory scheme accomplishes this by providing that the Postmaster General shall issue a prohibitory order to the sender on the request of the complaining addressee. Only if the sender violates the terms of the order is the Postmaster General authorized to serve a complaint on the sender, who is then allowed 15 days to respond. The sender can then secure an administrative hearing. The sender may question whether the initial material mailed to the addressee was an advertisement and whether he sent any subsequent mailings. If the Postmaster General thereafter determines that the prohibitory order has been violated, he is authorized to request the Attorney General to make application in a United States District Court for a compliance order; a second hearing is required if an order is to be entered.
The only administrative action not preceded by a full hearing is the initial issuance of the prohibitory order. Since the sender risks no immediate sanction by failing to comply with that order — it is only a predicate for later steps — it cannot be said that this aspect of the procedure denies due process. It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U. S. 393, 396 (1934).
The appellants also contend that the requirement that the sender remove the addressee’s name from all mailing lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressees from the lists and cease all mailings to those persons.
Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of the names are prohibitive. We agree with the conclusion of the District Court that the “burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises.” 300 F. Supp., at 1041. See California State Auto Ins. Bureau v. Maloney, 341 U. S. 105 (1951).
There is no merit to the appellants’ allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff, 344 U. S. 174, 176 (1952). Here the appellants know precisely what they must do on receipt of a prohibitory order. The complainants’ names must be removed from the sender’s mailing lists and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation.
For the reasons stated, the judgment appealed from is affirmed.
It is so ordered.
Subsection (g) provides that upon the addressee’s request the order shall include the names of the addressee’s minor children who reside with him and who have not attained their nineteenth birthday.
Judge Hufstedler, concurring specially but without dissent, would require the District Court prior to issuing a compliance order to determine de novo whether the sender is a person who has mailed or has caused to be mailed any pandering advertisements.
Senator Hruska spoke similarly: “Title III would allow the recipient of obscene mail to return it to the Postmaster General with a request that the Postmaster General notify the sender to stop mailings to, the addressee 113 Cong. Rec. 34232 (1967).
Subsection (d) vests the Postmaster General with the duty to determine whether the sender has violated the order. This determination was intended to be primarily a ministerial one involving an adjudication whether the initial material was an advertisement and whether the sender mailed materials to the addressee more than 30 days after the receipt of the prohibitory order. An interpreta.tion which requires the Postmaster General to determine whether the subsequent material was pandering and/or similar would tend to place him “astride the flow of mail . . . .” Lamont v. Postmaster General, 381 U. S. 301, 306 (1965).
Although subsection (h) specifically excludes the pre-complaint hearing from the provisions of the Administrative Procedure Act, 5 U. S. C. § 554 et seq. (1964 ed., Supp. IV), the Post Office Department has promulgated regulations setting forth procedures governing the departmental administrative hearings. 39 CFR pt. 916.
The function of the district court is similar to that of the Postmaster General. It is to determine whether the initial mailing included advertising material and whether there was a mailing by the sender to the addressee more than 30 days after receipt of the order. We reject the suggestions that the section should be read to require the district judge to make a determination of the addressee’s good faith, or to conduct an independent adjudication of the pandering nature of the material. The statute was intended to entrust unreviewable discretion to the addressee to determine whether or not the advertisement was "erotically arousing or sexually provocative.” “[T]he sole determination as to whether the literature you receive is objectionable or not is within your discretion and you are not second-guessed on that discretion.” 113 Cong. Rec. 28660 (1967) (remarks of Congressman Waldie).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
111
] |
ALABAMA STATE TEACHERS ASSN. et al. v. ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY et al.
No. 731.
Decided January 20, 1969.
Jack Greenberg, James M. Nabrit III, Melvin Zarr, and Fred D. Gray for appellants.
MacDonald Gallion, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General, for Alabama Public School and College Authority, and James J. Carter for Members of the Board and the Board of Trustees of Auburn University, appellees.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
McCAIN et al. v. LYBRAND et al.
No. 82-282.
Argued October 31, 1983
Decided February 21, 1984
• Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and O’Connor, JJ., joined. Blackmun, Powell, and Rehnquist, JJ., concurred in the judgment.
Laughlin McDonald argued the cause for appellants. With him on the brief were Neil Bradley, Christopher Coates, Armand Derfner, and Herbert E. Buhl III.
Barbara E. Etkind argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Carolyn F. Corwin, Jessica Dunsay Silver, and James W. Clute.
Karen LeCraft Henderson argued the cause for appellees. With her on the brief were T. Travis Medlock, Attorney General of South Carolina, Treva G. Ashworth, Senior Assistant Attorney General, and Charles W. Coleman.
Justice Stevens
delivered the opinion of the Court.
In 1966, South Carolina enacted a statute that altered Edgefield County’s election practices but the statute was not submitted to federal officials for their approval as required by the Voting Rights Act of 1965. In 1971, the statute was amended, modifying the 1966 election practices, and state officials submitted the amendment to the Attorney General for his approval. In response to a request from the Attorney General, state officials provided him with additional documentation in support of their submission, including the 1966 statute. The Attorney General approved the submission, stating that he did not object to the change in question. The question in this case is whether the Attorney General’s approval of the 1971 submission can be deemed to have the effect of ratifying the changes embodied in the 1966 enactment. We hold that the 1966 changes have not been approved.
HH
As of November 1, 1964, local political authority in Edge-field County, South Carolina, was vested in a County Supervisor and a Board of County Commissioners. The County Supervisor, the chairman of the three-member Board, was elected at large for a 4-year term. The County Supervisor had jurisdiction over public roads, matters relating to county taxes and expenditures, and certain other matters. The other two seats on the Board were appointed offices. These two commissioners were appointed by the Governor, also for 4-year terms, upon the recommendation of a majority of the county’s delegation in the state legislature after a countywide straw vote on prospective appointees. There were no residency requirements for commissioners. The Board had limited administrative and ministerial powers.
On June 1, 1966, the South Carolina General Assembly enacted Act No. 1104, which was effective as a matter of state law when it was signed by the Governor on June 7, 1966. The Act created a new form of government for Edgefield County, altering the county’s election practices. The office of County Supervisor and the Board of County Commissioners were abolished upon expiration of the incumbents’ terms. A three-member County Council with broad legislative and administrative powers was created, and the county was divided into three residency districts for purposes of electing Council members. To qualify as a candidate for a seat on the Council under the Act, an individual must be a qualified voter in one of the three districts and is required to register as a candidate from that district. The Council members, however, are elected at large: voters throughout the county cast votes for a candidate from each district, and the candidate in each district with the largest number of votes occupies that district’s seat on the Council. Council members are elected for 2-year terms, and the members themselves annually elect a chairman.
The 1966 Act was amended in 1971 by Act No. 521, “An Act to Amend Act No. 1104 of 1966 ... So As To Increase The Number of Districts And The Number of County Council Members.” The 1971 amendment increased the number of residency districts, and thus the number of Council members, from three to five. Necessarily the change in the number of districts resulted in new district boundaries. Otherwise, the 1971 amendment did not alter the 1966 Act.
County Council elections in Edgefield County have been conducted under the basic scheme established by the 1966 Act since the first elections held pursuant to the Act in November 1966.
In 1971, state officials sent a letter to the Attorney General of the United States stating: “In accordance with the provisions of Section 5 of the Voting Rights Act of 1965, there are submitted herewith copies” of 18 listed recent state enactments, which included the 1971 amendment regarding Edge-field County. The Justice Department responded to the request for clearance of the 1971 amendment by stating: “After a preliminary examination of H2206 [the 1971 amendment], it does not appear that we have sufficient information to evaluate the change you have submitted.” The Justice Department therefore requested additional information from state officials—maps showing boundaries of current districts, population and registration statistics, recent election returns, “a copy of the election statute now in force”—and noted that the time limitation on consideration of the request would begin to run when the relevant information “necessary to evaluate H2206” was provided. State officials forwarded the requested information “concerning the legislation that required further clarification (H2206)” to the Justice Department, including a copy of the 1966 Act. The Justice Department letter in response stated that it was “concerning the submission of H2206 to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended,” and then stated: “The Attorney General does not interpose any objections to the change in question.”
II
The appellants, black voters residing in Edgefield County, South Carolina, commenced a class action in 1974 in the United States District Court for the District of South Carolina challenging the county’s election practices on constitutional grounds. Specifically, they alleged in their complaint against appellees, various county officials including the County Council members, that the county’s at-large method of electing the County Council diluted the voting strength of black voters and that the county’s residency districts were malapportioned. The District Court entered judgment in favor of appellants on the malapportionment claim, but that judgment was reversed on appeal. Lytle v. Commissioners of Election, 376 F. Supp. 304 (SC), rev’d, 509 F. 2d 1049, 1032 (CA4), cert. denied sub nom. McCain v. Lybrand, 419 U. S. 1032 (1974). After years of litigation and unsuccessful settlement negotiations, the District Court entered judgment in favor of appellants on their constitutional claim challenging the method of electing the Council at large from residency districts and enjoined further elections for the County Council until adoption of a new method of election, Record, Doc. Nos. 27, 28 (orders of Apr. 17, 1980, and Apr. 22, 1980). A few months later, the District Court vacated the judgment and ordered further proceedings in light of this Court’s intervening decision in City of Mobile v. Bolden, 446 U. S. 55 (1980). Record, Doc. No. 31 (order of Aug. 8, 1980).
While continuing to press their constitutional claim in the District Court, appellants then filed an amended complaint, alleging that the 1966 Act had never been submitted to federal officials as required by § 5 of the Voting Rights Act of 1965. 79 Stat. 439, as amended, 42 U. S. C. § 1973c. A three-judge District Court was convened to decide this claim. That court reviewed South Carolina’s 1971 submission and noted that the Justice Department had been made aware of the provisions of the 1966 Act. The District Court concluded that the Justice Department’s request for additional information “indicates that Justice Department’s review of [the 1971 Act] encompassed all aspects of the Act, including the effect of the at-large with residency requirement voting that had been implemented in 1966.” App. to Juris. Statement 12a. The District Court did not find, however, that the Justice Department had been provided with any information concerning voting practices prior to 1966, or that it had been made aware of the fact that the 1966 Act embodied election practices different from those that had been in effect before 1966. Nevertheless, the District Court concluded that the Attorney General’s approval of the 1971 Act, which both changed the 1966 Act by increasing the size of the Council and reenacted its remaining provisions, “renders moot any objection to the superceded 1966 provisions.” Id., at 13a.
After obtaining the views of the Solicitor General, who urged summary reversal of the District Court’s judgment, we noted probable jurisdiction, 462 U. S. 1130 (1983), and for the reasons which follow, we now reverse.
I — I f — ( HH
The Fifteenth Amendment commands: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973 et seq. (1976 ed. and Supp. V), was enacted by Congress as a response to the “unremitting and ingenious defiance” of the command of the Fifteenth Amendment for nearly a century by state officials in certain parts of the Nation. South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). Congress concluded that case-by-case litigation under previous legislation was an unsatisfactory method to uncover and remedy the systematic discriminatory election practices in certain areas: such lawsuits were too onerous and time-consuming to prepare, obstructionist tactics by those determined to perpetuate discrimination yielded unacceptable delay, and even successful lawsuits too often merely resulted in a change in methods of discrimination. E. g., H. R. Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided “to shift the advantage of time and inertia from the perpetrators of the evil to its victims,” 383 U. S., at 328, and enacted “stringent new remedies” designed to “banish the blight of racial discrimination in voting” once and for all, id., at 308.
The “preclearance” requirement mandated by §5 of the Act is perhaps the most stringent of these remedies, and certainly the most extraordinary. It prohibits jurisdictions which had engaged in certain violations of the Fifteenth Amendment from implementing any election practices different from those in effect on November 1, 1964, pending scrutiny by federal officials to determine whether the changes are racially discriminatory in purpose or effect. “The language of § 5 clearly provides that it applies only to proposed changes in voting procedures.” Beer v. United States, 425 U. S. 130, 138 (1976). Statutory provisions constituting changes in election practices are not “effective as laws until and unless [they are] cleared pursuant to §5.” Connor v. Waller, 421 U. S. 656 (1975) (per curiam). The rationale of this “uncommon exercise” of congressional power which sustained its constitutional validity was a presumption that jurisdictions which had “resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees” would be likely to engage in “similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.” South Carolina v. Katzenbach, supra, at 334, 335 (footnote omitted). This provision must, of course, be interpreted in light of its prophylactic purpose and the historical experience which it reflects. See, e. g., McDaniel v. Sanchez, 452 U. S. 130, 151 (1981).
Section 5 of the Voting Rights Act of 1965, as originally enacted, required a covered State or political subdivision desiring to implement any election practices different from those in effect on November 1, 1964, to obtain a declaratory judgment from a three-judge panel of the United States District Court for the District of Columbia holding that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” before the new practice could be implemented. 79 Stat. 439. A proviso in § 5, however, established an alternative method of obtaining federal clearance of the measure: if the new election practice was submitted to the Attorney General of the United States and the Attorney General did not interpose an objection within 60 days of the submission, the jurisdiction was permitted to implement the change.
The original voting rights bill did not contain this alternative preclearance method; but after concerns arose that the declaratory judgment route would unduly delay implementation of nondiscriminatory legislation, it appears that the proviso was added “to provide a speedy alternative method of compliance to covered States.” Morris v. Gressette, 432 U. S. 491, 503 (1977). While the legislative history of the proviso is sparse, ibid., the history which does exist and the lack of controversy surrounding the proviso indicate that Congress in no way intended that the substantive protections of § 5 be sacrificed in the name of expediency, though it did logically anticipate that most jurisdictions would opt for the alternative preclearance method and that declaratory judgment actions would likely be limited to those occasions on which the Attorney General interposed an objection, see H. R. Rep. No. 439, 89th Cong., 1st Sess., 26 (1965); Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 237 (1965) (statement of Attorney General Katzenbach). We have previously recognized that the declaratory judgment proceeding is the “basic mechanism” for preclearance established by the Act, United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 136 (1978), and that the “provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable.” Allen v. State Board of Elections, 393 U. S. 544, 549 (1969); Georgia v. United States, 411 U. S. 526, 538 (1973). Indeed, irrespective of which avenue of preclearance the covered jurisdiction chooses, it has the same burden of demonstrating that the changes are not motivated by a discriminatory purpose and will not have an adverse impact on minority voters, McDaniel v. Sanchez, 452 U. S. 130, 137 (1981); Georgia v. United States, swpra, at 538, and federal officials are confronted with the same “difficult substantive issue.” Allen v. State Board of Elections, supra, at 558.
In evaluating the use of the alternative procedure of submitting proposed changes to the Attorney General, it must be remembered that § 5 “was enacted in large part because of the acknowledged and anticipated inability of the Justice Department — given limited resources — to investigate independently all changes with respect to voting enacted by States and subdivisions covered by the Act.” Perkins v. Matthews, 400 U. S. 379, 392, n. 10 (1971). Moreover, it is apparent that ambiguity concerning the scope of a preclearance is more likely if the State opts for the more expeditious method: silence constitutes consent under that method, and even when the Attorney General affirmatively states he has no objection, ambiguity may be present if the State’s submission itself is ambiguous. The potential for such ambiguity was particularly pronounced prior to the adoption of detailed regulations by the Justice Department governing preclear-anee submissions, when covered jurisdictions often merely sent a copy of new legislation to the Attorney General with a general statement that it was being submitted pursuant to §5.
Congress has amended the Voting Rights Act several times, each time continuing the basic structure of the original preclearance provision. In the legislative history of the extensions of the Act, §5 has been deemed to be a “vital element” of the Act to ensure that “new subterfuges will be promptly discovered and enjoined.” H. R. Rep. No. 91-397, p. 8 (1969). But Congress recognized that it was only as vital as state compliance allowed it to be. Unfortunately it appeared that “States rarely obeyed the mandate of that section, and the Federal Government was too timid in its enforcement.” Hearings on H. R. 4249 before the Committee on the Judiciary, 91st Cong., 1st Sess., 4 (1969) (statement of Rep. McCulloch). Few changes were submitted; and only a handful of objections were interposed: “Where local officials have passed discriminatory laws, generally they have not been submitted to the Department of Justice.” Hearings on H. R. 4249 before the House Committee on the Judiciary, 91st Cong., 1st Sess., 220 (1969) (statement of Attorney General Mitchell). While compliance with §5 increased after the 1970 extension of the Voting Rights Act, and the provision was believed to have been largely responsible for gains achieved in minority political participation, H. R. Rep. No. 94-196, pp. 10-11 (1975), the continuing “widespread failure to submit proposed changes in election law for Section 5 review before attempting to implement the change” was recently viewed as “significant evidence of the continuing need for the preclearance requirement.” S. Rep. No. 97-417, p. 12 (1982). The Attorney General has attempted to use several methods to identify unsubmitted changes, including the preclearance process itself, but the widespread noncompliance with the preclearance requirement, particularly acute shortly after passage of the Voting Rights Act in 1965, combined with the absence of an independent mechanism in the Justice Department to monitor changes, has permitted circumvention of the requirement which itself was designed to eliminate circumvention of the goals of the Act. H. R. Rep. No. 97-227, p. 13 (1981). Recent efforts to review finally the many unsubmitted changes made shortly after the passage of the Act in 1965 have received unqualified congressional endorsement. Ibid.
In light of the structure, purpose, history, and operation of § 5, we have rejected the suggestion that the “Act contemplates that a ‘submission’ occurs when the Attorney General merely becomes aware of legislation, no matter in what manner,” and instead have held that “[a] fair interpretation of the Act requires that the State in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act.” Whitley v. Williams, decided with Allen v. State Board of Elections, supra, at 571. More recently we stated: “While the Act does provide that inaction by the Attorney General may, under certain circumstances, constitute federal preclearance of a change, the purposes of the Act would plainly be subverted if the Attorney General could ever be deemed to have approved a voting change when the proposal was neither properly submitted nor in fact evaluated by him.” United States v. Sheffield Board of Comm’rs, supra, at 136. This interpretation of the provision is faithful to its history and purpose, while at the same time leaving ample room for minimizing the “potential severity of the §5 remedy,” Morris v. Gressette, 432 U. S., at 504.
IV
Edgefield County is admittedly a political subdivision of South Carolina subject to the provisions of the Voting Rights Act, and it is conceded that the 1966 Act was subject to the preclearance requirement of § 5 of the Act. It is also undisputed that the 1966 Act was never submitted to the Attorney General or the United States District Court for the District of Columbia for §5 review. Accordingly, unless the pre-clearance of the 1971 amendment can be deemed to ratify the changes embodied in the 1966 Act, § 5 of the Voting Rights Act plainly invalidates those changes and the District Court must fashion appropriate relief.
As we previously observed, the preclearance procedures mandated by §5 of the Voting Rights Act focus entirely on changes in election practices. Supra, at 245. The title of the 1971 amendment unambiguously identified the changes in election practices which it effected — an increase in the number of Council members and residency districts — and served to define the scope of the preclearance request. An examination of the correspondence concerning the 1971 submission, supra, at 240-241, plainly shows that only the 1971 amendment was being considered for preclearance, and further indicates that the request for preclearance was viewed as limited to the change in elections practices effected by it.
Thus South Carolina’s submission of the 1971 amendment increasing the size of the Edgefield County Council apparently required the Attorney General to determine whether either the change in the district boundaries or the change in the number of districts had a discriminatory purpose or effect, but would not appear to have required him to pass on the question whether the 1966 changes represented a setback for minority voters in Edgefield County. The jurisdiction has never submitted that question to the Attorney General and has never attempted to shoulder its burden of demonstrating that the 1966 changes were nondiscriminatory.
The District Court held, however, that the Attorney General’s request for additional information (including a copy of the 1966 statute and information concerning previous candidates, election results, and residency district boundaries) indicated that he had considered all aspects of the electoral scheme, including the changes effected in the 1966 Act. App. to Juris. Statement 12a. In the alternative, it held that since the 1971 amendment retained the changes effected by the 1966 Act, the lack of objection to the 1971 submission necessarily constituted approval of those changes as well and rendered the failure to preclear the 1966 Act moot. Id., at 13a.
The significance the District Court attached to the Attorney General’s request for additional information was wholly unwarranted. It is plain that the information which the Attorney General requested and received was merely relevant to an identification of the changes which he had been requested to approve or to an evaluation of the purpose and effect of the changes made by the 1971 amendment which he did approve: the 1966 Act and the other information served as a benchmark allowing him to quantify the extent of the increase in the size of the Council and to compare the new district boundaries with the earlier ones. His request for and receipt of this information in no way suggest that he approved changes that he was not requested to approve.
Moreover, the information obtained in response to the Attorney General’s request did not enable him to ascertain whether a covered change was made by the 1966 Act, much less evaluate whether the changes made by the 1966 scheme — and unaffected by the 1971 amendment — were discriminatory in purpose or effect when compared to the 1964 practices. In order to pass on the 1966 Act, he would have needed information concerning the pre-1966 election law and its practical effects. He neither requested nor received such information. Just as “no one would argue” that the Attorney General’s “difficult and complex” decision “should be made without adequate information,” Georgia v. United States, 411 U. S., at 540, an argument that such a decision has been made when the record indicates adequate information was lacking carries little weight. And it would require a wild flight of imagination to suggest that the Attorney General recognized that the 1966 Act effected changes which had required preclearance and had never been precleared, and then did not ask state officials to explain the failure to pre-clear those changes, but instead embarked on the task of gathering the information necessary to evaluate those alterations on his own rather than requesting state officials to provide the information to him as he had just done regarding the changes made by the 1971 amendment. It is even more unlikely that he would have kept his consideration and approval of the changes made by the 1966 Act a secret from state officials in his letter preclearing the 1971 amendment.
In concluding that there is insufficient evidence for a finding that the Attorney General actually considered the changes made by the 1966 Act in preclearing the 1971 amendment, we note that at the time of the 1971 submission, the Attorney General was completing promulgation of regulations governing § 5 submissions. The regulations shed light on the correct interpretation of the scope of the changes encompassed by the Attorney General’s preclearance letter, since they make clear the nature of the information necessary to constitute a valid “submission.” See 28 CFR § 51.2(c) (1972). The regulations indicate that the focus of the Attorney General’s scrutiny of a statute was, understandably, limited to the specific changes submitted for consideration. Finally, the Justice Department has recently indicated that the changes made in the 1966 Act and retained in the 1971 amendment have not been precleared, see App. to Juris. Statement 40a-42a, and such after-the-fact Justice Department statements have been previously relied upon in determining; whether a particular change was actually precleared in analogous circumstances, see United States v. Georgia, Civ. Action No. C76-1531A (ND Ga., Sept. 30, 1977), summarily aff’d, 436 U. S. 941 (1978).
The District Court also erred in viewing the submission’s scope as encompassing all features of the 1971 amendment, rather than the changes effected by that particular enactment. When a jurisdiction adopts legislation that makes clearly defined changes in its election practices, sending that legislation to the Attorney General merely with a general request for preclearance pursuant to §5 constitutes a submission of the changes made by the enactment and cannot be deemed a submission of changes made by previous legislation which themselves were independently subject to § 5 pre-clearance. The fact that a covered jurisdiction adopted a new election practice after the effective date of the Voting Rights Act raises, in effect, a statutory inference that the practice may have been adopted for a discriminatory purpose or may have a discriminatory effect and places the burden on the jurisdiction to establish that the practice is not discriminatory. A request for preclearance of certain identified changes in election practices which fails to identify other practices as new ones thus cannot be considered an adequate submission of the latter practices. In this case, the 1971 submission failed to inform the Attorney General that the provisions of the 1971 amendment which merely re-codified various practices contained in the 1966 Act were themselves changes that might give rise to an inference of discrimination.
To the extent there was any ambiguity in the scope of the preclearance request, the structure and purpose of the preclearance requirement plainly counsel against resolving such ambiguities in favor of the submitting jurisdiction in the circumstances of this case. The preclearance process is by design a stringent one; it is predicated on the congressional finding that there is a risk that covered jurisdictions may attempt to circumvent the protections afforded by the Act; the burden of proof (the risk of nonpersuasion) is placed upon the covered jurisdiction; and submissions under the alternative preclearance method — adopted for the convenience of the covered jurisdictions while Congress recognized the inability of the Justice Department independently to monitor and to identify changes in election practices — should be carefully construed to protect the remedial aims of the Act. Moreover, the congressional assessment of the practical operation of the provision in the years since its adoption clearly indicates Congress’ continuing intent to guard against any diminution in the potency of the provision, and an intent to continue to insist upon submission of changes which had previously not been submitted. The broad scope given to the 1971 submission by the District Court, and its conclusion that submitting the 1971 amendment rendered the failure to pre-clear the 1966 Act moot, are inconsistent with the foregoing governing principles.
In summary, to the extent the judgment below may be interpreted as resting upon a factual finding that the Attorney General actually considered and approved the changes made by the 1966 Act in the course of the submission of the 1971 amendment, after reviewing the evidence ourselves we are “left with the definite and firm conviction that a mistake has been committed,” and we thus overturn that finding as clearly erroneous. The District Court erred as a matter of law in concluding that the lack of objection to the 1971 submission rendered the failure to preclear the 1966 Act moot.
Accordingly, we reverse the District Court’s judgment and remand to the District Court for proceedings consistent with this opinion.
It is so ordered.
Justice Blackmun, Justice Powell, and Justice Rehnquist concur in the judgment..
The Voting Rights Act of 1965 requires certain States and political subdivisions to submit all changes in election practices to a three-judge panel of the United States District Court for the District of Columbia or the Attorney General of the United States. Covered jurisdictions may not implement any new election practices until the three-judge panel enters a declaratory judgment approving the changes or the Attorney General accepts the changes by either explicitly stating he does not object to them or by failing to interpose an objection within a prescribed time period. See infra, at 244-249.
App. 142-153.
See ibid.; see generally Blanding v. Dubose, 509 F. Supp. 1334, 1335 (SC 1981), rev’d, 454 U. S. 393 (1982).
It was authorized to buy or sell property, to exercise the powers of eminent domain, to make appropriations and levy taxes, to provide necessary county services, to receive and disburse funds, to incur indebtedness, to issue bonds, to prescribe methods of accounting for accounting officers, and to employ county employees. The 1966 Act required the Council to employ a county administrative officer who could not be a Council member. Act No. 55 of February 23, 1967, made employment of a county administrative officer permissive rather than mandatory.
Prior to the 1971 amendment, the 1966 Act had been amended in 1967 by Act No. 55 and in 1968 by Act No. 1318. App. 171-177. These earlier amendments apparently did not change any election practices and are not at issue in this case.
App. to Brief for United States as Amicus Curiae la-2a (letter of July 21, 1971).
Defendants’ Exhibit X, p. 1.
Id., at 1, 2.
Defendants’ Exhibit Y. It is not entirely clear that the entire text of the 1966 Act was provided to the Attorney General, but for our purposes we shall assume that the Attorney General was aware of the full text.
Defendants’ Exhibit Z.
The Voting Rights Act was enacted in 1965, Pub. L. 89-110, 79 Stat. 437, and was amended and extended in 1970, Pub. L. 91-285, 84 Stat. 314, in 1975, Pub. L. 94-73, 89 Stat. 400, and in 1982, Pub. L. 97-205, 96 Stat. 131.
The current codification of § 5 is as follows:
Ҥ 1973c. Alteration of voting qualifications and procedures; action by state or political subdivision for declaratory judgment of no denial or abridgement of voting rights; three judge district court; appeal to Supreme Court
“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of 'section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f )(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c.
Proposed guidelines were first published for comment in the Federal Register, 36 Fed. Reg. 9781 (1971), then were published in final form, 36 Fed. Reg. 18186 (1971), and have been codified since 1972, 28 CFR § 51.2(c) (1982).
See n. 11, supra.
The Committee Report also expresses concern with respect to the failure of jurisdictions to heed objections interposed by the Attorney General. Indeed, it cites the local officials’ response to the Attorney General’s 1976 objection to the Edgefield County at-large election system, see n. 30, infra, as an example of local defiance of § 5. H. R. Rep. No. 97-227, p. 13 (1981).
See 28 CFR pt. 55 (1982). The District Court expressly so found. See App. to Juris. Statement 6a.
The parties so stipulated. App. 131. See also App. to Juris. Statement 6a.
The only questions in an action alleging a violation of the § 5 preclearance requirement are (1) whether a change is covered by § 5, (2) if the change is covered, whether § 5’s approval requirements have been satisfied, and (3) if the requirements have not been satisfied, what relief is appropriate. Lockhart v. United States, 460 U. S. 125, 129, n. 3 (1983). The question whether the 1966 Act had a discriminatory purpose or effect is not an issue at this stage of the § 5 litigation: that question must be initially decided by the District Court for the District of Columbia or the Attorney General. Perkins v. Matthews, 400 U. S. 379, 383-385 (1971); Allen v. State Board of Elections, 393 U. S. 544, 558-559 (1969). Nor is there any question that the Act was required to be submitted for preclearance — the parties have stipulated that submission was required. Given this stipulation, the parties understandably have made little effort to define precisely the nature of the changes in election practices made by the Act which required preclearance, but the briefing indicates that the parties agree that the at-large residency requirement voting scheme constituted such a change. While this matter may be more fully explored in future proceedings after remand, several changes are suggested: the different terms of office for Council members in comparison with the former Board, the basic reallocation of authority from the state legislative delegation to the Council, the shift from two appointed Board positions to at-large election of their Council counterparts, and the residency requirement applicable to all members of the Council.
App. 130-131. The District Court expressly found:
“There is no dispute that Act No. 1104 of 1966 was subject to the preclearance provisions of § 5 of the Act and that county officials should have, but did not, submit the Act to the Justice Department or to the District Court for the District of Columbia for preclearance.” App. to Juris. Statement 6a.
Given the correspondence concerning the 1971 preclearance, even under appellees’ view that a submission consists of an entire statute, rather than the changes in election practices effected by the enactment, there could be no contention in this case that the Attorney General actually considered and approved the 1966 Act itself in the course of preclearing the 1971 amendment. Quite simply, he was never, even by implication, asked to approve the 1966 statute, and he never, even by implication, purported to do so: state officials merely asked him to preclear the 1971 amendment and that is what the Attorney General did. The 1966 Act was indeed sent to the Attorney General, but it manifestly was not submitted to him for preclearance of it; it was sent to him in connection with the request for pre-clearance of the 1971 amendment, and was a necessary part of the submission of the 1971 amendment because the changes made by that amendment could not be identified without it.
For example, the Attorney General’s letter requesting additional information expressly stated: “After a preliminary examination of H2206, it does not appear that we have sufficient information to evaluate the change you have submitted.” Defendants’ Exhibit X (emphasis supplied).
In construing the correspondence in an attempt to ascertain the significance ascribed to the preclearance by the parties involved, it is significant that the correspondents were a South Carolina Assistant Attorney General and a United States Assistant Attorney General in the Civil Rights Division. These officials surely knew that the preclearance procedure concerns only changes in election practices, and can be presumed to have chosen their language carefully to identify the scope of the preclearance. In this regard, appellees’ contention that the the phrase “change in question” in the preclearance letter was form language is not only unavailing, but counterproductive. Form language is presumably more carefully chosen to reflect departmental policy, practice, and intentions. Moreover, to the extent that state officials had received previous preclearance letters containing such language, they were on notice that a preclearance is limited to the changes which a covered jurisdiction has identified by its submission.
Particularly in view of the legislature’s practice of repealing the existing electoral statute and then reenacting some existing features along with new ones, as it did in 1971, the fact that the 1966 statute on its face was a post-1964 enactment did not necessarily imply that it had effected changes which required § 5 preclearance.
Obviously, in 1971 the Attorney General either did not recognize that the 1966 Act required preclearance or assumed that it had been precleared. In the context of the submission, that was understandable. First, of course, he was not being asked to preclear the provisions of the 1966 Act. Second, the State was requested to provide the Attorney General with a copy of the statute “now in force,” and by sending the 1966 Act to the Justice Department in response to this request, the South Carolina Assistant Attorney General was implicitly representing that the 1966 Act either had been precleared or had not required preclearance, for otherwise the pertinent provisions would have had no force as law. Supra, at 241. Moreover, though the political subdivisions of South Carolina had notably failed to submit changes on their own initiative, appellees correctly point out that the State of South Carolina was the only jurisdiction to comply rigorously with the preclearance requirement in the early years of the Act. Perkins v. Matthews, 400 U. S., at 392, n. 11 (citing table prepared by Justice Department). The Attorney General was obviously aware of that fact, and it is reasonable to infer that the State’s compliance during this time period may have buttressed his apparent assumption that the 1966 Act either did not require submission or had been precleared.
If the Attorney General was aware that the Act required preclearance and had never been precleared, his failure to request either an explanation or at least some additional information would be difficult to comprehend. He had testified before Congress that in the Department’s experience, compliance with §5 was largely limited to legitimate statutes and that jurisdictions often failed to submit laws which were discriminatory. Supra, at 248. Given this testimony, it seems quite unrealistic to suppose that he would consciously allow the failure to submit the 1966 Act for preclearance to pass without comment.
See n. 13, supra.
Under the regulations, a submission must “clearly set forth” the voting change in a manner “adequate to disclose to the Attorney General the difference between the existing and proposed situation with respect to voting.” 28 CFR §§ 51.2(c), 51.5, 51.10(a)(4) (1972); 36 Fed. Reg. 18186 (1971). Among other things, a submission must include the date of final adoption of the change affecting voting, § 51.10(a)(2), and a “statement certifying that the change affecting voting has not yet been enforced or administered, or an explanation of why such a statement cannot be made.” § 51.10(a)(5). The latter requirement, of course, simply reflects the requirements of § 5 itself, which provides that every change must be pre-cleared before being enforced. Further, the guidelines make clear that submission of a particular change does not encompass all prior changes— precleared or not — that have been made since the Act’s effective date in 1964. Another subsection strongly urges that, in addition to required information about the “specific change submitted for consideration,” the submitting authority include a copy of “any other changes in law or administration relating to the subject matter of the submitted change affecting voting which have been put into effect since the time when coverage under section 4 of the Voting Rights Act began and the reasons for such prior changes. If such changes have already been submitted the submitting authority may refer to the date of prior submission and identify the previously submitted changes.” 28 CFR § 51.10(b)(4) (1972).
Naturally, the Attorney General did not determine whether the differences between the 1971 amendment and the 1966 Act were nondiscriminatory in an analytical vacuum, but necessarily evaluated the purpose and effect of those changes in the context of the entire electoral scheme. See Lockhart v. United States, 460 U. S., at 131-132.
There is an analytical distinction between two questions: whether a particular electoral provision was subject to § 5 preclearance, and whether it was actually submitted for preclearance on a particular occasion. Even though a number of the elements of an electoral scheme are subject to pre-clearance and should be submitted, only some of those features may actually be submitted for review. In that situation, the Attorney General’s failure to object to the submission would not constitute preclearance of elements in the scheme that were not submitted. As we stated in Morris v. Gressette, 432 U. S. 491, 504 (1977): “The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission.” (Emphasis supplied.)
In this case, state officials had independent submission burdens respecting both the 1966 changes and the 1971 changes, but only met their burden respecting the latter changes.
United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948).
In view of our holding, it is unnecessary for us to address the second question presented by appellants: whether under the circumstances Edge-field County’s adoption of a council-administrator form of government in June 1976 — objected to by the Attorney General — was subject to § 5 preclearance.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Environmental Protection Agency or Administrator",
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"Federal Credit Union Administration",
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"National Highway Traffic Safety Administration",
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"Occupational Safety and Health Administration",
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"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
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"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
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"State Agency",
"Unidentifiable",
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"NO Admin Action",
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] |
[
26
] |
UNITED STATES v. ALLIED OIL CORP. et al.
No. 364.
Argued March 6, 1951.
Decided April 9, 1951.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp, Paul A. Sweeney and Melvin Richter.
Thomas J. Downs and Theodore R. Sherwin argued the cause for respondents. With them on the brief were Julius L. Sherwin; Michael F. Mulcahy and Henry W. Dieringer.
Mr. Justice Black
delivered the opinion of the Court.
Section 205 (e) of the Emergency Price Control Act of 1942, as amended, authorized the Price Administrator under certain circumstances to institute damage actions against sellers of commodities who charged more than prescribed ceiling prices. Pursuant to this section, the consolidated cases now before us were brought in the District Coui’t by the Administrator in his own name “for and on behalf of the United States,” and were properly pending there on April 23,1947. On that day the President, in connection with the termination of price controls, promulgated Executive Orders Nos. 9841 and 9842: No. 9841, among other things, transferred various price administration functions to the Secretary of Commerce; No. 9842, so far as here material, authorized the Attorney General to conduct certain § 205 (e) litigation “in the name of the United States or otherwise as permitted by law . . . .” In view of these orders the Attorney General promptly moved to substitute the United States as party plaintiff in the present proceedings. Although the district judge granted the motion, he dismissed the complaints in 1950 on the ground that there had been an improper substitution because the suits could not be maintained in the name of the United States. The Court of Appeals affirmed. 183 F. 2d 453. It held that the President in his Executive Orders did not intend to authorize conduct of § 205 (e) actions in the name of the United States. A belief that the President had no power to do so led the court to this conclusion. To resolve the conflict between the decision and those from other circuits, we granted certiorari. 340 U. S. 895.
We hold that it was error to construe the Executive Orders as not allowing maintenance of these suits in the name of the United States. It is true that Order No. 9841 which transferred various OPA functions to the Secretary of Commerce empowered the Secretary to “institute, maintain, or defend in his own name civil proceedings in any court . . ., relating to the matters transferred to him, including any such proceedings pending on the effective date of the transfer . . . .” (Emphasis added.) But this provision demonstrates no purpose to vest exclusive power in the Secretary to maintain all § 205 (e) enforcement actions. By its express terms it is made subject to Executive Order 9842 which directs the Attorney General to “coordinate, conduct, initiate, maintain or defend” litigation against violators of price control “in the name of the United States or otherwise as permitted by law . ...” All interested government agencies have construed the two orders together as authorizing the Attorney General to carry on § 205 (e) enforcement cases and to do so in the name of the United States. The Emergency Court of Appeals and other courts of appeal have taken the same view. We believe that such a reading of the orders is the most reasonable construction of the language employed.
The substitution of the United States in these cases therefore was proper unless, as the Court of Appeals thought, the President lacked power to authorize it. The view below was that § 205 (e) of the Price Control Act permitted enforcement suits to be brought only in the name of the Price Administrator, or, when the bulk of his duties were transferred to the Secretary of Commerce, in the name of the latter. Such a conclusion, however, is certainly not compelled by the section which provides merely for the bringing of actions by “the Administrator ... on behalf of the United States . . . .” There can be no question but that the President as a step in the winding-up process had power to transfer any or all of the price administration functions to the Attorney General. Fleming v. Mohawk Co., 331 U. S. 111, 113-119. Accordingly, Executive Order 9842 could lawfully delegate the control and direction of the present actions to that official. Moreover, nothing in § 205 (e) prevents the Attorney General, who is customarily charged with representing the Government’s interests in court, from following his normal procedure of maintaining enforcement suits in the name of the United States itself. No unfairness to the defendants will result. Regardless of captions, the issues in these cases could not change and the real party-in-interest plaintiff has always been the same. Cf. United States v. Remund, 330 U. S. 539, 542-543. The handling of this litigation in the name of the United States is a fair and orderly method for carrying out the congressional mandate to wind up the OPA affairs. These cases should not have been dismissed.
Reversed.
Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case.
56 Stat. 33, as amended, 58 Stat. 640, 50 U. S. C. App. § 925 (e): “If . . . the buyer either fails to institute an action . . . within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States . . .
Actually, one of these six consolidated actions was instituted “for and on behalf of the United States” in the name of Philip B. Fleming, Administrator of the Office of Temporary Controls after he had become the successor to the Price Administrator. On April 23, 1947, all six suits were properly pending in Fleming’s name. See Fleming v. Mohawk Co., 331 U. S. 111, 113-119. The manner in which he became the successor of the Price Administrator is detailed by the Court of Appeals in its opinion below. United States v. Allied Oil Corp., 183 F. 2d 453.
12 Fed. Reg. 2645, 2646.
The ruling was that the Secretary of Commerce was the real party-in-interest plaintiff and that the actions had abated for failure to substitute the Secretary within six months as required by Rule 25 (d), Fed. Rules Civ. Proc.
Fleming v. Goodwin, 165 F. 2d 334; United States v. Koike, 164 F. 2d 155; Northwestern Lbr. & Shingle Co. v. United States, 170 F. 2d 692.
Executive Order No. 9841, §402 provides: “Functions under the Emergency Price Control Act of 1942, as amended, transferred under the provisions of this order shall be deemed to include authority on the part of each officer to whom such functions are transferred hereunder to institute, maintain, or defend in his own name civil proceedings in any court (including the Emergency Court of Appeals), relating to the matters transferred to him, including any such proceedings pending on the effective date of the transfer of any such function under this order. The provisions of this paragraph shall be subject to the provisions of the Executive order entitled ‘Conduct of Certain Litigation Arising under Wartime Legislation/ [Order No. 9842] issued on the date of this order . . . .”
See Executive Order No. 9841, § 402, note 6, supra.
Executive Order No. 9842 provides: “1. The Attorney General is authorized and directed, in the name of the United States or otherwise as permitted by law, to coordinate, conduct, initiate, maintain or defend:
“(b) Litigation against violators of regulations, schedules or orders relating to maximum prices pertaining to any commodity which has been removed from price control . . . .”
Price controls had been lifted on the commodities involved in the present actions prior to the promulgation of Executive Orders Nos. 9841 and 9842.
Hal-Mar Dress Co. v. Clark, 165 F. 2d 222, and cases cited note 5, supra.
Cf. United States v. California, 332 U. S. 19, 27-28; United States v. San Jacinto Tin Co., 125 U. S. 273, 279.
Respondents have contended in their brief that by virtue of 28 U. S. C. § 2105 the orders of the District Court dismissing these actions as abated were not subject to review. This contention is untenable in view of the recent decision in Snyder v. Buck, 340 U. S. 15, 21-22.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
88
] |
HOSTETTER et al. v. IDLEWILD BON VOYAGE LIQUOR CORP.
No. 116.
Argued March 23, 1964.
Decided June 1, 1964.
Irving Galt, Assistant Solicitor General of New York, argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General of New York, and George D. Zuckerman, Assistant Attorney General.
Charles H. Tuttle argued the cause for appellee. With him on the brief was John F. Kelly.
Mr. Justice Stewart
delivered the opinion of the Court.
The Twenty-first Amendment to the Constitution, which repealed the Eighteenth, provides in its second section that “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in viola^ tion of the laws thereof, is hereby prohibited.” This appeal requires consideration of the relationship of this provision of the Twenty-first Amendment to other provisions of the Constitution, particularly the Commerce Clause.
The appellee (Idlewild) is engaged in the business of selling bottled wines and liquors to departing international airline travelers at the John F. Kennedy Airport in New York. Its place of business is leased from the Port of New York Authority for use solely as “an office in connection with the sale ... of in-bond wines and liquors.” Idlewild accepts orders only from travelers whose tickets and boarding cards indicate their imminent departure. A customer gets nothing but a receipt at the time he gives his order and makes payment. The liquor which he orders is transferred directly to the departing aircraft on documents approved by United States Customs, and is not delivered to the customer until he arrives at his foreign destination.
The beverages sold by Idlewild are purchased by it from bonded wholesalers located outside New York State who deal in tax-free liquors for export. Merchandise ordered by Idlewild is withdrawn from bonded warehouses on approved Customs documents, copies of which are mailed by the wholesalers both to Idlewild and to the United States Customs Office at the airport. A third sealed copy of the document is given to the bonded trucker who delivers it to the Customs Office at the airport after he has transported the shipment to Idlewild’s place of business. The contents of each shipment are recorded by Idlewild, as are withdrawals from inventory whenever a sale is made, and when an entire shipment has been sold, these records are turned over to Customs officials. Idlewild’s records and its physical inventory, as well as the transfer of the liquor from the bonded trucks to Idlewild’s premises and from those premises to the departing aircraft, are at all times open to inspection by the Bureau of Customs. Before Idlewild commenced these business operations in 1960, the Bureau of Customs inspected its place of business and explicitly approved its proposed method of operations.
Idlewild commenced doing business in the spring of 1960. A few weeks later, the New York State Liquor Authority, whose members are the appellants in this case, informed Idlewild, upon the advice of the Attorney General of New York, that its business was illegal under the provisions of the New York Alcoholic Beverage Control Law, because the business was unlicensed and unlicensable under that law. Idlewild thereupon brought the present action for an injunction restraining the appellants from interfering with its business, and for a judgment declaring that the provisions of the New York statute, as applied to its business, were repugnant to the Commerce Clause of the Constitution, and, under the Supremacy-Clause, to the Tariff Act of 1930, under which the Bureau of Customs had approved Idlewild’s business operations.
After lengthy procedural delays, a three-judge District Court granted the requested relief. 212 F. Supp. 376. The court expressed doubt that the New York Alcoholic Beverage Control Law was intended to apply to a business such as that carried on by Idlewild, both because of the manifest irrelevance to such a business of many of the law’s provisions, and because the New York courts had held that the law was inapplicable to the sale of liquor in the Free Trade Zone of the Port of New York. During v. Valente, 267 App. Div. 383, 46 N. Y. S. 2d 385. See also Rosenblum v. Frankel, 279 App. Div. 66, 108 N. Y. S. 2d 6. In view of the posture of the litigation, the court declined, however, to defer deciding the merits of the controversy pending a construction of the statute by the New York courts, although recognizing that “a technical application of the doctrine of abstention” would under ordinary circumstances counsel such a course.
On the merits the court concluded, after reviewing the relevant cases, that the Commerce Clause rendered constitutionally impermissible New York’s attempt wholly to terminate Idlewild’s business operations. The court conceded that New York has broad power under the Twenty-first Amendment to supervise and regulate the transportation of liquor through its territory for the purpose of guarding against a diversion of such liquor into domestic channels, but pointed out that “the Liquor Authority has neither alleged nor proved the diversion of so much as one bottle of plaintiff’s merchandise to users within the state of New York.” 212 F. Supp., at 386. We noted probable jurisdiction, 375 U. S. 809, and for the reasons which follow, we affirm the judgment of the District Court.
We hold first that the District Court did not err in declining to defer to the state courts before deciding this controversy on its merits. The doctrine of abstention is equitable in its origins, Railroad Comm’n v. Pullman Co., 312 U. S. 496, 500-501, and this Court has held that, even though constitutional issues be involved, “reference to the state courts for construction of the statute should not automatically be made.” N. A. A. C. P. v. Bennett, 360 U. S. 471. Unlike many cases in which abstention has been held appropriate, there was here no danger that a federal decision would work a disruption of an entire legislative scheme of regulation. We therefore accept the District Court’s decision that abstention was unwarranted here, where neither party requested it and where the litigation had already been long delayed, despite the plaintiff’s efforts to expedite the proceedings.
Turning, then, to the merits of this controversy, the basic issue we face is whether the Twenty-first Amendment so far obliterates the Commerce Clause as to empower New York to prohibit absolutely the passage of liquor through its territory, under the supervision of the United States Bureau of Customs acting under federal law, for delivery to consumers in foreign countries. For it is not disputed that, if the commodity involved here were not liquor, but grain or lumber, the Commerce Clause would clearly deprive New York of any such power. Lemke v. Farmers Grain Co., 258 U. S. 50; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111; Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229.
This Court made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders. Thus, in upholding a State’s power to impose a license fee upon importers of beer, the Court pointed out that “[p]rior to the Twenty-first Amendment it would obviously have been unconstitutional to have imposed any fee for that privilege. The imposition would have been void, . . . because the fee would be a direct burden on interstate commerce; and the commerce clause confers the right to import merchandise free into any state, except as Congress may otherwise provide.” State Board v. Young’s Market Co., 299 U. S. 59, 62. In the same vein, the Court upheld a Michigan statute prohibiting Michigan dealers from selling beer manufactured in a State which discriminated against Michigan beer. Brewing Co. v. Liquor Comm’n, 305 U. S. 391. “Since the Twenty-first Amendment, . . . the right of a state to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause . . . .” Id., at 394. See also Finch & Co. v. McKittrick, 305 U. S. 395.
This view of the scope of the Twenty-first Amendment with respect to a State’s power to restrict, regulate, or prevent the traffic and distribution of intoxicants within its borders has remained unquestioned. See California v. Washington, 358 U. S. 64. Thus, in Ziffrin, Inc., v. Reeves, 308 U. S. 132, there was involved a Kentucky statute, “a long, comprehensive measure (123 sections) designed rigidly to regulate the production and distribution of alcoholic beverages through means of licenses and otherwise. The manifest purpose is to channelize the traffic, minimize the commonly attendant evils; also to facilitate the collection of revenue. To this end manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions and subject to constant control by the State.” Id., at 134. The Court upheld a provision of that “comprehensive measure” which prohibited a domestic manufacturer of liquor from delivering his product to an unlicensed private carrier. The Court noted that “Kentucky has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are not unreasonable and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well-known evils, and secure payment of revenue. The statute declares whiskey removed from permitted channels contraband subject to immediate seizure. This is within the police power of the State; and property so circumstanced cannot be regarded as a proper article of commerce.” Id., at 139.
To draw a conclusion from this line of decisions that the Twenty-first Amendment has somehow operated to “repeal” the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto “repealed,” then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect. In Jameson & Co. v. Morgenthau, 307 U. S. 171, “the Federal Alcohol Administration Act was attacked upon the ground that the Twenty-first Amendment to the Federal Constitution gives to the States complete and exclusive control over commerce in intoxicating liquors, unlimited by the commerce clause, and hence that Congress has no longer authority to control the importation of these commodities into the United States.” The Court’s response to this theory was a blunt one: “We see no substance in this contention.” Id., at 172-173. See also United States v. Frankfort Distilleries, 324 U. S. 293. (Sherman Act.)
Both the. Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.
This principle is reflected in the Court’s decision in Collins v. Yosemite Park Co., 304 U. S. 518. There it was held that the Twenty-first Amendment did not give California power to prevent the shipment into and through her territory of liquor destined for distribution and consumption in a national park. The Court said that this trafile did not involve “transportation into California 'for delivery or use therein’ ” within the meaning of the Amendment. “The delivery and use is in the Park, and under a distinct sovereignty.” Id., at 538. This ruling was later characterized by the Court as holding “that shipment through a state is not transportation or importation into the state within the meaning of the Amendment.” Carter v. Virginia, 321 U. S. 131, 137. See also Johnson v. Yellow Cab Co., 321 U. S. 383, aff’g, 137 F. 2d 274.
We may assume that if in Collins California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory, California would have been constitutionally permitted to do so. But the Court held that California could not prevent completely the transportation of the liquor across the State’s territory for delivery and use in a federal enclave within it.
A like accommodation of the Twenty-first Amendment with the Commerce Clause leads to a like conclusion in the present case. Here, ultimate delivery and use is not in New York, but in a foreign country. The State has not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this case does not involve “measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.” 212 F. Supp., at 386. Rather, the State has sought totally to prevent transactions carried on under the aegis of a law passed by Congress in the exercise of its explicit power under the Constitution to regulate commerce with foreign nations. This New York cannot constitutionally do.
Affirmed.
Mr. Justice Brennan took no part in the consideration or decision of this case.
“The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U. S. Const., Art. I, § 8, cl. 3.
The opinion of the New York Attorney General was based primarily upon the following provisions of the New York law:
“ ‘Sale’ means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person, whether principal, proprietor, agent, servant or employee of any alcoholic beverage and/or a warehouse receipt pertaining thereto. ‘To sell’ includes to solicit or receive an order for, to keep or expose for sale, and to keep with intent to sell and shall include the delivery of any alcoholic beverage in the state.” New York Alcoholic Beverage Control Law, § 3, Subd. 28.
“No person shall manufacture for sale or sell at wholesale or retail any alcoholic beverage within the state without obtaining the appropriate license therefor required by this chapter.” New York Alcoholic Beverage Control Law, § 100, Subd. 1.
“No premises shall be licensed to sell liquors and/or wines at retail for off premises consumption, unless said premises shall be located in a store, the entrance to which shall be from the street level and located on a public thoroughfare in premises which may be occupied, operated or conducted for business, trade or industry or on an arcade or sub-surface thoroughfare leading to a railroad terminal.” New York Alcoholic Beverage Control Law, § 105, Subd. 2.
See 19 U. S. C. § 1311. The complaint also relied on the Export-Import Clause of the Constitution, Art. I, § 10, cl. 2, but such reliance was obviously misplaced, because New York has not sought to “lay any Imposts or Duties” upon the merchandise sold by Idlewild.
The appellee’s original motion to empanel a three-judge court under 28 U. S. C. §§ 2281 and 2284 was denied by a single district judge, who retained jurisdiction pending resolution of the substantive issues by the state courts. 188 F. Supp. 434. The Court of Appeals for the Second Circuit dismissed on appeal on the ground that it was without jurisdiction, though expressing the view that a three-judge court should have been convened. 289 F. 2d 426. The appellee’s renewed request for a three-judge court was then denied by a district judge on the ground that previous District Court rulings in the litigation had established the “law of this case” and that the Court of Appeals’ statement that a three-judge court should have been convened was “dictum.” 194 F. Supp. 3. After granting certi-orari and a motion for leave to file a petition for a writ of mandamus, 368 U. S. 812, this Court, holding that a three-judge court should have been empaneled, remanded the case to the District Court “for expeditious action” to that end. 370 U. S. 713.
The court noted, for example: “The definition of sale in Section 3 (28) provides that ‘ “To sell” . . . shall include the delivery of any alcoholic beverage in the state.’ This, of course, is inapplicable to plaintiff’s sales. Whatever may be the purpose of Section 105 (2) in requiring that a retail liquor store have an entrance from the street level and be located dn a public thoroughfare, the requirements, which may be appropriate where liquor purchases are delivered directly to the customer, seem quite irrelevant to a concern which sells liquor exclusively for delivery in a foreign country.” 212 F. Supp., at 379.
Cf. Government Employees v. Windsor, 353 U. S. 364; American Federation of Labor v. Watson, 327 U. S. 582; Great Lakes Co. v. Huffman, 319 U. S. 293; Burford v. Sun Oil Co., 319 U. S. 315, 323-325; Chicago v. Fieldcrest Dairies, 316 U. S. 168.
See Louisiana P. & L. Co. v. Thibodaux City, 360 U. S. 25, 29, 31; Allegheny County v. Mashuda Co., 360 U. S. 185, 196-197.
The appellants have argued that Idlewild’s operations do not in fact conform to the various federal statutory and administrative standards under authority of which the operations are conducted. But there is no indication that the Bureau of Customs has ever questioned the regularity of Idlewild’s operations under the relevant federal law and regulations.
Likewise, in Mahoney v. Triner Corp., 304 U. S. 401, the Court held that the Equal Protection Clause is not applicable to imported intoxicating liquor. “A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.” Id., at 404.
Quite independently of the Twenty-first Amendment, the Court has sustained a State’s power, within the confines of the Commerce Clause, to regulate and supervise the transportation of intoxicants through its territory. See Duckworth v. Arkansas, 314 U. S. 390; Carter v. Virginia, 321 U. S. 131. In Duckworth, Mr. Justice Jackson relied on the Twenty-first Amendment in concurring in the judgment. 314 U. S., at 397. In Carter, Mr. Justice Black, Mr. Justice Frankfurter, and Mr. Justice Jackson wrote separate concurrences, relying upon the Twenty-first Amendment. 321 U. S., at 138, 139. Cf. Gordon v. Texas, 355 U. S. 369, upholding a similar state statute in a per curiam citing both the Twenty-first Amendment and Carter v. Virginia, supra.
Prior to the Eighteenth Amendment, Congress passed laws giving the States a large degree of autonomy in regulating the importation and distribution of intoxicants. These laws, the Wilson Act and the Webb-Kenyon Act, are still in force. 27 U. S. C. §§ 121,122. In United States v. Gudger, 249 U. S. 373, the Court held that under the Reed amendment of 1917 — passed by Congress to strengthen these laws, 39 Stat. 1058, 1069 — a prohibition upon transportation “into” a State did not prohibit the “movement through one State as a mere incident of transportation to the [place] into which it is shipped.” Id., at 375.
See cases cited in note 10, supra.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
METROPOLITAN EDISON CO. et al. v. PEOPLE AGAINST NUCLEAR ENERGY et al.
No. 81-2399.
Argued March 1, 1983
Decided April 19, 1983
Rehnquist, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, post, p. 779.
Deputy Solicitor General Bator argued the cause for petitioners in both cases. With him on the briefs in No. 82-358 were Solicitor General Lee, Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, Joshua I. Schwartz, James M. Spears, Jacques B. Gelin, Peter G. Crane, and Herzel Plaine. James B. Hamlin, George F. Trowbridge, John B. Rhinelander, Deborah B. Bauser, and James B. Liberman filed briefs for petitioners in No. 81-2399.
William S. Jordan III argued the cause and filed a brief for respondents in both cases.
Together with No. 82-358, United States Nuclear Regulatory Commission et al. v. People Against Nuclear Energy et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Michael I. Miller and Linda L. Hodge for the Atomic Industrial Forum; by Robert L. Baum, Peter B. Kelsey, Edward H. Comer, and William L. Fang for the Edison Electric Institute; by William E. Blaster and Jan S. Amundson for the National Association of Manufacturers; and by James P. McGranery, Jr., and William A. Carnahan for Scientists and Engineers for Secure Energy, Inc.
Briefs of amici curiae urging affirmance were filed by Margaret Farrell Ewing and Bruce J. Ennis for the American Psychological Association; and by Ellyn R. Weiss for the Union of Concerned Scientists.
Bruce J. Terris and Phillip G. Sunderland filed a brief for the American Sociological Association as amicus curiae.
Justice Rehnquist
delivered the opinion of the Court.
The issue in these cases is whether petitioner Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act of 1969, 83 Stat. 852, as amended, 42 U. S. C. § 4321 et seq. (1976 ed. and Supp. V) (NEPA), when it considered whether to permit petitioner Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant (TMI-1). The Court of Appeals for the District of Columbia Circuit held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community well-being of residents of the surrounding area. 219 U. S. App. D. C. 358, 678 F. 2d 222 (1982). We reverse.
Metropolitan owns two nuclear powerplants at Three Mile Island near Harrisburg, Pa. Both of these plants were licensed by the NRC after extensive proceedings, which included preparation of Environmental Impact Statements (EIS’s). On March 28, 1979, TMI-1 was not operating; it had been shut down for refueling. TMI-2 was operating, and it suffered a serious accident that damaged the reactor. Although, as it turned out, no dangerous radiation was released, the accident caused widespread concern. The Governor of Pennsylvania recommended an evacuation of all pregnant women and small children, and many area residents did leave their homes for several days.
After the accident, the NRC ordered Metropolitan to keep TMI-1 shut down until it had an opportunity to determine whether the plant could be operated safely. 44 Fed. Reg. 40461 (1979). The NRC then published a notice of hearing specifying several safety-related issues for consideration. Metropolitan Edison Co., 10 N. R. C. 141 (1979). The notice stated that the Commission had not determined whether to consider psychological harm or other indirect effects of the accident or of renewed operation of TMI-1. It invited interested parties to submit briefs on this issue. Id., at 148.
Respondent People Against Nuclear Energy (PANE) intervened and responded to this invitation. PANE is an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor. PANE contended that restarting TMI-1 would cause both severe psychological health damage to persons living in the vicinity, and serious damage to the stability, cohesiveness, and well-being of the neighboring communities.
The NRC decided not to take evidence concerning PANE’S contentions. Metropolitan Edison Co., 12 N. R. C. 607 (1980); Metropolitan Edison Co., 14 N. R. C. 593 (1981). PANE filed a petition for review in the Court of Appeals, contending that both NEPA and the Atomic Energy Act of 1954, 68 Stat. 921, as amended, 42 U. S. C. §2011 et seq. (1976 ed. and Supp. V), require the NRC to address its contentions. Metropolitan intervened on the side of the NRC.
The Court of Appeals concluded that the Atomic Energy-Act does not require the NRC to address PANE’S contentions. 219 U. S. App. D. C., at 385-389, 678 F. 2d, at 249-253. It did find, however, that NEPA requires the NRC to evaluate “the potential psychological health effects of operating” TMI-1 which have arisen since the original EIS was prepared. Id., at 371, 678 F. 2d, at 235. It also held that, if the NRC finds that significant new circumstances or information exist on this subject, it shall prepare a “supplemental [EIS] which considers not only the effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island.” Id., at 371-372, 678 F. 2d, at 235-236. We granted certiorari. 459 U. S. 966 (1982).
All the parties agree that effects on human health can be cognizable under NEPA, and that human health may include psychological health. The Court of Appeals thought these propositions were enough to complete a syllogism that disposes of the case: NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health asserted by PANE. See 219 U. S. App. D. C., at 364, 678 F. 2d, at 228. PANE, using similar reasoning, contends that because the psychological health damage to its members would be caused by a change in the environment (renewed operation of TMI-1), NEPA requires the NRC to consider that damage. See Brief for Respondents 23. Although these arguments are appealing at first glance, we believe they skip over an essential step in the analysis. They do not consider the closeness of the relationship between the change in the environment and the “effect” at issue.
Section 102(C) of NEPA, 83 Stat. 853,42 U. S. C. § 4332(C), directs all federal agencies to
“include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
“(i) the environmental impact of the proposed action, [and]
“(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented . . . .”
To paraphrase the statutory language in light of the facts of this case, where an agency action significantly affects the quality of the human environment, the agency must evaluate the “environmental impact” and any unavoidable adverse environmental effects of its proposal. The theme of § 102 is sounded by the adjective “environmental”: NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word “environmental” out of its context and give it the broadest possible definition, the words “adverse environmental effects” might embrace virtually any consequence of a governmental action that someone thought “adverse.” But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.
The statements of two principal sponsors of NEPA, explaining to their colleagues the Conference Report on the bill that was ultimately enacted, illustrate this point:
“What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence'or the health of mankind: That we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth.” 115 Cong. Rec. 40416 (1969) (remarks of Sen. Jackson) (emphasis supplied).
“[W]e can now move forward to preserve and enhance our air, aquatic, and terrestrial environments ... to carry out the policies and goals set forth in the bill to provide each citizen of this great country a healthful environment.” Id., at 40924 (remarks of Rep. Dingell) (emphasis supplied).
Thus, although NEPA states its goals in sweeping terms of human health and welfare, these goals are ends that Congress has chosen to pursue by means of protecting the physical environment.
To determine whether §102 requires consideration of a particular effect, we must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue. For example, if the Department of Health and Human Services were to implement extremely stringent requirements for hospitals and nursing homes receiving federal funds, many perfectly adequate hospitals and homes might be forced out of existence. The remaining facilities might be so limited or so expensive that many ill people would be unable to afford medical care and would suffer severe health damage. Nonetheless, NEPA would not require the Department to prepare an EIS evaluating that health damage because it would not be proximately related to a change in the physical environment.
Some effects that are “caused by” a change in the physical environment in the sense of “but for” causation, will nonetheless not fall within § 102 because the causal chain is too attenuated. For example, residents of the Harrisburg area have relatives in other parts of the country. Renewed operation of TMI-1 may well cause psychological health problems for these people. They may suffer “anxiety, tension and fear, a sense of helplessness,” and accompanying physical disorders, n. 2, supra, because of the risk that their relatives may be harmed in a nuclear accident. However, this harm is simply too remote from the physical environment to justify requiring the NRC to evaluate the psychological health damage to these people that may be caused by renewed operation of TMI-1.
Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms “environmental effect” and “environmental impact” in § 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. See generally W. Prosser, Law of Torts, ch. 7 (4th ed. 1971). The issue before us, then, is how to give content to this requirement. This is a question of first impression in this Court.
The federal action that affects the environment in this case is permitting renewed operation of TMI-1. The direct effects on the environment of this action include release of low-level radiation, increased fog in the Harrisburg area (caused by operation of the plant’s cooling towers), and the release of warm water into the Susquehanna River. The NRC has considered each of these effects in its EIS, and again in the EIA. See App. 51-58. Another effect of renewed operation is a risk of a nuclear accident. The NRC has also considered this effect. See id., at 58-60.
PANE argues that the psychological health damage it alleges “will flow directly from the risk of [a nuclear] accident.” Brief for Respondents 23. But a risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE’S members are necessary middle links. We believe that the element of risk lengthens the causal chain beyond the reach of NEPA.
Risk is a pervasive element of modern life; to say more would belabor the obvious. Many of the risks we face are generated by modern technology, which brings both the possibility of major accidents and opportunities for tremendous achievements. Medical experts apparently agree that risk can generate stress in human beings, which in turn may rise to the level of serious health damage. For this reason, among many others, the question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue. Nonetheless, it is quite different from the question whether the same gains are worth a given level of alteration of our physical environment or depletion of our natural resources. The latter question rather than the former is the central concern» of NEPA.
Time and resources are simply too limited for us to believe that Congress intended to extend NEPA as far as the Court of Appeals has taken it. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). The scope of the agency’s inquiries must remain manageable if NEPA’s goal of “insuring] a fully informed and well-considered decision,” id., at 558, is to be accomplished.
