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FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, v. MOHAWK WRECKING & LUMBER CO. et al.
NO. 583.
Argued April 1,1947. —
Decided April 28, 1947.
David London argued the cause for petitioner in No. 583 and respondent in No. 512. With him on the brief were Acting Solicitor General Washington, John R. Benney, Philip Elman, William E. Remy, Samuel Mermin and Jacob W. Rosenthal.
John W. Babcock argued the cause and filed a brief for respondents in No. 583.
Paul Flaherty and C. L. Dawson submitted on brief for petitioners in No. 512.
Arthur E. Pettit, Paul R. Stinson, Arthur Mag and Dick H. Woods filed a brief in No. 583 for the Singer Sewing Machine Company, as amicus curiae, in support of respondents’ motion to vacate the order of substitution.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Black.
These cases present the question whether the Emergency Price Control Act, 56 Stat. 23, as amended, 50 U. S. C. App. Supp. V, § 901 et seq., authorizes the Administrator to delegate to district directors authority to sign and issue subpoenas. In the first of these cases the Circuit Court of Appeals for the Sixth Circuit held that such authority did not exist, 156 F. 2d 891; in the second, the Court of Appeals for the District of Columbia held that it did. 81 U. S. App. D. C. 156, 156 F. 2d 561. The cases are here on petitions for writs of certiorari which we granted to resolve the conflict.
First. After we granted the petitions we ordered, on motion of the Acting Solicitor General, that Philip B. Fleming, Temporary Controls Administrator, be substituted as a party in each case in place of Paul A. Porter, Administrator, Office of Price Administration, resigned. Thereafter respondents in the first of these cases filed a motion to vacate the order of substitution, a motion which we deferred to the hearing on the merits. The question has now been briefed and argued and we conclude that the motion to vacate the order of substitution should be denied.
The Act was amended in 1946 to provide for its termination not later than June 30, 1947, saving, however, rights and liabilities incurred prior to the termination date. By November 12, 1946, almost all commodities (including services) were by administrative order made exempt from price control. Price control had thus entered a temporary transition period. On December 12, 1946, the President issued an Executive Order “for the purpose of further effectuating the transition from war to peace and in the interest of the internal management of the Government.” That order consolidated the Office of Price Administration and three other agencies into the Office of Temporary Controls — an agency in the Office for Emergency Management of the Executive Office of the President. The latter had previously been established pursuant to the Reorganization Act of 1939. The Executive Order provided a Temporary Controls Administrator, appointed by the President, to head the Office of Temporary Controls and vested in him, inter alia, the functions of the Price Administrator, including the authority to maintain in his own name civil proceedings, whether or not then pending, relating to matters theretofore under the jurisdiction of the Price Administrator. Petitioner is the Temporary Controls Administrator appointed by the President.
It is argued that the President had no authority to transfer the functions of the Price Administrator to another agency and to vest in an officer appointed by the President the power which the Emergency Price Control Act, § 201, had conferred upon an Administrator appointed by the President by and with the advice and consent of the Senate. And it is said that even though such authority existed, it came to an end with the cessation of hostilities.
By § 1 of the First War Powers Act of 1941, 55 Stat. 838, 50 U. S. C. App. Supp. V, § 601, the President is
“authorized to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon any executive department, commission, bureau, agency, governmental corporation, office, or officer, in such manner as in his judgment shall seem best fitted to carry out the purposes of this title, and to this end is authorized to make such regulations and to issue such orders as he may deem necessary . . .”
That power may be exercised “only in matters relating to the conduct of the present war,” § 1, and expires six months after “the termination of the war.” § 401.
On December 31, 1946, after the creation of the Office of Temporary Controls, the President, while recognizing that “a state of war still exists,” by proclamation declared that hostilities had terminated. The cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U. S. 146, 161, that the war power includes the power “to remedy the evils which have arisen from its rise and progress” and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507. Whatever may be the reach, of that power, it is plainly adequate to deal with problems of law enforcement which arise during the period of hostilities but do not cease with them. No more is involved here.
Section 1 of the First War Powers Act does not explicitly provide for creation of a new agency which consolidates the functions and powers previously exercised by one or more other agencies. But the Act has been repeatedly construed by the President to confer such authority. Such construction by the Chief Executive, being both contemporaneous and consistent, is entitled to great weight. See United States v. Jackson, 280 U. S. 183, 193; Billings v. Truesdell, 321 U. S. 542, 552-553. And the appropriation by Congress of funds for the use of such agencies stands as confirmation and ratification of the action of the Chief Executive. Brooks v. Dewar, 313 U. S. 354, 361.
Nor do we think there is merit in the contention that the First War Powers Act gave the President authority to transfer functions only from agencies in existence when that Act became law. It is true that § 1 authorizes the President “to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon” any agency. But the latter clause is only an illustration of the authority granted, not a limitation on it. It makes clear that the authority extends to existing agencies as well as to others. That construction is supported by § 5 of the Act which states that upon its termination all executive and administrative agencies “shall exercise the same functions, duties, and powers as heretofore or as hereafter by law may be provided, any authorization of the President under this title to the contrary notwithstanding.” As stated by the Emergency Court of Appeals, unless § 1 authorizes the President to redistribute functions of agencies created after the passage of the Act, the reference in § 5 to functions “hereafter” provided by law is “wholly meaningless.” California Lima Bean Growers Assn. v. Bowles, 150 F. 2d 964, 967. Nor is that result affected by the subsequent enactment of the Emergency Price Control Act which in § 201 (b) authorized the President to transfer any of the powers and functions of the Office of Price Administration “with respect to a particular commodity or commodities” to any government agency having other functions relating to such commodities. Whatever effect that provision may have, it does not purport to deal with general enforcement functions and so restricts in no way the authority of the President under the First War Powers Act to transfer them. Yet enforcement functions are all that are involved in the present cases.
We need not decide whether under the First War Powers Act the President had authority to transfer functions of an officer who need be confirmed by the Senate to one appointed by the President without Senate confirmation. For § 2 of that Act provides:
“That in carrying out the purposes of this title the President is authorized to utilize, coordinate, or consolidate any executive or administrative commissions, bureaus, agencies, governmental corporations, offices, or officers now existing by law, to transfer any duties or powers from one existing department, commission, bureau, agency, governmental corporation, office, or officer to another, to transfer the personnel thereof or any part of it either by detail or assignment, together with the whole or any part of the records and public property belonging thereto.”
The authority to “utilize . . . offices, or officers now existing by law” is sufficient to sustain the transfer of functions under the Executive Order from Porter, resigned, to Fleming. For prior to the Act Fleming had been appointed by the President and confirmed by the Senate as Federal Works Administrator. He thus was the incumbent of an office “existing by law” at the time of the passage of the Act and by virtue of § 2 could be the lawful recipient through transfer by the President of the functions of other agencies as well. To hold that an officer, previously confirmed by the Senate, must be once more confirmed in order to exercise the powers transferred to him by the President would be quite inconsistent with the broad grant of power given the President by the First War Powers Act. Any doubts on this score would, moreover, be removed by the recognition by Congress in a recent appropriation of the status of the Temporary Controls Administrator. That recognition was an acceptance or ratification by Congress of the President’s action in Executive Order No. 9809. Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 301-302; Brooks v. Dewar, supra.
For these reasons Fleming is a successor in office of Porter and may be substituted as a party under Rule 25, Rules of Civil Procedure. The rule requires a showing of “substantial need” for continuing and maintaining the action. 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.
Second. We come then to the merits. The Administrator, by order, delegated the function of signing and issuing subpoenas to regional administrators and district directors. Section 201 (a) of the Emergency Price Control Act provides in part:
“The Administrator may, subject to the civil-service laws, appoint such employees as he deems necessary in order to carry out his functions and duties under this Act, and shall fix their compensation in accordance with the Classification Act of 1923, as amended.”
Section 201 (b) of the Act provides:
“The principal office of the Administrator shall be in the District of Columbia, but he or any duly authorized representative may exercise any or all of his powers in any place.”
Practically identical provisions were included in § 4 (b) and (c) of the Fair Labor Standards Act, 52 Stat. 1060, 1061-1062, 29 U. S. C. § 204. The Court held in Cudahy Packing Co. v. Holland, 315 U. S. 357, that the latter provisions did not authorize the Administrator under that Act, to delegate his power to sign and issue subpoenas. Accordingly the main controversy here is whether the Cudahy decision controls this case. We do not think it does.
The legislative history of the Act involved in the Cudahy case showed that a provision granting authority to delegate the subpoena power had been eliminated when the bill was in Conference. On the other hand, the Senate Committee in reporting the bill that became the Emergency Price Control Act described § 201 (a) as authorizing the Administrator to “perform his duties through such employees or agencies by delegating to them any of the powers given to him by the bill.” And it said that § 201 (b) authorized him or “any representative or other agency to whom he may delegate any or all of his powers, to exercise such powers in any place.” S. Rep. No. 931, 77th Cong., 2d Sess., pp. 20-21. In the Cudahy case the Act made expressly delegable the power to gather data and make investigations, thus lending support to the view that when Congress desired to give authority to delegate, it said so explicitly. In the present Act, there is no provision which specifically authorizes delegation as to a particular function. In the Cudahy case, the Act made applicable to the powers and duties of the Administrator the subpoena provisions of the Federal Trade Commission Act, §§ 9 and 10, 38 Stat. 722, 723, 15 U. S. C. §§ 49 and 50, which only authorized either the Commission or its individual members to sign subpoenas. The subpoena power under the present Act is found in § 202 (b) and is not dependent on the provisions of another Act having a history of its own. The Act involved in the Cudahy case granted no broad rule-making power. Section 201 (d) of the present Act, however, provides:
“The Administrator may, from time to time, issue such regulations and orders as he may deem necessary or proper in order to carry out the purposes and provisions of this Act.”
Such a rule-making power may itself be an adequate source of authority to delegate a particular function, unless by express provision of the Act or by implication it has been withheld. See Plapao Laboratories v. Farley, 67 App. D. C. 304, 92 F. 2d 228. There is no provision in the present Act negativing the existence of such authority, so far as the subpoena power is concerned. Nor can the absence of such authority be fairly inferred from the history and content of the Act. Thus the presence of the rule-making power, together with the other factors differentiating this case from the Cudahy case, indicates that the authority granted by § 201 (a) and (b) should not be read restrictively.
As stated by the court in Porter v. Murray, 156 F. 2d 781, 786-787, the overwhelming nature of the price control program entrusted to the Administrator suggests that the Act should be construed so as to give it the administrative flexibility necessary for prompt and expeditious action on a multitude of fronts. The program of price control inaugurated probably the most comprehensive legal controls over the economy ever attempted. We would hesitate to conclude that all the various functions granted the Administrator need be performed personally by him or under his personal direction. Certainly, so far as the investigative functions were concerned, he could hardly be expected, in view of the magnitude of the task, to exercise his personal discretion in determining whether a particular investigation should be launched. Delay might do injury beyond repair. The pyramiding in Washington of all decisions on law enforcement would be apt to end in paralysis. To tempt the Administrator to solve the problem by supplying all his offices with subpoenas signed in blank would not further the development of orderly and responsible administration. These considerations reinforce the construction of the Act which allows the Administrator authority to delegate his subpoena power.
The other objections to the subpoenas are without merit.
We reverse the judgment in Fleming v. Mohawk Wrecking & Lumber Co., and affirm the judgment in Raley v. Fleming.
So ordered.
Compare Porter v. American Distilling Co., 71 F. Supp. 483; Porter v. Bowers, 70 F. Supp. 751, and Bowles v. Ell-Carr Co., Inc., 71 F. Supp. 482, with Porter v. Wilson, 69 F. Supp. 447, and Porter v. Hirahara, 69 F. Supp. 441.
60 Stat. 664. Section 1 (b) now provides:
“The provisions of this Act, and all regulations, orders, price schedules, and requirements thereunder, shall terminate on June 30, 1947, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the further continuance of the authority granted by this Act is not necessary in the interest of the national defense and security, whichever date is the earlier; except that as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.”
Express provisions for decontrol were added by the 1946 amendments. See, for example, § la (b)-(h).
See Supplementary Order 193, November 12, 1946, 11 Fed. Reg. 13464, as amended November 19, 1946, 11 Fed. Reg. 13637.
Exec. Order No. 9809,11 Fed. Reg. 14281.
See Reorganization Plan I, 5 U. S. C. § 133t (note); 4 Fed. Reg. 3864; 6 Fed. Reg. 192.
Proclamation 2714,12 Fed. Reg. 1.
Each of the following agencies was a new agency created by Executive Order to exercise powers formerly vested in other agencies or to perform new functions: National Housing Agency, Exec. Order No. 9070, 7 Fed. Reg. 1529; War Food Administration, Exec. Order No. 9334, 8 Fed. Reg. 5423; Office of War Mobilization, Exec. Order No. 9347, 8 Fed. Reg. 7207; Office of Economic Warfare, Exec. Order No. 9361, 8 Fed. Reg. 9861; Foreign Economic Administration, Exec. Order No. 9380, 8 Fed. Reg. 13081; Surplus War Property Administration, Exec. Order No. 9425, 9 Fed. Reg. 2071.
December 4,1941. See 87 Cong. Rec. 9413.
61 Stat. 14, 16, under the heading “Executive Office of the President, Office for Emergency Management,” the following:
“Office of Temporary Controls
“Salaries and expenses: For an additional amount, fiscal year 1947, for the Office of Price Administration transferred by Executive Order 9809 of December 12, 1946, to the Office of Temporary Controls, $7,051,752, to be available for the payment of terminal leave only: Provided, That it is the intent of the Congress that the funds heretofore and herein appropriated shall include all expenses incident to the closing and liquidation of the Office of Price Administration and the Office of Temporary Controls by June 30,1947.”
See § 1 (b) supra, note 2. And for the general statute preventing the extinguishment of liability under a repealed statute, unless the repealing act expressly provides for it, see Rev. Stat. § 13, as amended, 58 Stat. 118,1 U. S. C. Supp. V, § 29.
Revised General Order 53, May 13, 1944, 9 Fed. Reg. 5191.
Section 202 (b) provides in part:
“The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.”
The following statistics indicate the volume of litigation and investigations involved:
1943 1944 1945 1946
Civil Cases commenced by United States in District Courts under Emergency Price Control Act.* (Fiscal years ending June 30)... 2,219 6, 524 28,283 31,094
Investigations completed by Office of Price Administration.** (Calendar years). 652,851 333,151 193,348 106,240†
*(Rep. Dir. Adm. Off. U. S. Courts (1943) Table 7; Id. 1944 Table 7; Id. (1945) Table C3; Id. (1946) Table C3.)
**(Quarterly Rep. O. P. A.: Eighth, p. 71; Twelfth, p. 75; Seventeenth, p. 104; Eighteenth, p. 82; Nineteenth, p. 95.)
fFirst nine months only.
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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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LAURENS FEDERAL SAVINGS & LOAN ASSN. v. SOUTH CAROLINA TAX COMMISSION et al.
No. 126.
Argued March 2, 1961.
Decided March 20, 1961.
Frank K. Sloan argued the cause for petitioner. With him on the brief was Ernest L. Folk III.
James M. Windham, Assistant Attorney General of South Carolina, argued the cause for respondents. With him on the briefs were Daniel R. McLeod, Attorney General, and Wm. H. Smith, Jr., Assistant Attorney General.
Solicitor General Rankin, Assistant Attorney General Rice, I. Henry Kutz, James P. Turner, Myron C. Baum and William Massar filed briefs for the United States, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The question presented is whether the State of South Carolina has power to require a Federal Savings and Loan Association located in that State to pay documentary stamp taxes on promissory notes executed by the Association in favor of a Federal Home Loan Bank to cover loans from the Bank to the Association.
Petitioner is a Federal Savings and Loan Association organized under the Home Owners' Loan Act of 1933 and doing business in Laurens, South Carolina. It is also a member, with borrowing privileges, of the Federal Home Loan Bank of Greensboro, North Carolina, which was established under the Federal Home Loan Bank Act of 1932. For the purpose of making mortgage money available in the community which it serves, petitioner Federal Savings and Loan Association has since August 12, 1953, secured “advances,” or loans, from the Federal Home Loan Bank of Greensboro totalling $5,675,000, for which petitioner executed written promissory notes to the Bank as required by the 1932 Act. The State assessed against petitioner documentary stamp taxes on these notes of $2,270 under a state statute imposing a stamp tax on promissory notes at the rate of four cents on each $100. Petitioner paid these taxes under protest and then brought the present action in the state court for refund of the payment, claiming that the imposition of the taxes constituted an unlawful attempt by the State to tax the “advances” of the Federal Home Loan Bank of Greensboro in violation of the provision of the 1932 Act exempting such banks from state taxation. This provision states, in pertinent part: ,
“The bank, including its franchise, its capital, reserves, and surplus, its advances, and its income, shall be exempt from all taxation now or hereafter imposed by the United States ... or by any State . . . .” 12 U. S. C. § 1433. (Emphasis supplied.)
The Supreme Court of South Carolina affirmed the judgment upholding the State’s taxing power, basing its affirmance on two grounds. It was of the opinion, first, that the exemption provision of the 1932 Act, although completely exempting the loans of the Federal Home Loan Bank from state taxation, did not cover the stamp taxes on the promissory notes securing the loans because these taxes were imposed upon the borrowing Savings and Loan Association rather than upon the lending Home Loan Bank and for this reason should not be considered taxes on the Bank’s loans within the meaning of the 1932 provision. Secondly, the state court held that regardless of the original scope of the 1932 exemption, that exemption was implicitly repealed as to transactions like this one by the taxation provision of the Home Owners’ Loan Act of 1933. We granted certiorari in order to determine whether the State has imposed a tax forbidden by Congress.
The first question is whether the immunity granted “advances” of the Federal Home Loan Bank by the 1932 Act is broad enough to bar state stamp taxes on this loan transaction. We decided a very similar question in Pittman v. Home Owners' Loan Corp., 308 U. S. 21. There the State of Maryland imposed a stamp tax upon the recording of mortgages at the rate of 10 cents for each $100 of the principal amount of the mortgage indebtedness. The Home Owners’ Loan Corporation sought to record a mortgage upon payment of the ordinary recording fee without payment of the additional state stamp tax. The mortgage had been issued to it as security for a loan which the Corporation had made under now defunct provisions of the Home Owners’ Loan Act of 1933; Section 4 (c) of that Act provided that “[t]he Corporation, including ... its loans” shall be exempt “from all taxation . . . now or hereafter imposed . . . by any State” except for real estate taxes. We unanimously affirmed the holding of the state court that this exemption provision, practically identical in language and substance to the exemption in 12 U. S. C. § 1433, precluded application of the recording tax to mortgages securing loans from the Corporation.
The state court in the present case, although drawing no distinction between the terms “loans” and “advances,” nevertheless thought the Pittman decision inapplicable here because in that case the mortgage was presented for recording by the exempt lender itself (the Home Owners’ Loan Corporation) while here the South Carolina tax was assessed against the borrowing petitioner association rather than against the exempt lender (the Home Loan Bank). We distinctly said in Pittman, however, that the fact that the state taxing statute did not require payment of the tax by the lender has “no determining significance,” our reason being that “ 'whoever pays it it is a tax upon the mortgage and that is what is forbidden by the law of the United States.’ ” We went on in Pittman to recognize that the real question was whether the “critical term . . . ‘loans’ . . . should be construed as covering the entire process of lending, the debts which result therefrom and the mortgages given ... as security.” The question here is the' same as to the synonymous term “advances” and as to the promissory notes securing the advances, since the language of the exemption is equally broad. The factors given weight in the Pittman opinion in deciding that the exemption covered the entire loan transaction are also present here. The Act under consideration there required that the loans “be secured by a duly recorded home mortgage” just as here the Act requires the advances to be secured by the note or obligation of the borrower. Here, as we said in Pittman, therefore, the documents sought to be taxed “were indispensable elements in the lending operations authorized by Congress” and were required for the protection of the lending institution. The tax in Pittman was “graded according to the amount of the loan” and here too the face value of the notes is the measure of the tax.
While the question of the breadth of the exemption of “advances” in the 1932 Act thus is persuasively answered by our reasoning in Pittman, the same conclusion is called for by the language and legislative history of that Act as a whole. It set up a system of federally chartered Home Loan Banks for the purpose, as stated in the House and Senate Committee Reports, of placing “long-term funds in the hands of local institutions” in order to alleviate the pressing need of home owners for “low-cost, long-term, installment mortgage money” and to “decrease costs of mortgage money” with a “resulting benefit to home ownership in the form of lower costs and more liberal loans.” It is to this end that the Act authorizes the Federal Home Loan Banks to make “advances” of funds to eligible borrower institutions “upon the note or obligation” of the borrower secured primarily by mortgages on homes. The exemption of these “advances” from taxation obviously is in keeping with the Act’s overall policy of making these mortgage funds available at low cost to home owners. Regardless of who pays the documentary stamp taxes here at issue, the necessary effect of the taxes is to increase the cost of obtaining the advances of funds from the Home Loan Bank to be used in making loans to home owners. In its impact, therefore, this tax, whether nominally imposed on the Bank or on the petitioner, is bound to increase the cost of loans to home owners and thus contravene the basic purpose of Congress in insulating these advances from state taxation. We hold that it was error to construe the exemption provision of the 1932 Act as not broad enough to bar imposition of the State’s stamp taxes on the notes which were an integral part of these loan transactions.
This leaves for consideration the state court’s holding that, in instances where the borrower is a Federal Savings and Loan Association such as petitioner, the exemption conferred upon the entire loan transaction by the 1932 Act was impliedly repealed by the taxation provision in the Home Owners’ Loan Act of 1933. The court based this holding upon the following language of the 1933 Act :
“. . . [N]o State ... or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift, and home financing institutions.” 12 U. S. C. § 1464 (h).
This provision unequivocally bars discriminatory state taxation of the Federal Savings and Loan Associations. The state court held that this prohibition of discriminatory taxes also impliedly authorizes all nondiscriminatory state taxes imposed on these Federal Associations, thereby to that extent repealing the 1932 exemption. We agree with petitioner, however, that in enacting § 1464 (h) in 1933 Congress did not, either expressly or impliedly, repeal the provision of the 1932 Act which had exempted these loan transactions from state taxation. Clearly there is no express language providing for such repeal, and it is signficant that when other provisions of the 1932 Act were to be superseded by the 1933 Act they were repealed expressly and not by implication. It also would be difficult to think of less apt circumstances for the finding of an implied repeal. These two Acts, both designed to provide home owners with easy credit at low cost, were passed within a year of each other on the basis of the same hearings and when read together form a consistent scheme in which the 1932 exemption provision contributes to the major purpose of low-cost credit precisely as it did before passage of the 1933 Act. Nor is there even an intimation in the legislative history of the 1933 Act of any intention to reduce the scope of the exempt status of Home Loan Banks. Indeed, the only comment that would seem to have any bearing on the matter is the statement in the House and Senate Committee Reports that the 1933 Act was to provide new means of “direct relief to home owners” without “otherwise disturb [ing] the functioning of the Federal home-loan bank system.” Moreover, a construction of the 1933 Act to permit state taxation of these loan transactions when the borrower is a Federal Savings and Loan Association would bring about an incongruous result. The States would still be barred by the exemption provision of the 1932 Act from taxing these transactions when, the borrower is a state-chartered association. To contend that the 1933 Act allows the State to tax Federal Associations on the loan transactions when it is barred by the 1932 Act from similarly taxing state-chartered associations is to urge the very kind of discriminatory taxation which the 1933 Act itself emphatically prohibits. And surely it would be completely unwarranted to construe the 1933 Act, which concerns only Federal Savings and Loan Associations, as eliminating the exemption on Home Loan Bank “advances” when the borrower is a state-chartered institution.
For all these reasons, the more sensible as well as the more natural conclusion is that in the 1933 Act Congress left unimpaired the exemption of these loan transactions from state taxation conferred by the 1932 Act. The judgment of the state court therefore is reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
48 Stat. 128, 12 U. S. C/ §§ 1461-1468.
47 Stat. 725, 12 U. S. C. §§ 1421-1449.
Code of Laws of South Carolina, §65-688 (1952).
Such suits are authorized by Code of Laws of South Carolina, § 65-2662 (1952).
236 S. C. 2, 112 S. E. 2d 716.
364 U. S. 812.
308 U. S., at 31, citing Federal Land Bank v. Crosland, 261 U. S. 374, 378-379.
308 U. S., at 31.
The fact that the term used throughout the 1932 Act with reference to these transactions is “advances” rather than “loans” is not a significant distinction from Pittman bht merely represents a congressional choice between synonyms, as was indicated by Senator Reed in introducing on the Senate floor the amendment which added the word “advances” to the exemption provision:
“MR. REED. We should not, of course, put the loans of this new bank in the position of being taxable in the several States.” 75 Cong. Ree. 14659. (Emphasis supplied.)
308 U. S., at 32.
308 U. S., at 31.
H. R. Hep. No. 1418, 72d Cong., 1st Sess., pp. 8-10; S. Rep. No. 837, 72d Cong., 1st Sess., pp. 9-11.
12 U. S. C. §§ 1429-1430b.
See 48 Stat. 129; H. R. Rep. No. 55, 73d Cong., 1st Sess., p. 1; S. Rep. No. 91, 73d Cong., 1st Sess., p. 1.
H. R. Rep. No. 55, 73d Cong., 1st Sess., p. 1; see S. Rep. No. 91, 73d Cong., 1st Sess., p. 1.
The 1932 exemption of Home Loan Bank “advances” obviously does not in any way depend upon the fact that the borrower is a Federal Savings and Loan Association, as is made all the more evident by the fact that such Federal Associations did not come into existence until passage of the 1933 Act.
|
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
] |
U. S. INDUSTRIES/FEDERAL SHEET METAL, INC., et al., v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, et al.
No. 80-518.
Argued October 6, 1981
Decided March 23, 1982
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 617. O’Connor, J., took no part in the consideration or decision of the case.
Richard W. Galiher, Jr., argued the cause for petitioners. With him on the briefs were Richard W. Galiher, William H. Clarke, and Frank J. Martell.
James F. Green argued the cause for respondents. With him on the brief for respondent Riley were Karl N. Marshall, Martin E. Gerel, James A. Mannino, Mark L. Schaffer, and Wayne M. Mamulla
John C. Duncan III filed a brief for the American Insurance Association as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
In the early morning of November 20, 1975, respondent Ralph Riley awoke with severe pains in his neck, shoulders, and arms, which later were attributed by physicians to an exacerbation of an arthritic condition. The United States Court of Appeals for the District of Columbia Circuit held that this “injury” was sufficient to invoke the “statutory presumption of compensability,” § 20(a) of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. (part 2) 1436, 33 U. S. C. § 920(a), and vacated the administrative denial of disability benefits. We granted certiorari, 450 U. S. 979, and we now reverse.