If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions. The available resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources. As we said in another context in United States v. Dow, 357 U. S. 17, 25 (1958), “[w]e cannot attribute to Congress the intention to . . . open the door to such obvious incongruities and undesirable possibilities.”
This case bears strong resemblance to other cases in which plaintiffs have sought to require agencies to evaluate the risk of crime from the operation of a jail or other public facility in their neighborhood. See, e. g., Como-Falcon Coalition, Inc. v. Department of Labor, 609 F. 2d 342 (CA8 1979) (Job Corps Center); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F. 2d 225 (CA7 1975) (low-income housing); First National Bank of Chicago v. Richardson, 484 F. 2d 1369 (CA7 1973) (jail). The plaintiffs in these cases could have alleged that the risk of crime (or their dislike of the occupants of the facility) would cause severe psychological health damage. The operation of the facility is an event in the physical environment, but the psychological health damage to neighboring residents resulting from unrealized risks of crime is too far removed from that event to be covered by NEPA. The psychological health damage alleged by PANE is no closer to an event in the environment or to environmental concerns.
The Court of Appeals thought that PANE’S contentions are qualitatively different from the harm at issue in the cases just described. It thought PANE raised an issue of health damage, while those cases presented questions of fear or policy disagreement. We do not believe this line is so easily drawn. Anyone who fears or dislikes a project may find himself suffering from “anxiety, tension[,] fear, [and] a sense of helplessness.” N. 2, supra. Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.
We do not mean to denigrate the fears of PANE’S members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that “flow directly,” Brief for Respondents 23, from the risks associated with the same decision. It would be extraordinarily difficult for agencies to differentiate between “genuine” claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. See Maryland National Capital Park & Planning Comm’n v. U. S. Postal Service, 159 U. S. App. D. C. 158, 166, 487 F. 2d 1029, 1037 (1973).
The Court of Appeals’ opinion seems at one point to acknowledge the force of these arguments, 219 U. S. App. D. C., at 365, 678 F. 2d, at 229, but seeks to distinguish the situation suggested by the related cases. First, the Court of Appeals thought the harm alleged by PANE is far more severe than the harm alleged in other cases. Ibid. It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character. If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply.
Second, the Court of Appeals noted that PANE’S claim was made “in the wake of a unique and traumatic nuclear accident.” Ibid. We do not understand how the accident at TMI-2 transforms PANE’S contentions into “environmental effects.” The Court of Appeals “cannot believe that the psychological aftermath of the March 1979 accident falls outside” NEPA. Id., at 366, 678 F. 2d, at 230. On the contrary, NEPA is not directed at the effects of past accidents and does not create a remedial scheme for past federal actions. It was enacted to require agencies to assess the future effects of future actions. There is nothing in the language or the history of NEPA to suggest that its scope should be expanded “in the wake of” any kind of accident.
For these reasons, we hold that the NRC need not consider PANE’S contentions. NEPA does not require agencies to evaluate the effects of risk qua risk. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to dismiss the petition for review.
It is so ordered.
See generally Report of the President’s Commission on the Accident at Three Mile Island (1979).
Specifically, PANE contended, App. to Pet. for Cert. 115a-116a:
“1.) Renewed operation of [TMI-1] would cause severe psychological distress to PANE’S members and other persons living in the vicinity of the reactor. The accident at [TMI-2] has already impaired the health and sense of well being of these individuals, as evidenced by their feelings of increased anxiety, tension and fear, a sense of helplessness and such physical disorders as skin rashes, aggravated ulcers, and skeletal and muscular problems. Such manifestations of psychological distress have been seen in the aftermath of other disasters. The possibility that [TMI-1] will reopen severely aggravates these problems. As long as this possibility exists, PANE’S members and other persons living in the communities around the plánt will be unable to resolve and recover from the trauma which they have suffered. Operation of [TMI-1] would be a constant reminder of the terror which they felt during the accident, and of the possibility that it will happen again. The distress caused by this ever present spectre of disaster makes it impossible ... to operate TMI 1 without endangering the public health and safety.
“2.) Renewed operation of TMI 1 would cause severe harm to the stability, cohesiveness and well being of the communities in the vicinity of the reactor. Community institutions have already been weakened as a result of a loss of citizen confidence in the ability of these institutions to function properly and in a helpful manner during a crisis. The potential for a re-occurrence of the accident will further stress the community infrastructure, causing increased loss of confidence and a breakdown of the social and political order. Sociologists such as Kai Erikson have documented similar phenomena in other communities following disasters.
“The perception, created by the accident, that the communities near Three Mile Island are undesirable locations for business and industry, or for the establishment of law or medical practice, or homes compounds the damage to the viability of the communities. Community vitality depends upon the ability to attract and keep persons, such as teachers, doctors, lawyers, and businesses critical to economic and social health. The potential for another accident, should TMI 1 be allowed to operate, would compound and make permanent the damage, trapping the residents in disintegrating and dying communities and discouraging . . . essential growth.”
Four members of the Commission filed individual opinions. There was no majority opinion.
While the petition for review was pending, the NRC staff prepared an environmental impact assessment (EIA) to determine whether a full EIS is required before TMI-1 could be permitted to renew operation. The NRC’s Licensing Board has ruled that the EIA was adequate and that no EIS is required. This ruling was upheld by the Atomic Safety and Licensing Appeal Board. In re Metropolitan Edison Co., Docket No. 50-289 (ALAB-705) (Dec. 10, 1982). Several additional steps, including repairs to a steam generator and NRC approval of those repairs, are necessary before Metropolitan actually resumes operation of TMI-1. Brief for Petitioners in No. 82-358, p. 18, and n. 13.
In the Court of Appeals the NRC argued that there is no “major Federal action” involved in permitting TMI-1 to renew operations because TMI-1 already has an operating license and an EIS was prepared before that license was issued. The Court of Appeals rejected this contention, stating that the “ ‘major federal action’ in the case of TMI-1 is . . . the Commission’s continued exercise of supervisory responsibility over its operation and maintenance.” 219 U. S. App. D. C., at 394, 678 F. 2d, at 231. No party has sought review of this holding, and we intimate no view as to its correctness. Similarly, no party has sought review of the Court of Appeals’ Atomic Energy Act holding.
For example, § 2 of NEPA, 83 Stat. 852, as set forth in 42 U. S. C. § 4321, provides:
“The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”
In drawing this analogy, we do not mean to suggest that any cause-effect relation too attenuated to merit damages in a tort suit would also be too attenuated to merit notice in an EIS; nor do we mean to suggest the converse. In the context of both tort law and NEPA, courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.
See n. 5, supra.
The NRC concluded that the risk of an accident had not changed significantly since the EIS for TMI-1 was prepared in 1972.
We emphasize that in this case we are considering effects caused by the risk of an accident. The situation where an agency is asked to consider effects that will occur if a risk is realized, for example, if an accident occurs at TMI-1, is an entirely different case. The NRC considered, in the original EIS and in the most recent EIA for TMI-1, the possible effects of a number of accidents that might occur at TMI-1.
This risk can be perceived differently by different people. Indeed, it appears that the members of PANE perceive a much greater risk of another nuclear accident at Three Mile Island than is perceived by the NRC and its staff.
Although these cases involved similar facts, they presented different legal issues. They did not consider allegations that risk of crime would lead to psychological health damage. They did hold that the risk of crime, or the plaintiffs’ concern about crime, do not constitute environmental effects. Of course, these holdings are not at issue in this litigation.
PANE’S original contention seems to be addressed as much to the symbolic significance of continued operation of TMI-1 as to the risk of an accident. See n. 2, supra. NEPA does not require consideration of stress caused by the symbolic significance individuals attach to federal actions. Psychological health damage caused by a symbol is even farther removed from the physical environment, and more closely connected with the broader political process, than psychological health damage caused by risk.
For example, the hospital regulations contemplated in the hypothetical, supra, at 773-774, might cause many deaths. But despite the severity of that harm, the deaths would not by any stretch of the imagination be “environmental effects.”
The Court of Appeals held that the NRC need not consider PANE’S contentions of community damage unless it found that the contentions of psychological health damage warrant preparation of an EIS. Since we decide that the NRC need not consider the contentions of psychological health damage at all, it follows that the contentions of community damage need not be considered.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Unidentifiable",
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"NO Admin Action",
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] |
[
84
] |
OUBRE v. ENTERGY OPERATIONS, INC.
No. 96-1291.
Argued November 12, 1997
Decided January 26, 1998
Kennedy, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 430. Scalia, J., filed a dissenting opinion, post, p. 434.' Thomas, J., filed a dissenting opinion, in which Rehnqtjist, C. J., joined, post, p. 434.
Barbara G. Haynie argued the cause for petitioner. With her on the briefs were W. Richard House, Jr., and John S. Lawrence, Jr.
Beth S. Brinkmann argued the cause for the United States et al. urging reversal. With her on the-brief were Acting Solicitor General Dellinger, Deputy Solicitor General Waxman, J. Ray Terry, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler.
Carter G. Phillips argued the cause for respondent. With him on the brief were Michael G. Thompson, O. H. Storey III, Renee W. Masinter, and Rosemarie Falcone.
Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Thomas Osborne; and for the National Employment Lawyers Association by Thomas R. Meites.
Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Stephen A Bokat, Robin S. Conrad, Edward H. Comer, J. Bruce Brown, and Edward N. Bomsey; and for the Illinois State Chamber of Commerce by Brian W. Bulger.
Justice Kennedy
delivered the opinion of the Court.
An employee, as part of a termination agreement, signed a release of all claims against her-employer. In eonsider-ation, she received severance pay in installments. The release, however, did not comply with specific federal statutory requirements for a release of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq. After receiving the last payment, the employee brought suit under the ADEA. The employer claims the employee ratified and validated the nonconforming release by retaining the moneys paid to secure it. The employer also insists the release bars the action unless, as a precondition to filing suit, the employee tenders back the moneys received. We disagree and rule that, as the release did not comply with the statute, it cannot bar the ADEA claim.
I
Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operations, Inc. In 1994, she received a poor performance rating. Oubre’s supervisor met with her on January 17,1995, and gave her the option of either improving her performance during the coming year or accepting a voluntary arrangement for her severance. She received a packet of information about the severance agreement and had 14 days to consider her options, during which she consulted with attorneys. On January 31, Oubre decided to accept. She signed a release, in which she “agree[d] to waive, settle, release, and discharge any and all claims, demands, damages, actions, or causes of action ... that I may have against En-tergy _” App. 61. In exchange, she received six installment payments over the next four months, totaling $6,258.
The Older Workers poses specific requirements for releases covering ADEA claims. OWBPA, § 201,104 Stat. 983,29 U. S. C. §§ 626(f)(1) (B), (F), (G). In procuring the release, Entergy did not comply with the OWBPA in at least three respects: (1) Entergy did not give Oubre enough time to consider her options. (2) Entergy did not give Oubre seven days after she signed the release to change her mind. And (3) the release made no specific reference to claims under the ADEA.
Oubre filed a charge of age discrimination with the Equal Employment Opportunity Commission, which dismissed her charge on the merits but issued a right-to-sue letter. She filed this suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Oubre has not offered or tried to return the $6,258 to Entergy, nor is it clear she has the means to do so. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the moneys she had received. The District Court agreed and entered summary judgment for Entergy. The Court of Appeals affirmed, 112 F. 3d 787 (CA5 1996) (per curiam), and we granted certiorari, 520 U. S. 1185 (1997).
II
The employer rests its case upon general principles of state contract jurisprudence. As the employer recites the rule, contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party. See 1 Restatement (Second) of Contracts § 7, and Comment b (1979); e. g., Ellerin v. Fairfax Sav. Assn., 78 Md. App. 92, 108-109, 552 A. 2d 918, 926-927 (Md. Spec. App.), cert. denied, 316 Md. 210, 557 A. 2d 1336 (1989). The employer maintains, however, that before the innocent party can elect avoidance, she must first tender back any benefits received under the contract. See, e. g., Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 147-148, 515 P. 2d 757, 766-767 (1973). If she fails to do so within a reasonable time after learning of her rights, the employer contends, she ratifies the contract and so makes it binding. 1 Restatement (Second) of Contracts, supra, § 7, Comments d, e; see, e. g., Jobe v. Texas Util. Elec. Co., No. 05-94-01368-CV, 1995 WL 479645, *3 (Tex. App.-Dallas, Aug. 14, 1995) (unpublished). The employer also invokes the doctrine of equitable estoppel. As a rule, equitable estoppel bars a party from shirking the burdens of a voidable transaction for as long as she retains the benefits received under it. See, e. g., Buffum v. Peter Barceloux Co., 289 U. S. 227, 284 (1933) (citing state ease law from Indiana and New York). Applying these principles, the employer claims the employee ratified the ineffective release (or faces estoppel) by retaining all the sums paid in consideration of it. The employer, then, relies not upon the execution of the release but upon a later, distinct ratification of its terms.
These general rules may not be as as asserts. See generally Annot., 76 A. L. R. 344 (1932) (collecting cases supporting and contradicting these rules); Annot., 134 A. L. R. 6 (1941) (same). And in equity, a person suing to rescind a contract, as a rule, is not required to restore the consideration at the very outset of the litigation. See 3 Restatement (Second) of Contracts, supra, § 384, and Comment b; Restatement of Restitution § 65, Comment d (1936); D. Dobbs, Law of Remedies § 4.8, p. 294 (1973). Even if the employer’s statement of the general rule requiring tender back before one files suit were correct, it would be unavailing. The rule cited is based simply on the course of negotiation of the parties and the alleged later ratification. The authorities cited dp not consider the question raised by statutory standards for releases and a statutory declaration making nonconforming releases ineffective. It is the latter question we confront here.
In 1990, Congress amended the ADEA by passing the OWBPA. The OWBPA provides: “An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary.... [A] waiver may not be considered knowing and voluntary unless at a minimum” it satisfies certain enumerated requirements, including the three listed above. 29 U. S. C. § 626(f)(1).
The statutory command is clear: An employee “may not waive” an ADEA claim unless the waiver or release satisfies the OWBPA’s requirements. The policy of the OWBPA is likewise clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee "may not waive” an ADEA claim unless the employer complies with the statute. Courts cannot with ease presume ratification of that which Congress forbids.
The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications. The text of the OWBPA forecloses the employer’s defense, notwithstanding how general contract principles would apply to non-ADEA claims.
The rule proposed by the employer would frustrate the statute’s practical operation as well as its formal command. In many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return. These realities might tempt employers to risk noneomplianee with the OWBPA’s waiver provisions, knowing it will be difficult to repay the moneys and relying on ratification. We ought not to open the door to an evasion of the statute by this device.
Oubre’s cause of action arises under the ADEA, and the release can have no effect on her ADEA claim unless it complies with the OWBPA. In this case, both sides concede the release the employee signed did not comply with the requirements of the OWBPA. Since Oubre’s release did not comply with the OWBPA’s stringent safeguards, it is unenforceable against her insofar as it purports to waive or release her ADEA claim. As a statutory matter, the release cannot bar her ADEA suit, irrespective of the validity of the contract as to other claims.
In further proceedings in this or other cases, courts may need to inquire whether the employer has claims for restitution, recoupment, or setoff against the employee, and these questions may be complex where a release is effective as to some claims but not as to ADEA claims. We need not decide those issues here, however. It suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute. Nor did the employee’s mere retention of moneys amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. The statute governs the effect of the release on ADEA claims, and the employer cannot invoke the employee’s failure to tender back as a way of excusing its own failure to comply.
We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered!
APPENDIX TO OPINION OP THE COURT
Older Workers Benefit Protection Act, § 201, 104 Stat. 983, 29 U. S. C. § 626(f):
(f) Waiver
(1) An individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless 'at a minimum—
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner ealcu-lated to be understood by such individual, or by the average individual eligible to participate;
(B) the waiver specifically refers to rights or claims arising under this Act;
(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or
(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;
(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;
(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to—
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
(2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual’s representative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum—
(A) subparagraphs (A) through (E) of paragraph (1) have been met; and
(B) the individual is given a reasonable period of time within which to consider the settlement agreement.
(3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in sub-paragraph (A), (B), (C), (D), (E), CP), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).
(4) No waiver agreement may affect the Commission’s rights and responsibilities to enforce this Act. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
31
] |
SMITH et al. v. ARKANSAS STATE HIGHWAY EMPLOYEES, LOCAL 1315, et al.
No. 78-1223.
Decided April 30, 1979
Per Curiam.
In grievance proceedings initiated by employees of the Arkansas State Highway Department, the State Highway Commission will not consider a grievance unless the employee submits his written complaint directly to the designated employer representative. The District Court for the Eastern District of Arkansas found that this procedure denied the union representing the employees the ability to submit effective grievances on their behalf and therefore violated the First Amendment. 459 F. Supp. 452 (1978). The United States Court of Appeals for the Eighth Circuit affirmed. 585 F. 2d 876 (1978). We disagree with these holdings; finding no constitutional violation in the actions of the Commission or its individual members, we grant certiorari and reverse the judgment of the Court of Appeals.
The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U. S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395 U. S. 444 (1969); Garrison v. Louisiana, 379 U. S. 64 (1964).
But the First Amendment is not a substitute for the national labor relations laws. As the Court of Appeals for the Seventh Circuit recognized in Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F. 2d 456 (1972), the fact that procedures followed by a public employer in bypassing the union and dealing directly with its members might well be unfair labor practices were federal statutory law applicable hardly establishes that such procedures violate the Constitution. The First Amendment right to associate and to advocate “provides no guarantee that a speech will persuade or that advocacy will be effective.” Id., at 461. The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U. S. 563, 574-575 (1968); Shelton v. Tucker, 364 U. S. 479 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.
In the case before us, there is no claim that the Highway Commission has prohibited its employees from joining together in a union, or from persuading others to do so, or from advocating any particular ideas. There is, in short, no claim of retaliation or discrimination proscribed by the First Amendment. Rather, the complaint of the union and its members is simply that the Commission refuses to consider or act upon grievances when filed by the union rather than by the employee directly.
Were public employers such as the Commission subject to the same labor laws applicable to private employers, this refusal might well constitute an unfair labor practice. We may assume that it would and, further, that it tends to impair or undermine — if only slightly — the effectiveness of the union in representing the economic interests of its members. Cf. Hanover Township, supra.
But this type of “impairment” is not one that the Constitution prohibits. Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.
The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
Mr. Justice Powell took no part in the consideration or decision of this case.
This suit was brought by the Arkansas State Highway Employees, Local 1315, and eight of its individual members, after the Commission refused to consider grievances submitted by the union on behalf of two of its members. The facts in these two cases are not in dispute:
“[E]ach employee sent a letter to Local 1315, explaining the nature of their grievance and requesting the union to process the grievances on their behalf. In each case the union forwarded the employee’s letter to the designated employer’s representative and included its own letter stating that it represented the employees and desired to set up a meeting. The employer’s representative did not respond to the union’s letter. Thereafter each employee filed a written complaint directly with the employer representative. Local 1315 represented each employee at subsequent meetings with the employer representative.” 585 F. 2d, at 877.
The individual Commissioners of the Arkansas State Highway Commission and the Director of the State Highway Department were named as defendants, and are the petitioners in this Court.
See Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F. 2d 456, 461 (CA7 1972), quoting Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) (“there is no constitutional duty to bargain collectively with an exclusive bargaining agent”).
The union does represent its members at all meetings with employer representatives subsequent to the filing of a written grievance. See n. 1, supra. The “impairment” is thus limited to the requirement that written complaints, to be considered, must initially be submitted directly to the employer representative by the employee. There appears to be no bar, however, on the employee’s securing any form of advice from his union, or from anyone else. Cf. Mine Workers v. Illinois State Bar Assn., 389 U. S. 217 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. HAMPTON COUNTY ELECTION COMMISSION et al.
No. 83-1015.
Argued November 28, 1984
Decided February 27, 1985
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell and Rehnquist, JJ., concurred in the judgment.
Armand Derfner argued the cause for appellants. With him on the briefs were JohnR. Harper II, Thomas I. Atkins, J. LeVonne Chambers, Lani Guinier, and Eric Schnapper.
David A. Strauss argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Turner, Barbara E. Etkind, and Jessica Dunsay Silver.
Trevd G. Ashworth, Senior Assistant Attorney General of South Carolina, argued the cause for appellees and filed a brief for appellees Hampton County Election Commission et al. With her on the brief were T. Travis Medlock, Attorney General, and J. Emory Smith, Jr., Assistant Attorney General. Bruce E. Davis and Karen LeCraft Henderson filed a brief for appellees Hampton County School District No. 1 et al.
Justice White
delivered the opinion of the Court.
This appeal challenges a three-judge District Court’s construction and application of §5 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U. S. C. § 1973c. That section provides that certain jurisdictions, including the one in which this case arose, may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General. The statute further provides that once a proposed change has been submitted to the Attorney General, he has 60 days in which to object. If an objection is interposed, the submitting authority may request reconsideration. 28 CFR § 51.44 (1984). Such a request triggers another 60-day period for the Attorney General to decide whether to continue or withdraw his objection. § 51.47. The District Court held that §5 did not require the changes in election practices involved here to be cleared by the Attorney General prior to their implementation. We noted probable jurisdiction, 467 U. S. 1250 (1984), and now reverse that judgment.
I — I
As of November 1, 1964, the Hampton County, South Carolina, public schools were governed by appointed officials and an elected Superintendent of Education. The county comprises two school districts, School District No. 1, where the vast majority of white students live, and School District No. 2, which is predominantly black. Each District was governed by a separate six-member Board of Trustees. These trustees were appointed by a six-member County Board of Education, which in turn was appointed by the county legislative delegation.
On February 18, 1982, apparently in an attempt to facilitate consolidation of these two School Districts, the South Carolina General Assembly enacted Act No. 547. This statute provided that, beginning in 1983, the six members of the County Board of Education were to be elected at large rather than appointed. The first election for the new Board was to be held simultaneously with the general election in November 1982, and prospective candidates were required to file with the Election Commission at least 45 days before the election. Pursuant ter §5 of the Voting Rights Act, the State submitted Act No. 547 for the approval of the Attorney General, who received it on February 27. On April 28, the Attorney General informed the State that he had no objection to the change in question.
On April 9, however, before the Attorney General had approved Act No. 547, the Governor of South Carolina signed Act No. 549, which was designed to supersede Act No. 547. Act No. 549 abolished the County Board of Education and the County Superintendent, devolving their duties upon the District Boards of Trustees, which were to be elected separately by each District. Like Act No. 547, Act No. 549 scheduled the first trustee election to coincide with the November 1982 general election. Candidates were required to file between August 16 and August 31. Implementation of the Act was made contingent upon approval in a referendum to be held in May 1982.
The State did not submit Act No. 549 to the Attorney General for clearance until June 16, 1982, 22 days after it was approved in the referendum and 68 days after it had been enacted. As of August 16 — the opening date of the filing period under Act No. 549 — no response had yet been received from the Attorney General. Nevertheless, the County Election Commission began accepting filings for elections to be held under Act No. 549. On August 23, the Attorney General interposed an objection. He informed the State that it had not sustained its burden of showing that the proposal to eliminate the County Board of Education did not have a discriminatory purpose or effect. The Attorney General noted that “the county board has been particularly responsive to the interests and needs of the black community in Hampton County and consistently has appointed bi-racial representation on the local boards of trustees for both School District 1 and School District 2.”
Because the State was contemplating requesting the Attorney General to reconsider this objection, the County Election Commission continued to accept filings under Act No. 549 through the end of the designated filing period, August 31. On that date, the State officially requested reconsideration. At the same time, the Election Commission began accepting filings under Act No. 547, in case the Attorney General refused to withdraw his objection to Act No. 549. On November 2, the date of the general election, the Attorney General had not yet responded to the request for reconsideration, and elections for County Board members were held pursuant to Act No. 547. No elections were held pursuant to Act No. 549.
On November 19, the Attorney General withdrew his objection to Act No. 549. The objection had been based primarily on the possibility that the County Board, which the Act would abolish, might have consolidated the two School Districts, but, upon reappraising South Carolina law, the Attorney General concluded that the Board lacked authority to approve such a consolidation. Therefore, its elimination would not have a potentially discriminatory impact.
The effect of the Attorney General’s clearance of Act No. 549 was to render Act No. 547 — and the November elections held pursuant to it — null and void. In response to a request for advice, the South Carolina Attorney General informed the County Election Commission in January that Act No. 549 was now in effect and that an election for school district trustees should be held “as soon as possible.” The State Attorney General further opined that there was no reason to reopen the filing period, “as only the date of the election has changed.” Accordingly, the Commission set March 15, 1983, as election day.
On March 11, appellants, two civil rights organizations and several residents of Hampton County, filed suit in the United States District Court for the District of South Carolina seeking to enjoin the election as illegal under §5 of the Voting Rights Act. The defendants were the County Election Commission, the two School Districts, and various county officials. The complaint identified a number of alleged “changes” in election procedure, including the scheduling of an election at a time other than that specified in the statute, and the use of the August filing period for the March election. A preliminary injunction was denied, and the election took place as scheduled. Subsequently, a three-judge panel denied a permanent injunction and declaratory relief, holding that no violation of §5 of the Voting Rights Act had occurred. The court reasoned that, although Act No. 549 itself was a “change” under the Act, the scheduling of the election and the filing period were simply “ministerial acts necessary to accomplish the statute’s purpose . . . , and thus did not require preclearance.” App. to Juris. Statement 9a. In the alternative, the court held that even if these acts did constitute “changes,” they had now been “precleared along with the remaining provisions of Act No. 549.” Ibid. That this “preclearance” did not occur until after the filing period had been held was not considered dispositive. The court interpreted Berry v. Doles, 438 U. S. 190 (1978), to stand for the proposition that after-the-fact federal approval under §5 might retroactively validate a change in voting procedures.
II
Appellants contend that the opening of the August filing period before preclearance, and the scheduling of an election in March after the Attorney General had approved only a November election date, are changes that come within the scope of § 5. Appellees, echoing the rationale of the District Court, maintain that opening the filing period as required by Act No. 549 — albeit before the Act had been approved — was merely a preliminary step in its implementation. If the Attorney General had ultimately disapproved Act No. 549, the county would not have held an election under it, and the filing period would have become a nullity. Because Act No. 549 was in fact cleared, the filing period it specified was necessarily cleared as well. The alteration of the date of the election, according to appellees, was merely an “unfreezing” of a process that had been temporarily suspended by the operation of the Voting Rights Act. Although appellees concede that a legislatively enacted change in the date of an election is covered by the Act, they distinguish the change at issue here because it was required only by the Attorney General’s failure to approve Act No. 549 before the scheduled election date, and because it was undertaken only to effect the initial implementation of the statute.
We need not decide whether a jurisdiction covered by § 5 may ever open a filing period under a statute that has not yet been precleared. In this case, Hampton County not only opened the filing period for School District trustees before preclearance, but it also scheduled the election for a date four months later than that approved by the Attorney General. Thus the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election.
These changes cannot fairly be characterized as “ministerial” in light of the sweeping objectives of the Act. The Voting Rights Act was aimed at “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Allen v. State Board of Elections, 393 U. S. 544, 565 (1969). Our precedents recognize that to effectuate the congressional purpose, §5 is to be given broad scope. Id., at 567; see also Dougherty County Board of Education v. White, 439 U. S. 32, 38 (1978). Also, far from exempting alterations that might be perceived as minor, Congress failed to adopt such a suggestion when it was proposed in debates on the original Act.
Developments since the passage of the Act provide no basis for concluding that our cases had misinterpreted the intent of Congress. On the contrary, the legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found “virtual unanimity among those who [had] studied the record,” S. Rep. No. 97-417, p. 9 (1982), that §5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision.
Although this Court has never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case, we have twice held that the rescheduling of a candidate qualifying period is a “change” that comes within the scope of § 5. Hadnott v. Amos, 394 U. S. 358, 365-366 (1969); Allen v. State Board of Elections, supra, at 551, 570. Of course, there was no alteration in the filing period itself in this case; it was held between August 16 and August 31, exactly as Act No. 549 required. But a filing period cannot be considered in isolation from the election of which it forms a part. As we have recognized in an analogous context, issues that provoke responses from the electorate and from potential candidates are most likely to arise shortly before election time. Under appellees’ approach, a filing period held years before an election would serve as well as one held on election eve. But clearly, the former has a much greater potential for hindering voter participation than the latter. Furthermore, the August filing period was held at a time when the Attorney General still had an outstanding objection to Act No. 549. Potential candidates who considered the opening of the filing period illegal in these circumstances may have deliberately stayed away.
Appellees do not seriously dispute that a change in the date of an election, if effected by statute, requires approval by the Attorney General under § 5. Rather, they argue that because the rescheduling in this case was merely an administrative effort to comply with a statute that had already received clearance, it was not a change of such magnitude as to trigger the requirements of § 5. But plainly, the form of a change in voting procedures cannot determine whether it is within the scope of § 5. That section reaches informal as well as formal changes, such as a bulletin issued by a state board of elections. Allen, supra. If it were otherwise, States could evade the requirements of § 5 merely by implementing changes in an informal manner. Neither is it determinative that an alteration in scheduling is unlikely to be repeated, as it would be if it were embodied in a statute or rule. The Voting Rights Act reaches changes that affect even a single election. As we have noted, the change in the election date in this instance extended the gap between the filing period and the election, possibly preventing relative latecomers from entering the race. In addition, an election in March is likely to draw significantly fewer voters than an election held simultaneously with a general election in November.
Any doubt that these changes are covered by §5 is resolved by the construction placed upon the Act by the Attorney General, which is entitled to considerable deference. Under Department of Justice regulations:
“Any change affecting voting, even though it appears to be minor or indirect, even though it ostensibly expands voting rights, or even though it is designed to remove the elements that caused objection by the Attorney General to a prior submitted change; must meet the Section 5 preclearance requirement.” 28 CFR §51.11 (1984).
Among the specific examples of changes listed in the regulations is “[a]ny change affecting the eligibility of persons to become or remain candidates.” §51.12. Pursuant to these regulations, the Attorney General has, since 1980, reviewed approximately 58 changes in election dates and approximately 10 changes in dates for candidate filing periods. In none of these instances did the Attorney General advise the covered jurisdiction that its submission was not a “change,” and on several occasions objections were interposed.
Appellees argue that these changes in voting procedures were exempt from preclearance because literal compliance with § 5 was impossible. The Attorney General did not approve the November election date until after that date had passed; hence, it was necessary to schedule another election date. Also, it is said that if the legislature had passed a statute setting a March election date and submitted it to the Attorney General, preclearance might not have been obtained by the date of the March election. In that event, yet another amendment would have been necessary, requiring yet another submission. The process might have continued ad infinitum.
To the extent that appellees found themselves in a dilemma, however, it was largely of their own making. Rather than submitting Act No. 549 shortly after its passage, which would have allowed ample time for preclearance before the scheduled opening of the filing period, the State delayed this action for two months. Even after Act No. 549 received clearance too late to allow the election to be held in November, appellees might still have submitted the new election date without encountering significant inconvenience. Because the Attorney General must respond to any submission within 60 days after he receives the necessary information, appellees need only have selected an election date sufficiently far in the future to allow preclearance.
Appellees would have us hold that the changes here at issue did not require preclearance because they were undertaken in good faith, were merely an attempt to implement a statute that had already been approved by the Attorney General, and were therefore an improvement over prior voting procedures. But the Attorney General’s approval of Act No. 549 signified only that it was not discriminatory, not that it was an improvement over Act No. 547, which had also been approved. Furthermore, neither the absence of discriminatory purpose nor a good-faith implementation of a change removes the potential for discriminatory effects.
More fundamentally, it is not our province, nor that of the District Court below, to determine whether the changes at issue in this case in fact resulted in impairment of the right to vote, or whether they were intended to have that effect. That task is reserved by statute to the Attorney General or to the District Court for the District of Columbia. Our inquiry is limited to whether the challenged alteration has the potential for discrimination. The changes effected here did have such potential and therefore should have been precleared under § 5.
Ill
Relying on Berry v. Doles, 438 U. S. 190 (1978), the District Court held as an alternative ground that these changes were implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry involved changes in voting procedures that were implemented without first being submitted to the Attorney General. In a decision rendered after the election had already taken place, a three-judge District Court held that the changes should have been submitted under §5 and enjoined further enforcement of the statute, but refused to set aside the election. We held that the appropriate remedy was to allow the covered jurisdiction 30 days in which to apply for approval of the change. We further stated:
“If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for [a new election.]” Id., at 193.
From this, the District Court drew the conclusion that “a retroactive validation of an election law change under Section 5 could be achieved by after-the-fact federal approval.”
Regardless of whether this is a fair characterization of the holding of Berry, it clearly has no application to the facts of this case. The changes we have identified here — the retention of an August filing period in conjunction with a March election, and the scheduling of the March election — had not even been decided upon by state authorities at the time the Attorney General approved Act No. 549. That statute provided for an August filing period and a November election, which, as we have demonstrated, is quite another matter. Even an informal submission of a change in voting procedures does not satisfy the requirements of §5: the change must be submitted “in some unambiguous and recordable manner.” Allen, 393 U. S., at 571. See also McCain v. Lybrand, 465 U. S. 236 (1984); United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 136 (1978). A change that was never submitted at all does not meet this standard. The Attorney General cannot be said to have validated these changes, retroactively or otherwise, because they were never before him.
í — I <1
Appellees’ use of an August filing period in conjunction with a March election, and the setting of the March election date itself, were changes that should have been submitted to the Attorney General under §5. These changes cannot be said to have been approved along with Act No. 549. As in Berry v. Doles, supra, it is appropriate in these circumstances for the District Court to enter an order allowing appellees 30 days in which to submit these changes to the Attorney General for approval. 438 U. S., at 192-193. If appellees fail to seek this approval, or if approval is not forthcoming, the results of the March 1983 election should be set aside. If, however, the Attorney General determines that the changes had no discriminatory purpose or effect, the District Court should determine, in the exercise of its equitable discretion, whether the results of the election may stand.
We therefore reverse the District Court’s judgment that § 5 was not violated by appellees’ failure to secure approval of these changes, and remand for further proceedings consistent with this opinion.
It is so ordered.
Justice Powell and Justice Rehnquist concur in the judgment.
Section 5, as set forth in 42 U. S. C. § 1973c, provides in pertinent part:
“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification . . . does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification . . . : Provided, That such qualification . . . may be enforced without such proceedings if the qualification . . . has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification .... In the event that the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to'his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”
The option of obtaining preclearance from the Attorney General, rather than from the District Court for the District of Columbia, was added to the original legislation “ ‘to provide a speedy alternative method of compliance to covered States.’ ” McCain v. Lybrand, 465 U. S. 236, 246 (1984) (quoting Morris v. Gressette, 432 U. S. 491, 503 (1977)).
According to appellants’ complaint filed in the District Court, the county as a whole is 47% white and 53% black. School District No. 1 contains 91% of the white student population, and its schools are 46% white. School District No. 2 is 92% black. App. 8a-10a.
According to the court below, it was thought that an elected board, as opposed to an appointed one, would “be responsive to consolidating School Districts One and Two.” App. to Juris. Statement 3a (order of United States District Court for the District of South Carolina, Sept. 9, 1983).
See id., at 17a.
See App. 52a (letter of Gerald W. Jones to C. Havird Jones, Jr.).
Ibid.
App. to Juris. Statement 19a-21a. In their complaint in the court below and in their brief in this Court, appellants alleged that Act No. 549 was enacted in response to pressure from white citizens of Hampton County who feared that Act No. 547 might lead to consolidation of the two School Districts. The complaint alleged that white residents of School District No. 1 circulated a petition calling for the abolition of the County Board of Education and the County Superintendent, thus severing the connection between School District No. 1 and School District No. 2. Brief for Appellants 5.
App. to Juris. Statement 4a (order of United States District Court for the District of South Carolina, Sept. 9, 1983).
Id., at 59a.
Id., at 63a-64a (letter of C. Havird Jones, Jr., to William Bradford Reynolds).
Of the six Board members elected in the November election, three were black and three were white. Brief for Appellants 9.
App. to Juris. Statement 65a-66a (letter of William Bradford Reynolds to C. Havird Jones, Jr.).
Id., at 67a-69a (letter of Treva Ashworth to Randolph Murdaugh III).
The complaint also alleged two other “changes.” One of these was the failure to certify the results of the May referendum to the State Code Commissioner as required by state law. Appellants have not raised this claim in this Court. Appellants also argued in the District Court, and in their brief in this Court, that Act No. 549 had effectively shortened the term of the County Superintendent of Education. Appellants stated at oral argument that they no longer wished to pursue this claim. In addition, the complaint alleged that the abolition of the Board of Education violated § 2 of the Votings Rights Act and the Fourteenth and Fifteenth Amendments. App. 22a-23a. These claims are the subject of continuing litigation in the District Court. Brief for Appellants 13, n. 3.
Id., at 13-14. Black candidates were elected to all five seats on the District No. 2 Board on March 15. Four whites and one black won seats on the District No. 1 Board. App. to Juris. Statement 7a, n. 2.
Section 5 of the Voting Rights Act provides that “[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c.
App. to Juris. Statement 8a-lla.
Brief for Appellee School Districts 27.
We note, however, that a prime concern of Congress when it extended the Voting Rights Act in 1982 was the prevalence of changes that were implemented without preclearance and, in some cases, were not submitted to the Attorney General until years later. See S. Rep. No. 97-417, pp. 12, 14, n. 43 (1982); H. R. Rep. No. 97-227, p. 13 (1981). The Senate Report stated:
“Timely submission of proposed changes before their implementation is the crucial threshold element of compliance with the law. The Supreme Court has recognized that enforcement of the Act depends upon voluntary and timely submission of changes subject to preclearance.
“The extent of non-submission documented in both the House hearings and those of this Committee remains surprising and deeply disturbing. There are numerous instances in which jurisdictions failed to submit changes before implementing them and submitted them only, if at all, many years after, when sued or threatened with suit.
“Put simply, such jurisdictions have flouted the law and hindered the protection of minority rights in voting.” S. Rep. No. 97-417, supra, at 47-48.
Generally, statutes that are subject to § 5 are ineffective as laws until they have been cleared by federal authorities. Connor v. Waller, 421 U. S. 656 (1975) (per curiam).
In Allen, the Court noted that the Attorney General stated in hearings in the House that two or three types of changes, such as changing from paper ballots to voting machines, could be specifically excluded from § 5 without undermining its purpose. We found it significant that “Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.” 393 U. S., at 568.
S. Rep. No. 97-417, supra, at 6-7, and n. 8; see also H. R. Rep. No. 97-227, supra, at 34-35 (rejecting proposal to limit §5 to cover only those changes that had produced the most objections; “‘[t]he discriminatory potential in seemingly innocent or insignificant changes can only be determined after the specific facts of the change are analyzed in context’ ”) (quoting testimony of Drew Days, former U. S. Assistant Attorney General).
See also Dougherty County Board of Education v. White, 439 U. S. 82, 43 (1978), where we held that a Board of Education rule requiring employees to take unpaid leaves of absence while campaigning for elective political office was a barrier to candidacy “as formidable as the filing date changes at issue in” Hadnott and Allen. In other contexts, we have interpreted § 5 broadly to require preclearanee of changes in residence requirements for candidates, City of Rome v. United States, 446 U. S. 156, 160-161 (1980); alterations of municipal boundaries, Richmond v. United States, 422 U. S. 358 (1975); reapportionment and redistricting plans, Georgia v. United States, 411 U. S. 526 (1973); and the location of polling places, Perkins v. Matthews, 400 U. S. 379 (1971).
See Steelworkers v. Usery, 429 U. S. 305 (1977) (recognizing, in union democracy context, potential adverse impact of requiring candidates to qualify long before election).
Only one black candidate filed for election as a trustee of District No. 1 during the August filing period. He was ultimately elected to the post, along with four white candidates. Brief for Appellants 27, and n. 12. That other potential candidates were prevented from filing is not mere speculation. Appellants alleged in their complaint that three black citizens of Hampton County, including appellant Benjamin Brooks, attempted to have their names placed on the ballot for trustee positions in February, but were told that the filing period had ended the previous August. App. 16a-17a.
See swpra, at 174.
See also Dougherty County, supra (rule promulgated by County Board of Education).
See H. R. Rep. 97-227, at 35 (rejecting proposal that §5 should be limited to changes that produce most objections; “[wjhile some changes may adversely affect a greater number of people, others may have precisely the type of discriminatory impact which Congress sought to prevent, even though the numbers involved are smaller”).
Appellants state that over 6,000 Hampton County voters participated in the November 1982 general election, whereas less than half that number voted in the March 1983 special election. Brief for Appellants 23-24.
See, e. g., United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 131 (1978) (deference should be accorded to Attorney General’s construction of the Act, especially in light of the extensive role played by the Attorney General in drafting the statute and explaining its operation to Congress); Dougherty County, supra, at 39.
Brief for United States as'Amicus Curiae 13-14; and n. 7.
Appellees imply that they were unable to submit Act No. 549 until after it had been approved in the May referendum. But the Department’s regulations explicitly provide for submission of statutes before such ratification has been obtained. See 28 CFR § 51.20 (1984). Thus, the Act could have been submitted as soon as it was signed into law on April 9, a full 129 days before the filing period opened on August 16.
See 28 CFR §§51.8, 51.35, 51.37 (1984).
See S. Rep. No. 97-417, at 12, n. 31 (“even when changes are made for valid reasons, for example, reapportionment or home rule, ‘jurisdictions may not always take care to avoid discriminating against minority voters in the process’ ”) (quoting S. Rep. No. 94-295, p. 18 (1975)). See also Allen v. State Board of Elections, 393 U. S., at 565, n. 29 (that a change was undertaken in an attempt to comply with the Act does not exempt it from § 5; “[t]o hold otherwise would mean that legislation, allegedly passed to meet the requirements of the Act, would be exempted from § 5 coverage— even though it would have the effect of racial discrimination”).
See McCain v. Lybrand, 465 U. S., at 250; Dougherty County Board of Education v. White, 439 U. S., at 42; Georgia v. United States, 411 U. S., at 534; Perkins v. Matthews, 400 U. S., at 383-385; Allen v. State Board of Elections, supra, at 555, n. 19, 570.
App. to Juris. Statement 10a.
In Berry, we stated that if the Attorney General gave his after-the-fact approval to the challenged alterations in voting procedure, “the matter will be at an end.” 438 U. S., at 193. In that case, however, the District Court had previously acknowledged that the changes were covered by § 5 and had reached the question of an appropriate remedy. In this ease, however, the District Court erroneously concluded that the changes were outside the scope of §5 and never engaged in the equitable weighing process necessary to determine whether failure to submit a covered change for preclearance requires that an election be set aside. The factors to be weighed include “the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5.” Perkins v. Matthews, supra, at 396.
The determination whether a change has a discriminatory purpose or effect, which is committed by statute to the Attorney General, is distinct from the determination whether failure to submit the change requires that the election be set aside. The latter determination must be made by the District Court, after the Attorney General has passed on the substantive nature of the change.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
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"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
26
] |
LYKES v. UNITED STATES.
No. 173.
Argued November 29-30, 1951.
Decided March 24, 1952.
George W. Ericksen argued the cause for petitioner. With him on the brief was Chester H. Ferguson.
Harry Baum argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Slack and John F. Davis.
Mr. Justice Burton
delivered the opinion of the Court.
The question here is whether, for federal income tax purposes, an individual taxpayer was entitled to deduct, from his gross income, an attorney’s fee paid for contesting the amount of his federal gift tax. For the reasons hereafter stated we hold that he was not.
In 1940, Joseph T. Lykes, petitioner herein, gave to his wife and to each of his three children, respectively, 250 shares of common stock in Lykes Brothers, Inc., a closely held family corporation. In his federal gift tax return he valued the shares at $120 each and, on that basis, paid a tax of $13,032.75. In 1944, the Commissioner of Internal Revenue revalued the shares at $915.50 each and notified petitioner of a gift tax deficiency of $145,276.50. Through his attorney, petitioner sought a redetermination of the deficiency, forestalled an assessment, and, in 1946, paid $15,612.75 in settlement of the deficiency pursuant to a finding of the Tax Court based on stipulated facts. In 1944, petitioner had paid his attorney $7,263.83 for legal services in the gift tax controversy but, in his federal income tax return, had not deducted that expenditure from his taxable income. In 1946, he claimed a tax refund on the ground that the attorney’s fee should have been deducted under § 23 (a) (2) of the Internal Revenue Code. His claim was denied by the Commissioner and petitioner sued for a refund. On stipulated and uncontroverted facts the District Court held, as a matter of law, that the payment should have been deducted and entered judgment for petitioner. 84 F. Supp. 537. The Court of Appeals reversed. 188 F. 2d 964. Because of the important statutory issue involved and petitioner’s claim that this case is distinguishable from Cobb v. Commissioner, 173 F. 2d 711, we granted certiorari. 342 U. S. 810.
I. Deductions from an individual’s taxable income are limited to those allowed by § 23. Their extent depends upon the legislative policy expressed in the fair and natural meaning of that section.
Section 24 adds that in “computing net income no deduction shall in any case be allowed in respect of — (1) Personal, living, or family expenses . . . .” 53 Stat. 16, 56 Stat. 826, 26 U. S. C. § 24 (1). Insofar as gifts to members of a donor’s family are in the nature of personal or family expenses, the donor’s expenditures for accounting, legal or other services incurred in making those gifts are of a like nature. The nondeductibility of such expenditures, therefore, is indicated both by the absence of any affirmative allowance of their deductibility under § 23 and by the express denial of the deductibility of all personal or family expenses under § 24.
If the expenditure in the instant case had been made before 1942, it is clear that it would not have been deductible. At that time § 23 permitted an individual to deduct “ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” (Emphasis supplied.) 53 Stat. 12, 26 U. S. C. (1940 ed.) § 23 (a) (1). It made no mention of nontrade or nonbusiness expenses. Accordingly, in Higgins v. Commissioner, 312 U. S. 212, when this Court held that expenses incurred by an individual taxpayer in looking after his own income-producing securities were not expenses “incurred ... in carrying on any trade or business,” it also held that they were not deductible.
To change that result, Congress, in 1942, added the present § 23 (a) (2). That provision, as demonstrated in its legislative history, permits the deduction of some, but not all, of the nontrade and nonbusiness expenses of an individual taxpayer. It specifies those paid or incurred (1) “for the production or collection of income” or (2) “for the management, conservation, or maintenance of property held for the production of income.” See H. R. Rep. No. 2333, 77th Cong., 2d Sess. Congress might have gone further. However, neither the decision that occasioned the amendment, the Committee Reports on it, nor the language adopted in it indicate that Congress sought to make such a change of policy as would authorize widespread deductibility of personal, living or family expenditures in the face of § 24 (1). Bingham’s Trust v. Commissioner, 325 U. S. 365, 374; McDonald v. Commissioner, 323 U. S. 57, 61-63.
Inasmuch as the ordinary and necessary character of the legal expenses incurred in the instant case is not questioned, their deductibility turns wholly upon the nature of the activities to which they relate. The first issue, therefore, is whether petitioner’s gifts, and the legal expenses related to them, were made for the “production or collection of income” within the meaning of § 23 (a)(2). Generally a gift is the antithesis of such production or collection because it reduces the donor’s resources whether income producing or not. However, petitioner suggests that although he stated in his gift tax return that the purpose of his gifts was to express his love for the donees, yet the gifts were part of a general plan to produce income for himself. In support of this, he points out that the gifts consisted of 1,000 shares of stock in a closely held family corporation of which he is the president and in which he retained personal ownership of about 2,000 like shares, and that one of the donees, his son, is now actively identified with the corporation and is one of its directors. The District Court did not find that these facts, or anything else in the record, provided an adequate basis for reclassifying petitioner’s stock transfers and his payment of a related legal fee as expenditures for the production of income, rather than as gifts accompanied by an ordinary and necessary attorney’s fee for contesting the amount of a federal gift tax treating the stock transfers as gifts. The Court of Appeals, on review of the entire record, expressly held that the transfers were gifts and that the attorney’s fee was not proximately related to the production of income. That court then applied to the attorney’s fee the interpretation of § 23 (a) (2) approved in Cobb v. Commissioner, supra. We agree to the applicability of that interpretation which disallows the fee as a deduction from taxable income.
Similarly, there is no substantial factual basis here for treating the stock transfers and the related attorney’s fee as mere incidents of petitioner’s "management, conservation, or maintenance of property held for the production of income.” Even assuming that petitioner’s 3,000 shares in Lykes Brothers, Inc., did constitute property originally held by him for the production of income, there is no finding, and no adequate basis for a finding, that his donation of one-third of that stock actually was not the gift he represented it to be. Petitioner does not claim that the gift itself is deductible and, if it, as the principal item in the transaction, is not deductible, we find no adequate basis in this record for holding the related attorney’s fee deductible.
II. Legal expenses do not become deductible merely because they are paid for services which relieve a taxpayer of liability. That argument would carry us too far. It would mean that the expense of defending almost any claim would be deductible by a taxpayer on the ground that such defense was made to help him keep clear of liens whatever income-producing property he might have. For example, it suggests that the expense of defending an action based upon personal injuries caused by a taxpayer’s negligence while driving an automobile for pleasure should be deductible. Section 23 (a) (2) never has been so interpreted by us. It has been applied to expenses on the basis of their immediate purposes rather than upon the basis of the remote contributions they might make to the conservation of a taxpayer’s income-producing assets by reducing his general liabilities. See McDonald v. Commissioner, supra, at 62-63.
While the threatened deficiency assessment of nearly $150,000 added urgency to petitioner’s resistance of it, neither its size nor its urgency determined its character. It related to the tax payable on petitioner’s gifts, as gifts, and it was finally settled on an agreed revaluation of the securities constituting those gifts. The expense of contesting the amount of the deficiency was thus at all times attributable to the gifts, as such, and accordingly was not deductible.
If, as suggested, the relative size of each claim, in proportion to the income-producing resources of a defendant, were to be a touchstone of the deductibility of the expense of resisting the claim, substantial uncertainty and inequity would inhere in the rule. For example, the expense of defending a personal injury suit for negligence, or a suit for alienation of affections, claiming $1,000 damages, probably would not be a deductible expense for any defendant. On the other hand, if the same plaintiff on the same facts asked for $5,000, $10,000 or $100,000 damages, and the defendant held some income-producing property, that defendant might be permitted to deduct from his taxable income the same expense for precisely the same services as those upon which his less well-to-do neighbor would have to pay a tax in the other case. It is not a ground for defense that the claim, if justified, will consume income-producing property of the defendant. We find no such distinction made or implied in the Revenue Act.
III. While the Treasury Regulations, in 1944, did not refer to the issue now before us, they were consistent with the position we have taken. Furthermore, since 1946, T. D. 5513, 26 CFR § 29.23 (a)-15 (k), has unequivocally stated that legal expenses incurred by an individual in the determination of gift tax liability are not deductible. That interpretation of § 23 (a) (2) appears in the following language:
“Expenses paid or incurred by an individual in determining or contesting any liability asserted against him do not become deductible ... by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability. Thus, expenses paid or incurred by an individual in the determination of gift tax liability, except to the extent that such expenses are allocable to interest on a refund of gift taxes, are not deductible, even though prop erty held by him for the production of income must be sold to satisfy an assessment for such tax liability or even though, in the event of a claim for refund, the amount received will be held by him for the production of income.” (Emphasis supplied.)
Such a regulation is entitled to substantial weight. See Commissioner v. South Texas Co., 333 U. S. 496, 501; Morrissey v. Commissioner, 296 U. S. 344, 355; Fawcus Machine Co. v. United States, 282 U. S. 375, 378. Since the publication of that Treasury Decision, Congress has made many amendments to the Internal Revenue Code without revising this administrative interpretation of § 23 (a) (2). See Revenue Act of 1948, c. 168, 62 Stat. 110; Revenue Act of 1950, c. 994, 64 Stat. 906; Revenue Act of 1951, c. 521, 65 Stat. 452; Higgins v. Commissioner, supra, at 216; Morrissey v. Commissioner, supra, at 355.
The judgment of the Court of Appeals accordingly is
Affirmed.
Mr. Justice Black dissents.
“SEC. 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions:
“(a) EXPENSES.—
“(2) Non-trade or non-business expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income.” (Emphasis supplied.) 53 Stat. 12, 56 Stat. 819, 26 U. S. C. § 23 (a) (2).
“To construe the law as giving to the Commissioner the power to assess a taxpayer with a deficiency tax greatly in excess of what he owes and to hold that such law denies to the taxpayer the right to contest such assessment, except at his own personal expense, just isn’t justice under the law. The statute in question gives the Commissioner no such power . . . .” 84 F. Supp. 537, 539.
The tax is “levied, collected, and paid for each taxable year upon the net income of every individual . . . .” 53 Stat. 5, 26 U. S. C. § 11. “ ‘Net income’ means the gross income computed under section 22, less the deductions allowed by section 23.” 53 Stat. 9, 26 U. S. C. § 21.
There have been expressions by this Court placing a restrictive interpretation upon allowable deductions by virtue of “the now familiar rule that an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” Interstate Transit Lines v. Commissioner, 319 U. S. 590, 593; Deputy v. du Pont, 308 U. S. 488, 493; New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440. Such an interpretation is not necessary here and is not relied upon in this case. See Griswold, An Argument against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv. L. Rev. 1142.
And see United States v. Pyne, 313 U. S. 127 (attorney’s fees and other expenses of executors in caring for securities and investments not deductible); City Bank Co. v. Helvering, 313 U. S. 121 (similar expenses of testamentary trustee not deductible); Van Wart v. Commissioner, 295 U. S. 112 (attorney’s fee for litigation to recover income for a ward not deductible).
See note 1, supra.
“. . . Due partly to the inadequacy of the statute and partly to court decisions, nontrade or nonbusiness expenses are not deductible, although nontrade or nonbusiness income is fully subject to tax. The bill corrects this inequity by allowing all of the ordinary and necessary expenses paid or incurred for the production or collection of income or for the management, conservation or maintenance of property held for the production of income. Thus, whether or not the expense is in connection with the taxpayer’s trade or business, if it is expended in the pursuit of income or in connection with property held for the production of income, it is allowable.
“. . . The expenses, however, of carrying on a transaction which does not constitute a trade or business of the taxpayer and is not carried on for the production of income or for the management, conservation, or maintenance of property, but which is carried on primarily as a sport, hobby, or recreation are not allowable as non-trade or nonbusiness expenses.
“Expenses, to be deductible under section 23 (a) (2), must be ordinary and necessary, which rule presupposes that they must be reasonable in amount and must bear a reasonable and proximate relation to the production or collection of income, or to the management, conservation, or maintenance of property held for that purpose.
“A deduction under this section is subject, except for the requirement of being incurred in connection with a trade or business, to all the restrictions and limitations that apply in the case of the deduction under section 23 (a)(1) (A) of an expense paid or incurred in carrying on any trade or business.” Id., at 46, 75. To the same effect, see S. Rep. No. 1631, 77th Cong., 2d Sess., at 87-88.
For cases resulting in the nondeductibility of legal expenses, see e. g., Croker v. Burnet, 61 App. D. C. 342, 62 F. 2d 991 (C. A. D. C. Cir., en banc) (defending suit to have taxpayer’s husband declared incompetent and to set aside his transfer of property to taxpayer); Dickey v. Commissioner, 14 B. T. A. 1295 (defense against suit for malicious prosecution); Joyce v. Commissioner, 3 B. T. A. 393 (defense of validity of postnuptial agreement); Oransky v. Commissioner, 1 B. T. A. 1239 (defense and settlement of action for death due to negligence of taxpayer’s minor son using taxpayer’s automobile). See Kornhauser v. United States, 276 U. S. 145, for an example of legal expenses held deductible as business expenditures rather than personal ones.
The record shows that the corporation was organized in 1910 by petitioner’s elder brothers and was originally engaged in the cattle, ranching and meat packing business. Later it engaged in extensive steamship and stevedoring operations through a subsidiary. While it was a large enterprise with numerous stockholders besides petitioner, his wife and children, the stock never had been on the open market. It was held by sons, nephews and sons-in-law of the Lykes brothers. It was the practice of the brothers to foster in this way a continuity of family ownership and management. At the time of petitioner’s gift of 1,000 shares of common stock, there were outstanding about 25,000 shares of that class of stock.
The issue here is distinguishable from that in Bingham’s Trust v. Commissioner, supra. In that case the legal expenses were incurred partly in contesting an income tax deficiency assessed against the taxpaying trust and partly in winding up the trust after its expiration. All of those expenses were integral parts of the management or conservation of the trust property for the production of income and, as such, deductible under § 23 (a) (2).
Treas. Reg. 111, § 29.23 (a)-15 (b).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Board of Immigration Appeals",
"Bureau of Indian Affairs",
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"Bonneville Power Administration",
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"Civil Service Commission, U.S.",
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"Environmental Protection Agency or Administrator",
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] |
[
68
] |
HONIG, CALIFORNIA SUPERINTENDENT OF PUBLIC INSTRUCTION v. DOE et al.
No. 86-728.
Argued November 9, 1987
Decided January 20, 1988
Brennan, J., delivered the opinion of the Court as to holdings number 1 and 2 above, in which Rehnquist, C. J., and White, Marshall, Black-mun, and Stevens, JJ., joined. Rehnquist, C. J., filed a concurring opinion, post, p. 329. Scalia, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 332.
Asher Rubin, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Charlton G. Holland, Assistant Attorney General, and John Davidson, Supervising Deputy Attorney General.
Glen D. Nager argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Walter W. Barnett, Dennis J. Dimsey, and Wendell L. Willkie.
Sheila Brogna argued the cause for respondents. With her on the brief were William J. Taylor and Toby Fishbein Rubin
Briefs of amici curiae urging reversal were filed for the Davis Joint Unified School District et al. by Charles R. Mack; for the National School Boards Association by Gwendolyn H. Gregory and August W. Steinhilber; for the National School Safety Center et al. by James A. Rapp, Donna Clontz, and Jane Slenkovich; and for the San Francisco Unified School District by Louise H. Renne and Thomas M. Berliner,
Briefs of amici curiae urging affirmance were filed for the American Association on Mental Deficiency et al. by Norman S. Rosenberg and Janet Stotland; for the National Association of Protection and Advocacy Systems et al. by Marilyn Hollé; and for the Center for Law and Education, Inc., et al.
Briefs of amici curiae were filed for Senator Chafee et al. by Arlene Brynne Mayerson; and for the Legal Aid Society of the City of New York, Juvenile Rights Division, by Henry S. Weintraub.
Justice Brennan
delivered the opinion of the Court.
As a condition of federal financial assistance, the Education of the Handicapped Act requires States to ensure a “free appropriate public education” for all disabled children within their jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called “stay-put” provision, which directs that a disabled child “shall remain in [his or her] then current educational placement” pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree. 20 U. S. C. § 1415(e)(3). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may nevertheless unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so.
I
In the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq., Congress sought “to assure that all handicapped children have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected.” § 1400(c). When the law was passed in 1975, Congress had before it ample evidence that such legislative assurances were sorely needed: 21 years after this Court declared education to be “perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U. S. 483, 493 (1954), congressional studies revealed that better than half of the Nation’s 8 million disabled children were not receiving appropriate educational services. § 1400(b)(3). Indeed, one out of every eight of these children was excluded from the public school system altogether, § 1400(b)(4); many others were simply “warehoused” in special classes or were neglectfully shepherded through the system until they were old enough to drop out. See H. R. Rep. No. 94-332, p. 2 (1975). Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975) (hereinafter S. Rep.).
Although these educational failings resulted in part from funding constraints, Congress recognized that the problem reflected more than a lack of financial resources at the state and local levels. Two federal-court decisions, which the Senate Report characterized as “landmark,” see id., at 6, demonstrated that many disabled children were excluded pursuant to state statutes or local rules and policies, typically without any consultation with, or even notice to, their parents. See Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972); Pennsylvania Assn. for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (ED Pa. 1971), and 343 F. Supp. 279 (1972) (PARC). Indeed, by the time of the EHA’s enactment, parents had brought legal challenges to similar exclusionary practices in 27 other States. See S. Rep., at 6.
In responding to these problems, Congress did not content itself with passage of a simple funding statute. Rather, the EHA confers upon disabled students an enforceable substantive right to public education in participating States, see Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 (1982), and conditions federal financial assistance upon a State’s compliance with the substantive and procedural goals of the Act. Accordingly, States seeking to qualify for federal funds must develop policies assuring all disabled children the “right to a free appropriate public education,” and must file with the Secretary of Education formal plans mapping out in detail the programs, procedures, and timetables under which they will effectuate these policies. 20 U. S. C. §§ 1412(1), 1413(a). Such plans must assure that, “to the maximum extent appropriate,” States will “mainstream” disabled children, i. e., that they will educate them with children who are not disabled, and that they will segregate or otherwise remove such children from the regular classroom setting “only when the nature or severity of the handicap is such that education in regular classes . . . cannot be achieved satisfactorily.” § 1412(5).
The primary vehicle for implementing these congressional goals is the “individualized educational program” (IEP), which the EHA mandates for each disabled child. Prepared at meetings between a representative of the local school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. § 1401(19). The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required “free appropriate public education” to each child’s unique needs. § 1414(a)(5).
Envisioning the IEP as the centerpiece of the statute’s education delivery system for disabled children, and aware that schools had all too often denied such children appropriate educations without in any way consulting their parents, Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See §§ 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2). Accordingly, the Act establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate. These safeguards include the right to examine all relevant records pertaining to the identification, evaluation, and educational placement of their child; prior written notice whenever the responsible educational agency proposes (or refuses) to change the child’s placement or program; an opportunity to present complaints concerning any aspect of the local agency’s provision of a free appropriate public education; and an opportunity for “an impartial due process hearing” with respect to any such complaints. §§ 1415(b)(1), (2).
At the conclusion of any such hearing, both the parents and the local educational agency may seek further administrative review and, where that proves unsatisfactory, may file a civil action in any state or federal court. §§ 1415(c), (e)(2). In addition to reviewing the administrative record, courts are empowered to take additional evidence at the request of either party and to “grant such relief as [they] determine[ ] is appropriate.” § 1415(e)(2). The “stay-put” provision at issue in this case governs the placement of a child while these often lengthy review procedures run their course. It directs that:
“During the pendency of any proceedings conducted pursuant to [§ 1415], unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child . . . .” § 1415(e)(3).
The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November 1980, respondent John Doe assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe’s April 1980 IEP identified him as a socially and physically awkward 17-year-old who experienced considerable difficulty controlling his impulses and anger. Among the goals set out in his IEP was “[i]mprovement in [his] ability to relate to [his] peers [and to] cope with frustrating situations without resorting to aggressive acts.” App. 17. Frustrating situations, however, were an unfortunately prominent feature of Doe’s school career: physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as the first grade, id., at 23; his 1980 IEP reflected his continuing difficulties with peers, noting that his social skills had deteriorated and that he could tolerate only minor frustration before exploding. Id., at 15-16.
On November 6, 1980, Doe responded to the taunts of a fellow student in precisely the explosive manner anticipated by his IEP: he choked the student with sufficient force to leave abrasions on the child’s neck, and kicked out a school window while being escorted to the principal’s office afterwards. Id., at 208. Doe admitted his misconduct and the school subsequently suspended him for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement Committee (SPC or Committee) with the recommendation that Doe be expelled. On the day the suspension was to end, the SPC notified Doe’s mother that it was proposing to exclude her child permanently from SFUSD and was therefore extending his suspension until such time as the expulsion proceedings were completed. The Committee further advised her that she was entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.
After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials and the State Superintendent of Public Instruction. Alleging that the suspension and proposed expulsion violated the EHA, he sought a temporary restraining order canceling the SPC hearing and requiring school officials to convene an IEP meeting. The District Judge granted the requested injunctive relief and further ordered defendants to provide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then current educational placement at Louise Lombard School pending completion of the IEP review process. Doe reentered school on December 15, 514 weeks, and 24 schooldays, after his initial suspension.
Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable “to control verbal or physical outburst[s]” and exhibited a “[sjevere disturbance in relationships with peers and adults.” Id., at 123. Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Id., at 136, 139, 155, 176. Of particular concern was Smith’s propensity for verbal hostility; one evaluator noted that the child reacted to stress by “attempting] to cover his feelings of low self worth through aggressive behavior[,]. . . primarily verbal provocations.” Id., at 136.
Based on these evaluations, SFUSD placed Smith in a learning center for emotionally disturbed children. His grandparents, however, believed that his needs would be better served in the public school setting and, in September 1979, the school district acceded to their requests and enrolled him at A. P. Giannini Middle School. His February 1980 IEP recommended placement in a Learning Disability Group, stressing the need for close supervision and a highly structured environment. Id., at 111. Like earlier evalúations, the February 1980 IEP noted that Smith was easily distracted, impulsive, and anxious; it therefore proposed a half-day schedule and suggested that the placement be undertaken on a trial basis. Id., at 112, 115.
At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School officials met twice with his grandparents in October 1980 to discuss returning him to a half-day program; although the grandparents agreed to the reduction, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior — which included stealing, extorting money from fellow students, and making sexual comments to female classmates — they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from SFUSD. As it did in John Doe’s case, the Committee scheduled a hearing and extended the suspension indefinitely pending a final disposition in the matter. On November 28, Smith’s counsel protested these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P. Giannini or to provide home tutoring. Smith’s grandparents chose the latter option and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.
After learning of Doe’s action, Smith sought and obtained leave to intervene in the suit. The District Court subsequently entered summary judgment in favor of respondents on their EHA claims and issued a permanent injunction. In a series of decisions, the District Judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived them of their congressionally mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The District Judge therefore permanently enjoined the school district from taking any disciplinary action other than a 2- or 5-day suspension against any disabled child for disability-related misconduct, or from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the State from authorizing unilateral placement changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the State to provide services directly to disabled children when, in any individual case, the State determined that the local educational agency was unable or unwilling to do so.
On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. Doe v. Maher, 793 F. 2d 1470 (1986). Agreeing with the District Court that an indefinite suspension in aid of expulsion constitutes a prohibited “change in placement” under § 1415(e)(3), the Court of Appeals held that the stay-put provision admitted of no “dangerousness” exception and that the statute therefore rendered invalid those provisions of the California Education Code permitting the indefinite suspension or expulsion of disabled children for misconduct arising out of their disabilities. The court concluded, however, that fixed suspensions of up to 30 schooldays did not fall within the reach of § 1415(e)(3), and therefore upheld recent amendments to the state Education Code authorizing such suspensions. Lastly, the court affirmed that portion of the injunction requiring the State to provide services directly to a disabled child when the local educational agency fails to do so.
Petitioner Bill Honig, California Superintendent of Public Instruction, sought review in this Court, claiming that the Court of Appeals’ construction of the stay-put provision conflicted with that of several other Courts of Appeals which had recognized a dangerousness exception, compare Doe v. Maher, supra (case below), with Jackson v. Franklin County School Board, 765 F. 2d 535, 538 (CA5 1985); Victoria L. v. District School Bd. of Lee County, Fla., 741 F. 2d 369, 374 (CA11 1984); S-1 v. Turlington, 635 F. 2d 342, 348, n. 9 (CA5), cert. denied, 454 U. S. 1030 (1981), and that the direct services ruling placed an intolerable burden on the State. We granted certiorari to resolve these questions, 479 U. S. 1084 (1987), and now affirm.
II
At the outset, we address the suggestion, raised for the first time during oral argument, that this case is moot. Under Article III of the Constitution this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newkirk, 422 U. S. 395, 401 (1975). That the dispute between the parties was very much alive when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute for the actual ease or controversy that an exercise of this Court’s jurisdiction requires. Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974); Roe v. Wade, 410 U. S. 113, 125 (1973). In the present case, we have jurisdiction if there is a reasonable likelihood that respondents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. We believe that, at least with respect to respondent Smith, such a possibility does in fact exist and that the case therefore remains justiciable.
Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of 3 and 21. See 20 U. S. C. § 1412(2)(B). It is clear, therefore, that whatever rights to state educational services he may yet have as a ward of the State, see Tr. of Oral Arg. 23, 26, the Act would not govern the State’s provision of those services, and thus the case is moot as to him. Respondent Jack Smith, however, is currently 20 and has not yet completed high school. Although at present he is not faced with any proposed expulsion or suspension proceedings, and indeed no longer even resides within the SFUSD, he remains a resident of California and is entitled to a “free appropriate public education” within that State. His claims under the EHA, therefore, are not moot if the conduct he originally complained of is “ ‘capable of repetition, yet evading review.’” Murphy v. Hunt, 455 U. S. 478, 482 (1982). Given Smith’s continued eligibility for educational services under the EHA, the nature of his disability, and petitioner’s insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct, we have little difficulty concluding that there is a “reasonable expectation,” ibid., that Smith would once again be subjected to a unilateral “change in placement” for conduct growing out of his disabilities were it not for the statewide injunctive relief issued below.
Our cases reveal that, for purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury. See Los Angeles v. Lyons, 461 U. S. 95, 105-106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, or would resist arrest if stopped); Murphy v. Hunt, supra, at 484 (no reason to believe that party challenging denial of pretrial bail “will once again be in a position to demand bail”); O’Shea v. Littleton, 414 U. S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws). No such reluctance, however, is warranted here. It is respondent Smith’s very inability to conform his conduct to socially acceptable norms that renders him “handicapped” within the meaning of the EHA. See 20 U. S. C. § 1401(1); 34 CFR § 300.5(b)(8) (1987). As noted above, the record is replete with evidence that Smith is unable to govern his aggressive, impulsive behavior — indeed, his notice of suspension acknowledged that “Jack’s actions seem beyond his control.” App. 152. In the absence of any suggestion that respondent has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct. Nor is it reasonable to suppose that Smith’s future educational placement will so perfectly suit his emotional and academic needs that further disruptions on his part are improbable. Although Justice Sc alia suggests in his dissent, post, at 338, that school officials are unlikely to place Smith in a setting where they cannot control his misbehavior, any efforts to ensure such total control must be tempered by the school system’s statutory obligations to provide respondent with a free appropriate public education in “the least restrictive environment,” 34 CFR § 300.552(d) (1987); to educate him, “to the maximum extent appropriate,” with children who are not disabled, 20 U. S. C. § 1412(5); and to consult with his parents or guardians, and presumably with respondent himself, before choosing a placement. §§ 1401(19), 1415 (b). Indeed, it is only by ignoring these mandates, as well as Congress’ unquestioned desire to wrest from school officials their former unilateral authority to determine the placement of emotionally disturbed children, see infra, at 323-324, that the dissent can so readily assume that respondent’s future placement will satisfactorily prevent any further dangerous conduct on his part. Overarching these statutory obligations, moreover, is the inescapable fact that the preparation of an IEP, like any other effort at predicting human behavior, is an inexact science at best. Given the unique circumstances and context of this case, therefore, we think it reasonable to expect that respondent will again engage in the type of misconduct that precipitated this suit.
We think it equally probable that, should he do so, respondent will again be subjected to the same unilateral school action for which he initially sought relief. In this regard, it matters not that Smith no longer resides within the SFUSD. While the actions of SFUSD officials first gave rise to this litigation, the District Judge expressly found that the lack of a state policy governing local school responses to disability-related misconduct had led to, and would continue to result in, EHA violations, and she therefore enjoined the state defendant from authorizing, among other things, unilateral placement changes. App. 247-248. She of course also issued injunctions directed at the local defendants, but they did not seek review of those orders in this Court. Only petitioner, the State Superintendent of Public Instruction, has invoked our jurisdiction, and he now urges us to hold that local school districts retain unilateral authority under the EHA to suspend or otherwise remove disabled children for dangerous conduct. Given these representations, we have every reason to believe that were it not for the injunction barring petitioner from authorizing such unilateral action, respondent would be faced with a real and substantial threat of such action in any California school district in which he enrolled. Cf. Los Angeles v. Lyons, supra, at 106 (respondent lacked standing to seek injunctive relief because he could not plausibly allege that police officers choked all persons whom they stopped, or that the city “authorized police officers to act in such manner” (emphasis added)). Certainly, if the SFUSD’s past practice of unilateral exclusions was at odds with state policy and the practice of local school districts generally, petitioner would not now stand before us seeking to defend the right of all local school districts to engage in such aberrant behavior.
We have previously noted that administrative and judicial review under the EHA is often “ponderous,” Burlington School Committee v. Massachusetts Dept. of Education, 471 U. S. 359, 370 (1985), and this case, which has taken seven years to reach us, amply confirms that observation. For obvious reasons, the misconduct of an emotionally disturbed or otherwise disabled child who has not yet reached adolescence typically will not pose such a serious threat to the well-being of other students that school officials can only ensure classroom safety by excluding the child. Yet, the adolescent student improperly disciplined for misconduct that does pose such a threat will often be finished with school or otherwise ineligible for EHA protections by the time review can be had in this Court. Because we believe that respondent Smith has demonstrated both “a sufficient likelihood that he will again be wronged in a similar way,” Los Angeles v. Lyons, 461 U. S., at 111, and that any resulting claim he may have for relief will surely evade our review, we turn to the merits of his case.
Ill
The language of § 1415(e)(3) is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, “the child shall remain in the then current educational placement.” § 1415(e)(3) (emphasis added). Faced with this clear directive, petitioner asks us to read a “dangerousness” exception into the stay-put provision on the basis of either of two essentially inconsistent assumptions: first, that Congress thought the residual authority of school officials to exclude dangerous students from the classroom too obvious for comment; or second, that Congress inadvertently failed to provide such authority and this Court must therefore remedy the oversight. Because we cannot accept either premise, we decline petitioner’s invitation to rewrite the statute.
Petitioner’s arguments proceed, he suggests, from a simple, commonsense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy EHA proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.
As noted above, Congress passed the EHA after finding that school systems across the country had excluded one out of every eight disabled children from classes. In drafting the law, Congress was largely guided by the recent decisions in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F. Supp. 279 (1972), both of which involved the exclusion of hard-to-handle disabled students. Mills in particular demonstrated the extent to which schools used disciplinary measures to bar children from the classroom. There, school officials had labeled four of the seven minor plaintiffs “behavioral problems,” and had excluded them from classes without providing any alternative education to them or any notice to their parents. 348 F. Supp., at 869-870. After finding that this practice was not limited to the named plaintiffs but affected in one way or another an estimated class of 12,000 to 18,000 disabled students, id., at 868-869, 875, the District Court enjoined future exclusions, suspensions, or expulsions “on grounds of discipline.” Id., at 880.
Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity of their disabilities, 20 U. S. C. § 1412(2)(C), and included within the definition of “handicapped” those children with serious emotional disturbances. § 1401(1). It further provided for meaningful parental participation in all aspects of a child’s educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent’s objection until all review proceedings were completed. Recognizing that those proceedings might prove long and tedious, the Act’s drafters did not intend § 1415(e)(3) to operate inflexibly, see 121 Cong. Rec. 37412 (1975) (remarks of Sen. Stafford), and they therefore allowed for interim placements where parents and school officials are able to agree on one. Conspicuously absent from § 1415(e)(3), however, is any emergency exception for dangerous students. This absence is all the more telling in light of the injunctive decree issued in PARC, which permitted school officials unilaterally to remove students in “‘extraordinary circumstances.’” 343 F. Supp., at 301. Given the lack of any similar exception in Mills, and the close attention Congress devoted to these “landmark” decisions, see S. Rep., at 6, we can only conclude that the omission was intentional; we are therefore not at liberty to en-graft onto the statute an exception Congress chose not to create.
Our conclusion that § 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that, “[w]hile the [child’s] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.” Comment following 34 CFR §300.513 (1987). Such procedures may include the use of study carrels, timeouts, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays. This authority, which respondent in no way disputes, not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a “cooling down” period during which officials can initiate IEP review and seek to persuade the child’s parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under § 1415(e)(2), which empowers courts to grant any appropriate relief.
Petitioner contends, however, that the availability of judicial relief is more illusory than real, because a party seeking review under § 1415(e)(2) must exhaust time-consuming administrative remedies, and because under the Court of Appeals’ construction of § 1415(e)(3), courts are as bound by the stay-put provision’s “automatic injunction,” 793 F. 2d, at 1486, as are schools. It is true that judicial review is normally not available under § 1415(e)(2) until all administrative proceedings are completed, but as we have previously noted, parents may bypass the administrative process where exhaustion would be futile or inadequate. See Smith v. Robinson, 468 U. S. 992, 1014, n. 17 (1984) (citing cases); see also 121 Cong. Rec. 37416 (1975) (remarks of Sen. Williams) (“[E]xhaustion. . . should not be required ... in cases where such exhaustion would be futile either as a legal or practical matter”). While many of the EHA’s procedural safeguards protect the rights of parents and children, schools can and do seek redress through the administrative review process, and we have no reason to believe that Congress meant to require schools alone to exhaust in all cases, no matter how exigent the circumstances. The burden in such cases, of course, rests with the school to demonstrate the futility or inadequacy of administrative review, but nothing in § 1415(e)(2) suggests that schools are completely barred from attempting to make such a showing. Nor do we think that § 1415(e)(3) operates to limit the equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin a dangerous disabled child from attending school. As the EHA’s legislative history makes clear, one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by schools, not courts, and one of the purposes of § 1415(e)(3), therefore, was “to prevent school officials from removing a child from the regular public school classroom over the parents’ objection pending completion of the review proceedings.” Burlington School Committee v. Massachusetts Dept, of Education, 471 U. S., at 373 (emphasis added). The stay-put provision in no way purports to limit or pre-empt the authority conferred on courts by § 1415(e)(2), see Doe v. Brookline School Committee, 722 F. 2d 910, 917 (CA1 1983); indeed, it says nothing whatever about judicial power.
In short, then, we believe that school officials are entitled to seek injunctive relief under § 1415(e)(2) in appropriate cases. In any such action, § 1415(e)(3) effectively creates a presumption in favor of the child’s current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others. In the present case, we are satisfied that the District Court, in enjoining the state and local defendants from indefinitely suspending respondent or otherwise unilaterally altering his then current placement, properly balanced respondent’s interest in receiving a free appropriate public education in accordance with the procedures and requirements of the EH A against the interests of the state and local school officials in maintaining a safe learning environment for all their students.
IV
We believe the courts below properly construed and applied § 1415(e)(3), except insofar as the Court of Appeals held that a suspension in excess of 10 schooldays does not constitute a “change in placement.” We therefore affirm the Court of Appeals’ judgment on this issue as modified herein. Because we are equally divided on the question whether a court may order a State to provide services directly to a disabled child where the local agency has failed to do so, we affirm the Court of Appeals’ judgment on this issue as well.
Affirmed.
Congress’ earlier efforts to ensure that disabled students received adequate public education had failed in part because the measures it adopted were largely hortatory. In the 1966 amendments to the Elementary and Secondary Education Act of 1965, Congress established a grant program “for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects ... for the education of handicapped children.” Pub. L. 89-750, § 161, 80 Stat. 1204. It repealed that program four years later and replaced it with the original version of the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat. 175, Part B of which contained a similar grant program. Neither statute, however, provided specific guidance as to how States were to use the funds, nor did they condition the availability of the grants on compliance with any procedural or substantive safeguards. In amending the EHA to its present form, Congress rejected its earlier policy of “merely establishing] an unenforceable goal requiring all children to be in school.” 121 Cong. Rec. 37417 (1975) (remarks of Sen. Schweiker). Today, all 50 States and the District of Columbia receive funding assistance under the EHA. U. S. Dept. of Education, Ninth Annual Report to Congress on Implementation of Education of the Handicapped Act (1987).
California law at the time empowered school principals to suspend students for no more than five consecutive schooldays, Cal. Educ. Code Ann. § 48903(a) (West 1978), but permitted school districts seeking to expel a suspended student to “extend the suspension until such time as [expulsion proceedings were completed]; provided, that [it] has determined that the presence of the pupil at the school or in an alternative school placement would cause a danger to persons or property or a threat of disrupting the instructional process.” § 48903(h). The State subsequently amended the law to permit school districts to impose longer initial periods of suspension. See n. 3, infra.
In 1983, the State amended its Education Code to permit school districts to impose initial suspensions of 20, and in certain circumstances, 30 schooldays. Cal. Educ. Code Ann. §§ 48912(a), 48903 (West Supp. 1988). The legislature did not alter the indefinite suspension authority which the SPC exercised in this case, but simply incorporated the earlier provision into a new section. See § 48911(g).
At the time respondent Doe initiated this suit, Wilson Riles was the California Superintendent of Public Instruction. Petitioner Honig succeeded him in office.
We note that both petitioner and respondents believe that this case presents a live controversy. See Tr. of Oral Arg. 6, 27-31. Only the United States, appearing as amicus curiae, urges that the case is presently nonjusticiable. Id., at 21.
Notwithstanding respondent’s undisputed right to a free appropriate public education in California, Justice Scalia argues in dissent that there is no “demonstrated probability” that Smith will actually avail himself of that right because his counsel was unable to state affirmatively during oral argument that her client would seek to reenter the state school system. See post, at 337. We believe the dissent overstates the stringency of the “capable of repetition” test. Although Justice Scalia equates “reasonable expectation” with “demonstrated probability,” the very case he cites for this proposition described these standards in the disjunctive, see Murphy v. Hunt, 455 U. S., at 482 (“[Tjhere must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur” (emphasis added)), and in numerous cases decided both before and since Hunt we have found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable. See, e. g., Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 436, n. 4 (1987) (parties “reasonably likely” to find themselves in future disputes over collective-bargaining agreement); California Coastal Comm’n v. Granite Rock Co., 480 U. S. 572, 578 (1987) (O’Connor, J.) (“likely” that respondent would again submit mining plans that would trigger contested state permit requirement); Press-Enterprise Co. v. Superior Court of Cal., Riverside County, 478 U. S. 1, 6 (1986) (“It can reasonably be assumed” that newspaper publisher will be subjected to similar closure order in the future); Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U. S. 596, 603 (1982) (same); United States Parole Comm’n v. Geraghty, 445 U. S. 388, 398 (1980) (case not moot where litigant “faces some likelihood of becoming involved in same controversy in the future”) (dicta). Our concern in these cases, as in all others involving potentially moot claims, was whether the controversy was capable of repetition and not, as the dissent seems to insist, whether the claimant had demonstrated that a recurrence of the dispute was more probable than not. Regardless, then, of whether respondent has established with mathematical precision the likelihood that he will enroll in public school during the next two years, we think there is at the very least a reasonable expectation that he will exercise his rights under the EHA. In this regard, we believe respondent’s actions over the course of the last seven years speak louder than his counsel’s momentary equivocation during oral argument. Since 1980, he has sought to vindicate his right to an appropriate public education that is not only free of charge, but also free from the threat that school officials will unilaterally change his placement or exclude him from class altogether. As a disabled young man, he has as at least as great a need of a high school education and diploma as any of his peers, and his counsel advises us that he is awaiting the outcome of this case to decide whether to pursue his degree. Tr. Oral Arg. 23-24. Under these circumstances, we think it not only counterintuitive but also unreasonable to assume that respondent will forgo the exercise of a right that he has for so long sought to defend. Certainly we have as much reason to expect that respondent will reenter the California school system as we had to assume that Jane Roe would again both have an unwanted pregnancy and wish to exercise her right to an abortion. See Roe v. Wade, 410 U. S. 113, 125 (1973).
Petitioner concedes that the school district “made a number of procedural mistakes in its eagerness to protect other students from Doe and Smith.” Reply Brief for Petitioner 6. According to petitioner, however, unilaterally excluding respondents from school was not among them; indeed, petitioner insists that the SFUSD acted properly in removing respondents and urges that the stay-put provision “should not be interpreted to require a school district to maintain such dangerous children with other children.” Id., at 6-7.
The Department of Education has adopted the position first espoused in 1980 by its Office of Civil Rights that a suspension of up to 10 schooldays does not amount to a “change in placement” prohibited by § 1415(e)(3). U. S. Dept, of Education, Office of Special Education Programs, Policy Letter (Feb. 26, 1987), Ed. for Handicapped L. Rep. 211:437 (1987). The EHA nowhere defines the phrase “change in placement,” nor does the statute’s structure or legislative history provide any guidance as to how the term applies to fixed suspensions. Given this ambiguity, we defer to the construction adopted by the agency charged with monitoring and enforcing the statute. See INS v. Cardoza-Fonseca, 480 U. S. 421, 448 (1987). Moreover, the agency’s position comports fully with the purposes of the statute: Congress sought to prevent schools from permanently and unilaterally excluding disabled children by means of indefinite suspensions and expulsions; the power to impose fixed suspensions of short duration does not carry the potential for total exclusion that Congress found so objectionable. Indeed, despite its broad injunction, the District Court in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), recognized that school officials could suspend disabled children on a short-term, temporary basis. See id, at 880. Cf. Goss v. Lopez, 419 U. S. 565, 574-576 (1975) (suspension of 10 schooldays or more works a sufficient deprivation of property and liberty interests to trigger the protections of the Due Process Clause). Because we believe the agency correctly determined that a suspension in excess of 10 days does constitute a prohibited “change in placement,” we conclude that the Court of Appeals erred to the extent it approved suspensions of 20 and 30 days’ duration.
Petitioner also notes that in California, schools may not suspend any given student for more than a total of 20, and in certain special circumstances 30, schooldays in a single year, see Cal. Educ. Code Ann. § 48903 (West Supp. 1988); he argues, therefore, that a school district may not have the option of imposing a 10-day suspension when dealing with an obstreperous child whose previous suspensions for the year total 18 or 19 days. The fact remains, however, that state law does not define the scope of § 1415(e)(3). There may be cases in which a suspension that is otherwise valid under the stay-put provision would violate local law. The effect of such a violation, however, is a question of state law upon which we express no view.
We therefore reject the United States’ contention that the District Judge abused her discretion in enjoining the local school officials from indefinitely suspending respondent pending completion of the expulsion proceedings. Contrary to the Government’s suggestion, the District Judge did not view herself bound to enjoin any and all violations of the stay-put provision, but rather, consistent with the analysis we set out above, weighed the relative harms to the parties and found that the balance tipped decidedly in favor of respondent. App. 222-223. We of course do not sit to review the factual determinations underlying that conclusion. We do note, however, that in balancing the parties’ respective interests, the District Judge gave proper consideration to respondent’s rights under the EHA. While the Government complains that the District Court indulged an improper presumption of irreparable harm to respondent, we do not believe that school officials can escape the presumptive effect of the stay-put provision simply by violating it and forcing parents to petition for relief. In any suit brought by parents seeking injunctive relief for a violation of § 1415(e)(3), the burden rests with the school district to demonstrate that the educational status quo must be altered.
See n. 8, supra.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
Kathleen SEBELIUS, Secretary of Health and Human Services, Petitioner
v.
Melissa CLOER.
No. 12-236.
Supreme Court of the United States
Argued March 19, 2013.
Decided May 20, 2013.
Benjamin J. Horwich, Washington, DC, for Petitioner.
Robert T. Fishman, Denver, CO, for Respondent.
William B. Schultz, Acting General Counsel, David Benor, Associate General Counsel for Public Health, Anna Loraine Jacobs, Attorney, Department of Health and Human Services, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Principal Deputy, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Benjamin J. Horwich, Assistant to the Solicitor General, Counsel of Record, Michael S. Raab, Anisha S. Dasgupta, Vincent J. Matanoski, Lynn E. Ricciardella, Attorneys, Department of Justice, Washington, DC, for Petitioner.
Mari C. Bush, Kaye and Bush, LLC, Denver, CO, Robert T. Moxley, Robert T. Moxley, PC, Cheyenne, WY, Robert T. Fishman, Counsel of Record, Ridley, McGreevy & Winocur, PC, Denver, CO, for Respondent.
Justice SOTOMAYOR delivered the opinion of the Court.
The National Childhood Vaccine Injury Act of 1986 (NCVIA or Act), 100 Stat. 3756, 42 U.S.C. § 300aa-1 et seq., provides that a court may award attorney's fees and costs "incurred [by a claimant] in any proceeding on" an unsuccessful vaccine-injury "petition filed under section 300aa-11," if that petition "was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." § 300aa-15(e)(1). The Act's limitations provision states that "no petition may be filed for compensation" more than 36 months after the claimant's initial symptoms occur. § 300aa-16(a)(2). The question before us is whether an untimely petition can garner an award of attorney's fees. We agree with a majority of the en banc Court of Appeals for the Federal Circuit that it can.
I
A
The NCVIA "establishes a no-fault compensation program 'designed to work faster and with greater ease than the civil tort system.' " Bruesewitz v. Wyeth LLC, 562 U.S. ----, ----, 131 S.Ct. 1068, 1073, 179 L.Ed.2d 1 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995) ). Congress enacted the NCVIA to stabilize the vaccine market and expedite compensation to injured parties after complaints mounted regarding the inefficiencies and costs borne by both injured consumers and vaccine manufacturers under the previous civil tort compensation regime. 562 U.S., at ---- - ----, 131 S.Ct., at 1072-1073; H.R.Rep. No. 99-908, pt. 1, pp. 6-7 (1986) (hereinafter H.R. Rep.).
The compensation program's procedures are straightforward. First, "[a] proceeding for compensation under the Program for a vaccine-related injury or death shall be initiated by service upon the Secretary [for the Department of Health and Human Services] and the filing of a petition containing the matter prescribed by subsection (c) of this section with the United States Court of Federal Claims." 42 U.S.C. § 300aa-11(a)(1). Subsection (c) provides in relevant part that a petition must include "an affidavit, and supporting documentation, demonstrating that the person who suffered such injury" was actually vaccinated and suffered an injury. § 300aa-11(c)(1). Next, upon receipt of an NCVIA petition, "[t]he clerk of the United States Court of Federal Claims shall immediately forward the filed petition to the chief special master for assignment to a special master." § 300aa-11(a)(1). This special master then "makes an informal adjudication of the petition." Bruesewitz, 562 U.S., at ----, 131 S.Ct., at 1073 (citing § 300aa-12(d)(3) ). A successful claimant may recover medical costs, lost earning capacity, and an award for pain and suffering, 42 U.S.C. § 300aa-15(a), with compensation paid out from a federal trust fund supported by an excise tax levied on each dose of certain covered vaccines, see 26 U.S.C. §§ 4131, 4132, 9510 ; 42 U.S.C. § 300aa-15(f)(4)(A). But under the Act's limitations provision, "no petition may be filed for compensation under the Program for [a vaccine-related] injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of" the alleged injury. § 300aa-16(a)(2).
The Act also includes an unusual scheme for compensating attorneys who work on NCVIA petitions. See § 300aa-15(e). "No attorney may charge any fee for services in connection with a petition filed under section 300aa-11 of this title." § 300aa-15(e)(3). But a court may award attorney's fees in certain circumstances. In the case of successful petitions, the award of attorney's fees is automatic. § 300aa-15(e)(1) ("In awarding compensation on a petition filed under section 300aa-11 of this title the special master or court shall also award as part of such compensation an amount to cover ... reasonable attorneys' fees, and ... other costs"). For unsuccessful petitions, "the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." Ibid. In other words, "[a]ttorney's fees are provided, not only for successful cases, but even for unsuccessful claims that are not frivolous." Bruesewitz, 562 U.S., at ----, 131 S.Ct., at 1074.
B
Respondent, Dr. Melissa Cloer, received three Hepatitis-B immunizations from September 1996 to April 1997. Shortly after receiving the third vaccine, Dr. Cloer began to experience numbness and strange sensations in her left forearm and hand. She sought treatment in 1998 and 1999, but the diagnoses she received were inconclusive. By then, Dr. Cloer was experiencing numbness in her face, arms, and legs, and she had difficulty walking. She intermittently suffered these symptoms until 2003, when she began to experience the full manifestations of, and was eventually diagnosed with, multiple sclerosis (MS). In 2004, Dr. Cloer became aware of a link between MS and the Hepatitis-B vaccine, and in September 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccinations she received had caused or exacerbated her MS.
Dr. Cloer's petition was sent by the clerk of the Court of Federal Claims to the Chief Special Master, who went on to adjudicate it. After reviewing the petition and its supporting documentation, the Chief Special Master concluded that Dr. Cloer's claim was untimely because the Act's 36-month limitations period began to run when she first experienced the symptoms of MS in 1997. Cloer v. Secretary of Dept. of Health and Human Servs., No. 05-1002V, 2008 WL 2275574, at *1, *10 (Fed.Cl., May 15, 2008) (opinion of Golkiewicz, Chief Special Master) (citing § 300aa-16(a)(2) (NCVIA's limitations provision )). Relying on Federal Circuit precedent, the Chief Special Master also rejected Dr. Cloer's argument that the NCVIA's limitations period should be subject to equitable tolling. Id., at *9 (citing Brice v. Secretary of Health and Human Servs., 240 F.3d 1367, 1373 (2001) ). A divided panel of the Federal Circuit reversed the Chief Special Master, concluding that the NCVIA's limitations period did not commence until "the medical community at large objectively recognize[d] a link between the vaccine and the injury." Cloer v. Secretary of Health and Human Servs., 603 F.3d 1341, 1346 (2010).
The en banc court then reversed the panel's decision, Cloer v. Secretary of Health and Human Servs., 654 F.3d 1322 (2011), cert. denied, 566 U.S. ----, 132 S.Ct. 1908, 182 L.Ed.2d 807 (2012), and held that the statute's limitations period begins to run on "the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner." 654 F.3d, at 1324-1325. The Court of Appeals also held that the Act's limitations provision was nonjurisdictional and subject to equitable tolling in limited circumstances, overruling its prior holding in Brice . 654 F.3d, at 1341-1344. The court concluded, however, that Dr. Cloer was ineligible for tolling and that her petition was untimely. Id., at 1344-1345.
Following this decision, Dr. Cloer moved for an award of attorney's fees. The en banc Federal Circuit agreed with her that a person who files an untimely NCVIA petition "assert[ing] a reasonable limitations argument" may recover fees and costs so long as " 'the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.' " 675 F.3d 1358, 1359-1361 (2012) (quoting § 300aa-15(e)(1) ). Six judges disagreed with this conclusion and instead read the NCVIA to bar such awards for untimely petitions. Id., at 1364-1368 (Bryson, J., dissenting). We granted the Government's petition for writ of certiorari. 568 U.S. ----, 133 S.Ct. 638, 184 L.Ed.2d 452 (2012). We now affirm.
II
A
As in any statutory construction case, "[w]e start, of course, with the statutory text," and proceed from the understanding that " [u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning." BP America Production Co. v. Burton, 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006). The Act's fees provision ties eligibility for attorney's fees broadly to "any proceeding on such petition," referring specifically to "a petition filed under section 300aa-11." 42 U.S.C. §§ 300aa-15(e)(1), (3). Section 300aa-11 provides that "[a] proceeding for compensation" is "initiated" by "service upon the Secretary" and "the filing of a petition containing" certain documentation with the clerk of the Court of Federal Claims who then "immediately forward[s] the filed petition" for assignment to a special master. § 300aa-11(a)(1). See supra, at 2.
Nothing in these two provisions suggests that the reason for the subsequent dismissal of a petition, such as its untimeliness, nullifies the initial filing of that petition. We have explained that "[a]n application is 'filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record." Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). When this ordinary meaning is applied to the text of the statute, it is clear that an NCVIA petition which is delivered to the clerk of the court, forwarded for processing, and adjudicated in a proceeding before a special master is a "petition filed under section 300aa-11." 42 U.S.C. § 300aa-15(e)(1). And so long as such a petition was brought in good faith and with a reasonable basis, it is eligible for an award of attorney's fees, even if it is ultimately unsuccessful. Ibid. If Congress had intended to limit fee awards to timely petitions, it could easily have done so. But the NCVIA instead authorizes courts to award attorney's fees for those unsuccessful petitions " brought in good faith and [for which] there was a reasonable basis." Ibid.
The Government argues that the Act's limitations provision, which states that "no petition may be filed for compensation" 36 months after a claimant's initial symptoms began, § 300aa-16(a)(2), constitutes "a statutory prerequisite to the filing of a petition 'for compensation under the Program,' " Brief for Petitioner 16. Thus, the Government contends, a petition that fails to comply with these time limits is not "a petition filed under section 300aa-11" and is therefore ineligible for fees under § 300aa-15(e)(1). See 675 F.3d, at 1364-1366 (Bryson, J., dissenting).
The Government's argument lacks textual support. First, as noted, there is no cross-reference to the Act's limitations provision in its fees provision, § 300aa-15(e), or the other section it references, § 300aa-11(a)(1). When these two linked sections are read in tandem they simply indicate that petitions filed with the clerk of the court are eligible for attorney's fees so long as they comply with the other requirements of the Act's fees provision. By its terms, the NCVIA requires nothing more for the award of attorney's fees. A petition filed in violation of the limitations period will not result in the payment of compensation, of course, but it is still a petition filed under § 300aa-11(a)(1). When the Act does require compliance with the limitations period, it provides so expressly. For example, § 300aa-11(a)(2)(A) prevents claimants from bringing suit against vaccine manufacturers "unless a petition has been filed, in accordance with section 300aa-16 of this title [the limitations provision], for compensation under the Program for such injury or death." (Emphasis added.) We have long held that "[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." Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (internal quotation marks omitted). The absence of any cross-reference to the limitations provision in either the fees provision, § 300aa-15(e)(1), or the instructions for initiating a compensation proceeding, § 300aa-11(a)(1), indicates that a petition can be "filed" without being "in accordance with [the limitations provision]." Tellingly, nothing in § 300aa-11(a)(1) requires a petitioner to allege or demonstrate the timeliness of his or her petition to initiate such a proceeding. Second, to adopt the Government's position, we would have to conclude that a petition like Dr. Cloer's, which was "filed" under the ordinary meaning of that term but was later found to be untimely, was never filed at all because, on the Government's reading, "no petition may be filed for compensation" late. § 300aa-16(a)(2) (emphasis added). Yet the court below identified numerous instances throughout the NCVIA where the word "filed" is given its ordinary meaning, 675 F.3d, at 1361, and the Government does not challenge this aspect of its decision. Indeed, the Government's reading would produce anomalous results with respect to these other NCVIA provisions. Consider § 300aa-12(b)(2), which provides that "[w]ithin 30 days after the Secretary receives service of any petition filed under section 300aa-11 of this title the Secretary shall publish notice of such petition in the Federal Register." If the NCVIA's limitations provision worked to void the filing of an untimely petition, then one would expect the Secretary to make timeliness determinations prior to publishing such notice or to strike any petitions found to be untimely from the Federal Register. But there is no indication that the Secretary does either of these things.
The Government asks us to adopt a different definition of the term "filed" for a single subsection so that for fees purposes, and only for fees purposes, a petition filed out of time must be treated retroactively as though it was never filed in the first place. Nothing in the text or structure of the statute requires the unusual result the Government asks us to accept. In the NCVIA, the word "filed" carries its common meaning. See Artuz, 531 U.S., at 8, 121 S.Ct. 361. That "no petition may be filed for compensation" after the limitations period has run does not mean that a late petition was never filed at all.
Our "inquiry ceases [in a statutory construction case] if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted). The text of the statute is clear: like any other unsuccessful petition, an untimely petition brought in good faith and with a reasonable basis that is filed with-meaning delivered to and received by-the clerk of the Court of Federal Claims is eligible for an award of attorney's fees.
B
The Government's position is also inconsistent with the goals of the fees provision itself. A stated purpose of the Act's fees scheme was to avoid "limit[ing] petitioners' ability to obtain qualified assistance" by making fees awards available for "non-prevailing, good-faith claims." H.R. Rep., at 22. The Government does not explain why Congress would have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-related injury and an unrelated malady, see, e.g., Smith v. Secretary of Dept. of Health and Human Servs., No. 02-93V, 2006 WL 5610517, at *6-*7 (Fed.Cl., July 21, 2006) (opinion of Golkiewicz, Chief Special Master), may have good-faith claims with a reasonable basis that will only later be found untimely.
III
The Government offers two additional lines of argument for barring the award of attorney's fees for untimely petitions. It first invokes two canons of construction: the canon favoring strict construction of waivers of sovereign immunity and the " 'presumption favoring the retention of long-established and familiar [common-law] principles.' " Brief for Petitioner 32 (quoting United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) ). Similarly, the Government also argues that the NCVIA should be construed so as to minimize complex and costly fees litigation. But as the Government acknowledges, such canons and policy arguments come into play only "[t]o the extent that the Vaccine Act is ambiguous." Brief for Petitioner 28. These "rules of thumb" give way when "the words of a statute are unambiguous," as they are here. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
Second, the Government argues that permitting the recovery of attorney's fees for untimely petitions will force special masters to carry out costly and wasteful "shadow trials," with no benefit to claimants, in order to determine whether these late petitions were brought in good faith and with a reasonable basis. We reiterate that "when [a] statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (internal quotation marks omitted). Consequently, even if the plain text of the NCVIA requires that special masters occasionally carry out such "shadow trials," that is not such an absurd burden as to require departure from the words of the Act. This is particularly true here because Congress has specifically provided for such "shadow trials" by permitting the award of attorney's fees "in any proceeding [on an unsuccessful] petition" if such petition was brought in good faith and with a reasonable basis, 42 U.S.C. § 300aa-15(e)(1) (emphasis added), irrespective of the reasons for the petition's failure, see, e.g., Caves v. Secretary of Health and Human Servs., No. 07-443V, 2012 WL 6951286, at *2, *13 (Fed.Cl., Dec. 20, 2012) (opinion of Moran, Special Master) (awarding attorney's fees despite petitioner's failure to prove causation).
In any event, the Government's fears appear to us exaggerated. Special masters consistently make fee determinations on the basis of the extensive documentation required by § 300aa-11(c) and included with the petition. Indeed, when adjudicating the timeliness of a petition, the special master may often have to develop a good sense of the merits of a case, and will therefore be able to determine if a reasonable basis exists for the petitioner's claim, including whether there is a good-faith reason for the untimely filing. In this case, for example, the Chief Special Master conducted a "review of the record as a whole," including the medical evidence that would have supported the merits of Dr. Cloer's claim, before determining that her petition was untimely. Cloer, 2008 WL 2275574, at *1-*2, *10.
The Government also argues that permitting attorney's fees on untimely petitions will lead to the filing of more untimely petitions. But the Government offers no evidence to support its speculation. Additionally, this argument is premised on the assumption that in the pursuit of fees, attorneys will choose to bring claims lacking good faith or a reasonable basis in derogation of their ethical duties. There is no basis for such an assumption. Finally, the special masters have shown themselves more than capable of discerning untimely claims supported by good faith and a reasonable basis from those that are specious. Supra, at 1896.
* * *
We hold that an NCVIA petition found to be untimely may qualify for an award of attorney's fees if it is filed in good faith and there is a reasonable basis for its claim.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Justice SCALIA and Justice THOMAS join all but Part II-B of this opinion.
The relevant paragraph provides:
"(1) In awarding compensation on a petition filed under section 300aa-11 of this title the special master or court shall also award as part of such compensation an amount to cover-
"(A) reasonable attorneys' fees, and
"(B) other costs,
"incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." § 300aa-15(e).
For simplicity, we refer to attorney's fees and costs as simply attorney's fees.
The en banc dissent reasoned that a dismissal for untimeliness does not constitute a judgment on the merits of a petition. See 675 F.3d 1358, 1365 (C.A.Fed.2012) (opinion of Bryson, J.). That argument is not pressed here by the Government, which acknowledged at oral argument that dismissals for untimeliness result in judgment against the petitioner. Tr. of Oral Arg. 12-13.
The Government suggests that giving the words of their statute their plain meaning would produce incongruous results; notably, it might indicate that "a failure to comply with the limitations provision would not even bar recovery under the Compensation Program itself because 42 U.S.C. 300aa-13 ('Determination of eligibility and compensation') does not expressly cross-reference the limitations provision." Brief for Petitioner 18. The Government's argument assumes that both sections are equivalently affected by absence of a cross-reference. This is incorrect. The Government is right that because "the law typically treats a limitations defense as an affirmative defense," John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008), a failure to apply the limitations provision to the section outlining the conditions under which compensation should be awarded would be "contrary to [the Act's] plain meaning and would produce an absurd result," Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 252, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010). In contrast, giving the Act's fees provision its plain meaning would produce no such absurd result. It would simply allow petitioners to recover attorney's fees for untimely petitions.
If the NCVIA's limitations period were jurisdictional, then we might reach a different conclusion because the Chief Special Master would have lacked authority to act on Dr. Cloer's untimely petition in the first place. But the Government chose not to seek certiorari from the Federal Circuit's en banc decision holding that the period is nonjurisdictional, see Cloer v. Secretary of Health and Human Servs., 654 F.3d 1322, 1341-1344 (2011), and the Government now acknowledges that the NCVIA contains no "clear statement" that § 300aa-16's filing deadlines carry jurisdictional consequences. See Reply Brief 7 (discussing Sebelius v. Auburn Regional Medical Center, 568 U.S. ----, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013) ).
Dr. Cloer's petition was published, and remains, in the Federal Register. See 70 Fed.Reg. 73011, 73014 (2005).
See, e.g., Wells v. Secretary of Dept. of Health and Human Servs., 28 Fed.Cl. 647, 649-651 (1993) ; Rydzewski v. Secretary of Dept. of Health and Human Servs., No. 99-571V, 2008 WL 382930, at *2-*6 (Fed.Cl., Jan. 29, 2008) (opinion of Moran, Special Master); Hamrick v. Secretary of Health and Human Servs., No. 99-683V, 2007 WL 4793152, at *2-*3, *5-*9 (Fed.Cl., Nov. 19, 2007) (opinion of Moran, Special Master).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
62
] |
SILESIAN-AMERICAN CORP. et al. v. CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.
No. 6.
Argued May 1, 1947.
Reargued November 12, 1947.
Decided December 8, 1947.
Leonard P. Moore argued the cause for petitioners. With him on the briefs were George W. Whiteside and William Gilligan.
James C. Wilson argued the cause on the original argument for respondent. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Harry LeRoy Jones, M. S. Isenbergh, James L. Morrisson and John Ward Cutler.
James L. Morrisson reargued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and M. S. Isenbergh.
Me. Justice Reed
delivered the opinion of the Court.
The Alien Property Custodian on November 17, 1942, executed Vesting Order No. 370. This order was issued under the authority of the Trading with the Enemy Act, 40 Stat. 411, as amended, and Executive Order No. 9095, as amended, and in terms vested the property therein described in the Alien Property Custodian in the interest and for the benefit of the United States. The order found the property to belong to a national of Germany. The property covered by the order was two blocks of stock — one common, one preferred — in the Silesian American Corporation, a Delaware corporation, hereinafter called Silesian. The stock, prior to August 31, 1939, stood in the stock book of Silesian in the name of Non Ferrum Gesellschaft zur Finanzierung von Unternehmungen des Bergbaues und der Industrie der Nichteisenmetalle, Zurich, Switzerland, a Swiss corporation, hereinafter referred to as the Non Ferrum Company. Non Ferrum, it was determined by the Custodian’s order, held the stock for the benefit of Bergwerksgesellschaft Georg von Giesche’s Erben, a German corporation. The certificates, it is asserted, had been deposited as security for loans with a group of banks, all of which apparently were chartered by Switzerland and are hereinafter referred to as the Swiss Banks.
To carry out the purpose of his vesting order, the Custodian directed Silesian to cancel on its books the outstanding Non Ferrum certificates, above referred to, and to issue in lieu thereof new certificates to the Custodian. This controversy revolves around the objection of Silesian so to act because the Custodian did not have physical possession of the pledged Non Ferrum certificates so as to be able to surrender them for cancellation, as the corporation’s by-laws required. Silesian feared liability to the holders of the Non Ferrum certificates for issuing other certificates in such circumstances.
Silesian had been a debtor under Chapter X of the Bankruptcy Act since July 30, 1941. It therefore asked the Bankruptcy Court for instructions as to its compliance with the Custodian’s direction. The other petitioner here, Silesian Holding Company, a Delaware corporation also, appeared and throughout has remained as a party to this litigation. It is the majority stockholder of Silesian but claims no different or other interest in the issue than Silesian. For the purpose of this case, it may and will be treated as having no more interest in the issue than Silesian has. The Swiss Banks asked the Reorganization Court to give instructions to the Debtor that no new shares be issued until the controversy between the Swiss Banks and the Custodian could be “fully, firmly and finally adjudicated.” This prayer was based on a verified answer to Silesian’s request for instruction, which answer alleged that the “Swiss Banks were the owners of the 'Non Fer-rum’ stock.” The Swiss Banks notified Silesian that any issue of new certificates representing the Non Ferrum stock, with or without court direction, would be at Silesian’s risk. Affidavits supporting the objection of the Swiss Banks to instructions to Silesian to issue the new certificates to the Custodian were filed with the District Court. These affidavits declared the Non Ferrum stock was pledged, prior to 1938, to groups of Swiss banks. It is not clear whether they are the same institutions that are named in the answer of the Swiss Banks to the Debtor’s request for instructions. For the purpose of this case, we assume that the groups are identical.
The District Court instructed the debtor to issue new certificates to the Alien Property Custodian. The court said:
“The vesting order of the Custodian found that the stock was held for the benefit of an enemy. The statutory discharge from liability, § 5b or § 7e, [Trading with the Enemy Act] protects the debtor corporation and relieves it of doubt in the premises.”
The court added:
“Whatever may be the interests or rights of the Swiss banks, they cannot be considered here. Hearsay statements, unsupported by documents, allege that these banks are pledgees of the stock. These statements create no issue for our consideration. The banks are parties herein only to the extent that they have been recognized in the reorganization proceeding as possible owners of a claimed interest which they have never been called upon to prove. They are not here because of any action taken against them or any recognition given them by the Custodian or even by reason of any established interest in the stock.”
No appeal to the Circuit Court of Appeals was taken by the Swiss Banks. They do not appear here as parties to this writ of certiorari or otherwise. We therefore express no opinion as to the effect of the order and decision of the District Court upon the claims of the Swiss Banks as pledgees of the Non Ferrum stock. See SilesianAmerican Corporation v. Markham, 156 F. 2d 793, 795.
An appeal was taken to the Circuit Court of Appeals by Silesian. That court affirmed the order of the Bankruptcy Court. We first denied a petition for certiorari and then granted it so that this case might be considered in relation to other issues, thereafter presented here, in connection with the administration of the Trading with the Enemy Act. 329 U. S. 730 and 330 U. S. 852; Clark v. Uebersee Finanz-Korporation, 330 U. S. 813.
It was held by the Circuit Court of Appeals that Silesian had no “standing vicariously” to assert the interests of its shareholders. We agree. Silesian has no legal interest in the issue as to the ownership of its stock. It follows that Silesian has no standing to represent the interests of the pledgees of the Non Ferrum shares, if that is the present position of those shares. See Anderson Nat. Bank v. Luckett, 321 U. S. 233, 242. This reduces petitioners’ objection to the order directing the issue of new certificates in favor of the Custodian for the Non Ferrum stock to the claim that the sections of the Trading with the Enemy Act under which the Custodian acted are invalid as applied to Silesian in these circumstances. If the provisions do not authorize the order and direction, Silesian, over its own objections, cannot be compelled to obey.
The Custodian vested the stock in himself by virtue of the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, including, of course, § 5 (b) (l), and Executive Order No. 9095, C. F. R. Cuna. Supp. 1121, as amended 1174. This property was vested during war. There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property. United States v. Chemical Foundation, 272 U. S. 1, 11. Nor can there, we think, be any doubt that any property in this country of any alien may be summarily reduced to possession by the United States in furtherance of the war effort. Every resource within the ambit of sovereign power is subject to use for the national defense. This section was amended during war to cover the taking of alien property. It is limited to a war or a declared emergency period. While a natural hesitancy exists against so interpreting the war power clause as to expand its scope to cover incidents not intimately connected with war, we think reasonable preparation for the storm of war is a proper exercise of the war power. This seizure of alien property, in a time of emergency, is of that character. We need not consider whether the general welfare clause could be a source of congressional power over alien property. This taking may be done as a means of avoiding the use of the property to draw earnings or wealth out of this country to territory where it may more likely be used to assist the enemy than if it remains in the hands of this government. Or the commandeered property of a friendly alien may be used to prosecute the war. The problems of compensation may await the judicial process. Central Union Trust Co. v. Garvan, 254 U. S. 554, 567-68. War brooks no delay. The Constitution imposes none.
The section, 5 (b) (1), and Executive Order under which the Custodian acted authorized the vesting in him by his order of the property of a foreign national. This description covered stock ownership of a foreign national in Silesian. The fact that the certificates did not come into the hands of the Custodian is immaterial. They are evidences of the property right of the foreign national in Silesian that is subject to be vested in the Custodian by the Act. See Great Northern R. Co. v. Sutherland, 273 U. S. 182. Section 5 (b) (1) specifically states, “and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.” See note 2 above. Since the Custodian was authorized to vest and to sell the property by § 5, we think that the power to require the issue of new certificates was incidental to that authority. As one purpose of § 5 (b) (1) was to authorize the seizure of the interests of foreign nationals in domestic corporations so that such interest could be used or sold, such authority to participate in management or to transfer the stock interests would be frustrated if customary evidences of the ownership could not be required from the corporation. The power of the Custodian to demand the certificates is plain. The correlative duty to obey the order equally so, if the effect of obedience does not do violence to other valid requirements of the statute or make Silesian liable to bona fide holders of the old stock.
Silesian in specific terms is protected from any liability to bona fide holders such as Non Ferrum or the Swiss Banks by reason of any infirmity in the Custodian’s vesting order or his direction to Silesian to issue new certificates for the Non Ferrum stock. The applicable language of § 7 (e) of the Trading with the Enemy Act, 40 Stat. 418, and § 5 (b) (2), as amended, 55 Stat. 839-40, are set out in the margin. But Silesian argues that protection cannot follow from an order contrary to the Trading with the Enemy Act. The order to issue the new certificates is said to be unauthorized because it allows the property of friendly alien pledgees, the Swiss Banks, to be taken contrary to § 8 (a). Section 8 (a) is said to be a limitation on the Custodian’s power to seize property pledged to “any person not an enemy or ally of enemy.” It is suggested that if § 7 (e) or § 5 (b) (2) is interpreted to require Silesian to carry out the Custodian’s direction, even though this seizure is contrary to § 8 (a), a way has been found to “coerce an interested party [Silesian] into compliance with his [the Custodian’s] unlawful actions.” The answer to this contention is made by the Circuit Court of Appeals. It makes unnecessary any discussion of the protection afforded Silesian by § 7 (e) and § 5 (b) (2) from the claims of a pledge of stock exempted by statute from seizure. 156 F. 2d at 797. When § 5 (b) (1) was enacted as an amendment in the First War Powers Act of 1941, it authorized the taking of any property or interest therein of any foreign national. This broadening of the scope of the Custodian’s power to vest so as to include interests of friendly aliens in property includes the power to vest the interest which friendly aliens have from pledges. As the Circuit Court of Appeals said, p. 797:
“Any other interpretation of the section would make the pledges of friendly aliens a wholly irrational exception to the general purpose to subject all alien interests to seizure.”
Therefore, as we hold that § 5 (b) (1) rendered § 8 (a) inapplicable to the property of friendly aliens, the order of the Custodian was valid and Silesian’s objection disappears.
Finally there is the argument that Silesian cannot be compelled to issue the new certificates because the friendly aliens who claim interests in the Non Ferrum stock may not succeed in recovering the just compensation for the taking. See Russian Volunteer Fleet v. United States, 282 U. S. 481, 489. The Constitution guarantees to friendly aliens the right to just compensation for the requisitioning of their property by the United States. Russian Fleet v. United States, supra. We must assume that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken and Silesian is protected by the exculpatory clauses of the Act from any claim from its alien stockholders.
Judgment affirmed.
The Chief Justice took no part in the consideration or decision of this case.
They are Union Bank of Switzerland, La Roche & Company, Banque Cantónale de Berne, and Aktiengesellschaft Leu & Company.
Trading with the Enemy Act, 40 Stat. 411, as amended by the First War Powers Act of 1941, 55 Stat. 839, § 5 (b) (1):
“During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise—
“(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest,
by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; . . . .”
Art. I, §8, cl. 11.
Compare with the statement below: “The power of Congress to seize and confiscate enemy property rests upon Art. 1, § 8, Clause 11 of the Constitution. Stoehr v. Wallace, supra, 255 U. S. at page 242 . . . ; United States v. Chemical Foundation, Inc., 272 U. S. 1, 11 ... . Whether it exists at international law may be doubted; but nobody contends that the war power of Congress includes the seizure of the property of friendly aliens. The amendment of § 5 (b) must therefore rest upon some other power of Congress, not only for that reason, but because the amendment itself was expressly not limited to time of war (although it was in fact passed flagrante bello) but was to go into effect upon any ‘national emergency declared.’ It can rest upon Art. 1, § 8, Clause 1: i. e. upon the power ‘to provide for the common Defence and general Welfare’; indeed, so far as we can see, the debtor does not challenge the power itself, but its exercise. It complains that the amendment delegates an unrestricted discretion to the President, and does not provide ‘just compensation’ for seizures.” 156 F. 2d 793, 796.
40 Stat. 418, § 7 (e):
“No person shall be held liable in any court for or in respect to anything done or omitted in pursuance of any order, rule, or regulation made by the President under the authority of this Act.”
55 Stat. 840, § 5 (b) (2):
“Any payment, conveyance, transfer, assignment, or delivery of property or interest therein, made to or for the account of the United States, or as otherwise directed, pursuant to this subdivision or any rule, regulation, instruction, or direction issued hereunder shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same; and no person shall be held liable in any court for or in respect to anything done or omitted in good faith in connection with the administration of, or in pursuance of and in reliance on, this subdivision, or any rule, regulation, instruction, or direction issued hereunder.”
40 Stat. 418-19, § 8 (a):
“That any person not an enemy or ally of enemy holding a lawful mortgage, pledge, or lien, or other right in the nature of security in property of an enemy or ally of enemy which, by law or by the terms of the instrument creating such mortgage, pledge, or lien, or right, may be disposed of on notice or presentation or demand . . . may continue to hold said property, and, after default, may dispose of the property .... Provided further, That if, on any such disposition of property, a surplus shall remain after the satisfaction of the mortgage, pledge, lien, or other right in the nature of security, notice of that fact shall be given to the President pursuant to such rules and regulations as he may prescribe, and such surplus shall be held subject to his further order.”
The Circuit Court of Appeals said: “Thus it can be argued with much force that, unless some provision can be found by which he may secure compensation, § 5 (b) is unconstitutional; and, if so, it would at best be doubtful whether the protection given by subsection (2) would be valid.” 156 F. 2d 793, 797.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
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"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
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"Internal Revenue Service, Collector, Commissioner, or District Director of",
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"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
4
] |
UNITED STATES v. HILTON HOTELS CORP.
No. 528.
Argued February 26, 1970—
Decided April 20, 1970
Assistant Attorney General Walters argued the cause for the United States. With him on the brief were Solicitor General Griswold, Matthew J. Zinn, Gilbert E. Andrews, and Stuart A. Smith.
Milton A. Levenfeld argued the cause for respondent. With him on the brief were Burton W. Ranter and Richard M. Kates.
Mr. Justice Marshall
delivered the opinion of the
This is the companion case to Woodward v. Commissioner, ante, p. 572, and presents a similar question involving the tax treatment of appraisal litigation expenses.
In 1953 taxpayer Hilton Hotels Corporation, which owned close to 90% of the common shares of the Hotel Waldorf-Astoria Corporation, determined to merge the two companies. Hilton retained a consulting firm to prepare a merger study to determine a fair rate of exchange between Hilton stock and Waldorf stock. After this study was completed, on November 12, 1953, Hilton and Waldorf entered into a merger agreement under which Hilton would be the surviving corporation, and 1.25 shares of Hilton stock would be offered for each outstanding Waldorf share not already held by Hilton. On December 28, Hilton voted its Waldorf stock to approve the merger by the requisite majority. Prior to the vote, the holders of about 6% of the Waldorf shares had filed with Waldorf their written objections to the merger, and demanded payment for their stock, pursuant to § 91 of the New York Stock Corporation Law.
On December 31, 1953, Hilton filed the merger agreement and the certificate of consolidation with the Secretary. of State of New York, thus consummating the merger under New York law. On January 7, 1954, Hilton, made a cash offer to the dissenting Waldorf shareholders, which they rejected. The dissenters then began appraisal proceedings in the New York courts, pursuant to § 21 of the New York Stock Corporation Law.
Between January and May 1954, Hilton asked its consulting firm to value the Waldorf stock as of December 27, 1953, the day prior to the Waldorf shareholders’ vote approving the merger. Hilton also obtained the services of lawyers, and other professional services, in connection with the appraisal litigation. The appraisal proceeding was finally terminated in June 1955, when the state court approved a settlement agreed to by the parties.
Hilton deducted the fees paid to the consulting firm, and the cost of legal and other professional services arising out of the appraisal proceeding, as ordinary and necessary business expenses under § 162 of the Internal Revenue Code of 1954, 26 U. S. C. § 162. The Commissioner of Internal Revenue disallowed the deduction on the ground that the payments were capital expenditures. Hilton paid the tax and sued for a refund in the District Court. In the course of that suit, Hilton conceded, and the court held, that the payments to the consulting firm for the pre-merger determination of fair value were a nondeductible capital outlay. But the District Court held that the fees and costs related to the post-merger appraisal proceeding itself were deductible. 285 F. Supp. 617 (D. C. N. D. Ill. 1968). The Court of Appeals affirmed, 410 F. 2d 194 (C. A. 7th Cir.), and we granted certiorari, 396 U. S. 954 (1969). We reverse.
The Court of Appeals recognized that expenses of acquiring capital assets are capital expenditures for tax purposes. However, the court believed that the "primary purpose” test of Rassenfoss v. Commissioner, 158 F. 2d 764 (C. A. 7th Cir. 1946), should be applied to determine whether the appraisal proceeding was sufficiently related to the merger or the stock acquisition. Noting that “the proceeding was not necessary to the consummation of the merger nor did it function primarily to permit the acquisition of the objecting holders' shares,” the court found that “the paramount purpose of the appraisal proceeding was to determine the fair value of the dissenting stockholders’ shares in Waldorf.” 410 F. 2d, at 197.
As we held in Woodward, supra, the expenses of litigation that arise out of the acquisition of a capital asset are capital expenses, quite apart from whether the taxpayer’s purpose in incurring them is the defense or perfection of title to property. The chief distinction between this case and Woodward is that under New York law title to the dissenters’ stock passed to Waldorf as soon as they formally registered their dissent, placing them in the relationship of creditors of the company for the fair value of the stock, whereas under Iowa law passage of title was delayed until after the price was settled in the appraisal proceeding.
This is a distinction without a difference. The functional nature of the appraisal remedy as a forced purchase of the dissenters’ stock is the same, whether title passes before or after the price is determined. Determination and payment of a price is no less an element of an acquisition by purchase than is the passage of title to the property. In both Woodward and this case, the expenses were incurred in determining what that price should be, by litigation rather than by negotiation. The whole process of acquisition required both legal operations — fixing the price, and conveying title to the property — and we cannot see why the order in which those operations occurred under applicable state law should make any difference in the characterization of the expenses incurred for the particular federal tax purposes involved here.
Hilton also argues that the appraisal costs cannot be considered as its own capital expenditures, since Waldorf acquired the shares (on December 28) before the merger (on December 31). This argument would carry too far. It is true that title to the dissenters’ stock passed to Waldorf before that corporation was merged into the surviving corporation, Hilton. But the stock was never paid for by Waldorf; rather Hilton assumed all of Waldorf’s debts under the merger agreement, and finally paid for the stock after the appraisal proceeding was settled. If Waldorf’s acquisition of the minority stock interest was not a capital transaction of Hilton’s, then Hilton’s payment for the stock itself, as well as the expenditures made in fixing that price, would lose its character as a capital expenditure of Hilton’s. But Hilton concedes that the payment for the stock was a capital expenditure on its part. The debts that Hilton inherited from Waldorf retained their capital or ordinary character through the merger, and so did the expenditures for fixing the amount of those debts.
In short, the distinctions urged between this case and Woodward are not availing. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to dismiss the complaint.
It is so ordered.
Section 91, subd. 9, of the New York Stock Corporation Law provides that a corporate consolidation becomes effective upon the filing of the requisite certificate. Section 21, subd. 6, of the same law provides that as of the time of a merger vote, a dissenting shareholder loses all rights as such, except the right to receive payment for the value of his shares.
Iowa Code §491.25 (1966) provides that majority shareholders voting for renewal "shall have three years from the date such action for renewal was taken in which to purchase and pay for the stock voting against such renewal ...” There is no intimation in the statute itself, nor in Iowa cases construing it cited by petitioners in Woodward, supra, that dissenters lose any of their rights as shareholders, or that title passes to the majority shareholders, prior to the actual purchase of the dissenters’ shares.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
68
] |
NATIONAL LABOR RELATIONS BOARD v. JONES & LAUGHLIN STEEL CORP.
No. 418.
Argued March 7, 1947. —
Decided May 19, 1947.
Ruth Weyand argued the cause for petitioner. With her on the brief were Acting Solicitor General Washington, Gerhard P. Van Arkel, Morris P. Glushien and Mozart G. Ratner.
John C. Bane, Jr. argued the cause for respondent. With him on the brief were H. Parker Sharp and Paul J. Winschel.
Arnold F. Bunge filed a brief for the Packard Motor Car Company, as amicus curiae, in support of respondent.
Mr. Justice Murphy
delivered the opinion of the Court.
Like Labor Board v. Atkins & Co., ante, p. 398, this case involves the rights of militarized plant guards under the National Labor Relations Act, 29 U. S. C. § 151 et seq. But certain problems are raised here which are not present in the Atkins case.
Respondent owns and operates several large steel manufacturing works and was engaged in the production of war materials during the recent war. At respondent’s Otis Works at Cleveland, Ohio, about 4,700 individuals are employed. Production and maintenance employees constitute the great bulk of these workers. But there is also included in the total a group of guards and watchmen, numbering about sixty men normally.
A union affiliated with the United Steelworkers of America, C. I. 0., has been the exclusive bargaining agent for the production and maintenance employees. Under a contract made with respondent late in 1942, this union disclaimed any representation of “Foremen or Assistant Foremen in charge of any classes of labor, watchmen, salaried employees and nurses.” On March 15,1943, this union filed a petition for investigation and certification of representatives pursuant to § 9 (c) of the Act, in which it sought to be certified as the collective bargaining representative of the guard force. A hearing was then held. Respondent claimed that a unit composed of these guards was inappropriate because they “perform certain assigned work that is strictly representative of management.” Respondent also claimed that any allegation by the union that a unit including watchmen is appropriate was “a direct contravention” of the 1942 contract. And it was further alleged that any unionization of watchmen or guards was particularly inappropriate during a time of war, that their duties “do not differ greatly from the duties performed by members of a city, county or state police force” and that these guards had been sworn in as auxiliary military police of the United States Army.
The testimony at the hearing showed that there were currently 72 plant protection employees. Of these, 58 were patrolmen whose sole duty was to protect and guard the Otis Works; there were 2 firemen to maintain the fire equipment; 2 dump laborers were assigned to work at a refuse dump while watching that section of the plant; and there were 8 lieutenants and 2 fire captains supervising the others. All of them were carried on respondent’s payroll and were under respondent’s control as to pay, benefits and conditions of employment. And, as respondent had alleged, they had been sworn in as civilian auxiliaries to the military police of the United States Army, in the same manner and under the same conditions as detailed in the Atkins case.
On May 3,1943, the Board issued its decision and direction of election. 49 N. L. R. B. 390. It found that “all patrolmen, watchmen, and firemen, including dump laborers employed by the Company at its Otis Works, but excluding lieutenants, captains, and supervisors” constituted an appropriate unit and that an election should be held by the employees in this unit to determine if they desired to be represented by the Steelworkers union. It rejected all of respondent’s contentions, pointing out among other things that the union, while representing production and maintenance employees, intended to bargain for the plant guards and watchmen as a separate unit.
The election resulted in the selection of the Steelworkers union as the bargaining representative of the unit in question. The union was certified as the exclusive representative of the unit, respondent refused to bargain with the union and the Board issued its complaint based upon that refusal. On December 2, 1943, the Board reaffirmed the appropriateness of the unit and found that respondent had committed unfair labor practices in refusing to bargain. The usual order was entered. 53 N. L. R. B. 1046.
The Sixth Circuit Court of Appeals denied the Board’s petition for a decree enforcing its order. 146 F. 2d 718. While upholding the Board’s determination that the militarized guard forces were employees within the meaning of the National Labor Relations Act, the court felt that the unit selected for bargaining purposes was inappropriate and reflected a disregard by the Board of the national welfare. In the eyes of that court, the Board’s fatal error was its authorizing the militarized guards to join the same union which represented the production and maintenance employees because “when they were inducted into the Unions and became subject to their orders, rules and decisions, the plant protection employees assumed obligations to the Unions and their fellow workers, which might well in given circumstances bring them in conflict with their obligation to their employers, and with their paramount duty as militarized police of the United States Government.” 146 F. 2d at 722.
The Board filed a petition in this Court for a writ of certiorari. As in the Atkins case, the Board pointed out that the plant protection employees had been demilitarized at a date (May 29, 1944) subsequent to the refusals to bargain, but urged that this fact did not make the case moot. We granted the writ of certiorari at the same time as we granted the writ in the Atkins case, vacated the judgment below and remanded the cause to the Circuit Court of Appeals “for further consideration of the alleged changed circumstances with respect to the demilitarization of the employees involved, and the effect thereof on the Board’s orders.” 325 U. S. 838.
The Board and the respondent then entered into a stipulation relative to the dates and circumstances of the demilitarization of the guards. From this stipulation it appeared that the qualifications, strength, functions and duties of the guards continued to be the same after demilitarization as before. Also included in the stipulation were facts showing that both before and after the period of militarization, August 5,1942, to May 29,1944, the guards were commissioned, sworn and bonded as private policemen of the City of Cleveland and exercised “the legal powers of peace officers in their work as plant guards.” It was further stipulated that because of “the magnitude and other characteristics of the Otis Works, its police protection by the ordinary police of the City of Cleveland is not practical or feasible; and, as a result, for a great many years, the police protection of the Works and the enforcement of law, peace and good order therein has been delegated wholly to the plant guard force. For similar reasons, the work of preventing and extinguishing fires has been in large part the responsibility of the guard force, rather than that of the municipal fire department.”