Contending that he was permanently and totally disabled by the arthritic condition, Riley’s retained counsel filed with the Deputy Commissioner a claim for compensation under the Act. See 33 U. S. C. § 913. On standard form LS-203, in response to the direction to “[djescribe in full how the accident occurred,” Riley wrote that on November 19, 1975, he was “[ljifting duct work with co-worker, weighing approximately 500 pounds, felt sharp pain in neck and sat down.” App. 111.
An evidentiary hearing was convened before an Administrative Law Judge. After construing the evidence in a light most favorable to Riley and resolving all doubts in his favor, the Administrative Law Judge found “that Claimant sustained no injury within the meaning of Sec. 2(2) of the Act on November 19, 1975, as alleged, and that Claimant and Sutherland [Riley’s co-workerj gave false testimony as to the happening of the accident.” App. to Pet. for Cert. 24A.
A divided panel of the Benefits Review Board affirmed the denial of disability benefits, holding that the Administrative Law Judge’s findings were supported by substantial evidence. In dissent, Member Miller stated:
“The Act does not require that claimant prove an accident in order to establish a claim. To the contrary, compensation is payable under the Act if claimant is disabled because of injury which is causally related to his employment. 33 U. S. C. §§902(10), 902(2).” 9 BRBS 936, 940 (1979) (emphasis in origina:!).
Member Miller defined an injury as “something go[ne] wrong within the human frame.” Ibid. Riley suffered such an injury when he awoke on November 20 with severe pain. Therefore, Member Miller would have remanded the case for a determination of “the real issue in this case,” which “is not whether claimant sustained an accident at work but whether claimant’s injury is causally related to his employment.” Ibid. That determination was to be made in light of the § 20(a) presumption, which “places the burden on employer to prove by substantial evidence that claimant’s injury did not arise out of or in the course of employment.” Ibid.
On Riley’s petition for review, the Court of Appeals vacated the decision of the Benefits Review Board, agreeing with Member Miller’s position. Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U. S. App. D. C. 402, 627 F. 2d 455 (1980). The court stated that “it can hardly be disputed that petitioner suffered an ‘injury^ when he awakened in pain on November 20, 1975.” Id., at 405, 627 F. 2d, at 458. The court then turned its “attention to the statutory presumption and the range of situations to which this Court has applied it.” Ibid. It construed its earlier cases as holding “that an injury need not have occurred during working hours” and “need not be traceable to any particular work-related incident to be compensable.” Id., at 405-406, 627 F. 2d, at 458-459.
“The foregoing cases make clear the pervasive scope of the statutory presumption of compensability. Indeed, no decision of this Court has ever failed to apply the presumption to any facet of any claim before it. We now hold expressly that where a claimant has been injured, the Act requires that, in the absence of substantial evidence to the contrary, a claimant be given the benefit of a rebuttable presumption that the injury arose out of and in the course of the claimant’s employment.” Id., at 406, 627 F. 2d, at 459.
The question for remand was not whether Riley’s “injury” stemmed from a “work-related incident,” but whether it was “ ‘employment-bred. ’ ” Ibid.
The Court of Appeals erred because it overlooked (1) the statutory language that relates the § 20(a) presumption to the employee’s claim, and (2) the statutory definition of the term “injury.”
I
The Court of Appeals’ first error was its invocation of the § 20(a) presumption in support of a claim that was not made by Riley. Riley claimed that he suffered an injury at work on November 19 when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found as a matter of fact that the accident had not occurred; this finding is no longer challenged. The Court of Appeals’ theory of recovery was that Riley suffered an injury at home in bed on November 20 and that Riley was entitled to .a presumption that this injury was “employment-bred.”
Section 20(a), 44 Stat. (part 2) 1436, provides that “[i]n any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this Act.” The coverage of the presumption is debatable, but one thing is clear: the presumption applies to the claim. Even if a claimant has an unfettered right to amend his claim to conform to the proof, the presumption by its terms cannot apply to a claim that has never been made.
Section 13 of the Act, 33 U. S. C. § 913, provides that a claimant must timely file a claim with the Deputy Commissioner. The content of the claim is not specified in that section. But § 12(b), 33 U. S. C. § 912(b), requires that the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further that “[s]uch notice . . . shall contain ... a statement of the time, place, nature, and cause of the injury.” The claim, like the notice required by § 12 and like the pleadings required in any type of litigation, serves the purposes of notifying the adverse party of the allegations and of confining the issues to be tried and adjudicated.
In Riley’s claim, he alleged that he suffered an accidental injury in the course of his employment on November 19. No claim has ever been made that the “injury” occurred at home and that it was somehow “employment-bred.” Even if such a vague claim stated a prima facie case of compensability, the statutory presumption does not require the administrative law judge to address and the employer to rebut every conceivable theory of recovery. At least when the claimant is represented by counsel, as Riley was, there is no reason to depart from the specific statutory direction that a claim be made and that the presumption, however construed, attach to the claim.
II
The Court of Appeals’ second error was its incorrect use of the term “injury.” The court stated that Riley’s attack of pain in the early morning of November 20 was an “injury” compensable under the Act if the employer did not disprove by substantial evidence that the “injury” was “employment-bred.” The fact that “‘something unexpectedly goes wrong with the human frame,’” 200 U. S. App. D. C., at 405, 627 F. 2d, at 458 (quoting Wheatley v. Adler, 132 U. S. App. D. C. 177, 183, 407 F. 2d 307, 313 (1968)), however, does not establish an “injury” within the meaning of the Act. The mere existence of a physical impairment is plainly insufficient to shift the burden of proof to the employer.
Section 3(a) provides that “[c]ompensation shall be payable under this Act in respect of disability... of an employee, but only if the disability . . . results from an injury.” 44 Stat. (part 2) 1426, as amended, 33 U. S. C. § 903(a). Injury is defined as an “accidental injury . . . arising out of and in the course of employment.” 33 U. S. C. §902(2). Arising “out of” and “in the course of” employment are separate elements: the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury. Not only must the injury have been caused by the employment, it also must have arisen during the employment.
A prima facie “claim for compensation,” to which the statutory presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment. The “injury” noticed by the Court of Appeals, however, arose in bed, not in the course of employment. Even if the Court of Appeals simply mislabeled the early morning attack of pain as the “injury” itself rather than as a manifestation of an earlier injury, the claim envisioned by the Court of Appeals did not allege any facts that would establish that Riley suffered an injury that arose in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case.
Ill
Riley’s claim stated a prima facie case of compensability; if the Administrative Law Judge had believed Riley’s allegations, he would have found that Riley’s attack of pain in the early morning of November 20 was caused by an injury suffered when Riley was lifting duct work on the job on November 19. The judge, however, disbelieved Riley’s allegations and marshaled substantial evidence to support his findings. The statutory presumption did not require him to adjudicate any claim that was not made, and the Court of Appeals erred in remanding for that purpose. Nor could the statutory presumption have aided Riley had he made the claim envisioned by the Court of Appeals — that he suffered an “injury” at home — for such a claim omits the requirement that a compen-sable injury arise in the course of employment.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice O’Connor took no part in the consideration or decision of this case.
“Injury” and “statutory presumption of compensability” are terms employed by the Court of Appeals. See Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U. S. App. D. C. 402, 627 F. 2d 455 (1980). As we explain below, the use of the term “injury” to describe Riley’s early morning attack of pain is incorrect. We do not decide the scope of the § 20(a) presumption, or, a fortiori, the appropriateness of the Court of Appeals’ characterization of it.
Apparently, it is undisputed that Riley is permanently and totally disabled. Brief for Respondent Riley 5, n.
The form continues with a further instruction:
“Relate the events which resulted in the injury or occupational disease. Tell what the injured was doing at the time of the accident. Tell what happened and how it happened. Name any objects or substances involved and tell how they were involved. Give full details on all factors which led or contributed to the accident. If more space is needed, continue on reverse.” App. 111.
The cases cited by the Court of Appeals do not support this proposition. In Butler v. District Parking Management Co., 124 U. S. App. D. C. 195, 363 F. 2d 682 (1966), the claimant became ill at work and the illness was diagnosed as a schizophrenic reaction. In Wheatley v. Adler, 132 U. S. App. D. C. 177, 407 F. 2d 307 (1968), the employee collapsed from a heart attack at work. In Mitchell v. Woodworth, 146 U. S. App. D. C. 21, 449 F. 2d 1097 (1971), the employee died of a cerebral vascular accident shortly after collapsing at work.
We need not resolve that debate in this case. It seems fair to assume, however, that the § 20(a) presumption is of the same nature as the presumption created by § 20(d) of the Act, 33 U. S. C. § 920(d), as construed in Del Vecchio v. Bowers, 296 U. S. 280, 285-287, and the presumption defined in Rule 301 of the Federal Rules of Evidence. See also Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248.
“This statement must be more than a mere declaration that the employee has received an injury or is suffering from an illness that is related to his employment; it must contain enough details about the nature and extent of the injury or disease to allow the employer to conduct a prompt and complete investigation of the claim so that no prejudice will ensue.” 1A E. Jhirad, A. Sann, N. Golden, & B. Chase, Benedict on Admiralty § 71, p. 4-5 (7th ed. 1981).
See generally F. James & G. Hazard, Civil Procedure §2.1 (2d ed. 1977). Of course, the workmen’s compensation process is much more simplified than modem civil litigation. Indeed, this is one of the hallmarks of the system:
“The adjective law of workmen’s compensation, like the substantive, takes its tone from the beneficent and remedial character of the legislation. Procedure is generally summary and informal. . . . The whole idea is to get away from the cumbersome procedures and technicalities of pleading, and to reach a right decision by the shortest and quickest possible route. ... On the other hand, as every lawyer knows, there is a point beyond which the sweeping-aside of ‘technicalities' cannot go, since evidentiary and procedural rules usually have an irreducible hard core of necessary function that cannot be dispensed with in any orderly investigation of the merits of a case.” 3 A. Larson, The Law of Workmen’s Compensation §78.10, p. 15-2(1976).
Professor Larson writes that an informal substitute for a claim may be acceptable if it “identif[ies] the claimant, indicate[s] that a compensable injury has occurred, and convey[s] the idea that compensation is expected,” id., § 78.11, p. 15-9; that “considerable liberality is usually shown in allowing amendment of pleadings to correct. . . defects,” unless the “effect is one of undue surprise or prejudice to the opposing party,” id., at 15-11; and that “wide latitude is allowed” as to variance between pleading and proof, “[b]ut if the variance is so great that the defendant is prejudiced by having to deal at the hearing with an injury entirely different from the one pleaded, the variance may be held fatal,” id., at 15 — 13—15-14. Riley had the benefit of these liberal pleading rules; nonetheless, the Court of Appeals applied the statutory presumption to a claim that was not fairly supported by the existing claim or by the evidentiary record. As Professor Larson warns, “[n]o amount of informality can alter the elementary requirement that the claimant allege and prove the substance of all essential elements in his case.” Id., at 15-12.
“If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation within the provisions of this chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney’s fee against the employer or carrier in an amount approved by the deputy commissioner, Board, or court, as the case may be. which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.” 33 U. S. C. § 928(a).
See, e. g., Ward & Gow v. Krinsky, 259 U. S. 503; Thom v. Sinclair, [1917] A. C. 127; 1A Benedict on Admiralty, supra, §43; 1 A. Larson, supra, § 6.10, at 3-2 — 3-3 (1978).
The Act was enacted to create a federal workmen’s compensation statute for maritime employments after this Court held that state workmen’s compensation statutes constitutionally could not apply to injured maritime workers. See generally Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128. Workmen’s compensation legislation has never been intended to provide life or disability insurance for covered employees. The required connection between the death or disability and employment distinguishes the workmen’s compensation program from such an insurance program, and the separate requirements that the injury arise out of and in the course of employment are the means for assuring, to the extent possible, that the work connection is proved. See W. Dodd, Administration of Workmen’s Compensation 681 (1936); see generally Cudahy Packing Co. v. Parramore, 263 U. S. 418, 422-424.
|
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"
] |
[
10
] |
ALMA MOTOR CO. v. TIMKEN-DETROIT AXLE CO. et al.
No. 11.
Argued April 25,26,1945. Reargued October 24,25,1946.—
Decided December 9, 1946.
7. Joseph Farley argued the cause and filed a brief for petitioner on the original argument. Thomas J. Hughes and John G. Buchanan argued the cause for petitioner on the reargument. Messrs. Hughes and Farley filed a brief on the reargument.
Assistant Attorney General Shea argued the cause for the United States, respondent, on the original argument. With him on the brief were Solicitor General Fahy, David L. Kreeger and J eróme H. Simonds. Assistant Attorney General Sonnett argued the cause for the United States, respondent, on the reargument. With him on the brief were Solicitor General McGrath, Arnold Baum, Paul A. Sweeney and Joseph B. Goldman.
William A. Stranch argued the cause for the Timken-Detroit Axle Co., respondent. With him on the briefs was J. Matthews Neale. James A. Hoffman was also on the brief on the original argument.
James D. Carpenter, Jr. and John G. Buchanan filed a brief on the original argument for Roscoe A. Coffman, as amicus curiae, urging reversal. William H. Webb and John G. Buchanan, Jr. were also with them on the brief on the reargument.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
Certiorari was granted in this case February 5, 1945, on a petition addressed to the question of the constitutionality of the Royalty Adjustment Act of October 31, 1942, and of Royalty Adjustment Order No. W-3, issued by the War Department July 28, 1943. We find now, however, that the Circuit Court of Appeals had before it, not only the constitutional question, which was decided, but also a non-constitutional question, which alone might properly have served as an adequate ground on which to dispose of the appeal. This non-constitutional question was neither considered nor decided by the court below, nor argued here. We have concluded, therefore, that we should not pass on the constitutional question at this time, but should vacate the judgment of the Circuit Court of Appeals, and remand the case to it for decision of any non-constitutional issues material to the appeal.
To explain the reasons for this conclusion, we must state the history of the present proceedings in some detail.
They were begun by a complaint in a District Court filed by respondent, The Timken-Detroit Axle Company, against petitioner, Alma Motor Company, asking a declaratory judgment as to their respective rights under a patent held by Alma and a coextensive license from Alma to Timken. The complaint alleged the existence of the patent, purporting to cover certain “transfer cases” or auxiliary automotive transmissions, and the license, by which Timken was authorized to manufacture the patented articles and required to pay certain specified royalties. It further alleged that Timken was engaged in manufacturing various designs of transfer cases, that some of these were once believed to have been covered by Alma’s patent and had been made the subject of royalty payments, but on the basis of later information Timken had concluded that none of them were covered, and that the patent was invalid. It asked for a judgment confirming this conclusion.
Alma answered, claiming that all Timken’s transfer cases were covered, that the patent was valid, and that Timken was estopped from challenging validity, and counterclaimed for a money judgment for unpaid royalties.
Following a trial, the District Court filed findings and an opinion, and entered judgment December 2,1942. It held Timken estopped from challenging the validity of Alma’s patent; that certain specified types of Timken’s transfer cases (generally those denominated T-32 and T-43) were covered by the patent and license; that Timken was indebted to Alma for royalties thereon; and that other types (generally those denominated T-79) were outside the patent and license. The court indicated that unless the parties could agree on the amount of the royalties so held to be payable, a special master would be appointed to determine the amount.
Shortly before this judgment was entered, Congress enacted the Royalty Adjustment Act, which Alma seeks to attack here. The primary purpose of this Act was to reduce royalties for which the United States was ultimately liable on inventions manufactured for it by a licensee, from pre-war rates to rates appropriate to the volume of production in wartime. Whenever during the war a government contractor manufactured under a license, and the royalties seemed excessive to the head of the department concerned, the latter was empowered to stop piayments by notice to the licensor and licensee, and after a hearing, to fix by order “fair and just” royalties, “taking into account the conditions of wartime production.” Thereafter, the licensor could collect royalties from the licensee only at the rate so determined. If the licensor felt that the reduction was unfair, his remedy was by suit against the United States in the Court of Claims, where he could recover “fair and just compensation . . . taking into account the conditions of wartime production.” Whatever reduction was effected by the order was to inure to the benefit of the United States.
The notice, stopping payment of royalties from Timken to Alma, was issued by the War Department December 30, 1942. Royalty Adjustment Order No. W-3 followed on July 28,1943, fixing a “fair and just” royalty at zero. The basis of this determination was the alleged invalidity of Alma’s patent, which the United States claims that the Act permits it to assert.
In the meantime, Alma had taken an appeal from Paragraph o of the judgment of the District Court, which held that the T-79 transfer cases were outside the patent. Tim-ken did not appeal. After the Order was promulgated, Timken moved to dismiss the appeal and remand to the District Court with directions to vacate its judgment. The motion was predicated on an affidavit that Timken had manufactured transfer cases for the United States alone, together with the argument that the operation of the Act and Order transferred jurisdiction of the subject matter of the entire case to the Court of Claims. Alma countered with an attack on the constitutionality of the Act and Order, primarily as working a deprivation of property in contravention of the Fifth Amendment.
The United States had at this time already submitted an amicus brief, in which it argued that the Order had made the appeal moot; and when Alma’s constitutional attack was filed, the United States intervened in support of the Act and Order.
In its opinion the Circuit Court of Appeals considered that the question of the applicability of the Act and Order in this case was simply a question of their constitutional validity. It proceeded to consider this latter question, and decided that both the Act and the Order were entirely valid. Accordingly, it entered the following order:
“. . . it is now here ordered and adjudged by this Court that paragraph 5 of the judgment of the said District Court in this case be, and the same is hereby vacated and the cause is remanded to the District Court with directions to proceed no further therein unless and until it shall appear to the Court that a justiciable controversy again exists between the parties arising out of the facts set forth in the complaint, except that the Court may, if it deems such action to be appropriate, vacate all or any part of the remainder of the judgment and dismiss the complaint as moot.”
The War Department notice was issued after the District Court’s judgment, but before appeal was filed in the Circuit Court of Appeals. It appears that at no time did any party urge on the Circuit Court of Appeals or did that court pass on the question whether the T-79 transfer cases were covered by Alma’s patent and license. Indeed, it was not until after we had granted certiorari and heard argument at the October 1944 term on the constitutional question, and set the case down for further argument this term, that the United States pointed to this omission, and suggested that the Circuit Court of Appeals should have avoided the question of constitutionality by first considering the question of coverage. It argued here that the prior determination of any non-constitutional questions which might dispose of a controversy is a practice which is dictated by sound principles of judicial administration. It moved to vacate the judgment of the Circuit Court of Appeals, and to remand the case to it for such determination. Both Alma and Timken opposed the motion. Action was withheld pending argument on the motion and the case itself.
This Court has said repeatedly that it ought not pass on the constitutionality of an act of Congress unless such adjudication is unavoidable. This is true even though the question is properly presented by the record. If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided. This same rule should guide the lower courts as well as this one. We believe that the structure of the problems before the Circuit Court of Appeals required the application of the rule to this case.
At the outset that court was confronted with the merits of the appeal, which involved simply the coverage by the patent and license of the T-79 transfer cases. Later, however, it was confronted also with a problem of jurisdictional nature. This involved the effect wrought by the Act and Order on its power to proceed to an adjudication on the merits. If for any reason, the Act and Order had no applicability in the case, the court should proceed to the merits. If, however, they were controlling, Alma was relegated to its statutory remedy against the United States, and the court would be required to dismiss the appeal, and to vacate Paragraph 5 of the judgment in the District Court.
In the determination of this jurisdictional problem, we are of the opinion that the Circuit Court of Appeals erred. It assumed that this problem involved only the question of the constitutionality of the Act and Order. But the Act and Order, whether or not constitutional, do not control the disposition of this case unless they were intended to apply to it. The question of their applicability is a non-constitutional question, the decision of which might have made unnecessary any consideration of constitutionality.
Were the Act and Order intended to apply? Their terms seem to make that depend upon whether the subject-matter of the appeal — the T-79 transfer cases — were covered by the patent and license. The Act provides that it is only “whenever an invention . . . shall be manufactured . . . for the United States, with license from the owner thereof . . .” and the department head believes the stipulated royalties to be unreasonable, that the latter shall give “written notice of such fact to the licensor and to the licensee.” It is only after such notice that the department head may fix “fair and just” royalties, and only “such licensee” who is forbidden to pay additional amounts as royalties, and only “such licensor” who is relegated to the Court of Claims. Conversely, if the putative invention is manufactured without license, or if the putative patentee is not actually the owner, these powers and disabilities do not arise. Even Order No. W-3 does not refer to T-79 transfer cases as such. It forbids the payment of royalties only on transfer cases “under” this license, or any license pursuant to this patent, “which embody . . . the . . . alleged inventions.” Again, if the T-79s are not “under” the Alma-Timken license, or if they do not “embody” Alma’s patented claim, then the Order expressly leaves Alma’s and Timken’s rights and remedies unaffected.
Consequently, coverage of the T-79s, as well as constitutionality of the Act and Order, was a crucial issue in deciding the jurisdiction of the Circuit Court of Appeals. If they are covered, the Act and Order apply, and it was then necessary to decide constitutionality in order to determine whether the court could proceed to a judgment on the merits. If the T-79s are not covered, the Act and Order manifestly do not apply, and the court could proceed to a judgment on the merits, whether the Act and Order are constitutional or not. In that event, of course, no constitutional question would be decided.
The Circuit Court of Appeals may have thought that the applicability of the Act and Order turn not on actual coverage, but on a claim of coverage, and hence that applicability was undisputed and only constitutionality was pertinent to jurisdiction in this case. Such construction is said to have some support in cases like Smithers v. Smith, 204 U. S. 632, and Bell v. Hood, 327 U. S. 678, in which bona fide claims of rights were held to satisfy jurisdictional requirements as to the amount in controversy and as to the existence of a certain federal question, regardless of whether such claims would ultimately be established.
The answer to this argument is that the statutory language which controlled the cited cases expressly refers to the claim as the test of jurisdiction, whereas, as we have shown, the instant Act refers to the objective event. Furthermore, the test in the Smithers and Bell cases, supra, is a condition precedent to the exercise of jurisdiction. Unless such exercise is made to turn on what the plaintiff rather than what the court says is at stake, the court’s jurisdictional ruling will often deny the plaintiff a forum when a full hearing might later have shown a right to relief. The test in this case, on the other hand, is a condition subsequent, in certain instances depriving the court of jurisdiction, and the same danger is not present.
Timken contends that the jurisdiction of all suits with respect to inventions manufactured for the United States in wartime is transferred to the Court of Claims, and that the coverage question is immaterial. It argues that where the Royalty Adjustment Act does not accomplish this transfer because the manufacture is not by a licensee, the Act of June 25,1910, as amended, should apply, and that it has the same effect. It is said, therefore, that the case should have been dismissed whether there was coverage or not, and that the Circuit Court of Appeals properly refrained from deciding that question.
Assuming the premise is correct, we do not reach the same conclusion. Dismissal can be ordered under the 1910 Act, if it applies, without deciding any constitutional questions, for that Act has already been before this Court and been approved. To order dismissal under the 1942 Act, however, or under one of the two Acts alternatively, requires a determination of the constitutionality of the latter. As we have already indicated, this is sufficient reason for first deciding which Act impels the transfer.
It is true that § 2 of the Royalty Adjustment Act provides that, if the licensor sues in the Court of Claims, the United States “may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement as set forth in title sixty of the Revised Statutes, or otherwise.” We deem it clear that such defenses would include questions of coverage as well as validity of a patent. But we do not think that § 2 reflects a decision by Congress that all suits involving licenses under the Act and presenting questions of coverage or validity should be tried in the Court of Claims. As respects the problem with which we are now concerned, § 2 does no more than to make available such defenses in the Court of Claims whenever the suits authorized by the Act are brought there.
Both Alma and Timken maintain that the constitutional question could not be avoided by the Circuit Court of Appeals, because the T-32 and T-43 transfer cases were covered, if the T-79s were not, and were therefore necessarily subject to the Order. Indeed, the District Court decided that they were covered, and Timken did not appeal.
This point carries its own refutation. Neither party appealed from the adjudication as to the T-32 and T-43 transfer cases. No claim as to them was before the Circuit Court of Appeals. There is no claim now that a litigant may not appeal from part of a judgment, or that an appeal from part brings up the whole. The Circuit Court of Appeals was not properly concerned with their coverage, or with the applicability to them of the Act or Order. Therefore, the part of its order affecting T-32s and T-43s was unwarranted, and should not now be made the basis for approving a constitutional decision which was otherwise unnecessary.
Alma objects strenuously to the Government “mending its hold” between the time it urged dismissal in an amicus brief in the Circuit Court of Appeals and argued constitutionality there and here, and the time it filed here its motion to vacate, and remand. The Government certainly aided and abetted the Circuit Court of Appeals in its error. But Alma is not without fault in creating the confusion. In its “Petition to Review” the Order, Alma asked the Circuit Court of Appeals to hold the Order unconstitutional. In its petition to the Circuit Court of Appeals for rehearing, it argued that the court should not have passed on constitutionality because Timken had not charged any royalties to the United States on T-79s, and the Act and Order were allegedly inapplicable. Before this Court it has returned to its original position.
We agree that much time has been wasted by the earlier failure of the parties to indicate, or the Circuit Court of Appeals or this Court to see, the course which should have been followed. This, however, is no reason to continue now on the wrong course. The principle of avoiding constitutional questions is one which was conceived out of considerations of sound judicial administration. It is a traditional policy of our courts.
The judgment is vacated and the case remanded for further proceedings in conformity with this opinion.
56 Stat. 1013, 35 U. S. C. Supp. V, §§ 89-96.
Timken-Detroit Axle Co. v. Alma Motor Co., 47 F. Supp. 582 (D. Del. 1942).
56 Stat. 1013, 35 U. S. C. Supp. V, § 89.
56 Stat. 1013, 35 U. S. C. Supp. V, § 90.
56 Stat. 1013,35 U. S. C. Supp. V, § 90.
Timken-Detroit Axle Co. v. Alma Motor Co., 144 F. 2d 714 (CCA 3,1944).
The word “again” was deleted by an order of October 2,1944.
Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 193; Light v. United States, 220 U. S. 523, 538; Spector Motor Co. v. McLaughlin, 323 U. S. 101, 105. See Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347.
35 U. S. C. Supp. V, § 89.
“The district courts shall have original jurisdiction . . . where the matter in controversy exceeds . . . the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States . . .” 28U.S. C. § 41.
Act of June 25, 1910, 36 Stat. 851, as amended by the Act of July 1,1918, 40 Stat. 705, 35 U. S. C. § 68, provides in part: “Whenever an invention described in and covered by a patent of the United States shall hereafter be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner’s remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture . .
Crozier v. Krupp, 224 U. S. 290; Richmond Screw Anchor Co. v. United States, 275 U. S. 331.
Section 2 provides in full:
“Any licensor aggrieved by any order issued pursuant to section 1 hereof, fixing and specifying the maximum rates or amounts of royalties under a license issued by him, may institute suit against the United States in the Court of Claims, or in the District Courts of the United States insofar as such courts may have concurrent jurisdiction with the Court of Claims, to recover such sum, if any, as, when added to the royalties fixed and specified in such order, shall constitute fair and just compensation to the licensor for the manufacture, use, sale, or other disposition of the licensed invention for the United States, taking into account the conditions of wartime production. In any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement as set forth in title sixty of the Revised Statutes, or otherwise.”