The Board filed a motion in the Circuit Court of Appeals for a decree enforcing its order. That court denied the motion and held that the facts concerning both the demilitarization and the deputization were to be considered as though they had been presented at the hearing before the Board; on that basis, the court reaffirmed its belief that the guards were employees within the meaning of the Act, but concluded that in view of the “drastic police powers” exercised by the guards, it was “improper for the Board to permit their organization by the same union which represents the production employees.” 154 F. 2d 932,934.
Our decision in the Atkins case makes clear that the demilitarization of the guards did not render this case moot. The order was a continuing command which may be effectuated in the future. But unless the order was valid when it was issued, there is no basis whatever for it and no court can decree its enforcement in the future. Hence its validity must be judged as of the time when it was issued, a time when the guards were still militarized. This is not to say, however, that events subsequent to demilitarization are irrelevant in deciding whether the order should be enforced. All that we hold is that demilitarization in and of itself is not enough to render the order or the case moot.
The Atkins decision likewise disposes of any issues relating to the effect of militarization upon the status of the guards as employees within the meaning of § 2 (3) of the National Labor Relations Act. To that extent, the Board’s order here was plainly valid. Unanswered by the Atkins decision, however, is the question whether the militarization of the plant guards precluded the Board from grouping the guards in a separate unit and permitting them to choose as their bargaining representative a union which also represented production and maintenance employees. To that issue, which is the primary one raised by this case, we now turn.
The Board, of course, has wide discretion in performing its statutory function under § 9 (b) of deciding “the unit appropriate for the purposes of collective bargaining . . . .” Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146. It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate. Its determinations in these respects are binding upon reviewing courts if grounded in reasonableness. May Stores Co. v. Labor Board, 326 U. S. 376, 380. A proper determination as to any of these matters, of course, necessarily implies that the Board has given due consideration to all the relevant factors and that it has correlated the policies of the Act with whatever public or private interests may allegedly or actually be in conflict.
Thus, in determining the proper unit for militarized guards and in deciding whether they should be permitted to choose the same union that represents production and maintenance employees, the Board must be guided not alone by the wishes of the guards or the union or by what is appropriate in the case of non-militarized guards. It must also give due consideration to the military duties and obligations of the guards and their possible relationships to a union representing other employees; it must consider what limitations, if any, on the normal freedom to choose whatever representative the guards may desire are necessitated by the war effort.
It is clear that the Board has given these matters due consideration. It has not acted in this case in disregard of the national welfare. Sanctioning the creation of a separate unit of respondent’s guards and permitting them to select a union of their own choosing, a union which happened to be the representative of the production and maintenance employees, are indicative of a considered, mature judgment on the Board’s part. The problem has been raised in many cases before the Board and its conclusion is in accord with that reached by the War Department.
In Chrysler Corp., 44 N. L. R. B. 881, Dravo Corp., 52 N. L. R. B. 322, and Armour and Co., 63 N. L. R. B. 1200, the Board has spelled out the various considerations that have led it to adopt the policy applied in this case. Those cases reveal the Board’s belief that freedom to choose a bargaining agent includes the right to select an agent which represents other employees in a different bargaining unit. This principle may safely be applied to militarized guards, in the Board’s opinion, since the collective bargaining process is flexible enough to allow for the increased responsibilities placed upon the militarized guards. And the Board has concluded that the remedy for inefficiency or wilful disregard or neglect of duty on the part of such guards lies in the power of the employer to discipline or discharge them and in the power of the military authorities to take whatever steps may be necessary to protect the public interest. Moreover, the Board has discovered no serious question as to any conflict between loyalties to the Army and to the union, the Board finding no basis to assume that membership in a union tends to undermine the patriotism of militarized guards or that loyalty to the United States would be secondary in their minds to loyalty to the union. But one restriction is placed upon the statutory freedom of the militarized guards. The Board insists that they be placed in separate bargaining units so that they may be better able to function within the military sphere and so that the military authorities may be able to exercise greater control over them.
This policy of the Board coincides with that expressed in the regulations of the War Department. As we pointed out in the Atkins case, ante, p. 398, the military authorities have given full sanction to collective bargaining on the part of militarized guards, provided only that such action does not interfere with their military obligations. Paragraph 6h (2) of Circular No. 15, issued on March 17, 1943, by Headquarters, Army Service Forces, acknowledges with approval the Board’s policy of permitting militarized guards to be represented in collective bargaining with the management by a bargaining unit other than that composed of the production and maintenance workers, even though both bargaining units may be affiliated with the same labor organization. A clarifying memorandum of the War Department, dated July 10, 1943, reiterates the War Department attitude still further: “In the event that plant guards enrolled as Auxiliary Military Police desire to be represented in collective bargaining with the management, they should be represented by a bargaining unit other than that representing the production and maintenance workers. However, in such event, both bargaining units may be affiliated with the same trade-union local, provided they are, in fact, separate bargaining units.”
We are unable to say that the policy formulated by the Board is without reason. When the employer retains unfettered power to fix the wages, hours or other working conditions of militarized guards, the guards stand in the same relation to the employer regarding those matters as do production and maintenance employees. In disputes with the employer over those matters, they suffer from the same inequality of bargaining power as suffered by other unorganized employees; the appropriateness and need of collective bargaining on their part through freely chosen representatives are equally as great. But to prevent them from choosing a union which also represents production and maintenance employees is to make the collective bargaining rights of the guards distinctly second-class. Such a union may be the only one willing and able to deal with the employer. Its experience and acquaintance with the employer and the plant may make it specially qualified to bargain for the guards. The guards might thus be deprived of effective bargaining rights if they are denied the right to choose such a union. Freedom to choose, in this statutory setting, must mean complete freedom to choose any qualified representative unless limited by a valid contrary policy adopted by the Board.
After deliberation, the Board has concluded that this freedom can safely be recognized to the fullest extent as to militarized guards, provided only that they be placed in separate bargaining units. We cannot say that this conclusion is one so lacking in an appreciation of the military necessities of the situation that we should voice our disapproval and substitute our own views of public policy. It is significant that the Board, in weighing the military requirements against the normal policies of the Act, has arrived at a result which coincides with that reached by the War Department. The latter agency has been satisfied that militarized guards can safely join and choose unions representing other employees without impairing their loyalty to the United States or their ability to perform their military duties satisfactorily. We assume that attitude was adopted after a full consideration of all the military necessities, matters which are peculiarly within the competence and knowledge of the War Department. In light of. that fact, it is impossible to say that a civilian agency erred in failing to insist upon what the military experts found to be unnecessary. To prohibit militarized guards from joining or choosing unions representing production and maintenance workers on grounds of military necessity is to erect limitations which not even those most familiar with the military situation thought essential or desirable. And in this nation, the statutory rights of citizens are not to be readily cut down on pleas of military necessity, especially pleas that are unsupported by military authorities. Certainly it would take more than the speculation and theories advanced by the court below to undermine the foundation of the policy adopted in this respect by the Board.
Moreover, the experience of the Board has revealed none of the dire consequences which the court below feared might flow from the application of the policy in question. 146 F. 2d at 722-723. In its brief before us, the Board has stated that it has certified bargaining representatives for units of militarized guards in more than 105 cases; in more than 80 of these cases, the certified union also represented a separate bargaining unit of other employees of the same employer. Employer recognition of the unions, collective bargaining and contractual relations have resulted in many instances. Yet the Board states that it has received “no indication from any source that the dangers to the public interest and particularly to the war effort which the courts below thought to inhere in that policy have in fact materialized in any case.”
One final matter remains. After the Board’s order was issued and after the guards at respondent’s Otis Works were demilitarized, the guards were deputized by the police authorities of the City of Cleveland. The Board claims that since this matter was not raised before it, the court below was precluded by § 10 (e) of the Act from considering the effect of the deputization upon the propriety of enforcing the Board’s order. Labor Board v. Newport News Co., 308 U. S. 241, 249-250; Marshall Field & Co. v. Labor Board, 318 U. S. 253; Labor Board v. Cheney Lumber Co., 327 U. S. 385.
But the provision of § 10 (e), that “No objection that has not been urged before the Board, its member, agent or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances,” quite obviously refers to objections that might have been but were not raised in the original proceeding before the Board. In this case, however, the deputization of the guards occurred after the Board had concluded its hearing and issued its order and after the court below had refused the first time 4o enforce the order. It was thus a matter which could not have been raised before the Board. And the failure of respondent to raise the then non-existent issue before the Board could not deprive the court below of power to consider the issue once it did come into existence. See Labor Board v. Blanton Co., 121 F. 2d 564, 571.
When circumstances do arise after the Board’s order has been issued which may affect the propriety of enforcement of the order, the reviewing court has discretion to decide the matter itself or to remand it to the Board for further consideration. For example, where the order obviously has become moot, the court can deny enforcement without further ado; but where the matter is one involving complicated or disputed facts or questions of statutory policy, a remand to the Board is ordinarily in order. In this case, however, the Board and the respondent have stipulated the facts concerning the deputization of the guards. The only issue is whether the deputization is so inconsistent with the policies of the Act that the statutory guarantees must be denied to the guards and the enforcement of the Board’s order refused. That issue is one normally to be determined by the Board in the first instance, it being the function of the Board rather than the courts initially to correlate the policies of the Act with conflicting interests. But we do not believe that a remand is necessary under the special circumstances of this case.
The Board has frequently considered the status of plant guards who have been deputized as deputy sheriffs or special police. Where the private employer retains the right to fix the wages, hours or other working conditions of such guards, the Board’s uniform conclusion has been that they are employees of the private employer and that they retain their rights under the National Labor Relations Act. See, e. g., Luckenbach Steamship Co., 2 N. L. R. B. 181, 189; American-Hawaiian Steamship Co., 10 N. L. R. B. 1355, 1363-1364; American Brass Co., 41 N. L. R. B. 783, 785; Bethlehem-Fair field Shipyard, Inc., 61 N. L. R. B. 901, 905-906; Standard Steel Spring Co., 62 N. L. R. B. 660, 662-663. As in the case of militarized guards, the Board has found no evidence that when deputized guards join unions or engage in collective bargaining through freely chosen representatives their honesty, their loyalty to police authorities, or their competence to execute their police duties satisfactorily is undermined. It is sufficient, in the Board’s judgment, to protect the special status of these guards by segregating them in separate bargaining units.
We find it impossible to say that the Board is wrong in adopting this policy as to deputized guards. It is a common practice in this country for private watchmen or guards to be vested with the powers of policemen, sheriffs or peace officers to protect the private property of their private employers. And when they are performing their police functions, they are acting as public officers and assume all the powers and liabilities attaching thereto. Thornton v. Missouri Pacific R. Co., 42 Mo. App. 58; Dempsey v. New York Central & Hudson River R. Co., 146 N. Y. 290, 40 N. E. 867; McKain v. Baltimore & Ohio R. Co., 65 W. Va. 233, 64 S. E. 18; Neallus v. Hutchinson Amusement Co., 126 Me. 469, 139 A. 671. But it has never been assumed that such deputized guards thereby cease to be employees of the company concerned or that they become municipal employees for all purposes. See Chicago & N. W. R. Co. v. McKenna, 74 F. 2d 155. Wages, hours, benefits and various other conditions of work normally remain subject to determination by the private employers. At least as to those matters, the deputized guards remain employees of the private employers. See Walling v. Merchants Police Service, 59 F. Supp. 873. Hence they may be held to be employees within the meaning of § 2 (3) of the National Labor Relations Act. Labor Board v. Hearst Publications, 322 U. S. 111.
Deputized guards bear the same relationship to management that non-deputized guards bear, a relationship that we discussed in the Atkins case, ante, p. 398, and that we found to be adequate for the Board to find the existence of an employer-employee status. Likewise, their relationship to police or municipal authorities is not one that is necessarily inconsistent with their status as employees under the Act. Union membership and collective bargaining are capable of being molded to fit the special responsibilities of deputized plant guards and we cannot assume, as a proposition of law, that they will not be so molded. If there is any danger that particular deputized guards may not faithfully perform their obligations to the public, the remedy is to be found other than in the wholesale denial to all deputized guards of their statutory right to join unions and to choose freely their bargaining agents. The state and municipal authorities, in short, have adequate means of punishing infidelity and assuring full police protection.
We find nothing in the instant case which would make inapplicable the Board’s policy with respect to deputized guards, and the Board has so argued before us. The stipulated facts reveal that the guards at respondent’s Otis Works were commissioned as private policemen of the City of Cleveland under § 188 of the Cleveland Municipal Code (1924), and as such are members of the municipal police force and exercise the legal powers of peace officers in their work as plant guards. They are under the control of a police captain and his lieutenants, the police captain being directly responsible to respondent’s director of plant security at Pittsburgh and to respondent’s executive officer in general charge of the Otis Works. The police captain is also a deputy sheriff of Cuyahoga County, Ohio. It is not denied that the guards continue to be paid by respondent and that their hours, benefits and other conditions of work remain the responsibility of respondent.
The court below pointed out that the Ohio law on the status and duties of special policemen is in accord with the general rule which we have noted. In other words, special policemen are public officers when performing their public duties. New York, Chicago & St. Louis R. Co. v. Fieback, 87 Ohio St. 254, 100 N. E. 889; Pennsylvania R. Co. v. Deal, 116 Ohio St. 408, 156 N. E. 502. But none of the Ohio cases attempts to say that the public status of special policemen destroys completely their private status as employees of individual companies. Nor is there any basis for the intimation that their public duties are such as to render incompatible the recognition of rights under the National Labor Relations Act.
We therefore conclude that the facts and the law are sufficiently clear to justify a determination that the guards at respondent’s Otis Works are employees within the meaning of the Act despite their deputization as municipal policemen. And they have as much right to select as their bargaining agent a union which represents production and maintenance workers as have militarized guards, the same considerations being applicable. It is obvious that the Board would apply such a policy to this case, thereby making a remand to the Board a mere formality and a needless addition to an already over-prolonged proceeding. Under such circumstances, a remand to the Board is unnecessary.
It follows that the court below should have enforced the Board’s order.
Reversed.
The Chief Justice, Mr. Justice Frankfurter, Mr. Justice Jackson and Mr. Justice Burton dissent substantially for the reasons set forth in the opinion of the court below, 154 F. 2d 932.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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"Board of Immigration Appeals",
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"Bureau of Prisons",
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"Department or Secretary of Commerce",
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"Civil Rights Commission",
"Civil Service Commission, U.S.",
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"Defense Base Closure and REalignment Commission",
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"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
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"Environmental Protection Agency or Administrator",
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"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
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"Internal Revenue Service, Collector, Commissioner, or District Director of",
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"Unidentifiable",
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"NO Admin Action",
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] |
[
81
] |
PAULSEN et ux. v. COMMISSIONER OF INTERNAL REVENUE
No. 83-832.
Argued October 29, 1984
Decided January 8, 1985
Rehnquist, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 144. Powell, J., took no part in the decision of the case.
William R. Nicholas argued the cause for petitioners. With him on the briefs was Karen S. Bryan.
Albert G. Lauber, Jr., argued the cause for respondent. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Olsen, and Ernest J. Brown.
Aaron M. Peck and Martin S. Schwartz filed a brief for the California League of Savings Institutions as amicus curiae urging reversal.
Justice Rehnquist
delivered the opinion of the Court.
Commerce Savings and Loan Association of Tacoma, Wash., merged into Citizens Federal Savings and Loan Association of Seattle in July 1976. Petitioners Harold and Marie Paulsen sought to treat their exchange of stock in Commerce for an interest in Citizens as a tax-free reorganization under 26 U. S. C. §§ 354(a)(1) and 368(a)(1)(A). The Court of Appeals for the Ninth Circuit, disagreeing with the Court of Claims and other Courts of Appeals, reversed a decision of the Tax Court in favor of petitioners. 716 F. 2d 563 (1983). We granted certiorari, 465 U. S. 1021 (1984), to resolve these conflicting interpretations of an important provision of the Internal Revenue Code.
At the time of the merger, petitioner Harold T. Paulsen was president and a director of Commerce. He and his wife, petitioner Marie B. Paulsen, held as community property 17,459 shares of “guaranty stock” in Commerce. In exchange for this stock petitioners received passbook savings accounts and time certificates of deposit in Citizens. Relying on 26 U. S. C. §§ 354(a)(1) and 368(a)(1)(A), they did not report the gain they realized on their 1976 federal income tax return because they considered the merger to be a tax-free reorganization.
Before it ceased to exist, Commerce was a state-chartered savings and loan association incorporated and operated under Washington State law. It was authorized to issue “guaranty stock,” to offer various classes of savings accounts, and to make loans. Each stockholder, savings account holder, and borrower was a member of the association. Each share of stock and every $100, or fraction thereof, on deposit in a savings account carried with it one vote. Each borrower also had one vote.
The “guaranty stock” had all of the characteristics normally associated with common stock issued by a corporation. Under the bylaws, a certain amount of guaranty stock was required to be maintained as the fixed and nonwithdrawable capital of Commerce. In accordance with Wash. Rev. Code Ann. §33.48.080 (Supp. 1981), holders of guaranty stock, but no other members, had a proportionate proprietary interest in its assets and net earnings, subordinate to the claims of creditors. Dividends could not be declared or paid on the guaranty stock unless certain reserves had been accumulated and dividends had been declared and paid on withdrawable savings accounts.
Citizens is a federally chartered mutual savings and loan association under the jurisdiction of the Federal Home Loan Bank Board. 12 U. S. C. § 1461 et seq. It offers savings accounts and makes loans, but has no capital stock. Its members are its depositors and borrowers. Each savings account holder has one vote for each $100, or fraction thereof, of the withdrawal value of his savings account up to a maximum of 400 votes. Each borrower has one vote.
Citizens is owned by its depositors. Twice each year its net earnings and any surplus are to be distributed to its savings account holders pro rata to the amounts on deposit. Its net assets would similarly be distributed if liquidation or dissolution should occur. It is obligated to pay written withdrawal requests within 30 days, and may redeem any of its accounts at any time by paying the holder the withdrawal value.
The merger was effected pursuant to a “Plan of Merger,” under which Commerce’s stockholders exchanged all their stock for passbook savings accounts and certificates of deposit in Citizens. The plan was designed to conform to the requirements of Wash. Rev. Code §33.40.010 (1983), which provides for mergers between business entities, and to qualify as a tax-free reorganization under the terms of §§ 354(a)(1) and 368(a)(1)(A). Under the plan, Commerce stockholders received for each share a $12 deposit in a Citizens passbook savings account, subject only to the restriction that such deposits could not be withdrawn for one year. They also had the alternative of receiving time certificates of deposit in Citizens with maturities ranging from 1 to 10 years at the same $12-per-share exchange rate. The plan further provided that former Commerce stockholders could borrow against their deposits resulting from the exchange at 1.5% above the passbook rate as opposed to a 2% differential for other depositors. Following the exchange, the merged entity continued to operate under the Citizens name.
Petitioners had a cost basis in their Commerce stock of $56,802; in the exchange they received passbook accounts and certificates of deposit worth $209,508. In 1976, 26 U. S. C. § 1002 (1970 ed.) required that “on the sale or exchange of property the entire amount of the gain or loss . . . shall be recognized.” Accordingly, petitioners were required to declare as income on their 1976 return the $152,706 profit unless one of the exceptions incorporated by reference in § 1002 applied.
Included among the exceptions to § 1002 were the corporate reorganization provisions set out in §§354 to 368. As already noted, petitioners have attempted to rely on § 354(a)(1), which provides:
“No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.”
Section 368(a)(1)(A) defines a “reorganization” to include “a statutory merger or consolidation,” and §§ 7701(a)(3), 7701(a)(7), and 7701(a)(8) further define the terms “corporation” to include “associations,” “stock” to include “shares in an association,” and “shareholder” to include a “member in an association.” There is no dispute that at the time of the merger Commerce and Citizens qualified as associations, petitioners qualified as shareholders, Commerce’s guaranty stock and Citizens’ passbook accounts and certificates of deposit qualified as stock, and the merger qualified as a statutory merger within these provisions of the Code. Accordingly, under the literal terms of the Code the transaction would qualify as a tax-free “reorganization” exchange rather than a sale or exchange on which gain must be recognized and taxes paid.
Satisfying the literal terms of the reorganization provisions, however, is not sufficient to qualify for nonrecognition of gain or loss. The purpose of these provisions is “‘to free from the imposition of an income tax purely “paper profits or losses” wherein there is no realization of gain or loss in the business sense but merely the recasting of the same interests in a different form.’” Southwest Natural Gas Co. v. Commissioner, 189 F. 2d 332, 334 (CA5), cert. denied, 342 U. S. 860 (1951) (quoting Commissioner v. Gilmore’s Estate, 130 F. 2d 791, 794 (CA3 1942)). See Treas. Reg. § 1.368-l(b), 26 CFR §1.368-l(b) (1984). In order to exclude sales structured to satisfy the literal terms of the reorganization provisions but not their purpose, this Court has construed the statute to also require that the taxpayer’s ownership interest in the prior organization must continue in a meaningful fashion in the reorganized enterprise. Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462, 468-470 (1933). In that case we held that “the seller must acquire an interest in the affairs of the purchasing company more definite than that incident to ownership of its short-term purchase-money notes.” Id., at 470. We soon added the requirement that “this interest must be definite and material; it must represent a substantial part of the value of the thing transferred.” Helvering v. Minnesota Tea Co., 296 U. S. 378, 385 (1935). Compare LeTulle v. Scofield, 308 U. S. 415, 420-421 (1940) (no retained property interest where transferor received transferee’s bonds), with John A. Nelson Co. v. Helvering, 296 U. S. 374, 377 (1935) (continuity of interest satisfied where non voting preferred stock received). Known as the “continuity-of-interest” doctrine, this requirement has been codified in Treas. Regs. §§ 1.368 — 1(b), 1.368-2(a).
The present case turns on whether petitioners’ exchange of their guaranty stock in Commerce for their passbook savings accounts and certificates of deposit in Citizens satisfies this continuity-of-interest requirement. More generally, we must decide whether a merger of a stock savings and loan association into a mutual savings and loan association qualifies as a tax-free reorganization. Following his ruling in Rev. Rul. 69-6, 1969-1 Cum. Bull. 104, which itself apparently was at odds with his earlier policy expressed in Rev. Rul. 54-624, 1954-2 Cum. Bull. 16, the Commissioner rejected petitioners’ treatment of the Commerce-Citizens merger as a tax-free reorganization under §§ 354(a)(1) and 368(a)(1)(A) and issued a statutory notice of deficiency finding petitioners liable for tax on their entire $152,706 gain.
Petitioners sought redetermination of the deficiency in the Tax Court, which found that the Commissioner’s position had been uniformly rejected by the courts. Following Capital Savings and Loan Assn. v. United States, 221 Ct. Cl. 557, 607 F. 2d 970 (1979); West Side Federal Savings and Loan Assn. v. United States, 494 F. 2d 404 (CA6 1974); Everett v. United States, 448 F. 2d 357 (CA10 1971), the Tax Court reasoned that the savings accounts and certificates of deposit were the only forms of equity in Citizens, and it held that the requisite continuity of interest existed. 78 T. C. 291 (1982).
The Commissioner appealed to the Court of Appeals for the Ninth Circuit, which declined to follow the cases cited by the Tax Court and reversed. 716 F. 2d 563 (1983). It reasoned that “despite certain formal equity characteristics” the passbook savings accounts and time certificates of deposit “are in reality indistinguishable from ordinary savings accounts and are essentially the equivalent of cash.” Id., at 569. For the reasons that follow we affirm the decision of the Court of Appeals.
Citizens is organized pursuant to Charter K (Rev.), 12 CFR §544.1(b) (as of July 1, 1976), which provides for raising capital “by accepting payments on savings accounts representing share interests in the association.” These shares are the association’s only means of raising capital. Here they are divided into passbook accounts and certificates of deposit. In reality, these shares are hybrid instruments having both equity and debt characteristics. They combine in one instrument the separate characteristics of the guaranty stock and the savings accounts of stock associations like Commerce.
The Citizens shares have several equity characteristics. The most important is the fact that they are the only ownership instrument of the association. Each share carries in addition to its deposit value a part ownership interest in the bricks and mortar, the goodwill, and all the other assets of Citizens. Another equity characteristic is the right to vote on matters for which the association’s management must obtain shareholder approval. The shareholders also receive dividends rather than interest on their accounts; the dividends are paid out of net earnings, and the shareholders have no legal right to have a dividend declared or to have a fixed return on their investment. The shareholders further have a right to a pro rata distribution of any remaining assets after a solvent dissolution.
These equity characteristics, however, are not as substantial as they appear on the surface. Unlike a stock association where the ownership of the assets is concentrated in the stockholders, the ownership interests here are spread over all of the depositors. The equity interest of each shareholder in relation to the total value of the share, therefore, is that much smaller than in a stock association. The right to vote is also not very significant. A shareholder is limited to 400 votes; thus any funds deposited in excess of $40,000 do not confer any additional votes. The vote is also diluted each time a loan is made, as each borrower is entitled to one vote. In addition the Commissioner asserts, and petitioners do not contest, that in practice, when depositors open their accounts, they usually sign proxies giving management their votes.
The fact that dividends rather than interest are paid is by no means controlling. Petitioners have not disputed the Commissioner’s assertion that in practice Citizens pays a fixed, preannounced rate on all accounts. As the Court of Appeals observed, Citizens would not be able to compete with stock savings and loan associations and commercial banks if it did not follow this practice. Potential depositors are motivated only by the rate of return on their accounts and the security of their deposits. In this latter respect, the Citizens accounts are insured by the Federal Savings and Loan Insurance Corporation (FSLIC), up to $40,000 in 1976 and now up to $100,000. 12 U. S. C. § 1728(a). The Code treats these dividends just like interest on bank accounts rather than like dividends on stock in a corporation. The dividends are deductible to Citizens, 26 U. S. C. §591, and they do not qualify for dividend exclusion by the Citizens shareholders under § 116.
The right to participate in the net proceeds of a solvent liquidation is also not a significant part of the value of the shares. Referring to the possibility of a solvent liquidation of a mutual savings association, this Court observed: “It stretches the imagination very far to attribute any real value to such a remote contingency, and when coupled with the fact that it represents nothing which the depositor can readily transfer, any theoretical value reduces almost to the vanishing point.” Society for Savings v. Bowers, 349 U. S. 143, 150 (1955).
In contrast, there are substantial debt characteristics to the Citizens shares that predominate. Petitioners’ passbook accounts and certificates of deposit are not subordinated to the claims of creditors, and their deposits are not considered permanent contributions to capital. Shareholders have a right on 30 days’ notice to withdraw their deposits, which right Citizens is obligated to respect. While petitioners were unable to withdraw their funds for one year following the merger, this restriction can be viewed as akin to a delayed payment rather than a material alteration in the nature of the instruments received as payment. In this case petitioners were immediately able to borrow against their deposits at a more favorable rate than Citizens’ depositors generally. As noted above, petitioners were also in effect guaranteed a fixed, preannounced rate of return on their deposits competitive with stock savings and loan associations and commercial banks.
In our view, the debt characteristics of Citizens’ shares greatly outweigh the equity characteristics. The face value of petitioners’ passbook accounts and certificates of deposit was $210,000. Petitioners have stipulated that they had a right to withdraw the face amount of the deposits in cash, on demand after one year or at stated intervals thereafter. Their investment was virtually risk free and the dividends received were equivalent to prevailing interest rates for savings accounts in other types of savings institutions. The debt value of the shares was the same as the face value, $210,000; because no one would pay more than this for the shares, the incremental value attributable to the equity features was, practically, zero. Accordingly, we hold that petitioners’ passbook accounts and certificates of deposit were cash equivalents.
Petitioners have failed to satisfy the continuity-of-interest requirement to qualify for a tax-free reorganization. In exchange for their guaranty stock in Commerce, they received essentially cash with an insubstantial equity interest. Under Minnesota Tea Co., their equity interest in Citizens would have to be “a substantial part of the value of the thing transferred.” 296 U. S., at 385. Assuming an arm’s-length transaction in which what petitioners gave up and what they received were of equivalent worth, their Commerce stock was worth $210,000 in withdrawable deposits and an unquan-tifiably small incremental equity interest. This retained equity interest in the reorganized enterprise, therefore, is not a “substantial” part of the value of the Commerce stock which was given up. We agree with the Commissioner that the equity interests attached to the Citizens shares are too insubstantial to satisfy Minnesota Tea, Co. The Citizens shares are not significantly different from the notes that this Court found to be the mere “equivalent of cash” in Pinellas & Cold Storage Ice Co., 287 U. S., at 468-469. The ownership interest of the Citizens shareholders is closer to that of the secured bondholders in LeTulle v. Scofield, 308 U. S., at 420-421, than to that of the preferred stockholders in John A. Nelson Co. v. Helvering, 296 U. S., at 377. The latter case involved a classic ownership instrument — preferred stock carrying voting rights only in the event of a dividend default — which we held to represent “a definite and substantial interest in the affairs of the purchasing corporation.” Ibid.
Petitioners argue that the decision below erroneously turned on the relative change in the nature and extent of the equity interest, contrary to the holding in Minnesota Tea Co. that “the relationship of the taxpayer to the assets conveyed [could] substantially chang[e],” and only a “material part of the value of the transferred assets” need be retained as an equity interest. 296 U. S., at 386. In that case, taxpayers received voting trust certificates representing $540,000 of common stock and $425,000 cash; 56% of the value of the assets given up was retained as an equity interest in the transferee. In John A. Nelson Co., supra, the taxpayer received consideration consisting of 38% preferred stock and 62% cash. Here, in contrast, the retained equity interest had almost no value. It did not amount to a “material part” of the value of the Commerce stock formerly held by petitioners. See Southwest Natural Gas Co. v. Commissioner, 189 F. 2d, at 335 (insufficient continuity of interest where stock received represented less than 1% of the consideration).
Petitioners’ real complaint seems to be our willingness to consider the equity and debt aspects of their shares separately. Clearly, if these interests were represented by separate pieces of paper — savings accounts on the one hand and equity instruments of some kind on the other — the value of the latter would be so small that we would not find a continuity of proprietary interest. In order not “to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose,” Gregory v. Helvering, 293 U. S. 465, 469-470 (1935), it is necessary in the present case to consider the debt and equity aspects of a single instrument separately. See Rev. Rul. 69-265, 1969-1 Cum. Bull. 109, 109-110, which treats the conversion rights incorporated in convertible preferred stock as “property other than voting stock” for purposes of § 368(a)(1)(C).
Petitioners also complain that the result reached by the court below is inconsistent with the Commissioner’s position that a merger of one mutual savings and loan institution into another mutual association or into a stock association would still qualify as a tax-free reorganization. See Rev. Rul. 69-3, 1969-1 Cum. Bull. 103. If the continuity-of-interest test turns on the nature of the thing received, and not on the relative change in proprietary interest, argue petitioners, the interest received in the merger of two mutual associations is no different from the interest received in the instant case.
As already indicated, shares in a mutual association have a predominant cash-equivalent component and an insubstantial equity component. When two mutual associations merge, the shares received are essentially identical to the shares given up. As long as the cash value of the shares on each side of the exchange is the same, the equity interest represented by the shares received — though small — is equivalent to the equity interest represented by the shares given up. Therefore, to the extent that a mutual association share reflects an equity interest, the continuity-of-interest requirement, as defined in Minnesota Tea Co., is satisfied in an exchange of this kind. The fact that identical cash deposits are also exchanged does not affect the equity aspect of the exchange. In the case of a merger of a mutual association into a stock association, the continuity-of-interest requirement is even more clearly satisfied because the equity position of the exchanging shareholders is not only equivalent before and after the exchange, but it is enhanced.
Finally, petitioners argue that the characterization of their mutual association shares as debt conflicts with this Court’s decision in Tcherepnin v. Knight, 389 U. S. 332 (1967), holding that a withdrawable mutual association share indistinguishable from Citizens’ shares was a “security” within the meaning of §3(a)(10) of the Securities Exchange Act of 1934. Cf. Marine Bank v. Weaver, 455 U. S. 551, 557 (1982) (distinguishing Tcherepnin because the withdrawable capital shares there did not pay a fixed rate of return and “were much more like ordinary shares of stock and ‘the ordinary concept of a security’ . . . than a certificate of deposit” [in a bank]); Wisconsin Bankers Assn. v. Robertson, 111 U. S. App. D. C. 85, 294 F. 2d 714, 717 (Burger, J., concurring), cert. denied, 368 U. S. 938 (1961). The purpose of the Securities Acts is different from the purpose of the Tax Code. The focus in Tcherepnin was on the investment character of the shares, specifically whether they satisfied the test in SEC v. W. J. Howey Co., 328 U. S. 293, 301 (1946), for an investment contract, namely the “investment of money in a common enterprise with profits to come solely from the efforts of others.” Unlike the instant case, there is no requirement that the investors have a substantial proprietary interest in the enterprise. Moreover, in Howey as in this case, we disregarded the formal terms of the instruments in question and looked to their economic substance. Any remaining tension between the instant decision and Tcherepnin and Weaver can be explained by the fact that this Court has in cases such as Tcherepnin liberally construed the definition of “security” in the Securities Acts, while such liberality is not warranted in construing the scope of the reorganization provisions.
The judgment of the Court of Appeals is
Affirmed.
Justice Powell took no part in the decision of the case.
Capital Savings and Loan Assn. v. United States, 221 Ct. Cl. 557, 607 F. 2d 970 (1979); West Side Federal Savings and Loan Assn. v. United States, 494 F. 2d 404 (CA6 1974); Everett v. United States, 448 F. 2d 357 (CA10 1971).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Board of Immigration Appeals",
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"Pay Board (established under the Economic Stabilization Act of 1970)",
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"U.S. Public Health Service",
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"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
68
] |
CALIFORNIA STATE BOARD OF EQUALIZATION v. SIERRA SUMMIT, INC.
No. 88-681.
Argued April 19, 1989
Decided June 12, 1989
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 854.
Robert F. Tyler, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs was John K. Van de Kamp, Attorney General.
David Ray Jenkins argued the cause and filed a brief for respondent.
Benna Ruth Solomon, Beate Bloch, and Thomas D. Goldberg filed a brief for The National Governors’ Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the First National Bank of Boston et al. by Frederick A. Richman, M. Randall Oppenheimer, Alan Rader, and Daniel M. Glosband; and for Kenneth L. Spears, Trustee, Hughes Drilling Co. by David W. Lee and Gregory A. McKenzie.
Justice Stevens
delivered the opinion of the Court.
Enmeshed in a tangled skein of procedural and state-law issues is a ruling on an important federal question that was critical to the decision of the Court of Appeals in this case. The court’s ultimate holding was that a Bankruptcy Court’s injunction against the assessment of a state sales tax upon the proceeds of a trustee’s liquidation sale of an inventory of skis also barred the collection of a use tax from the purchaser’s lessees. In the process of reaching its decision, the Ninth Circuit rejected an argument that a case well known to California bankruptcy lawyers as “Goggin II” was wrongly decided. The three-judge panel that heard the case concluded that it was not within its power — “and not within its heart — to change a rule of this circuit that has been in force for over thirty years.” In re China Peak Resort, 847 F. 2d 570, 572 (1988). Because the rule of “Goggin II” conflicts with the rule applied in other Circuits, and because we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U. S. 992 (1988).
The Goggin cases concerned the attempt by the California State Board of Equalization, petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F. 2d 726 (1951), cert. denied, 342 U. S. 909 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F. 2d 44, cert. denied, 353 U. S. 961 (1957). At issue was a California law which required the bankruptcy trustee to collect and remit use taxes imposed on the use of goods from a liquidation sale on which no sales tax had been paid. The court held the tax unlawful, finding that while it was nondiscriminatory it nonetheless burdened the “essential processes” of the bankruptcy court.
The Goggin opinions were based on two premises, each of which respondent argues supports the judgment here. First, the court held that a tax on liquidation sales places a burden on the federal function of the bankruptcy court and therefore violates principles of intergovernmental tax immunity first recognized in McCulloch v. Maryland, 4 Wheat. 316 (1819). Second, it found that a federal statute specifically authorizing the States to impose taxes on business operations of the bankruptcy trustee negated by implication their power to tax bankruptcy liquidations. Neither argument is persuasive.
The argument that a tax on a bankruptcy liquidation sale places an undue burden on a governmental operation derives from the once established view that a state tax on income or assets an individual receives from a contract with the Federal Government constituted a tax on the contract and thereby imposed a burden on governmental operations. See, e. g., Panhandle Oil Co. v. Knox, 277 U. S. 218 (1928); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842); Weston v. City Council of Charleston, 2 Pet. 449 (1829). The Court drew a distinction between a tax imposed on a Government agent’s property and a tax imposed on its operations. While the former was permissible, the latter was constitutionally proscribed. See, e. g., Railroad Co. v. Peniston, 18 Wall. 5, 33 (1873); McCulloch v. Maryland, 4 Wheat., at 345; see also James v. Dravo Contracting Co., 302 U. S. 134, 163 (1937) (footnotes omitted) (Roberts, J., dissenting) (“No tax can be laid upon th[e] franchises or operations [of government instrumentalities], but their local property is subject to non-discriminating state taxation”). Thus, although this Court held as early as 1904 that States could impose a property tax on a bankruptcy estate, see Swarts v. Hammer, 194 U. S. 441 (1904), other courts reasonably concluded that the State could not tax the operations of the bankruptcy trustee. See, e. g., In re Flat-bush Gum Co., 73 F. 2d 283 (CA2 1934), cert. denied sub nom. New York v. Arnold, 294 U. S. 713 (1935).
In James v. Dravo Contracting Co., 302 U. S. 134 (1937), however, this Court rejected the distinction between a tax on the property of an agent and a tax on the agent’s operations. With the Court’s decision in Dravo Contracting, “the doctrine of intergovernmental tax immunity started a long path in decline and [it] has now been ‘thoroughly repudiated.’” Cotton Petroleum Corp. v. New Mexico, ante, at 174 (quoting South Carolina v. Baker, 485 U. S. 505, 520 (1988)). “[U]nder current intergovernmental tax immunity doctrine the States can never tax the United States directly but can tax any private parties with whom it does business, even though the financial burden falls on the United States, as long as the tax does not discriminate against the United States or those with whom it deals.” Id., at 523. Absolute tax immunity is appropriate only when the tax is on the United States itself “or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned.” United States v. New Mexico, 455 U. S. 720, 735 (1982).
It is evident that whatever immunity the bankruptcy estate once enjoyed from taxation on its operations has long since eroded and that there is now no constitutional impediment to the imposition of a sales tax or use tax on a liquidation sale. There is no claim, nor could there be, that the tax discriminates against bankruptcy trustees or those with whom they deal. As Judge Augustus Hand observed on similar facts in 1936: “The purchaser at the judicial sale was only required to pay the same tax he would have been bound to pay if he had purchased from anyone else.” In re Leavy, 85 F. 2d 25, 27 (CA2). Nor is the bankruptcy trustee so closely connected to the Federal Government that the two “cannot realistically be viewed as separate entities.” United States v. New Mexico, supra, at 735. The bankruptcy trustee is “the representative of the estate [of the debtor],” 11 U. S. C. § 323(a); cf. Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343 (1985), not “an arm of the Government,” Department of Employment v. United States, 385 U. S. 355, 359-360 (1966), and the tax on the estate is an administrative expense of the debtor, not of the Federal Government, 11 U. S. C. § 503(b)(1)(B) (1982 ed. and Supp. V). Cf. Missouri v. Gleick, 135 F. 2d 134, 137 (CA8 1943). For the purposes of absolute tax immunity under the intergovernmental tax immunity doctrine, there is no material distinction between those municipal and state withholding and property taxes on the bankruptcy trustee which we have upheld, see Otte v. United States, 419 U. S. 43, 52-54 (1974); Swarts v. Hammer, 194 U. S., at 444, and the tax on the liquidation sale presented here.
The Goggin courts also based their proscription of state sales and use taxes on an implied prohibition that they found in 28 U. S. C. § 960. The Goggin II court read § 960 as setting forth “the sole area where the state is permitted to impose a tax of any type” and reasoned that because Congress had not specifically granted the States authority to impose sales and use taxes on liquidation, “essential sales in liquidation [were] inevitably free from such imposition.” 245 F. 2d, at 46. That view is contrary to our general approach to claims that the States’ power to tax have been pre-empted and to the plain meaning and legislative history of this particular statutory provision.
Although Congress can confer an immunity from state taxation, see Washington v. United States, 460 U. S. 536, 540 (1983); First Agricultural Nat. Bank v. State Tax Comm’n, 392 U. S. 339 (1968); United States v. City of Detroit, 355 U. S. 466, 474 (1958), we have stated that “[a] court must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed,” Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 191 (1987). See also Oklahoma Tax Comm’n v. United States, 319 U. S. 598, 607 (1943); Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 479 (1939). Section 960 is not such a clear expression of an exemption from state taxation. It was passed in 1934, at the height of the intergovernmental tax immunity doctrine, in response to a Federal District Court decision holding that a bankruptcy receiver operating a gasoline and oil distributing business was not liable as a matter of state law for a state sales tax on motor fuel. See H. R. Rep. No. 1138, 73d Cong., 2d Sess. (1934); S. Rep. No. 1372, 73d Cong., 2d Sess. (1934). Read most naturally, the statute evinces an intention that a State be permitted to tax a bankruptcy estate notwithstanding any intergovernmental immunity objection that might be interposed, cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 813 (1989), and that, as a matter of federal law, “a business in receivership, or conducted under court order, should be subject to the same tax liability as the owner would have been if in possession and operating the enterprise,” Palmer v. Webster and Atlas Nat. Bank of Boston, 312 U. S. 156, 163 (1941). The statute “indicates a Congressional purpose to facilitate — not to obstruct — enforcement of state laws.” Boteler v. Ingels, 308 U. S. 57, 60-61 (1939). Nothing in the plain language of the statute, its legislative history, or the structure of the Bankruptcy Code indicates that Congress intended to exclude taxes on the liquidation process from those taxes the States may impose on the bankruptcy estate.
Eighty-five years ago, in Swarts v. Hammer, 194 U. S. 441 (1904), we held that property in the hands of a bankruptcy trustee was subject to taxation by state and municipal authorities. The appellant in that case argued, in much the same manner as respondent does here, that the transfer of assets to a bankruptcy trustee vested the Federal Government with exclusive control of the bankruptcy estate and that “no other sovereignty, be it State or foreign, is permitted to exercise any power that burdens or in any manner interferes with the distribution prescribed by the act.” Statement, Specification of Error and Argument for Appellant in Swarts v. Hammer, O. T. 1902, No. 238, p. 4. We responded that “[b]y the transfer to the trustee no mysterious or peculiar ownership or qualities are given to the property,” and that “there is nothing in that to withdraw it from the necessity of protection by the State and municipality, or which should exempt it from its obligations to either.” 194 U. S., at 444. If Congress wished to declare otherwise, its intent would have to “be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt.” Ibid. The law that has intervened in the last 85 years, rejecting any distinction between a tax on property and a tax on operations, only gives force to our conclusion that the intergovernmental tax immunity doctrine does not proscribe the tax sought to be assessed here.
We therefore vacate the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
California State Board of Equalization v. Goggin, 245 F. 2d 44 (CA9), cert. denied, 353 U. S. 961 (1957). The case known as “Goggin I” is California State Board of Equalization v. Goggin, 191 F. 2d 726 (CA9 1951), cert. denied, 342 U. S. 909 (1952).
Compare In re Hatfield Construction Co., 494 F. 2d 1179 (CA5 1974) (holding that sales tax can be imposed on liquidation sale); In re Leavy, 85 F. 2d 25 (CA2 1936) (same), with In re Cusato Brothers Int’l, Inc., 750 F. 2d 887 (CA11) (holding that bankruptcy trustee is not liable for excise taxes), cert. denied sub nom. Florida v. Great American Bank of Broward County, 472 U. S. 1010 (1985). See also In re Warmings A. G. Food Center, 50 B. R. 748 (Bkrtcy. Ct. Me.), summarily aff’d, 782 F. 2d 1024 (CA1 1985); In re Sunrise Constmction Co., 39 B. R. 668 (Wyo. 1984); In re Hughes Drilling Co., 75 B. R. 196 (Bkrtcy. Ct. WD Okla. 1987); In re Hubs Repair Shop, Inc., 28 B. R. 858 (Bkrtcy. Ct. ND Iowa 1983) (all holding that States can tax liquidation sales), and In re Sheldon’s Inc. of Maine, 28 B. R. 568 (Bkrtcy. Ct. Me. 1983); In re Rhea, 17 B. R. 789 (Bkrtcy. Ct. WD Okla. 1982) (holding that States cannot tax liquidation sales).
In its brief on the merits, respondent argues that the judgment of the Bankruptcy Court that States may not impose taxes on a liquidation sale is res judicata and therefore not properly before us. Petitioner argued that the Goggin cases were incorrectly decided before the Court of Appeals, see Brief for Appellant in No. 87-2542 (CA9), pp. 28-33, however, and that court reached the merits of the question. At no time previous to its brief on the merits before this Court did respondent argue that the question might not be properly presented. In these circumstances we may decide the question decided by the Court of Appeals. See Canton v. Harris, 489 U. S. 378, 383-385 (1989); Oklahoma City v. Tuttle, 471 U. S. 808, 815-816 (1985); see also Donovan v. City of Dallas, 377 U. S. 408, 414 (1964).
Judge Hand added:
“What the trustee is really complaining of is, not that a burden has been imposed upon the exercise of his functions, but of his inability to sell to a purchaser who would be exempt from a tax and because of such an exemption would pay a higher price to him than would ordinarily be paid for the goods sold. It seems unreasonable to treat the absence of an exemption from taxes as a burden upon the normal exercise of a governmental function.” 85 F. 2d, at 27.
Under 11 U. S. C. §346(c)(2) (1982 ed., Supp. V), the trustee is required to “make any tax return otherwise required by State or local law to be filed by or on behalf of” a corporation or partnership in bankruptcy “in the same manner and form as such corporation or partnership, as the ease may be, is required to make such return.”
It follows, a fortiori, that when, as in this case, the debtor is permitted to remain in possession, the same duties may be imposed on the debtor-in-possession. See 11 U. S. C. § 1107(a) (1982 ed., Supp. V) (debtor-in-possession shall perform all the functions and duties of trustee).
The commentators are in agreement. See Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv. L. Rev. 1141, 1166-1169 (1942) (footnote omitted) (“[TJhere is no implied immunity of a federal instrumentality from a state tax that is general and nondiscriminatory if its effects upon the Federal Government are merely ‘incidental.’ A general and nondiscriminatory tax on a trustee fulfills this requirement. . . . The tax does not place a financial burden upon the United States; nor will it — unless it is discriminatory and therefore unconstitutional — render the trustee’s task more difficult or cumbersome”); Note, State Taxation of Bankruptcy Liquidations: Federalism Misconceived, 67 Yale L. J. 335, 340 (1957) (footnotes omitted) (“Case law suggests that a sales or use tax should be upheld even in the absence of an applicable federal waiver. The immunity of one sovereign from taxation by another originated in the belief that the taxing power is necessarily destructive. This rationale has been repudiated, and Graves [v. New York ex rel. O’Keefe, 306 U. S. 466 (1939),] indicates that only taxes which can be so manipulated should be invalidated. Absent discriminatory application against sellers and buyers at liquidation sales, a sales or use tax should not seriously impede the federal bankruptcy process”).
Title 28 U. S. C. §960 provides:
“Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”
The original provision, as passed by Congress in 1934, provided:
“That any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation: Provided, however, That nothing in this Act contained shall be construed to prohibit or prejudice the collection of any such taxes which accrued prior to the approval of this Act, in the event that the United States court having final jurisdiction of the subject matter under existing law should adjudge and decide that the imposition of such taxes was a valid exercise of the taxing power by the State or States, or by the civil subdivisions of the State or States imposing the same.” Act of June 18, 1934, ch. 585, 48 Stat. 993.
The changes in language were made in 1948 as part of the general revision of the Judicial Code and impart no significant change in meaning. See Finley v. United States, ante, at 554.
See also 78 Cong. Rec. 6656 (1934) (statement of Rep. MeKeown) (“A great many receivers in oil cases have been held by the court not liable to pay taxes. They do not pay the gasoline taxes to the State. There are thousands of dollars being lost to the State, because these receivers in gasoline and oil cases are not liable to pay those taxes. In the receivers for bank eases they do not have to pay the taxes to the State”). Ironically, the District Court decision in Howe v. Atlantic, Pacific & Gulf Oil Co., 4 F. Supp. 162 (WD Mo. 1933), that precipitated passage of the Act was reversed on state-law grounds even before the Act was signed into law. See Kansas City v. Johnson, 70 F. 2d 360 (CA8), cert. denied, 293 U. S. 617 (1934).
“If the terms of the Louisiana statute had specifically provided for the levy of a tax against the trustee or receiver, there could be no doubt that the trustee would be liable for the franchise tax. There were controversies between state taxing authorities and the various liquidating agencies appointed by the Federal courts as to the liability for such taxes. Congress has, in the interest of justice or good will, by this Act directed the trustee to pay rather than litigate these tax claims. By the sweeping terms of this statute all doubts have been resolved in favor of the state taxes.” Thompson v. State of Louisiana, 98 F. 2d 108, 111 (CA8 1938). See also 3A Collier on Bankruptcy §62.14, p. 1526 (14th ed. 1975) (“The true meaning of the Act of June 18, 1934, would seem to be a declaration of policy: if States decide not to exempt from tax a business conducted by the officer of a federal bankruptcy court, such tax should be paid and bankruptcy, though governed by federal law, should not be raised as a defense, allowing bankrupt businesses to compete at an advantage with non-bankrupt businesses”); Pepper, Application of State Franchise Taxes to Trustees in Bankruptcy, 14 Taxes 259 (1936) (“All that Congress said in its enactment is that if a state imposes a tax upon a trustee, he cannot claim exemption by reason of the fact that he is a trustee”). '
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"State Agency",
"Unidentifiable",
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"NO Admin Action",
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] |
[
116
] |
NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, et al.
No. 79-672.
Argued April 15, 1980
Decided June 20, 1980
Powell, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined, and an opinion with respect to Part III, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined. Blackmun, J., post, p. 616, and Stevens, J., post, p. 618, filed opinions concurring in part and in the result. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 619.
Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree and Linda Sher. Bruce Michael Cross filed a brief for the Safeco Title Insurance Co., respondent under this Court’s Rule 21 (4), in support of petitioner.
Laurence Gold argued the cause for respondent Retail Store Employees Union. With him on the brief were James H. Webster, J. Albert Woll, and George Kaufmann
Andrew M. Kramer, Adin C. Goldberg, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; and by David C. Vladeck and Alan B. Morrison for Public Citizen et al.
Me. Justice Powell
delivered the opinion of the Court.
The question is whether § 8 (b) (4) (ii) (B) of the National Labor Relations Act, 29 U. S. C. § 158 (b) (4) (ii) (B), forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott a neutral party’s business.
I
Safeco Title Insurance Co. underwrites real estate title insurance in the State of Washington. It maintains close business relationships with five local title companies. The companies search land titles, perform escrow services, and sell title insurance. Over 90% of their gross incomes derives from the sale of Safeco insurance. Safeco has substahtial stockholdings in each title company, and at least one Safeco officer serves on each company’s board of directors. Safeco, however, has no control over the companies’ daily operations. It does not direct their personnel policies, and it never exchanges employees with them.
Local 1001 of the Retail Store Employees Union became the certified bargaining representative for certain Safeco employees in 1974. When contract negotiations between Safeco and the Union reached an impasse, the employees went on strike. The Union did not confine picketing to Safeco’s office in Seattle. The Union also picketed each of the five local title companies. The pickets carried signs declaring that Safeco had no contract with the Union, and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.
Safeco and one of the title companies filed complaints with the National Labor Relations Board. They charged that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed. 226 N. L. R. B. 754 (1976). It found the title companies to be neutral in the dispute between Safeco and the Union. Id., at 756. The Board then concluded that the Union’s picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act. The Union had directed its appeal against Safeco insurance policies. But since the sale of those policies accounted for substantially all of the title companies’ business, the Board found that the Union’s action was “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757. The Board therefore rejected the Union’s reliance upon NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits), which held that §8 (b)(4)(ii)(B) allows secondary picketing against a struck product. It ordered the Union to cease picketing and to take limited corrective action.
The United States Court of Appeals for the District of Columbia Circuit set aside the Board’s order. 194 U. S. App. D. C. 400, 600 F. 2d 280 (1979) (en banc). The court agreed that the title companies were neutral parties entitled to the benefit of § 8 (b) (4) (ii) (B). 201 U. S. App. D. C. 147, 151, 627 F. 2d 1133, 1137 (1979). It held, however, that Tree Fruits leaves neutrals susceptible to whatever consequences may flow from secondary picketing against the consumption of products produced by an employer involved in a labor dispute. Even when product picketing predictably encourages consumers to boycott a neutral altogether, the court concluded, § 8 (b) (4) (ii) (B) provides no protection. 201 U. S. App. D. C., at 159-160, 627 F. 2d, at 1145-1146.
We granted a writ of certiorari to consider whether the Court of Appeals correctly understood § 8 (b) (4) (ii) (B) as interpreted in Tree Fruits. 444 U. S. 1011 (1980). Having concluded that the Court of Appeals misapplied the statute, we now reverse and remand for enforcement of the Board’s order.
II
Section 8 (b)(4) (ii) (B) of the National Labor Relations Act makes it “an unfair labor practice for a labor organization ... to threaten, coerce, or restrain” a person not party to a labor dispute “where ... an object thereof is . . . forcing or requiring [him] to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person. . . ,”
In Tree Fruits, the Court held that § 8 (b) (4) (ii) (B) does not prohibit all peaceful picketing at secondary sites. There, a union striking certain Washington fruit packers picketed large supermarkets in order to persuade consumers not to buy Washington apples. Concerned that a broad ban against such picketing might run afoul of the First Amendment, the Court found the statute directed to an “ ‘isolated evil.’ ” The evil was use of secondary picketing “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Congress intended to protect secondary parties from pressures that might embroil them in the labor disputes of others, but not to shield them from business losses caused by a campaign that successfully persuades consumers “to boycott the primary employer’s goods.” Ibid. Thus, the Court drew a distinction between picketing “to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer” and picketing that “only persuades his customers not to buy the struck product.” Id., at 70. The picketing in that case, which “merely follow [ed] the struck product,” did not “ ‘threaten, coerce, or restrain’ ” the secondary party within the meaning of § 8 (b)(4) (ii)(B). 377 U. S., at 72.
Although Tree Fruits suggested that secondary picketing against a struck product and secondary picketing against a neutral party were “poles apart,” id., at 70, the courts soon discovered that product picketing could have the same effect as an illegal secondary boycott. In Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 (CA9 1972), cert. denied, 411 U. S. 986 (1973), for example, a union embroiled with a general contractor picketed the housing subdivision that he had constructed for a real estate developer. Pickets sought to persuade prospective purchasers not to buy the contractor’s houses. The picketing was held illegal because purchasers “could reasonably expect that they were being asked not to transact any business whatsoever” with the neutral developer. 468 F. 2d, at 1192. “[W]hen a union’s interest in picketing a primary employer at a ‘one product’ site [directly conflicts] with the need to protect . . . neutral employers from the labor disputes of others,” Congress has determined that the neutrals’ interests should prevail. Id., at 1191.
Cement Masons highlights the critical difference between the picketing in this case and the picketing at issue in Tree Fruits. The product picketed in Tree Fruits was but one item among the many that made up the retailer’s trade. 377 U. S., at 60. If the appeal against such a product succeeds, the Court observed, it simply induces the neutral retailer to reduce his orders for the product or “to drop the item as a poor seller.” Id., at 73. The decline in sales attributable to consumer rejection of the struck product puts pressure upon the primary employer, and the marginal injury to the neutral retailer is purely incidental to the product boycott. The neutral therefore has little reason to become involved in the labor dispute. In this case, on the other hand, the title companies sell only the primary employer’s product and perform the services associated with it. Secondary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the title companies altogether. If the appeal succeeds, each company “stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on [its] business generally.” Thus, “the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.” Id., at 72. Such an expansion of labor discord was one of the evils that Congress intended § 8 (b) (4) (ii) (B) to prevent. 377 U. S., at 63-64.
As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott. See id., at 72-73. But the Union’s secondary appeal against the central product sold by the title companies in this case is “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. It. B., at 757. The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square with the language or the purpose of § 8 (b)(4)(ii)(B). Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. § 8 (b) (4) (ii) (B); see Tree Fruits, 377 U. S., at 68.
Ill
The Court of Appeals suggested that application of § 8 (b) (4)(ii)(B) to the picketing in this case might violate the First Amendment. 201 U. S. App. D. C., at 161, 627 F. 2d, at 1147. We think not. Although the Court recognized in Tree Fruits that the Constitution might not permit “a broad ban against peaceful picketing,” the Court left no doubt that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U. S. 694, 705 (1951), this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment. See American Radio Assn. v. Mobile S.S. Assn., 419 U. S. 215, 229-231 (1974); Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4) (ii) (B) imposes no impermissible restrictions upon constitutionally protected speech.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded with directions to enforce the National Labor Relations Board’s order.
So ordered.
Part III of the opinion is joined only by The Chief Justice, Mr. Justice Stewart, and Mr. Justice RehNQUist.
The title companies are Land Title Co. of Clark County, Land Title Co. of Cowlitz County, Land Title Co. of Kitsap County, Land Title Co. of Pierce County, and Land Title Co. of Snohomish County.
The picket signs read:
“SAFECO NONUNION DOES NOT EMPLOY MEMBERS OF OR HAVE CONTRACT WITH RETAIL STORE EMPLOYEES LOCAL 1001.”
The distribution of handbills has not been an issue in this case. Section 8 (b) (4) of the National Labor Relations Act does not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer. . . .” 61 Stat. 141, as amended, 73 Stat. 543, 29 U. S. C. § 158 (b) (4).
The parties waived intermediate proceedings before an administrative law judge and submitted the stipulated facts directly to the Board. 226 N. L. R. B., at 754.
The Union has not challenged the Court of Appeals’ determination that the title companies are neutral, secondary parties.
61 Stat. 141, as amended, 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (ii) (B).
The so-called merged product cases also involve situations where an attempt to follow the struck product inevitably encourages an illegal boycott of the neutral party. See K & K Construction Co. v. NLRB, 592 F. 2d 1228, 1231-1234 (CA3 1979); American Bread Co. v. NLRB, 411 F. 2d 147, 154-155 (CA6 1969); Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1, 3-4, 401 F. 2d 952, 954-955 (1968) ; Note, Consumer Picketing and the Single-Product Secondary Employer, 47 U. Chi. L. Rev. 112, 132-136 (1979).
See Local United Steelworkers (Dow Chemical Co.), 211 N. L. R. B. 649, 651-652 (1974), enf. denied, 173 U. S. App. D. C. 299, 524 F. 2d 853 (1975), vacated and remanded, 429 U. S. 807 (1976), complaint dism’d, 229 N. L. R. B. 302 (1977).
We do not disagree with Mr. Justice BreNnaüst’s dissenting view that successful secondary product picketing may have no greater effect upon a neutral than a legal primary boycott. Post, at 623. But when the neutral’s business depends upon the products of a particular primary employer, secondary product picketing can produce injury almost identical to the harm resulting from an illegal secondary boycott. See generally Duerr, Developing a Standard for Secondary Consumer Picketing, 26 Lab. L. J. 585 (1975). Congress intended § 8 (b) (4) (ii) (B) to protect neutrals from that type of coercion. Mr. Justice BrennaN’s view that the legality of secondary picketing should depend upon whether the pickets “urge only a boycott of the primary employer’s product,” post, at 622, would provide little or no protection. No well-advised union would allow secondary pickets to carry placards urging anything other than a product boycott. Section 8 (b) (4) (ii) (B) cannot bear a construction so inconsistent with the congressional intention to prevent neutrals from becoming innocent victims in contests between others.
The Union is responsible for the “foreseeable consequences” of its conduct. NLRB v. Operating Engineers, 400 U. S. 297, 304-305 (1971); see Radio Officers v. NLRB, 347 U. S. 17, 45 (1954). See also NLRB v. Denver Building Council, 341 U. S. 675, 689 (1951).
Representative Griffin, a sponsor of the Landrum-Griffin amendments that brought § 8 (b) (4) (ii) (B) into law, emphasized to the Congress that the statute would outlaw secondary picketing likely to coerce the neutral party. “If the purpose of the picketing,” he said, “is to coerce or to restrain the employer of that second establishment, to get him not to do business with the manufacturer — then such a boycott could be stopped.” 105 Cong. Rec. 15673 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1615 (1959).
Senator McClellan, who offered a bill quite similar to the statute actually adopted, noted that secondary picketing is particularly likely to coerce neutrals who have based their businesses upon one manufacturer’s products. He pointed out:
“[W]e have cases of merchants who for 20 years, 10 years, or for a long period of time, may have been handling a particular brand of product. A merchant may have built his business around the product, such as the John Deere plows or some kind of machinery from some other company. The merchant may have built up his trade entirely on that product.” 105 Cong. Rec. 6667 (1959), reprinted in 2 Legislative History, supra, at 1194.
The picketing in Tree Fruits and the picketing in this case are relatively extreme examples of the spectrum of conduct that the Board and the courts will encounter in complaints charging violations of § 8,(b) (4) (ii) (B). If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominant product, neither Tree Fruits nor today’s decision necessarily would control. The critical question would be whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss. Resolution of the question in each ease will be entrusted to the Board’s expertise.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
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"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
81
] |
CARTER et al. v. STANTON, DIRECTOR, MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, et al.
No. 70-5082.
Argued November 8, 1971
Decided April 3, 1972
Jon D. Noland argued the cause for appellants. With him on the briefs were John T. Manning and David F. Shadel.
Robert W. Oeddes argued the cause for appellee Stanton. With him on the brief were Harold W. Jones and Carl J. Meyer. Mark Peden, Deputy Attorney General of Indiana, argued the cause for appellee Ster-rett. With him on the brief were Theodore L. Sendak, Attorney General, William F. Thompson, Assistant Attorney General, and William F. Harvey.
Solicitor General Griswold and Richard B. Stone filed a brief for the United States as amicus curiae.
Per Curiam.
Appellants are women who contend that an Indiana welfare regulation governing eligibility for state and federal aid to dependent children contravenes the Fourteenth Amendment and the Social Security Act, 49 Stat. 627, as amended, 42 U. S. C. § 602 (a) (10). The regulation provides that a person who seeks assistance due to separation or the desertion of a spouse is not entitled to aid until the spouse has been continuously absent for at least six months, unless there are exceptional circumstances of need. Burns Ind. Admin. Rules & Regs. (52-1001 )-2 (1967). Appellants brought this action in the United States District Court for the Southern District of Indiana, basing jurisdiction on 42 U. S. C. § 1983 and 28 U. S. C. § 1343, and seeking both declaratory and injunc-tive relief. A three-judge court was convened pursuant to 28 U. S. C. § 2281. After a “preliminary hearing on defendants’ ” motion to dismiss “at which the court” received evidence upon which to resolve the matter, the court dismissed the complaint on the ground that none of the claimants had exercised her right under Indiana law to appeal from a county decision denying welfare assistance, Burns Ind. Admin. Rules & Regs. (52-1211)-1 (Supp. 1970), and therefore appellants had failed to exhaust administrative remedies. In the alternative, the court held that the pleadings did not present a substantial federal question and that the court lacked jurisdiction under 42 U. S. C. § 1983 and 28 U. S. C. §§ 2201, 2202. Carter v. Stanton, No. IP 70-C-124 (SD Ind., Dec. 11, 1970). This direct appeal followed and we noted probable jurisdiction. 402 U. S. 994 (1971).
Contrary to the State’s view, our jurisdiction of this appeal under 28 U. S. C. § 1253 is satisfactorily established. Sullivan v. Alabama State Bar, 394 U. S. 812, aff’g 295 F. Supp. 1216 (MD Ala. 1969); Whitney Stores, Inc. v. Summerford, 393 U. S. 9, aff’g 280 F. Supp. 406 (SC 1968). Also, the District Court plainly had jurisdiction of this case pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 1343. Damico v. California, 389 U. S. 416 (1967). Damico, an indistinguishable case, likewise establishes that exhaustion is not required in circumstances such as those presented here. Cf. McNeese v. Board of Education, 373 U. S. 668 (1963); Monroe v. Pape, 365 U. S. 167 (1961).
Finally, if the court’s characterization of the federal question presented as insubstantial was based on the face of the complaint, as it seems to have been, it was error. Cf. Dandridge v. Williams, 397 U. S. 471 (1970); Shapiro v. Thompson, 394 U. S. 618 (1969); Damico v. California, supra. But it appears that at the hearing on the motion to dismiss, which was based in part on the asserted failure “to state a claim upon which relief can be granted” (App. 19), matters outside the pleadings were presented and not excluded by the court. The court was therefore required by Rule 12 (b) of the Federal Rules of Civil Procedure to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56. Under Rule 56, summary judgment cannot be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If this is the course the District Court followed, its order is opaque and unilluminating as to either the relevant facts or the law with respect to the merits of appellants’ claim. In this posture of the case, we are unconvinced that summary judgment was properly entered. The judgment of the District Court is therefore vacated and the case is remanded to that court for proceedings consistent with this opinion.