Rule 73 (b) of the Federal Rules of Civil Procedure provides that the “notice of appeal . . . shall designate the judgment or part thereof appealed from . . .”
Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553 (1837).
|
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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] |
[
23
] |
ANDRUS, SECRETARY OF THE INTERIOR v. SHELL OIL CO. et al.
No. 78-1815.
Argued January 15, 1980
Decided June 2, 1980
Burger, C. J., delivered the opinion of the Court, in which White, BlacKmUN, Powell, RehNQUist, and SteveNS, JJ., joined. Stewart, J., filed a dissenting opinion, in which BrenNAN and Marshall, JJ., joined, post, p. 673.
Deputy Solicitor General Wallace argued the cause for petitioner. On the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Clairborne, Mark I. Levy, Dirk D. Snel, and Robert L. Klarguist.
Fowler Hamilton argued the cause for respondents. With him on the brief were Richard W. Hulbert, Donald L. Morgan, H. Michael Spence, Ciaron C. Spencer, and Norma L. Comstock.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The general mining law of 1872, 30 U. S. C. § 22 et seq., provides that citizens may enter and explore the public domain, and search for minerals; if they discover “valuable mineral deposits,” they may obtain title to the land on which such deposits are located. In 1920 Congress altered this program with the enactment of the Mineral Leasing Act. 41 Stat. 437, as amended, 30 U. S. C. § 181 et seg. The Act withdrew oil shale and several other minerals from the general mining law and provided that thereafter these minerals would be subject to disposition only through leases. A savings clause, however, preserved “valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.”
The question presented is whether oil shale deposits located prior to the 1920 Act are “valuable mineral deposits” patentable under the savings clause of the Act.
I
The action involves two groups of oil shale claims located by claimants on public lands in Garfield County, Colo., prior to the enactment of the Mineral Leasing Act. The first group of claims, designated Mountain Boys Nos. 6 and 7, was located in 1918. In 1920, a business trust purchased the claims for $25,000, and in 1924 an application for patent was filed with the Department of the Interior. Some 20 years later, after extended investigative and adjudicatory proceedings, the patent was rejected “without prejudice” on the ground that it was not then vigorously pursued. In 1958, Frank W. Winegar acquired the claims and filed a new patent application. In 1964, Winegar conveyed his interests in the claims to respondent Shell Oil Company.
The second group of claims, known as Harold Shoup Nos. 1-4, was located in 1917. In 1923, the claims were acquired by Karl C. Schuyler who in 1933 bequeathed them to his surviving spouse. In 1960, Mrs. Schuyler incorporated respondent D. A. Shale, Inc., and transferred title to the claims to the corporation. Three months later, the corporation filed patent applications.
In 1964, the Department issued administrative complaints alleging that the Mountain Boys claims and the Shoup claims were invalid. The complaints alleged, inter alia, that oil shale was not a “valuable mineral” prior to the enactment of the 1920 Mineral Leasing Act.
The complaints were consolidated and tried to a hearing examiner who in 1970 ruled the claims valid. The hearing examiner observed that under established case law the test for determining a “valuable mineral deposit” was whether the deposit was one justifying present expenditures with a reasonable prospect of developing a profitable mine. See United States v. Coleman, 390 U. S. 599 (1968); Castle v. Womble, 19 L. D. 455 (1894) , He then reviewed the history of oil shale operations in this country and found that every attempted operation had failed to show profitable production. On the basis of this finding and other evidence showing commercial infeasibility, the hearing examiner reasoned that “[i]f this were a case of first impression,” oil shale would fail the “valuable mineral deposit” test. However, he deemed himself bound by the Department’s contrary decision in Freeman v. Summers, 52 L. D. 201 (1927). There, the Secretary had written:
“While at the present time there has been no considerable production of oil from shales, due to the fact that abundant quantities of oil have been produced more cheaply from wells, there is no possible doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people.
“It is not necessary, in order to constitute a valid discovery under the general mining laws sufficient to support an application for patent, that the mineral in its present situation can be immediately disposed of at a profit.” Id., at 206. (Emphasis added.)
The hearing examiner ruled that Freeman v. Summers compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, and he upheld the Mountain Boys and Shoup claims as valid and patentable.
The Board of Land Appeals reversed. Adopting the findings of the hearing examiner, the Board concluded that oil shale claims located prior to 1920 failed the test of value because at the time of location there did not appear “as a present fact ... a reasonable prospect of success in developing an operating mine that would yield a reasonable profit.” (Emphasis in original.) The Board recognized that this conclusion was at odds with prior departmental precedent, and particularly with Freeman v. Summers; but it rejected that precedent as inconsistent with the general mining law and therefore unsound. The Board then considered whether its newly enunciated interpretation should be given only prospective effect. It found that respondents’ reliance on prior rulings was minimal and that the Department’s responsibility as trustee of public lands required it to correct a plainly erroneous decision. Accordingly, it ruled that its new interpretation applied to the Mountain Boys and Shoup claims, and that those claims were invalid.
Respondents appealed the Board’s ruling to the United States District Court for the District of Colorado. The District Court agreed with the Board that by not requiring proof of “present marketability” the decision in Freeman v. Summers had liberalized the traditional valuable mineral test. But it found that Congress in 1931 and again in 1956 had considered the patentability of oil shale and had implicitly “ratified” that liberalized rule. Alternatively, the District Court concluded that the Department was estopped now from departing from the Freeman standard which investors had “relied upon ... for the past half-century.” Shell Oil Co. v. Kleppe, 426 F. Supp. 894, 907 (1977). On these grounds, it reversed the Board’s ruling and held that the claims at issue were valid.
The Court of Appeals for the Tenth Circuit affirmed. 591 F. 2d 597 (1979). It agreed with the District Court that the “different treatment afforded all oil shale claims as to the 'valuable mineral deposit’ element of a location became a part of the general mining laws by reason of its adoption and approval by both Houses of Congress” in the years after 1920. Id., at 604. And it held that the Department now must adhere to the Freeman rule. We granted certiorari because of the importance of the question to the management of the public lands. 444 U. S. 822 (1979). We affirm.
II
The legislative history of the 1920 Mineral Leasing Act shows that Congress did not consider “present marketability” a prerequisite to the patentability of oil shale. In the extensive hearings and debates that preceded the passage of the 1920 Act, there is no intimation that Congress contemplated such a requirement; indeed, the contrary appears. During the 1919 floor debates in the House of Representatives, an amendment was proposed which would have substituted the phrase “deposits in paying quantities” for “valuable mineral.” That amendment, however, was promptly withdrawn after Mr. Sin-ott, the House floor manager, voiced his objection to the change:
“Mr. SINOTT. That language was put in with a great deal of consideration and we would not like to change from Valuable’ to ‘paying-’ There is quite a distinction. We are in line with the decisions of the courts as to what is a discovery, and I think it would be a very dangerous matter to experiment with this language at this time.” 58 Cong. Rec. 7537 (1919) (emphasis added).
An examination of the relevant decisions at the time underscores the point. Those decisions are clear in rejecting a requirement that a miner must “demonstrate] that the vein . . . would pay all the expenses of removing, extracting, crushing, and reducing the ore, and leave a profit to the owner,” Book v. Justice Mining Co., 58 F. 106, 124 (CC Nev. 1893), and in holding that “it is enough if the vein or deposit 'has a present or prospective commercial value.’ ” Madison v. Octave Oil Co., 154 Cal. 768, 772, 99 P. 176, 178 (1908) (emphasis added). Accord, Cascaden v. Bartolis, 146 F. 739 (CA9 1906); United States v. Ohio Oil Co., 240 F. 996, 998 (Wyo. 1916); Montana Cent. R. Co. v. Migeon, 68 F. 811, 814 (CC Mont. 1895); East Tintic Consolidated Mining Co., 43 L. D. 79, 81 (1914); 2 C. Lindley, American Law Relating to Mines and Mineral Lands § 336, pp. 768-769 (3d ed. 1914). See generally Reeves, The Origin and Development of the Rules of Discovery, 8 Land & Water L. Rev. 1 (1973).
To be sure, prior to the passage of the 1920 Act, there existed considerable uncertainty as to whether oil shale was patentable. That uncertainty, however, related to whether oil shale was a “mineral” under the mining law, and not to its “value.” Similar doubts had arisen in the late 19th century in regard to petroleum. Indeed, in 1896 the Secretary of the Interior had held that petroleum claims were not subject to location under the mining laws, concluding that only lands “containing the more precious metals . . . gold, silver, cinnabar etc.” were open to entry. Union Oil Co., 23 L. D. 222, 227. The Secretary’s decision was short-lived. In 1897, Congress enacted the Oil Placer Act authorizing entry under the mining laws to public lands “containing petroleum or other mineral oils.” Ch. 216, 29 Stat. 526. This legislation put to rest any doubt about oil as a mineral. But because oil shale, strictly speaking, contained kerogen and not oil, see n. 3, supra, its status remained problematic. See Reidy, Do Unpatented Oil Shale Claims Exist?, 43 Denver L. J. 9, 12 (1966).
That this was the nature of the uncertainty surrounding the patentability of oil shale claims is evident from remarks made throughout the hearings and debates on the 1920 Act. In the 1918 hearings, Congressman Barnett, for example, explained:
“Mr. BARNETT. ... If the department should contend that shale lands come within the meaning of the term 'oil lands’ they must perforce, by the same argument, admit that they are placer lands within the meaning of the act of 1897.
“The Chairman. And patentable?
“Mr. BARNETT. And patentable under that act.”
Hearings, at 918.
The enactment of the 1920 Mineral Leasing Act put an end to these doubts. By withdrawing “oil shale ... in lands valuable for such minerals” from disposition under the general mining law, the Congress recognized — at least implicitly— that oil shale had been a locatable mineral. In effect, the 1920 Act did for oil shale what the 1897 Oil Placer Act had done for oil. And, as Congressman Barnett’s ready answer demonstrates, once it was settled that oil shale was a mineral subject to location, and once a savings clause was in place preserving pre-existing claims, it was fully expected that such claims would be patentable. The fact that oil shale then had no commercial value simply was not perceived as an obstacle to that end.
Ill
Our conclusion that Congress in enacting the 1920 Mineral Leasing Act contemplated that pre-existing oil shale claims could satisfy the discovery requirement of the mining law is confirmed by actions taken in subsequent years by the Interior Department and the Congress.
A
On May 10, 1920, less than three months after the Mineral Leasing Act became law, the Interior Department issued “Instructions” to its General Land Office authorizing that Office to begin adjudicating applications for patents for pre-1920 oil shale claims. The Instructions advised as follows:
“Oil shale having been thus recognized by the Department and by Congress as a mineral deposit and a source of petroleum . . . lands valuable on account thereof must be held to have been subject to valid location and appropriation under the placer mining laws, to the same extent and subject to the same provisions and conditions as if valuable on account of oil or gas.” 47 L. D. 548, 551 (1920) (emphasis added).
The first such patent was issued immediately thereafter. Five years later, the Department ruled that patentability was dependent upon the “character, extent, and mode of occurrence of the oil-shale deposits.” Dennis v. Utah, 51 L. D. 229, 232 (1925). Present profitability was not mentioned as a relevant, let alone a critical, consideration.
In 1927, the Department decided Freeman v. Summers, 52 L. D. 201. The case arose out of a dispute between an oil shale claimant and an applicant for a homestead patent, and involved two distinct issues: (1) whether a finding of lean surface deposits warranted the geological inference that the claim contained rich “valuable” deposits below; and (2) whether present profitability was a prerequisite to patentability. Both issues were decided in favor of the oil shale claimant: the geological inference was deemed sound and the fact that there was “no possible doubt . . . that [oil shale] constitutes an enormously valuable resource for future use by the American people” was ruled sufficient proof of “value.” Id., at 206.
For the next 33 years, Freeman was applied without deviation. It was said that its application ensured that “valid rights [would] be protected and permitted to be perfected.” Secretary of Interior Ann. Rep. 30 (1927). In all, 523 patents for 2,326 claims covering 349,088 acres were issued under the Freeman rule. This administrative practice, begun immediately upon the passage of the 1920 Act, “has peculiar weight [because] it involves a contemporaneous construction of [the] statute by the men charged with the responsibility of setting its machinery in motion," Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933). Accord, e. g., United States v. National Assn. of Securities Dealers, 422 U. S. 694, 719 (1975); Udall v. Tallman, 380 U. S. 1, 16 (1965). It provides strong support for the conclusion that Congress did not intend to impose a present marketability requirement on oil shale claims.
B
In 1930 and 1931, congressional committees revisited the 1920 Mineral Leasing Act and re-examined the patentability of oil shale claims. Congressional interest in the subject was sparked in large measure by a series of newspaper articles charging that oil shale lands had been “improvidently, erroneously, and unlawfully, if not corruptly, transferred to individuals and private corporations.” 74 Cong. Rec. 1079 (1930) (S. Res. 379). The articles were based upon accusations leveled at the Interior Department by Ralph S. Kelly, then the General Land Office Division Inspector in Denver. Kelly’s criticism centered on the Freeman v. Summers decision. Fearing another “Teapot Dome” scandal, the Senate authorized the Committee on Public Lands to “inquire into ... the alienation of oil shale lands.”
The Senate Committee held seven days of hearings focusing almost exclusively on “the so-called Freeman-Summers case.” Hearings on S. Res. 379 before the Senate Committee on Public Lands and Surveys, 71st Cong., 3d Sess., 2 (1931). At the outset of the hearings, the Committee was advised by E. C. Finney, Solicitor, Department of the Interior, that 124 oil shale patents had been issued covering 175,000 acres of land and that 63 more patent applications were pending. Finney’s statement prompted this interchange:
“Senator PITTMAN: Well, were the shales on those patented lands of commercial value?
“Mr. FINNEY: If you mean by that whether they could have been mined and disposed of at a profit at the time of the patent, or now, the answer is no.
“Senator PITTMAN: So the Government has disposed of 175,000 acres in patents on lands which in your opinion there was no valid claim to in the locator?
“Mr. FINNEY: No; that was not my opinion. I have never held in the world, that I know of, that you had to have an actual commercial discovery of any commodity that you could take out and market at a profit. On the contrary, the department has held that that is not the case. . . .” Id., at 25 (emphasis added).
Later in the hearings Senator Walsh expressed his understanding of the impact of the Freeman decision:
“Senator WALSH: [It means] . . . that the prospector having found at the surface the layer containing any quantity of mineral, that is of oil-bearing shale or kero-gen, that that would be a discovery in view of the beds down below of richer character.
“Mr. FINNEY: In this formation, yes sir; that is correct.” Id., at 138.
See also id., at 22-23, 26, 163. The Senate Committee did not produce a report. But one month after the hearings were completed, Senator Nye, the Chairman of the Committee, wrote the Secretary of the Interior that he had “ ‘conferred with Senator Walsh and beg[ged] to advise that there is no reason why your Department should not proceed to final disposition of the pending application for patents to oil shale lands in conformity with the law.’ ” App. 103. The patenting of oil shale lands under the standards enunciated in Freeman was at once resumed.
At virtually the same time, the House of Representatives commenced its own investigation into problems relating to oil shale patents. The House Committee, however, focused primarily on the question of assessment work — whether an oil shale claimant was required to perform $100 work per year or forfeit his claim — and not on discovery. But the impact of the Freeman rule was not lost on the Committee:
“Mr. SWING. In furtherance of the policy of conservation, Mr. Secretary, in view of the fact that there has not been discovered, as I understand it, any practical economical method of extracting oil from the shale in competition with oil wells . . . would it not be proper public policy to withdraw all shale lands from private acquisition, since we are compelled to recognize, perforce, economic and fiscal conditions, that no one is going to make any beneficial use of the oil shale in the immediate future, but is simply putting it in cold storage as a speculative proposition?
“Secretary WILBUR: As a matter of conservation, what you say is true, but what we have to meet here is the fact that in the leasing act there was a clause to the effect that valid existing claims were not included, and so we are dealing with claims that are thought to be valid, and the question—
“Mr. SWING (interposing). I realize that, and I understand the feeling of Congress, and I think generally the country, that in drawing the law we do not want to cut the ground from under the person who has initiated a right.” Consolidated Hearings on Applications for Patent on Oil Shale Lands before the House Committee on the Public Lands, 71st Cong., 3d Sess., 100 (1931).
Congressman Swing’s statement of the “feeling of Congress” comports with our reading of the 1920 statute and of congressional intent. To hold now that Freeman was wrongly-decided would be wholly inconsistent with that intent. Moreover, it would require us to conclude that the Congress in 1930-1931 closed its eyes to a major perversion of the mining laws. We reject any such conclusion.
C
In 1956 Congress again turned its attention to the patent-ability of oil shale. That year it amended the mining laws by eliminating the requirement that locators must obtain and convey to the United States existing homestead surface-land patents in order to qualify for a mining patent on minerals withdrawn under the 1920 Mineral Leasing Act. See Pub. L. 743, 70 Stat. 592. Where a surface owner refused to cooperate with the mining claimant and sell his estate, this requirement prevented the mining claimant from patenting his claim. See James W. Bell, 52 L. D. 197 (1927). In hearings on the amendment, it was emphasized that oil shale claimants would be principal beneficiaries of the amendment:
“Mr. ASPINALL. This [bill] does not have to do with any other minerals except the leaseable minerals to which no one can get a patent since 1920. ... As far as I know, there are only just a few cases that are involved, and most of those cases are in the oil shale lands of eastern Utah and western Colorado. That is all this bill refers to.” Hearings on H. R. 6501 before the House Committee on Interior and Insular Affairs 3-4 (1956).
See also Hearings on H. R. 6501 before the Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs 4, 13-14, 16 (1956). The Reports of both Houses also evince a clear understanding that oil shale claimants stood to gain by the amendment:
“Under the Department of the Interior decision in the case of James W. Bell . . . the owner of a valid mining claim located before February 25, 1920, on lands covered by the 1914 act, in order to obtain a patent to the minerals, is required to acquire the outstanding interest of the surface owner and thereafter to execute a deed of recon-veyance to the United States. . . . From 1946 to 1955, inclusive, 71 mining claims, including 67 oil shale claims, were issued under this procedure. The committee is informed that in a few cases mining claimants have been unable to obtain the cooperation of the owners of the surface estate and have been prevented thereby from obtaining patent to the mineral estate.” S. Rep. No. 2524, 84th Cong, 2d Sess., 2 (1956); H. R. Rep. No. 2198, 84th Cong., 2d Sess., 2 (1956) (emphasis added).
The bill was enacted into law without floor debate. Were we to hold today that oil shale is a nonvaluable mineral we would virtually nullify this 1956 action of Congress.
IV
The position of the Government in this case is not without a certain irony. Its challenge to respondents’ pre-1920 oil shale claims as a “nonvaluable” comes at a time when the value of such claims has increased sharply as the Nation searches for alternative energy sources to meet its pressing needs. If the Government were to succeed in invalidating old claims and in leasing the lands at public auction, the Treasury, no doubt, would be substantially enriched. However, the history of the 1920 Mineral Leasing Act and developments subsequent to that Act persuade us that the Government cannot achieve that end by imposing a present marketability requirement on oil shale claims. We conclude that the original position of the Department of the Interior, enunciated in the 1920 Instructions and in Freeman v. Summers, is the correct view of the Mineral Leasing Act as it applies to the patentability of those claims.
The judgment of the Court of Appeals is
Affirmed.
Discovery of a “valuable mineral” is not the Only prerequisite of pat-entability. The mining law also provides that until a patent is issued a claimant must perform $100 worth of labor or make $100 of improvements on his claim during each year and that a patent may issue only on a showing that the claimant has expended a total of $500 on the claim. 30 U. S. C. §§ 28, 29. See Hickel v. Oil Shale Corp., 400 U. S. 48 (1970). In addition, a claim “must be distinctly marked on the ground so- that its boundaries can be readily traced.” 30 U. S. C. § 28; Kendall v. San Juan Silver Mining Co., 144 U. S. 658 (1892). If the requirements of the mining law are satisfied, the land may be patented for $2.50 per acre. 30 U. S. C. § 37. There is no deadline within which a locator must file for patent, though to satisfy the discovery requirement the claimant must show the existence of “valuable mineral deposits” both at the time of location and at the time of determination. Barrows v. Hickel, 447 F. 2d 80, 82 (CA9 1971).
The savings clause is contained in § 37 of the Act, 41 Stat. 451, as amended, which, as set forth in 30 U. S. C. § 193, provides in full:
“The deposits of coal, phosphate, sodium, potassium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, including lands and deposits in Lander, Wyoming, coal entries numbered 18 to 49, inclusive, shall be subject to disposition only in the form and manner provided in this chapter, except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.”
Oil shale is a sedimentary rock containing an organic material called kerogen which, upon destructive distillation, produces a substantial amount of oil.
In Chrisman v. Miller, 197 U. S. 313 (1905), this Court approved the Department of the Interior’s “prudent-man test” under which discovery of a “valuable mineral deposit” requires proof of a deposit of such character that “a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.” Castle v. Womble, 19 L. D., at 457. Accord, Best v. Humboldt Placer Mining Co., 371 U. S. 334, 335-336 (1963); Cameron v. United States, 252 U. S. 450, 459 (1920). In United States v. Coleman, the Court approved the Department’s marketability test — whether a mineral can be “extracted, removed and marketed at a profit” — deeming it a logical complement of the prudent-man standard.
The Board observed that “[although Shell . . . expended some $18,780 in perfecting title to and preparing patent application for the Mountain Boy claims before 1964, it did not purchase [the claims] from Frank Winegar for $30,000 [until] after initiation of the contest proceedings.” And it found no evidence that D. A. Shale, Inc., or its predecessors had invested “more than a minimal amount” in the purchase of the Shoup claims in reliance on the Freeman decision.
Congress was aware that there was then no commercially feasible method for extracting oil from oil shale. The 1918 Report of the House Committee on the Public Lands, for example, had emphasized that
“no commercial quantity or any appreciable amount of shale oil has ever been produced in this country, nor any standardized process of production has yet been evolved or recommended or agreed upon in this country by the Bureau of Mines or anyone else, and it has not yet been demonstrated that the oil-shale industry can be made commercially profitable. . . .” H. R. Rep. No. 563, 65th Cong., 2d Sess., 18 (1918).
See also 58 Cong. Rec. 4271, 4279 (1919) (remarks of Sen. Smoot); Hearings on H. R. 3232 and S. 2812 before the House Committee on the Public Lands, 65th Cong., 2d Sess., 811, 890, 1257 (1918) (hereafter Hearings).
Mr. John Fry, one of the Committee witnesses who represented the oil shale interests before Congress, was candid on that point:
“Mr. TAYLOR. There is a large amount of this shale land that has been located and is now held under the placer law. But none of it has yet gone to patent.
“The Chairman. Has one acre of this land withdrawn in Colorado been patented?
“Mr. FRY. No.
“The Chairman. So you do not know what the holding of the department will be?
“Mr. FRY. We do not.” Hearings, at 912.
See also id., at 626, 873, 913, 918, 1240, 1256-1267.
This Court has observed that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U. S. 304, 313 (1960). This sound admonition has guided several of our recent decisions. See, e. g, TVA v. Hill, 437 U. S. 153, 189-193 (1978); SEC v. Sloan, 436 U. S. 103, 119-122 (1978). Yet we cannot fail to note Mr. Chief Justice Marshall’s dictum that “[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386 (1805). In consequence, while arguments predicated upon subsequent congressional actions must be weighed with extreme care, they should not be rejected out of hand as a source that a court may consider in the search for legislative intent. See, e. g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U. S. 572, 596 (1980); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969); NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275 (1974).
See, e. g., John M. Debevoise, 67 I. D. 177, 180 (1960); United States v. Strauss, 59 I. D. 129, 140-142 (1945); Location of Oil Shale Placer Claims, 52 L. D. 631 (1929); Assessment Work on Oil-Shale Claims, 52 L. D. 334 (1928); Standard Shales Products Co., 52 L. D. 522 (1928); James W. Bell, 52 L. D. 197 (1927).
At the conclusion of its hearings, the Committee recommended legislation placing a deadline on the filing of patent applications for oil shale claims and permitting an oil shale claimant to pay $100 a year to the Land Office in lieu of $100 in annual assessment work. Other aspects of the oil shale patentability — including the question of discovery — were not addressed in the proposed legislation. H. R. Rep. No. 2537, 71st Cong., 3d Sess. (1931). The proposal was not enacted by the Congress.
This history indicates only that a present marketability standard does not apply to oil shale. It does not affect our conclusion in United States v. Coleman that for other minerals the Interior Department’s profitability test is a permissible interpretation of the “valuable mineral” requirement. See n. 4, supra.
The dissent overlooks the abundant evidence that Congress since 1920 has consistently viewed oil shale as a “valuable mineral” under the general mining law. The dissent dismisses the 1931 hearings and the 1956 Act as irrelevancies: as for the 1931 hearings, the dissent states that “not a single remark by a Senator or Representative” approved the Freeman standard; as for the 1956 Act, we are informed that Congress “dealt with [a] totally unrelated problem.” Post, at 676. Neither of these observations is correct. The 1931 Senate hearings were called specifically to review the Freeman ease for fear that another “Teapot Dome” scandal was brewing. Rarely has an administrative law decision received such exhaustive congressional scrutiny. And following that scrutiny, no action was taken to disturb the settled administrative practice; rather Senator Nye advised the Interior Department to continue patenting oil shale claims. Similarly, to characterize the 1956 Act as “totally unrelated” is to blink reality. The patentability of oil shale land was an essential predicate to that legislation; if oil shale land was nonpatentable then Congress performed a useless act.
The dissent also overlooks that beginning in 1920 and continuing for four decades, the Interior Department treated oil shale as a “valuable mineral.” In paying deference to the doctrine that a “contemporaneous [administrative] construction ... is entitled to substantial weight,” post, at 676, the dissent ignores this contemporaneous administrative practice. The best evidence of the 1920 standard of patentability is the 1920 In-tenor Department practice on the matter. The suggestion of the dissent that "future events [such] as market changes” were not meaningful data under the Castle v. Womble test, post, at 678, is inaccurate. As a leading treatise has observed, “[t]he future value concept of Freeman v. Summers is nothing more than the 'reasonable prospect of success’ of Castle v. Womble, and the reference to ‘present facts’ in Castle v. Womble . . . relates to the existence of a vein or lode and not to its value.” 1 Rocky Mountain Mineral Law Foundation, The American Law of Mining § 4.76, p. 697, n. 2 (1979).
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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
] |
BINGLER, DISTRICT DIRECTOR OF INTERNAL REVENUE v. JOHNSON et al.
No. 473.
Argued March 3-4, 1969.
Decided April 23, 1969.
Harris Weinstein argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Walters, former Assistant Attorney General Rogovin, Jonathan S. Cohen, and Michael B. Arkin.
James C. Larrimer argued the cause and filed a brief for respondents.
Mr. Justice Stewart
delivered the opinion of the Court.
We are called upon in this case to examine for the first time § 117 of the Internal Revenue Code of 1954, which excludes from a taxpayer’s gross income amounts received as “scholarships” and “fellowships.” The question before us concerns the tax treatment of payments received by the respondents from their employer, the Westinghouse Electric Corporation, while they were on “educational leave” from their jobs with Westinghouse.
During the period here in question the respondents held engineering positions at the Bettis Atomic Power Laboratory in Pittsburgh, Pennsylvania, which Westinghouse operates under a “cost-plus” contract with the Atomic Energy Commission. Their employment status enabled them to participate in what is known as the Westinghouse Bettis Fellowship and Doctoral Program. That program, designed both to attract new employees seeking further education and to give advanced training to persons already employed at Bettis, offers a two-phase schedule of subsidized postgraduate study in engineering, physics, or mathematics.
Under the first, or “work-study,” phase, a participating employee holds a regular job with Westinghouse and in addition pursues a course of study at either the University of Pittsburgh or Carnegie-Mellon University. The employee is paid for a 40-hour work week, but may receive up to eight hours of “release time” per week for the purpose of attending classes. “Tuition remuneration,” as well as reimbursement for various incidental academic expenses, is provided by the company.
When an employee has completed all preliminary requirements for his doctorate, he may apply for an educational leave of absence, which constitutes the second phase of the Fellowship Program. He must submit a proposed dissertation topic for approval by Westinghouse and the AEC. Approval is based, inter alia, on a determination that the topic has at least some general relevance to the work done at Bettis. If the leave of absence is secured, the employee devotes his full attention, for a period of at least several months, to fulfilling his dissertation requirement. During this period he receives a “stipend” from Westinghouse, in an amount based on a specified percentage (ranging from 70% to 90%) of his prior salary plus “adders,” depending upon the size of his family. He also retains his seniority status and receives all employee benefits, such as insurance and stock option privileges. In return he not only must submit periodic progress reports, but under the written agreement that all participants in the program must sign, also is obligated to return to the employ of Westinghouse for a period of at least two years following completion of his leave. Upon return he is, according to the agreement, to “assume . . . duties commensurate with his education and experience,” at a salary “commensurate with the duties assigned.”
The respondents all took leaves under the Fellowship Program at varying times during the period 1960-1962, and eventually received their doctoral degrees in engineering. Respondents Johnson and Pomerantz took leaves of nine months and were paid $5,670 each, representing 80% of their prior salaries at Westinghouse. Respondent Wolfe, whose leave lasted for a year, received $9,698.90, or 90% of his previous salary. Each returned to Westinghouse for the required period of time following his educational leave.
Westinghouse, which under its own accounting system listed the amounts paid to the respondents as “indirect labor” expenses, withheld federal income tax from those amounts. The respondents filed claims for refund, contending that the payments they had received were “scholarships,” and hence were excludable from income under § 117 of the Code, which provides in pertinent part:
“(a) General rule.
“In the case of an individual, gross income does not include—
“(1) any amount received—
“(A) as a scholarship at an educational institution (as defined in section 151 (e)(4)), or
“(B) as a fellowship grant . . . .”
When those claims were rejected, the respondents instituted this suit in the District Court for the Western District of Pennsylvania, against the District Director of Internal Revenue. After the basically undisputed evidence regarding the Bettis Program had been presented, the trial judge instructed the jury in accordance with Treas. Reg. on Income Tax (1954 Code) § 1.117-4 (c), 26 CFR § 1.117-4 (c), which provides that amounts representing “compensation for past, present, or future employment services,” and amounts “paid . . . to . . . an individual to enable him to pursue studies or research primarily for the benefit of the grantor,” are not excludable as scholarships. The jury found that the amounts received by the respondents were taxable income. Respondents then sought review in the Court of Appeals for the Third Circuit, and that court reversed, holding that the Regulation referred to was invalid, that the jury instructions were therefore improper, and that on the essentially undisputed facts it was clear as a matter of law that the amounts received by the respondents were “scholarships” excludable under § 117. 396 F. 2d 258.
The holding of the Court of Appeals with respect to Treas. Reg. § 1.117-4 (c) was contrary to the decisions of several other circuits — most notably, that of the Fifth Circuit in Ussery v. United States, 296 F. 2d 582, which explicitly sustained the Regulation against attack and held amounts received under an arrangement quite similar to the Bettis Program to be taxable income. Accordingly, upon the District Director’s petition, we granted certiorari to resolve the conflict and to determine the proper scope of § 117 and Treas. Reg. § 1.117-4 (c) with respect to payments such as those involved here. 393 U. S. 949.
In holding invalid the Regulation that limits the definitions of “scholarship” and “fellowship” so as to exclude amounts received as “compensation,” the Court of Appeals emphasized that the statute itself expressly adverts to certain situations in which funds received by students may be thought of as remuneration. After the basic rule excluding scholarship funds from gross income is set out in § 117 (a), for instance, subsection (b)(1) stipulates:
“In the case of an individual who is a candidate for a degree at an educational institution . . . , subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant.”
In addition, subsection (b) (2) limits the exclusion from income with regard to nondegree candidates in two respects: first, the grantor must be a governmental agency, an international organization, or an organization exempt from tax under §§ 501 (a), (c) (3) of the Code; and second, the maximum exclusion from income available to a nondegree candidate is $300 per month for not more than 36 months. Since these exceptions are expressly set out in the statute, the Court of Appeals, relying on the canon of construction that expressio unius est exclusio alterius, concluded that no additional restrictions may be put on the basic exclusion from income granted by subsection (a) — a conclusion forcefully pressed upon us by the respondents.
Congress’ express reference to the limitations just referred to concededly lends some support to the respondents’ position. The difficulty with that position, however, lies in its implicit assumption that those limitations are limitations on an exclusion of all funds received by students to support them during the course of their education. Section 117 provides, however, only that amounts received as “scholarships” or “fellowships” shall be excludable. And Congress never defined what it meant by the quoted terms. As the Tax Court has observed:
“[A] proper reading of the statute requires that before the exclusion comes into play there must be a determination that the payment sought to be excluded has the normal characteristics associated with the term ‘scholarship.’ ” Reese v. Commissioner, 45 T. C. 407, 413, aff’d, 373 F. 2d 742.
The regulation here in question represents an effort by the Commissioner to supply the definitions that Congress omitted. And it is fundamental, of course, that as “contemporaneous constructions by those charged with administration of” the Code, the Regulations “must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,” and “should not be overruled except for weighty reasons.” Commissioner v. South Texas Lumber Co., 333 U. S. 496, 501. In this respect our statement last Term in United States v. Correll, 389 U. S. 299, bears emphasis:
“[W]e do not sit as a committee of revision to perfect the administration of the tax laws. Congress has delegated to the Commissioner, not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement’ of the Internal Revenue Code. 26 U. S. C. § 7805 (a). In this area of limitless factual variations, 'it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments.’ ” Id., at 306-307.
Here, the definitions supplied by the Regulation clearly are prima facie proper, comporting as they do with the ordinary understanding of “scholarships” and “fellowships” as relatively disinterested, “no-strings” educational grants, with no requirement of any substantial quid pro quo from the recipients.
The implication of the respondents’ expressio unius reasoning is that any amount paid for the purpose of supporting one pursuing a program of study or scholarly research should be excludable from gross income as a “scholarship” so long as it does not fall within the specific limitations of § 117 (b). Pay received by a $30,000 per year engineer or executive on a leave of absence would, according to that reasoning, be excludable as long as the leave was granted so that the individual could perform work required for a doctoral degree. This result presumably would not be altered by the fact that the employee might be performing, in satisfaction of his degree requirements, precisely the same work which he was doing for his employer prior to his leave and which he would be doing after his return to “employment” — or by the fact that the fruits of that work were made directly available to and exploited by the employer. Such a result would be anomalous indeed, especially in view of the fact that under § 117 the comparatively modest sums received by part-time teaching assistants are clearly subject to taxation. Particularly in light of the principle that exemptions from taxation are to be construed narrowly, we decline to assume that Congress intended to sanction — indeed, as the respondents would have it, to compel — such an inequitable situation.
The legislative history underlying § 117 is, as the Court of Appeals recognized, “far from clear.” We do not believe, however, that it precludes, as “plainly inconsistent” with the statute, a definition of “scholarship” that excludes from the reach of that term amounts received as compensation for services performed. The 1939 Internal Revenue Code, like predecessor Codes, contained no specific provision dealing with scholarship grants. Whether such grants were includable in gross income depended simply upon whether they fell within the broad provision excluding from income amounts received as “gifts.” Thus case-by-case determinations regarding grantors’ motives were necessary. The cases decided under this approach prior to 1954 generally involved two types of financial assistance: grants to research or teaching assistants — graduate students who perform research or teaching services in return for their stipends — and foundation grants to post-doctoral researchers. In cases decided shortly before the 1954 Code was enacted, the Tax Court, relying on the “gift” approach to scholarships and fellowships, held that amounts received by a research assistant were taxable income, but reached divergent results in situations involving grants to post-doctoral researchers.
In enacting § 117 of the 1954 Code, Congress indicated that it wished to eliminate the necessity for reliance on “case-by-case” determinations with respect to whether “scholarships” and “fellowships” were excludable as “gifts.” Upon this premise the respondents hinge their argument that Congress laid down a standard under which all case-by-case determinations — such as those that may be made under Treas. Reg. § 1.117-4 (c) — are unnecessary and improper. We have already indicated, however, our reluctance to believe that § 117 was designed to exclude from taxation all amounts, no matter how large or from what source, that are given for the support of one who happens to be a student. The sounder inference is that Congress was merely “recogni[zing] that scholarships and fellowships are sufficiently unique . . . to merit [tax] treatment separate from that accorded gifts,” and attempting to provide that grants falling within those categories should be treated consistently— as in some instances, under the generic provisions of the 1939 Code, they arguably had not been. Delineation of the precise contours of those categories was left to the Commissioner.
Furthermore, a congressional intention that not all grants received by students were necessarily to be “scholarships” may reasonably be inferred from the legislative history. In explaining the basis for its version of § 117 (b)(2), the House Ways and Means Committee stated that its purpose was to “tax those grants which are in effect merely payments of a salary during a period while the recipient is on leave from his regular job.” This comment related, it is true, to a specific exception to the exclusion from income set out in subsection (a). But, in view of the fact that the statute left open the definitions of “scholarship” and “fellowship,” it is not unreasonable to conclude that in adding subsection (b) to the statute Congress was merely dealing explicitly with those problems that had come explicitly to its attention — viz., those involving research and teaching assistantships and post-doctoral research grants — without intending to forbid application to similar situations of the general principle underlying its treatment of those problems. One may justifiably suppose that the Congress that taxed funds received by “part-time” teaching assistants, presumably on the ground that the amounts received by such persons really represented compensation for services performed, would also deem proper a definition of “scholarship” under which comparable sorts of compensation- — -which often, as in the present case, are significantly greater in amount- — are likewise taxable. In providing such a definition, the Commissioner has permissibly implemented an underlying congressional concern. We cannot say that the provision of Treas. Reg. § 1.117-4 (c) that taxes amounts received as “compensation” is “unreasonable or plainly inconsistent with the . . . statut[e].”
Under that provision, as set out in the trial court’s instructions, the jury here properly found that the amounts received by the respondents were taxable “compensation” rather than excludable “scholarships.” The employer-employee relationship involved is immediately suggestive, of course, as is the close relation between the respondents’ prior salaries and the amount of their “stipends.” In addition, employee benefits were continued. Topics were required to relate at least generally to the work of the Bettis Laboratory. Periodic work reports were to be submitted. And, most importantly, Westinghouse unquestionably extracted a quid pro quo. The respondents not only were required to hold positions with Westinghouse throughout the “work-study” phase of the program, but also were obligated to return to Westinghouse’s employ for a substantial period of time after completion of their leave. The thrust of the provision dealing with compensation is that bargained-for payments, given only as a “quo” in return for the quid of services rendered — whether past, present, or future — should not be excludable from income as “scholarship” funds. That provision clearly covers this case.
Accordingly, the judgment of the Court of Appeals is reversed, and that of the District Court reinstated.
It is so ordered.
Mr. Justice Douglas would affirm the judgment for the reasons stated by the Court of Appeals in 396 F. 2d 258.
We refer only to respondents Richard E. Johnson, Richard A. Wolfe, and Martin L. Pomerantz; their wives are parties to this action solely because joint tax returns were filed for the years in question.
Formerly Carnegie Institute of Technology.
A maximum of 156 hours of release time per year is allowed.
The Fellowship Program is funded jointly by Westinghouse and the AEC, but the amounts paid to participating employees are channeled through the company’s payroll office.
The ordinary leave period is nine months.
Maximum monthly limits are placed on the amounts paid.
Respondent Wolfe began his leave at a time when Westinghouse did not require agreement in writing to the two-year “return” commitment. He was formally advised before he went on leave, however, that he was “expected” to return to Westinghouse for a period of time equal to the duration of his leave, and he in fact honored that obligation.
Respondent Wolfe was on leave from March 1, 1960, to February 28,1961; respondent Johnson from October 1,1960, to June 30, 1961; and respondent Pomerantz from November 1, 1961, to July 31, 1962.
Tuition and incidental fees were also paid by Westinghouse, but no withholding was made from those payments, and their tax status is not at issue in this case. Although conceptually includable in income, such sums presumably would be offset by educational expense deductions. See Treas. Reg. on Income Tax (1954 Code) § 1.162-5, 26 CFR § 1.162-5.
The entire section reads as follows:
Ҥ 117. Scholarships and fellowship grants.
“(a) General rule.
“In the case of an individual, gross income does not include—
“(1) any amount received—
“(A) as a scholarship at an educational institution (as defined in section 151 (e)(4)), or
“(B) as a fellowship grant, including the value of contributed services and accommodations; and
“(2) any amount received to cover expenses for—
“(A) travel,
“(B) research,
“(C) clerical help, or “(D) equipment,
“which are incident to such a scholarship or to a fellowship grant, but only to the extent that the amount is so expended by the recipient.
“(b) Limitations.
“(1) Individuals who are candidates for degrees.
“In the case of an individual who is a candidate for a degree at an educational institution (as defined in section 151 (e)(4)), subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant. If teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree, such teaching, research, or other services shall not be regarded as part-time employment within the meaning of this paragraph.
“(2) Individuals who are not candidates for degrees.
“In the case of an individual who is not a candidate for a degree at an educational institution (as defined in section 151(e)(4)), subsection (a) shall apply only if the condition in subparagraph (A) is satisfied and then only within the limitations provided in subparagraph (B).
“(A) Conditions for exclusion.
“The grantor of the scholarship or fellowship grant is—
“(i) an organization described in section 501(c)(3) which is exempt from tax under section 501 (a),
“(ii) a foreign government,
“(iii) an international organization, or a binational or multinational education and cultural foundation or commission created or continued pursuant to the Mutual Educational and Cultural Exchange Act of 1961, or
“(iv) the United States, or an instrumentality or agency thereof, or a State, a territory, or a possession of the United States, or any political subdivision thereof, or the District of Columbia.
“(B) Extent of exclusion.
“The amount of the scholarship or fellowship grant excluded under subsection (a) (1) in any taxable year shall be limited to an amount equal to $300 times the number of months for which the recipient received amounts under the scholarship or fellowship grant during such taxable year, except that no exclusion shall be allowed under subsection (a) after the recipient has been entitled to exclude under this section for a period of 36 months (whether or not consecutive) amounts received as a scholarship or fellowship grant while not a candidate for a degree at an educational institution (as defined in section 151 (e) (4)).”
Ҥ 1.117-4. Items not considered as scholarships or fellowship grants.
“The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117:
“(e) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor.
“ (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor.
“However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant.”
Generally in accord with Ussery are Reese v. Commissioner, 373 F. 2d 742 (C. A. 4th Cir.); Stewart v. United States, 363 F. 2d 355 (C. A. 6th Cir.); and Woddail v. Commissioner, 321 F. 2d 721 (C. A. 10th Cir.). See also Reiffen v. United States, 180 Ct. Cl. 296, 376 F. 2d 883.
Subsection (b) goes on to except from that limitation situations in which “teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree ...” In those situations, scholarship or fellowship funds received for such services are nontaxable. See n. 10, supra.
See also Treas. Reg. on Income Tax (1954 Code) §§ 1.117-3 (a), (c), 26 CFR §§ 1.117-3 (a), (c), which set out the “normal characteristics” associated with scholarships and fellowships:
Ҥ 1.117-Definitions.
“ (a) Scholarship. A scholarship generally means an amount paid or allowed to, or for the benefit of, a student, whether an undergraduate or a graduate, to aid such individual in pursuing his studies. The term includes the value of contributed services and accommodations (see paragraph (d) of this section) and the amount of tuition, matriculation, and other fees which are furnished or remitted to a student to aid him in pursuing his studies. The term also includes any amount received in the nature of a family allowance as a part of a scholarship. However, the term does not include any amount provided by an individual to aid a relative, friend, or other individual in pursuing his studies where the grantor is motivated by family or philanthropic considerations. If an educational institution maintains or participates in a plan whereby the tuition of a child of a faculty member of such institution is remitted by any other participating educational institution attended by such child, the amount of the tuition so remitted shall be considered to be an amount received as a scholarship.
“(c) Fellowship grant. A fellowship grant generally means an amount paid or allowed to, or for the benefit of, an individual to aid him in the pursuit of study or research. The term includes the value of contributed services and accommodations (see paragraph (d) of this section) and the amount of tuition, matriculation, and other fees which are furnished or remitted to an individual to aid him in the pursuit of study or research. The term also includes any amount received in the nature of a family allowance as a part of a fellowship grant. However, the term does not include any amount provided by an individual to aid a relative, friend, or other individual in the pursuit of study or research where the grantor is motivated by family or philanthropic considerations.”
We are not concerned in this case with distinctions between the terms “scholarship” and “fellowship.”
Cf. 1 J. Mertens, Law of Federal Income Taxation § 7.42, p. 110 (P. Zimet & W. Oliver rev. ed. 1962).
See Commissioner v. Jacobson, 336 U. S. 28, 48-49; Helvering v. Northwest Steel Rolling Mills, Inc., 311 U. S. 46, 49.
The opinion of the Court of Appeals reiterates that the stipends received by the respondents were “reasonable.” Those payments approximated, of course, the respondents’ previous engineering salaries. In any event, given the court’s expressio unius reasoning, the source of a limitation based on the “reasonableness” of amounts granted to bona fide students is difficult to identify.
396 F. 2d, at 263.
Int. Rev. Code of 1939, c. 1, §22 (b)(3), 53 Stat. 10; see Int. Rev. Code of 1954, § 102.
See, e. g., Banks v. Commissioner, 17 T. C. 1386.
Compare Ti Li Loo v. Commissioner, 22 T. C. 220 (university grant for National Health Service research held taxable), with Stone v. Commissioner, 23 T. C. 254 (foundation grant held nontaxable).
Gordon, Scholarship and Fellowship Grants as Income: A Search for Treasury Policy, 1960 Wash. U. L. Q. 144, 151.
That version provided for the exclusion only of grants that, together with compensation received from the recipient’s former employer, were less than 75% of his salary for the preceding year. Noting that the House bill would have taxed many modest grants simply because the recipient had no substantial earned income in the previous year, the Senate rejected that formulation and substituted the present $300 per month, 36-month provision of §117 (b)(2). See H. R. Rep. No. 1337, 83d Cong., 2d Sess., 17; S. Rep. No. 1622, 83d Cong., 2d Sess., 18.
H. R. Rep. No. 1337, supra, n. 23, at 17.
The House version of § 117 (b) (1) taxed only amounts received as payment for teaching and research services. The Senate amended the provision, however, to include payments for “other services” as well. See S. Rep. No. 1622, supra, n. 23, at 18.
In connection with the question of what Congress may have intended to denote by the terms “scholarship” and “fellowship,” it is noteworthy that the House Report stated, “Such grants generally are of small amount and are usually received by individuals who would have little or no tax liability in any case.” H. R. Rep. No. 1337, supra, n. 23, at 17.
The Court of Appeals viewed the “primary purpose” of § 117 as the “encourage [ment of] financial aid to education through tax relief.” 396 F. 2d, at 262. But while some desire to aid scholarship students no doubt underlay enactment of the statute, that desire must be reconciled with an apparent congressional intent — manifested in the limitations set out in subsection (b) — to tax amounts that represent compensation for services performed. As the text makes clear, we cannot view the Commissioner’s attempt to achieve that reconciliation as improper.
The Court of Appeals seems to have recognized that in some circumstances the Commissioner’s approach is justified. Its opinion stated:
“A significant commitment by the student in return for a grant would, of course, place that grant outside the category 'scholarship,’ at least to the extent of the value of that commitment. For if the grantee had to barter for his stipend, giving full value for it, this arrangement would hardly serve the primary purpose of the § 117 exclusion: to encourage financial aid to education through tax relief.” 396 F. 2d, at 262.
It is not clear how this position can be squared with the Court of Appeals’ holding that Treas. Reg. § 1.117-4 (c) is invalid. In any event, as we suggest infra, we cannot agree with the conclusion of the Court of Appeals that the grants received by the respondents were not “bartered for.”
The instructions included, inter alia, the following passage:
“You are . . . instructed that, one, any amount of money paid to an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present or future employment services, or represents payment for services which are subject to the direction or supervision of the grantor, ... is not a scholarship or fellowship under the tax laws.
“Two, any amount of money paid to an individual to enable him to pursue studies or research which studies or research are primarily for the benefit of the grantor is not a scholarship under the tax laws.”
We thus endorse the decisions of the Fifth and Sixth Circuits in Ussery v. United States, 296 F. 2d 582, and Stewart v. United States, 363 F. 2d 355. In Ussery, the Court of Appeals for the Fifth Circuit specifically upheld Treas. Reg. § 1.117-4 (c) and held taxable monthly payments received by an employee of the Mississippi Department of Public Welfare who had been given leave to secure a master’s degree in social work. The taxpayer there received employee benefits while on leave, and was obligated to return to the department following completion of his studies. Stewart involved a similar arrangement under which an employee of the Tennessee Department of Public Welfare received monthly stipends and other benefits during an educational leave of absence but was required to return thereafter to her previous position. See Reese v. Commissioner, 373 F. 2d 742 (C. A. 4th Cir.), affirming 45 T. C. 407 (student-teacher); Woddail v. Commissioner, 321 F. 2d 721 (C. A. 10th Cir.) (resident physician; obligated to remain following part-time participation in training program); cf. Reiffen v. United States, 180 Ct. Cl. 296, 376 F. 2d 883 (relying solely on characterization of payments as “primarily for benefit of grantor”). Several Tax Court decisions point in the same direction, although treatment of various factual situations under § 117 has not been marked by a great deal of consistency. See generally Tabac, Scholarships and Fellowship Grants: An Administrative Merry-Go-Round, 46 Taxes 485 (1968).
The Commissioner has acquiesced in Evans v. Commissioner, 34 T. C. 720 (see 1965-1 Cum. Bull. 4), which allowed exclusion where, although the taxpayer was obligated to work for the grantor following completion of her studies, there had been no previous employment relationship. See Rev. Rul. 65-146, 1965-1 Cum. Bull. 66. We are informed by the Solicitor General, however, that the Evans acquiescence will be modified. See also Broniwitz v. Com missioner, P-H 1968 TC Mem. Dec. ¶68,221 (Sept. 30, 1968) (requirement of summer employment with grantor; held excludable).
The contract’s provision that employees who avail themselves of educational leave will be assigned duties “commensurate with [their] education and experience,” and compensated at rates “commensurate with” those duties, is hardly sufficient to avoid the clear inference that their grants are fully bargained for and in the nature of compensation. The program is featured in Westinghouse’s recruiting efforts as a benefit attractive to many potential employees. Moreover, as suggested in the text, participation in the program undeniably means giving up the right to take more remunerative employment elsewhere for a considerable period of time. Had the company modified its program so that the amounts of the “fellowship” grants were spread over the years preceding and following the educational leave — as increments to the respondents’ salary, set aside in a company-administered “educational fund”' — there could be little doubt that those amounts would have represented compensation. We see no persuasive reason why a different tax result should be reached under Treas. Reg. § 1.117-4 (e) on the actual facts involved here. There is no merit in the respondents’ oblique suggestion that payment for present services is somehow different, with respect to the question before us, from deferred or anticipatory payments.
We accept the suggestion in the Government’s brief that the second paragraph of Treas. Reg. § 1.117-4 (c) — which excepts from the definition of “scholarship” any payments that are paid to an individual “to enable him to pursue studies or research primarily for the benefit of the grantor” — is merely an adjunct to the initial “compensation” provision:
“By this paragraph, the Treasury has supplemented the first in order to impose tax on bargained-for arrangements that do not create an employer-employee relation, as, for example, in the case of an independent contractor. But the general idea is the same: ‘scholarship’ or ‘fellowship’ does not include arrangements where the recipient receives money and in return provides a quid pro quo.” Brief for Petitioner 22.
The respondents point out that the Internal Revenue Service is considering possible revisions of the Regulations under § 117. The Solicitor General informs us, however, that although revisions might “conform the Regulations to the results reached” in such cases as Wells v. Commissioner, 40 T. C. 40, no changes are contemplated with respect to situations such as that involved here. Reply Brief for Petitioner in support of certiorari 3, n. 2; see Rev. Rul. 65-59, 1965-1 Cum. Bull. 67.
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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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[
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"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
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"Central Intelligence Agency",
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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 the Interior",
"Department of Justice or Attorney General",
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] |
[
68
] |
BILL JOHNSON’S RESTAURANTS, INC. v. NATIONAL LABOR RELATIONS BOARD
No. 81-2257.
Argued March 29, 1983
Decided May 31, 1983
White, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, post, p. 750.
Lawrence Allen Katz argued the cause and filed briefs for petitioner.
Carolyn F. Corwin argued the cause for respondent. With her on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Norton J. Come, Linda Sher, and Candace M. Carroll.
J. Albert Woll, Laurence Gold, Michael H. Gottesman, and Jeremiah A. Collins filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Edward B. Miller, Matthew R. McArthur, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae.
Justice White
delivered the opinion of the Court.
We must decide whether the National Labor Relations Board may issue a cease-and-desist order to halt the prosecution of a state-court civil suit brought by an employer to retaliate against employees for exercising federally protected labor rights, without also finding that the suit lacks a reasonable basis in fact or law.
I
The present controversy arises out of a labor dispute at “Bill Johnson’s Big Apple East,” one of four restaurants owned and operated by the petitioner in Phoenix, Ariz. It began on August 8, 1978, when petitioner fired Myrland Helton, one of the most senior waitresses at the restaurant. Believing that her termination was the result of her efforts to organize a union, she filed unfair labor practice charges against the restaurant with the Board.