So ordered.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Mr. Justice Douglas.
I agree that both this Court and the District Court have jurisdiction to entertain this case and that the appellants were not required to exhaust administrative remedies before launching their challenge. But, although the District Court should have made more complete findings of fact and conclusions of law, I would not remand simply on this score but would hold that the appellants are entitled to judgment.
The problem is simple and should be disposed of here.
The federal Act defines a “dependent child” as a “needy child . . . who has been deprived of parental support or care by reason of . . . continued absence from the home.” Indiana by its Board of Public Welfare has adopted the federal definition of “needy child.”
The term “continued absence from the home” is not defined in the federal Act, though HEW recommends “that no period of time be specified as a basis for establishing continued absence as an eligibility factor.” Indiana, however, has established by rule a definition of “continued absence” in case of “desertion or separation.” In those two instances it makes “continued absence” mean that “the absence shall have been continuous” for at least six months, except when the department of welfare finds there are “exceptional circumstances of need.”
A dependent child gets aid immediately and continuously in case the parent is incarcerated or in case the parent is inducted into the armed services. The six-month rule creates a separate class of needy children who by the federal standard may be as “needy” as those in the other two categories.
The federal Act directs that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” The federal regulation requires decisions on applications to be made “promptly” and “not in excess of” 30 days and that the assistance check or notification of denial be mailed within that period. As noted, the federal Act contains no waiting period to establish “continued absence.” And the HEW Handbook, already referred to, states as respects “continued absence” that “[a] child comes within this interpretation if for any reason his parent is absent.”
Here, as in California Human Resources Dept. v. Java, 402 U. S. 121, 135, the State’s program “tends to frustrate” the Social Security Act. King v. Smith, 392 U. S. 309, “establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v. Swank, 404 U. S. 282, 286. While a State has a legitimate interest in preventing fraud, there are, as we said in Shapiro v. Thompson, 394 U. S. 618, 637, “less drastic means” available “to minimize that hazard.” Rather than remanding for a lower court determination of the law of the case, the merits ought to be decided now inasmuch as (a) the facts are essentially undisputed, (b) the appellants’ claim based on the federal Act is plainly correct, and (c) further litigation would work a hardship upon welfare recipients affected by the Indiana rule. See generally Note, Individualized Criminal Justice In The Supreme Court: A Study Of Dispositional Decision Making, 81 Harv. L. Rev. 1260 (1968); Bell, Appellate Court Opinions And The Remand Process, 2 Ga. L. Rev. 526, 536 (1968).
The Indiana regulation so plainly collides with the federal Act that I would end this frivolous defense to this welfare litigation by deciding the merits and reversing by reason of the Supremacy Clause.
49 Stat. 629, as amended, 42 U. S. C. § 606 (a).
Ind. State Bd. of Pub. Welfare Reg. 2-400 (a).
Dept. of Health, Education, & Welfare Handbook of Public Assistance Administration, pt. IV, §3422.5 (1968).
Bums, Ind. Admin. Rules & Regs. (52-1001)-2 (1967): “When the continued absence is due to desertion or separation, the absence shall have been continuous for a period of at least six [6] months prior to the date of application for assistance to dependent children; except that under exceptional circumstances of need and where it is determined that the absence of a parent is actual and bona fide an application may be filed and a child may be considered immediately eligible upon a special finding of the county department of public welfare setting forth the facts and reasons for such action.”
42 U. S. C. §602 (a) (10).
45 CFR §206.10 (3), 36 Fed. Reg. 3864.
N. 3, supra.
Part IV, §3422.2, of the Handbook provides:
“Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care under the following circumstances:
“1. When the parent is out of the home;
“2. When the nature of the absence is such as either to interrupt or to terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child; and
“3. When the known or indefinite duration of the absence precludes counting on the parent’s performance of his function in planning for the present support or care of the child.
“A child comes within this interpretation if for any reason his parent is absent, and this absence interferes with the child’s receiving maintenance, physical care, or guidance from his parent, and precludes the parent’s being counted on for support or care of the child. For example: The child’s father has left home, without forewarning his family, and the mother really does not know why he left home, nor when or whether he will return.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
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"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
ALLEN, CHAIRMAN, TWELFTH REGION WAGE STABILIZATION BOARD, et al. v. GRAND CENTRAL AIRCRAFT CO.
No. 450.
Argued March 11-12, 1954.
Decided May 24, 1954.
Robert L. Stern argued the cause for appellants. With him on the brief were Solicitor General Sobelojf, Assistant Attorney General Burger, Samuel D. Slade, Herman Marcuse and Charles H. Kendall.
Richard W. Lund argued the cause for appellee. With him on the brief were Dana Latham and Paul R. Watkins.
Mr. Justice Burton
delivered the opinion of the Court.
The principal question for decision is whether the Defense Production Act of 1950 authorized the President to apply administrative action to the enforcement of its wage stabilization provisions. For the reasons hereafter stated, we decide that it did.
There is here also the question whether such administrative enforcement may be applied even after the restrictions placed on wages under Title IV of the Act have expired, provided the enforcement is limited to violations antedating such expiration. Our answer is in the affirmative.
Appellee further claims that the pending administrative proceeding should be enjoined because the mere conduct of that proceeding might cause it irreparable damage. For the reasons given below, we find that argument untenable.
]Appellee, Grand Central Aircraft Company, is a California corporation which was engaged, in 1951, in the production and repair of aircraft equipment in Glendale, California, and Tucson, Arizona. November 4, 1952, the Wage Stabilization Board filed a complaint with the National Enforcement Commission alleging in substance that appellee, between January 26, 1951, and January 1, 1952, had paid wage increases in violation of an order freezing wages at the levels of January 25, 1951. Those payments consisted of wages totaling about $5,500,000, including about $750,000 alleged to have been in excess of the wage ceilings. January 14, 1953, the National Enforcement Commission appointed Phil C. Neal to hear the evidence as an Enforcement Commissioner and to recommend to the Commission a determination of the issues in the proceeding. He set the case for hearing on February 24 at Los Angeles, California, but further action was enjoined, as stated below, so that the proceeding is still pending at that stage.
February 13, 1953, appellee filed the instant suit in the United States District Court for the Northern District of California, Southern Division. Appellee asked the court to restrain the defendant members of the Wage Stabilization Board, the National Enforcement Commission, officials of the Twelfth Region Wage Stabilization Board, and the Enforcement Commissioner, from proceeding with the administrative hearing. Only the regional officials and the Enforcement Commissioner were served. In its complaint, appellee denied that it had violated the Defense Production Act or any regulation or order under it. Appellee claimed also that the administrative procedure then being followed was unauthorized by the Constitution or any statute and that, even if originally authorized, that authorization had now expired. Finally, appellee claimed the hearing should be enjoined because the mere conduct of the proceeding would inflict irreparable damage upon it. A three-judge District Court, convened under 28 U. S. C. (1952 ed.) § 2282, granted the restraining order and interlocutory injunction sought by appellee against further conduct of the administrative proceeding. After hearing and trial, the injunction was made permanent. 114 F. Supp. 389. The order was then appealed to this Court under 28 U. S. C. (1952 ed.) § 1253. Stay of the injunction was denied, two Justices dissenting and one not participating. 345 U. S. 988. Probable jurisdiction of the appeal was noted. 346 U.S.920.
A somewhat comparable case was decided by a three-judge United States District Court for the Northern District of Texas in favor of an employer June 14, 1953, in Jonco Aircraft Cory. v. Franklin, 114 F. Supp. 392, with Chief Circuit Judge Hutcheson dissenting. That judgment was reversed by this Court, -per curiam, for failure of appellee to exhaust its administrative remedy. 346 U. S. 868.
I.
We consider first the claim to injunctive relief which appellee made on the ground that the conduct of the proposed administrative hearings would cause it irreparable damage by weakening its bank credit and depriving it of essential working capital. On that basis, interlocutory relief was granted pending the court’s determination of the ultimate issue of the validity of the administrative procedure. That injunction has been made permanent but the Government, on behalf of appellants, contends that appellee is acting prematurely in seeking such relief before carrying the prescribed administrative procedure at least to the point where it faces some immediate compulsion and greater probability of damage than it has established.
The proposed hearings are to be held before an Enforcement Commissioner with authority merely to recommend findings to a Regional Enforcement Commission subject to review by the National Enforcement Commission. Those findings may show no violation of wage ceilings. At most, they will be concerned with appellee’s alleged payment of wages in excess of wage ceilings to an extent of about $750,000. If such a violation of the ceilings is found by the National Enforcement Commission, it may then, under § 405 (b) of the Defense Production Act of 1950 and the President's delegated authority, certify to governmental agencies, including the Bureau of Internal Revenue for income-tax purposes, the disal-lowance of all or part of appellee’s illegal wage payments. Appellee argues that such proceedings carry the possibility of the disallowance as a business expense, for income-tax purposes, of $750,000, more or less, up to the total wages paid, exceeding $5,500,000. Appellee contends also that the mere threat of such action would jeopardize the bank credit upon which it depends for essential working capital. There is grave doubt of the right of appellee thus to test the validity of administrative procedure before exhausting it or bringing the issues closer to a focus than it has done. However, it is clear that once the right of the Government to hold administrative hearings is established, a litigant cannot enjoin them merely because they might jeopardize his bank credit or otherwise be inconvenient or embarrassing. Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752, 777-779. “[T]he expense and annoyance of litigation is ‘part of the social burden of living under government.’ ” Petroleum Exploration, Inc. v. Public Service Commission, 304 U. S. 209, 222. See also, Myers v. Bethlehem Corp., 303 U. S. 41, 47; Chicago & Southern Air Lines v. Waterman Corp., 333 U. S. 103, 112-113; Franklin v. Jonco Aircraft Corp., per curiam, 346 U. S. 868.
It is appellee’s principal claim that there is no properly authorized administrative procedure for it to exhaust and that the administrative authorities who seek to determine its case have no lawful right to do so. We, therefore, go directly to the heart of this controversy, which is the question whether the administrative enforcement of the 1950 yjage stabilization program has been validly authorized. /
II.
The procedure in question is prescribed by General Procedural Regulation 1, Revised, issued by the Economic Stabilization Administrator, August 21, 1952, 17 Fed. Reg. 7737. The hearings are to be conducted regionally by an Enforcement Commissioner and provision is made for appeal to the National Enforcement Commission. That Commission (NEC) is authorized to issue a certificate of disallowance prescribing the amount of wages to be disregarded by the executive departments and other governmental agencies in determining the costs and expenses of appellee for the purposes of any other law or regulation. ESA Gen. Order No. 18, July 28, 1952, 17 Fed. Reg. 6925. Standards of action are prescribed by the Economic Stabilization Administrator in his General Order No. 15, April 3, 1952, 17 Fed. Reg. 2994. Appellee does not complain of noncompliance with these regulations. It complains rather that they are not authorized by statute or that, if purporting to be so authorized, the statute violates the Federal Constitution.
The Government finds authority for the creation of this administrative machinery in § 405 (b) of the Defense Production Act of 1950, when read in connection with the entire Act. That section is derived from § 5 (a) of the Stabilization Act of 1942, 56 Stat. 767, 50 U. S. C. App. (1946 ed.) § 965 (a). To read the Defense Production Act of 1950 without reference to this model is to read it out of the context in which Congress enacted it.
The Stabilization Act of 1942 was a vital wartime measure, adopted October 2, 1942, directing the President “on or before November 1, 1942, to issue a general order stabilizing prices, wages, and salaries, affecting the cost of living.” In it, Congress relied upon presidential action geared to the critical necessity for speedy compliance. Its purpose was to check inflation. It subordinated individual convenience to nationwide standards. Its sanctions were entrusted to administrative agencies capable of prompt action. Section 5 (a) provided that—
“No employer shall pay, and no employee shall receive, wages or salaries in contravention of the regulations promulgated by the President under this Act. The President shall also prescribe the extent to which any wage or salary payment made in contravention of such regulations shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any employer for the purposes of any other law or regulation.” 56 Stat. 767, 50 U. S. C. App. (1946 ed.) § 965 (a).
The Act granted the President broad powers to promulgate regulations. October 3, 1942, he issued Executive Order No. 9250, 7 Fed. Reg. 7871, “to control so far as possible the inflationary tendencies and the vast dislocations attendant thereon which threaten our military-effort and our domestic economic structure, and for the more effective prosecution of the war.” That order established an Office of Economic Stabilization, headed by an Economic Stabilization Director. In Title II it established a national “Wage and Salary Stabilization Policy.” This placed wage rates under the control of the National War Labor Board and froze them generally at the levels prevailing September 15, 1942. In Title III it authorized the National War Labor Board to issue rules and regulations “for the speedy determination of the propriety of any wage increases or decreases in accordance with this Order.” It thus established administrative processes for making specific determinations of wages paid in contravention of the Act. The same processes also enabled the Government, through other agencies, to disregard such illegal payments when computing taxes, compensation under cost-plus contracts and other governmental transactions.
October 27, 1942, James F. Byrnes, the Economic Stabilization Director, with the personal approval of the President, issued the regulations which later were to serve as the model for the regulations now before us. They delegated to the National War Labor Board authority to certify, to all executive departments and other agencies of the Government, disallowances of payments of wages based upon the Board’s determination of their violation of the Act.
July 30, 1943, the Board adopted rules to govern its procedures and those of Regional War Labor Boards in dealing with violation of the wage stabilization program. Those regulations likewise are comparable to the ones involved in this case. 9 Fed. Reg. 4681 et seg.
Nearly 100,000 proceedings were thus held and disal-lowances of nearly $30,000,000 were made up to February 24, 1947, Those proceedings were matters of general public knowledge and were well known to Congress. They support the natural presumption that Congress, in its subsequent actions, accepted them as legitimate interpretations of the Stabilization Act. Shapiro v. United States, 335 U. S. 1, 16; Helvering v. Winmill, 305 U. S. 79, 82-83; Norwegian Nitrogen Co. v. United States, 288 U. S. 294, 310-315; Hecht v. Motley, 265 U. S. 144, 153.
Under the Act of 1942, the President thus determined, through his administrative agencies, many specific violations of the prescribed wage ceilings. It was the practice of those administrative agencies to certify to other departments and agencies specific disallowances of the wages paid in violation of such ceilings. See Troy Laundry Co. v. Wirtz, 155 F. 2d 53; Woodworth Co. v. Kavanagh, 102 F. Supp. 9, aff’d, 202 F. 2d 154.
A comparison of the terms of the Act of 1942 with those of the Defense Production Act of September 8, 1950, and a comparison of the regulations and practice under those Acts is impressive.
Section 405 (b) of the later Act is as follows:
“No employer shall pay, and no employee shall receive, any wage, salary, or other compensation in contravention of any regulation or order promulgated by the President under this title. The President shall also prescribe the extent to which any wage, salary, or compensation payment made in contravention of any such regulation or order shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any employer for the purposes of any other law or regulation.” 64 Stat. 807, 50 U. S. C. App. (1946 ed., Supp. V) § 2105 (b).
It follows, almost word for word, the language of § 5 (a) of the earlier Act, supra, at p. 542. While it substitutes the phrase “any wage, salary, or other compensation” in place of “wages or salaries,” and the phrase “any regulation or order” in place of “the regulations,” the substance of the two sections is inescapably the same.
The Act of 1950 granted the President broad powers to make regulations under it and to delegate the authority conferred upon him by it. His orders and regulations follow the pattern of the earlier ones. September 9, 1950, he issued Executive Order No. 10161, 15 Fed. Reg. 6105, 6106, Part IV of which created a new agency known as the Economic Stabilization Agency, headed by an Economic Stabilization Administrator. To him the President delegated responsibility for wage stabilization. He established, within such agency, a Wage Stabilization Board with functions to be determined by the Administrator. January 24,1951, Eric Johnston, then the Administrator, delegated to that Board his functions of wage stabilization. ESA Gen. Order No. 3, 16 Fed. Reg. 739. January 26, he froze wages generally at the levels prevailing January 25. Gen. Wage Stabilization Regulation No. 1, 16 Fed. Reg. 816.
Enforcement under the Act of 1950 thus closely resembled enforcement under the Act of 1942. June 13, the Wage Stabilization Board established a National Enforcement Commission and authorized the establishment of Regional Enforcement Commissions. Such Commissions were authorized to make determinations of wage violations and the disallowances of specific wage payments under §405 (b). Those determinations were to be “conclusive for the purpose therein stated. The executive departments and other agencies of the government which receive certifications of such determinations shall disregard and disallow the amount thus certified.” WSB Enforcement Resolution No. 1, § 1 (c), 16 Fed. Reg. 6028, 6029. June 28, this procedure was further described in a resolution of the War Stabilization Board. 16 Fed. Reg. 7284.
April 3, 1952, the Economic Stabilization Administrator, in General Order No. 15, 17 Fed. Reg. 2994, prescribed the standards to be followed in making dis-allowances, including a recognition of extenuating and mitigating circumstances.
Effective July 30, 1952, § 403 (b) of the Act was amended to establish a new Wage Stabilization Board. 66 Stat. 300-301. Its functions were defined by the Economic Stabilization Administrator in ESA General Order No. 16, 17 Fed. Reg. 6925. On the same day, he issued ESA General Order No. 18, 17 Fed. Reg. 6925, defining the functions of the National Enforcement Commission. The order covered the Commission’s authority to determine and certify specific disallowances in accordance with the standards prescribed in General Order No. 15, supra. The language and substance is obviously reminiscent of that under the Act of 1942.
The legislative history confirms the parallel nature of the two programs. The occasion for the Act of 1950 was the recurring need to check inflation. The military-demands in Korea and elsewhere in 1950 made it necessary to maintain a large production of military goods while seeking also to meet the long-denied and increasing needs of the Nation’s civil economy. The 1950 Act expressly declared its purpose. Congress reenacted, on a temporary basis, the emergency powers of the President which had been effective during World War II.
The Senate Report on the 1950 bill expressly said:
“This subsection [405 (b)] adopts the language of the Stabilization Act of October 2, 1942, respecting the penalties to be applied for violations of the wage and salary stabilization program. The committee finds that the disallowance of illegal wage payments as a cost of doing business, for purposes of computing taxes, Government contract payments, and for purposes of establishing price ceilings, was an effective deterrent.” S. Rep. No. 2250, 81st Cong., 2d Sess. 39.
The regulations, procedures and practices comparable to those under the Act of 1942 were fully reported to Congress.
Despite this history of administrative enforcement under the 1942 Act, appellee claims that, under the 1950 Act, the President had no authority to apply administrative action to the enforcement of wage stabilization. Appellee argues that § 706 of the later Act, as set forth in the margin, vested enforcement of the Act in the District Courts and thus left to the President only authority to promulgate general regulations. We do not agree. Section 706 appears in Title VII containing the so-called “general provisions” of the Act. Appellee reads the section as sharply restricting the administrative procedure which we have just described. Such an interpretation, however, cannot be given to it in the face of § 405 (b). Instead of sharply restricting the revival of administrative enforcement of wage ceilings under § 405 (b), we read § 706 as primarily applicable to other activities under the Act. It applies naturally enough to price controls, credit controls and allocations of material. We hold that the specific language of § 405 (b) should receive the same construction now that was placed on similar language in the Act of 1942. The “general provisions” of § 706 do not restrict the specific provisions of § 405 (b) now reenacted.
The correctness of the above interpretation was underscored July 31, 1951, when Congress inserted a new § 405 (a). In language strikingly similar to § 405 (b), that new section introduced administrative enforcement for price controls. Obviously it was not to be substantially eliminated by the existing provisions of § 706. As the specific language of § 405 (a) is thus controlling over the general provisions of § 706, so the same specific language in § 405 (b) is controlling over those same provisions.
| We have noted the other arguments submitted by-appellee concerning the interpretation and constitutionality of the statute but it would be premature action on our part to rule upon these until after the required administrative procedures have been exhausted.]
III.
Finally, appellee contends that, by the termination of the substantive provisions of the Defense Production Act of 1950, all authority has now expired for determining or disallowing past, as well as future, payments made in violation of wage ceilings.
As the Act is a temporary statute, the effect of its expiration is governed by the following general savings statute:
“The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” (Emphasis supplied.) 1 U. S. C. (1952 ed.) § 109.
We find no express, or even implied, provision in the Act contrary to the policy of the general savings statute. All of the alleged violations here involved occurred in 1951. The substantive provisions of Title IV relating to wage stabilization and the supporting orders fixing the wage ceilings here at issue did not expire until April 30, 1953. Neither that expiration date nor the six-month extension of it for liquidation purposes restricts the general provision of § 109 as to the survival of enforcement proceedings.
The precise object of the general savings statute is to prevent the expiration of a temporary statute from cutting off appropriate measures to enforce the expired statute in relation to violations of it, or of regulations issued under it, occurring before its expiration. United States v. Allied Oil Corp., 341 U. S. 1, 5; Fleming v. Mohawk Co., 331 U. S. 111.
A similar situation followed the expiration, in 1946, of the substantive provisions of the Stabilization Act of 1942, and we have seen that the enforcement proceedings continued under it until 1949. See note 11, supra. On that occasion the authority to make disallowances was transferred to the Department of the Treasury. Exec. Order No. 9809, ¶10 (b), 11 Fed. Reg. 14281, 14283. In the present instance, wage stabilization enforcement has been transferred to the Director of the Office of Defense Mobilization. Exec. Order No. 10494, October 14,1953,18 Fed. Reg. 6585. The authority of the President to make such a delegation of his powers appears in §§ 703 and 705, and such authority remains effective until June 30, 1955, § 717 (a), note 23, supra.
The validity of the pending administrative proceeding being thus upheld, the judgment of the District Court enjoining that proceeding is
Reversed.
64 Stat. 798, as amended, 65 Stat. 131, 66 Stat. 296, 67 Stat. 129, 50 U. S. C. App. (1946 ed., Supp. V) §2061 et seq.
“TITLE IV — PRICE AND WAGE STABILIZATION” containing §§ 401-412, 64 Stat. 803-812, 66 Stat. 304, and see 50 U. S. C. App. (1946 ed., Supp. V) §§2101-2110.
Created, within the Economic Stabilization Agency, by § 403 (b) of the Defense Production Act, June 30, 1952, 66 Stat. 300-301. See also, Exec. Order No. 10377, 17 Fed. Reg. 6891; ESA Gen. Order No. 16, 17 Fed. Reg. 6925.
ESA Gen. Order No. 18, effective July 30, 1952, 17 Fed. Reg. 6925, as amended at 9977, established NEC within the ESA and defined the functions of NEC.
Gen. Wage Stabilization Regulation 1, issued by Economic Stabilization Administrator, January 26, 1951, 16 Fed. Reg. 816.
The Government states that Neal, who is one of the appellants, is now on the staff of the Office of Defense Mobilization and is authorized and ready to conduct the hearing if the injunction is lifted.
56 Stat. 765, 50 U. S. C. App. (1946 ed.) §961 et seq. The Stabilization Act itself was an amendment to the Emergency Price Control Act of 1942, approved January 30, 1942, 56 Stat. 23, 50 U. S. C. App. (1946 ed.) § 901 et seq. For its title, see 58 Stat. 643. It was temporary legislation. Its termination date was June 30, 1944, or “such earlier date as the Congress by concurrent resolution, or the President by proclamation, may prescribe.” 56 Stat. 767. That date was postponed, one year at a time, to June 30, 1947. 58 Stat. 643, 59 Stat. 306, 60 Stat. 664, 50 U. S. C. App. (1946 ed.) §966.
“Sec. 2. The President may, from time to time, promulgate such regulations as may be necessary and proper to carry out any of the provisions of this Act; and may exercise any power or authority conferred upon him by this Act through such department, agency, or officer as he shall direct. . . .” 56 Stat. 765, 50 U. S. C. App. (1946 ed.) § 962.
Office of Economic Stabilization — Pt. 4001 — Wages and Salaries, 7 Fed. Reg. 8748 et seq. Subsequent amendments did not change the provisions for making tax disallowances based upon specific administrative determinations.
Ҥ 4001.2 Authority of National War Labor Board. The Board shall . . . have authority to determine whether any
“(a) Wage payments . . .
“are made in contravention of the Act, or any rulings, orders or regulations promulgated thereunder. Any such determination by the Board, made under rulings and orders issued by it, that a payment is in contravention of the Act, or any rulings, orders, or regulations promulgated thereunder, shall be conclusive upon all Executive Departments and agencies of the Government in determining the costs or expenses of any employer for the purpose of any law or regulation, either heretofore or hereafter enacted or promulgated, including the Emergency Price Control Act of 1942 or any maximum price regulation thereof, or for the purpose of calculating deductions under the revenue laws of the United States, or for the purpose of determining costs or expenses under any contract made by or on behalf of the United States. Any determination of the Board made pursuant to the authority conferred on it shall be final and shall not be subject to review by The Tax Court of the United States or by any court in any civil proceedings.” 7 Fed. Reg., at 8749.
From October 3, 1942, to December 29, 1945, 68,233 cases, resulting in disallowances of $19,018,820.19, were handled by the National War Labor Board. 1 Termination Report, National War Labor Board, 428-441. From January 1, 1946, to January 30, 1947, 30,071 cases, resulting in disallowances of $11,822,609, were handled by the National Wage Stabilization Board. National Wage Stabilization Board (1946-1947) 223-235. While many cases resulted in findings of no violation or were closed without penalty or dis-allowance, many others were terminated with disallowances, either by consent or after hearings. There were 282 appeal cases processed by the National Boards, and although the controls were terminated in November 1946 by Executive Order No. 9801, 11 Fed. Reg. 13435, the enforcement activities, based on earlier violations, were carried on by the Department of the Treasury until 1949. See Ann. Reps, of the Commissioner of Internal Revenue 62-63 (1947); 33-34 (1948); 26-27 (1949).
Not only was the life of the Act extended three times (see note 7, supra) but its administration was reviewed during annual appropriation hearings. See Hearings before the House Subcommittee on Appropriations on National War Agencies Appropriation Bills for 1944, Pt. 2, 78th Cong., 1st Sess. 667-668; for 1945, Pt. 1, 78th Cong., 2d Sess. 240-241, 303-304; for 1946, 79th Cong., 1st Sess. 12-13.
“Sec. 403. (a) At such time as the President determines that it is necessary to impose price and wage controls generally over a substantial portion of the national economy, he shall administer such controls . . . through a new independent agency created for such purpose: .... Such agency may utilize the services, information, and facilities of other agencies and departments of the Government, but such agency shall not delegate enforcement of any of the controls to be administered by it under this section to any other agency or department.” 64 Stat. 807, as amended, 65 Stat. 137, 66 Stat. 300. See 50 U. S. C. App. (1946 ed., Supp. V) §2103. (Delegations as to the enforcement of controls, accordingly, were made only to officials within the new independent agency known as the Economic Stabilization Agency.)
“Sec. 703. (a) Except as otherwise specifically provided, the President may delegate any power or authority conferred upon him by this Act to any officer or agency of the Government, including any new agency or agencies (and the President is hereby authorized to create such new agencies, other than corporate agencies, as he deems necessary), and he may authorize such redelegations by that officer or agency as the President may deem appropriate. . . .” 64 Stat. 816, 50 U. S. C. App. (1946 ed., Supp. V) § 2153 (a).
“Sec. 704. The President may make such rules, regulations, and orders as he deems necessary or appropriate to carry out the provisions of this Act. Any regulation or order under this Act may be established in such form and manner, may contain such classifications and differentiations, and may provide for such adjustments and reasonable exceptions as in the judgment of the President are necessary or proper to effectuate the purposes of this Act, or to prevent circumvention or evasion, or to facilitate enforcement of this Act, or any rule, regulation, or order issued under this Act.” 64 Stat. 816, see 50 U. S. C. App. (1946 ed., Supp. V) § 2154.
“Sec. 4. Functions of the National Enforcement Commission. (a) The functions of the National Enforcement Commission (hereinafter referred to as the Commission) shall be, with respect to persons within the jurisdiction of the Wage Stabilization Board, the Salary Stabilization Board and the Office of Salary Stabilization, and the Railroad and Airline Wage Board, to determine whether any wage, salary, or other compensation has been paid or accrued, at any time, in violation or contravention of any provision of the Defense Production Act of 1950, as amended, or any regulation or order or directive heretofore or hereafter promulgated under the act. Such determination shall be made by the Commission after any of the foregoing named constituent organizations of this Agency have instituted an enforcement proceeding before it or after any such organization has submitted a settlement proposal to the Commission for its approval. Such determination shall be final within the Economic Stabilization Agency.
“ (b) The Commission is further authorized to certify and transmit such determinations in accordance with the policy and procedure set forth in Economic Stabilization Agency General Order No. 15, and other orders, directives, general policies or general regulations of the Economic Stabilization Administrator.
“Sec. 5. Redelegation of authority, (a) The authority delegated to the Economic Stabilization Administrator with respect to the imposition of disallowance sanctions under section 405 (b) of the Defense Production Act, as amended, for the violation or contravention of any provisions of, or any orders or any regulations issued under said act, as amended, relating to the payment of wages, salaries, or other compensation, is hereby redelegated to the Commission, in accordance with the functions described above.” 17 Fed. Reg., at 6926.
“Sec. 2. ... The United States is determined to develop and maintain whatever military and economic strength is found to be necessary to carry out this purpose. Under present circumstances, this task requires diversion of certain materials and facilities from civilian use to military and related purposes. It requires expansion of productive facilities beyond the levels needed to meet the civilian demand. In order that this diversion and expansion may proceed at once, and that the national economy may be maintained with the maximum effectiveness and the least hardship, normal civilian production and purchases must be curtailed and redirected.
“It is the objective of this Act to provide the President with authority to accomplish these adjustments in the operation of the economy. It is the intention of the Congress that the President shall use the powers conferred by this Act to promote the national defense, by meeting, promptly and effectively, the requirements of military programs in support of our national security and foreign policy objectives, and by preventing undue strains and dislocations upon wages, prices, and production or distribution of materials for civilian use, within the framework, as far as practicable, of the American system of competitive enterprise.” 64 Stat. 798, 799, 50 U. S. C. App. (1946 ed., Supp. V) § 2062.
See S. Rep. No. 2250, 81st Cong., 2d Sess. A-5, 20-40.
The 1950 Act, generally, was to terminate June 30, 1952. Title IV, as to price and wage stabilization, was to expire June 30, 1951. 64 Stat. 822. The latter date was extended to April 30, 1953. 66 Stat. 306, 67 Stat. 131. The survival of enforcement procedure in relation to prior violations is discussed in Section III of this opinion.
First Ann. Rep. of the Joint Committee on Defense Production, S. Rep. No. 1040, 82d Cong., 1st Sess. 98-103 (1951); Second Ann. Rep. of the same Committee, S. Rep. No. 3, 83d Cong., 1st Sess. 108-119 (1952).
“Sec. 706. (a) Whenever in the judgment of the President any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the President that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order, with or without such injunction or restraining order, shall be granted without bond.
“(b) The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have jurisdiction of violations of this Act or any rule, regulation, order, or subpena thereunder, and of all civil actions under this Act to enforce any liability or duty created by, or to enjoin any violation of, this Act or any rule, regulation, order, or subpena thereunder. Any criminal proceeding on account of any such violation may be brought in any district in which any act, failure to act, or transaction constituting the violation occurred. Any such civil action may be brought in any such district or in the district in which the defendant resides or transacts business. Process in such cases, criminal or civil, may be served in any district wherein the defendant resides or transacts business or wherever the defendant may be found; the subpena for witnesses who are required to attend a court in any district in such case may run into any other district. The termination of the authority granted in any title or section of this Act, or of any rule, regulation, or order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore or thereafter commenced, with respect to any right, liability, or offense incurred or committed prior to the termination date of such title or of such rule, regulation, or order. No costs shall be assessed against the United States in any proceeding under this Act. All litigation arising under this Act or the regulations promulgated thereunder shall be under the supervision and control of the Attorney General.” 64 Stat. 817-818, as amended, 65 Stat. 139, 50 U. S. C. App. (1946 ed., Supp. V) § 2156.
That this is a logical interpretation of § 706 is emphasized by the fact that the bills which became the Act of 1950 contained, when introduced, provisions for credit and commodity controls but no provisions for wage stabilization. Thus the section that was to become § 706 originally had no reference to wage stabilization. Title IY, including § 405 (b) as to wage stabilization, was inserted in Committee. The separate origins of §§ 405 (b) and 706 point to the separate effect which should be given to them. See S. Rep. No. 2250, 81st Cong., 2d Sess. 5.
“. . . The President shall also prescribe the extent to which any payment made, either in money or property, by any person in violation of any such regulation, order, or requirement [as to price control] shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any such person for the purposes of any other law or regulation, including bases in determining gain for tax purposes.” 65 Stat. 136, 50 U. S. C. App. (1946 ed., Supp. V) §2105 (a).
This interpretation of § 405 (a) and (b) is consistent, likewise, with the interpretation given to § 5 of the Stabilization Act of 1942. The Stabilization Act of 1942 was superimposed on the Emergency Price Control Act of 1942, 56 Stat. 23, which already contained general provisions for judicial enforcement. The solution reached was to apply those general provisions (§ 205 (a) (b) and (c)) without restricting the administrative procedure prescribed in § 5 for wage control. 56 Stat. 33, 50 U. S. C. App. (1946 ed.) §925 (a)(b)(c).
Finally, the text of § 403 uses the word “enforcement” in referring to the powers of the administrative agencies in connection with wage controls. In referring to the new agency to be created, it provides that “such agency shall not delegate enforcement of any of the controls to be administered by it under this section to any other agency or department.” (Emphasis supplied.) 64 Stat. 807, 50 U. S. C. App. (1946 ed., Supp. V) §2103.
See also, the Conference Report on the Defense Production Act Amendments of 1952 which said: “The conference substitute is not intended to preclude the [Wage Stabilization] Board from, as at present, enforcing wage stabilization regulations and policies.” (Emphasis supplied.) H. R. Rep. No. 2352, 82d Cong., 2d Sess. 24.
The constitutional objections suggested are that the Act and proceedings which have been taken and are proposed under it violate (1) the Fifth Amendment by depriving appellee of property without due process of law; (2) the Sixth or Seventh Amendment by depriving appellee of the right to a jury trial; (3) the Eighth Amendment in authorizing excessive fines; (4) Article I, § 9, by authorizing an unapportioned direct tax; (5) Article I, § 1, by improper delegation of legislative power to the Executive; and (6) the Tenth Amendment by attempting to legislate on matters reserved to the
“Sec. 717. (a) Title I [priorities and allocations] . . . title III [expansion of productive capacity and supply], and title VII [general provisions] ... of this Act, and all authority conferred thereunder, shall terminate at the close of June 30, 1955. . . . Titles IV [price and wage stabilization] and V [settlement of labor disputes] of this Act, and all authority conferred thereunder, shall terminate at the close of April 30, 1953.
“(b) Notwithstanding the foregoing—
“(3) Any agency created under this Act may be continued in existence for purposes of liquidation for not to exceed six months after the termination of the provision authorizing the creation of such agency.” 64 Stat. 822, as amended, 65 Stat. 144, 66 Stat. 306, 67 Stat. 131.
Executive Order No. 10434, February 6, 1953, 18 Fed. Reg. 809, suspended the wage stabilization program but provided that “This order shall not operate to defeat any suit, action, prosecution, or administrative enforcement proceeding, whether heretofore or hereafter commenced, with respect to any right, liability, or offense possessed, incurred, or committed, prior to this date.”
See also, Hearings before the House Subcommittees on Appropriations, Pt. 1, 83d Cong., 1st Sess. 439-441, on The Supplemental Appropriation Bill, 1954, introduced in the House as H. R. 6200, and those on the same bill before the Senate Committee on Appropriations, 83d Cong., 1st Sess. 423-431.
“. . . Though most of the controls have been lifted, the Act is still in effect. Liabilities incurred prior to the lifting of controls are not thereby washed out. United States v. Hark, 320 U. S. 531, 536; Utah Junk Co. v. Porter, 328 U. S. 39, 44; Collins v. Porter, 328 U. S. 46, 49. And Congress has explicitly provided that accrued rights and liabilities under the Emergency Price Control Act are preserved whether or not suit is started prior to the termination date of the Act. If investigation were foreclosed at this stage, such rights as may exist would be defeated, contrary to the policy of the Act.” Fleming v. Mohawk Co., 331 U. S. 111, 119.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
|
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] |
[
79
] |
LINN v. UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, et al.
No. 45.
Argued November 18, 1965.
Decided February 21, 1966.
Donald F. Welday argued the cause for petitioner. With him on the brief was Donald F. Welday, Jr.
Winston L. Livingston argued the cause for respondents. With him on the brief were Harold A. Cranefield and Nancy Jean Van Lopik.
Solicitor General Marshall argued the cause for the United States, as amicus curiae, by special leave of Court, urging reversal. With him on the brief were Arnold Ordman, Dominick L. Manoli, Norton J. Come and Laurence S. Gold.
Paul L. Jaffe filed a brief for Schnell Tool & Die Corp. et al., as amici curiae.
Mu. Justice Clark
delivered the opinion of the Court.
The case before us presents the question whether, and to what extent, the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. § 141 et seq. (1964 ed.), bars the maintenance of a civil action for libel instituted under state law by an official of an employer subject to the Act, seeking damages for defamatory statements published during a union organizing campaign by the union and its officers. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter. It held that such conduct “would arguably constitute an unfair labor practice under Section 8 (b)” of the Act and that San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), compelled a dismissal on pre-emption grounds. The Court of Appeals affirmed, 337 F. 2d 68, assuming without deciding that the statements in question were “false, malicious, clearly libelous and damaging to plaintiff Linn, albeit they were relevant to the union’s campaign.” At p. 69. We granted certiorari, 381 U. S. 923. We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. The judgment is, therefore, reversed.
I.
Petitioner Linn, an assistant general manager of Pinkerton’s National Detective Agency, Inc., filed this suit against the respondent union, two of its officers and a Pinkerton employee, Leo J. Doyle. The complaint alleged that, during a campaign to organize Pinkerton’s employees in Detroit, the respondents had circulated among the employees leaflets which stated inter alia:
“(7) Now we find out that Pinkerton’s has had a large volume of work in Saginaw they have had it for years.
“United Plant Guard Workers now has evidence
“A. That Pinkerton has 10 jobs in Saginaw, Michigan.
“B. Employing 52 men.
“C. Some of these jobs are 10 yrs. old!
“(8) Make you feel kind sick & foolish.
“(9) The men in Saginaw were deprived of their right to vote in three N. L. R. B. elections. Their names were not summitted [sic]. These guards were voted into the Union in 1959! These Pinkerton guards were robbed of pay increases. The Pinkerton manegers [sic] were lying to us — all the time the contract was in effect. No doubt the Saginaw men will file criminal charges. Somebody may go to Jail!”
The complaint further alleged that Linn was one of the managers referred to in the leaflet, and that the statements in the leaflet were “wholly false, defamatory and untrue” as respondents well knew. It did not allege any actual or special damage but prayed for the recovery of $1,000,000 on the ground that the accusations were libelous per se. Federal jurisdiction was based on diversity of citizenship.
All respondents, save Doyle, moved to dismiss, asserting that the subject matter was within the exclusive jurisdiction of the Board. The record indicates that prior to the institution of this action Pinkerton had filed unfair labor practice charges with the Regional Director of the Board, alleging that the distribution of the leaflets, as well as other written material, had restrained and coerced Pinkerton’s employees in the exercise of their § 7 rights, in violation of § 8 (b)(1)(A) of the Act. The Regional Director refused to issue a complaint. Finding that the leaflets were circulated by Doyle, who was “not an officer or member of the charged union, nor was there any evidence that he was acting as an agent of such union,” he concluded that the union was not responsible for the distribution of the leaflets and that the charge was, therefore, “wholly without basis.” This ruling was sustained by the General Counsel of the Board some two months after this suit was filed.
In an unpublished opinion the District Judge dismissed the complaint holding, as we have already noted, that even if the union were responsible for distributing the material the case was controlled by Garmon, supra. The Court of Appeals affirmed, limiting its holding “to a suit for libelous statements growing out of and relevant to a union’s campaign to organize the employees of an employer subject to the National Labor Relations Act.” At 72.
II.
The question before us has been a recurring one in both state and federal tribunals, involving the extent to which the National Labor Relations Act, as amended, supersedes state law with respect to libels published during labor disputes. Its resolution entails accommodation of the federal interest in uniform regulation of labor relations with the traditional concern and responsibility of the State to protect its citizens against defamatory attacks. The problem is aggravated by the fact that the law in many States presumes damages from the publication of certain statements characterized as actionable per se. Labor disputes are ordinarily heated affairs; the language that is commonplace there might well.be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language. Cafeteria Union v. Angelos, 320 U. S. 293, 295 (1943). It is therefore necessary to determine whether libel actions in such circumstances might interfere with the national labor policy.
Our task is rendered more difficult by the failure of the Congress to furnish precise guidance in either the language of the Act or its legislative history. As Mr. Justice Jackson said for a unanimous Court in Garner v. Teamsters Union, 346 U. S. 485, 488 (1953): “The . . . Act . . . leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.”
The Court has dealt with specific pre-emption problems arising under the National Labor Relations Act on many occasions, going back as far as Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740 (1942). However, in framing the pre-emption question before us we need look primarily to San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). There in most meticulous language this Court spelled out the “extent to which the variegated laws of the several States are displaced by a single, uniform, national rule . . . .” At 241. The Court emphasized that it was for the Board and the Congress to define the “precise and closely limited demarcations that can be adequately fashioned only by legislation and administration,” while “[o]ur task is confined to dealing with classes of situations.” At 242. In this respect, the Court concluded that the States need not yield jurisdiction “where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. . . [o]r where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” At 243-244. In short, as we said in Plumbers’ Union v. Borden, 373 U. S. 690, 693-694 (1963):
“[I]n the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act. This relinquishment of state jurisdiction ... is essential ‘if the danger of state interference with national policy is to be averted/ . . . and is as necessary in a suit for damages as in a suit seeking equitable relief. Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to Labor Board cognizance.”
We note that the Board has given frequent consideration to the type of statements circulated during labor controversies, and that it has allowed wide latitude to the competing parties. It is clear that the Board does not “police or censor propaganda used in the elections it conducts, but rather leaves to the' good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements.” Stewart-Warner Corp., 102 N. L. R. B. 1153, 1158 (1953). It will set aside an election only where a material fact has been misrepresented in the representation campaign; opportunity for reply has been lacking; and the misrepresentation has had an impact on the free choice of the employees participating in the election. Hollywood Ceramics Co., 140 N. L. R. B. 221, 223-224 (1962); F. H. Snow Canning Co., 119 N. L. R. B. 714, 717-718 (1957). Likewise, in a number of cases, the Board has concluded that epithets such as “scab,” “unfair,” and “liar” are com-
monplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute. Yet the Board indicated that its decisions would have been different had the statements been uttered with actual malice, “a deliberate intention to falsify” or “a malevolent desire to injure.” E. g., Bettcher Mjg. Corp., 76 N. L. R. B. 526 (1948); Atlantic Towing Co., 75 N. L. R. B. 1169, 1170-1173 (1948). In sum, although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false. See Maryland Drydock Co. v. Labor Board, 183 F. 2d 538 (C. A. 4th Cir. 1950). In such case the one issuing such material forfeits his protection under the Act. Walls Manufacturing Co., 137 N. L. R. B. 1317, 1319 (1962).
In the light of these considerations it appears that the exercise of state jurisdiction here would be a “merely peripheral concern of the Labor Management Relations Act,” provided it is limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true or false. Moreover, we believe that “an overriding state interest” in protecting its residents from malicious libels should be recognized in these circumstances. This conclusion is buttressed by our holding in United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954), where Mr. Justice Burton writing for the Court held:
“To the extent . . . that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated. The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no conflict had existed, the state procedure would have survived.” At 665.
In United Automobile Workers v. Russell, 356 U. S. 634 (1958), we again upheld state jurisdiction to entertain a compensatory and punitive damage action by an employee for malicious interference with his lawful occupation. In each of these cases the “type of conduct” involved, i. e., “intimidation and threats of violence,” affected such compelling state interests as to permit the exercise of state jurisdiction. Garmon, supra, at 248. We similarly conclude that a State’s concern with redressing malicious libel is “so deeply rooted in local feeling and responsibility” that it fits within the exception specifically carved out by Garmon.
We acknowledge that the enactment of § 8 (c) manifests a congressional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered “against the background of a profound . . . commitment to the principle that debate . . . should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in .any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses.
III.
Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual’s reputation — whether he be an employer or union official — has no relevance to the Board’s function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.
On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The Board’s lack of concern with the “personal” injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption. As stressed by The Chief Justice in his dissenting opinion in Russell, supra:
“The unprovoked, infliction of personal injuries during a period of labor unrest is neither to be expected nor to be justified, but economic loss inevitably attends work stoppages. Furthermore, damages for personal injuries may be assessed without regard to the merits of the labor controversy . . . .” At 649.
Judicial condemnation of the alleged attack on Linn’s character would reflect no judgment upon the objectives of the union. It would not interfere with the Board’s jurisdiction over the merits of the labor controversy.
But it has been insisted that not only would the threat of state libel suits dampen the ardor of labor debate and truncate the free discussion envisioned by the Act, but that such suits might be used as weapons of economic coercion. Moreover, in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers. In order that the recognition of legitimate state interests does not interfere with effective administration of national labor policy the possibility of such consequences must be minimized. We therefore limit the availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.
The standards enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), are adopted by analogy, rather than under constitutional compulsion. We apply the malice test to effectuate the statutory design with respect to pre-emption. Construing the Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel actions and unwarranted intrusion upon free discussion envisioned by the Act.
As we have pointed out, certain language characteristic of labor disputes may be held actionable per se in some state courts. These categories of libel have developed without specific reference to labor controversies. However, even in ^those jurisdictions, the amount of damages which may be recovered depends upon evidence as to the severity of the resulting harm. This is a salutary principle. We therefore hold that a complainant may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law. The fact that courts are generally not in close contact with the pressures of labor disputes makes it especially necessary that this rule be followed. If the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial. Likewise, the defamed party must establish that he has suffered some sort of compensable harm as a prerequisite to the recovery of additional punitive damages.
Since the complaint here does not make the specific allegations that we find necessary in such actions, leave should be given Linn on remand to amend his complaint, if he so desires, to meet these requirements. In the event of a new trial he, of course, bears the burden of proof of such allegations.
f-H
Finally, it has been argued that permitting state action here would impinge upon national labor policy because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the Act. We disagree. When the Board and state law frown upon the publication of malicious libel, albeit for different reasons, it may be expected that the injured party will request both administrative and judicial relief. The Board would not be ignored since its sanctions alone can adjust the equilibrium disturbed by an unfair labor practice. If a malicious libel contributed to union victory in a closely fought election, few employers would be satisfied with simply damages for “personal” injury caused by the defamation. An unsuccessful union would also seek to set the election results aside as the fruits of an employer’s malicious libel. And a union may be expected to request similar relief for defamatory statements which contribute to the victory of a competing union. Nor would the courts and the Board act at cross purposes since, as we have seen, their policies would not be inconsistent.
As was said in Garrison v. Louisiana, 379 U. S. 64, 75: “[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” We believe that under the rules laid down here it can be appropriately redressed without curtailment of state libel remedies beyond the actual needs of national labor policy. However, if experience shows that a greater curtailment, even a total one, should be necessary to prevent impairment of that policy, the Court will be free to reconsider today’s holding. We deal' here not with a constitutional issue but solely with the degree to which state remedies have been pre-empted by the Act.
Reversed and remanded.
E. g., Brantley v. Devereaux, 237 F. Supp. 156 (D. C. E. D. S. C. 1965); Meyer v. Joint Council 53, Int’l Bro. of Teamsters, 416 Pa. 401, 206 A. 2d 382, petition for cert. dismissed under Rule 60, 382 U. S. 897 (1965). Blum v. International Assn. of Machinists, 42 N. J. 389, 201 A. 2d 46 (1964).
We adopt this terminology to avoid confusion with the concept of libel per se, applied in many States simply to designate words whose defamatory nature appears without consideration of extrinsic facts. Although Linn’s complaint alleges that the leaflets were "libelous per se,” his failure to specify the manner in which their publication harmed him indicates that he meant to rely on the presumption of damages. Under our present holding Linn must show that he was injured by the circulation of the statements; this necessarily includes proof that the words had a defamatory meaning.
The Congress has declared in the Act that employees have the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for mutual aid and protection. § 7. In § 8 (a) Congress has made it an unfair labor practice for an employer to restrain or coerce employees in the exercise of § 7 rights. Likewise, § 8 (b) protects these rights against interference by a labor organization or its agents. And § 8 (c) provides that the expression of any views or opinions “shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.” In addition, §9 (c)(1) authorizes the Board, under certain conditions, to conduct representation elections and certify the results thereof. Finally, § 10 grants the Board exclusive power to enforce the prohibitions of the Act.
See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 66 (1964).
The wording of the statute indicates, however, that § 8 (c) was not designed to serve this interest by immunizing all statements made in the course of a labor controversy. Rather, § 8 (c) provides that the “expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.” 61 Stat. 142 (1947), 29 U. S. C. § 158 (c) (1964 ed.). It is more likely that Congress adopted this section for a narrower purpose, i. e., to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements. See H. It. Rep. No. 510, 80th Cong., 1st Sess., 45 (1947). Comparison with the express protection given union members to criticize the management of their unions and the conduct of their officers, 73 Stat. 523 (1959), 29 U. S. C. §411 (a)(2) (1964 ed.), strengthens this interpretation of congressional intent.
The fact that the Board has no authority to grant effective relief aggravates the State’s concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands. The function of libel suits in preventing violence has long been recognized. Developments in the Law — Defamation, 69 Harv. L. Rev. 875, 933 (1956). But as to criminal libel suits see Garrison v. Louisiana, 379 U. S. 64 (1964).
The Government, as amicus curiae, has urged us to go further. It would limit liability to “grave” defamations — those which accuse the defamed person of having engaged in criminal, homosexual, treasonable, or other infamous conduct. We cannot agree. This would impose artificial characterizations that would encroach too heavily upon state jurisdiction.
It should be noted that punitive damages were awarded m Laburnum and Russell. In both instances there was proof of compensatory injury resulting from the defendants’ violence.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
81
] |
BRAUNSTEIN et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 476.
Argued April 29, 1963.
Decided June 10, 1963.
Louis Eisenstein argued the cause for petitioners. With him on the briefs were Thurman Arnold and Julius M. Greisman.
Wayne G. Barnett argued the cause for respondent. With him on the brief were Solicitor General Cox, Acting Assistant Attorney General Jones, Harry Baum and Gilbert E. Andrews.
Mr. Justice Harlan
delivered the opinion of the Court.
This ease involves the applicability of the “collapsible corporation” provisions of the federal income tax laws which, during the period relevant here, were set forth in §117 (m) of the Internal Revenue Code of 1939. These provisions require that under certain circumstances, gain from the sale of stock which would otherwise be considered as long-term capital gain, and accordingly taxed at a maximum rate of 25%, must be reported as ordinary income.
The three taxpayers who are petitioners here became .associated in 1938 and have since participated in a number of construction projects, usually through corporations in which the stock was equally divided. In 1948 the petitioners received a commitment from the Federal Housing Administration to insure loans for the construction of a multiple-dwelling apartment project in Queens County, New York. Two corporations were formed to carry out this project, and each petitioner was issued one-third of the stock in each corporation. After the costs of construction had been paid, the corporations each had an unüsed amount of mortgage loan funds remaining, and in 1950 the petitioners sold their stock at a profit, receiving as part of the sale transaction distributions from the corporations which included the unused funds. The petitioners reported the excess of the amounts received over their bases in the stock as long-term capital gains of $313,854.17 each.
The Commissioner asserted a deficiency, treating the gain as ordinary income on the ground that the corporations were “collapsible” within the meaning of § 117 (m). The Tax Court sustained the Commissioner, 36 T. C. 22, and the Court of Appeals affirmed the Tax Court, 305 F. 2d 949, holding that (1) the taxpayers had the requisite “view” during construction of the property (see note 1, supra); (2) more than 70% of the gain realized by the taxpayers was attributable to 'the constructed property (id.); and (3) § 117 (m) applies even if the constructed buildings would have produced capital gain on a sale by the taxpayers had no corporations been formed. This last holding was in response to an argument by the taxpayers based on a theory similar to that adopted by the Court of Appeals for the Fifth Circuit in United States v. Ivey, 294 F. 2d 799. In view of the conflict between the decision below and that in Ivey on this point, we granted certiorari, 371 U. S. 933, stating that the grant was limited to the following question:
“Whether Section 117 (m) of the Internal Revenue Code of 1939, which provides that gain ‘from the sale or exchange ... of stock of a collapsible. corporation’ is taxable as ordinary income rather than capital gain, is inapplicable in circumstances where the stockholders would have been entitled to capital gains treatment had they conducted the enterprise in their individual capacities without utilizing a corporation.”
Briefly summarized, petitioners’ argument runs as follows: As the legislative history shows, the collapsible corporation. provisions of the code were designed to close a loophole through which some persons hgd been able to convert ordinary income into long-term capital gain by use of the corporate form. For example, in the case of an individual who constructed a^property which he held primarily for sale to customers in the ordinary course of his trade or business, any gain from the sale of the asset would be ordinary income; but if that same individual were to form a corporation to construct the property, intending to sell his stock on the. completion of construction, it was at least arguable prior to the enactment of § 117 (m) that the proceeds of the ultimate sale of the stock were entitled to capital-gains treatment. It was this and similar devices that § 117 (m) was designed to frustrate, but it was not intended to have the inequitable effect of converting into ordinary income what would properly have been a capital gain prior to its enactment even in the absence of any corporate form. Thus, it is argued, the phrase “gain attributable to such property,” as used in § 117 (m), must apply only to profit that would have constituted ordinary income if a corporation had not been utilized, for only in such cases is the corporation made to serve as a device for tax avoidance. In the present case, neither the corporation nor the individual petitioners were in the trade or business of selling apartment buildings, and thus the corporations were not used to convert ordinary income into capital gain and the provisions of § 117 (m) are inapplicable.
We have concluded that petitioners! contentions must be rejected. Their argument is wholly inconsistent with the plain meaning of the language of § 117 (m), and we find nothing in the purpose of the statute, as indicated by its legislative history, to warrant any departure from that meaning in this ease.
I.
As to the language used, § 117 (m) defines a collapsible corporation as embracing one formed or availed of principally for. the manufacture, construction, or production of property with a view to (1) the sale or exchange of stock prior to the realization by the corporation of a substantial part of the net income, from the property and (2) the realization “of'gain attributable to such property.” The section is then expressly made inapplicable to gain realized during any year, “unless more than 70 per centum of such gain is attributable to the property so manufactured, constructed, or produced.” If used in their ordinary meaning, the word “gain” in these contexts simply refers to the excess of proceeds over cost or basis, and the phrase “attributable to” merely confines consideration to that gain caused or generated by the property in question. With these definitions, the section makes eminent sense, since the terms operate to limit its application to cases in which the corporation was availed of with a view to profiting from the constructed property by a sale or exchange of stock soon after completion of construction and in which a substantial part of the profit from the sale or exchange of stock in a given year was in fact generated by such property.
There is nothing in the language or structure of the section to demand or even justify reading into these provisions the additional requirement that the taxpayer must in fact have been using the corporate form as a device to convert ordinary income into capital gain. If a corporation owns but one asset, and the shareholders sell their stock at a profit resulting from an increase in the value of the asset, they have “gain attributable to” that asset in the natural meaning of the phrase regardless of their desire, or lack of desire, to avoid thp bite of federal income taxes.
II.
Nor is there anything in the legislative history that would lead us to depart from the plain meaning of the statute as petitioners would have us do. There can of course be no question that the purpose *éí § 117 (m) was, as petitioners contend, to close a loophole that Congress feared could be used to convert ordinary income into capital gain. See H. R. Rep. No. 2319, 81st Cong., 2d Sess.; S. Rep. No. 2375, 81st Cóng., 2d Sess. But the crucial point for present purposes is that the method chosen to close this loophole was to establish a carefully and elaborately. defined category of transactions in which what might otherwise be a capital gain would have to be treated as ordinary income. There is no indication whatever of any congressional desire to have the Commissioner or the courts make a determination in each case as to whether the use of the corporation was for tax avoidance. Indeed, the drawing of certain arbitrary lines not here involved — such as making the section inapplicable to any shareholder owning .10% or less of the stock or to any gain realized more than three years after the completion of construction — tends to refute any such indication. It is our understanding, in other words, that Congress intended to define what it believed to be a tax avoidance device rather than to leave the presence or absence of tax avoidance elements for decision on a case-to-case basis.
We are reinforced in this conclusion by the practical difficulties — indeed the impossibilities — of considering without more legislative guidance than is furnished by § 117 (m) whether there has in fact been “conversion” of ordinarv income into capital gains in a particular case. For example, if we were to inquire whether or not the profit would have been ordinary income had an enterprise been individually owned,- would we treat each taxpaying shareholder differently and look only to his trade or business or would we consider the matter in terms of the trade or business of any or at least a substantial number of the shareholders? There is simply no basis in the statute for a judicial resolution of this question, and indeed when Congress addressed itself to the problem in 1958, it approved an intricate formulation falling between these two extremes.
As a further example, what if the individual in question is not himself engaged in any-trade or business but owns stock in varying amounts in a' number of corporate ventures-*other than the one before the court? Do we pierce each of the corporate veils, regardless of the extent and share of the individual’s investment, and charge him with being in the trade or business of each such corporation? Again, there is no basis for a rational judicial answer; the judgment is essentially a legislative one and in the 1958 amendments Congress enacted a specific provision, designed to deal with this matter, that is far too complex to be summarized here.
These examples should suffice to demonstrate the point: The question whether there has in fact been a “conversion” of ordinary income in a particular case is far easier to state than to answer, and involves a number of thorny issues that may not appear on the surface. We find no basis in either the terms or the history of § 117 (m) for concluding that Congress intended the Commissioner and the courts to enter this thicket and to arrive at ad hoc determinations for every taxpayer. Accordingly, the judgments below must be
Affirmed.
Mr. Justice Douglas dissents.
Section 117 (m) was added to the Internal Revenue Code of 1939 by the Revenue Act of 1950, § 212 (a), 64 Stat. 934. The section was amended by the Revenue Act of 1951, § 326, 65 Stat. 502. It was reenacted without substantial change as § 341 of the Internal Revenue Code of 1954, 68A Stat. 107, and was amended by the Technical Amendments Act of 1958, §20 (a), 72 Stat. 1615, and by the Act of October 16,1962, § 13 (f) (4), 76 Stat. 1035. As originally enacted, and during the period relevant here, it provided:
“(1) Treatment of gain to shareholders. — Gain from the sale or exchange (whether in liquidation or otherwise) of stock of a collapsible corporation, to the extent that it would be considered (but for the provisions of this subsection) as gain from the sale or exchange of a capital asset held for more than 6 months, shall; except as provided in paragraph (3), be considered as gain from the sale or exchange of property which is not a capital asset.
“(2) Definitions.—
“ (A) For the purposes of this subsection, the term ‘collapsible corporation’ means a corporation formed or availed of principally for the manufacture, construction, or production of property, or for the holding of stock in a corporation so formed or availed of, with a view to—
“(i) the sale or exchange of stock by its shareholders (whether in liquidation or otherwise), or a distribution to its shareholders, prior to the realization by the corppration manufacturing, constructing, or producing the property of a substantial part of the net income to be derived from such property, and
“(ii) the realization by such shareholders of gain attributable to such property.
. . . . .
“(3) Limitations on application of subsection. — In the case of gain realized by a shareholder upon his stock in a collapsible corporation—
“ (A) this subsection shall not apply unless, at any time after the commencement of the manufacture, construction, or production of the property, such shareholder (i) owned (or was considered as owning) more than 10 per centum in value of the outstanding stock of the corporation, or (ii) owned stock which was considered as owned at such time by another shareholder who then owned (or was considered as owning) more than 10 per centum in value of the outstanding stock of the corporation;
“(B) this subsection shall not apply to the gain recognized during a taxable year unless more than 70 per centum of siich gain is attributable to the property so manufactured, constructed, or produced; and
"(C) this subsection shall not apply to gain realized after the expiration of three years following the completion of such manufácture, construction, or production. . .- .”
Petitioners Benjamin and Harry Neisloss are builders; petitioner Braunstein, an architect Their wives are parties only by virtue of the filing of joint returns.
The parties have agreed that the distributions from the corporations and the amounts received directly from the buyers of the stock may be considered together, as if the entire amount had been received from the, buyers.
Int. Rev. Code, 1939, § 117 (a) (1) (A).
The Government has assumed for purposes of its argument here, but does not concede, that petitioners would have been entitled to capital-gains treatment had they conducted the enterprise without utilizing a corporation.
Int. Rev. Code, 1954, § 341 (e), added by the Technical Amendments Act of 1958, § 20 (a), 72 Stat. 1615.
Int. Rev. Code, 1954, §341 (e)(1)(C).
The Government has emphasized in its argument here that the present case involves a particularly “blatant” conversion of ordinary income because by charging the corporations only for the out-of-pocket costs of construction “petitioners contributed their services create a valuable property for the corporation [s] and then realized upon that value by selling their stock.” Thus, the Government concludes, the petitioners claim as capital gain “what ought to have been (and, in an arm’s-length transaction, would have been) .taxed as compensation for services.”
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
68
] |
SWIFT & COMPANY v. UNITED STATES et al.
No. 282.
Argued March 5-6, 1952.
Decided May 5, 1952.
Frederick Bernays Wiener argued the cause for appellant. With him on the brief were Wm. N. Strack, Arthur C. O’Meara, John P. Staley and Ross Dean Rynder.
Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appel-lees. With him on the brief was Solicitor General Perl-man. Samuel R. Howell was also of counsel for the Interstate Commerce Commission.
Douglas F. Smith argued the cause for the Atchison, Topeka & Sante Fe Railroad Co. et al., appellees. With him on the brief were Kenneth F. Burgess and Martin M. Lucente.
Lee J. Quasey argued the cause and filed a brief for the National Live Stock Producers Assn, et al., appellees.
Nuel D. Belnap argued the cause for the Chicago Live Stock Exchange et al., appellees. With him on the brief were Robert N. Burchmore and John S. Burchmore.
Guy A. Gladson and Bryce L. Hamilton submitted on brief for the Union Stock Yard & Transit Company of Chicago, appellee.
Mr. Justice Minton
delivered the opinion of the Court.
On July 28, 1947, the appellant, Swift and Company, filed a complaint, later amended, before the Interstate Commerce Commission against the Atchison, Topeka and Santa Fe and other railroads, alleging that the charges on direct carload shipments of livestock from points outside Illinois to its proposed new plant in the Chicago Packingtown area are (1) unreasonable, (2) unduly prejudicial to livestock as a commodity, and (3) unduly prejudicial to Swift as against its competitors, all in violation of the Interstate Commerce Act. Swift asked for the establishment of reasonable joint through rates for line-haul carriers serving Chicago and the Chicago Junction Railroad's lessee, the Chicago River and Indiana Railroad, hereafter called Junction, such joint rates to include delivery of livestock to Swift’s industrial siding at its proposed plant and not to exceed the line-haul rates now in effect at the Union Stock Yards and other points of delivery on line-haul railroads in the area. Swift’s proposed plant, near its present plant, will be located on Junction’s rails and not on those of any line-haul carrier.
After Swift filed its complaint, Junction sought to file a new tariff cancelling the present one as it applies to livestock. The present tariff provides a flat charge for switching carload freight to and from industrial sidings and team tracks; under the new tariff, Junction would not have offered switching services for livestock under any circumstances. Swift and others objected, and the filing was suspended so that the Commission could hear Swift’s complaint and Junction’s request together on a consolidated record.
The Commission dismissed the complaint and refused to cancel the switching tariff as to livestock. Swift & Co. v. Atchison, T. & S. F. R. Co., 274 I. C. C. 557. Swift then sought review of the Commission’s order of dismissal by a statutory three-judge District Court. That court sustained the Commission’s order, and this appeal followed pursuant to 28 U. S. C. §§ 1253 and 2101 (b). No question is raised as to the Commission’s refusal to cancel the switching tariff.
All livestock shipments by rail to the Chicago area are handled solely by the line-haul carriers; delivery is direct to line-haul terminals at the line-haul rate. Such terminals are the Stock Yards and those unloading pens located on switches directly adjoining a line-haul carrier’s rails. Swift is the one large packer in Chicago that has such a line-haul terminal and can receive all its direct shipments of livestock at line-haul rates. This terminal, the Omaha Packing Plant, a Swift subsidiary situated two and one-half miles northeast of Swift’s present plant and outside the Stock Yards district, is located on the rails of the Burlington Railroad, a line-haul carrier. Here Swift receives its direct livestock shipments, about 6,500 carloads annually, which it trucks to its plant in the Stock Yards area. The balance of the livestock delivered in Chicago, whether direct or otherwise, is delivered to the Stock Yards, with some minor exceptions, by the line-haul carriers over certain Junction running tracks to the Stock Yards unloading pens. The carriers have trackage rights on these running tracks for which a charge is paid to Junction. On direct shipments to a packer delivered to the Stock Yards, the Yards’ facilities, including a vast system of runways, overpasses and tunnels, are used to drive the livestock from the unloading pens to the packer’s plant. The charges for these facilities are fixed by the Secretary of Agriculture. Junction has never switched or handled any livestock except in an emergency.
The delivery of livestock in the Stock Yards area is to be contrasted with that of “dead freight.” The line-haul carriers make no direct deliveries of dead freight; none of the approximately 500 industries in the area have plants located on line-haul rails and the line-haul carriers do not have trackage rights over the Junction rails which lead to the plants. Consequently, all dead freight is switched by Junction and delivered to the industrial sidings or team tracks alongside of and connecting with Junction’s rails.
Since Junction provides only trackage rights for the livestock shipments to the Stock Yards, the line-haul rates on livestock do not include Junction as a participating carrier. Junction does participate, however, in joint rates for dead freight. For any switching operation not covered by line-haul rates in which Junction participates, Junction has a flat switching charge of $28.80 per car. This charge would apply to any direct shipments at Swift’s proposed plant in Packingtown which, as we have noted, is not located on any line-haul rails but rather on Junction’s rails.
Trains for the Stock Yards are made up at the break-up yards of the line-haul carriers, located from a few to several miles from the Stock Yards. A train coming in from the west moves to the Ashland Yards of Junction, which are divided into the North and the South Yards. The North Yards are used for the receipt, separation, and distribution of cars of dead freight and empties outbound from the packers and other industries, while the South Yards are used for cars of dead freight inbound. This division is made by three parallel running tracks owned by Junction, numbered 1102, 1103 and 1104, over which the line-haul carriers are permitted to operate in and out of the Stock Yards. Sixty-three percent of the trains to the Stock Yards area are composed exclusively of livestock. The balance are consolidated trains, carrying both livestock and dead freight.
An all-livestock train moves by line-haul carrier, using its own crew and equipment, eastward over Track 1103 to the unloading pens in the Stock Yards and is there spotted for unloading. While the cars are being unloaded, the engine cuts off, passes around to the other end of the train and couples on; when the unloading is completed, the train returns westward over Track 1102 or 1104 through Junction’s Ashland Yards and back to its breakup yards with the empties. This all-livestock train is delivered to the Stock Yards in one movement by line-haul carriers for line-haul rates.
A consolidated train moves through the Ashland Yards from the break-up yards to a certain point on Track 1103, just as an all-livestock train. In this consolidated train, the dead-freight cars are hauled just behind the engine and the livestock cars in the rear. At a certain point on Track 1103 the dead-freight cars are cut out and switched into the South Yards upon one of the nine Junction receiving tracks, from which tracks Junction later moves the dead freight to the industrial sidings and team tracks of the packers and other industries located in the area. After the dead freight has been switched to the receiving tracks, the line-haul engine returns to Track 1103 to couple onto the livestock cars and move them to the unloading pens. While the dead freight is being switched to the South Yards, Track 1103, the only means of ingress to the Stock Yards from the west, is blocked by the livestock cars remaining on the track. Sometimes as many as four trains at a time are tied up by reason of the block on Track 1103.
An all-livestock train coming in from the east does not pass through the Ashland Yards but proceeds directly to the Stock Yards from the break-up yards. However, all dead freight moves through the Ashland Yards, as would all livestock to be delivered to Swift if its complaint were granted. The fact that most of the livestock shipments are handled by the western carriers makes this portion of the transportation operation unimportant for present purposes.
If this complaint were granted, livestock would move to Swift’s proposed plant in the manner of dead freight. Instead of one movement, as the line-haul movement to the Stock Yards, there would be two movements — one to the receiving tracks in the South Ashland Yards made by the line-haul carriers, and the second movement by Junction from its South Yards to Swift’s plant, located on Junction’s rails. The tie-up on Track 1103, described above, would be increased accordingly as trains consigned to the Stock Yards would have to place any of Swift’s livestock cars on the Junction receiving tracks. The congestion and costs involved would be increased by the fact that livestock cannot be handled as easily as dead freight. Livestock cars cannot be “kicked” in switching operations as can dead-freight cars, which are stopped by collision with other cars. Livestock cars must be placed with a minimum of rough handling. Still further difficulties would be encountered because livestock must be unloaded, watered and fed every twenty-eight hours, in accordance with federal law. 45 U. S. C. § 71 et seq. When livestock arrives in Chicago, there are generally only a few hours remaining for delivery to unloading pens in order to comply with this law. Therefore, expeditious handling of the livestock is required, especially since there are no facilities along Junction’s rails for such unloading, watering and feeding. Some 31 hours are required for a car of dead freight to clear Ashland Yards and be delivered. It is apparent that livestock must be handled in much less time.
If the complaint were granted, Swift would not pay for the second or switching movement by Junction. Although Junction has never moved livestock in the past except in an emergency, under existing tariffs it can charge Swift the switching rate of $28.80 per car now applied to other commodities. But if Swift is to obtain what it seeks, the line-haul carrier must establish as the line-haul rate a joint rate with Junction which is no higher than the present line-haul rate. This would mean that the line-haul carrier must absorb the switching charge, or that both the switching charge and the present line-haul rate must be decreased, with the line-haul carrier and Junction sharing in absorbing the amount of the decrease.
The delivery of livestock through this bottleneck of Ashland Yards must be geared to provide for the expeditious and special handling that livestock must receive. The huge quantities of dead freight which are handled and the restricted facilities of Ashland Yards have resulted in the development, over a period of seventy years, of a complicated, intricate pattern of operation. For this reason, any attempt to change the pattern calls for the most expert consideration and administrative judgment — a task that courts are ill-fitted to perform. If the Commission gave weight to the relevant factors, its decision should not be overturned. We move then to the Commission’s report.
The Commission found that in the circumstances presented the switching charge provided by the existing tariff would not be unreasonable or otherwise unlawful as applied to livestock, and secondly, that the establishment of joint rates for such transportation was not necessary or desirable in the public interest. It took account of the historical development of the Stock Yards and the delivery of livestock therein which together with the industrial development of the area have made further yard expansion impracticable. The Commission found that the switching yards are now highly congested and, as one witness put it, are “running bank full.” While it is true that livestock shipments into the area have been decreasing, dead-freight shipments have increased severalfold, and the congestion will continue in the foreseeable future. The Commission gave careful consideration to the complication of operations through the additional and different switching movements required in the handling of livestock as contrasted with dead freight. Whether the system for the delivery of livestock into Chicago which has existed for over seventy years at an established line-haul rate, and which has recognized definite terminals calling for a minimum of train movements in a highly congested area, should be displaced by another system which would further complicate the operations and would necessitate the use of properties and services not included when the present line-haul rates and terminals were fixed, is a question committed to the administrative judgment of the Commission. When that judgment is based on findings abundantly supported by the evidence on the whole record, as it is in this case, it is the duty of the courts to sustain it. Ayrshire Corp. v. United States, 335 U. S. 573, 593; Interstate Commerce Commission v. Jersey City, 322 U. S. 503, 522-523; Swift & Co. v. United States, 316 U. S. 216, 230-231; Adams v. Mills, 286 U. S. 397, 409-410; Interstate Commerce Commission v. Union Pacific R. Co., 222 U. S. 541, 547-548.
The question of the reasonableness of the switching charge was posed to the Commission in the case of Hygrade Food Products Corp. v. Atchison, T. & S. F. R. Co., 195 I. C. C. 553. There, Hygrade sought to have the railroads absorb the switching charge of Junction, but the Commission found that it was a reasonable additional charge to the line-haul rate. On appeal to this Court that finding was not disturbed. Atchison, T. & S. F. R. Co. v. United States, 295 U. S. 193. At that time the charge was $12 per car. It is now considerably higher, but the charges for other commodities and services have risen also.
The burden of showing that the switching charges were unreasonable was upon Swift. Louisville & N. R. Co. v. United States, 238 U. S. 1, 11. On this record, that burden was not sustained; the charges having existed for years and having been approved as reasonable by the Commission and tacitly approved by this Court, Atchison, T. & S. F. R. Co. v. United States, supra, their reasonableness is presumed to continue in the absence of a showing to the contrary.
The fact that the rate is so high that Swift finds it uneconomical to use does not in and of itself establish the unreasonableness of the rate. A revision of the switching charge on the ground of its unreasonableness and the establishment of a reasonable rate for switching was not asked. Any rate in excess of the line-haul rate to the Stock Yards was considered by Swift as unreasonable, as it was demanding a joint rate not in excess of the line-haul rate to the Stock Yards. Unreasonableness is not made out by mere assertion. Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 602.
It is next argued that because dead freight is delivered to Swift’s industrial siding at the line-haul rate, it is a discrimination against livestock as a commodity to impose a switching charge in addition to the line-haul rate for delivery of livestock to the same point. That argument is completely answered by the Commission’s findings as to the different and more complex nature of the switching services required by livestock as compared with dead freight. The cost of the switching service performed by Junction in the delivery of dead freight is figured in the line-haul rate. The line-haul rate for livestock, the reasonableness of which is not in and of itself attacked here, has never contemplated such switching services because Junction has never performed them.
Reliance is placed by Swift upon the case of United States v. Baltimore & O. R. Co., 333 U. S. 169. There, delivery to industrial sidings at line-haul rates had been the practice. The Cleveland Stock Yards sought to terminate such delivery because it owned a segment of the track used to serve Swift and wanted to prevent the use thereof unless livestock be routed through its yards and the charge therefor paid to the Stock Yards. In the alternative, the Stock Yards wanted the carriers to pay the equivalent of such charge for the use of the Stock Yards’ track leading to Swift’s industrial siding. Such a plan would have discriminated against Swift because its competitors could get delivery without the use of the Stock Yards’ track and hence would be unaffected by the Stock Yards’ demands. This Court held that the Stock Yards could not use its track ownership to work a discrimination which Congress had said should not exist.
“Here Congress under its constitutional authority has provided that no railroad shall engage in certain types of discriminatory conduct in violation of three provisions of the Act. The Commission found that discriminatory conduct here. The excuse offered by the railroads is that the owner of Track 1619 required them to do the prohibited things. But the command of Congress against discrimination cannot be subordinated to the command of a track owner that a railroad using the track practice discrimination.” Id., at p. 177.
Delivery to an industrial siding at line-haul rates was there allowed by the Commission and sustained by this Court for the reason that the Stock Yards sought by its discriminatory act to upset the usual delivery procedure, while here, in a vastly more complicated operational setting, Swift would complicate it further by obtaining for itself a service at line-haul rates different from the usual delivery procedure and not contemplated or considered when the present line-haul rates to Chicago were fixed. If Swift were granted the relief it seeks here, it would be obtaining something that no other packer in Chicago receives, and, instead of being discriminated against, a discrimination would be granted in its favor. Swift already enjoys a competitive advantage because it can obtain direct delivery of livestock at its Omaha plant at line-haul rates. It can hardly be heard to say that the present system favors its competitors in the Stock Yards’ area.
Swift also failed in its burden of showing prejudicial treatment to it as opposed to its competitors in localities other than Chicago, who do receive dehvery on industrial sidings at line-haul rates. These competitors’ plants are located for the most part on line-haul carriers’ rails, and no complicated switching movements are involved. Swift receives at Chicago, as elsewhere, the same rates and services as other packers similarly situated.
Junction is a subsidiary of the New York Central Railroad Company. The latter had an agreement with the Stock Yards which contained a provision that New York Central would operate Junction for “the benefit, advantage, and behoof of the business and affairs” of the Stock Yards. When this proceeding was begun before the Commission, Junction did not intend to defend it. Attorneys for the Stock Yards wrote a letter to the general counsel of New York Central, calling attention to the failure of Junction to defend and to the covenant in the agreement. They pointed out that Junction possessed the evidence necessary to meet the issue in Swift’s complaint, that such evidence should be adduced, and that under the agreement, Junction was obligated to defend in order to avoid irreparable injury to the Stock Yards. Thereafter, Junction defended.
It is Swift’s contention that this covenant is illegal. We do not find it necessary to pass upon that matter. As far as Swift is concerned, it does not receive any direct shipments at the Stock Yards; hence any decision as to livestock shipments to Swift would not affect the Stock Yards. If other packers would demand industrial siding delivery in the event Swift’s complaint were allowed, unquestionably the effect upon the Stock Yards would be very material.
It is true that the Commission did give consideration to the probability that if Swift were successful, other packers might demand the same service. The likelihood of such demand seemed to the Commission, as it does to us, obvious. However, if this demand by other packers, reasonably forecast by the Commission, received consideration in reaching the conclusions in this case, it was in the light of the additional burden on the overcrowded condition of the area, the complexity of the operations, and the necessity for extra care in the handling of livestock to move it through the bottleneck at the Ashland Yards. The Commission was not led to such conclusions by giving weight to this covenant. It was wholly unnecessary thereto. The covenant’s impact may be consistent with such consideration, but it is not shown to have been controlling in any manner, or relied upon by the Commission.
We have given consideration to other arguments put forth by Swift and find them to be equally without merit; they do not require discussion in this opinion.
The judgment of the District Court is
Affirmed.
The term “direct shipments” is used to denote shipments consigned directly to the packer for slaughter, as distinguished from those shipments consigned to commission men for sale in the public livestock market.
49 U. S. C. § 1 et seq. Sections 1 (4) and 1 (5) require the carriers to establish just and reasonable rates; §3 (1) prohibits the carriers from giving any undue or unreasonable preference to any particular shipper or to any particular description of traffic.
A line-haul carrier is a common carrier by railroad which transports livestock and other freight in interstate traffic, as distinguished from a carrier such as Junction, which performs services in a local switching area.
The cost of this trucking to Swift is $50,000; it is much less than the cost of either consigning the livestock to the Stock Yards and paying for their yardage facilities or paying the switching charges here in issue and having the livestock delivered to the proposed plant.
Dead freight is composed of commodities other than livestock.
This was the figure at the time this proceeding was heard by the Commission’s examiner. Subsequent authorized increases have brought the charge to $39.24.
During the years 1945, 1946 and 1947, an average of over 726,000 cars a year, loaded and empty, were funnelled through the Ashland Yards.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
|
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[
65
] |
DUNLOP, SECRETARY OF LABOR v. BACHOWSKI et al.
No. 74-466.
Argued April 21, 1975
Decided June 2, 1975
Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Stewart, White, Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 590. Rehnquist, J., filed an opinion concurring in the result in part and dissenting in part, post, p. 591.
Mark L. Evans argued the cause for petitioner. On the brief were Solicitor General Bork, Assistant Attorney General Hills, Deputy Solicitor General Wallace, and Beate Bloch.
Joseph L. Rauh, Jr., argued the cause for respondent Bachowski. With him on the brief were John Silard, Elliott C. Lichtman, and Kenneth J. Yablonski. Michael H. Gottesman argued the cause for respondent United Steelworkers of America, AFL-CIO. With him on the brief was Bernard Kleiman.
Briefs of amici curiae urging affirmance were filed by Joseph A. Yablonski and Daniel B. Edelman for the United Mine Workers of America, and by Clarice R. Feldman for the Association for Union Democracy, Inc.
Mr. Justice Brennan
delivered the opinion of the Court.
On February 13, 1973, the United Steelworkers of America (USWA) held district officer elections in its several districts. Respondent Bachowski (hereinafter respondent) was defeated by the incumbent in the election for that office in District 20. After exhausting his remedies within USWA, respondent filed a timely complaint with petitioner, the Secretary of Labor, alleging violations of § 401 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 532, 29 U. S. C. §481, thus invoking 29 U. S. C. §§ 482 (a), (b), which require that the Secretary investigate the complaint and decide whether to bring a civil action to set aside the election. Similar complaints were filed respecting five other district elections. After completing his investigations, the Secretary filed civil actions to set aside the elections in only two districts. With respect to the election in District 20, he advised respondent by letter dated November 7, 1973, that “[b]ased on the investigative findings, it has been determined . . . that civil action to set aside the challenged election is not warranted.”
On November 7, 1973, respondent filed this action against the Secretary and USWA in the District Court for the Western District of Pennsylvania. The complaint asked that, among other relief, “the Court declare the actions of the Defendant Secretary to be arbitrary and capricious and order him to file suit to set aside the aforesaid election.” The District Court conducted a hearing on November 8, and after argument on the question of reviewability of the Secretary’s decision, concluded that the court lacked “authority” to find that the action was capricious and to order him to file suit. Civil Action No. 73-0954, WD Pa., Doc. 9, p. 27. The hearing was followed by an order dated November 12, dismissing the suit. The Court of Appeals for the Third Circuit reversed, 502 F. 2d 79 (1974).
The Court of Appeals held, first, that the District Court had jurisdiction of respondent’s suit under 28 U. S. C. § 1337 as a case arising under an Act of Congress regulating commerce, the LMRDA, 502 F. 2d, at 82-83; second, that the Administrative Procedure Act, 5 U. S. C. §§ 702 and 704, subjected the Secretary’s decision to judicial review as “final agency action for which there is no other adequate remedy in a court,” § 704, and that his decision was not, as the Secretary maintained, agency action pursuant to “(1) statutes [that] preclude judicial review; or (2) agency action [that] is committed to agency discretion by law,” excepted by § 701 (a) from judicial review, 502 F. 2d, at 83-88; and, third, that the scope of judicial review — governed by §706 (2) (A), “to ensure that the Secretary’s actions are not arbitrary, capricious, or an abuse of discretion,” 502 F. 2d, at 90 — entitled respondent, who sought “to challenge the factual basis for [the Secretary’s] conclusion either that no violations occurred or that they did not affect the outcome of the election,” id., at 89, “to a sufficiently specific statement of the factors upon which the Secretary relied in reaching his decision ... so that [respondent] may have information concerning the allegations contained in his complaint.” Id., at 90. We granted certiorari sub nom. Brennan v. Bachowski, 419 U. S. 1068 (1974).
We agree that 28 U. S. C. § 1337 confers jurisdiction upon the District Court to entertain respondent’s suit, and that the Secretary’s decision not to sue is not excepted from judicial review by 5 U. S. C. § 701 (a); rather, §§ 702 and 704 subject the Secretary’s decision to judicial review under the standard specified in § 706 (2) (A). We hold, however, that the Court of Appeals erred insofar as its opinion construes § 706 (2) (A) to authorize a trial-type inquiry into the factual bases of the Secretary’s conclusion that no violations occurred affecting the outcome of the election. We accordingly reverse the judgment of the Court of Appeals insofar as it directs further proceedings on remand consistent with the opinion of that court, and direct the entry of a new judgment ordering that the proceedings on remand be consistent with this opinion of this Court.
I
The LMRDA contains no provision that explicitly prohibits judicial review of the decision of the Secretary not to bring a civil action against the union to set aside an allegedly invalid election. There is no such prohibition in 29 U. S. C. §483. That section states that “[t]he remedy provided by this subchapter for challenging an election already conducted shall be exclusive.” Certain LMRDA provisions concerning pre-election conduct, 29 U. S. C. §§ 411-413 and 481 (c), are enforceable in suits brought by individual union members. Provisions concerning the conduct of the election itself, however, may be enforced only according to the post-election procedures specified in 29 U. S. C. §482. Section 483 is thus not a prohibition against judicial review but simply underscores the exclusivity of the § 482 procedures in post-election cases.
In the absence of an express prohibition in the LMRDA. the Secretary, therefore, bears the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of his decision. “The question is phrased in terms of ‘prohibition’ rather than ‘authorization’ because a survey of our cases shows that, judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967). “[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Id., at 141. See also Rusk v. Cort, 369 U. S. 367, 379-380 (1962) ; Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410 (1971).
The Secretary urges that the structure of the statutory scheme, its objectives, its legislative history, the nature of the administrative action involved, and the conditions spelled out with respect thereto, combine to evince a congressional meaning to prohibit judicial review of his decision. We have examined the materials the Secretary relies upon. They do not reveal to us any congressional purpose to prohibit judicial review. Indeed, there is not even the slightest intimation that Congress gave thought to the matter of the preclusion of judicial review. “The only reasonable inference is that the possibility did not occur to the Congress.” Wirtz v. Bottle Blowers Assn., 389 U. S. 463, 468 (1968).
We therefore reject the Secretary’s argument as without merit. He has failed to make a showing of “clear and convincing evidence” that Congress meant to prohibit all judicial review of his decision. In that circumstance, courts “are necessarily [not] without power or jurisdiction ... if it should clearly appear that the Secretary has acted in an arbitrary and capricious manner by ignoring the mandatory duty he owes plaintiffs under the powers granted by the Congress. Leedom v. Kyne, 358 U. S. 184 . . . (1958).” DeVito v. Shultz, 300 F. Supp. 381, 382 (DC 1969) (DeVito I). But see Ravaschieri v. Shultz, 75 L. R. R. M. 2272 (SDNY 1970); McArthy v. Wirtz, 65 L. R. R. M. 2411 (ED Mo. 1967); Katrinic v. Wirtz, 62 L. R. R. M. 2557 (DC 1966). Our examination of the relevant materials persuades us, however, that although no purpose to prohibit all judicial review is shown, a congressional purpose narrowly to limit the scope of judicial review of the Secretary’s decision can, and should, be inferred in order to carry out congressional objectives in enacting the LMRDA.
II
Four prior decisions of the Court construing the LMRDA identify the congressional objectives and thus put the scope of permissible judicial review in perspective. Congress “decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest . . . [and] decided not to permit individuals to block or delay union elections by filing federal-court suits . ...” Calhoon v. Harvey, 379 U. S. 134, 140 (1964). Congress’ concern was “to settle as quickly as practicable the cloud on the incumbents’ titles to office,” Wirtz v. Bottle Blowers Assn., supra, at 468 n. 7, and in "deliberately [giving] exclusive enforcement authority to the Secretary . . . emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member. . . .” Id., at 473-475. “[I]t is most improbable that Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities, yet intended the shape of the enforcement action to be immutably fixed by the artfulness of a layman’s complaint .... The expertise and resources of the Labor Department were surely meant to have a broader play. . . .” Wirtz v. Laborers’ Union, 389 U. S. 477, 482 (1968). “. . . Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted . . . .” Trbovich v. Mine Workers, 404 U. S. 528, 532 (1972). “. . . Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary.” Id., at 536. “[T]he statute gives the individual union members certain rights against their union, and ‘the Secretary of Labor in effect becomes the union member’s lawyer’ for purposes of enforcing those rights ....” Id., at 538-539.
Bottle Blowers Assn, reveals two more considerations pertinent to determination of the scope of judicial review. Section 482 (b) leaves to the Secretary, in terms, only the question whether he has probable cause to believe that a violation has occurred, and not the question whether the outcome of the election was probably affected by the violation. Bottle Blowers construed § 482 (b), however, as conferring upon the Secretary discretion to determine both the probable violation and the probable effect. “[T]he Secretary may not initiate an action until his own investigation confirms that a violation . . . probably infected the challenged election.” 389 U. S., at 472. See also Schonfeld v. Wirtz, 258 F. Supp. 705, 707-708 (SDNY 1966).
In addition, in rejecting the argument that the unlawfulness infecting a challenged election could be washed away by an intervening unsupervised union election, the Court stated, 389 U. S., at 474:
“. . . Congress’ evident conclusion that only a supervised election could offer assurance that the officers who achieved office as beneficiaries of violations of the Act would not by some means perpetuate their unlawful control in the succeeding election . . . was reached in light of the abuses surfaced by the extensive congressional inquiry showing how incumbents’ use of their inherent advantage over potential rank and file challengers established and perpetuated dynastic control of some unions. . . . These abuses were among the ‘number of instances of breach of trust . . . [and] disregard of the rights of individual employees . . .’ upon which Congress rested its decision that the legislation was required in the public interest.”
Two conclusions follow from this survey of our decisions: (1) since the statute relies upon the special knowledge and discretion of the Secretary for the determination of both the probable violation and the probable effect, clearly the reviewing court is not authorized to substitute its judgment for the decision of the Secretary not to bring suit; (2) therefore, to enable the reviewing court intelligently to review the Secretary’s determination, the Secretary must provide the court and the complaining witness with copies of a statement of reasons supporting his determination. “[W]hen action is taken by [the Secretary] it must be such as to enable a reviewing Court to determine with some measure of confidence whether or not the discretion, which still remains in the Secretary, has been exercised in a manner that is neither arbitrary nor capricious. ... [I]t is necessary for [him] to delineate and make explicit the basis upon which discretionary action is taken, particularly in a case such as this where the decision taken consists of a failure to act after the finding of union election irregularities.” DeVito I, 300 F. Supp., at 383; see also Valenta v. Brennan, No. C 74-11 (ND Ohio 1974).
Moreover, a statement of reasons serves purposes other than judicial review. Since the Secretary’s role as lawyer for the complaining union member does not include the duty to indulge a client’s usual prerogative to direct his lawyer to file suit, we may reasonably infer that Congress intended that the Secretary supply the member with a reasoned statement why he determined not to proceed. “[A]s a matter of law ... the Secretary is not required to sue to set aside the election whenever the proofs before him suggest the suit might be successful. There remains in him a degree of discretion to select cases and it is his subjective judgment as to the probable outcome of the litigation that must control.” DeVito v. Shultz, 72 L. R. R. M. 2682, 2683 (DC 1969) (DeVito II) (emphasis added). But “[sjurely Congress must have intended that courts would intercede sufficiently to determine that the provisions of Title IV have been carried out in harmony with the implementation of other provisions of [the LMRDAj.” . DeVito I, supra, at 383. Finally, a “reasons” requirement promotes thought by the Secretary and compels him to cover the relevant points and eschew irrelevancies, and as noted by the Court of Appeals in this case, the need to assure careful administrative consideration “would be relevant even if the Secretary’s decision were unreviewable.” 502 F. 2d, at 88-89, n. 14.
The necessity that the reviewing court refrain from substitution of its judgment for that of the Secretary thus helps define the permissible scope of review. Except in what must be the rare case, the court’s review should be confined to examination of the “reasons” statement, and the determination whether the statement, without more, evinces that the Secretary’s decision is so irrational as to constitute the decision arbitrary and capricious. Thus, review may not extend to cognizance or trial of a complaining member’s challenges to the factual bases for the Secretary’s conclusion either that no violations occurred or that they did not affect the outcome of the election. The full trappings of adversary trial-type hearings would be defiant of congressional objectives not to permit individuals to block or delay resolution of post-election disputes, but rather “to settle as quickly as practicable the cloud on the incumbents’ titles to office”; and “to protect unions from frivolous litigation and unnecessary interference with their elections.” “If . . . the Court concludes . . . there is a rational and defensible basis [stated in the reasons statement] for [the Secretary’s] determination, then that should be an end of this matter, for it is not the function of the Court to determine whether or not the case should be brought or what its outcome would be.” DeVito II, supra, at 2683.
Thus, the Secretary’s letter of November 7, 1973, may have sufficed as a “brief statement of the grounds for denial” for the purposes of the Administrative Procedure Act, 5 U. S. C. § 555 (e), but plainly it did not suffice as a statement of reasons required by the LMRDA. For a statement of reasons must be adequate to enable the court to determine whether the Secretary’s decision was reached for an impermissible reason or for no reason at all. For this essential purpose, although detailed findings of fact are not required, the statement of reasons should inform the court and the complaining union member of both the grounds of decision and the essential facts upon which the Secretary’s inferences are based.
The Secretary himself suggests that the rare case that might justify review beyond the confines of the reasons statement might arise, for example, “if the Secretary were to declare that he no longer would enforce Title IV, or otherwise completely abrogate his enforcement responsibilities ... [or] if the Secretary prosecuted complaints in a constitutionally discriminatory manner ....” Brief for Petitioner 9 n. 3. Other cases might be imagined where the Secretary’s decision would be “plainly beyond the bounds of the Act [or] clearly defiant of the Act.” DeVito II, 72 L. R. R. M., at 2682. Since it inevitably would be a matter of grave public concern were a case to arise where the complaining member’s proofs sufficed to require judicial inquiry into allegations of that kind, we may hope that such cases would be rare indeed.
There remains the question of remedy. When the district court determines that the Secretary’s statement of reasons adequately demonstrates that his decision not to sue is not contrary to law, the complaining union member’s suit fails and should be dismissed. Howard v. Hodgson, 490 F. 2d 1194 (CA8 1974). Where the statement inadequately discloses his reasons, the Secretary may be afforded opportunity to supplement his statement. DeVito I, 300 F. Supp., at 384; Valenta v. Brennan, supra. The court must be mindful, however, that endless litigation concerning the sufficiency of the written statement is inconsistent with the statute’s goal of expeditious resolution of post-election disputes.
The district court may, however, ultimately come to the conclusion that the Secretary’s statement of reasons on its face renders necessary the conclusion that his decision not to sue is so irrational as to constitute the decision arbitrary and capricious. There would then be presented the question whether the district court is empowered to order the Secretary to bring a civil suit against the union to set aside the election. We have no occasion to address that question at this time. It obviously presents some difficulty in light of the strong evidence that Congress deliberately gave exclusive enforcement authority to the Secretary. See Passenger Corp v. Passengers Assn., 414 U. S. 453, 465 (1974) (Brennan, J., concurring); Nader v. Saxbe, 162 U. S. App. D. C. 89, 92-93, n. 19, 497 F. 2d 676, 679-680, n. 19 (1974). We prefer therefore at this time to assume that the Secretary would proceed appropriately without the coercion of a court order when finally advised by the courts that his decision was in law arbitrary and capricious.
Ill
The opinion of the Court of Appeals authorized review beyond the permissible limits defined in this opinion. After first stating that “judicial review of the Secretary’s decision not to bring suit should extend at the very least to an inquiry into his reasons, for that decision . . . ,” 502 F. 2d, at 88-89, the court noted: “The relief requested by the complaint . . . however, goes beyond such an inquiry. . . . [P] lain tiff seeks an opportunity to challenge the factual basis for [the Secretary’s] conclusion either that no violations occurred or that they did not affect the outcome of the election.” Id., at 89. The court concluded that in that circumstance “plaintiff is entitled to a sufficiently specific statement of the factors upon which the Secretary relied in reaching his decision not to file suit so that plaintiff may have information concerning the allegations contained in his complaint.” Id., at 90.
But the key allegation of plaintiff’s verified complaint is paragraph 18 which alleges: “Notwithstanding the fact that the Defendant Secretary’s investigation has substantiated the plaintiff’s allegations and notwithstanding the fact that the irregularities charged affected the outcome of the election the Defendant Secretary refuses to file suit to set aside the election.” Thus the Court of Appeals’ opinion impermissibly authorizes the District Court to allow respondent the full trappings of an adversary trial of his challenge to the factual basis for the Secretary’s decision.
IV
The District Court, pursuant to the Court of Appeals’ order of remand, ordered the Secretary to furnish a statement of reasons. The petitioner did not cross-petition from the order, and petitioner and USWA conceded that the order was proper in this case. Tr. of Oral Arg. 23-24, 52. The Secretary furnished the statement and it is attached as an Appendix to this opinion. Its adequacy to support a conclusion whether the Secretary’s decision was rationally based or was arbitrary and capricious, is a matter of initial determination by the District Court.
The judgment of the Court of Appeals is reversed insofar as it directs further proceedings consistent with the opinion of the Court of Appeals, and that court is directed to enter a new order that the proceedings on remand be consistent with this opinion of this Court.
iSo ordered.
The result of the election was as follows:
Kay Kluz (incumbent) 10,558
Walter Bachowski (respondent) 9,651
Morros Brummett 3,566
Title 29 U. S. C. §482 provides:
“(a) Filing of complaint; presumption of validity of challenged election.
“A member of a labor organization—
"(1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
“(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, “may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title . . . . The challenged election shall be presumed valid pending a final decision thereon . . . and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide. “(b) Investigation of complaint; commencement of civil action by Secretary; jurisdiction; preservation of assets.
“The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary . . . .”
The complaint was filed on the date, November 7, 1973, of the letter quoted in the text. The complaint alleges that on November 5, respondent “received a phone call from the Pittsburgh office of the Defendant Secretary advising him that the Defendant Secretary had decided not to file suit to set aside the contested election in District 20 USWA.”
The Order of November 12 recites that “it is determined that this Court lacks jurisdiction over the subject matter of this Complaint.” In view of our result, it is immaterial whether the dismissal was on the ground of lack of jurisdiction or of nonreviewability, or on both grounds.
Section 606 of the LMRDA, 29 U. S. C. §526, provides:
“The provisions of the Administrative Procedure Act shall be applicable to . . . any adjudication, authorized or required pursuant to the provisions of this chapter.”
The pertinent provisions of the Administrative Procedure Act, 5 U. S. C. §§ 701-706, provide:
"§701. Application; definitions.
"(a) This chapter applies . . . except to the extent that—
“(1) statutes preclude judicial review; or
"(2) agency action is committed to agency discretion by law. . . .” “§ 702. Right of review.
“A person suffering legal wrong because of agency action . . . is entitled to judicial review thereof.”
Ҥ 704. Actions reviewable.
“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. . . .”
"§ 706. Scope of review.
“. . . The reviewing court shall—
“(2) hold unlawful and set aside agency action . . . found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”
The closing sentence of the opinion as originally filed on July 26, 1974, required' the District Court to permit respondent “to examine the data and reports” upon which the Secretary relied. The present version was substituted by order dated September 3, 1974, which also added n. 17, reciting the Court of Appeals’ recognition that certain data in the Secretary’s files may be privileged and confidential.
We agree with the Court of Appeals, for the reasons stated in its opinion, 502 F. 2d 79, 86-88 (CA3 1974), that there is no merit in the Secretary’s contention that his decision is an unreviewable exercise of prosecutorial discretion.
See S. Rep. No. 187, 86th Cong., 1st Sess., 7 (1959) :
“In acting on this bill [S. 1555] the committee followed three principles:
“1. The committee recognized the desirability of minimum interference by Government in the internal affairs of any private organization. ... [I]n establishing and enforcing statutory standards great care should be taken not to undermine union self-government or weaken unions in their role as collective-bargaining agents.
“2. Given the maintenance of minimum democratic safeguards and detailed essential information about the union, the individual members are fully competent to regulate union aifairs. . . .
“3. Remedies for the abuses should be direct. . . . [T]he legislation should provide an administrative or judicial remedy appropriate for each specific problem.”
See also ibid.:
“The bill reported by the committee, while it carries out all the major recommendations of the [McClellan] committee, does so within a general philosophy of legislative restraint.”
Respondent referred at oral argument to the following statement in the Brief for United Mine Workers of America as Amicus Curiae 3: “The struggle by UMWA members to overturn tyranny in their Union was a lonely and difficult one in part because of apathy and indifference, if not outright prejudice against them, by the officials within the United States Department of Labor, purportedly the guardians of union members’ rights under LMRDA. Too often, union reformers have found the Department of Labor allied with union incumbents against their interests.”
No issue of this nature is raised by respondent’s complaint in this case.
Title 5 U. S. C. § 555 (e) provides:
“Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceedings. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.”
Judge Gesell of the District Court for the District of Columbia fashioned an acceptable procedure in DeVito I, 300 F. Supp. 381 (1969). Aggrieved union members complained of irregularities in the election of regular officers of the International Union. They also complained of irregularities in the election of an International President Emeritus. The office of the Secretary of Labor refused to bring suit to set aside either election, supplying separate statements of reasons in the cases. Judge Gesell determined that the statement respecting the regular election of officers was inadequate, but that the statement respecting the election of a President Emeritus was sufficient. He therefore ordered the Secretary to reopen consideration of the former complaint and to submit "a fuller statement of reasons and explanation,” if on reconsideration the Secretary remained determined not to bring suit. The Secretary’s motion to dismiss and for summary judgment was denied without prejudice to a further submission of reasons on that aspect of the case but was granted as respects the election of the President Emeritus. Later, following the Secretary’s reconsideration of the election of the regular officers, and his adherence to his determination not to file suit, Judge Gesell conducted another hearing. DeVito 17, 72 L. R. R. M. 2682 (DC 1969). Judge Gesell concluded on this occasion that the Secretary “satisfied the Court that there is a rational basis for his not proceeding” and granted the Secretary’s motion to dismiss.
USWA argues that Arts. II and III of the Constitution “do not countenance a court order requiring the executive branch, against its wishes, to institute a lawsuit in federal court.” “[A] judicial direction that such an action be brought would violate the separation of powers . . . [and] because the Secretary agrees with the union that Title IV does not require a new election, the lawsuit would be one lacking the requisite adversity of interest to constitute a 'case’ or 'controversy’ as required by Article III.” Since we do not consider at this time the question of the court’s power to order the Secretary to file suit, we need not address those contentions.
The Secretary concedes that, because the District Court dismissed respondent’s complaint for want of “jurisdiction,” all of the factual allegations of this paragraph must be accepted as true. Brief for Petitioner 4 n. 2. The allegation recites, however, only that the “Secretary’s investigation has substantiated the plaintiff’s allegations,” and not also that the Secretary has found that the irregularities charged affected the outcome of the election. On the contrary, the reasons statement attached as the Appendix to this opinion discloses that the Secretary found that the irregularities did not affect the conduct of the election.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
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"Unidentifiable",
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] |
[
70
] |
FEDERAL TRADE COMMISSION v. INDIANA FEDERATION OF DENTISTS
No. 84-1809.
Argued March 25, 1986
Decided June 2, 1986
White, J., delivered the opinion for a unanimous Court.
Marcy J. K. Tiffany argued the cause for petitioner. With her on the briefs were Solicitor General Fried, Assistant Attorney General Ginsburg, Ernest J. Isenstadt, David C. Shonka, and L. Barry Costilo.
Bruce W. Graham argued the cause for respondent. With him on the brief was Ronald K. Fowler.
Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Alfred Miller and Steven S. Honigman; for the Health Insurance Association of America by Joe Sims and Edwin R. Soeffing; and for the Washington Business Group on Health by Stephan E. Lawton.
Briefs of amici curiae urging affirmance were filed for the American College of Radiology by Reuben L. Hedlund and James A. Chemey; for the American Dental Association by Peter M. Sfikas; for the American Medical Association by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, and Jack R. Bierig; and for the Physicians and Surgeons Association of Massachusetts, Inc., by Robert D. Paul and Donald B. Gould.
Justice White
delivered the opinion of the Court.
This case concerns commercial relations among certain Indiana dentists, their patients, and the patients’ dental health care insurers. The question presented is whether the Federal Trade Commission correctly concluded that a conspiracy among dentists to refuse to submit x rays to dental insurers for use in benefits determinations constituted an “unfair method of competition” in violation of §5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. §45 (1982 ed. and Supp. II).
I
Since the 1970’s, dental health insurers, responding to the demands of their policyholders, have attempted to contain the cost of dental treatment by, among other devices, limiting payment of benefits to the cost of the “least expensive yet adequate treatment” suitable to the needs of individual patients. Implementation of such cost-containment measures, known as “alternative benefits” plans, requires evaluation by the insurer of the diagnosis and recommendation of the treating dentist, either in advance of or following the provision of care. In order to carry out such evaluation, insurers frequently request dentists to submit, along with insurance claim forms requesting payment of benefits, any dental x rays that have been used by the dentist in examining the patient as well as other information concerning their diagnoses and treatment recommendations. Typically, claim forms and accompanying x rays are reviewed by lay claims examiners, who either approve payment of claims or, if the materials submitted raise a question whether the recommended course of treatment is in fact necessary, refer claims to dental consultants, who are licensed dentists, for further review. On the basis of the materials available, supplemented where appropriate by further diagnostic aids, the dental consultant may recommend that the insurer approve a claim, deny it, or pay only for a less expensive course of treatment.
Such review of diagnostic and treatment decisions has been viewed by some dentists as a threat to their professional independence and economic well-being. In the early 1970’s, the Indiana Dental Association, a professional organization comprising some 85% of practicing dentists in the State of Indiana, initiated an aggressive effort to hinder insurers’ efforts to implement alternative benefits plans by enlisting member dentists to pledge no.t to submit x rays in conjunction with claim forms. The Association’s efforts met considerable success: large numbers of dentists signed the pledge, and insurers operating in Indiana found it difficult to obtain compliance with their requests for x rays and accordingly had to choose either to employ more expensive means of making alternative benefits determinations (for example, visiting the office of the treating dentist or conducting an independent oral examination) or to abandon such efforts altogether.
By the mid-1970’s, fears of possible antitrust liability had dampened the Association’s enthusiasm for opposing the submission of x rays to insurers. In 1979, the Association and a number of its constituent societies consented to a Federal Trade Commission order requiring them to cease and desist from further efforts to prevent member dentists from submitting x rays. In re Indiana Dental Assn., 93 F. T. C. 392. Not all Indiana dentists were content to leave the matter of submitting x rays to the individual dentist. In 1976, a group of such dentists formed the Indiana Federation of Dentists, respondent in this case, in order to continue to pursue the Association’s policy of resisting insurers’ requests for x rays. The Federation, which styled itself a “union” in the belief that this label would stave off antitrust liability, immediately promulgated a “work rule” forbidding its members to submit x rays to dental insurers in conjunction with claim forms. Although the Federation’s membership was small, numbering less than 100, its members were highly concentrated in and around three Indiana communities: Anderson, Lafayette, and Fort Wayne. The Federation succeeded in enlisting nearly 100% of the dental specialists in the Anderson area, and approximately 67% of the dentists in and around Lafayette. In the areas of its strength, the Federation was successful in continuing to enforce the Association’s prior policy of refusal to submit x rays to dental insurers.
In 1978, the Federal Trade Commission issued a complaint against the Federation, alleging in substance that its efforts to prevent its members from complying with insurers’ requests for x rays constituted an unfair method of competition in violation of §5 of the Federal Trade Commission Act. Following lengthy proceedings including a full evidentiary hearing before an Administrative Law Judge, the Commission ruled that the Federation’s policy constituted a violation of § 5 and issued an order requiring the Federation to cease and desist from further efforts to organize dentists to refuse to submit x rays to insurers. In re Indiana Federation of Dentists, 101 F. T. C. 57 (1983). The Commission based its ruling on the conclusion that the Federation’s policy of requiring its members to withhold x rays amounted to a conspiracy in restraint of trade that was unreasonable and hence unlawful under the standards for judging such restraints developed in this Court’s precedents interpreting §1 of the Sherman Act. E. g., Chicago Board of Trade v. United States, 246 U. S. 231 (1918); National Society of Professional Engineers v. United States, 435 U. S. 679 (1978). The Commission found that the Federation had conspired both with the Indiana Dental Association and with its own members to withhold cooperation with dental insurers’ requests for x rays; that absent such a restraint, competition among dentists for patients would have tended to lead dentists to compete with respect to their policies in dealing with patients’ insurers; and that in those areas where the Federation’s membership was strong, the Federation’s policy had had the actual effect of eliminating such competition among dentists and preventing insurers from obtaining access to x rays in the desired manner. These findings of anticompetitive effect, the Commission concluded, were sufficient to establish that the restraint was unreasonable even absent proof that the Federation’s policy had resulted in higher costs to the insurers and patients than would have occurred had the x rays been provided. Further, the Commission rejected the Federation’s argument that its policy of withholding x rays was reasonable because the provision of x rays might lead the insurers to make inaccurate determinations of the proper level of care and thus injure the health of the insured patients: the Commission found no evidence that use of x rays by insurance companies in evaluating claims would result in inadequate dental care. Finally, the Commission rejected the Federation’s contention that its actions were exempt from antitrust scrutiny because the withholding of x rays was consistent with the law and policy of the State of Indiana against the use of x rays in benefit determination by insurance companies. The Commission concluded that no such policy existed, and that in any event the existence of such a policy would not have justified the dentists’ private and unsupervised conspiracy in restraint of trade.
The Federation sought judicial review of the Commission’s order in the United States Court of Appeals for the Seventh Circuit, which vacated the order on the ground that it was not supported by substantial evidence. 745 F. 2d 1124 (1984). Accepting the Federation’s characterization of its rule against submission of x rays as merely an ethical and moral policy designed to enhance the welfare of dental patients, the majority concluded that the Commission’s findings that the policy was anticompetitive were erroneous. According to the majority, the evidence did not support the finding that in the absence of restraint dentists would compete for patients by offering cooperation with the requests of the patients’ insurers, nor, even accepting that finding, was there evidence that the Federation’s efforts had prevented such competition. Further, the court held that the Commission’s findings were inadequate because of its failure both to offer a precise definition of the market in which the Federation was alleged to have restrained competition and to establish that the Federation had the power to restrain competition in that market. Finally, the majority faulted the Commission for not finding that the alleged restraint on competition among dentists had actually resulted in higher dental costs to patients and insurers. The third member of the Court of Appeals panel concurred in the judgment solely on the ground that there was insufficient proof that cooperation with insurers was an element of dental services as to which dentists would tend to compete.
We granted certiorari, 474 U. S. 900 (1985), in order to consider the Commission’s claim that in vacating the Commission’s order the Court of Appeals misconstrued applicable principles of antitrust law and “‘misapprehended or grossly misapplied’ the substantial evidence test,” American Textile Manufacturers Institute, Inc. v. Donovan, 452 U. S. 490, 523 (1981) (citation omitted). We now reverse.
II
The issue is whether the Commission erred in holding that the Federation’s policy of refusal to submit x rays to dental insurers for use in benefits determinations constituted an “unfair method of competition,” unlawful under §5 of the Federal Trade Commission Act. The question involves review of both factual and legal determinations. As to the former, our review is governed by 15 U. S. C. § 45(c), which provides that “[t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.” The statute forbids a court to “make its own appraisal of the testimony, picking and choosing for itself among uncertain and conflicting inferences.” FTC v. Algoma Lumber Co., 291 U. S. 67, 73 (1934). Rather, as under the essentially identical “substantial evidence” standard for review of agency factfinding, the court must accept the Commission’s findings of fact if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U. S. 474, 477 (1951); see also Beneficial Corp. v. FTC, 542 F. 2d 611, 616 (CA3 1976), cert. denied, 430 U. S. 983 (1977).
The legal issues presented — that is, the identification of governing legal standards and their application to the facts found — are, by contrast, for the courts to resolve, although even in considering such issues the courts are to give some deference to the Commission’s informed judgment that a particular commercial practice is to. be condemned as “unfair.” See FTC v. Sperry & Hutchinson Co., 405 U. S. 233 (1972); Atlantic Refining Co. v. FTC, 381 U. S. 357, 367-368 (1965); FTC v. Cement Institute, 333 U. S. 683, 720 (1948). The standard of “unfairness” under the FTC Act is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws, see FTC v. Cement Institute, supra, at 689-695, but also practices that the Commission determines are against public policy for other reasons, see FTC v. Sperry & Hutchinson Co., 405 U. S., at 244. Once the Commission has chosen a particular legal rationale for holding a practice to be unfair, however, familiar principles of administrative law dictate that its decision must stand or fall on that basis, and a reviewing court may not consider other reasons why the practice might be deemed unfair. See id., at 245-250; cf. SEC v. Chenery Corp., 318 U. S. 80 (1943). In the case now before us, the sole basis of the FTC’s finding of an unfair method of competition was the Commission’s conclusion that the Federation’s collective decision to withhold x rays from insurers was an unreasonable and conspiratorial restraint of trade in violation of §1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. Accordingly, the legal question before us is whether the Commission’s factual findings, if supported by evidence, make out a violation of Sherman Act § 1.
Ill
The relevant factual findings are that the members of the Federation conspired among themselves to withhold x rays requested by dental insurers for use in evaluating claims for benefits, and that this conspiracy had the effect of suppressing competition among dentists with respect to cooperation with the requests of the insurance companies. As to the first of these findings there can be no serious dispute: abundant evidence in the record reveals that one of the primary reasons — if not the primary reason — for the Federation’s existence was the promulgation and enforcement of the so-called “work rule” against submission of x rays in conjunction with insurance claim forms.
As for the second crucial finding — that competition was actually suppressed — the Seventh Circuit held it to be unsupported by the evidence, on two theories. First, the court stated that the evidence did not establish that cooperation with requests for information by patients’ insurance companies was an aspect of the provision of dental services with respect to which dentists would, in the absence of some restraint, compete. Second, the court found that even assuming that dentists would otherwise compete with respect to policies of cooperating or not cooperating with insurance companies, the Federation’s policy did not impair that competition, for the member dentists continued to allow insurance companies to use other means of evaluating their diagnoses when reviewing claims for benefits: specifically, “the IFD member dentists allowed insurers to visit the dental office to review and examine the patient’s x rays along with all of the other diagnostic and clinical aids used in formulating a proper course of dental treatment.” 745 F. 2d, at 1143.
Neither of these criticisms of the Commission’s findings is well founded. The Commission’s finding that “[i]n the absence of . . . concerted behavior, individual dentists would have been subject to market forces of competition, creating incentives for them to . . . comply with the requests of patients’ third-party insurers,” 101 F. T. C., at 173, finds support not only in common sense and economic theory, upon both of which the FTC may reasonably rely, but also in record documents, including newsletters circulated among Indiana dentists, revealing that Indiana dentists themselves perceived that unrestrained competition tended to lead their colleagues to comply with insurers’ requests for x rays. See App. to Pet. for Cert. 289a, 306a-308a. Moreover, there was evidence that outside of Indiana, in States where dentists had not collectively refused to submit x rays, insurance companies found little difficulty in obtaining compliance by dentists with their requests. 101 F. T. C., at 172. A “reasonable mind” could conclude on the basis of this evidence that competition for patients, who have obvious incentives for seeking dentists who will cooperate with their insurers, would tend to lead dentists in Indiana (and elsewhere) to cooperate with requests for information by their patients’ insurers.
The Commission’s finding that such competition was actually diminished where the Federation held sway also finds adequate support in the record. The Commission found that in the areas where Federation membership among dentists was most significant (that is, in the vicinity of Anderson and Lafayette) insurance companies were unable to obtain compliance with their requests for submission of x rays in conjunction with claim forms and were forced to resort to other, more costly, means of reviewing diagnoses for the purpose of benefit determination. Neither the opinion of the Court of Appeals nor the brief of respondent identifies any evidence suggesting that the Commission’s finding that the Federation’s policy had an actual impact on the ability of insurers to obtain the x rays they requested was incorrect. The lower court’s conclusion that this evidence is to be discounted because Federation members continued to cooperate with insurers by allowing them to use more costly — indeed, prohibitively costly — methods of reviewing treatment decisions is unpersuasive. The fact remains that the dentists’ customers (that is, the patients and their insurers) sought a particular service: cooperation with the insurers’ pretreatment review through the forwarding of x rays in conjunction with claim forms. The Federation’s collective activities resulted in the denial of the information the customers requested in the form that they requested it, and forced them to choose between acquiring that information in a more costly manner or forgoing it altogether. To this extent, at least, competition among dentists with respect to cooperation with the requests of insurers was restrained.
IV
The question remains whether these findings are legally sufficient to establish a violation of § 1 of the Sherman Act— that is, whether the Federation’s collective refusal to cooperate with insurers’ requests for x rays constitutes an “unreasonable” restraint of trade. Under our precedents, a restraint may be adjudged unreasonable either because it fits within a class of restraints that has been held to be “per se” unreasonable, or because it violates what has come to be known as the “Rule of Reason,” under which the “test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” Chicago Board of Trade v. United States, 246 U. S., at 238.
The policy of the Federation with respect to its members’ dealings with third-party insurers resembles practices that have been labeled “group boycotts”: the policy constitutes a concerted refusal to deal on particular terms with patients covered by group dental insurance. Cf. St. Paul Fire & Marine Insurance Co. v. Barry, 438 U. S. 531 (1978); Paramount Famous Lasky Corp. v. United States, 282 U. S. 30 (1930). Although this Court has in the past stated that group boycotts are unlawful per se, see United States v. General Motors Corp., 384 U. S. 127 (1966); Klor’s, Inc. v. Broadway-Hale Stores, Inc. 359 U. S. 207 (1959), we decline to resolve this case by forcing the Federation’s policy into the “boycott” pigeonhole and invoking the per se rule. As we observed last Term in Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U. S. 284 (1985), the category of restraints classed as group boycotts is not to be expanded indiscriminately, and the per se approach has generally been limited to eases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor — a situation obviously not present here. Moreover, we have been slow to condemn rules adopted by professional associations as unreasonable per se, see National Society of Professional Engineers v. United States, 435 U. S. 679 (1978), and, in general, to extend per se analysis to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1 (1979). Thus, as did the FTC, we evaluate the restraint at issue in this case under the Rule of Reason rather than a rule of per se illegality.
Application of the Rule of Reason to these facts is not a matter óf any great difficulty. The Federation’s policy takes the form of a horizontal agreement among the participating dentists to withhold from their customers a particular service that they desire — the forwarding of x rays to insurance companies along with claim forms. “While this is not price fixing as such, no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.” National Society of Professional Engineers, supra, at 692. A refusal to compete with respect to the package of services offered to customers, no less than a refusal to compete with respect to the price term of an agreement, impairs the ability of the market to advance social welfare by ensuring the provision of desired goods and services to consumers at a price approximating the marginal cost of providing them. Absent some countervailing procompetitive virtue — such as, for example, the creation of efficiencies in the operation of a market or the provision of goods and services, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., supra; Chicago Board of Trade, supra; cf. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85 (1984)—such an agreement limiting consumer choice by impeding the “ordinary give and take of the market place,” National Society of Professional Engineers, supra, at 692, cannot be sustained under the Rule of Reason. No credible argument has been advanced for the proposition that making it more costly for the insurers and patients who are the dentists’ customers to obtain information needed for evaluating the dentists’ diagnoses has any such procompetitive effect.
The Federation advances three principal arguments for the proposition that, notwithstanding its lack of competitive virtue, the Federation’s policy of withholding x rays should not be deemed an unreasonable restraint of trade. First, as did the Court of Appeals, the Federation suggests that in the absence of specific findings by the Commission concerning the definition of the market in which the Federation allegedly restrained trade and the power of the Federation’s members in that market, the conclusion that the Federation unreasonably restrained trade is erroneous as a matter of law, regardless of whether the challenged practices might be impermissibly anticompetitive if engaged in by persons who together possessed power in a specifically defined market. This contention, however, runs counter to the Court’s holding in National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., supra, that “[a]s a matter of law, the absence of proof of market power does not justify a naked restriction on price or output,” and that such a restriction “requires some competitive justification even in the absence of a detailed market analysis.” Id., at 109-110. Moreover, even if the restriction imposed by the Federation is not sufficiently “naked” to call this principle into play, the Commission’s failure to engage in detailed market analysis is not fatal to its finding of a violation of the Rule of Reason. The Commission found that in two localities in the State of Indiana (the Anderson and Lafayette areas), Federation dentists constituted heavy majorities of the practicing dentists and that as a result of the efforts of the Federation, insurers in those areas were, over a period of years, actually unable to obtain compliance with their requests for submission of x rays. Since the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition, “proof of actual detrimental effects, such as a reduction of output,” can obviate the need for an inquiry into market power, which is but a “surrogate for detrimental effects.” 7 P. Areeda, Antitrust Law ¶ 1511, p. 429 (1986). In this case, we conclude that the finding of actual, sustained adverse effects on competition in those areas where IFD dentists predominated, viewed in light of the reality that markets for dental services tend to be relatively localized, is legally sufficient to support a finding that the challenged restraint was unreasonable even in the absence of elaborate market analysis.
Second, the Federation, again following the lead of the Court of Appeals, argues that a holding that its policy of withholding x rays constituted an unreasonable restraint of trade is precluded by the Commission’s failure to make any finding that the policy resulted in the provision of dental services that were more costly than those that the patients and their insurers would have chosen were they able to evaluate x rays in conjunction with claim forms. This argument, too, is unpersuasive. Although it is true that the goal of the insurers in seeking submission of x rays for use in their review of benefits claims was to minimize costs by choosing the least expensive adequate course of dental treatment, a showing that this goal was actually achieved through the means chosen is not an essential step in establishing that the dentists’ attempt to thwart its achievement by collectively refusing to supply the requested information was an unreasonable restraint of trade. A concerted and effective effort to withhold (or make more costly) information desired by consumers for the purpose of determining whether a particular purchase is cost justified is likely enough to disrupt the proper functioning of the price-setting mechanism of the market that it may be condemned even absent proof that it resulted in higher prices or, as here, the purchase of higher priced services, than would occur in its absence. National Society of Professional Engineers v. United States, 435 U. S. 679 (1978). Moreover, even if the desired information were in fact completely useless to the insurers and their patients in making an informed choice regarding the least costly adequate course of treatment — or, to put it another way, if the costs of evaluating the information were far greater than the cost savings resulting from its use — the Federation would still not be justified in deciding on behalf of its members’ customers that they did not need the information: presumably, if that were the case, the discipline of the market would itself soon result in the insurers’ abandoning their requests for x rays. The Federation is not entitled to pre-empt the working of the market by deciding for itself that its customers do not need that which they demand.
Third, the Federation complains that the Commission erred in failing to consider, as relevant to its Rule of Reason analysis, noncompetitive “quality of care” justifications for the prohibition on provision of x rays to insurers in conjunction with claim forms. This claim reflects the Court of Appeals’ repeated characterization of the Federation’s policy as a “legal, moral, and ethical policy of quality dental care, requiring that insurers examine and review all diagnostic and clinical aids before formulating a proper course of dental treatment.” 745 F. 2d, at 1144. The gist of the claim is that x rays, standing alone, are not adequate bases for diagnosis of dental problems or for the formulation of an acceptable course of treatment. Accordingly, if insurance companies are permitted to determine whether they will pay a claim for dental treatment on the basis of x rays as opposed to a full examination of all the diagnostic aids available to the examining dentist, there is a danger that they will erroneously decline to pay for treatment that is in fact in the interest of the patient, and that the patient will as a result be deprived of fully adequate care.
The Federation’s argument is flawed both legally and factually. The premise of the argument is that, far from having no effect on the cost of dental services chosen by patients and their insurers, the provision of x rays will have too great an impact: it will lead to the reduction of costs through the selection of inadequate treatment. Precisely such a justification for withholding information from customers was rejected as illegitimate in the National Society of Professional Engineers case. The argument is, in essence, that an unrestrained market in which consumers are given access to the information they believe to be relevant to their choices will lead them to make unwise and even dangerous choices. Such an argument amounts to “nothing less than a frontal assault on the basic policy of the Sherman Act.” National Society of Professional Engineers, supra, at 695. Moreover, there is no particular reason to believe that the provision of information will be more harmful to consumers in the market for dental services than in other markets. Insurers deciding what level of care to pay for are not themselves the recipients of those services, but it is by no means clear that they lack incentives to consider the welfare of the patient as well as the minimization of costs. They are themselves in competition for the patronage of the patients — or, in most cases, the unions or businesses that contract on their behalf for group insurance coverage — and must satisfy their potential customers not only that they will provide coverage at a reasonable cost, but also that that coverage will be adequate to meet their customers’ dental needs. There is thus no more reason to expect dental insurance companies to sacrifice quality in return for cost savings than to believe this of consumers in, say, the market for engineering services. Accordingly, if noncompetitive quality-of-service justifications are inadmissible to justify the denial of information to consumers in the latter market, there is little reason to credit such justifications here.
In any event, the Commission did not, as the Federation suggests, refuse even to consider the quality-of-care justification for the withholding of x rays. Rather, the Commission held that the Federation had failed to introduce sufficient evidence to establish such a justification: “IFD has not pointed to any evidence — or even argued — that any consumers have in fact been harmed by alternative benefits determinations, or that actual determinations have been medically erroneous.” 101 F. T. C., at 177. The evidence before the Administrative Law Judge on this issue appears to have consisted entirely of expert opinion testimony, with the Federation’s experts arguing that x rays generally provide an insufficient basis, standing alone, for dental diagnosis, and the Commission’s experts testifying that x rays may be useful in assessing diagnosis of and appropriate treatment for a variety of dental complaints. Id., at 128-132. The Commission was amply justified in concluding on the basis of this conflicting evidence that even if concern for the quality of patient care could under some circumstances serve as a justification for a restraint of the sort imposed here, the evidence did not support a finding that the careful use of x rays as a basis for evaluating insurance claims is in fact destructive of proper standards of dental care.
In addition to arguing that its conspiracy did not effect an unreasonable restraint of trade, the Federation appears to renew its argument, pressed before both the Commission and the Court of Appeals, that the conspiracy to withhold x rays is immunized from antitrust scrutiny by virtue of a supposed policy of the State of Indiana against the evaluation of dental x rays by lay employees of insurance companies. See Brief for Respondent 25-26, and n. 10. Allegedly, such use of x rays by insurance companies — even where no claim was actually denied without examination of an x ray by a licensed dentist — would constitute unauthorized practice of dentistry by the insurance company and its employees. The Commission found that this claim had no basis in any authoritative source of Indiana law, see 101 F. T. C., at 181-183, and the Federation has not identified any adequate reason for rejecting the Commission’s conclusion. Even if the Commission were incorrect in its reading of the law, however, the Federation’s claim of immunity would fail. That a particular practice may be unlawful is not, in itself, a sufficient justification for collusion among competitors to prevent it. See Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457, 468 (1941). Anticompetitive collusion among private actors, even when its goal is consistent with state policy, acquires antitrust immunity only when it is actively supervised by the State. See Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 57 (1985). There is no suggestion of any such active supervision here; accordingly, whether or not the policy the Federation has taken upon itself to advance is consistent with the policy of the State of Indiana, the Federation’s activities are subject to Sherman Act condemnation.
V
The factual findings of the Commission regarding the effect of the Federation’s policy of withholding x rays are supported by substantial evidence, and those findings are sufficient as a matter of law to establish a violation of § 1 of the Sherman Act, and, hence, § 5 of the Federal Trade Commission Act. Since there has been no suggestion that the cease- and-desist order entered by the Commission to remedy this violation is itself improper for any reason distinct from the claimed impropriety of the finding of a violation, the Commission’s order must be sustained. The judgment of the Court of Appeals is accordingly
Reversed.
A presentation made in 1974 by Dr. David McClure, an Association official and later one of the founders of respondent Indiana Federation of Dentists, is revealing as to the motives underlying the dentists’ resistance to the provision of x rays for use by insurers in making alternative benefits determinations:
“The problems associated -with third party programs are many, but I believe the ‘Indiana Plan’ [i. e., the policy of refusing to submit x rays] to be sound and if we work together, we can win this battle. We are fighting an economic war where the very survival of our profession is at stake.
“How long can some of the leaders of dentistry in other states be so complacent and willing to fall into the trap that is being set for us. If only they would take the time, to see from whence come the arrows that are heading in our direction. The Delta Dental Plans have bedded down with the unions and have been a party to setting up the greatest controls that any profession has ever known in a free society. . . .
“The name of the game is money. The government and labor are determined to reduce the cost of the dental health dollar at the expense of the dentist. There is no way a dental service can be rendered cheaper when the third party has to have its share of the dollar.
“Already we are locked into a fee freeze that could completely control the quality of dental care, if left on long enough.” FTC Complaint Counsel’s Trial Exhibit CX 372A, F, App. 104.
Respondent no longer makes any pretense of arguing that it is immune from antitrust liability as a labor organization.
Because we find that the Commission’s findings can be sustained on this basis, we do not address the Commission’s contention that the Federation’s activities can be condemned regardless of market power or actual effect merely because they constitute a continuation of the restraints formerly imposed by the Indiana Dental Association, which allegedly had market power throughout the State of Indiana.
It is undisputed that lay claims examiners employed by insurance companies have no authority to deny claims on the basis of examination of x rays; rather, initial screening of x rays serves only as a means of identifying cases that merit further scrutiny by the licensed dentists serving as consultants to the insurers. Any recommendation that benefits be denied or a less expensive course of treatment be pursued is based on the professional judgment of a licensed dentist that the materials available to him— x rays, claim forms, and whatever further diagnostic aids he chooses to consult — are sufficient to indicate that the treating dentist’s recommendation is not necessary to the health of the patient. There is little basis for concluding that, where such a divergence of professional judgment exists, the treatment recommendation made by the patient’s dentist should be assumed to be the one that in fact represents the best interests of the patient.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
56
] |
FIREFIGHTERS LOCAL UNION NO. 1784 v. STOTTS et al.
No. 82-206.
Argued December 6, 1983
Decided June 12, 1984
Allen S. Blair argued the cause for petitioners in both cases. With him on the brief for petitioner in No. 82-206 was James R. Newsom III. Clifford D. Pierce, Jr., and Louis P. Britt III filed a brief for petitioners in No. 82-229. Messrs. Blair, Newsom, Pierce, and Britt filed a reply brief for petitioners in both cases.
Solicitor General Lee argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Assistant Attorney General Reynolds, Dep uty Assistant Attorney General Cooper, Carter G. Phillips, Brian K. Landsberg, and Dennis J. Dimsey.
Richard B. Fields argued the cause for respondents. With him on the brief were Thomas M. Daniel, Jack Green-berg, 0. Peter Sherwood, Clyde E. Murphy, Ronald L. Ellis, Eric Schnapper, and Barry L. Goldstein
Together with No. 82-229, Memphis Fire Department et al. v. Stotts et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by J. Albert Woll, Michael H. Gottesman, Robert M. Weinberg, and Laurence Gold; for the Anti-Defamation League of B’nai B’rith by Robert A. Helman, Michele Odorizzi, Daniel M. Harris, Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, and Leslie Shedlin; for the Detroit Police Officers Association by Walter S. Nussbaum and Donald J. Mooney, Jr.; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for the International Association of Fire Fighters, AFL-CIO, by Edward J. Hickey, Jr., and Michael S. Wolly; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió.