On September 20, after an investigation, the Board’s General Counsel issued a complaint. On the same day, Helton, joined by three co-waitresses and a few others, picketed the restaurant. The picketers carried signs asking customers to boycott the restaurant because its management was unfair to the waitresses. Petitioner’s manager confronted the picketers and threatened to “get even” with them “if it’s the last thing I do.” Petitioner’s president telephoned the husband of one of the picketing waitresses and impliedly threatened that the couple would “get hurt” and lose their new home if the wife continued to participate in the protest. The picketing continued on September 21 and 22. In addition, the picketers distributed a leaflet that accused management of making “[unwarranted sexual advances” and maintaining a “filthy restroom for women employees.” The leaflet also stated that a complaint against the restaurant had been filed by the Board and that Helton had been fired after suggesting that a union be organized.
On the morning of September 25, petitioner and three of its co-owners filed a verified complaint against Helton and the other demonstrators in an Arizona state court. Plaintiffs alleged that the defendants had engaged in mass picketing, harassed customers, blocked public ingress to and egress from the restaurant, and created a threat to public safety. The complaint also contained a libel count, alleging that the leaflet contained false and outrageous statements published by the defendants with the malicious intent to injure the plaintiffs. The complaint sought a temporary restraining order and preliminary and permanent injunctive relief, as well as compensatory damages, $500,000 in punitive damages, and appropriate further legal and equitable relief. App. 3-9. After a hearing, the state court declined to enjoin the distribution of leaflets but otherwise issued the requested restraining order. Id,., at 19-23. Expedited depositions were also permitted. The defendants retained counsel and, after a hearing on the plaintiffs’ motion for a preliminary injunction on November 16, the court dissolved the temporary restraining order and denied preliminary injunctive relief. Id., at 52.
Meanwhile, on the day after the state-court suit was filed, Helton filed a second charge with the Board alleging that petitioner had committed a number of new unfair labor practices in connection with the dispute between the waitresses and the restaurant. Among these was a charge that petitioner had filed the civil suit in retaliation for the defendants’ protected, concerted activities, and because they had filed charges under the Act. The General Counsel issued a complaint based on these new charges on October 23. As relevant here, the complaint alleged that petitioner, by filing and prosecuting the state suit, was attempting to retaliate against Helton and the others, in violation of §§ 8(a)(1) and (4) of the National Labor Relations Act (NLRA or Act), 29 U. S. C. §§ 158(a)(1) and (4).
In December 1978, an Administrative Law Judge (ALJ) held a 4-day consolidated hearing on the two unfair labor practice complaints. On September 27, 1979, the ALJ rendered a decision concluding that petitioner had committed a total of seven unfair labor practices during the course of the labor dispute. 249 N. L. R. B. 155, 168-169 (1980). With regard to the matter presently before us, the ALJ agreed with the General Counsel that the prosecution of the civil suit violated §§ 8(a)(1) and (4). The ALJ applied the rationale of Power Systems, Inc., 239 N. L. R. B. 445, 449-450 (1978), enf. denied, 601 P. 2d 936 (CA7 1979), in which the Board held that it is an unfair labor practice for an employer to institute a civil lawsuit for the purpose of penalizing or discouraging its employees from filing charges with the Board or seeking access to the Board’s processes.
In Power Systems, the Board inferred that the employer had acted with retaliatory animus from the fact that the employer lacked “a reasonable basis upon which to assert” that its suit had merit. Similarly, in the present case, the ALJ found that petitioner’s suit lacked a reasonable basis and then concluded from this fact that the suit violated the Act because it was “an attempt to penalize Helton for having filed charges with the Board, and to penalize the other defendants for assisting Helton in her protest of the unfair labor practice committed against her.” 249 N. L. R. B., at 165. He bolstered his conclusion by noting the direct evidence that the suit had been filed for a retaliatory purpose, i. e., the threats to “get even with” and “hurt” the defendants. Ibid.
The ALJ reached his conclusion that petitioner’s state suit lacked a reasonable basis “on the basis of the record and from [his] observation of the witnesses, including their demeanor, and upon the extensive briefs of the parties.” Id., at 164. In the view of the ALJ, the “evidence fail[ed] to support” the complaint’s allegations that the picketers clogged the sidewalks, harassed customers, or blocked entrances and exits to the restaurant. Id., at 165. The libel count was deemed baseless because “the evidence established] the truthfulness” of everything stated in the leaflet.
On petitioner’s appeal, the Board adopted, with minor exceptions, the ALJ’s findings, conclusions of law, and recommended order. Id., at 155. Accordingly, petitioner was ordered to undertake a number of remedial measures. Among other things, petitioner was required to withdraw its state-court complaint and to reimburse the defendants for all their legal expenses in connection with the suit. Id., at 169-170.
The Court of Appeals enforced the Board’s order in its entirety, 660 F. 2d 1335 (CA9 1981), holding that substantial evidence supported both the Board’s findings that the employer’s “lawsuit lacked a reasonable basis in fact, and that it was filed to penalize Helton [and] the picketers for engaging in protected activity.” Id., at 1342. Petitioner sought cer-tiorari, urging that it could not properly be enjoined from maintaining its state-court action. We granted the writ, 459 U. S. 942 (1982), and we now vacate and remand for further proceedings.
II
The question whether the Board may issue a cease-and-desist order to halt an allegedly retaliatory lawsuit filed by an employer in a state court has had a checkered history before the Board. At first, in W. T. Carter & Bro., 90 N. L. R. B. 2020, 2023-2024 (1950), where an employer sued and obtained a state-court injunction barring its employees from holding union meetings on company property, a divided Board held that the prosecution of the suit constituted an unfair labor practice. The Board analogized from the common law of malicious prosecution and rejected the employer’s contention that its “resort to court proceedings was a lawful exercise of a basic right.” The dissent objected that the Board should recognize the employer’s right to present its case to a judicial forum, even if its motive in doing so was to interfere with its employees’ rights. Id., at 2029 (Herzog, Chairman, dissenting). Ten years later, in Clyde Taylor Co., 127 N. L. R. B. 103, 109 (1960), where the employer obtained an injunction banning peaceful union picketing in protest of unlawful discharges, the Board overruled W. T. Carter and adopted the view of the earlier dissent.
During the next 18 years after Clyde Taylor, the Board’s decisions do not appear to us to have been entirely consistent. Then, in Power Systems, 239 N. L. R. B., at 450, the Board concluded: “Since we have found that Respondent had no reasonable basis for its lawsuit, . . . the lawsuit had as its purpose the unlawful objective of penalizing [the employee] for filing a charge with the Board.” The suit therefore was enjoined as an unfair labor practice. The gravamen of the offense was thus held to be the unlawful objective, which could be inferred by lack of a reasonable basis for the employer’s suit.
Although the Board in Power Systems purported to distinguish Clyde Taylor and its progeny on the basis that the lawsuit in each of those cases “was not a tactic calculated to restrain employees in the exercise of their rights under the Act,” 239 N. L. R. B., at 449, the distinction was illusory. In Clyde Taylor itself the Board found no unfair labor practice despite the ALJ’s specific finding that the employer’s lawsuit “was for the purpose of preventing his employees from exercising the rights guaranteed to them under the Act, rather than for the purpose of advancing any legitimate interest of his own.” 127 N. L. R. B., at 121. Since 1978, the Board has consistently adhered to the Power Systems rule that an employer or union who sues an employee for a retaliatory motive is guilty of a violation of the Act. Under this line of cases, as the Board’s brief and its counsel’s remarks at oral argument in the present case confirm, the Board does not regard lack of merit in the employer’s suit as an independent element of the § 8(a)(1) and § 8(a)(4) unfair labor practice. Rather, it asserts that the only essential element of a violation is retaliatory motive.
III
A
At first blush, the Board’s position seems to have substance. Sections 8(a)(1) and (4) of the Act are broad, remedial provisions that guarantee that employees will be able to enjoy their rights secured by §7 of the Act — including the right to unionize, the right to engage in concerted activity for mutual aid and protection, and the right to utilize the Board’s processes — without fear of restraint, coercion, discrimination, or interference from their employer. The Court has liberally construed these laws as prohibiting a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities. A lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation. As the Board has observed, by suing an employee who files charges with the Board or engages in other protected activities, an employer can place its employees on notice that anyone who engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit. Regardless of how unmeritorious the employer’s suit is, the employee will most likely have to retain counsel and incur substantial legal expenses to defend against it. Power Systems, supra, at 449. Furthermore, as the Court of Appeals in the present case noted, the chilling effect of a state lawsuit upon an employee’s willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive relief. 660 F. 2d, at 1343, n. 3. Where, as here, such a suit is filed against hourly-wage waitresses or other individuals who lack the backing of a union, the need to allow the Board to intervene and provide a remedy is at its greatest.
There are weighty countervailing considerations, however, that militate against allowing the Board to condemn the filing of a suit as an unfair labor practice and to enjoin its prosecution. In California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972), we recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. Accordingly, we construed the antitrust laws as not prohibiting the filing of a lawsuit, regardless of the plaintiff’s anticompetitive intent or purpose in doing so, unless the suit was a “mere sham” filed for harassment purposes. Id., at 511. We should be sensitive to these First Amendment values in construing the NLRA in the present context. As the Board itself has recognized: “[G]oing to a judicial body for redress of alleged wrongs . . . stands apart from other forms of action directed at the alleged wrongdoer. The right of access to a court is too important to be called an unfair labor practice solely on the ground that what is sought in the court is to enjoin employees from exercising a protected right.” Peddie Buildings, 203 N. L. R. B. 265, 272 (1973), enf. denied on other grounds, 498 F. 2d 43 (CA3 1974). See also Clyde Taylor Co., 127 N. L. R. B., at 109.
Moreover, in recognition of the States’ compelling interest in the maintenance of domestic peace, the Court has construed the Act as not pre-empting the States from providing a civil remedy for conduct touching interests “deeply rooted in local feeling and responsibility.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 244 (1959). It has therefore repeatedly been held that an employer has the right to seek local judicial protection from tortious conduct during a labor dispute. See, e. g., Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978); Farmer v. Carpenters, 430 U. S. 290 (1977); Linn v. Plant Guard Workers, 383 U. S. 53 (1966); Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954).
In Linn v. Plant Guard Workers, supra, at 65, we held that an employer can properly recover damages in a tort action arising out of a labor dispute if it can prove malice and actual injury. See also Farmer v. Carpenters, supra, at 306. If the Board is allowed to enjoin the prosecution of a well-grounded state lawsuit, it necessarily follows that any state plaintiff subject to such an injunction will be totally deprived of a remedy for an actual injury, since the “Board can award no damages, impose no penalty, or give any other relief” to the plaintiff. Linn, supra, at 63. Thus, to the extent the Board asserts the right to declare the filing of a meritorious suit to be a violation of the Act, it runs headlong into the basic rationale of Linn, Farmer, and other cases in which we declined to infer a congressional intent to ignore the substantial state interest “in protecting the health and well-being of its citizens.” Farmer, supra, at 302-303. See also Sears, Roebuck & Co. v. Carpenters, supra, at 196; Linn, supra, at 61.
Of course, in light of the Board’s special competence in applying the general provisions of the Act to the complexities of industrial life, its interpretations of the Act are entitled to deference, even where, as here, its position has not been entirely consistent. NLRB v. J. Weingarten, Inc., 420 U. S. 251, 264-267 (1975); NLRB v. Seven-Up Co., 344 U. S. 344, 347-349 (1953). And here, were only the literal language of §§ 8(a)(1) and 8(a)(4) to be considered, we would be inclined to uphold the Board, because its present construction of the statute is not irrational. Considering the First Amendment right of access to the courts and the state interests identified in cases such as Linn and Farmer, however, we conclude that the Board’s interpretation of the Act is untenable. The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.
B
Although it is not unlawful under the Act to prosecute a meritorious action, the same is not true of suits based on insubstantial claims — suits that lack, to use the term coined by the Board, a “reasonable basis.” Such suits are not within the scope of First Amendment protection:
“The first amendment interests involved in private litigation — compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts — are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition.”
Just as false statements are not immunized by the First Amendment right to freedom of speech, see Herbert v. Lando, 441 U. S. 153, 171 (1979); Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974), baseless litigation is not immunized by the First Amendment right to petition.
Similarly, the state interests recognized in the Farmer line of cases do not enter into play when the state-court suit has no basis. Since, by definition, the plaintiff in a .baseless suit has not suffered a legally protected injury, the State’s interest “in protecting the health and well-being of its citizens,” Farmer, swpra, at 303, is not implicated. States have only a negligible interest, if any, in having insubstantial claims adjudicated by their courts, particularly in the face of the strong federal interest in vindicating the rights protected by the national labor laws.
Considerations analogous to these led us in the antitrust context to adopt the “mere sham” exception in California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). We should follow a similar course under the NLRA. The right to litigate is an important one, and the Board should consider the evidence with utmost care before ordering the cessation of a state-court lawsuit. In a proper case, however, we believe that. Congress intended to allow the Board to provide this remedy. Therefore, we hold that it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by § 7 of the NLRA.
IV
Having concluded that the prosecution of an improperly motivated suit lacking a reasonable basis constitutes a violation of the Act that may be enjoined by the Board, we now inquire into what steps the Board may take in evaluating whether a state-court suit lacks the requisite basis. Petitioner insists that the Board’s prejudgment inquiry must not go beyond the four corners of the complaint. Its position is that as long as the complaint seeks lawful relief that the state court has jurisdiction to grant, the Board must allow the state litigation to proceed. The Board, on the other hand, apparently perceives no limitations on the scope of its prejudgment determination as to whether a lawsuit has a reasonable basis. In the present case, for example, the ALJ conducted a virtual trial on the merits of petitioner’s state-court claims. Based on this de facto trial, the ALJ concluded, in his independent judgment, based in part on “his observation of the witnesses, including their demeanor,” that petitioner’s suit lacked a reasonable basis.
We cannot agree with either party. Although the Board’s reasonable-basis inquiry need not be limited to the bare pleadings, if there is a genuine issue of material fact that turns on the credibility of witnesses or on the proper inferences to be drawn from undisputed facts, it cannot, in our view, be concluded that the suit should be enjoined. When a suit presents genuine factual issues, the state plaintiff’s First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the State’s interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional fact-finding function of the state-court jury or judge. Hence, we conclude that if a state plaintiff is able to present the Board with evidence that shows his lawsuit raises genuine issues of material fact, the Board should proceed no further with the § 8(a)(1) — § 8(a)(4) unfair labor practice proceedings but should stay those proceedings until the state-court suit has been concluded.
In the present case, the only disputed issues in the state lawsuit appear to be factual in nature. There will be cases, however, in which the state plaintiff’s case turns on issues of state law or upon a mixed question of fact and law. Just as the Board must refrain from deciding genuinely disputed material factual issues with respect to a state suit, it likewise must not deprive a litigant of his right to have genuine state-law legal questions decided by the state judiciary. While the Board need not stay its hand if the plaintiff’s position is plainly foreclosed as a matter of law or is otherwise frivolous, the Board should allow such issues to be decided by the state tribunals if there is any realistic chance that the plaintiff’s legal theory might be adopted.
In instances where the Board must allow the lawsuit to proceed, if the employer’s case in the state court ultimately proves meritorious and he has judgment against the employees, the employer should also prevail before the Board, for the filing of a meritorious lawsuit, even for a retaliatory motive, is not an unfair labor practice. If judgment goes against the employer in the state court, however, or if his suit is withdrawn or is otherwise shown to be without merit, the employer has had its day in court, the interest of the State in providing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the § 8(a)(1) and § 8(a)(4) unfair labor practice case. The employer’s suit having proved unmeritorious, the Board would be warranted in taking that fact into account in determining whether the suit had been filed in retaliation for the exercise of the employees’ §7 rights. If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney’s fees and other expenses. It may also order any other proper relief that would effectuate the policies of the Act. 29 U. S. C. § 160(c).
V
The Board argues that, since petitioner has not sought review of the factual findings below that the state suit in the present case lacked a reasonable basis and was filed for a retaliatory motive, the judgment should be affirmed once it is concluded that the Board may enjoin a suit under these circumstances. Petitioner does, however, challenge the right of the Board to issue a cease-and-desist order in the circumstances present here, and the Board did not reach its reasonable-basis determination in accordance with this opinion. As noted above, the ALJ had no reservations about weighing the evidence and making credibility judgments. Based on his own evaluation of the evidence, he concluded that the libel count in petitioner’s suit lacked merit, because the statements in the leaflet were true, and that the business interference counts were groundless, because the evidence failed to support petitioner’s factual allegations. 249 N. L. R. B., at 164-165. See supra, at 736. It was not the ALJ’s province to make such factual determinations. What he should have determined is not whether the statements in the leaflet were true, but rather whether there was a genuine issue as to whether they were knowingly false. Similarly, he should not have decided the facts regarding the business interference counts; rather, he should have limited his inquiry to the question whether petitioner’s evidence raised factual issues that were genuine and material. Furthermore, because, in enforcing the Board’s order, the Court of Appeals ultimately relied on the fact that “substantial evidence” supported the Board’s finding that the prosecution of the lawsuit violated the Act, 660 F. 2d, at 1343, the Board’s error has not been cured. Accordingly, without expressing a view as to whether petitioner’s suit is in fact enjoinable, we shall return this case to the Board for further consideration in light of the proper standards.
VI
To summarize, we hold that the Board may not halt the prosecution of a state-court lawsuit, regardless of the plaintiff’s motive, unless the suit lacks a reasonable basis in fact or law. Retaliatory motive and lack of reasonable basis are both essential prerequisites to the issuance of a cease-and-desist order against a state suit. The Board’s reasonable-basis inquiry must be structured in a manner that will preserve the state plaintiff’s right to have a state-court jury or judge resolve genuine material factual or state-law legal disputes pertaining to the lawsuit. Therefore, if the Board is called upon to determine whether a suit is unlawful prior to the time that the state court renders final judgment, and if the state plaintiff can show that such genuine material factual or legal issues exist, the Board must await the results of the state-court adjudication with respect to the merits of the state suit. If the state proceedings result in a judgment adverse to the plaintiff, the Board may then consider the matter further and, if it is found that the lawsuit was filed with retaliatory intent, the Board may find a violation and order appropriate relief. In short, then, although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose, the offense is not enjoinable unless the suit lacks a reasonable basis.
In view of the foregoing, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with instructions to remand the case to the Board for further proceedings consistent with this opinion.
So ordered.
These provisions state:
“It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section [7 of the Act];
“(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.” 61 Stat. 140, 141, 29 U. S. C. §§ 158(a)(1) and (4).
Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 61 Stat. 140, 29 U. S. C. § 157.
On March 15, 1979, while the ALJ had the matter under submission, the state court issued an order granting the defendants’ motion for summary judgment on the business interference claims but leaving the libel count for trial. Before the state court issued this ruling, the defendants had filed a counterclaim alleging abuse of process, malicious prosecution, wrongful injunction, libel, and slander. The parties then apparently cross-moved for summary judgment on both the claim and the counterclaim. The state court, in the same order of March 15, 1979, dismissed the abuse of process count in the counterclaim and left the libel counterclaim for trial. See App. to Brief for Petitioner D1.
Meanwhile, there had been other developments. On October 27, 1978, the Board’s Regional Director petitioned the United States District Court pursuant to § 10(j) of the Act, 29 U. S. C. § 160(j), for an order enjoining petitioner from maintaining its state-court suit pending a final Board decision. On January 22, 1979, the District Court denied the request for an injunction. App. to Brief for Petitioner C1-C7.
The ALJ was apparently not made aware of the state court’s denial of summary judgment as to the libel count. This fact is most apparent by virtue of the ALJ’s statement, 249 N. L. R. B., at 163, that the defendants’ counterclaim for abuse of process was still pending before the state court. As noted in n. 2, supra, the state court dismissed the abuse of process counterclaim at the same time it denied summary judgment on the libel counts of both the claim and counterclaim.
In its merits brief, petitioner for the first time argues to this Court that the Board erred by concluding that the taking of the state-court defendants’ depositions constituted an unfair labor practice. Brief for Petitioner 33-36. This issue was not presented in the petition for certiorari and we decline to consider it. See this Court’s Rule 34.1(a).
It should be kept in mind that what is involved here is an employer’s lawsuit that the federal law would not bar except for its allegedly retaliatory motivation. We are not dealing with a suit that is claimed to be beyond the jurisdiction of the state courts because of federal-law preemption, or a suit that has an objective that is illegal under federal law. Petitioner concedes that the Board may enjoin these latter types of suits. Brief for Petitioner 12-13, 20; Reply Brief for Petitioner 8. Nor could it be successfully argued otherwise, for we have upheld Board orders enjoining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act, see Granite State Joint Board, Textile Workers Union, 187 N. L. R. B. 636, 637 (1970), enf. denied, 446 F. 2d 369 (CA1 1971), rev’d, 409 U. S. 213 (1972); Booster Lodge No. 4,05, Machinists & Aerospace Workers, 185 N. L. R. B. 380, 383 (1970), enf’d in relevant part, 148 U. S. App. D. C. 119, 459 F. 2d 1143 (1972), aff’d, 412 U. S. 84 (1973), and this Court has concluded that, at the Board’s request, a District Court may enjoin enforcement of a state-court injunction “where [the Board’s] federal power pre-empts the field.” NLRB v. Nash-Finch Co., 404 U. S. 138, 144 (1971).
Nash-Finch also requires rejection of petitioner’s assertion that the Board is precluded from enjoining a state-court suit by virtue of 28 U. S. C. §2283, which, subject to certain exceptions, prohibits a court of the United States from enjoining proceedings in a state court. In Nash-Finch, the Court held that § 2283 was inapplicable in instances where the Board files an action to restrain unfair labor practices, because the purpose of § 2283 “was to avoid unseemly conflict between the state and the federal courts where the litigants were private persons, not to hamstring the Federal Government and its agencies in the use of federal courts to protect federal rights.” 404 U. S., at 146.
Compare, e. g., S. E. Nichols Many Corp., 229 N. L. R. B. 75 (1977); Peddle Buildings, 203 N. L. R. B. 265 (1973); and United Aircraft Corp. (Pratt & Whitney Division), 192 N. L. R. B. 382 (1971), modified, 534 F. 2d 422 (CA2 1975), cert. denied, 429 U. S. 825 (1976); with, e. g., United Stanford Emyloyees, Local 680, 232 N. L. R. B. 326 (1977); International Organization of Masters, Mates and Pilots, 224 N. L. R. B. 1626 (1976), enf’d, 188 U. S. App. D. C. 15, 575 F. 2d 896 (1978); and Television Wisconsin, Inc., 224 N. L. R. B. 722 (1976).
See Sheet Metal Workers’ Union Local § 55, 254 N. L. R. B. 773, 778-780 (1981); United Credit Bureau of America, Inc., 242 N. L. R. B. 921, 925-926 (1979), enf’d, 643 F. 2d 1017 (CA4), cert. denied, 454 U. S. 994 (1981); George A. Angle, 242 N. L. R. B. 744 (1979), enf’d, 683 F. 2d 1296 (CA10 1982).
See Brief for Respondent 13, 18-21. At oral argument, despite close questioning by the Court, the Board’s counsel declined to rule out the possibility that prosecution of a totally meritorious suit might be deemed by the Board to be an unfair labor practice, if filed for a retaliatory purpose. Tr. of Oral Arg. 29-35, 39-41, 46-47.
See, e. g., NLRB v. Scrivener, 405 U. S. 117, 121-125 (1972); NLRB v. Gissel Packing Co., 395 U. S. 575, 617-619 (1969); NLRB v. Exchange Parts Co., 375 U. S. 405, 408-410 (1964); Republic Aviation Corp. v. NLRB, 324 U. S. 793, 797-798 (1945); Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 182-187 (1941).
Balmer, Sham Litigation and the Antitrust Laws, 29 Buffalo L. Rev. 39, 60 (1980). Accord, Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 674 F. 2d 1252, 1265-1266 (CA9 1982); Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80, 101 (1977).
In civil practice, the “genuine issue” test is used for adjudging motions for summary judgment. See Fed. Rule Civ. Proc. 56. Substantively, it is very close to the “reasonable jury” rule applied on motions for directed verdict. See Brady v. Southern R. Co., 320 U. S. 476, 479-480 (1943) (directed verdict should be granted when the evidence is such “that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict”). In the civil context, most courts treat the two standards identically, although some have found slight differences. See generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§ 2532, 2713.1 (1983); J. Moore & J. Lucas, Moore’s Federal Practice ¶¶ 50.03[4], 56.04[2] (1982). The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted. Ibid.
In making reasonable-basis determinations, the Board may draw guidance from the summary judgment and directed verdict jurisprudence, although it is not bound by either. While genuine disputes about material historical facts should be left for the state court, plainly unsupportable inferences from the undisputed facts and patently erroneous submissions with respect to mixed questions of fact and law may be rejected.
Although we leave the particular procedures for making reasonable-basis determinations entirely to the Board’s discretion, we see no reason why the Board should want to hear all the employer’s evidence in support of his state suit, or any more than necessary, if it can be determined at an early stage that the case involves genuine issues of material fact or law. In appropriate cases, the Board might prefer to rely on documentary evidence alone, as is done in civil practice with summary judgment motions. On the other hand, the Board might prefer to conduct a hearing.
Let us assume, for example, that picketing employees distribute a leaflet accusing manager Doe of making a sexual advance on employee Roe on a specific date. Claiming that the leaflet is maliciously false, Doe sues for libel in state court. The Board’s General Counsel then files a complaint alleging that the state suit is retaliatory and lacks a reasonable basis. At a hearing before an ALJ, Roe testifies that the accusation in the leaflet is true. If Doe fails to testify or to come forward with any evidence that the leaflet is maliciously false, or at least with an acceptable explanation why he cannot present such evidence, cf. Fed. Rule Civ. Proc. 56(f) (summary judgment may be denied if opponent needs time to discover essential facts), we see no reason why the Board should not enjoin Doe’s suit for lack of a reasonable basis. In this situation, the state plaintiff has failed to show that there are any genuine issues for the state court to decide, and the inference that the suit is groundless-is too strong to ignore, in light of the strong federal policy against deterring the exercise of employees’ collective rights.
In contrast, suppose that Doe testifies and claims that he was elsewhere on the date of the alleged sexual incident. The question whether the libel suit has merit thus turns in substantial part on the truth or falsity of Doe’s testimony. Under these circumstances, we doubt that Congress intended for the Board to resolve the credibility issue and perhaps to disbelieve Doe’s story and enjoin the lawsuit for lack of a reasonable basis, thereby effectively depriving Doe of his right to have this factual dispute resolved by a state-court jury. The same would be true if the question turned on the proper factual inferences to be drawn from undisputed facts.
The present case involves a libel claim, which, of course, is not governed entirely by state law, since federal law superimposes a malice requirement. Linn v. Plant Guard Workers, 383 U. S. 53, 64-65 (1966).
The Board’s power to take such action is not limited by the availability to injured employees of a state-court malicious prosecution or other action. Dual remedies are appropriate because a State has a substantial interest in deterring the filing of baseless litigation in its courts, and the Federal Government has an equally strong interest in enforcing the federal labor laws. The Federal Government need not rely on state remedies to ensure that its interests are served.