Briefs of amici curiae urging affirmance were filed for the City of Detroit by Frank Jackson; for the Affirmative Action Coordinating Center et al. by Morton Stavis, Jeanny Mirer, and Jules Lobel; for the American Jewish Congress by Nathan Z. Dershowitz; for the Lawyers’ Committee for Civil Rights Under Law by Richard M. Sharp, Jeffrey C. Martin, Fred N. Fishman, Robert H. Kapp, and William L. Robinson; for the Mexican American Legal Defense and Educational Fund by Robert L. King, Joaquin G. Avila, and Morris J. Bailer; for the National Black Police Association et al. by E. Richard Larson and Burt Neubome; for the National Organization for Women et al. by Judith I. Avner; and for Officers for Justice et al. by Robert L. Harris and Eva Jefferson Paterson.
Justice White
delivered the opinion of the Court.
Petitioners challenge the Court of Appeals’ approval of an order enjoining the City of Memphis from following its seniority system in determining who must be laid off as a result of a budgetary shortfall. Respondents contend that the injunction was necessary to effectuate the terms of a Title VII consent decree in which the City agreed to undertake certain obligations in order to remedy past hiring and promotional practices. Because we conclude that the order cannot be justified, either as an effort to enforce the consent decree or as a valid modification, we reverse.
h-H
In 1977 respondent Carl Stotts, a black holding the position of firefighting captain in the Memphis, Tenn., Fire Department, filed a class-action complaint in the United States District Court for the Western District of Tennessee. The complaint charged that the Memphis Fire Department and certain city officials were engaged in a pattern or practice of making hiring and promotion decisions on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., as well as 42 U. S. C. §§1981 and 1983. The District Court certified the case as a class action and consolidated it with an individual action subsequently filed by respondent Fred Jones, a black firefighting private in the Department, who claimed that he had been denied a promotion because of his race. Discovery proceeded, settlement negotiations ensued, and, in due course, a consent decree was approved and entered by the District Court on April 25, 1980.
The stated purpose of the decree was to remedy the hiring and promotion practices “of the . . . Department with respect to the employment of blacks.” 679 F. 2d 541, 575-576 (CA6 1982) (Appendix). Accordingly, the City agreed to promote 13 named individuals and to provide backpay to 81 employees of the Fire Department. It also adopted the long-term goal of increasing the proportion of minority representation in each job classification in the Fire Department to approximately the proportion of blacks in the labor force in Shelby County, Tenn. However, the City did not, by agreeing to the decree, admit “any violations of law, rule, or regulation with respect to the allegations” in the complaint. Id., at 574. The plaintiffs waived any further relief save to enforce the decree, ibid., and the District Court retained jurisdiction “for such further orders as may be necessary or appropriate to effectuate the purposes of this decree.” Id., at 578.
The long-term hiring goal outlined in the decree paralleled the provisions of a 1974 consent decree, which settled a case brought against the City by the United States and which applied citywide. Like the 1974 decree, the 1980 decree also established an interim hiring goal of filling on an annual basis 50 percent of the job vacancies in the Department with qualified black applicants. The 1980 decree contained an additional goal with respect'to promotions: the Department was to attempt to ensure that 20 percent of the promotions in each job classification be given to blacks. Neither decree contained provisions for layoffs or reductions in rank, and neither awarded any competitive seniority. The 1974 decree did require that for purposes of promotion, transfer, and assignment, seniority was to be computed “as the total seniority of that person with the City.” Id., at 572.
In early May 1981, the City announced that projected budget deficits required a reduction of nonessential personnel throughout the city government. Layoffs were to be based on the “last hired, first fired” rule under which city wide seniority, determined by each employee’s length of continuous service from the latest date of permanent employment, was the basis for deciding who would be laid off. If a senior employee’s position were abolished or eliminated, the employee could “bump down” to a lower ranking position rather than be laid off. As the Court of Appeals later noted, this layoff policy was adopted pursuant to the seniority system “mentioned in the 1974 Decree and . . . incorporated in the City’s memorandum of understanding with the Union.” 679 F. 2d, at 549.
On May 4, at respondents’ request, the District Court entered a temporary restraining order forbidding the layoff of any black employee. The Union, which previously had not been a party to either of these cases, was permitted to intervene. At the preliminary injunction hearing, it appeared that 55 then-filled positions in the Department were to be eliminated and that 39 of these positions were filled with employees having “bumping” rights. It was estimated that 40 least-senior employees in the firefighting bureau of the Department would be laid off and that of these 25 were white and 15 black. It also appeared that 56 percent of the employees hired in the Department since 1974 had been black and that the percentage of black employees had increased from approximately 3 or 4 percent in 1974 to 1154 percent in 1980.
On May 18, the District Court entered an order granting an injunction. The court found that the consent decree “did not contemplate the method to be used for reduction in rank or lay-off,” and that the layoff policy was in accordance with the City’s seniority system and was not adopted with any intent to discriminate. Nonetheless, concluding that the proposed layoffs would have a racially discriminatory effect and that the seniority system was not a bona fide one, the District Court ordered that the City “not apply the seniority policy proposed insofar as it will decrease the percentage of black lieutenants, drivers, inspectors and privates that are presently employed . . . .” On June 23, the District Court broadened its order to include three additional classifications. A modified layoff plan, aimed at protecting black employees in the seven classifications so as to comply with the court’s order, was presented and approved. Layoffs pursuant to the modified plan were then carried out. In certain instances, to comply with the injunction, nonminority employees with more seniority than minority employees were laid off or demoted in rank.
On appeal, the Court of Appeals for the Sixth Circuit affirmed despite its conclusion that the District Court was wrong in holding that the City’s seniority system was not bona fide. 679 F. 2d, at 551, n. 6. Characterizing the principal isssue as “whether the district court erred in modifying the 1980 Decree to prevent minority employment from being affected disproportionately by unanticipated layoffs,” id., at 551, the Court of Appeals concluded that the District Court had acted properly. After determining that the decree was properly approved in the first instance, the court held that the modification was permissible under general contract principles because the City “contracted” to provide “a substantial increase in the number of minorities in supervisory positions” and the layoffs would breach that contract. Id., at 561. Alternatively, the court held that the District Court was authorized to modify the decree because new and unforeseen circumstances had created a hardship for one of the parties to the decree. Id., at 562-563. Finally, articulating three alternative rationales, the court rejected petitioners’ argument that the modification was improper because it conflicted with the City’s seniority system, which was immunized from Title VII attack under § 703(h) of that Act, 42 U. S. C. § 2000e-2(h).
The Fire Department (and city officials) and the Union filed separate petitions for certiorari. The two petitions were granted, 462 U. S. 1105 (1983), and the cases were consolidated for oral argument.
1 — I f — <
We deal first with the claim that these cases are moot. Respondents submit that the injunction entered in these cases was a preliminary injunction dealing only with the 1981 layoffs, that all white employees laid off as a result of the injunction were restored to duty only one month after their layoff, and that those who were demoted have now been offered back their old positions. Assertedly, the injunction no longer has force or effect, and the cases are therefore moot. For several reasons, we find the submission untenable.
First, the injunction on its face ordered that “the defendants not apply the seniority policy proposed insofar as it will decrease the percentage of black” employees in specified classifications in the Department. The seniority policy was the policy adopted by the City and contained in the collective-bargaining contract with the Union. The injunction was affirmed by the Court of Appeals and has never been vacated. It would appear from its terms that the injunction is still in force and that unless set aside must be complied with in connection with any future layoffs.
Second, even if the injunction itself applied only to the 1981 layoffs, the predicate for the so-called preliminary injunction was the ruling that the consent decree must be construed to mean and, in any event, must be modified to provide that layoffs were not to reduce the percentage of blacks employed in the Fire Department. Furthermore, both the District Court and the Court of Appeals, for different reasons, held that the seniority provisions of the City’s collective-bargaining contract must be disregarded for the purpose of achieving the mandated result. These rulings remain undisturbed, and we see no indication that respondents concede in urging mootness that these rulings were in error and should be reversed. To the contrary, they continue to defend them. Unless overturned, these rulings would require the City to obey the modified consent decree and to disregard its seniority agreement in making future layoffs.
Accordingly, the inquiry is not merely whether the injunction is still in effect, but whether the mandated modification of the consent decree continues to have an impact on the parties such that the case remains alive. We are quite unconvinced — and it is the respondents’ burden to convince us, County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979)— that the modification of the decree and the pro tanto invalidation of the seniority system is of no real concern to the City because it will never again contemplate layoffs that if carried out in accordance with the seniority system would violate the modified decree. For this reason alone, the case is not moot.
Third, the judgment below will have a continuing effect on the City’s management of the Department in still another way. Although the City has restored or offered to restore to their former positions all white employees who were laid off or demoted, those employees have not been made whole: those who were laid off have lost a month’s pay, as well as seniority that has not been restored; and those employees who “bumped down” and accepted lesser positions will also have backpay claims if their demotions were unjustified. Unless the judgment of the Court of Appeals is reversed, however, the layoffs and demotions were in accordance with the law, and it would be quite unreasonable to expect the City to pay out money to which the employees had no legal right. Nor would it feel free to respond to the seniority claims of the three white employees who, as the City points out, lost competitive seniority in relation to all other individuals who were not laid off, including those minority employees who would have been laid off but for the injunction. On the other hand, if the Court of Appeals’ judgment is reversed, the City would be free to take a wholly different position with respect to backpay and seniority.
Undoubtedly, not much money and seniority are involved, but the amount of money and seniority at stake does not determine mootness. As long as the parties have a concrete interest in the outcome of the litigation, the case is not moot notwithstanding the size of the dispute. Powell v. McCormack, 395 U. S. 486, 496-498 (1969). Moreover, a month’s pay is not a negligible item for those affected by the injunction, and the loss of a month’s competitive seniority may later determine who gets a promotion, who is entitled to bid for transfers, or who is first laid off if there is another reduction in force. These are matters of substance, it seems to us, and enough so to foreclose any claim of mootness. Cf. Franks v. Bowman Transportation Co., 424 U. S. 747, 756 (1976); Powell v. McCormack, supra, at 496-498; Bond v. Floyd, 385 U. S. 116, 128, n. 4 (1966).
In short, respondents successfully attacked the City’s initial layoff plan and secured a judgment modifying the consent decree, ordering the City to disregard its seniority policy, and enjoining any layoffs that would reduce the percentage of blacks in the Department. Respondents continue to defend those rulings, which, as we have said, may determine the City’s disposition of backpay claims and claims for restoration of competitive seniority that will affect respondents themselves. It is thus unrealistic to claim that there is no longer a dispute between the City and respondents with respect to the scope of the consent decree. Respondents cannot invoke the jurisdiction of a federal court to obtain a favorable modification of a consent decree and then insulate that ruling from appellate review by claiming that they are no longer interested in the matter, particularly when the modification continues to have adverse effects on the other parties to the action.
Ill
The issue at the heart of this case is whether the District Court exceeded its powers in entering an injunction requiring white employees to be laid off, when the otherwise applicable seniority system would have called for the layoff of black employees with less seniority. We are convinced that the Court of Appeals erred in resolving this issue and in affirming the District Court.
A
The Court of Appeals first held that the injunction did no more than enforce the terms of the consent decree. This specific-performance approach rests on the notion that because the City was under a general obligation to use its best efforts to increase the proportion of blacks on the force, it breached the decree by attempting to effectuate a layoff policy reducing the percentage of black employees in the Department even though such a policy was mandated by the seniority system adopted by the City and the Union. A variation of this argument is that since the decree permitted the District Court to enter any later orders that “may be necessary or appropriate to effectuate the purposes of this decree,” 679 F. 2d, at 578 (Appendix), the City had agreed in advance to an injunction against layoffs that would reduce the proportion of black employees. We are convinced, however, that both of these are improvident constructions of the consent decree.
It is to be recalled that the “scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it” or by what “might have been written had the plaintiff established his factual claims and legal theories in litigation.” United States v. Armour & Co., 402 U. S. 673, 681-682 (1971). Here, as the District Court recognized, there is no mention of layoffs or demotions within the four corners of the decree; nor is there any suggestion of an intention to depart from the existing seniority system or from the City’s arrangements with the Union. We cannot believe that the parties to the decree thought that the City would simply disregard its arrangements with the Union and the seniority system it was then following. Had there been any intention to depart from the seniority plan in the event of layoffs or demotions, it is much more reasonable to believe that there would have been an express provision to that effect. This is particularly true since the decree stated that it was not “intended to conflict with any provisions” of the 1974 decree, 679 F. 2d, at 574 (Appendix), and since the latter decree expressly anticipated that the City would recognize seniority, id., at 572. It is thus not surprising that when the City anticipated layoffs and demotions, it in the first instance faithfully followed its pre-existing seniority system, plainly having no thought that it had already agreed to depart from it. It therefore cannot be said that the express terms of the decree contemplated that such an injunction would be entered.
The argument that the injunction was proper because it carried out the purposes of the decree is equally unconvincing. The decree announced that its purpose was “to remedy past hiring and promotion practices” of the Department, id., at 575-576, and to settle the dispute as to the “appropriate and valid procedures for hiring and promotion,” id., at 574. The decree went on to provide the agreed-upon remedy, but as we have indicated, that remedy did not include the displacement of white employees with seniority over blacks. Furthermore, it is reasonable to believe that the “remedy”, which it was the purpose of the decree to provide, would not exceed the bounds of the remedies that are appropriate under Title VII, at least absent some express provision to that effect. As our cases have made clear, however, and as will be reemphasized below, Title VII protects bona fide seniority systems, and it is inappropriate to deny an innocent employee the benefits of his seniority in order to provide a remedy in a pattern-or-practice suit such as this. We thus have no doubt that the City considered its system to be valid and that it had no intention of departing from it when it agreed to the 1980 decree.
Finally, it must be remembered that neither the Union nor the nonminority employees were parties to the suit when the 1980 decree was entered. Hence the entry of that decree cannot be said to indicate any agreement by them to any of its terms. Absent the presence of the Union or the nonmi-nority employees and an opportunity for them to agree or disagree with any provisions of the decree that might encroach on their rights, it seems highly unlikely that the City would purport to bargain away nonminority rights under the then-existing seniority system. We therefore conclude that the injunction does not merely enforce the agreement of the parties as reflected in the consent decree. If the injunction is to stand, it must be justified on some other basis.
B
The Court of Appeals held that even if the injunction is not viewed as compelling compliance with the terms of the decree, it was still properly entered because the District Court had inherent authority to modify the decree when an economic crisis unexpectedly required layoffs which, if carried out as the City proposed, would undermine the affirmative action outlined in the decree and impose an undue hardship on respondents. This was true, the court held, even though the modification conflicted with a bona fide seniority system adopted by the City. The Court of Appeals erred in reaching this conclusion.
Section 703(h) of Title VII provides that it is not an unlawful employment practice to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority system, provided that such differences are not the result of an intention to discriminate because of race. It is clear that the City had a seniority system, that its proposed layoff plan conformed to that system, and that in making the settlement the City had not agreed to award competitive seniority to any minority employee whom the City proposed to lay off. The District Court held that the City could not follow its seniority system in making its proposed layoffs because its proposal was discriminatory in effect and hence not a bona fide plan. Section 703(h), however, permits the routine application of a seniority system absent proof of an intention to discriminate. Teamsters v. United States, 431 U. S. 324, 352 (1977). Here, the District Court itself found that the layoff proposal was not adopted with the purpose or intent to discriminate on the basis of race. Nor had the City in agreeing to the decree admitted in any way that it had engaged in intentional discrimination. The Court of Appeals was therefore correct in disagreeing with the District Court’s holding that the layoff plan was not a bona fide application of the seniority system, and it would appear that the City could not be faulted for following the seniority plan expressed in its agreement with the Union. The Court of Appeals nevertheless held that the injunction was proper even though it conflicted with the seniority system. This was error.
To support its position, the Court of Appeals first proposed a “settlement” theory, i. e., that the strong policy favoring voluntary settlement of Title VII actions permitted consent decrees that encroached on seniority systems. But at this stage in its opinion, the Court of Appeals was supporting the proposition that even if the injunction was not merely enforcing the agreed-upon terms of the decree, the District Court had the authority to modify the decree over the objection of one of the parties. The settlement theory, whatever its merits might otherwise be, has no application when there is no “settlement” with respect to the disputed issue. Here, the agreed-upon decree neither awarded competitive seniority to the minority employees nor purported in any way to depart from the seniority system.
A second ground advanced by the Court of Appeals in support of the conclusion that the injunction could be entered notwithstanding its conflict with the seniority system was the assertion that “[i]t would be incongruous to hold that the use of the preferred means of resolving an employment discrimination action decreases the power of a court to order relief which vindicates the policies embodied within Title VII and 42 U. S. C. §§ 1981 and 1983.” 679 F. 2d, at 566. The court concluded that if the allegations in the complaint had been proved, the District Court could have entered an order overriding the seniority provisions. Therefore, the court reasoned, “[t]he trial court had authority to override the Firefighter’s Union seniority provisions to effectuate the purpose of the 1980 Decree.” Ibid.
The difficulty with this approach is that it overstates the authority of the trial court to disregard a seniority system in fashioning a remedy after a plaintiff has successfully proved that an employer has followed a pattern or practice having a discriminatory effect on black applicants or employees. If individual members of a plaintiff class demonstrate that they have been actual victims of the discriminatory practice, they may be awarded competitive seniority and given their rightful place on the seniority roster. This much is clear from Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), and Teamsters v. United States, supra. Teamsters, however, also made clear that mere membership in the disadvantaged class is insufficient to warrant a seniority award; each individual must prove that the discriminatory practice had an impact on him. 431 U. S., at 367-371. Even when an individual shows that the discriminatory practice has had an impact on him, he is not automatically entitled to have a nonminority employee laid off to make room for him. He may have to wait until a vacancy occurs, and if there are nonminority employees on layoff, the court must balance the equities in determining who is entitled to the job. Teamsters, supra, at 371-376. See also Ford Motor Co. v. EEOC, 458 U. S. 219, 236-240 (1982). Here, there was no finding that any of the blacks protected from layoff had been a victim of discrimination and no award of competitive seniority to any of them. Nor had the parties in formulating the consent decree purported to identify any specific employee entitled to particular relief other than those listed in the exhibits attached to the decree. It therefore seems to us that in light of Teamsters, the Court of Appeals imposed on the parties as an adjunct of settlement something that could not have been ordered had the case gone to trial and the plaintiffs proved that a pattern or practice of discrimination existed.
Our ruling in Teamsters that a court can award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination is consistent with the policy behind § 706(g) of Title VII, which affects the remedies available in Title YII litigation. That policy, which is to provide make-whole relief only to those who have been actual victims of illegal discrimination, was repeatedly expressed by the sponsors of the Act during the congressional debates. Opponents of the legislation that became Title VII charged that if the bill were enacted, employers could be ordered to hire and promote persons in order to achieve a racially balanced work force even though those persons had not been victims of illegal discrimination. Responding to these charges, Senator Humphrey explained the limits on a court’s remedial powers as follows:
“No court order can require hiring, reinstatement, admission to membership, or payment of back pay for anyone who was not fired, refused employment or advancement or admission to a union by an act of discrimination forbidden by this title. This is stated expressly in the last sentence of section 707(e) [enacted without relevant change as § 706(g)] .... Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require . . . firing ... of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent.” 110 Cong. Rec. 6549 (1964).
An interpretative memorandum of the bill entered into the Congressional Record by Senators Clark and Case likewise made clear that a court was not authorized to give preferential treatment to nonvictims. “No court order can require hiring, reinstatement, admission to membership, or payment of back pay for anyone who was not discriminated against in violation of [Title VII]. This is stated expressly in the last sentence of section [706(g)] . . . .” Id., at 7214.
Similar assurances concerning the limits on a court’s authority to award make-whole relief were provided by supporters of the bill throughout the legislative process. For example, following passage of the bill in the House, its Republican House sponsors published a memorandum describing the bill. Referring to the remedial powers given the courts by the bill, the memorandum stated: “Upon conclusion of the trial, the Federal court may enjoin an employer or labor organization from practicing further discrimination and may order the hiring or reinstatement of an employee or the acceptance or reinstatement of a union member. But title VII does not permit the ordering of racial quotas in businesses or unions . . . .” Id., at 6566 (emphasis added). In like manner, the principal Senate sponsors, in a bipartisan newsletter delivered during an attempted filibuster to each Senator supporting the bill, explained that “[u]nder title VII, not even a court, much less the Commission, could order racial quotas or the hiring, reinstatement, admission to membership or payment of back pay for anyone who is not discriminated against in violation of this title.” Id., at 14465.
The Court of Appeals holding that the District Court’s order was permissible as a valid Title VII remedial order ignores not only our ruling in Teamsters but the policy behind § 706(g) as well. Accordingly, that holding cannot serve as a basis for sustaining the District Court’s order.
Finally, the Court of Appeals was of the view that the District Court ordered no more than that which the City unilaterally could have done by way of adopting an affirmative-action program. Whether the City, a public employer, could have taken this course without violating the law is an issue we need not decide. The fact is that in these cases the City took no such action and that the modification of the decree was imposed over its objection.
We thus are unable to agree either that the order entered by the District Court was a justifiable effort to enforce the terms of the decree to which the City had agreed or that it was a legitimate modification of the decree that could be imposed on the City without its consent. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
The Memphis Fire Department is divided into several bureaus, including firefighting, alarm office, administration, apparatus, maintenance, and fire prevention. Of the positions covered by the original injunction, all but one were in the firefighting bureau.
The City ultimately laid off 24 privates, 3 of whom were black. Had the seniority system been followed, 6 blacks would have been among the 24 privates laid off. Thus, three white employees were laid off as a direct result of the District Court’s order. The number of whites demoted as a result of the order is not clear from the record before us.
The Court of Appeals, recognizing that the District Court had done more than temporarily preclude the City from applying its seniority sys-tern, stated that the “principal issue” before it was “whether the district court erred in modifying the 1980 Decree to prevent minority employment from being affected disproportionately by unanticipated layoffs.” 679 F. 2d, at 551.
Of course if layoffs become necessary, both the City and respondents will be affected by the modified decree, the City because it will be unable to apply its seniority system, respondents because they will be given greater protection than they would otherwise receive under that system. Moreover, the City will be immediately affected by the modification even though no layoff is currently pending. If the lower courts’ ruling is left intact, the City will no longer be able to promise current or future employees that layoffs will be conducted solely on the basis of seniority. Against its will, the City has been deprived of the power to offer its employees one of the benefits that make employment with the City attractive to many workers. Seniority has traditionally been, and continues to be, a matter of great concern to American workers. “ ‘More than any other provision of the collective [-bargaining] agreement. . . seniority affects the economic security of the individual employee covered by its terms.’ ” Franks v. Bowman Transportation Co., 424 U. S. 747, 766 (1976) (quoting Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1535 (1962)). It is not idle speculation to suppose that the City will be required to offer greater monetary compensation or fringe benefits in order to attract and retain the same caliber and number of workers as it could without offering such benefits were it completely free to implement its seniority system. The extent to which the City’s employment efforts will be harmed by the loss of this “bargaining chip” may be difficult to measure, but in view of the importance that American workers have traditionally placed on such benefits, the harm cannot be said to be insignificant. Certainly, an employer’s bargaining position is as substantially affected by a decree precluding it from offering its employees the benefits of a seniority system as it is by a state statute that provides economic benefits to striking employees. Super Tire Engineering Co. v. McCorkle, 416 U. S. 115, 122-125 (1974).
Since the District Court’s order precludes the City from reducing the percentage of black employees holding particular jobs in the event of a layoff or reduction in rank and since competitive seniority is the basis for determining who will be laid off or bumped down, there is some question whether, in light of the judgment below, the City could legally restore to the laid-off employees the competitive seniority they had before the layoffs without violating the order.
The present case is distinguishable from University of Texas v. Camenisch, 451 U. S. 390 (1981), on which the dissent relies, in that the defendant in Camenisch was not a party to a decree that had been modified by the lower court. When the injunction in that case expired, the defendant was in all respects restored to its pre-injunction status. Here, the City is faced with a modified consent decree that prevents it from applying its seniority system in the manner that it chooses.
Respondents contend that the memorandum of understanding between the Union and the City is unenforceable under state law, citing Fulenwider v. Firefighters Assn. Local Union 1784, 649 S. W. 2d 268 (Tenn. 1982). However, the validity of that memorandum under state law is unimportant for purposes of the issues presented in this case. First, the Court of Appeals assumed that the memorandum was valid in reaching its decision. 679 F. 2d, at 564, n. 20. Since we are reviewing that decision, we are free to assume the same. Moreover, even if the memorandum is unenforceable, the City’s seniority system is still in place. The City unilaterally adopted the seniority system citywide in 1973. That policy was incorporated into the memorandum of understanding with the Firefighters Union in 1975, but its eitywide effect, including its application to the Fire Department, continues irrespective of the status of the memorandum.
The dissent’s contention that the only issue before us is whether the District Court so misapplied the standards for issuing a preliminary injunction that it abused its discretion, post, at 601, overlooks what the District Court did in this case. The District Court did not purport to apply the standards for determining whether to issue a preliminary injunction. It did not even mention them. Instead, having found that the consent decree did “not contemplate what method would be used for a reduction in rank or layoff,” the court considered “whether or not ... it should exercise its authority to modify the consent decree . . . .” App. to Pet. for Cert, in No. 82-229, p. A73. As noted above, the Court of Appeals correctly recognized that more was at stake than a mere preliminary injunction, stating that the “principal issue” was “whether the district court erred in modifying the 1980 Decree to prevent minority employment from being affected disproportionately by unanticipated layoffs.” 679 F. 2d, at 551. By deciding whether the District Court erred in interpreting or modifying the consent decree so as to preclude the City from applying its seniority system, we do not, as the dissent shrills, attempt to answer a question never faced by the lower courts.
The dissent seems to suggest, post, at 611, and n. 9, and Justice Stevens expressly states, post, at 590, that Title VII is irrelevant in determining whether the District Court acted properly in modifying the consent decree. However, this was Title VII litigation, and in affirming modifications of the decree, the Court of Appeals relied extensively on what it considered to be its authority under Title VII. That is the posture in which the cases come to us. Furthermore, the District Court’s authority to impose a modification of a decree is not wholly dependent on the decree. “[T]he District Court’s authority to adopt a consent decree comes only from the statute which the decree is intended to enforce,” not from the parties’ consent to the decree. Railway Employees v. Wright, 364 U. S. 642, 651 (1961). In recognition of this principle, this Court in Wright held that when a change in the law brought the terms of a decree into conflict with the statute pursuant to which the decree was entered, the decree should be modified over the objections of one of the parties bound by the decree. By the same token, and for the same reason, a district court cannot enter a disputed modification of a consent decree in Title VII litigation if the resulting order is inconsistent with that statute.
Thus, Title VII necessarily acted as a limit on the District Court’s authority to modify the decree over the objections of the City; the issue cannot be resolved solely by reference to the terms of the decree and notions of equity. Since, as we note, infra, at 577, Title VII precludes a district court from displacing a nonminority employee with seniority under the contractually established seniority system absent either a finding that the seniority system was adopted with discriminatory intent or a determination that such a remedy was necessary to make whole a proven victim of discrimination, the District Court was precluded from granting such relief over the City’s objection in these cases.
Section 703 (h) provides that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .” 42 U. S. C. § 2000e-2(h).
Lower courts have uniformly held that relief for actual victims does not extend to bumping employees previously occupying jobs. See, e. g., Patterson v. American Tobacco Co., 535 F. 2d 257, 267 (CA4), cert, denied, 429 U. S. 920 (1976); Local 189, United Papermakers and Paperworkers v. United States, 416 F. 2d 980, 988 (CA5 1969), cert, denied, 397 U. S. 919 (1970).
Section 706(g) provides: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay. . . or any other equitable relief as the court deems appropriate. ... No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of § 704(a) of this title.” 86 Stat. 107, 42 U. S. C. § 2000e-5(g).
See H. R. Rep. No. 914, 88th Cong., 1st Sess., 72-73 (1963) (minority report); 110 Cong. Rec. 4764 (1964) (remarks of Sen. Ervin and Sen. Hill); id,, at 5092, 7418-7420 (remarks of Sen. Robertson); id., at 8500 (remarks of Sen. Smathers); id., at 9034-9035 (remarks of Sen. Stennis and Sen. Tower).
Senators Clark and Case were the bipartisan “captains” of Title VII. We have previously recognized the authoritative nature of their interpretative memorandum. American Tobacco Co. v. Patterson, 456 U. S. 63, 73 (1982); Teamsters v. United States, 431 U. S. 324, 352 (1977).
The dissent suggests that Congress abandoned this policy in 1972 when it amended § 706(g) to make clear that a court may award “any other equitable relief” that the court deems appropriate. Post, at 619-620. As support for this proposition the dissent notes that prior to 1972, some federal courts had provided remedies to those who had not proved that they were victims. It then observes that in a section-by-section analysis of the bill, its sponsors stated that “in any areas where a specific contrary intention is not indicated, it was assumed that the present ease law as developed by the courts would continue to govern the applicability and construction of Title VII.” 118 Cong. Rec. 7167 (1972).
We have already rejected, however, the contention that Congress intended to codify all existing Title VII decisions when it made this brief statement. See Teamsters, supra, at 354, n. 39. Moreover, the statement on its face refers only to those sections not changed by the 1972 amendments. It cannot serve as a basis for discerning the effect of the changes that were made by the amendment. Finally, and of most importance, in a later portion of the same section-by-section analysis, the sponsors explained their view of existing law and the effect that the amendment would have on that law.
“The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present § 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” 118 Cong. Rec., at 7168 (emphasis added).
As we noted in Franks, the 1972 amendments evidence “emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims of racial discrimination.” 424 U. S., at 764 (emphasis added).
Neither does it suffice to rely on the District Court’s remedial authority under §§ 1981 and 1983. Under those sections relief is authorized only when there is proof or admission of intentional discrimination. Washington v. Davis, 426 U. S. 229 (1976); General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375 (1982). Neither precondition was satisfied here.
The Court of Appeals also suggested that under United States v. Swift & Co., 286 U. S. 106, 114-115 (1932), the decree properly was modified pursuant to the District Court’s equity jurisdiction. But Swift cannot be read as authorizing a court to impose a modification of a decree that runs counter to statutory policy, see n. 9, supra, here §§ 703(h) and 706(g) of Title VII.
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
UNITED STATES v. THAYER-WEST POINT HOTEL CO.
No. 106.
Argued December 20, 1946.
Decided January 20, 1947.
Oscar H. Davis argued the cause for the United States. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Paul A. Sweeney and JohnR. Benney.
Ernest J. Ellenwood argued the cause for respondent. With him on the brief was John S. Shedden.
MR. Justice Murphy
delivered the opinion of the Court.
The decision here turns upon the power of the Court of Claims, in light of § 177 (a) of the Judicial Code, to include interest in its award of “just compensation” to a lessee for the construction of a hotel and other buildings pursuant to the provisions of the Act of March 30,1920.
The Act of March 30, 1920, authorizes the Secretary of War to lease land on the United States Military Reservation at West Point, N. Y., to any person for a term not exceeding 50 years upon which to erect a hotel and other necessary buildings in connection therewith. The lease is to contain such conditions, terms, reservations and covenants as may be agreed upon and is to provide “for just compensation to the lessees for the construction of said hotel, appurtenances, and equipments, to be paid to said lessees at the termination of said lease.”
On October 17, 1924, the Secretary of War duly made a lease under this Act to one Williams for a period of 50 years. The lease provided, among other things, that it might be canceled at any time by the Secretary if the lessee should fail to observe all the covenants and conditions in the lease. One of the covenants was that the lessee was to “keep the said hotel open for business every day during the continuance of this lease, except at such times as permission to close may be given in writing by the Superintendent, U. S. M. A.” Upon a cancellation of the lease, “just compensation” was to be paid to the lessee for the construction of the hotel, appurtenances and equipment, and title thereto was to pass at once to the United States. Similar provisions were made in connection with the termination of the lease on the expiration of the 50-year term. The lease also set forth numerous restrictions and requirements as to the operation of the hotel — such restrictions and requirements being primarily for the benefit of the Military Academy.
The lease was assigned to a corporation and a hotel and other buildings were subsequently erected. Through a series of events which need not be detailed here, the respondent took over the leasehold and the hotel properties in 1930 with the approval of the Superintendent of the Military Academy. Respondent began operating the hotel on January 1, 1931, and continued under the terms of the lease until March 10,1943.
On January 5, 1943, respondent wrote to the Secretary of War that conditions then existing made continued operation of the hotel impossible and that to avoid a curtailment of operations or a closing down of the hotel “the properties should be owned and operated by the Government.” It was accordingly suggested that the Secretary declare the lease forfeited upon the closing of the hotel by respondent, a default contemplated by the lease. The Secretary agreed to this proposal. The respondent then gave notice of its intention to close the hotel on the morning of March 10,1943. The agents of the Secretary immediately took over the possession, management and operation of the hotel on March 10 and shortly thereafter the Secretary declared the lease annulled.
The parties were unable to agree on the amount of “just compensation” due under the lease. Respondent then brought this suit in the Court of Claims, praying for a judgment in the sum of $1,932,000. That court found that the “total of just compensation to the plaintiff for construction of the hotel, its appurtenances, and equipments, is therefore $867,682, as of March 10, 1943.” 106 Ct. Cl. 60, 80, 64 F. Supp. 565, 568. The court then added interest at the rate of 4% per annum from March 10,1943, to the date of payment as “additional allowance to make compensation a just one as of the date of payment.” The sole question before us concerns the propriety of adding the 4% interest from March 10,1943.
The pertinent part of § 177 (a) of the Judicial Code provides that “No interest shall be allowed on any claim up to the time of the rendition of judgment by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest, . . .” Section 177 (a) thus embodies the traditional rule that interest cannot be recovered against the United States upon unpaid accounts or claims in the absence of an express provision to the contrary in a relevant statute or contract. Tillson v. United States, 100 U. S. 43, 47; United States v. North American Co., 253 U. S. 330, 336; United States v. Goltra, 312 U. S. 203, 207. This rule is inapplicable, however, where the United States takes property under its power of eminent domain; in such cases it has consistently béen held that the Fifth Amendment’s reference to “just compensation” entitles the property owner to receive interest from the date of the taking to the date of payment as a part of his just compensation. Seaboard Air Line Ry. v. United States, 261 U. S. 299, 306; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123; Phelps v. United States, 274 U. S. 341, 344.
Since it is clear in the instant case that the United States did not exercise its power of eminent domain and that there was no taking of the hotel properties in the legal sense, we can put to one side the eminent domain situation. There is nothing more here than an ordinary contractual relationship between the United States and the respondent. That relationship was voluntarily entered into by respondent’s predecessor and was severed at respondent’s suggestion. The Government’s liability to pay for the construction of the hotel properties was fixed by the Act of March 30, 1920, and by the lease, not by the Constitution. The sole issue thus becomes whether there is any express provision in the Act or in the lease permitting the recovery of interest under the circumstances. Only if there is such a provision can respondent avoid the traditional rule set forth in § 177 (a).
Respondent’s claim in this respect rests upon the references in the Act and in the lease to the payment of “just compensation” for the construction of the hotel, appurtenances and equipment. “Just compensation,” it is said, is to be given the same meaning here as in the case of a taking under the power of eminent domain, thereby entitling respondent to the full value of the properties down to the date of payment. From this viewpoint, the Court of Claims could use interest at the rate of 4% as the measure of the value of the use of the hotel properties from the time when the Government took possession on March 10, 1943, to the time of payment and include such interest as a component part of just compensation. The conclusion is reached that the term “just compensation,” as used in the Act and in the lease, constitutes an express provision for interest so that the bar of § 177 (a) is removed. We cannot agree.
The fact that “just compensation” includes interest in the eminent domain setting does not necessarily mean that the term must be given the same scope in other situations. United States v. Goltra, supra. It may or it may not imply an obligation to pay interest. For example, interest conceivably may not be contemplated where the term refers to compensatory damages for a tort or a breach of contract, or where it has reference to the price to be paid for the exchange or sale of property at a future date. Hence, in the absence of constitutional connotations, “just compensation” is not a term of art so far as interest is concerned. The inclusion or exclusion of interest depends upon other contractual provisions, the intention of the parties and the circumstances surrounding the use of the term.
But in order to override the historical rule codified in § 177 (a), something more is necessary than an equivocal use of the term “just compensation.” It is not enough that the term might be construed to include the payment of interest. As § 177 (a) itself indicates, there must be a provision in the contract “expressly stipulating for the payment of interest.” That provision must be affirmative, clear-cut, unambiguous; and an unexpressed intention by the parties that the term “just compensation” be construed to include interest is insufficient. Likewise, where a statute is relied upon to overcome the force of § 177 (a), the intention of Congress to permit the recovery of interest must be expressly and specifically set forth in the statute. Tillson v. United States, supra, 46; United States ex rel. Angarica v. Bayard, 127 U. S. 251, 260. Mere use of the term “just compensation,” without more, is no substitute for an express provision for interest.
Here neither the Act of March 30, 1920, nor the lease under which respondent operated contains an express provision for the payment of interest, either in addition to or as a part of the “just compensation” to be paid to respondent. If the United States had desired to provide by statute or to contract in the lease for the payment of interest, it would have been easy to have said so in express terms. Because it did not say so, we are led irresistibly to the conclusion that it did not intend to negative the effect of § 177 (a) in this instance. Tillson v. United States, supra.
We therefore reverse the judgment of the Court of Claims to the extent that it includes an allowance for interest.
28 U. S. C. §284 (a).
41 Stat. 538, 548.
Congress has expressly provided for the payment of interest in other instances. See Judicial Code, § 177 (b), 28 U. S. C. § 284 (b); Contract Settlement Act of 1944, 58 Stat. 649, 654, § 6 (f), 41 U. S. C., Supp. V,§ 106 (f).
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
23
] |
COMMISSIONER OF INTERNAL REVENUE v. STIDGER et ux.
No. 173.
Argued January 16, 1967.
Decided March 20, 1967.
Assistant Attorney General Rogovin argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Jack S. Levin, Robert N. Anderson and Albert J. Beveridge III.
John A. Reed, by invitation of the Court (385 U. S. 925), argued the cause and filed a brief, as amicus curiae, in support of the judgment below.
Mr. Chief Justice Warren
delivered the opinion of the Court.
In this case we are required to determine whether, under the ,1954 Internal Revenue Code, expenditures for meals by a military officer stationed at a post to which his dependents were prohibited from accompanying him were deductible “traveling expenses . . . [incurred] while away from home” within the meaning of § 162 (a) (2) or whether instead they were nondeduetible “personal, living, or family expenses” within the meaning of § 262. At all pertinent times, respondent was a captain in the United States Marine Corps, attached to an aviation squadron. Immediately prior to October 1957, his permanent duty station was a Marine Corps base located at El Toro, California, and he lived nearby with his wife and children. On October 1, 1957, however, respondent and his squadron were transferred to Iwakuni, Japan, where they were to be based while serving a standard 15-month tour of duty in the Far East. Because dependents were prohibited from accompanying Marine Corps personnel to that duty station, respondent’s wife and children remained in California.
Of the 14½ months’ actual duration of respondent’s Far Eastern tour of duty, he was physically located at the Iwakuni base for 10 months. The remaining time was consumed by travel and short periods of duty at various other military bases; respondent was declared to be in a “travel status” for a period of 49 days, and he received additional compensation for those days on a per diem basis. .During the entire period of his service as a Marine Corps captain, both while, he served at bases in the United States and while he served abroad away from his family, respondent also received tax-free monthly allowances for quarters and subsistence.
On his 1958 income tax return, respondent claimed a deduction of $650, representing the cost of his meals at a rate of $65 per month for the 10 months spent at the Iwakuni base. The Commissioner of Internal . Revenue disallowed the deduction, ruling that the expenditure for meals was a “personal, living” expense under § 262 and not a travel expense under § 162 (a)(2). In the Commissioner’s view respondent’s “home” during the period in question was his permanent duty station at Iwakuni rather than California where his family resided; therefore, he was not “away from home” when he incurred the expenditure. The Tax Court upheld the Commissioner (40 T. C. 896), and respopdelit petitioned for review in the Court of Appeals for the Ninth Circuit. That court, in a per curiam decision with one judge dissenting, reversed the Tax Court and rejected the Commissioner’s definition of “home” for purposes of the deduction. 355 F.2d 294. The majority of the Court of Appeals ruled that the word “home” as used in § 162 (a) (2) of the Code must be given its usual meaning as the place of residence, not the place of business, of the taxpayer and his family. And since it was not reasonable for this taxpayer to move his family residence closer to his place of business, the “ordinary and necessary” requirement applicable to all § 162 deductions was met and the cost of meals at Iwakuni was deductible To resolve a direct conflict between this decision and a 1948 decision of the Court of Appeals for the Fourth Circuit in another case involving a military officer, Bercaw v. Commissioner, 165 F. 2d 521, wé granted certiorari. 385 U. S. 809.
This case , then requires us to focus upon one of the three conditions which must be met before an item is deductible.as a travel expense under § 162 (a)(2). There is no question but that the expenditure here was “ordinary and necessary” and that there was a “direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.” Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946); Peurifoy v. Commissioner, 358 U. S. 59 (1958). The essence of the case is whether respondent was “away from home” when he incurred the expenditure. And the answer to that question turns upon a determination of whether, under the circumstances related above, respondent’s “home”, in 1958 was his permanent duty station at Iwakuni, Japan, or, instead, the residence of his family in California.
From the Revenue Act of 1921 down to § 162 (a) (2) of the 1954 Internal Revenue Code Congress has provided a deduction from taxable income for travel expenses, including amounts expended for meals and lodging, while “away from home.” Although Congress has not defined the crucial phrase “away from home,” administrative rulings and regulations have been directed toward that problem. In 1921, a general rule was established to the Cfect that “home” meant the taxpayer’s principal place of business or employment whether or not it coincided with his place of residence. This interpretation prevented deductions of day-to-day commuting expenses which were not the unusual type of “traveling expense” to which the statute was directed. Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946). Its logic has been applied to a host of other situations. Although certain refinements have been added, the essential position of the Commissioner has remained unchanged.
While the court below, together with the Courts of Appeals for the Fifth and Sixth Circuits, has not always agreed with this interpretation, the Tax Court and all of the other courts of appeals which have considered it have sustained the Commissioner. The Commissioner’s interpretation of the word “home” in connection with travel-expense deductions was also made clear to Congress when in 1936 it was held that Members of Congress could not deduct expenses which they incurred in Washington, D. C., even though each also maintained a residence in the district from which he had been elected. Lindsay v. Commissioner, 34 B. T. A. 840. Congress did not respond to this ruling by amending the statutory language generally to provide that “home” was. intended to be synonymous with “residence,” but instead merely carved out an exception to cover the special travel-expense problems inherent in service as a national legislator.
The Commissioner argues that the fact that Congress has reviewed and re-enacted the pertinent language with an awareness of the administrative interpretation constitutes a legislative endorsement of the Commissioner’s position and is sufficient reason for reversing the judgment below. Helvering v. Winmill, 305 U. S. 79 (1938). But it is not necessary for us to decide here whether this congressional action (or inaction) constitutes approval and adoption of the Commissioner’s interpretation of “home” in all of its myriad applications since, in the context of the. military taxpayer, the Commissioner’s position has a firmer foundation. The Commissionerffias long held that a military taxpayer’s permanent duty station is also his home for purposes of determining deductibility of travel expenses. This position builds on the terminology employed by the military services to categorize various assignments and tours of duty, and also on the language and policy of the statutory provisions prescribing travel and transportation allowances for military personnel. For example, a Marine Corps directive, which was effective during respondent’s Far Eastern tour of duty, defined the length of standard tours of duty in terms of the commencement and termination dates of “permanent change[s] of station.” (Emphasis supplied.) Similarly, eligibility for certain statutory travel allowances turns upon whether an assignment constitutes a “change of permanent station” (emphasis supplied) or whether the serviceman is “away from his designated post of duty.” 37 U. S. C. § 404 (a)(1). Thus, the Commissioner’s position recognizes, as do the relevant statutes and the military services themselves, that the “permanence” of location in civilian life cannot find a complete parallel in military life which necessarily contemplates relatively frequent changes of location.
The nondeductibility of expenses incurred by a military taxpayer while at a permanent duty station was previously challenged in Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948). There, the taxpayer, a reserve army officer who was called to active duty and assigned to Fort Meade in Maryland where there were no quarters for dependents, sought to deduct expenditures for his meals and janitorial service as costs of traveling “away from home” in pursuit of his trade or business. The Court of Appeals affirmed the Tax Court’s disallowance of the deduction, stating:
“The taxpayer was engaged in the business of an Army officer. His place of business was his particular Army post. If his Army duties required him to travel, he would have received a per diem travel allowance which would not have been taxable. . . . But whenever he made a permanent change of station that place of duty became his place of business and there was his ‘home’ within the meaning of Section 23(a)(1)(A). . . . Thus the expenditures for meals . . . while at this post were personal living expenses and nondeductible . . . .” 165 F. 2d, at 524.
Since the Bercaw decision, the Commissioner has reiterated his position in Rev. Rui. 55-571,1955-2 Cum. Bull. 44. And until the decision of the court below in the 'present case, neither the courts nor Congress had disturbed the Commissioner’s interpretation of “home” as it pertained to military personnel.
Additional support for the Commissioner’s position is found in the fact that Congress traditionally has provided a special system of tax-free allowances for military personnel. These allowances now range from monthly payments for quarters and subsistence to per diem payments when the serviceman is declared in a “travel status.” Provision may also be made for financial relief to assist dependents in relocating when they are prohibited from accompanying a serviceman on a change of permanent duty station. In the present case, respondent received the per diem payments while he was away from his permanent duty station. His quarters at Iwakuni were provided without cost to him, and at the same time he continued to receive á tax-free quarters allowance of approximately $102.50 per month; he also received a tax-free subsistence allowance of approximately $42.50 per month at all relevant times.. Moreover, because his assignment to Iwakuni was a change of permanent station, his wife and children could have moved their residence to another part of the United States at the Government’s expense; however, they elected not to exercise that option.
Underlying the system of special allowances is congressional recognition of the fact that military life poses unusual financial problems. The system is designed to provide complete and direct relief from such problems as opposed to the incomplete and indirect relief which an income tax deduction affords to a civilian business traveler. If the system of allowances is in fact inadequate, or if there are inconsistencies in the Commissioner's application of the travel-expense provision to military personnel, it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments. Given the Commissioner’s long-standing and judicially approved interpretation, the knowledge of that interpretation by Congress, and the fact that Congress has chosen to deal specially by tax-free, allowances with the financial problems peculiar to military life, we must agree with the Commissioner that the military taxpayer is not “away from home” when he is at his permanent duty station whether or not it is feasible or even permissible for his family to reside with him there. The judgment is, therefore,
Reversed.
“There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the: taxable year in carrying on any trade or business, including—
“(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business . . . .” § 162 (a) (2) of the Internal Revenue Code. of 1954, 26 U. S. C. § 162 (a)(2) (1958 ed.).
“Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal; living, or family expenses.” § 262 of the Internal Revenue Code of 1954, 26 U. S. C. § 262.
Since a joint income tax return was filed by Captain and Mrs. Stidger, both are respondents here. In this opinion, however, the terms “respondent” and “taxpayer” refer only to Captain Stidger.
Revenue Act of 1921, c. 136, §214 (a), 42 Stat. 239.
O. D. 864, 4 Cum. Bull. 211 (1921); O. D. 1021, 5 Cum. Bull. 174 (1921).
See, e. g.; I. T. 1490, 1-2 Cum. Bull. 89 (1922); Rev. Rul. 60-189, 1960-1 Cum. Bull. 60. See also note 22, infra.
In addition to the instant case, see also Wright v. Hartsell, 305 F. 2d 221 (C. A. 9th Cir. 1962).
Steinhort v. Commissioner, 335 F. 2d 496 (C. A. 5th Cir. 1964); United States v. Le Blanc, 278 F. 2d 571 (C. A. 5th Cir. 1960).
Burns v. Gray, 287 F. 2d 698 (C. A. 6th Cir. 1961).
See, e. g., Friedman v. Commissioner, 37 T. C. 539 (1961); Carroll v. Commissioner, 20 T. C. 382 (1953). The facts of the Carroll case are closely analogous to the circumstances surrounding the claimed deduction here. The taxpayer there was an employee of the War Department who in 1947 was transferred to a “permanent duty station” in Korea for a minimum of one year. His wife and child remained in the United States. A deduction for the cost of meals and lodging while in Korea was not allowed by the Tax Court which noted that the taxpayer’s employer (1) designated Korea as a “permanent duty station” and (2) granted per diem travel allowances only while the taxpayer was en route to and from Korea, not while he was based there. See also Todd v. Commissioner, 10 T. C. 655 (1948).
See, e. g., O’Toole v. Commissioner, 243 F. 2d 302 (C. A. 2d Cir. 1957); Coerver v. Commissioner, 297 F. 2d 837 (C. A: 3d Cir. 1962), affirming 36 T. C. 252 (1961); Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948); England v. United States, 345 F. 2d 414 (C. A. 7th Cir. 1965); Cockrell v. Commissioner, 321 F. 2d 504 (C. A. 8th Cir. 1963); and York v. Commissioner, 82 U. S. App. D. C. 63, 160 F. 2d 385 (1947). The Courts of Appeals for the First and Tenth Circuits apparently have not taken a position on this question.
66 Stat. 467. The exception was carried over to the 1954 Code and now reads: “For purposes of the preceding sentence, the place of residence of a Member of Congress . . . within the State, congressional district, Territory, or possession which he represents in Congress shall be considered his'home, but amounts expended by such Members within each taxable year for living expenses shall not be deductible for income tax purposes in excess of $3,000.” 26 U. S. C. §162 (a).
Marine Corps Order 1300.8B, c. 1, issued July 1, 1958,- Record, p. 24.
See generally Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces, Appendix 13-18 (1948).
37 U. S. C. §403.
37 U. S. C. § 402.
37 U. S. C. § 404. See also 37 U. S. C. §§ 405-412.
37 U. S. C. §406 (h).
37 U. S. C. § 403 (d) provides: “A member of a uniformed service who is assigned to quarters of the United States or a housing facility under the jurisdiction of a uniformed service may not be denied the basic allowance for quarters if, because of orders of competent authority, his dependents are prevented from occupying those quarters.”
In 1948, the Hook Commission, which had been appointed by the Secretary of Defense to study military compensation, issued its report and recommendations. Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces (1948). That report formed a principal basis for the Career Compensation Act of 1949, c. 681, 63 Stat. 802. On the subjects of subsistence and quarters allowances, the Commission state! (Appendix," p. 17):
• “The theory behind the subsistence allowance is that since the officer is required to arrange and provide his subsistence at all times and since he has no choice as to the place where he is to be stationed and therefore does not have the choice of the average citizen as to the place and manner of subsisting himself, it is necessary to provide him with an allowance at all times so that he may bear that expense wherever stationed.
“Because an officer is transferred frequently from place to place and is required to dig up his roots at the old station and transplant them to the new station, the Government has acknowledged for years its obligation to furnish quarters to the officer for occupancy by himself and his dependents.”
Congress has through the years evidenced a determination to maintain the various allowances at levels consistent with the necessary financial burdens borne by servicemen. See, e. g., id., at 35 and Appendix 13-48; H. R. Rep. No. 779, 81st Cong., 1st Sess., p. 19. In 1963, Congress enacted yet another measure designed to provide direct relief for dependents separated from servicemen on permanent duty outside this country or in Alaska. 37 U. S. C. §427 (b). Under specified conditions, this provision authorizes an allowance of $30 monthly. It was established because Congress recognized that separated families incur additional expenses. See H. R. Rep. No. 208, 88th Cong., 1st Sess., p. 29. That recognition is, of course, the same one that underlies the travel-expense deduction for civilian taxpayers.
The Commissioner has. taken the position that a naval officer may deduct as a traveling expense the cost of his meals aboard ship while the ship is away from its home port. Rev. Rui. 55-571,1955-2 Cum. Bull. 44. It is contended that respondent’s situation at Iwa-kuni was directly analogous to that of a naval officer on a ship at sea for an extended period of time. The Commissioner justifies the discrepant treatment by arguing that a naval officer should be treated like the engineer of a train, a bus driver, or an airplane pilot for purposes of the travel-expense deduction; the principal place of business of such taxpayers is their home terminal and they are allowed the deduction when away from that terminal on business trips. We are not.convinced that respondent’s situation was in all relevant respects analogous to that of a naval officer at sea. In any event, during oral orgument we were advised that the Commissioner is re-examining his position with respect to naval officers.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
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[
68
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JUDULANG v. HOLDER, ATTORNEY GENERAL
No. 10-694.
Argued October 12, 2011
Decided December 12, 2011
Mark C. Fleming argued the cause for petitioner. With him on the briefs were Megan Barbero, Seth P. Waxman, Paul R. Q. Wolf son, James L. Quarles III, and Eric F. Citron.
Curtis E. Gannon argued the cause for respondent. With him on the brief were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Kneed-ler, Donald E. Keener, Alison R. Drucker, and Andrew MacLachlan.
Briefs of amici curiae urging reversal were filed for the Catholic Legal Immigration Network, Inc., et al. by Ira J. Kurzban; for Former Immigration Officials by Kannon K. Shanmugam; for the National Association of Criminal Defense Lawyers et al. by Iris E. Bennett, Matthew S. Heilman, Joshua L. Dratel, and Edwin A. Burnette; for the National Immigrant Justice Center et al. by Brian J. Murray, Charles Roth, and Matthew L. Guadagno; and for 39 Immigration Law Professors by Matthew D. McGill.
Justice Kagan
delivered the opinion of the Court.
This case concerns the Board of Immigration Appeals’ (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious.
The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.
I
A
Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an “exclusion proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U. S. 21, 25-26 (1982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and deportations alike. See 8 U. S. C. §§ 1229, 1229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, principally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, “inadmissible”), see § 1182(a) (2006 ed., Supp. IV), while another — sometimes overlapping and sometimes divergent — list specifies what kinds of crime render an alien deportable from the country, see § 1227(a).
An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until repealed in 1996, § 212(c) of the Immigration and Nationality Act, 66 Stat. 187, 8 U. S. C. § 1182(c) (1994 ed.), authorized the Attorney General to admit certain excludable aliens. See also § 136(p) (1926 ed.) (predecessor provision to § 212(c)). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See § 1182(c) (1994 ed.). But by its terms, § 212(c) did not apply when an alien was being deported.
This discrepancy threatened to produce an odd result in a case called Matter of L-, 1 I. & N. Dec. 1 (1940), leading to the first-ever grant of discretionary relief in a deportation case. L- was a permanent resident of the United States who had been convicted of larceny. Although L-’s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigration official’s preventing his entry. A few months later, the Government caught up with L- and initiated a deportation action based on his larceny conviction. Had the Government apprehended L- at the border a short while earlier, he would have been placed in an exclusion proceeding where he could have applied for discretionary relief. But because L- was instead in a deportation proceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L-could receive a waiver: L-, Jackson said, “should be permitted to make the same appeal to discretion that he could have made if denied admission” when returning from his recent trip. Id., at 6. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceedings to apply for discretionary relief under § 212(c) whenever they had left and reentered the country after becoming deportable. See Matter of S-, 6 I. & N. Dec. 392, 394-396 (1954).
But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive § 212(c) relief, while those who had never left could not. In Francis v. INS, 532 F. 2d 268 (1976), the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. Id., at 273 (“[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time”). The BIA acquiesced in the Second Circuit’s decision, see Matter of Silva, 16 I. & N. Dec. 26 (1976), thus applying § 212(c) in deportation proceedings regardless of an alien’s travel history.
All this might have become academic when Congress repealed § 212(c) in 1996 and substituted a new discretionary-remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U. S. C. § 1229b. But in INS v. St Cyr, 533 U. S. 289, 326 (2001), this Court concluded that the broader relief afforded by § 212(c) must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before §212(c)'s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’” Id., at 323 (quoting Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994)). Accordingly, § 212(c) has had an afterlife for resident aliens with old criminal convictions.
When the BIA is deciding whether to exclude such an alien, applying § 212(c) is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” see 8 U. S. C. § 1182(a)(2)(A)(i)(I). Unless the charged ground is one of the pair falling outside §212(c)’s scope, see n. 1, supra, the alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” St. Cyr, 533 U. S., at 296, n. 5.
By contrast, when the BIA is deciding whether to deport an alien, applying § 212(c) becomes a tricky business. Recall that § 212(c) applies on its face only to exclusion decisions. So the question arises: How is the BIA to determine when an alien should receive § 212(c) relief in the deportation context?
One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deportable fell within a statutory ground for exclusion. Almost all convictions did so, largely because the “crime involving moral turpitude” ground encompasses so many offenses. Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion eases — first making sure the statutory ground at issue was not excepted from § 212(e) and then conducting the multi-factor analysis. See Matter of Tanori, 15 I. & N. Dec. 566, 567-568 (1976); In re Manzueta, No. [ AXX XXX XXX ], 2003 WL 23269892 (BIA, Dec. 1, 2003).
A second approach is the one challenged here; definitively adopted in 2005 (after decades of occasional use), it often is called the “comparable-grounds” rule. See, e. g., De la Rosa v. U S. Attorney General, 579 F. 3d 1327, 1332 (CA11 2009). That approach evaluates whether the ground for deportation charged in a case has a close analogue in the statute’s list of exclusion grounds. See In re Blake, 23 I. & N. Dec. 722, 728 (2005); In re Brieva-Perez, 23 I. & N. Dec. 766, 772-773 (2005). If the deportation ground consists of a set of crimes “substantially equivalent” to the set of offenses making up an exclusion ground, then the alien can seek § 212(c) relief. Blake, 23 I. & N. Dec., at 728. But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes § 212(c) inapplicable even if the particular offense committed by the alien falls within an exclusion ground.
Two contrasting examples from the BIA’s cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has committed an “aggravated felony” involving “illicit trafficking in a controlled substance.” 8 U.S. C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclusion ground. And according to the BIA in Matter of Meza, 20 I. & N. Dec. 257 (1991), the judge would find an adequate match — the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U. S. C. §§ 1182(a)(2)(A)(i)(II) and (a)(2)(C).
Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” involving “sexual abuse of a minor.” §§1101(a)(43)(A), 1227(a)(2) (A)(iii). May this alien seek § 212(c) relief? According to the BIA, he may not do so — not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U. S. C. § 1182(a) (2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See supra, at 49. But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” Blake, 23 I. & N. Dec., at 728. And the much greater sweep of the exclusion ground prevents the alien from seeking discretionary relief from deportation.
Those mathematically inclined might think of the comparable-grounds approach as employing Venn diagrams. Within one circle are all the criminal offenses composing the particular ground of deportation charged. Within other circles are the offenses composing the various exclusion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for § 212(c) relief.
B
Petitioner Joel Judulang is a native of the Philippines who entered the United States in 1974 at the age of eight. Since that time, he has lived continuously in this country as a lawful permanent resident. In 1988, Judulang took part in a fight in which another person shot and killed someone. Ju-dulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea.
In 2005, after Judulang pleaded guilty to another criminal offense (this one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. 8 U. S. C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for § 212(c) relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. App. to Pet. for Cert. 8a. The Court of Appeals for the Ninth Circuit denied Judu-lang’s petition for review in reliance on circuit precedent upholding the BIA’s comparable-grounds approach. Judulang v. Gonzales, 249 Fed. Appx. 499, 502 (2007) (citing Abebe v. Gonzales, 493 F. 3d 1092 (2007)).
We granted certiorari, 563 U. S. 935 (2011), to resolve a circuit split on the approach’s validity. We now reverse.
II
This case requires us to decide whether the BIA’s policy for applying § 212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). The scope of our review under this standard is “narrow”; as we have often recognized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn, of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency decisions — or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency provide reasoned explanation for its action”).
The BIA has flunked that test here. By hinging a deport-able alien’s eligibility for discretionary relief on the chance correspondence between statutory categories — a matter irrelevant to the alien’s fitness to reside in this country— the BIA has . failed to exercise its discretion in a reasoned manner.
A
The parties here spend much time disputing whether the BIA must make discretionary relief available to deportable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be eligible for § 212(c) relief; voluntary manslaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judulang cannot apply for relief from deportation because the “crime of violence” ground charged in his case does not match any exclusion ground (including the one for “turpitudinous” crimes). See infra, at 57. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissible: If an alien may seek § 212(c) relief in an exclusion case, he also must be able to seek such relief in a deportation case. See Brief for Petitioner 47-51. But the Government notes that the immigration laws have always drawn distinctions between exclusion and deportation. See Brief for Respondent 51. And the Government presses a policy reason for making § 212(c) relief more readily available in exclusion cases. Doing so, it argues, will provide an incentive for some resident aliens (i. e., those eligible for a waiver from exclusion, but not deportation) to report themselves to immigration officials, by applying for advance permission to exit and reenter the country. In contrast, applying § 212(c) uniformly might lead all aliens to “try to evade immigration officials for as long as possible,” because they could in any event “seek [discretionary] relief if caught.” Id., at 52.
In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek § 212(c) relief by flipping a coin — heads an alien may apply for relief, tails he may not — we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system. A method for disfavoring deportable aliens that bears no relation to these matters — that neither focuses on nor relates to an alien’s fitness to remain in the country — is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for § 212(c) relief on other, more rational bases.
The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges § 212(c) eligibility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attributes and circumstances. So it is difficult to see why that comparison should matter. Each of these statutory grounds contains a slew of offenses. Whether each contains the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.
This case well illustrates the point. In commencing Judu-lang ⅛ deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter conviction. See App. to Pet. for Cert. lla-12a. That made him ineligible for § 212(c) relief because the “crime of violence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crimefe] involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses — simple assault, minor burglary, and unauthorized use of a vehicle — that the “moral turpitude” ground does not. See Brieva-Perez, 23 I. & N. Dec., at 772-773; Tr. of Oral Arg. 28-29, 40-41. But this statutory difference in no way relates to Judulang — or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for § 212(c) relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It makes Judulang no less deserving of the opportunity to seek discretionary relief — -just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so.
Or consider a different headscratching oddity of the comparable-grounds approach — that it may deny § 212(c) eligibility to aliens whose deportation ground fits entirely inside an exclusion ground. The BIA’s Blake decision, noted earlier, provides an example. See supra, at 50. The deportation ground charged was “aggravated felony” involving “sexual abuse of a minor”; the closest exclusion ground was, once again, a “crime [of] moral turpitude.” 23 I. & N. Dec., at 727. Here, the BIA’s problem was not that the deportation ground covered too many offenses; all or virtually all the crimes within that ground also are crimes of moral turpitude. Rather, the BIA objected that the deportation ground covered too few crimes — or put oppositely, that “the moral turpitude ground of exclusion addresses a . . . much broader category of offenses.” Id., at 728. But providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group. (The better argument would surely be the reverse — that giving relief in the one context supports doing so in the other.) Again, we do not say today that the BIA must give all de-portable aliens meeting § 212(c)’s requirements the chance to apply for a waiver. See supra, at 55-56. The point is instead that the BIA cannot make that opportunity turn on the meaningless matching of statutory grounds.
And underneath this layer of arbitrariness lies yet another, because the outcome of the Board’s comparable-grounds analysis itself may rest on the happenstance of an immigration official’s charging decision. This problem arises because an alien’s prior conviction may fall within a number of deportation grounds, only one of which corresponds to an exclusion ground. Consider, for example, an alien who entered the country in 1984 and committed voluntary manslaughter in 1988. That person could be charged (as Judulang was) with an “aggravated felony” involving a “crime of violence,” see 8 U. S. C. §§ 1101(a)(43)(F), 1227(a) (2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a comparable exclusion ground. But the alien also could be charged with “a crime involving moral turpitude committed within five years . . . after the date of admission,” see § 1227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in exclusion cases. See In re Salmon, 16 I. & N. Dec. 734 (1978). So everything hangs on the charge. And the Government has provided no reason to think that immigration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with § 212(c) in mind. See Tr. of Oral Arg. 34-36. So at base everything hangs on the fortuity of an individual official’s decision. An alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country.
In a foundational deportation case, this Court recognized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstances so fortuitous and capricious.” Delgadillo v. Carmichael, 332 U. S. 388, 391 (1947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens — decides who should be eligible for discretionary relief and who should not — solely by comparing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di Pasquale v. Karnuth, 158 F. 2d 878, 879 (CA2 1947) (quoted in Rosenberg v. Fleuti, 374 U. S. 449, 455 (1963)). That is what the comparable-grounds rule brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart.
B
The Government makes three arguments in defense of the comparable-grounds rule — the first based on statutory text, the next on history, the last on cost. We find none of them persuasive.
1
The Government initially contends that the comparable-grounds approach is more faithful to “the statute’s language,” Brief for Respondent 21 — or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’” id,., at 22 (quoting Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (1990)). In the Government’s view, § 212(c) is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying § 212(c) in the deportation context. Brief for Respondent 21; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of . . . exclusion”).