On remand, the state court’s denial of summary judgment on the libel count should be given careful consideration before a cease-and-desist order is issued, unless petitioner is deemed to have waived this point by failing to bring the state court’s ruling to the attention of the ALJ prior to his decision. See nn. 2 and 3, supra. In the ordinary case, although the Board is not bound in a res judicata sense by such a state-court ruling, we see no reason why the state court’s own judgment on the question whether the lawsuit presents triable factual issues should not be entitled to deference. In any event, such a state-court decision should not be disregarded without a cogent explanation for doing so.
Petitioner also argues that weight should be given to the fact that a Federal District Court denied the Board’s petition for temporary injunctive relief. See ibid. At least in the context of the present case, we disagree, because here the District Court denied relief not because it felt that petitioner’s lawsuit raised triable issues, but because it was of the erroneous view that a state suit could never be enjoined unless it sought “an unlawful objective, as, for example, when a union sues to enforce an unlawful contract.” App. to Brief for Petitioner C5.
It appears that only the libel count remains pending before the state court. If petitioner’s other claims have been finally adjudicated to be lacking in merit, on remand the Board may reinstate its finding that petitioner acted unlawfully by prosecuting these unmeritorious claims if the Board adheres to its previous finding that the suit was filed for a retaliatory purpose.
|
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
] |
SICURELLA v. UNITED STATES.
No. 250.
Argued February 1, 1955.
Decided March 14, 1955.
Hayden C. Covington argued the cause and filed a brief for petitioner.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner was born in 1927 and was brought up as a Jehovah’s Witness by his parents, both of whom were of that faith. He has been identified with the sect since he was 6 years old, “was immersed and became a consecrated servant of Jehovah” at 15, and was ordained when 17 years old. He registered with his local Board in 1948, and, although he worked 44 hours a week for the Railway Express Company, he was first classified as a minister. In 1950, however, petitioner was reclassified for general service and, shortly thereafter, he filed his conscientious objector claim.
In the special form, petitioner included this statement :
“The nature of my claim is that: I am already in the Army of Christ Jesus serving as a soldier of Jehovah’s appointed Commander Jesus Christ. (2 Tim. 2:3 & 4). Inasmuch as the war weapons of the soldier of Jesus Christ are not carnal, I am not authorized by his Commander to engage in carnal warfare of this world. (2 Corinthians 10:3 & 4, Ephesians 6:11-18) Furthermore being enlisted in the army of Jesus Christ, I cannot desert the forces of Jehovah to assume the obligations of a soldier in any army of this world without being guilty of desertion and suffering the punishment meted out to deserters by Almighty God. . . .”
In answer to the question, “Under what circumstances, if any, do you believe in the use of force,” he wrote:
“Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats. In doing so I try to ward off blows and attacks only in defense. I do not use weapons of warfare in defense of myself or the Kingdom interests. I do not retreat when attacked in my home or at meeting places, but will retreat on public or other property and shake the dust off my feet; so not giving what is holy to dogs and not throwing my pearls before swine. (Matthew 10:14 & 7:6) So I retreat when I can do so and avoid a fight or trouble. Also following the admonition at Acts 24:16; which states ‘In this respect, indeed, I am exercising myself continually to have a consciousness of committing no offense against God and man.’ ”
Upon a denial of this claim by the local Board, petitioner appealed and his file was referred to the Department of Justice. It appears that the report of the Federal Bureau of Investigation contained nothing unfavorable to petitioner’s claim, and the hearing officer concluded that petitioner should be classified as a conscientious objector. In advising the Department of Justice, the hearing officer wrote that he “was convinced that [petitioner] has sincere objections to military service by reason of his religious training and beliefs.” The Department of Justice, although admitting that the investigation was favorable to petitioner, recommended to the Appeal Board that petitioner’s claim be denied on the ground that
“While the registrant may be sincere in the beliefs he has expressed, he has, however, failed to establish that he is opposed to war in any form. As indicated by the statements on his SSS Form No. 150, registrant will fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren. He is, therefore, not entitled to exemption within the meaning of the Act.”
The Appeal Board retained petitioner in his I-A classification, and thereafter, when duly ordered to report, he refused to submit to induction. This prosecution followed and the Seventh Circuit affirmed petitioner’s conviction. 213 F. 2d 911. We granted certiorari. 348 U. S. 812.
In this case, unlike Witmer, ante, p. 375, it is admitted that petitioner is sincere; we are therefore relieved of the task of searching the record for basis in fact to support a finding of insincerity. The only question presented in this case is one of law — do the beliefs which petitioner says he holds amount to the conscientious opposition to “participation in war in any form” demanded by Congress as a prerequisite to the conscientious objector deferment?
Stated in the light of the background, the question at issue is whether a registrant under the Universal Military Training and Service Act, who is admittedly a sincere Jehovah’s Witness and conscientious objector to participation in war, but who believes in the use of force in defending “his ministry, Kingdom interests and ... his fellow brethren,” is entitled to exemption under § 6 (j) of the Act from service in the armed forces. The Government insists that petitioner’s statements reveal qualified and varied objection to war — and that “petitioner’s willingness to fight in defense of ‘Kingdom Interests’, particularly when those words are considered in the light of the teachings of his sect, . . .” is clearly not opposition to war in any form.
The Government does not contend that the petitioner’s belief in the use of force in self-defense, as well as the defense of his home, family and associates, is so inconsistent with his claim of conscientious objection as to serve as a basis for a denial of his claim. The question here narrows to whether the willingness to use of force in defense of Kingdom interests and brethren is sufficiently inconsistent with petitioner’s claim as to justify the conclusion that he fell short of being a conscientious objector. Throughout his selective service form, petitioner emphasized that the weapons of his warfare were spiritual, not carnal. He asserted that he was a soldier in the Army of Jesus Christ and that “the war weapons of the soldier of Jesus Christ are not carnal.” With reference to the defense of his ministry, his brethren and Kingdom interests, he asserted that “we do not arm ourselves or carry carnal weapons .... I do not use weapons of warfare in defense ... of Kingdom interests . . . .” In letters to the local Board he reiterated these beliefs. On their face, these statements make it clear that petitioner’s defense of “Kingdom Interests” has neither the bark nor the bite of war as we unfortunately know it today. It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to “participation in war in any form.”
But the Government urges that these statements of petitioner must be taken in the light of the teachings of Jehovah’s Witnesses. While each case must of necessity be based on the particular beliefs of the individual registrant, it is true that the Congress, by relating the registrant’s conscientious objection to his religious training and belief, has made the belief of his sect relevant. Moreover, the petitioner does parenthetically say that his belief in the use of force was “as well . . . [the belief of] all Jehovah’s Witnesses.” On the other hand, though the Government has appended to its brief a copy of the Watchtower magazine of February 1, 1951, we do not find any such literature in the record. It is not at all clear that we may consider such material outside the record to support an Appeal Board decision, cf. Cox v. United States, 332 U. S. 442, 453-455 (1947), but we need not decide that here because in any event there is no substance to the Government’s contention. Granting that these articles picture Jehovah’s Witnesses as antipacifists, extolling the ancient wars of the Israelites and ready to engage in a “theocratic war” if Jehovah so commands them, and granting that the Jehovah’s Witnesses will fight at Armageddon, we do not feel this is enough. The test is not whether the registrant is opposed to all war, but whether he is opposed, on religious grounds, to participation in war. As to theocratic war, petitioner’s willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future. And although the Jehovah’s Witnesses may fight in the Armageddon, we are not able to stretch our imagination to the point of believing that the yardstick of the Congress includes within its measure such spiritual wars between the powers of good and evil where the Jehovah’s Witnesses, if they participate, will do so without carnal weapons.
We believe that Congress had in mind real shooting wars when it referred to participation in war in any form — actual military conflicts between nations of the earth in our time-r-wars with bombs and bullets, tanks, planes and rockets. We believe the reasoning of the Government in denying petitioner’s claim is so far removed from any possible congressional intent that it is erroneous as a matter of law.
The Court of Appeals also rested its decision on the conclusion that petitioner’s objection to participation in war was only a facet of his real objection to all governmental authority. We believe, however, that if the requisite objection to participation in war exists, it makes no difference that a registrant also claims, on religious grounds, other exemptions which are not covered by the Act. Once he comes within § 6 (j), he does not forfeit its coverage because of his other beliefs which may extend beyond the exemption granted by Congress.
The Government also contends, apparently for the first time, that petitioner objects to “participation in war in any form,” if in fact he does, not from a feeling that it is wrong to participate in war but because such participation will require time which petitioner feels should be devoted to his religious activities. In its memorandum indicating its lack of opposition to certiorari, the Government gave no hint that it considered such an issue in the case, and it is unnecessary for us to consider it here. The report of the Department of Justice to the Appeal Board clearly bases its recommendation on petitioner’s willingness to “fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,” and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule. Cf. United States ex rel. Levy v. Cain, 149 F. 2d 338, 342 (C. A. 2d Cir. 1945); United States v. Balogh, 157 F. 2d 939, 943-944 (C. A. 2d Cir. 1946), judgment vacated on other grounds, 329 U. S. 692; United States v. Everngam, 102 F. Supp. 128 (S. D. W. Va. 1951).
The decision below is therefore
Reversed.
In United States v. Taffs, in which we denied certiorari, 347 U. S. 928, the Government admitted as much in its petition. Its admission here does not extend to the category “brethren” which was not used in Taffs.
|
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"
] |
[
106
] |
NATIONAL LABOR RELATIONS BOARD v. FLEETWOOD TRAILER CO., INC.
No. 49.
Argued November 8, 1967.
Decided December 18, 1967.
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Arnold Ordman and Dominick L. Manoli.
Hugh J. Scallon argued the cause for respondent. With him on the brief was Jerome C. Byrne.
J. Albert Woll, Laurence Gold and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal.
Mr. Justice Fortas
delivered the opinion of the Court.
Respondent is a manufacturer of mobile homes. On August 5, 1964, it employed about 110 persons. On August 6, 1964, as a result of a breakdown in collective bargaining negotiations between respondent and the Union, about half of the employees struck. Respondent cut back its production schedule from the prestrike figure of 20 units to 10 units per week, and curtailed its orders for raw materials correspondingly. On August 18, the Union accepted the respondent’s last contract offer, terminated the strike, and requested reinstatement of the strikers.
Respondent explained that it could not reinstate the strikers “right at that moment” because of the curtailment of production caused by the strike. The evidence is undisputed that it was the company’s intention “at all times” to increase production to the full prestrike volume “as soon as possible.”
The six strikers involved in this case applied for reinstatement on August 20 and on a number of occasions thereafter. On that date, no jobs were available, and their applications were rejected. However, between October 8 and 16, the company hired six new employees, who had not previously worked for it, for jobs which the striker-applicants were qualified to fill. Later, in the period from November 2 through December 14, the six strikers were reinstated.
An NLRB complaint was issued upon charges filed by the six employees. As amended, the complaint charged respondent with unfair labor practices within the meaning of §§ 8 (a)(1) and (3) of the National Labor Relations Act (61 Stat. 140, 29 U. S. C. §§ 158(a)(1) and (3)) because of the hiring of new employees instead of the six strikers. After hearing, the Trial Examiner concluded that respondent had discriminated against the strikers by failing to accord them their rights to reinstatement as employees in October when respondent hired others to fill the available jobs. Accordingly, the Examiner recommended that respondent should make each of the six whole for loss of earnings due to its failure to return them to employment at the time of the October hirings and until they were re-employed. A three-member panel of the Board adopted the findings, conclusions and recommendations of the Trial Examiner.
The Board filed a petition for enforcement of the order. The Court of Appeals for the Ninth Circuit, one judge dissenting, denied enforcement. 366 F. 2d 126 (1966). It held that the right of the strikers to jobs must be judged as of the date when they apply for reinstatement. Since the six strikers applied for reinstatement on August 20, and since there were no jobs available on that date, the court concluded that the respondent had not committed an unfair labor practice by failing to employ them. We granted certiorari on petition of the Board. 386 U. S. 990 (1967). We reverse.
Section 2 (3) of the Act (61 Stat. 137, 29 U. S. C. § 152 (3)) provides that an individual whose work has ceased as a consequence of a labor dispute continues to be an employee if he has not obtained regular and substantially equivalent employment. If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (61 Stat. 140 and 151, 29 U. S. C. §§ 157 and 163). Under §§ 8 (a)(1) and (3) (29 U. S. C. §§ 158 (1) and (3)) it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to “legitimate and substantial business justifications,” he is guilty of an unfair labor practice. NLRB v. Great Dane Trailers, 388 U. S. 26, 34 (1967). The burden of proving justification is on the employer. Ibid. It is the primary responsibility of the Board and not of the courts “to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” Id., at 33-34. See also NLRB v. Erie Resistor Corp., 373 U. S. 221, 228-229, 235-236 (1963). Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951), is not an invitation to disregard this rule.
In some situations, “legitimate and substantial business justifications” for refusing to reinstate employees who engaged in an economic strike have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations. NLRB v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345-346 (1938); NLRB v. Plastilite Corp., 375 F. 2d 343 (C. A. 8th Cir.1967); Brown & Root, 132 N. L. R. B. 486 (1961). In the present case, respondent hired 21 replacements during the strike, compared with about 55 strikers; and it is clear that the jobs of the six strikers were available after the strike. Indeed, they were filled by new employees.
A second basis for justification is suggested by the Board — when the striker’s job has been eliminated for substantial and bona fide reasons other than considerations relating to labor relations: for example, “the need to adapt to changes in business conditions or to improve efficiency.” We need not consider this claimed justification because in the present case no changes in methods of production or operation were shown to have been instituted which might have resulted in eliminating the strikers’ jobs.
The Court of Appeals emphasized in the present case the absence of any antiunion motivation for the failure to reinstate the six strikers. But in NLRB v. Great Dane Trailers, supra, which was decided after the Court of Appeals’ opinion in the present case, we held that proof of antiunion motivation is unnecessary when the employer’s conduct “could have adversely affected employee rights to some extent” and when the employer does not meet his burden of establishing “that he was motivated by legitimate objectives.” Id., at 34. Great Dane Trailers determined that payment of vacation benefits to nonstrikers and denial of those, payments to strikers carried “a potential for adverse effect upon employee rights.” Because “no evidence of a proper motivation appeared in the record,” we agreed with the Board that the employer had committed an unfair labor practice. Id., at 35. A refusal to reinstate striking employees, which is involved in this case, is clearly no less destructive of important employee rights than a refusal to make vacation payments. And because the employer here has not shown “legitimate and substantial business justifications,” the conduct constitutes an unfair labor practice without reference to intent.
The Court of Appeals, however, held that the respondent did not discriminate against the striking employees because on the date when they applied for work, two days after the end of the strike, respondent had no need f;or their services. But it is undisputed that the employees continued to make known their availability and desire for reinstatement, and that “at all times” respondent intended to resume full production to reactivate the jobs and to fill them.
It was clearly error to hold that the right of the strikers to reinstatement expired on August 20, when they first applied. This basic right to jobs cannot depend upon job availability as of the moment when the applications are filed. The right to reinstatement does not depend upon technicalities relating to application. On the contrary, the status of the striker as an employee continues until he has obtained “other regular and substantially equivalent employment.” (29 U. S. C. § 152 (3).) Frequently a strike affects the level of production and the number of jobs. It is entirely normal for striking employees to apply for reinstatement immediately after the end of the strike and before full production is resumed. If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show “legitimate and substantial business justifications.” NLRB v. Great Dane Trailers, supra.
Accordingly, the judgment of the Court of Appeals is vacated and the cause is remanded 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.
The Union is the San Bemardino-Riverside Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
Respondent’s production program was consistent with this intention. During a period of about 18 weeks after the strike, the number of units scheduled per week increased in a steady progression from 10 to 12 to 14 to 16 to 18 to 19 and, finally, to 20 for the week ending December 13, 1964.
153 N. L. R. B. 425 (1965). “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.” Section 3 (b), 61 Stat. 139, 29 U. S. C. §153 (b).
Although the decision of the Court of Appeals, as we read it, resulted from its erroneous holding that the right of the strikers to jobs depends upon the date of their (first) application for reinstatement, it recited that the Board’s General Counsel had failed to show “that the jobs of complainants had not been absorbed or that they were still available.” Such proof is not essential to establish an unfair labor practice. It relates to justification, and the burden of such proof is on the employer. NLRB v. Great Dane Trailers, supra, at 34. Cf. also NLRB v. Plastilite Corp., 375 F. 2d 343, 348 (C. A. 8th Cir. 1967).
Unfair labor practice strikers are ordinarily entitled to reinstatement even if the employer has hired permanent replacements. See Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 278 (1956).
The Trial Examiner found that “the six job openings in October could have been filled by the striker applicants and, had the Respondent considered them as employees rather than as mere applicants for hire, would have been so filled.”
Brief on behalf of NLRB 15.
The respondent contends that the Union agreed to a nonpreferen-tial hiring list and thereby waived the rights of the strikers to reinstatement ahead of the new applicants. The Board found that the Union, having lost the strike, merely “bowed to the [respondent’s] decision.” The Court of Appeals did not rule on this point or on the effect, if any, that its resolution might have upon the outcome of this case. Upon remand, the issue will be open for such consideration as may be appropriate.
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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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INDOPCO, INC. v. COMMISSIONER OF INTERNAL REVENUE
No. 90-1278.
Argued November 12, 1991
Decided February 26, 1992
Blackmun, J,, delivered the opinion for a unanimous Court.
Richard J. Hiegel argued the cause for petitioner. With him on the briefs were Geoffrey R. S. Brown, Rory 0. Mill-son, and Richard H. Walker.
Kent L. Jones argued the cause for respondent. With him on the brief were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Gilbert S. Rothenberg, and Bruce R. Ellisen,
Timothy J. McCormally and Mary L. Fahey filed a brief for the Tax Executives Institute, Inc., as amicus curiae urging reversal.
Justice Blackmun
delivered the opinion of the Court.
In this case we must decide whether certain professional expenses incurred by a target corporation in the course of a friendly takeover are deductible by that corporation as “ordinary and necessary” business expenses under § 162(a) of the Internal Revenue Code.
I
Most of the relevant facts are stipulated. See App. 12, 149. Petitioner INDOPCO, Inc., formerly named National Starch and Chemical Corporation and hereinafter referred to as National Starch, is a Delaware corporation that manufactures and sells adhesives, starches, and specialty chemical products. In October 1977, representatives of Unilever United States, Inc., also a Delaware corporation (Unilever), expressed interest in acquiring National Starch, which was one of its suppliers, through a friendly transaction. National Starch at the time had outstanding over 6,563,000 common shares held by approximately 3,700 shareholders. The stock was listed on the New York Stock Exchange. Frank and Anna Greenwall were the corporation’s largest shareholders and owned approximately 14.5% of the common. The Greenwalls, getting along in years and concerned about their estate plans, indicated that they would transfer their shares to Unilever only if a transaction tax free for them could be arranged.
Lawyers representing both sides devised a “reverse subsidiary cash merger” that they felt would satisfy the Green-walls’ concerns. Two new entities would be created — National Starch and Chemical Holding Corp. (Holding), a subsidiary of Unilever, and NSC Merger, Inc., a subsidiary of Holding that would have only a transitory existence. In an exchange specifically designed to be tax free under § 351 of the Internal Revenue Code, 26 U. S. C. §351, Holding would exchange one share of its nonvoting preferred stock for each share of National Starch common that it received from National Starch shareholders. Any National Starch common that was not so exchanged would be converted into cash in a merger of NSC Merger, Inc., into National Starch.
In November 1977, National Starch’s directors were formally advised of Unilever’s interest and the proposed transaction. At that time, Debevoise, Plimpton, Lyons & Gates, National Starch’s counsel, told the directors that under Delaware law they had a fiduciary duty to ensure that the proposed transaction would be fair to the shareholders. National Starch thereupon engaged the investment banking firm of Morgan Stanley & Co., Inc., to evaluate its shares, to render a fairness opinion, and generally to assist in the event of the emergence of a hostile tender offer.
Although Unilever originally had suggested a price between $65 and $70 per share, negotiations resulted in a final offer of $73.50 per share, a figure Morgan Stanley found to be fair. Following approval by National Starch’s board and the issuance of a favorable private ruling from the Internal Revenue Service that the transaction would be tax free under § 351 for those National Starch shareholders who exchanged their stock for Holding preferred, the transaction was consummated in August 1978.
Morgan Stanley charged National Starch a fee of $2,200,000, along with $7,586 for out-of-pocket expenses and $18,000 for legal fees. The Debevoise firm charged National Starch $490,000, along with $15,069 for out-of-pocket expenses. National Starch also incurred expenses aggregating $150,962 for miscellaneous items — such as accounting, printing, proxy solicitation, and Securities and Exchange Commission fees — in connection with the transaction. No issue is raised as to the propriety or reasonableness of these charges.
On its federal income tax return for its short taxable year ended August 15, 1978, National Starch claimed a deduction for the $2,225,586 paid to Morgan Stanley, but did not deduct the $505,069 paid to Debevoise or the other expenses. Upon audit, the Commissioner of Internal Revenue disallowed the claimed deduction and issued a notice of deficiency. Petitioner sought redetermination in the United States Tax Court, asserting, however, not only the right to deduct the investment banking fees and expenses but, as well, the legal and miscellaneous expenses incurred.
The Tax Court, in an unreviewed decision, ruled that the expenditures were capital in nature and therefore not deductible under § 162(a) in the 1978 return as “ordinary and necessary expenses.” National Starch and Chemical Corp. v. Commissioner, 93 T. C. 67 (1989). The court based its holding primarily on the long-term benefits that accrued to National Starch from the Unilever acquisition. Id., at 75. The United States Court of Appeals for the Third Circuit affirmed, upholding the Tax Court’s findings that “both Unilever’s enormous resources and the possibility of synergy arising from the transaction served the long-term betterment of National Starch.” National Starch & Chemical Corp. v. Commissioner, 918 F. 2d 426, 432-433 (1990). In so doing, the Court of Appeals rejected National Starch’s contention that, because the disputed expenses did not “create or enhance ... a separate and distinct additional asset,” see Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345, 354 (1971), they could not be capitalized and therefore were deductible under § 162(a). 918 F. 2d, at 428-431. We granted certiorari to resolve a perceived conflict on the issue among the Courts of Appeals. 500 U. S. 914 (1991).
II
Section 162(a) of the Internal Revenue Code allows the deduction of “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” 26 U. S. C. § 162(a). In contrast, §263 of the Code allows no deduction for a capital expenditure — an “amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate.” § 263(a)(1). The primary effect of characterizing a payment as either a business expense or a capital expenditure concerns the timing of the taxpayer’s cost recovery: While business expenses are currently deductible, a capital expenditure usually is amortized and depreciated over the life of the relevant asset, or, where no specific asset or useful life can be ascertained, is deducted upon dissolution of the enterprise. See 26 U. S. C. §§ 167(a) and 336(a); Treas. Reg. § 1.167(a), 26 CFR § 1.167(a) (1991). Through provisions such as these, the Code endeavors to match expenses with the revenues of the taxable period to which they are properly attributable, thereby resulting in a more accurate calculation of net income for tax purposes. See, e. g., Commissioner v. Idaho Power Co., 418 U. S. 1, 16 (1974); Ellis Banking Corp. v. Commissioner, 688 F. 2d 1376, 1379 (CA11 1982), cert. denied, 463 U. S. 1207 (1983).
In exploring the relationship between deductions and capital expenditures, this Court has noted the “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 (1943); Deputy v. Du Pont, 308 U. S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440 (1934). The notion that deductions are exceptions to the norm of capitalization finds support in various aspects of the Code. Deductions are specifically enumerated and thus are subject to disallowance in favor of capitalization. See §§161 and 261. Nondeductible capital expenditures, by contrast, are not exhaustively enumerated in the Code; rather than providing a “complete list of nondeductible expenditures,” Lincoln Savings, 403 U. S., at 358, § 263 serves as a general means of distinguishing capital expenditures from current expenses. See Commissioner v. Idaho Power Co., 418 U. S., at 16. For these reasons, deductions are strictly construed and allowed only “as there is a clear provision therefor.” New Colonial Ice Co. v. Helvering, 292 U. S., at 440; Deputy v. Du Pont, 308 U. S., at 493.
The Court also has examined the interrelationship between the Code’s business expense and capital expenditure provisions. In so doing, it has had occasion to parse § 162(a) and explore certain of its requirements. For example, in Lincoln Savings, we determined that, to qualify for deduction under § 162(a), “an item must (1) be ‘paid or incurred during the taxable year,’ (2) be for ‘carrying on any trade or business,’ (3) be an ‘expense,’ (4) be a ‘necessary’ expense, and (5) be an ‘ordinary’ expense.” 403 U. S., at 352. See also Commissioner v. Tellier, 383 U. S. 687, 689 (1966) (the term “necessary” imposes “only the minimal requirement that the expense be ‘appropriate and helpful’ for ‘the development of the [taxpayer’s] business,’” quoting Welch v. Helvering, 290 U. S. 111, 113 (1933)); Deputy v. Du Pont, 308 U. S., at 495 (to qualify as “ordinary,” the expense must relate to a transaction “of common or frequent occurrence in the type of business involved”)- The Court has recognized, however, that the “decisive distinctions” between current ex-, penses and capital expenditures “are those of degree and not of kind,” Welch v. Helvering, 290 U. S., at 114, and that because each case “turns on its special facts,” Deputy v. Du Pont, 308 U. S., at 496, the cases sometimes appear difficult to harmonize. See Welch v. Helvering, 290 U. S., at 116.
National Starch contends that the decision in Lincoln Savings changed these familiar backdrops and announced an exclusive test for identifying capital expenditures, a test in which “creation or enhancement of an asset” is a prerequisite to capitalization, and deductibility under § 162(a) is the rule rather than the exception. Brief for Petitioner 16. We do not agree, for we conclude that National Starch has overread Lincoln Savings.
In Lincoln Savings, we were asked to decide whether certain premiums, required by federal statute to be paid by a savings and loan association to the Federal Savings and Loan Insurance Corporation (FSLIC), were ordinary and necessary expenses under § 162(a), as Lincoln Savings argued and the Court of Appeals had held, or capital expenditures under §263, as the Commissioner contended. We found that the “additional” premiums, the purpose of which was to provide FSLIC with a secondary reserve fund in which each insured institution retained a pro rata interest recoverable in certain situations, “serv[e] to create or enhance for Lincoln what is essentially a separate and distinct additional asset.” 403 U. S., at 364. “[A]s an inevitable consequence,” we concluded, “the payment is capital in nature and not an expense, let alone an ordinary expense, deductible under § 162(a).” Ibid.