The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 212(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) . . . (other than paragraphs (3) and (9)(C)).” 8 U. S. C. § 1182(c) (1994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national security and international child abduction) are two among these. What § 212(c) actually says, then, is that the Attorney General may admit any excludable alien, except if the alien is charged with two specified grounds. And that means that once the Attorney General determines that the alien is not being excluded for those two reasons, the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney General waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Government’s argument is wrong. And if the premise, so too the conclusion — that is, because § 212(c)’s text is not “phrased in terms of waiving statutorily specified grounds of exclusion,” Brief for Respondent 21, it cannot counsel a search for corresponding grounds of deportation.
More fundamentally, the comparable-grounds approach would not follow from § 212(c) even were the Government right about the section’s phrasing. That is because § 212(c) simply has nothing to do with deportation: The provision was not meant to interact with the statutory grounds for deportation, any more than those grounds were designed to interact with the provision. Rather, § 212(c) refers solely to exclusion decisions; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions. Cf., e. g., Matter ofL-, 11. & N. Dec., at 5; see also supra, at 47. Accordingly, the text of § 212(c), whether or not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the comparable-grounds rule— or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Government’s yearning for a textual anchor. But § 212(c), no matter how many times read or parsed, does not provide one.
2
In disputing Judulang’s contentions, the Government also emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22-23, 30-43. As an initial matter, we think this a slender reed to support a significant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine § 212(c) eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its approach to this issue. To the contrary, the BIA has repeatedly vacillated in its method for applying § 212(c) to deportable aliens.
Prior to 1984, the BIA endorsed a variety of approaches. In Matter of T, 5 I. & N. Dec. 389, 390 (1953), for example, the BIA held that an alien was not eligible for § 212(c) relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts” — in that case, a marijuana conviction — would have allowed him to seek § 212(c) relief in an exclusion proceeding. 15 I. & N. Dec., at 568. That approach is more nearly similar to the one Judu-lang urges here. And then, in Matter of Granados, 16 I. & N. Dec. 726,728 (1979), the BIA tried to have it both ways: It denied § 212(c) eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s eases were all over the map.
The Government insists that the BIA imposed order in Matter of Wadud, 19 I. & N. Dec. 182, 185-186 (1984), when it held that a deportable alien could not seek § 212(c) relief unless the deportation ground charged had an “analogous ground of inadmissibility.” See Brief for Respondent 40-41. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending § 212(c) eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c).” Hernandez-Casillas, 20 I. & N. Dec., at 266. That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek § 212(c) relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable-grounds rule. Id., at 287. But even while doing so, the Attorney General stated that “an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien . . . subject to exclusion.” Ibid. That assertion is exactly the one Judu-lang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into whether an alien’s prior conviction falls within an exclusion ground.
Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-Casillas, the BIA endorsed the comparable-grounds approach on several occasions. See Meza, 20 I. & N. Dec., at 259; Matter of Montenegro, 20 I. & N. Dec. 603, 604-605 (1992); Matter of Gabryelsky, 20 I. & N. Dec. 750, 753-754 (1993); In re Esposito, 21 I. & N. Dec. 1, 6-7 (1995); In re Jimenez-Santillano, 211. & N. Dec. 567, 571-572 (1996). But just a few years later, the BIA issued a series of unpublished opinions that asked only whether a deportable alien’s prior conviction fell within an exclusion ground. See, e. g., In re Manzueta, No. [ AXX XXX XXX ], 2003 WL 23269892 (Dec. 1, 2003). Not until the BIA’s decisions in Blake and Brieva-Perez did the pendulum stop swinging. That history hardly supports the Government’s view of a consistent agency practice.
3
The Government finally argues that the comparable-grounds rule saves time and money. The Government claims that comparing deportation grounds to exclusion grounds can be accomplished in just a few “precedential decision[s],” which then can govern broad swaths of cases. See Brief for Respondent 46. By contrast, the Government argues, Judulang’s approach would force it to determine whether each and every crime of conviction falls within an exclusion ground. Further, the Government contends that Judulang’s approach would grant eligibility to a greater number of deportable aliens, which in turn would force the Government to make additional individualized assessments of whether to actually grant relief. Id., at 47.
Once again, the Government’s rationale comes up short. Cost is an important factor for agencies to consider in many contexts. But cheapness alone cannot save an arbitrary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judu-lang’s proposed approach asks immigration officials only to do what they have done for years in exclusion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See supra, at 55-56. In rejecting that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligibility for § 212(c) relief, so long as it comports with everything held in both this decision and St. Cyr.
Ill
We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance — whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.
The judgment of the Ninth Circuit is hereby reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The relevant part of § 212(c), in the version of the exclusion statute all parties use, reads as follows:
“Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).” 8 U. S. C. § 1182(c) (1994 ed.).
The parenthetical clause of this section prevented the Attorney General from waiving exclusion for aliens who posed a threat to national security, § 1182(a)(3), and aliens who engaged in international child abduction, § 1182(a)(9)(C).
Firearms offenses are the most significant crimes falling outside the statutory grounds for exclusion. See Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 282, n. 4 (1990).
Blake and Brieva-Perez clarified a 2004 regulation issued by the BIA stating that an alien is ineligible for § 212(c) relief when deportable “on a ground which does not have a statutory counterpart in section 212.” 8 CFR § 1212.3(f)(5) (2010).
Careful readers may note that the example involving controlled substances offered in the last paragraph also involves an exclusion ground that sweeps more broadly than the deportation ground charged. The deportation ground requires “trafficking” in a controlled substance, whereas the exclusion ground includes all possession offenses as well. The BIA nonetheless held in Meza that the degree of overlap between the two grounds was sufficient to make the alien eligible for § 212(c) relief. That holding reveals the broad discretion that the BIA currently exercises in deciding when two statutory grounds are comparable enough.
DHS also charged two other grounds for deportation, but the BIA did not rule on those grounds and they are not before us.
Compare Blake v. Carbone, 489 F. 3d 88,103 (CA2 2007) (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deportation”), with Koussan v. Holder, 556 F. 3d 403, 412-414 (CA6 2009) (upholding the comparable-grounds policy); Caroleo v. Gonzales, 476 F. 3d 158, 162-163, 168 (CA3 2007) (same); Kim v. Gonzales, 468 F. 3d 58, 62-63 (CA1 2006) (same).
The Government urges us instead to analyze this ease under the second step of the test we announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), to govern judicial review of an agency’s statutory interpretations. See Brief for Respondent 19. Were we to do so, our analysis would be the same, because under Chevron step two, we ask whether an agency interpretation is “ ‘arbitrary or capricious in substance.’ ” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. 44, 53 (2011) (quoting Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 242 (2004)). But we think the more apt analytic framework in this case is standard “arbitrary [or] capricious” review under the APA. The BIA’s comparable-grounds policy, as articulated in In re Blake, 23 I. & N. Dec. 722 (2005), and In re Brieva- Perez, 23 I. & N. Dec. 766 (2005), is not an interpretation of any statutory language — nor could it be, given that § 212(e) does not mention deportation eases, see infra, at 60-61, and n. 11.
Judulang also argues that the BIA is making an impermissible distinction between two groups of deportable aliens — those who have recently left and returned to the country and those who have not. According to Judulang, the BIA is treating the former as if they were seeking admission, while applying the “comparable grounds” approach only to the latter. See Reply Brief for Petitioner 16-18. That is the kind of distinction the Second Circuit held in Francis v. INS, 532 F. 2d 268 (1976), violated equal protection. See supra, at 47. But the Government contends that it is drawing no such line — that it is applying the comparable-grounds policy to all deportable aliens. Brief for Respondent 29. We think the available evidence tends to support the Government’s representation. See In re Meza-Castillo, No. [ AXXX XXX XXX ], 2009 WL 455596 (BIA, Feb. 9, 2009) (applying comparable-grounds analysis to a deportable alien who had left and returned to the country); In re Valenzuela-Morales, No. [ AXX XXX XXX ], 2008 WL 2079382 (BIA, Apr. 23, 2008) (same). But in light of our holding that the comparable-grounds approach is arbitrary and capricious, we need not resolve this dispute about the BIA’s practice.
The case would be different if Congress had intended for § 212(c) relief to depend on the interaction of exclusion grounds and deportation grounds. But the Government has presented us with no evidence to this effect, nor have we found any. See Blake, 489 F. 3d, at 102 (Congress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of exclusion” in the application of § 212(c)); see also infra, at 60-61.
Perhaps that is why the BIA declined to apply similar reasoning in Meza — a ease also involving an exclusion ground that sweeps more broadly than a deportation ground (although not to the same extent as in Blake). See supra, at 50.
Congress amended § 212(e), just five months before repealing it, to include a first-time reference to deportation cases. That amendment prohibited the Attorney General from granting discretionary relief to aliens deportable on several specified grounds. See Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277 (effective Apr. 24, 1996). The change does not affect our analysis, nor does the Government argue it should. As the Government notes, the amendment “did not speak to the viability of the Board’s” comparable-grounds rule, but instead made categorically ineligible for § 212(c) relief “those deportable by reason of certain crimes.” Brief for Respondent 20. Presumably, Congress thought those crimes particularly incompatible with an alien’s continued residence in this country.
Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that Blake and Brieva-Perez were impermis-sibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reasonably relied on a legal rule from which Blake and Brieva-Perez departed. See Landgraf v. USI Film Products, 511 U. S. 244, 270 (1994) (stating that retroactivity analysis focuses on “considerations of fair notice, reasonable reliance, and settled expectations”). The instability of the BIA’s prior practice prevents Judulang from making this showing: The BIA sometimes recognized aliens in Judulang’s position as eligible for § 212(c) relief, but sometimes did not.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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"Board of Immigration Appeals",
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[
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KEYSTONE BITUMINOUS COAL ASSN. et al. v. DeBENEDICTIS, SECRETARY, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, et al.
No. 85-1092.
Argued November 10, 1986
Decided March 9, 1987
Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Blackmun, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Powell, O’Connor, and Scalia, JJ., joined, post, p. 506.
Rex E. Lee argued the cause for petitioners. With him on the briefs were Benjamin W. Heineman, Jr., Michael A. Nemeroff, Carter G. Phillips, Henry McC. Ingram, and Thomas C. Reed.
Andrew S. Gordon, Chief Deputy Attorney General of Pennsylvania, argued the cause for respondent. With him on the brief was LeRoy S. Zimmerman, Attorney General.
Briefs of amici curiae urging reversal were filed for the Mid-Atlantic Legal Foundation et al. by Richard B. McGlynn; for the National Coal Association et al. by Harold P. Quinn, Jr.; and for the Pacific Legal Foundation by Ronald A. Zumbrun, Robert K. Best, and Lucinda Low Swartz.
Briefs of amici curiae urging affirmance were filed for the State of California ex reí. John K. Van de Kamp et al. by Mr. Van de Kamp, Attorney General of California, pro se, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, Richard M. Frank, and Craig C. Thompson, and by the Attorneys General for their respective States as follows: John Steven Clark of Arkansas, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Linley E. Pearson, of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Francis X. Bellotti of Massachusetts, James E. Tier-ney of Maine, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edvñn L. Pittman of Mississippi, William L. Webster of Missouri, Robert M. Spire of Nebraska, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Robert Abrams of New York, Lacy H. Thornburg of North Carolina, Michael Turpin of Oklahoma, Dave Frohnmayer of Oregon, Mark V. Meierhenry of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey L. Amestoy of Vermont, Kenneth 0. Eikenberry of Washington, and Bronson C. La Follette of Wisconsin; for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Robert H. Freilich; and for the Pennsylvania State Grange et al. by K. W. James Rochuno.
Justice Stevens,
delivered the opinion of the Court.
In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court reviewed the constitutionality of a Pennsylvania statute that admittedly destroyed “previously existing rights of property and contract.” Id., at 413. Writing for the Court, Justice Holmes explained:
“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.
So the question depends upon the particular facts.” Ibid.
In that case the “particular facts” led the Court to hold that the Pennsylvania Legislature had gone beyond its constitutional powers when it enacted a statute prohibiting the mining of anthracite coal in a manner that would cause the subsidence of land on which certain structures were located.
Now, 65 years later, we address a different set of “particular facts,” involving the Pennsylvania Legislature’s 1966 conclusion that the Commonwealth’s existing mine subsidence legislation had failed to protect the public interest in safety, land conservation, preservation of affected municipalities’ tax bases, and land development in the Commonwealth. Based on detailed findings, the legislature enacted the Bituminous Mine Subsidence and Land Conservation Act (Subsidence Act or Act), Pa. Stat. Ann., Tit. 52, §1406.1 et seq. (Purdon Supp. 1986). Petitioners contend, relying heavily on our decision in Pennsylvania Coal, that §§4 and 6 of the Subsidence Act and certain implementing regulations violate the Takings Clause, and that § 6 of the Act violates the Contracts Clause of the Federal Constitution. The District Court and the Court of Appeals concluded that Pennsylvania Coal does not control for several reasons and that our subsequent cases make it clear that neither § 4 nor § 6 is unconstitutional on its face. We agree.
I
Coal mine subsidence is the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal. This lowering of the strata can have devastating effects. It often causes substantial damage to foundations, walls, other structural members, and the integrity of houses and buildings. Subsidence frequently causes sinkholes or troughs in land which make the land difficult or impossible to develop. Its effect on farming has been well documented — many subsided areas cannot be plowed or properly prepared. Subsidence can also cause the loss of groundwater and surface ponds. In short, it presents the type of environmental concern that has been the focus of so much federal, state, and local regulation in recent decades.
Despite what their name may suggest, neither of the “full extraction” mining methods currently used in western Pennsylvania enables miners to extract all subsurface coal; considerable amounts need to be left in the ground to provide access, support, and ventilation to the mines. Additionally, mining companies have long been required by various Pennsylvania laws and regulations, the legitimacy of which is not challenged here, to leave coal in certain areas for public safety reasons. Since 1966, Pennsylvania has placed an additional set of restrictions on the amount of coal that may be extracted; these restrictions are designed to diminish subsidence and subsidence damage in the vicinity of certain structures and areas.
Pennsylvania’s Subsidence Act authorizes the Pennsylvania Department of Environmental Resources (DER) to implement and enforce a comprehensive program to prevent or minimize subsidence and to regulate its consequences. Section 4 of the Subsidence Act, Pa. Stat. Ann., Tit. 52, § 1406.4 (Purdon Supp. 1986), prohibits mining that causes subsidence damage to three categories of structures that were in place on April 17, 1966: public buildings and noncommercial buildings generally used by the public; dwellings used for human habitation; and cemeteries. Since 1966 the DER has applied a formula that generally requires 50% of the coal beneath structures protected by §4 to be kept in place as a means of providing surface support. Section 6 of the Subsidence Act, Pa. Stat. Ann., Tit. 52, §1406.6 (Purdon Supp. 1986), authorizes the DER to revoke a mining permit if the removal of coal causes damage to a structure or area protected by §4 and the operator has not within six months either repaired the damage, satisfied any claim arising therefrom, or deposited a sum equal to the reasonable cost of repair with the DER as security.
II
In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. Petitioners are an association of coal mine operators, and four corporations that are engaged, either directly or through affiliates, in underground mining of bituminous coal in western Pennsylvania. The members of the association and the corporate petitioners own, lease, or otherwise control substantial coal reserves beneath the surface of property affected by the Subsidence Act. The defendants in the action, respondents here, are the Secretary of the DER, the Chief of the DER’s Division of Mine Subsidence, and the Chief of the DER’s Section on Mine Subsidence Regulation.
The complaint alleges that Pennsylvania recognizes three separate estates in land: The mineral estate; the surface estate; and the “support estate.” Beginning well over 100 years ago, landowners began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. It is stipulated that approximately 90% of the coal that is or will be mined by petitioners in western Pennsylvania was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired or retained certain additional rights that would enable them to extract and remove the coal. Thus, they acquired the right to deposit wastes, to provide for drainage and ventilation, and to erect facilities such as tipples, roads, or railroads, on the surface. Additionally, they typically acquired a waiver of any claims for damages that might result from the removal of the coal.
In the portions of the complaint that are relevant to us, petitioners alleged that both § 4 of the Subsidence Act, as implemented by the 50% rule, and § 6 of the Subsidence Act, constitute a taking of their private property without compensation in violation of the Fifth and Fourteenth Amendments. They also alleged that § 6 impairs their contractual agreements in violation of Article I, § 10, of the Constitution. The parties entered into a stipulation of facts pertaining to petitioners’ facial challenge, and filed cross-motions for summary judgment on the facial challenge. The District Court granted respondents’ motion.
In rejecting petitioners’ Takings Clause claim, the District Court first distinguished Pennsylvania Coal, primarily on the ground that the Subsidence Act served valid public purposes that the Court had found lacking in the earlier case. 581 F. Supp. 511, 516 (1984). The District Court found that the restriction on the use of petitioners’ property was an exercise of the Commonwealth’s police power, justified by Pennsylvania’s interest in the health, safety, and general welfare of the public. In answer to petitioners’ argument that the Subsidence Act effectuated a taking because a separate, recognized interest in realty — the support estate — had been entirely destroyed, the District Court concluded that under Pennsylvania law the support estate consists of a bundle of rights, including some that were not affected by the Act. That the right to cause damage to the surface may constitute the most valuable “strand” in the bundle of rights possessed by the owner of a support estate was not considered controlling under our decision in Andrus v. Allard, 444 U. S. 51 (1979).
In rejecting petitioners’ Contracts Clause claim, the District Court noted that there was no contention that the Subsidence Act or the DER regulations had impaired any contract to which the Commonwealth was a party. Since only private contractual obligations had been impaired, the court considered it appropriate to defer to the legislature’s determinations concerning the public purposes served by the legislation. The court found that the adjustment of the rights of the contracting parties was tailored to those “significant and legitimate” public purposes. 581 F. Supp., at 514. At the parties’ request, the District Court certified the facial challenge for appeal.
The Court of Appeals affirmed, agreeing that Pennsylvania Coal does not control because the Subsidence Act is a legitimate means of “protecting] the environment of the Commonwealth, its economic future, and its well-being.” 771 F. 2d 707, 715 (1985). The Court of Appeals’ analysis of the Subsidence Act’s effect on petitioners’ property differed somewhat from the District Court’s, however. In rejecting the argument that the support estate had been entirely destroyed, the Court of Appeals did not rely on the fact that the support estate itself constitutes a bundle of many rights, but rather considered the support estate as just one segment of a larger bundle of rights that invariably includes either the surface estate or the mineral estate. As Judge Adams explained:
“To focus upon the support estate separately when assessing the diminution of the value of plaintiffs’ property caused by the Subsidence Act therefore would serve little purpose. The support estate is more properly viewed as only one ‘strand’ in the plaintiff’s ‘bundle’ of property rights, which also includes the mineral estate. As the Court stated in Andrus, ‘[t]he destruction of one “strand” of the bundle is not a taking because the aggregate must be viewed in its entirety.’ 444 U. S. at 65.
. . . The use to which the mine operators wish to put the support estate is forbidden. However, because the plaintiffs still possess valuable mineral rights that enable them profitably to mine coal, subject only to the Subsidence Act’s requirement that they prevent subsidence, their entire ‘bundle’ of property rights has not been destroyed.” Id., at 716.
With respect to the Contracts Clause claim, the Court of Appeals agreed with the District Court that a higher degree of deference should be afforded to legislative determinations respecting economic and social legislation affecting wholly private contracts than when the State impairs its own agreements. The court held that the impairment of private agreements effectuated by the Subsidence Act was justified by the legislative finding “that subsidence damage devastated many surface structures and thus endangered the health, safety, and economic welfare of the Commonwealth and its people.” Id., at 718. We granted certiorari, 475 U. S. 1080 (1986), and now affirm.
Ill
Petitioners assert that disposition of their takings claim calls for no more than a straightforward application of the Court’s decision in Pennsylvania Coal Co. v. Mahon. Although there are some obvious similarities between the cases, we agree with the Court of Appeals and the District Court that the similarities are far less significant than the differences, and that Pennsylvania Coal does not control this case.
In Pennsylvania Coal, the Pennsylvania Coal Company had served notice on Mr. and Mrs. Mahon that the company’s mining operations beneath their premises would soon reach a point that would cause subsidence to the surface. The Ma-hons filed a bill in equity seeking to enjoin the coal company from removing any coal that would cause “the caving in, collapse or subsidence” of their dwelling. The bill acknowledged that the Mahons owned only “the surface or right of soil” in the lot, and that the coal company had reserved the right to remove the coal without any liability to the owner of the surface estate. Nonetheless, the Mahons asserted that Pennsylvania’s then recently enacted Kohler Act of 1921, P. L. 1198, Pa. Stat. Ann., Tit. 52, §661 et seq. (Purdon 1966), which prohibited mining that caused subsidence under certain structures, entitled them to an injunction.
After initially having entered a preliminary injunction pending a hearing on the merits, the Chancellor soon dissolved it, observing:
“[T]he plaintiffs’ bill contains no averment on which to base by implication or otherwise any finding of fact that any interest public or private is involved in the defendant’s proposal to mine the coal except the private interest of the plaintiffs in the prevention of private injury.” Tr. of Record in Pennsylvania Coal v. Mahon, O. T. 1922, No. 549, p. 23.
The Pennsylvania Supreme Court reversed, concluding that the Kohler Act was a proper exercise of the police power. 274 Pa. 489, 118 A. 491 (1922). One Justice dissented. He concluded that the Kohler Act was not actually intended to protect lives and safety, but rather was special legislation enacted for the sole benefit of the surface owners who had released their right to support. Id., at 512-518,118 A., at 499-501.
The company promptly appealed to this Court, asserting that the impact of the statute was so severe that “a serious shortage of domestic fuel is threatened. ” Motion to Advance for Argument in Pennsylvania Coal v. Mahon, O. T. 1922, No. 549, p. 3. The company explained that until the Court ruled, “no anthracite coal which is likely to cause surface subsidence can be mined,” and that strikes were threatened throughout the anthracite coal fields. In its argument in this Court, the company contended that the Kohler Act was not a bona fide exercise of the police power, but in reality was nothing more than “‘robbery under the forms of law’” because its purpose was “not to protect the lives or safety of the public generally but merely to augment the property rights of a favored few.” See 260 U. S., at 396-398, quoting Loan Assn. v. Topeka, 20 Wall. 655, 664 (1875).
Over Justice Brandéis’ dissent, this Court accepted the company’s argument. In his opinion for the Court, Justice Holmes first characteristically decided the specific case at hand in a single, terse paragraph:
“This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually in ordinary private affairs the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance even if similar damage is inflicted on others in different places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen, 95, 103. The extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land — a very valuable estate — and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs’ position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights.” 260 U. S., at 413-414.
Then — uncharacteristically—Justice Holmes provided the parties with an advisory opinion discussing “the general validity of the Act.” In the advisory portion of the Court’s opinion, Justice Holmes rested on two propositions, both critical to the Court’s decision. First, because it served only private interests, not health or safety, the Kohler Act could not be “sustained as an exercise of the police power.” Id., at 414. Second, the statute made it “commercially impracticable” to mine “certain coal” in the areas affected by the Kohler Act.
The holdings and assumptions of the Court in Pennsylvania Coal provide obvious and necessary reasons for distinguishing Pennsylvania Coal from the case before us today. The two factors that the Court considered relevant, have become integral parts of our takings analysis. We have held that land use regulation can effect a taking if it “does not substantially advance legitimate state interests, ... or denies an owner economically viable use of his land.” Agins v. Tiburon, 447 U. S. 255, 260 (1980) (citations omitted); see also Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). Application of these tests to petitioners’ challenge demonstrates that they have not satisfied their burden of showing that the Subsidence Act constitutes a taking. First, unlike the Kohler Act, the character of the governmental action involved here leans heavily against finding a taking; the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare. Second, there is no record- in this case to support a finding, similar to the one the Court made in Pennsylvania Coal, that the Subsidence Act makes it impossible for petitioners to profitably engage in their business, or that there has been undue interference with their investment-backed expectations.
The Public Purpose
Unlike the Kohler Act, which was passed upon in Pennsylvania Coal, the Subsidence Act does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners. The Pennsylvania Legislature specifically found that important public interests are served by enforcing a policy that is designed to minimize subsidence in certain areas. Section 2 of the Subsidence Act provides:
“This act shall be deemed to be an exercise of the police powers of the Commonwealth for the protection of the health, safety and general welfare of the people of the Commonwealth, by providing for the conservation of surface land areas which may be affected in the mining of bituminous coal by methods other than ‘open pit’ or ‘strip’ mining, to aid in the protection of the safety of the public, to enhance the value of such lands for taxation, to aid in the preservation of surface water drainage and public water supplies and generally to improve the use and enjoyment of such lands and to maintain primary jurisdiction over surface coal mining in Pennsylvania.” Pa. Stat. Ann., Tit. 52, §1406.2 (Purdon Supp. 1986).
The District Court and the Court of Appeals were both convinced that the legislative purposes set forth in the statute were genuine, substantial, and legitimate, and we have no reason to conclude otherwise.
None of the indicia of a statute enacted solely for the benefit of private parties identified in Justice Holmes’ opinion are present here. First, Justice Holmes explained that the Koh-ler Act was a “private benefit” statute since it “ordinarily does not apply to land when the surface is owned by the owner of the coal.” 260 U. S., at 414. The Subsidence Act, by contrast, has no such exception. The current surface owner may only waive the protection of the Act if the DER consents. See 25 Pa. Code §89.145(b) (1983). Moreover, the Court was forced to reject the Commonwealth’s safety justification for the Kohler Act because it found that the Commonwealth’s interest in safety could as easily have been accomplished through a notice requirement to landowners. The Subsidence Act, by contrast, is designed to accomplish a number of widely varying interests, with reference to which petitioners have not suggested alternative methods through which the Commonwealth could proceed.
Petitioners argue that at least § 6, which requires coal companies to repair subsidence damage or pay damages to those who suffer subsidence damage, is unnecessary because the Commonwealth administers an insurance program that adequately reimburses surface owners for the cost of repairing their property. But this argument rests on the mistaken premise that the statute was motivated by a desire to protect private parties. In fact, however, the public purpose that motivated the enactment of the legislation is served by preventing the damage from occurring in the first place — in the words of the statute — “by providing for the conservation of surface land areas.” Pa. Stat. Ann., Tit. 52, §1406.2 (Purdon Supp. 1986). The requirement that the mine operator assume the financial responsibility for the repair of damaged structures deters the operator from causing the damage at all — the Commonwealth’s main goal — whereas an insurance program would merely reimburse the surface owner after the damage occurs.
Thus, the Subsidence Act differs from the Kohler Act in critical and dispositive respects. With regard to the Kohler Act, the Court believed that the Commonwealth had acted only to ensure against damage to some private landowners’ homes. Justice Holmes stated that if the private individuals needed support for their structures, they should not have “take[n] the risk of acquiring only surface rights.” 260 U. S., at 416. Here, by contrast, the Commonwealth is acting to protect the public interest in health, the environment, and the fiscal integrity of the area. That private individuals erred in taking a risk cannot estop the Commonwealth from exercising its police power to abate activity akin to a public nuisance. The Subsidence Act is a prime example that “circumstances may so change in time ... as to clothe with such a [public] interest what at other times . . . would be a matter of purely private concern.” Block v. Hirsh, 256 U. S. 135, 155 (1921).
In Pennsylvania Coal the Court recognized that the nature of the State’s interest in the regulation is a critical factor in determining whether a taking has occurred, and thus whether compensation is required. The Court distinguished the case before it from a case it had decided eight years earlier, Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914). There, “it was held competent for the legislature to require a pillar of coal to be left along the line of adjoining property.” Pennsylvania Coal, 260 U. S., at 415. Justice Holmes explained that unlike the Kohler Act, the statute challenged in Plymouth Coal dealt with “a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws.” 260 U. S., at 415.
Many cases before and since Pennsylvania Coal have recognized that the nature of the State’s action is critical in takings analysis. In Mugler v. Kansas, 123 U. S. 623 (1887), for example, a Kansas distiller who had built a brewery while it was legal to do so challenged a Kansas constitutional amendment which prohibited the manufacture and sale of intoxicating liquors. Although the Court recognized that the “buildings and machinery constituting these breweries are of little value” because of the Amendment, id., at 657, Justice Harlan explained that a
“prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or appropriation of property .... The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society cannot be— burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.” Id., at 668-669.
See also Plymouth Coal Co., supra; Hadacheck v. Sebastian, 239 U. S. 394 (1915); Reinman v. Little Rock, 237 U. S. 171 (1915); Powell v. Pennsylvania, 127 U. S. 678 (1888).
We reject petitioners’ implicit assertion that Pennsylvania Coal overruled these cases which focused so heavily on the nature of the State’s interest in the regulation. Just five years after the Pennsylvania Coal decision, Justice Holmes joined the Court’s unanimous decision in Miller v. Schoene, 276 U. S. 272 (1928), holding that the Takings Clause did not require the State of Virginia to compensate the owners of cedar trees for the value of the trees that the State had ordered destroyed. The trees needed to be destroyed to prevent a disease from spreading to nearby apple orchards, which represented a far more valuable resource. In upholding the state action, the Court did not consider it necessary to “weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute.” Id., at 280. Rather, it was clear that the State’s exercise of its police power to prevent the impending danger was justified, and did not require compensation. See also Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Omnia Commercial Co. v. United States, 261 U. S. 502, 509 (1923). Other subsequent cases reaffirm the important role that the nature of the state action plays in our takings analysis. See Goldblatt v. Hempstead, 369 U. S. 590 (1962); Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism’d, 371 U. S. 36 (1962). As the Court explained in Goldblatt: “Although a comparison of values before and after” a regulatory action “is relevant, ... it is by no means conclusive . . . .” 369 U. S., at 594.
The Court’s hesitance to find a taking when the State merely restrains uses of property that are tantamount to public nuisances is consistent with the notion of “reciprocity of advantage” that Justice Holmes referred to in Pennsylvania Coal. Under our system of government, one of the State’s primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. See Penn Central Transportation Co. v. New York City, 438 U. S., at 144-150 (Rehnquist, J., dissenting); cf. California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 322 (1905). These restrictions are “properly treated as part of the burden of common citizenship.” Kimball Laundry Co. v. United States, 338 U. S. 1, 5 (1949). Long ago it was recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community,” Mugler v. Kansas, 123 U. S., at 665; see also Beer Co. v. Massachusetts, 97 U. S. 25, 32 (1878), and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it. See Mugler, 123 U. S., at 664.
In Agins v. Tiburon, we explained that the “determination that governmental action constitutes a taking, is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest,” and we recognized that this question “necessarily requires a weighing of private and public interests.” 447 U. S., at 260-261. As the cases discussed above demonstrate, the public interest in preventing activities similar to public nuisances is a substantial one, which in many instances has not required compensation. The Subsidence Act, unlike the Kohler Act, plainly seeks to further such an interest. Nonetheless, we need not rest our decision on this factor alone, because petitioners have also failed to make a showing of diminution of value sufficient to satisfy the test set forth in Pennsylvania Coal and our other regulatory takings cases.
Diminution of Value and Investment-Backed Expectations
The second factor that distinguishes this case from Pennsylvania Coal is the finding in that case that the Kohler Act made mining of “certain coal” commercially impracticable. In this case, by contrast, petitioners have not shown any deprivation significant enough to satisfy the heavy burden placed upon one alleging a regulatory taking. For this reason, their takings claim must fail.
In addressing petitioners’ claim we must not disregard the posture in which this case comes before us. The District Court granted summary judgment to respondents only on the facial challenge to the Subsidence Act. The court explained that “[bjecause plaintiffs have not alleged any injury due to the enforcement of the statute, there is as yet no concrete controversy regarding the application of the specific provisions and regulations. Thus, the only question before this court is whether the mere enactment of the statutes and regulations constitutes a taking.” 581 F. Supp., at 513 (emphasis added). The next phase of the case was to be petitioners’ presentation of evidence about the actual effects the Subsidence Act had and would have on them. Instead of proceeding in this manner, however, the parties filed a joint motion asking the court to certify the facial challenge for appeal. The parties explained that an assessment of the actual impact that the Act has on petitioners’ operations “will involve complex and voluminous proofs,” which neither party was currently in a position to present, App. 15-17, and stressed that if an appellate court were to reverse the District Court on the facial challenge, then all of their expenditures in adjudicating the as-applied challenge would be wasted. Based on these considerations, the District Court certified three questions relating to the facial challenge.
The posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. This point is illustrated by our decision in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), in which we rejected a preenforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977. We concluded that the District Court had been mistaken in its reliance on Pennsylvania Coal as support for a holding that two statutory provisions were unconstitutional because they deprived coal mine operators of the use of their land. The Court explained:
“[T]he court below ignored this Court’s oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U. S. 583, 588 (1972); Rescue Army v. Municipal Court, 331 U. S. 549, 568-575, 584 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed:
“ ‘[T]his Court has generally “been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Rather, it has examined the “taking” question by engaging in essentially ad hoc, factual inquiries that have identified several factors — such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action — that have particular significance.’ Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979) (citations omitted).
“These ‘ad hoc, factual inquiries’ must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances.
“Because appellees’ taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the ‘mere enactment’ of the Surface Mining Act constitutes a taking. See Agins v. Tiburon, 447 U. S. 255, 260 (1980). The test to be applied in considering this facial challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it ‘denies an owner economically viable use of his land . . . .’ Agins v. Tiburon, supra, at 260; see also Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978).” 452 U. S., at 295-296.
Petitioners thus face an uphill battle in making a facial attack on the Act as a taking.
The hill is made especially steep because petitioners have not claimed, at this stage, that the Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania. Indeed, petitioners have not even pointed to a single mine that can no longer be mined for profit. The only evidence available on the effect that the Subsidence Act has had on petitioners’ mining operations comes from petitioners’ answers to respondents’ interrogatories. Petitioners described the effect that the Subsidence Act had from 1966-1982 on 13 mines that the various companies operate, and claimed that they have been required to leave a bit less than 27 million tons of coal in place to support §4 areas. The total coal in those 13 mines amounts to over 1.46 billion tons. See App. 284. Thus §4 requires them to leave less than 2% of their coal in place. But, as we have indicated, nowhere near all of the underground coal is extractable even aside from the Subsidence Act. The categories of coal that must be left for § 4 purposes and other purposes are not necessarily distinct sets, and there is no information in the record as to how much coal is actually left in the ground solely because of §4. We do know, however, that petitioners have never claimed that their mining operations, or even any specific mines, have been unprofitable since the Subsidence Act was passed. Nor is there evidence that mining in any specific location affected by the 50% rule has been unprofitable.
Instead, petitioners have sought to narrowly define certain segments of their property and assert that, when so defined, the Subsidence Act denies them economically viable use. They advance two alternative ways of carving their property in order to reach this conclusion. First, they focus on the specific tons of coal that they must leave in the ground under the Subsidence Act, and argue that the Commonwealth has effectively appropriated this coal since it has no other useful purpose if not mined. Second, they contend that the Commonwealth has taken their separate legal interest in property — the “support estate.”
Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property “whose value is to furnish the denominator of the fraction.” Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1192 (1967). In Penn Central the Court explained:
“ ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole— here the city tax block designated as the ‘landmark site.’ ” 438 U. S., at 130-131.
Similarly, in Andrus v. Allard, 444 U. S. 51 (1979), we held that “where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking because the aggregate must be viewed in its entirety.” Id., at 65-66. Although these verbal formulizations do not solve all of the definitional issues that may arise in defining the relevant mass of property, they do provide sufficient guidance to compel us to reject petitioners’ arguments.
The Coal in Place
The parties have stipulated that enforcement of the DER’s 50% rule will require petitioners to leave approximately 27 million tons of coal in place. Because they own that coal but cannot mine it, they contend that Pennsylvania has appropriated it for the public purposes described in the Subsidence Act.
This argument fails for the reason explained in Penn Central and Andrus. The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner’s right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area as readily as the requirement that coal pillars be left in place. Similarly, under petitioners’ theory one could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes. Cf. Gorieb v. Fox, 274 U. S. 603 (1927) (upholding validity of setback ordinance) (Sutherland, J.). There is no basis for treating the less than 2% of petitioners’ coal as a separate parcel of property.
We do not consider Justice Holmes’ statement that the Kohler Act made mining of “certain coal” commercially impracticable as requiring us to focus on the individual pillars of coal that must be left in place. That statement is best understood as referring to the Pennsylvania Coal Company’s assertion that it could not undertake profitable anthracite coal mining in light of the Kohler Act. There were strong assertions in the record to support that conclusion. For example, the coal company claimed that one company was “unable to operate six large collieries in the city of Scranton, employing more than five thousand men.” Motion to Advance for Argument in Pennsylvania Coal Co. v. Mahon, O. T. 1922, No. 549, p. 2. As Judge Adams explained:
“At first blush, this language seems to suggest that the Court would have found a taking no matter how little of the defendants’ coal was rendered unmineable — that because ‘certain’ coal was no longer accessible, there had been a taking of that coal. However, when one reads the sentence in context, it becomes clear that the Court’s concern was with whether the defendants’ ‘right to mine coal. . . [could] be exercised with profit.’ 260 U. S. at 414 (emphasis added). . . . Thus, the Court’s holding in Mahon must be assumed to have been based on its understanding that the Kohler Act rendered the business of mining coal unprofitable.” 771 F. 2d, at 716, n. 6.
When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners’ coal mining operations and financial-backed expectations, it is plain that petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. The record indicates that only about 75% of petitioners’ underground coal can be profitably mined in any event, and there is no showing that petitioners’ reasonable “investment-backed expectations” have been materially affected by the additional duty to retain the small percentage that must be used to support the structures protected by § 4.
The Support Estate
Pennsylvania property law is apparently unique in regarding the support estate as a separate interest in land that can be conveyed apart from either the mineral estate or the surface estate. Petitioners therefore argue that even if comparable legislation in another State would not constitute a taking, the Subsidence Act has that consequence because it entirely destroys the value of their unique support estate. It is clear, however, that our takings jurisprudence forecloses reliance on such legalistic distinctions within a bundle of property rights. For example, in Penn Central, the Court rejected the argument that the “air rights” above the terminal constituted a separate segment of property for Takings Clause purposes. 438 U. S., at 130. Likewise, in Andrus v. Allard, we viewed the right to sell property as just one element of the owner’s property interest. 444 U. S., at 65-66. In neither case did the result turn on whether state law allowed the separate sale of the segment of property.
The Court of Appeals, which is more familiar with Pennsylvania law than we are, concluded that as a practical matter the support estate is always owned by either the owner of the surface or the owner of the minerals. It stated:
“The support estate consists of the right to remove the strata of coal and earth that undergird the surface or to leave those layers intact to support the surface and prevent subsidence. These two uses cannot co-exist and, depending upon the purposes of the owner of the support estate, one use or the other must be chosen. If the owner is a mine operator, the support estate is used to exploit the mineral estate. When the right of support is held by the surface owner, its use is to support that surface and prevent subsidence. Thus, although Pennsylvania law does recognize the support estate as a ‘separate’ property interest, id., it cannot be used profitably by one who does not also possess either the mineral estate or the surface estate. See Montgomery, The Development of the Right of Subjacent Support and the ‘ Third Estate in Pennsylvania,’ 25 Temple L. Q. 1, 21 (1951).” 771 F. 2d, at 715-716.
Thus, in practical terms, the support estate has value only insofar as it protects or enhances the value of the estate with which it is associated. Its value is merely a part of the entire bundle of rights possessed by the owner of either the coal or the surface. Because petitioners retain the right to mine virtually all of the coal in their mineral estates, the burden the Act places on the support estate does not constitute a taking. Petitioners may continue to mine coal profitably even if they may not destroy or damage surface structures at will in the process.
But even if we were to accept petitioners’ invitation to view the support estate as a distinct segment of property for “takings” purposes, they have not satisfied their heavy burden of sustaining a facial challenge to the Act. Petitioners have acquired or retained the support estate for a great deal of land, only part of which is protected under the Subsidence Act, which, of course, deals with subsidence in the immediate vicinity of certain structures, bodies of water, and cemeteries. See n. 6, supra. The record is devoid of any evidence on what percentage of the purchased support estates, either in the aggregate or with respect to any individual estate, has been affected by the Act. Under these circumstances, petitioners’ facial attack under the Takings Clause must surely fail.
IV
In addition to their challenge under the Takings Clause, petitioners assert that § 6 of the Subsidence Act violates the Contracts Clause by not allowing them to hold the surface owners to their contractual waiver of liability for surface damage. Here too, we agree with the Court of Appeals and the District Court that the Commonwealth’s strong public interests in the legislation are more than adequate to justify the impact of the statute on petitioners’ contractual agreements.
Prior to the ratification of the Fourteenth Amendment, it was Article I, § 10, that provided the primary constitutional check on state legislative power. The first sentence of that section provides:
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold or silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” U. S. Const., Art. I, §10.
Unlike other provisions in the section, it is well settled that the prohibition against impairing the obligation of contracts is not to be read literally. W. B. Worthen Co. v. Thomas, 292 U. S. 426, 433 (1934). The context in which the Contracts Clause is found, the historical setting in which it was adopted, and our cases construing the Clause, indicate that its primary focus was upon legislation that was designed to repudiate or adjust pre-existing debtor-creditor relationships that obligors were unable to satisfy. See e. g., ibid.; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934). Even in such cases, the Court has refused to give the Clause a literal reading. Thus, in the landmark case of Home Building & Loan Assn. v. Blaisdell, the Court upheld Minnesota’s statutory moratorium against home foreclosures, in part, because the legislation was addressed to the “legitimate end” of protecting “a basic interest of society,” and not just for the advantage of some favored group. Id., at 445.
As Justice Stewart explained:
“[I]t is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States. Tt is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals. ’ Manigault v. Springs, 199 U. S. 473, 480. As Mr. Justice Holmes succinctly put the matter in his opinion for the Court in Hudson Water Co. v. McCarter, 209 U. S. 349, 357: ‘One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them. The contract will carry with it the infirmity of the subject matter.”’ Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 241-242 (1978).
In assessing the validity of petitioners’ Contracts Clause claim in this case, we begin by identifying the precise contractual right that has been impaired and the nature of the statutory impairment. Petitioners claim that they obtained damages waivers for a large percentage of the land surface protected by the Subsidence Act, but that the Act removes the surface owners’ contractual obligations to waive damages. We agree that the statute operates as “a substantial impairment of a contractual relationship,” id., at 244, and therefore proceed to the asserted justifications for the impairment.
The record indicates that since 1966 petitioners have conducted mining operations under approximately 14,000 structures protected by the Subsidence Act. It is not clear whether that number includes the cemeteries and water courses under which mining has been conducted. In any event, it is petitioners’ position that, because they contracted with some previous owners of property generations ago, they have a constitutionally protected legal right to conduct their mining operations in a way that would make a shambles of all those buildings and cemeteries. As we have discussed, the Commonwealth has a strong public interest in preventing this type of harm, the environmental effect of which transcends any private agreement between contracting parties.
Of course, the finding of a significant and legitimate public purpose is not, by itself, enough to justify the impairment of contractual obligations. A court must also satisfy itself that the legislature’s “adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.’” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 412 (1983) (quoting United States Trust Co. v. New Jersey, 431 U. S. 1, 22 (1977)). But, we have repeatedly held that unless the State is itself a contracting party, courts should “ ‘properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.’” Energy Reserves Group, Inc., 459 U. S., at 413 (quoting United States Trust Co., 431 U. S., at 23).
As we explained more fully above, the Subsidence Act plainly survives scrutiny under our standards for evaluating impairments of private contracts. The Commonwealth has determined that in order to deter mining practices that could have severe effects on the surface, it is not enough to set out guidelines and impose restrictions, but that imposition of liability is necessary. By requiring the coal companies either to repair the damage or to give the surface owner funds to repair the damage, the Commonwealth accomplishes both deterrence and restoration of the environment to its previous condition. We refuse to second-guess the Commonwealth’s determinations that these are the most appropriate ways of dealing with the problem. We conclude, therefore, that the impairment of petitioners’ right to enforce the damages waivers is amply justified by the public purposes served by the Subsidence Act.
The judgment of the Court of Appeals is
Affirmed.
See generally Department of the Interior, Lee & Abel, Subsidence from Underground Mining: Environmental Analysis and Planning Considerations, Geological Survey Circular 2-12, p. 876 (1983); P. Mavrolas & M. Schechtman, Coal Mine Subsidence 6-8 (1981); Blazey & Strain, Deep Mine Subsidence — State Law and the Federal Response, 1 Eastern Mineral Law Foundation § 1.01, pp. 1-5 (1980); Department of the Interior, Bureau of Mines, Moebs, Subsidence Over Four Room-and-Pillar Sections in Southwestern Pennsylvania, R18645 (1982); H. R. Rep. No. 95-218, p. 126 (1977).
“Wherever [subsidence effects] extend, damage can occur to buildings, roads, pipelines, cables, streams, water impoundments, wells, and aquifers. Buildings can be cracked or tilted; roads can be lowered or cracked; streams, water impoundments, and aquifers can all be drained into the underground excavations. Oil and gas wells can be severed, causing their contents to migrate into underground mines, into aquifers, and even into residential basements. Sewage lines, gas lines, and water lines can all be severed, as can telephone and electric cables.” Blazey & Strain, supra, § 1.01 [2],
Indeed, in 1977, Congress passed the Federal Surface Mining Control and Reclamation Act, 91 Stat. 445, 30 U. S. C. §1201 et seq., which includes regulation of subsidence caused by underground coal mining. See 30 U. S. C. § 1266.
The two “full extraction” coal mining methods in use in western Pennsylvania are the room and pillar method, and the longwall method. App. 90-91.
For example, Pennsylvania law requires that coal beneath and adjacent to certain large surface bodies of water be left in place. Pa. Stat. Ann., Tit. 52, §3101 et seq. (Purdon 1966).
Section 4 provides:
“Protection of surface structures against damage from cave-in, collapse, or subsidence
“In order to guard the health, safety and general welfare of the public, no owner, operator, lessor, lessee, or general manager, superintendent or other person in charge of or having supervision over any bituminous coal mine shall mine bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures in place on April 27, 1966, overlying or in the proximity of the mine:
“(1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to churches, schools, hospitals, and municipal utilities or municipal public service operations.
“(2) Any dwelling used for human habitation; and
“(3) Any cemetery or public burial ground; unless the current owner of the structure consents and the resulting damage is fully repaired or compensated.”
In response to the enactment in 1977 of the Federal Surface Mining Control and Reclamation Act, 91 Stat. 445, 30 U. S. C. § 1201 et seq., and regulations promulgated by the Secretary of the Interior in 1979, 44 Fed. Reg. 14902, the Pennsylvania DER adopted new regulations extending the statutory protection to additional classes of buildings and surface features. Particularly:
“(a)(1) public buildings and non-commercial buildings customarily used by the public [after April 27, 1966], including churches, schools, hospitals, courthouses, and government offices;
“(4) perennial streams and impoundments of water with the storage volume of 20 acre feet;
“(5) aquifers which serve as a significant source of water supply to any public water system; and
“(6) coal refuse disposal!]” areas. 25 Pa. Code §§ 89.145(a) and 89.146 (b) (1983).
The regulations define the zone for which the 50% rule applies:
“(2) The support area shall be rectangular in shape and determined by projecting a 15 degree angle of draw from the surface to the coal seam, beginning 15 feet from each side of the structure. For a structure on a surface slope of 5.0% or greater, the support area on the downslope side of the structure shall be extended an additional distance, determined by multiplying the depth of the overburden by the percentage of the surface slope.” § 89.146(b)(2).
However, this 50% requirement is neither an absolute floor nor ceiling. It may be waived by the Department upon a showing that alternative measures will prevent subsidence damage. § 89.146(b)(5). Alternatively, more stringent measures may be imposed, or mining may be prohibited, if it appears that leaving 50% of the coal in place will not provide adequate support. § 89.146(b)(4).
Although some subsidence eventually occurs over every underground mine, the extent and timing of the subsidence depends upon a number of factors, including the depth of the mining, the geology of the overlying strata, the topography of the surface, and the method of coal removal. The DER believes that the support provided by its 50% rule will last in almost all cases for the life of the structure being protected. Since 1966, petitioners have mined under approximately 14,000 structures or areas protected by § 4; there have been subsidence damage claims with respect to only 300. Stipulations of Counsel 41 and 42, App. 90.
Petitioners also challenged various other portions of the Subsidence Act below, see 771 F. 2d 707, 718-719 (1985); 581 F. Supp. 511, 513, 519-520 (1984), but have not pursued these claims in this Court.
“[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. This restriction is applied to the States through the Fourteenth Amendment. See Chicago B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897).
The urgency with which the case was treated is evidenced by the fact that the Court issued its decision less than a month after oral argument; a little over a year after the test case had been commenced.
“But the ease has been treated as one in which the general validity of the act should be discussed. The Attorney General of the State, the City of Scranton, and the representatives of other extensive interests were allowed to take part in the argument below and have submitted their contentions here. It seems, therefore, to be our duty to go farther in the statement of our opinion, in order that it may be known at once, and that further suits should not be brought in vain.” 260 U. S., at 414.
“What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. This we think that we are warranted in assuming that the statute does.” Id., at 414-415.
This assumption was not unreasonable in view of the fact that the Kohler Act may be read to prohibit mining that causes any subsidence — not just subsidence that results in damage to surface structures. The record in this case indicates that subsidence will almost always occur eventually. See n. 8, swpra.
The legislature also set forth rather detailed findings about the dangers of subsidence and the need for legislation. See Pa. Stat. Ann., Tit. 52, § 1406.3 (Purdon Supp. 1986).
“We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so contingent upon an analysis of state law.” Runyon v. McCrary, 427 U. S. 160, 181 (1976).
We do not suggest that courts have “a license to judge the effectiveness of legislation,” post, at 511, n. 3, or that courts are to undertake “least restrictive alternative” analysis in deciding whether a state regulatory scheme is designed to remedy a public harm or is instead intended to provide private benefits. That a land use regulation may be somewhat overinclusive or underinclusive is, of course, no justification for rejecting it. See Euclid v. Ambler Realty Co., 272 U. S. 365, 388-389 (1926). But, on the other hand, Pennsylvania Coal instructs courts to examine the operative provisions of a statute, not just its stated purpose, in assessing its true nature. In Pennsylvania Coal, that inquiry led the Court to reject the Pennsylvania Legislature’s stated purpose for the statute, because the “extent of the public interest is shown by the statute to be limited.” 260 U. S., at 413-414. In this ease, we, the Court of Appeals, and the District Court, have conducted the same type of inquiry the Court in Pennsylvania Coal conducted, and have determined that the details of the statute do not call the stated public purposes into question.
In his dissent, Justice Brandéis argued that the State has an absolute right to prohibit land use that amounts to a public nuisance. Id., at 417. Justice Holmes’ opinion for the Court did not contest that proposition, but instead took issue with Justice Brandéis’ conclusion that the Kohler Act represented such a prohibition. Id., at 413-414.
Of course, the type of taking alleged is also an often critical factor. It is well settled that a “ ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e. g., United States v. Causby, 328 U. S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central Tranportation Co. v. New York City, 438 U. S. 104, 124 (1978). While the Court has almost invariably found that the permanent physical occupation of property constitutes a taking, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435-438 (1982), the Court has repeatedly upheld regulations that destroy or adversely affect real property interests. See, e. g., Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211 (1986); Penn Central Transportation Co. v. New York City, 438 U. S., at 125; Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 674, n. 8 (1976); Goldblatt v. Hempstead, 369 U. S. 590, 592-593 (1962); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v. Fox, 274 U. S. 603, 608 (1927); Welch v. Swasey, 214 U. S. 91 (1909). This case, of course, involves land use regulation, not a physical appropriation of petitioners’ property.
See also Agins v. Tiburon, 447 U. S. 265, 261 (1980) (the question whether a taking has occurred “necessarily requires a weighing of private and public interests”); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 163 (1980) (“No police power justification is offered for the deprivation”).
The special status of this type of state action can also be understood on the simple theory that since no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not “taken” anything when it asserts its power to enjoin the nuisance-like activity. Cf. Sax, Takings, Private Property and Public Rights, 81 Yale L. J. 149, 155-161 (1971); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1235-1237 (1967).
However, as the current Chief Justice has explained: “The nuisance exception to the taking guarantee is not coterminous with the police power itself.” Penn Central Transportation Co., 438 U. S., at 145 (Rehnquist, J., dissenting). This is certainly the case in light of our recent decisions holding that the “scope of the ‘public use’ requirement of the Takings Clause is ‘coterminous with the scope of a sovereign’s police powers.’” See Ruckelshaus v. Monsanto Co., 467 U. S. 986,1014 (1984) (quoting Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240 (1984)). See generally R. Epstein, Takings 108-112 (1985).
The Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens under this generic rule in excess of the benefits received. Not every individual gets a full dollar return in benefits for the taxes he or she pays; yet, no one suggests that an individual has a right to compensation for the difference between taxes paid and the dollar value of benefits received.
Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance. See Nassr v. Commonwealth, 394 Mass. 767, 477 N. E. 2d 987 (1985) (hazardous waste operation); Kuban v. McGimsey, 96 Nev. 105, 605 P. 2d 623 (1980) (brothel); MacLeod v. Takoma Park, 257 Md. 477, 263 A. 2d 581 (1970) (unsafe building); Eno v. Burlington, 125 Vt. 8, 209 A. 2d 499 (1965) (fire and health hazard); Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927) (gambling facility); People ex rel. Thrasher v. Smith, 275 Ill. 256, 114 N. E. 31 (1916) (“bawdyhouse”). It is hard to imagine a different rule that would be consistent with the maxim “sic utere tuo ut alienum non laedas” (use your own property in such manner as not to injure that of another). See generally Empire State Insurance Co. v. Chafetz, 278 F. 2d 41 (CA5 1960). As Professor Epstein has recently commented: “The issue of compensation cannot arise until the question of justification has been disposed of. In the typical nuisance prevention case, this question is resolved against the claimant.” Epstein, supra, at 199.
The certified questions asked whether §§ 4, 5, or 6 of the Subsidence Act, and various regulations:
“1. Violate the Rule of the Mahon Decision!,]
“2. Constitute Per Se Takings,
“3. Violate Article I, § 10 of the Constitution of the United States.” App. 12.
The Court of Appeals recognized the limited nature of its inquiry, pointing out that it was passing only on the facial challenge, and that the “as-applied challenge remains for disposition in the district court.” 771 F. 2d, at 710, n. 3.
The percentage of the total that must be left in place under § 4 is not the same for every mine because of the wide variation in the extent of surface development in different areas. For 7 of the 13 mines identified in the record, 1% or less of the coal must remain in place; for 3 others, less than 3% must be left in place; for the other 3, the percentages are 4%, 7.8%, and 9.4%. See App. 284.
See also Sax, Takings and the Police Power, 74 Yale L. J. 36, 60 (1964); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561, 566-567 (1984).
Of course, the company also argued that the Subsidence Act made it commercially impracticable to mine the very coal that had to be left in place. Although they could have constructed pillars for support in place of the coal, the cost of the artificial pillars would have far exceeded the value of the coal. See Brief for Plaintiff in Error in Pennsylvania Coal v. Mahon, O. T. 1922, No. 549, pp. 7-9.
We do not suggest that the State may physically appropriate relatively small amounts of private property for its own use without paying just compensation. The question here is whether there has been any taking at all when no coal has been physically appropriated, and the regulatory program places a burden on the use of only a small fraction of the property that is subjected to regulation. See generally n. 18, supra.
See Charnetski v. Miners Mills Coal Mining Co., 270 Pa. 459, 113 A. 683 (1921); Penman v. Jones, 256 Pa. 416 (1917); Captline v. County of Allegheny, 74 Pa. Commw. 85, 459 A. 2d 1298 (1983), cert. denied, 466 U. S. 904 (1984); see generally Montgomery, The Development of the Right of Subjacent Support and the “Third Estate” in Pennsylvania, 25 Temple L. Q. 1 (1951).
Another unanswered question about the level of diminution involves the District Court’s observation that the support estate carries with it far more than the right to cause subsidence damage without liability. See 581 P. Supp., at 519. There is no record as to what value these other rights have and it is thus impossible to say whether the regulation of subsidence damage under certain structures, and the imposition of liability for damage to certain structures, denies petitioners the economically viable use of the support estate, even if viewed as a distinct segment of property.
“It was made part of the Constitution to remedy a particular social evil — the state legislative practice of enacting laws to relieve individuals of their obligations under certain contracts — and thus was intended to prohibit States from adopting ‘as [their] policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them, Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 439 (1934).” Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 256 (1978) (Brennan, J., dissenting).
As we have mentioned above, we do not know what percentage of petitioners’ acquired support estate is in fact restricted under the Subsidence Act. See supra, at 501-502. Moreover, we have no basis on which to conclude just how substantial a part of the support estate the waiver of liability is. See id., at n. 29. These inquiries are both essential to determine the “severity of the impairment,” which in turn affects “the level of scrutiny to which the legislation will be affected.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411 (1983). While these dearths in the record might be critical in some cases, they are not essential to our discussion here because the Subsidence Act withstands scrutiny even if it is assumed that it constitutes a total impairment.
Most of these waivers were obtained over 70 years ago as part of the support estate which was itself obtained or retained as an incident to the acquisition or retention of the right to mine large quantities of underground coal. No question of enforcement of such a waiver against the original covenantor is presented; rather, petitioners claim a right to enforce the waivers against subsequent owners of the surface. This claim is apparently supported by Pennsylvania precedent holding that these waivers run with the land. See Kormuth v. United States Steel Co., 379 Pa. 365,108 A. 2d 907 (1954); Scranton v. Phillips, 94 Pa. 15, 22 (1880). That the Pennsylvania courts might have had, or may in the future have, a valid basis for refusing to enforce these perpetual covenants against subsequent owners of the surface rights is not necessarily a sufficient reason for concluding that the legislative impairment of the contracts is permissible. See Tidal Oil Co. v. Flanagan, 263 U. S. 444 (1924); Central Land Co. v. Laidley, 159 U. S. 103 (1895) (distinguishing legislative and judicial action).
Because petitioners did not raise the issue before the District Court, the Court of Appeals rejected their attempt to argue on appeal that the Subsidence Act also affects contracts to which the Commonwealth is a party. See 771 F. 2d, at 718, n. 8.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
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What is the agency involved in the administrative action?
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] |
[
116
] |
CITY OF PHILADELPHIA et al. v. NEW JERSEY et al.
No. 77-404.
Argued March 27, 1978
Decided June 23, 1978
Stewart, J., delivered the opinion of the Court, in which BrennaN, White, Marshall, BlacKmuN, Powell, and SteveNS, JJ., joined. RehNQUist, J., filed a dissenting opinion, in which Burger, C. J., joined, ;post, p. 629.
Herbert F. Moore argued the cause for appellants. With him on the briefs was Arthur Meisel.
Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for appellees. With him on the brief were John J. Degnan, Attorney General, and Deborah Poritz and Nathan Edelstein, Deputy Attorneys General.
M. Jefferson Davis and Michael J. Hogan filed a brief for the Board of Chosen Freeholders of the County of Burlington, N. J., as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Jeffrey B. Schwartz for the American Public Health Assn.; and by William C. Brashares for the National Solid Wastes Management Assn.
Mr. Justice Stewart
delivered the opinion of the Court.
A New Jersey law prohibits the importation of most “solid or liquid waste which originated or was collected outside the territorial limits of the State . . . In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.
I
The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides:
“No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner '[of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.” N. J. Stat. Ann. §13:17-10 (West Supp. 1978).
As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State. Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.
Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs’ motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, Hackensack Meadowlands Development Comm’n v. Municipal Sanitary Landfill Auth., 127 N. J. Super. 160, 316 A. 2d 711, and reversed, 68 N. J. 451, 348 A. 2d 505. It found that eh. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U. S. C. § 3251 et seg., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.
The plaintiffs then appealed to this Court. After noting probable jurisdiction, 425 U. S. 910, and hearing oral argument, we remanded for reconsideration of the appellants’ preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U. S. 141. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 562, 376 A. 2d 888, and again we noted probable jurisdiction, 434 U. S. 964. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation. The dispositive question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.
II
Before it addressed the merits of the appellants’ claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is “commerce” at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.
The state court expressed the view that there may be two definitions of “commerce” for constitutional purposes. When relied on “to support some exertion of federal control or regulation,” the Commerce Clause permits “a very sweeping concept” of commerce. 68 N. J., at 469, 348 A. 2d, at 514. But when relied on “to strike down or restrict state legislation,” that Clause and the term “commerce” have a “much more confined . . . reach.” Ibid.
The state court reached this conclusion in an attempt to reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they “are not legitimate subjects of trade and commerce.” Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 489. These articles include items “which, on account of their existing condition, ■'would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.” Ibid. See also Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 525, and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. 2, supra, banned only “those wastes which can [not] be put to effective use,” and therefore those wastes were not commerce at all, unless “the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision.” 68 N. J., at 468, 348 A. 2d, at 514.
We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles “are not legitimate subjects of trade and commerce,” the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court’s suggestion that the banning of “valueless” out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 802-814; Meat Drivers v. United States, 371 U. S. 94.
Ill
A
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 185. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 440. The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 537-538:
“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control 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. As the Court said in Baldwin v. Seelig, 294 U. S. [511], 527, what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”
The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, Inc., v. Du Mond, supra; Toomer v. Witsell, 334 U. S. 385, 403-406; Baldwin v. G. A. F. Seelig, Inc., supra; Buck v. Kuykendall, 267 U. S. 307, 315-316. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders. Cf. Welton v. Missouri, 91 U. S. 275. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U. S. 137, 142:
“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”
See also Raymond Motor Transportation, Inc. v. Rice, supra, at 441-442; Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 352-354; Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 371-372.
The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.
B
The purpose of ch. 363 is set out in the statute itself as follows:
“The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited.”
The New Jersey Supreme Court accepted this statement of the state legislature’s purpose. The state court additionally found that New Jersey’s existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that “the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes.” 68 N. J., at 460-465, 348 A. 2d, at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State’s economy, but its environment, and that its substantial benefits outweigh its “slight” burden on interstate commerce. Id., at 471-478, 348 A. 2d, at 515-519.
The appellants strenuously contend that ch. 363, “while outwardly cloaked fin the currently fashionable garb of environmental protection/ ... is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents . . . They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites.
The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, “[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste.” Noting that New Jersey landfill operators are among the plaintiffs, the appellee’s brief argues that “[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large.”
This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents’ pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State’s remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination.
The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. O. A. F. Seelig, Inc., 294 U. S., at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S., at 403-404; or to preserve the State’s financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U. S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.
Also relevant here are the Court’s decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located -within its borders. West v. Kansas Natural Gas Co., 221 U. S. 229; Pennsylvania v. West Virginia, 262 U. S. 553. These cases stand for the basic principle that a “State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” Foster-Fountain Packing Co. v. Haydel, supra, at 10.
The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.
The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G. A. F. Seelig, Inc., supra, at 525; Bowman v. Chicago & Northwestern R. Co., 125 U. S., at 489. In the appellees’ view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.
It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U. S. 251; Reid v. Colorado, 187 U. S. 137; Bowman v. Chicago & Northwestern R. Co., supra, at 489. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.
The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey’s remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.
Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is
Reversed.
New Jersey enacted a Waste Control Act, N. J. Stat. Ann. § 13:1/-1 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner.
Effective as of February 1974, these regulations provided as follows:
“ (a) No person shall bring into this State, or accept for disposal in this State, any solid or liquid waste which originated or was collected outside the territorial limits of this State. This Section shall not apply to:
“1. Garbage to be fed to swine in the State of New Jersey;
“2. Any separated waste material, including newsprint, paper, glass and metals, that is free from putrescible materials and not mixed with other solid or liquid waste that is intended for a recycling or reclamation facility;
“3. Municipal solid waste to be separated or processed into usable secondary materials, including fuel and heat, at a resource recovery facility provided that not less than 70 per cent of the thru-put of any such facility is to be separated or processed into usable secondary materials; and
“4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semi-liquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State.” N. J. Admin. Code 7:1-4.2 (Supp. 1977).
The decision of the New Jersey Supreme Court disposed of the appellants’ pre-emption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court.
The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Discovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U. S. C. § 6901 et seq. (1976 ed.).
From our review of this federal legislation, we find no “clear and manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230, to pre-empt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U. S. 519, 530-531, or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U. S. 624, 633. To the contrary, Congress expressly has provided that “the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies . . . .” 42 U. S. C. §6901 (a)(4) (1976 ed.). Similarly, ch. 363 is not pre-empted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U. S. 151, 158; Jones v. Rath Packing Co., supra, at 540-541. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation.
U. S. Const., Art. I, § 8, cl. 3.
We express no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, compare Douglas v. Seacoast Products, Inc., 431 U. S. 265, 283-287, with id., at 287-290 (Rehnquist, J., concurring and dissenting); Toomer v. Witsell, 334 U. S. 385, 404; or New Jersey’s power*to spend state funds solely on behalf of state residents and businesses, compare Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 805-810; id., at 815 (SteveNS, J., concurring), with id., at 817 (BeeNNAN, J., dissenting). Also compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 187, with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 783.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
|
What is the agency involved in the administrative action?
|
[
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] |
[
116
] |
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