Lincoln Savings stands for the simple proposition that a taxpayer’s expenditure that “serves to create or enhance ... a separate and distinct” asset should be capitalized under § 263. It by no means follows, however, that only expenditures that create or enhance separate and distinct assets are to be capitalized under § 263. We had no occasion in Lincoln Savings to consider the tax treatment of expenditures that, unlike the additional premiums at issue there, did not create or enhance a specific asset, and thus the case cannot be read to preclude capitalization in other circumstances. In short, Lincoln Savings holds that the creation of a separate and distinct asset well may be a sufficient, but not a necessary, condition to classification as a capital expenditure. See General Bancshares Corp. v. Commissioner, 326 F. 2d 712, 716 (CA8) (although expenditures may not “resul[t] in the acquisition or increase of a corporate asset,... these expenditures are not, because of that fact, deductible as ordinary and necessary business expenses”), cert. denied, 379 U. S. 832 (1964).
Nor does our statement in Lincoln Savings, 403 U. S., at 354, that “the presence of an ensuing benefit that may have some future aspect is not controlling” prohibit reliance on future benefit as a means of distinguishing an ordinary business expense from a capital expenditure. Although the mere presence of an incidental future benefit — “some future aspect” — may not warrant capitalization, ja .taxpayer’s realization of benefits beyond the year in which the expenditure is incurred is undeniably important in determining whether the appropriate tax treatment is immediate deduction or capitalization. See United States v. Mississippi Chemical Corp., 405 U. S. 298, 310 (1972) (expense that “is of value in more than one taxable year” is a nondeductible capital expenditure); Central Texas Savings & Loan Assn. v. United States, 731 F. 2d 1181, 1183 (CA5 1984) (“While the period of the benefits may not be controlling in all cases, it nonetheless remains a prominent, if not predominant, characteristic of a capital item”). Indeed, the text of the Code’s capitalization provision, § 263(a)(1), which refers to “permanent improvements or betterments,” itself envisions an inquiry into the duration and extent of the benefits realized by the taxpayer.
III
In applying the foregoing principles to the specific expenditures at issue in this case, we conclude that National Starch has not demonstrated that the investment banking, legal, and other costs it incurred in connection with Unilever’s acquisition of its shares are deductible as ordinary and necessary business expenses under § 162(a).
Although petitioner attempts to dismiss the benefits that accrued to National Starch from the Unilever acquisition as “entirely speculative” or “merely incidental,” Brief for Petitioner 39-40, the Tax Court’s and the Court of Appeals’ findings that the transaction produced significant benefits to National Starch that extended beyond the tax year in question are amply supported by the record. For example, in commenting on the merger with Unilever, National Starch’s 1978 “Progress Report” observed that the company would “benefit greatly from the availability of Unilever’s enormous resources, especially in the area of basic technology.” App. 43. See also id., at 46 (Unilever “provides new opportunities and resources”). Morgan Stanley’s report to the National Starch board concerning the fairness to shareholders of a possible business combination with Unilever noted that National Starch management “feels that some synergy may exist with the Unilever organization given a) the nature of the Unilever chemical, paper, plastics and packaging operations . . . and b) the strong consumer products orientation of Unilever United States, Inc.” Id., at 77-78.
In addition to these anticipated resource-related benefits, National Starch obtained benefits through its transformation from a publicly held, freestanding corporation into a wholly owned subsidiary of Unilever. The Court of Appeals noted that National Starch management viewed the transaction as “'swapping approximately 3500 shareholders for one.’” 918 F. 2d, at 427; see also App. 223. Following Unilever’s acquisition of National Starch’s outstanding shares, National Starch was no longer subject to what even it terms the “substantial” shareholder-relations expenses a publicly traded corporation incurs, including reporting and disclosure obligations, proxy battles, and derivative suits. Brief for Petitioner 24. The acquisition also allowed National Starch, in the interests of administrative convenience and simplicity, to eliminate previously authorized but unissued shares of preferred and to reduce the total number of authorized shares of common from 8,000,000 to 1,000. See 93 T. C., at 74.
Courts long have recognized that expenses such as these, “ ‘incurred for the purpose of changing the corporate structure for the benefit of future operations are not ordinary and necessary business expenses.’” General Bancshares Corp. v. Commissioner, 326 F. 2d, at 715 (quoting Farmers Union Corp. v. Commissioner, 300 F. 2d 197, 200 (CA9), cert. denied, 371 U. S. 861 (1962)). See also B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 5-33 to 5-36 (5th ed. 1987) (describing “well-established rule” that expenses incurred in reorganizing or restructur-. ing corporate entity are not deductible under § 162(a)). Deductions for professional expenses thus have been disallowed in a wide variety of cases concerning changes in corporate structure. Although support for these decisions can be found in the specific terms of § 162(a), which require that deductible expenses be “ordinary and necessary” and incurred “in carrying on any trade or business,” courts more frequently have characterized an expenditure as capital in nature because “the purpose for which the expenditure is made has to do with the corporation’s operations and betterment, sometimes with a continuing capital asset, for the duration of its existence or for the indefinite future or for a time somewhat longer than the current taxable year.” General Bancshares Corp. v. Commissioner, 326 F. 2d, at 715. See also Mills Estate, Inc. v. Commissioner, 206 F. 2d 244, 246 (CA2 1953). The rationale behind these decisions applies equally to the professional charges at issue in this case.
IV
The expenses that National Starch incurred in Unilever’s friendly takeover do not qualify for deduction as “ordinary and necessary” business expenses under § 162(a). The fact that the expenditures do not create or enhance a separate and distinct additional asset is not controlling; the acquisition-related expenses bear the indicia of capital expenditures and are to be treated as such.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Unilever is a holding company. Its then principal subsidiaries were Lever Brothers Co. and Thomas 'J. Lipton, Inc.
Approximately 21% of National Starch common was exchanged for Holding preferred. The remaining 79% was exchanged for cash. App. 14.
Compare the Third Circuit’s opinion, 918 F. 2d, at 430, with NCNB Corp. v. United States, 684 F. 2d 285, 293-294 (CA4 1982) (bank expenditures for expansion-related planning reports, feasibility studies, and regulatory applications did not “create or enhance separate and identifiable assets,” and therefore were ordinary and necessary expenses under § 162(a)), and Briarcliff Candy Corp. v. Commissioner, 475 F. 2d 776, 782 (CA2 1973) (suggesting that Lincoln Savings “brought about a radical shift in emphasis,” making capitalization dependent on whether the expenditure creates or enhances a separate and distinct additional asset). See also Central Texas Savings & Loan Assn. v. United States, 731 F. 2d 1181, 1184 (CA5 1984) (inquiring whether establishment of new branches “creates a separate and distinct additional asset” so that capitalization is the proper tax treatment).
See also Johnson, The Expenditures Incurred by the Target Corporation in an Acquisitive Reorganization are Dividends to the Shareholders, 53 Tax Notes 463, 478 (1991) (noting the importance of a “strong law of capitalization” to the tax system).
See, e. g., Commissioner v. Idaho Power Co., 418 U. S. 1 (1974) (equipment depreciation allocable to construction of capital facilities is to be capitalized); United States v. Mississippi Chemical Corp., 405 U. S. 298 (1972) (cooperatives’ required purchases of stock in Bank for Cooperatives are not currently deductible); Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345 (1971) (additional premiums paid by bank to federal insurers are capital expenditures); Woodward v. Commissioner, 397 U. S. 572 (1970) (legal, accounting, and appraisal expenses incurred in purchasing minority stock interest are capital expenditures); United States v. Hilton Hotels Corp., 397 U. S. 580 (1970) (consulting, legal, and other professional fees incurred by acquiring firm in minority stock appraisal proceeding are capital expenditures); Commissioner v. Tellier, 383 U. S. 687 (1966) (legal expenses incurred in defending against securities fraud charges are deductible under § 162(a)); Commissioner v. Heininger, 320 U. S. 467 (1943) (legal expenses incurred in disputing adverse postal designation are deductible as ordinary and necessary expenses); Interstate Transit Lines v. Commissioner, 319 U. S. 590 (1943) (payment by parent company to cover subsidiary’s operating deficit is not deductible as a business expense); Deputy v. Du Pont, 308 U. S. 488 (1940) (expenses incurred by shareholder in helping executives of company acquire stock are not deductible); Helvering v. Winmill, 305 U. S. 79 (1938) (brokerage commissions are capital expenditures); Welch v. Helvering, 290 U. S. 111 (1933) (payments of former employer’s debts are capital expenditures).
Petitioner contends that, absent a separate-and-distinct-asset requirement for capitalization, a taxpayer will have no “principled basis” upon which to differentiate business expenses from capital expenditures. Brief for Petitioner 37-41. We note, however, that grounding tax status on the existence of an asset would be unlikely to produce the bright-line rule that petitioner desires, given that the notion of an “asset” is itself flexible and amorphous. See Johnson, 53 Tax Notes, at 477-478.
See, e. g., McCrory Corp. v. United States, 651 F. 2d 828 (CA2 1981) (statutory merger under 26 U. S. C. §368(a)(1)(A)); Bilar Tool & Die Corp. v. Commissioner, 530 F. 2d 708 (CA6 1976) (division of corporation into two parts); E. I. du Pont de Nemours & Co. v. United States, 432 F. 2d 1052 (CA3 1970) (creation of new subsidiary to hold assets of prior joint venture); General Bancshares Corp. v. Commissioner, 326 F. 2d 712, 715 (CA8) (stock dividends), cert. denied, 379 U. S. 832 (1964); Mills Estate, Inc. v. Commissioner, 206 F. 2d 244 (CA2 1953) (recapitalization).
See, e. g., Motion Picture Capital Corp. v. Commissioner, 80 F. 2d 872, 873-874 (CA2 1936) (recognizing that expenses may be “ordinary and necessary” to corporate merger, and that mergers may be “ordinary and necessary business occurrences,” but declining to find that merger is part of “ordinary and necessary business activities,” and concluding that expenses are therefore not deductible); Greenstein, The Deductibility of Takeover Costs After National. Starch, 69 Taxes 48, 49 (1991) (expenses incurred to facilitate transfer of business ownership do not satisfy the “carrying on [a] trade or business” requirement of § 162(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
] |
ACOSTA v. LOUISIANA DEPARTMENT OF HEALTH AND HUMAN RESOURCES et al.
No. 85-1500.
Decided June 30, 1986
Per Curiam.
In 1981, petitioner filed a civil rights action against respondents. Respondents moved to dismiss, and the District Court dismissed the action in its entirety. Petitioner filed, and then abandoned, an appeal. Respondents then moved in the District Court for an award of attorney’s fees on the ground that petitioner had filed his action in bad faith. The court granted the motion and awarded respondents fees amounting to some $19,000. Petitioner filed a timely motion to alter or amend the judgment, as authorized by Federal Rule of Civil Procedure 59(e). The District Court held a hearing on the motion and denied it from the bench. Petitioner filed a notice of appeal that same afternoon. Not until two days later, however, was the order denying the motion to alter or amend the judgment entered on the docket. Petitioner did not file a new notice of appeal following the docket entry.
The United States Court of Appeals for the Fifth Circuit dismissed petitioner’s appeal, ruling that the notice of appeal was prematurely filed. 776 F. 2d 1046 (1985). The Court of Appeals relied on Federal Rule of Appellate Procedure 4(a)(4), which, in pertinent part, provides:
“If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party . . . under Rule 59 to alter or amend the judgment . . . the time for appeal for all parties shall run from the entry of the order . . . granting or denying any . . . such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.”
The court concluded that because petitioner filed his notice of appeal before the order disposing of the Rule 59 motion, Rule 4(a)(4) required it to treat the notice as a “nullity” and thus deprived the court of jurisdiction over the appeal.
The Fifth Circuit’s interpretation of Rule 4(a)(4) is directly contrary to that adopted by the Court of Appeals for the Ninth Circuit in Calhoun v. United States, 647 F. 2d 6 (1981). There, the court held that the Rule’s command that “[a] notice of appeal filed before the disposition of [a Rule 59 motion] shall have no effect,” did not render a notice of appeal filed after the announcement of the decision on the motion but before the entry of the order a nullity. Rather, the court concluded that the term “disposition” as used in the rule was synonymous with “announcement”; accordingly, a notice of appeal could be given effect as long as it was filed after the trial court’s announcement of its ruling. The Ninth Circuit concluded that this interpretation of the Rule was justified by “the policy of ‘exercising all proper means to prevent the loss of valuable rights when the validity of an appeal is challenged not because something was done too late, but rather because it was done too soon.’” Id., at 10 (quoting Williams v. Town of Okoboji, 599 F. 2d 238, 239-240 (CA8 1979)). The court reasoned that if a notice filed before entry of the order were deemed defective, “valuable rights [might] be lost because an important, but ministerial, act was not performed when expected.” 647 F. 2d, at 11.
Because such a direct conflict over the interpretation of the Rules of Appellate Procedure calls for resolution in this Court, we grant the petition for a writ of certiorari. Finding that the issue is not one that requires plenary consideration, we now affirm the judgment of the Court of Appeals.
Unlike the decision of the Ninth Circuit in Calhoun, the decision below comports with the plain wording of the Rules. Rule 4(a)(4) specifically states that a notice of appeal, to be effective, must be “filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.” Further, Rule 4(a)(2) provides that, “[ejxcept as provided in (a)(k) of this Rule U, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof” (emphasis added). The plain import of this language is that with respect to the particular motions to which it applies, Rule 4(a)(4) constitutes an exception to the general rule that a notice of appeal filed after announcement of an order but before its entry in the docket will be deemed timely filed. The Ninth Circuit’s Calhoun rule essentially reads the first clause of subdivision (a)(2) out of Rule 4 by holding that Rule 4(a)(4) does not constitute such an exception. But if subdivision (a)(2) is taken seriously, it is untenable to read subdivision (a)(4) except as the Fifth Circuit has read it in this case: that is, as establishing the rule that a notice of appeal is ineffective unless filed after entry of judgment on a Rule 59 motion or any of the other motions to which the subdivision applies.
The judgment of the Court of Appeals is therefore
Affirmed.
Justice Brennan would grant the petition for certiorari and set the case for oral argument.
Accordingly, respondents’ motion for an award of damages on the ground that the petition is frivolous is denied.
|
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
] |
SUPERINTENDENT OF INSURANCE OF NEW YORK v. BANKERS LIFE & CASUALTY CO. et al.
No. 70-60.
Argued October 13, 1971
Decided November 8, 1971
Arnold Bauman argued the cause for petitioner. With him on the briefs was Morton J. Schlossberg.
William W. Karatz argued the cause and filed a brief for respondent Irving Trust Co. Irving Parker argued the cause for respondent Bankers Life & Casualty Co. With him on the brief were William T. Kirby and Isaac M. Bayda. William E. Willis and Michael M. Maney filed a brief for respondents Belgian-American Banking Corp. et al. William Heller filed a brief for respondents Garvin, Bantel & Co. et al.
Walter P. North argued the cause for the Securities and Exchange Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Philip A. Loomis, Jr., and Theodore Sonde.
Mr. Justice Douglas
delivered the opinion of the Court.
Manhattan Casualty Co., now represented by petitioner, New York’s Superintendent of Insurance, was, it is alleged, defrauded in the sale of certain securities in violation of § 17 (a) of the Securities Act of 1933, 48 Stat. 84, 15 U. S. C. § 77q (a), and of § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b). The District Court dismissed the complaint, 300 F. Supp. 1083, and the Court of Appeals affirmed, by a divided bench. 430 F. 2d 355. The case is here on a petition for a writ of certiorari which we granted, 401 U. S. 973.
It seems that Bankers Life & Casualty Co., one of the respondents, agreed to sell all of Manhattan’s stock to one Begole for $5,000,000. It is alleged that Begole conspired with one Bourne and others to pay for this stock, not out of their own funds, but with Manhattan’s assets. They were alleged to have arranged, through Garvin, Bantel & Co. — a note brokerage firm — to obtain a $5,000,000 check from respondent Irving Trust Co., although they had no funds on deposit there at the time. On the same day they purchased all the stock of Manhattan from Bankers Life for $5,000,000 and as stockholders and directors, installed one Sweeny as president of Manhattan.
Manhattan then sold its United States Treasury bonds for $4,854,552.67. That amount, plus enough cash to bring the total to $5,000,000, was credited to an account of Manhattan at Irving Trust and the $5,000,000 Irving Trust check was charged against it. As a result, Begole owned all the stock of Manhattan, having used $5,000,000 of Manhattan's assets to purchase it.
To complete the fraudulent scheme, Irving Trust issued a second $5,000,000 check to Manhattan which Sweeny, Manhattan's new president, tendered to Belgian-American Bank & Trust Co. which issued a $5,000,000 certificate of deposit in the name of Manhattan. Sweeny endorsed the certificate of deposit over to New England Note Corp., a company alleged to be controlled by Bourne. Bourne endorsed the certificate over to Belgian-American Banking Corp. as collateral for a $5,000,000 loan from Belgian-American Banking to New England. Its proceeds were paid to Irving Trust to cover the latter’s second $5,000,000 check.
Though Manhattan's assets had been depleted, its books reflected only the sale of its Government bonds and the purchase of the certificate of deposit and did not show that its assets had been used by Begole to pay for his purchase of Manhattan’s shares or that the certificate of deposit had been assigned to New England and then pledged to Belgian-American Banking.
Manhattan was the seller of Treasury bonds and, it seems to us, clearly protected by § 10 (b), 15 U. S. C. § 78j (b), of the Securities Exchange Act, which makes it unlawful to use “in connection with the purchase or sale” of any security “any manipulative or deceptive device or contrivance” in contravention of the rules and regulations of the Securities and Exchange Commission.
There certainly was an “act” or “practice” within the meaning of Rule 10b-5 which operated as “a fraud or deceit” on Manhattan, the seller of the Government bonds. To be sure, the full market price was paid for those bonds; but the seller was duped into believing that it, the seller, would receive the proceeds. We cannot agree with the Court of Appeals that “no investor [was] injured” and that the “purity of the security transaction and the purity of the trading process were unsullied.” 430 F. 2d, at 361.
Section 10 (b) outlaws the use “in connection with the purchase or sale” of any security of “any manipulative or deceptive device or contrivance.” The Act protects corporations as well as individuals who are sellers of a security. Manhattan was injured as an investor through a deceptive device which deprived it of any compensation for the sale of its valuable block of securities.
The fact that the fraud was perpetrated by an officer of Manhattan and his outside collaborators is irrelevant to our problem. For § 10 (b) bans the use of any deceptive device in the “sale” of any security by “any person.” And the fact that the transaction is not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of § 10 (b). Hooper v. Mountain States Securities Corp., 282 F. 2d 195, 201. Likewise irrelevant is the fact that the proceeds of the sale that were due the seller' were misappropriated. As the Court of Appeals for the Fifth Circuit said in the Hooper case, “Considering the purpose of this legislation, it would be unrealistic to say that a corporation having the capacity to acquire $700,000 worth of assets for its 700,000 shares of stock has suffered no loss if what it gave up was $700,000 but what it got was zero.” 282 F. 2d, at 203.
The Congress made clear that “disregard of trust relationships by those whom the law should regard as fiduciaries, are all a single seamless web” along with manipulation, investor’s ignorance, and the like. H. R. Rep. No. 1383, 73d Cong., 2d Sess., 6. Since practices “constantly vary and where practices legitimate for some purposes may be turned to illegitimate and fraudulent means, broad discretionary powers” in the regulatory agency “have been found practically essential.” Id., at 7. Hence we do not read § 10 (b) as narrowly as the Court of Appeals; it is not “limited to preserving the integrity of the securities markets” (430 F. 2d, at 361), though that purpose is included. Section 10 (b) must be read flexibly, not technically and restrictively. Since there was a “sale” of a security and since fraud was used “in connection with” it, there is redress under § 10 (b), whatever might be available as a remedy under state law.
We agree that Congress by § 10 (b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement. But we read § 10 (b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face. And the fact that creditors of the defrauded corporate buyer or seller of securities may be the ultimate victims does not warrant disregard of the corporate entity. The controlling stockholder owes the corporation a fiduciary obligation — one “designed for the protection of the entire community of interests in the corporation — creditors as well as stockholders.” Pepper v. Litton, 308 U. S. 295, 307.
The crux of the present case is that Manhattan suffered an injury as a result of deceptive practices touching its sale of securities as an investor. As stated in Shell v. Hensley, 430 F. 2d 819, 827:
“When a person who is dealing with a corporation in a securities transaction denies the corporation’s directors access to material information known to him, the corporation is disabled from availing itself of an informed judgment on the part of its board regarding the merits of the transaction. In this situation the private right of action recognized under Rule 10b-5 is available as a remedy for the corporate disability.”
The case was before the lower courts on a motion to dismiss.
Bankers Life urges that the complaint did not allege, and discovery failed to disclose, any connection between it and the fraud and that, therefore, the dismissal of the complaint as to it was correct and should be affirmed. We make no ruling on this point.
The case must be remanded for trial. We intimate no opinion on the merits, as we have dealt only with allegations and with the question of law whether a cause of action as respects the sale by Manhattan of its Treasury bonds has been charged under § 10 (b). We think it has been so charged and accordingly we reverse and remand for proceedings consistent with this opinion.
All defenses except our ruling on § 10 (b) will be open on remand.
Reversed.
Manhattan’s Board of Directors was allegedly deceived into authorizing this sale by the misrepresentation that the proceeds would be exchanged for a certificate of deposit of equal value.
Belgian-American Banking at the same time made a loan to New England Note in the amount of $250,000 which was distributed in part as follows: Belgian-American Banking $100,000, Bourne $50,000, Begole $50,000, and Garvin, Bantel $25,000.
Section 10 (b) provides:
“It shall be unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”
Rule 10b-5, 17 CFR §240.10b-5, provides:
“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
“(a) To employ any device, scheme, or artifice to defraud,
“(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”
N. 4, supra.
Section 3 (a) (10) of the 1934 Act defines “security” very broadly (see Tcherepnin v. Knight, 389 U. S. 332) and clearly embraces Treasury bonds.
See, e. g., Allico Nat. Corp. v. Amalgamated Meat Cutters & Butcher Workmen of North America, 397 F. 2d 727 (CA7 1968), which held sufficient under § 10 (b) and Rule 10b-5 a complaint which charged that defendant union, upon discovering that a third party would pay a higher price, breached a prior agreement to sell 100% of the stock in a wholly owned life insurance company to plaintiffs. The court placed primary reliance on the fact that in the course of the transaction, the union misappropriated some 25,000 shares of the life insurance company’s stock which had previously been sold to plaintiffs for cash, but which were being held in escrow pending consummation of the agreement.
“Even if a breach of contract in order to make a more favorable contract would not in itself be sufficient [to confer jurisdiction under § 10(b)], we have more here. The motivation not only is said to induce a breach of contract . . . but also to induce the conversion of plaintiffs’ pledged 25,000 shares.” Id.., at 729-730. See also Cooper v. North Jersey Trust Co., 226 F. Supp. 972 (SDNY 1964), in which a conspiracy to loan plaintiff money to buy securities, followed by the misappropriation of the purchased securities when they were pledged to secure the loan, was held to violate § 10 (b) and Rule 10b-5.
Indeed, misappropriation is a “garden variety” type of fraud compared to the scheme which gave rise to A. T. Brod & Co. v. Perlow, 375 F. 2d 393 (CA2 1967). That ease involved an action by a broker against its own customers for the recovery of losses suffered when defendant customers refused to pay for securities previously ordered which had decreased in value by the settlement date. The complaint charged that this refusal to honor the purchase order was part of the customers’ deceptive plan only to pay for securities purchased for their account when those securities had appreciated in value by the date payment was due.
Rejecting the customers’ pleas that “no fraud is alleged as to the investment value of the securities nor any fraud ‘usually associated with the sale or purchase of securities,’ ” id., at 396, the Court of Appeals for the Second Circuit — composed of a different panel from the one sitting in the instant case — reversed the District Court’s dismissal of the complaint.
“[We do not] think it sound to dismiss a complaint merely because the alleged scheme does not involve the type of fraud that is ‘usually associated with the sale or purchase of securities.’ We believe that § 10(b) and Rule 10b-5 prohibit all fraudulent schemes in connection with the purchase or sale of securities, whether the artifices employed involve a garden type variety of fraud, or present a unique form of deception. Novel or atypical methods should not provide immunity from the securities laws.” Id., at 397.
The history of the Act shows that Congress was especially concerned with the impact of frauds on creditors of corporations. See H. R. Rep. No. 1383, 73d Cong., 2d Sess., 3-4.
It is now established that a private right of action is implied under §10(b). See 6 L. Loss, Securities Regulation 3869-3873 (1969); 3 L. Loss, Securities Regulation 1763 et seq. (2d ed. 1961). Cf. Tcherepnin v. Knight, 389 U. S. 332; J. I. Case Co. v. Borak, 377 U. S. 426.
Petitioner’s complaint bases his single claim for recovery alternatively on three different transactions alleged to confer jurisdiction under § 10 (b): Manhattan’s sale of the Treasury bonds; the sale of Manhattan stock by Bankers Life to Bourne and Begole; and the transactions involving the certificates of deposit. We only hold that the alleged fraud is cognizable under § 10 (b) and Rule 10b-5 in the bond sale and we express no opinion as to Manhattan’s standing under § 10 (b) and Rule 10b-5 on other phases of the complaint. See Kellogg, The Inability to Obtain Analytical Precision Where Standing to Sue Under Rule 10b-5 is Involved, 20 Buffalo L. Rev. 93 (1970); Lowenfels, The Demise of the Birnbaum Doctrine: A New Era For Rule 10b-5, 54 Va. L. Rev. 268 (1968).
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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
] |
PENNSYLVANIA et al. v. DELAWARE VALLEY CITIZENS’ COUNCIL FOR CLEAN AIR et al.
No. 85-5.
Argued March 3, 1986
Decided July 2, 1986
White, J., delivered the opinion of the Court, in which BurgeR, C. J., and Powell, Rehnquist, 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 MARSHALL, J., joined, and in Part II of which Brennan, J., joined, post, p. 568.
Jay C. Waldman argued the cause for petitioners. With him on the briefs were Henry G. Barr, Spencer A. Man-thorpe, John M. Hrubovcak, and John P. Krill.
Kathryn A. Oberly argued the cause for the United States as respondent under this Court’s Rule 19.6 in support of petitioners. With her on the brief were Solicitor General Fried, F. Henry Habicht II, and Deputy Solicitor General Getter.
■James D. Crawford argued the cause for respondents. With him on the brief was Joyce S. Meyers.
A brief of amici curiae was filed for the State of Arizona et al. by Francis X. Bellotti, Attorney General of Massachusetts, and Suzanne E. Durrell, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Joseph I. Lieberman, Attorney General of Connecticut, Michael J. Bowers, Attorney General of Georgia, Richard G. Opper, Attorney General of Guam, Corinne K. A. Watanabe, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, and Louis J. Caruso, Solicitor General, Edwin Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Stephen E. Merrill, Attorney General of New Hampshire, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpén, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Jeffrey L. Amestoy, Attorney General of Vermont, William Broaddus, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, Charles G. Brown, Attorney General of West Virginia, and A. G. McClintock, Attorney General of Wyoming.
Justice White
delivered the opinion of the Court.
The questions presented in this case are first, whether the Clean Air Act, 42 U. S. C. §7401 et seq., authorizes attorney’s fees awards for time spent by counsel participating in regulatory proceedings; second, whether a court may enhance an award to reflect superior quality of representation rendered by plaintiff’s counsel; and third, whether enhancement of the fee is proper because of plaintiff’s risk of not prevailing on the merits.
I
In 1977, the Delaware Valley Citizens’ Council for Clean Air (Delaware Valley) and the United States each filed suit to compel the Commonwealth of Pennsylvania to implement a vehicle emission inspection and maintenance program (I/M program) as required by the Clean Air Act. See 42 U. S. C. § 7410. Pursuant to a consent decree approved in 1978, the Commonwealth agreed to establish an I/M program for 10 counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The decree called for the Pennsylvania Department of Transportation (PennDOT) to seek legislation instituting a franchise I/M system under which the Commonwealth would contract with garage owners for the establishment of inspection stations. If the legislature failed to approve such a system, then the decree required PennDOT to promulgate regulations allowing Pennsylvania to certify a number of private garage facilities to perform the inspections. In addition, the decree provided for Pennsylvania to pay Delaware Valley $30,000 for attorney’s fees and costs incurred prior to the entry of the consent decree.
Entry of the consent decree marked only the beginning of this story, for implementation of the I/M program did not proceed smoothly. For simplicity’s sake, we will summarize the relevant factual developments into nine phases, with each phase relating to a different aspect of the litigation. Not only is this the method used by the parties and followed by both lower courts, but it is a system for analyzing requests for attorney’s fees and costs that appears to be useful in protracted litigation.
Phase I. After entry of the consent decree, the Pennsylvania Legislature refused to enact a franchise system. Under the decree, PennDOT then, had until July 1, 1979 to publish the necessary regulations. When PennDOT failed to comply, Delaware Valley moved to have the Commonwealth held in contempt; PennDOT published the proposed regulations, however, before the scheduled hearing on the motion. The court thus refrained from finding the Commonwealth in contempt, but ordered the parties to establish a revised schedule for implementation of the I/M program approved by the consent decree.
Phase II. After PennDOT published the proposed I/M program regulations, Delaware Valley continued to monitor the Commonwealth’s performance under the consent decree, and submitted comments on the regulations which were published in the Pennsylvania Bulletin.
Phase III. In late 1979, the Commonwealth requested a modification of the decree delaying implementation of the I/M program until May 1981. With Delaware Valley’s approval, the District Court approved the extension in March 1980.
Phase TV. By February 1981, the Commonwealth still had not published final regulations covering the type of equipment which private garages needed to have in order to become certified inspection stations. The Commonwealth thus asked Delaware Valley to consent to a further postponement of the implementation date to January 1, 1983. The Commonwealth argued that the United States Environmental Protection Agency had recommended a type of emission analyzer different from the one required under the consent decree, but at that time no manufacturer had produced even a prototype of such machinery.
After extensive negotiations over this extension request, the parties failed to reach an agreement. The Commonwealth then filed a motion asking the District Court to grant the second extension and delay the starting date of the I/M program until January 1, 1983. In response, Delaware Valley sought to have the court declare the Commonwealth to be in violation of the consent decree, and requested numerous modifications to the consent decree. On May 20, 1981, the court issued an order finding the Commonwealth in violation of the decree, denying the motion for a further extension, and denying the modifications submitted by Delaware Valley. App. 25a-28a. On June 16, the court denied the Commonwealth’s motion for reconsideration, but approved May 1, 1982, as the new deadline for implementation of the I/M program. Id., at 44a-49a. The Commonwealth appealed both the May 20 and June 16 orders, both of which were affirmed by the Court of Appeals. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 674 F. 2d 976 (CA3), cert. denied, 459 U. S. 905 (1982).
Phase V. Following the District Court’s order of June 16, the Pennsylvania General Assembly enacted a statute, H. B. 456, over the Governor’s veto, which prohibited the expenditure of state funds by the Executive Branch for the implementation of the I/M program. Act of Oct. 5, 1981, No. 99, 1981 Pa. Laws 4. PennDOT and the remainder of the Executive Branch promptly ceased all activities related to implementing the I/M program, except for publication of the final regulations establishing specifications for the emissions analysis equipment to be used by garage owners wishing to participate as inspection locations. 11 Pa. Bull. 3519 (Oct. 10, 1981).
The Commonwealth moved to stay implementation of the consent decree in light of H. B. 456. Delaware Valley opposed that motion, and sought to have the court declare the Commonwealth in contempt and apply sanctions. The court denied the Commonwealth’s motion for a stay and held the Commonwealth in civil contempt. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 533 F. Supp. 869 (ED Pa. 1982). As a sanction, the court ordered the United States Secretary of Transportation to refrain from approving any projects, or awarding any grants, for highways in the two areas covered by the consent decree, except for projects required for purposes of safety, mass transit, or air quality improvement. Id., at 884-885. Once again, the Commonwealth appealed, and once again, the Court of Appeals upheld the District Court’s orders. 678 F. 2d 470 (CA3), cert. denied, 459 U. S. 969 (1982).
Phase VI. After the filing of the consent decree, the city of Pittsburgh and several groups of Pennsylvania legislators attempted to intervene in the litigation. Delaware Valley successfully opposed all of these attempts. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 674 F. 2d 970 (CA3), stay denied, 458 U. S. 1125 (1982).
Phase VII. As noted above, a portion of the District Court’s contempt order prevented the United States Secretary of Transportation from authorizing the expenditure of any federal funds for federal highway projects in Pennsylvania that did not fall into certain categories. In late 1982, the United States approved seven projects for funding, certifying that they would either improve safety or improve air quality. These certifications were submitted to both Delaware Valley and the District Court. The court found that five of the projects did not qualify as exemptions under the terms of its prior order, and only approved two proposals for federal funding. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 551 F. Supp. 827 (ED Pa. 1982).
Phase VIII. On May 3, 1983, the Pennsylvania General Assembly finally passed legislation authorizing the Commonwealth to proceed with implementation of the I/M program, and the Governor signed the bill into law the next day. 75 Pa. Cons. Stat. §§4706-4707 (1984). Subsequently, Delaware Valley and the Commonwealth negotiated a new compliance schedule, under which the I/M program would begin by June 1, 1984. The District Court approved of this new schedule, and vacated its earlier contempt sanctions.
Phase IX. This phase includes work done by Delaware Valley in hearings before the Environmental Protection Agency, during which, inter alia, the Commonwealth unsuccessfully sought that agency’s approval of an I/M program covering a smaller geographic area.
Delaware Valley then sought attorney’s fees and costs for the work performed after issuance of the consent decree in 1978. App. 50a-86a. The District Court awarded Delaware Valley $209,813 in attorney’s fees and an additional $6,675.03 in costs. 581 F. Supp. 1412, 1433 (ED Pa. 1984). To calculate the legal fee award, the District Court first determined:
“[T]he number of hours reasonably necessary to perform the legal services for which compensation is sought. The reasonable number of hours is then multiplied by a reasonable hourly rate for the attorney providing the services, the latter being based on the court’s determination of the attorney’s reputation, status and type of activity for which the attorney is seeking compensation. The sum of the two figures is the ‘lodestar’ which can then be adjusted upward or downward based on the contingency of success, and the quality of an attorney’s work. In all instances plaintiffs have the burden of establishing entitlement to the award claimed and any adjustment to the 'lodestar/” Id., at 1419 [citations omitted].
The court used three separate hourly rates in making its award. Work which the court found to be “most difficult” was compensated at an hourly rate of $100. For work that could have been done “by an attorney working at the associate level,” the hourly rate was set at $65. And for work “which required little or no legal ability,” the court allowed an hourly rate of $25. Id., at 1422.
For the most part, the hours for which Delaware Valley sought compensation were those spent on the postdecree litigation itself. In Phases II and IX, however, Pennsylvania objected that Delaware Valley was seeking compensation for work done in only tangentially related state and federal administrative proceedings. The District Court rejected this argument, and found that because the proposed regulations would have affected Delaware Valley’s rights under the consent decree, it had a unique interest in the proceedings that made its work sufficiently related to the litigation to be com-pensable. See id., at 1423, 1429-1430.
After determining the “lodestar” amounts for all phases of the litigation, the court next considered Delaware Valley’s request for “multipliers” to adjust these figures for “the contingent nature of the case, the quality of the work performed and the results obtained.” Id., at 1431, citing Hensley v. Eckerhart, 461 U. S. 424, 434-435 (1983). Given that the case involved new legal theories with little precedent, and that Delaware Valley was forced to go up against both the Federal Government and the Commonwealth of Pennsylvania to obtain the consent decree initially and then to protect it from being overturned, the court found “[t]he contingent nature of [Delaware Valley’s] success [to have] been apparent throughout this litigation.” 581 Supp., at 1431. The court also found that Delaware Valley’s work during Phase V was “superior,” and that an “[a]n increase based on the quality of work which culminated in an outstanding result is fully justified.” Ibid, (citation omitted).
Accordingly, the District Court applied a multiplier of two to the awards in Phases IV, V, and VII to reflect the low likelihood of success Delaware Valley faced in those stages of the litigation. In addition, the court added a separate multiplier of two to Phase V to adjust the lodestar for the high quality of representation provided in that phase. The court’s final calculation of the fee award for each of the nine phases was as follows:
Multiplier Total Lodestar
Phase I $ 4,478.50 $ 4,478.50
Phase II 1,722.50 1.722.50 I
Phase III 1,745.00 1,745.00 I
Phase IV 36.711.50 2 73,423.00
Phase V 27.372.50 4 109,490.00
Phase I — I 1,820.00 1,820.00
Phase hH H 5.370.50 2 10,741.00
Phase I — I H 1,560.00 1,560.00
Phase 1,453.00 1,453.00
The Court of Appeals for the Third Circuit affirmed. 762 F. 2d 272 (1985). The court analogized § 304(d) of the Clean Air Act, which provides for counsels’ fees, to other statutory-attorney’s fee provisions, and held that “the jurisprudence regarding the calculation of reasonable attorneys fees developed in connection with other attorneys fees statutes — particularly [42 U. S. C.] §1988 — is applicable to cases brought pursuant to § 304(d).” 762 F. 2d, at 275.
The court affirmed the award of fees for time spent commenting on the Commonwealth’s proposed regulations in Phase II for the reasons stated by the District Court. Id., at 276-277. The Court of Appeals also agreed that the fee award for the time devoted by Delaware Valley in Phase IX was proper “because adoption of the state plan modification would have impaired the rights won by [Delaware Valley] in the consent decree.” Id., at 277. The court took note of Webb v. Board of Ed. of Dyer County, 471 U. S. 234 (1985), in which this Court held that time spent on “optional administrative proceedings” may be compensable under § 1988 if the work was “both useful and of a type ordinarily necessary to advance the . . . litigation” to the point where the party succeeded. Id., at 243. The Court of Appeals found that the work of counsel in Phases II and IX “was useful and necessary for securing full enforcement of the decree,” and that the District Court’s fee awards for these two phases were consistent with Webb. 762 F. 2d., at 277, n. 7.
With respect to the use of multipliers, the Court of Appeals concluded that “this was The rare case where the fee applicant offer[ed] specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.”’” Id., at 280, quoting Blum v. Stenson, 465 U. S. 886, 899 (1984). The court also approved the use of “contingency” multipliers to compensate Delaware Valley for the risk of not prevailing. The court stated:
“Unlike Blum, [Delaware Valley] specifically identified the risks inherent in this litigation in its brief to the district court and, although the Supreme Court considers it an open question whether contingency of success can properly justify a lodestar increase, we have resolved the question in this court. See Hall v. Borough of Roselle, 747 F. 2d 838 (3d Cir.1984); Lindy [Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp.], 540 F. 2d [102,] 117 [(CA3 1976) (en banc)].” 762 F. 2d, at 282.
The court also rejected the Commonwealth’s arguments that the District Court failed to make specific findings of fact in awarding the multipliers, and that the court abused its discretion in determining the size of the multipliers. Ibid. We granted certiorari, 474 U. S. 815 (1985), and now affirm in part and reverse in part.
I — I I — I
Section 304(d) of the Clean Air Act, 84 Stat. 1706, 42 U. S. C. § 7604(d), provides, in pertinent part, as follows:
‘The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. ”
The Commonwealth argues that the plain language of the statute clearly limits the award of fees to “costs of litigation” for “action[s] brought” under the Act, and that the lower courts erred in awarding attorney’s fees for Delaware Valley’s activities in Phases II and IX, both of which involved the submission of comments on draft regulations to administrative agencies. The United States echoes these assertions, and contends that the “actions” contemplated by § 304(d) are judicial actions, not administrative proceedings. We reject these limiting constructions on the scope of § 304(d).
Although it is true that the proceedings involved in Phases II and IX were not “judicial” in the sense that they did not occur in a courtroom or involve “traditional” legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware Valley’s initial success in obtaining the consent decree. This case did not involve a single tortious act by the Commonwealth that resulted in a discrete injury to Delaware Valley, nor was the harm alleged the kind that could be remedied by a mere award of damages or the entry of declaratory relief. Instead, Delaware Valley filed suit to force the Commonwealth to comply with its obligations under the Clean Air Act to develop and implement an emissions inspection and maintenance program covering 10 counties surrounding two major metropolitan areas. To this end, the consent decree provided detailed instructions as to how the program was to be developed and the specific dates by which these tasks were to be accomplished.
Protection of the full scope of relief afforded by the consent decree was thus crucial to safeguard the interests asserted by Delaware Valley; and enforcement of the decree, whether in the courtroom before a judge, or in front of a regulatory agency with power to modify the substance of the program ordered by the court, involved the type of work which is properly compensable as a cost of litigation under § 304. In a case of this kind, measures necessary to enforce the remedy ordered by the District Court cannot be divorced from the matters upon which Delaware Valley prevailed in securing the consent decree.
Several courts have held that, in the context of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, postjudgment monitoring of a consent decree is a com-pensable activity for which counsel is entitled to a reasonable fee. See, e. g., Garrity v. Sununu, 752 F. 2d 727, 738-739 (CA1 1984); Bond v. Stanton, 630 F. 2d 1231, 1233 (CA7 1980); Miller v. Carson, 628 F. 2d 346, 348 (CA5 1980); Northcross v. Board of Ed. of Memphis City Schools, 611 F. 2d 624, 637 (CA6 1979), cert. denied, 447 U. S. 911 (1980). Although § 1988 authorizes fees in “any action or proceeding” brought to enforce the Civil Rights Acts, and § 304(d) applies only to “any action” brought under the Clean Air Act, this distinction is not a sufficient indication that Congress intended § 304(d) to apply only to judicial, and not administrative, proceedings.
First, in several instances in the legislative history of this section, Congress used the words “action” and “proceeding” interchangeably. See, e. g., S. Rep. No. 91-1196, p. 37 (1970); 1 Legislative History of the Clean Air Amendments of 1970 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18, p. 136 (1974) (Senate Consideration of the Report of the Conference Committee, Dec. 18, 1970) (Leg. Hist.). The lack of the phrase “or proceedings” on the face of § 304(d) is not necessarily indicative of the intended scope of the section.
Second, and more importantly, the purposes behind both § 304(d) and § 1988 are nearly identical, which lends credence to the idea that they should be interpreted in a similar manner. Northcross v. Memphis Board of Ed., 412 U. S. 427, 428 (1973). Section 1988 was enacted to insure that private citizens have a meaningful opportunity to vindicate their rights protected by the Civil Rights Acts. Hensley v. Eckerhart, 461 U. S., at 429. See S. Rep. No. 94-1011, p. 2 (1976). “The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens,” and unless reasonable attorney’s fees could be awarded for bringing these actions, Congress found that many legitimate claims would not be redressed. H. R. Rep. No. 94-1568, p. 1 (1976).
Similarly, § 304(a) authorizes private citizens to sue any person violating the Clean Air Act, and § 304(d) provides for reasonable attorney’s fees whenever appropriate. Congress enacted § 304 specifically to encourage “citizen participation in the enforcement of standards and regulations established under this Act,” S. Rep. No. 91-1196, p. 36 (1970), and intended the section “to afford . . . citizens . . . very broad opportunities to participate in the effort to prevent and abate air pollution.” 1 Leg. Hist., p. 138 (SenateConsideration of the Report of the Conference Committee, Dec. 18, 1970) (remarks of Sen. Eagleton). Congress found that “Government initiative in seeking enforcement under the Clean Air Act has been restrained,” S. Rep. No. 91-1196, at 36, and urged the courts to “recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party.” Id., at 38.
Given the common purpose of both § 304(d) and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorney’s fees in the same manner. We hold, therefore, that the fact that the work done by counsel in Phases II and IX did not occur in the context of traditional judicial litigation does not preclude an award of reasonable attorney’s fees under § 304(d) for the work done during these portions of the present action.
This conclusion is consistent with our opinion in Webb v. Board of Ed. of Dyer County, 471 U. S. 234 (1985). There, we noted that for the time spent pursuing optional administrative proceedings properly to be included in the calculation of a reasonable attorney’s fee, the work must be “useful and of a type ordinarily necessary” to secure the final result obtained from the litigation. Id., at 243. Application of this standard is left to the discretion of the district court. Id., at 243-244.
Here, the District Court found that, as for Phase II, Delaware Valley had a unique interest in the proposed regulation “based on a desire to ensure compliance with the consent decree and to protect [its] rights thereunder. The usefulness of [Delaware Valley’s] comments was manifested in the revisions that were made to the original regulations.” 581 F. Supp., at 1423. Similarly, the court found that counsel’s work during Phase IX helped to protect the relief awarded under the consent decree, as any modification of the I/M program by the Environmental Protection Agency would have adversely affected Delaware Valley’s rights under the decree. Id., at 1430. We agree that participation in these administrative proceedings was crucial to the vindication of Delaware Valley’s rights under the consent decree and find that compensation for these activities was entirely proper and well within the “zone of discretion” afforded the District Court. Hensley, supra, at 442 (Brennan, J., concurring in part and dissenting in part). We thus affirm the award of fees for work done in Phases II and IX.
I — I HH h — (
A
It is well established that, under the American Rule, “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). There are exceptions to this principle, the major one being congressional authorization for the courts to require one party to award attorney’s fees to the other. There are over 100 separate statutes providing for the award of attorney’s fees; and although these provisions cover a wide variety of contexts and causes of action, the benchmark for the awards under nearly all of these statutes is that the attorney’s fee must be “reasonable.”
Courts have struggled to formulate the proper measure for determining the “reasonableness” of a particular fee award. One method, first employed by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974), involved consideration of 12 factors. Johnson was widely followed by other courts, and was cited with approval by both the House and the Senate when § 1988 was enacted into law. H. R. Rep. No. 94-1558, p. 8 (1976); S. Rep. No. 94-1011, p. 6 (1976).
This approach required trial courts to consider the elements that go into determining the propriety of legal fees and was intended to provide appellate courts with more substantial and objective records on which to review trial court determinations. See Johnson, supra, at 717. This mode of analysis, however, was not without its shortcomings. Its major fault was that it gave very little actual guidance to district courts. Setting attorney’s fees by reference to a series of sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.
For this reason, the Third Circuit developed another method of calculating “reasonable” attorney’s fees. This method, known as the “lodestar” approach, involved two steps. First, the court was to calculate the “lodestar,” determined by multiplying the hours spent on a case by a reasonable hourly rate of compensation for each attorney involved. Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F. 2d 161, 167 (CA3 1973) (Lindy I). Second, using the lodestar figure as a starting point, the court could then make adjustments to this figure, in light of “(1) the contingent nature of the case, reflecting the likelihood that hours were invested and expenses incurred without assurance of compensation; and (2) the quality of the work performed as evidenced by the work observed, the complexity of the issues and the recovery obtained.” Merola v. Atlantic Richfield Co., 515 F. 2d 165, 168 (CA3 1975); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F. 2d 102, 117 (CA3 1976) (Lindy II). This formulation emphasized the amount of time expended by the attorneys, and provided a more analytical framework for lower courts to follow than the unguided “factors” approach provided by Johnson. On the other hand, allowing the courts to adjust the lodestar amount based on considerations of the “riskiness” of the lawsuit and the quality of the attorney’s work could still produce inconsistent and arbitrary fee awards.
We first addressed the question of the proper manner in which to determine a “reasonable” attorney’s fee in Hensley v. Eckerhart, 461 U. S. 424 (1983). We there adopted a hybrid approach that shared elements of both Johnson and the lodestar method of calculation. “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.” 461 U. S., at 433. To this extent, the method endorsed in Hensley follows the Third Circuit’s description of the first step of the lodestar approach. Moreover, we went on to state: “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. ...” Id., at 434. We then took a more expansive view of what those “other considerations” might be, however, noting that “[t]he district court also may consider [the] 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.” Id., at 434, n. 9 (citation omitted).
We further refined our views in Blum v. Stenson, 465 U. S. 886 (1984). Blum restated that the proper first step in determining a reasonable attorney’s fee is to multiply “the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id., at 888. We emphasized, however, that the figure resulting from this calculation is more than a mere “rough guess” or initial approximation of the final award to made. Instead, we found that “[w]hen . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee” to which counsel is entitled. Id., at 897 (emphasis added).
Blum also limited the factors which a district court may consider in determining whether to make adjustments to the lodestar amount. Expanding on our earlier finding in Hensley that many of the Johnson factors “are subsumed within the initial calculation” of the lodestar, we specifically held in Blum that the “novelty [and] complexity of the issues,” “the special skill and experience of counsel,” the “quality of representation,” and the “results obtained” from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award. 465 U. S., at 898-900. Although upward adjustments of the lodestar figure are still permissible, id., at 901, such modifications are proper only in certain “rare” and “exceptional” cases, supported by both “specific evidence” on the record and detailed findings by the lower courts. See id., at 898-901.
A strong presumption that the lodestar figure — the product of reasonable hours times a reasonable rate — represents a “reasonable” fee is wholly consistent with the rationale behind the usual fee-shifting statute, including the one in the present case. These statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws. Hence, if plaintiffs, such as Delaware Valley, find it possible to engage a lawyer based on the statutory assurance that he will be paid a “reasonable fee,” the purpose behind the fee-shifting statute has been satisfied.
Moreover, when an attorney first accepts a case and agrees to represent the client, he obligates himself to perform to the best of his ability and to produce the best possible results commensurate with his skill and his client’s interests. Calculating the fee award in a manner that accounts for these factors, either in determining the reasonable number of hours expended on the litigation or in setting the reasonable hourly rate, thus adequately compensates the attorney, and leaves very little room for enhancing the award based on his post-engagement performance. In short, the lodestar figure includes most, if not all, of the relevant factors constituting a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.
B
With this teaching from our prior cases in mind, we sustain the Commonwealth’s contention that the lower courts erred in increasing the fee award to Delaware Valley in Phase V based on the “superior quality” of counsel’s performance. Relying on the statement in Blum that an upward adjustment may be justified in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional,” the Third Circuit affirmed both the District Court’s findings concerning the “superior quality” of Delaware Valley’s counsel’s work in Phase V, and the “outstanding result” obtained in this phase and its holding that an increase in this portion of the lodestar by a factor of two was appropriate. 762 F. 2d, at 280-282.
We cannot agree. Because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar, thus removing any danger of “double counting.”
Furthermore, we are unpersuaded that the lodestar amount determined for Phase V in this case did not fully reflect the quality and competence of the legal services rendered by Delaware Valley’s lawyers. For this portion of the litigation, counsel sought compensation for approximately 620 hours of work. 581 F. Supp., at 1427. Of these, the District Court allowed compensation for 324 hours. The District Court’s elimination of a large number of hours on the grounds that they were unnecessary, unreasonable, or unproductive is not supportive of the court’s later conclusion that the remaining hours represented work of “superior quality.”
We also note that of the 324 hours compensated, 26 hours were compensated at $25 per hour, 88 hours were billed at an hourly rate of $65, and the remaining 210 hours were paid at $100 per hour. Id., at 1427-1428. By the court’s own definition, the $25 rate was applied to work “which required little or no legal ability,” and the $65 rate was proper for work “that could have been done by an attorney working at the associate level.” Id., at 1422. Given that nearly one-third of all of the hours reasonably spent on this phase were not compensated at the hourly rate for work which the court found to be “most difficult,” it is hard to see what made the quality of representation for those hours so “superior” that it was not reflected in the hourly rate used to determine the lodestar amount. This conclusion is reinforced by the fact that the Third Circuit expressly found that the $100 hourly rate for the attorney compensated for the 210 hours was “plainly appropriate” given that he was an “inexperienced attorne[y]” without “any prior significant litigation experience.” 762 F. 2d, at 279, n. 10. See also 581 F. Supp., at 1422 (District Court set fees based on evaluation of “the status, reputation and experience of the individual attorneys who performed the activity”).
In sum, viewing the evidence submitted by Delaware Valley to support its petition for attorney’s fees, there is no indication as to why the lodestar did not provide a reasonable fee award reflecting the quality of representation provided during Phase V of the litigation. Clearly, Delaware Valley was able to obtain counsel without any promise of reward for extraordinary performance. Furthermore, Delaware Valley presented no specific evidence as to what made the results it obtained during this phase so “outstanding,” nor did it provide any indication that the lodestar figure for this portion of the case was far below awards made in similar cases where the court found equally superior quality of performance. Finally, neither the District Court nor the Court of Appeals made detailed findings as to why the lodestar amount was unreasonable, and in particular, as to why the quality of representation was not reflected in the product of the reasonable number of hours times the reasonable hourly rate. In the absence of such evidence and such findings, we find no reason to increase the fee award in Phase V for the quality of representation.
IV
There remains the question of upward adjustment, by way of multipliers or enhancement of the lodestar, based on the likelihood of success, or to put it another way, the risk of loss. This is the question that we left open in Blum and on which the Courts of Appeals are not entirely in accord. We are of the view that our resolution of the issue would be benefited by reargument and hence we do not decide it now. Accordingly, an order will issue restoring the case to the argument docket insofar as it raises the question whether attorney’s fees chargeable to a losing defendant under the Clean Air Act and the comparable statutes may be enhanced based on the risk of loss, and if so, to what extent.
The judgment below is therefore affirmed insofar as it upheld the award of attorney’s fees for the work done in Phases II and IX and, except for the multiplier for risk, is otherwise reversed.
It is so ordered.
This phase also includes work done by Delaware Valley in related state-court litigation. Burd v. Pennsylvania Dept. of Transportation, 66 Pa. Commw. 129, 443 A. 2d 1197 (1982), rev’d on other grounds sub nom. Scanlon v. Pennsylvania Dept. of Transportation, 502 Pa. 577, 467 A. 2d 1108 (1983), was brought by a group of state legislators to challenge the Executive Branch’s authority to implement an I/M program. On appeal, Delaware Valley submitted an amicus brief supporting the Commonwealth. The Pennsylvania Supreme Court determined that state officials had no authority to enter into the federal consent decree in 1978, held the decree to be a “nullity,” id., at 590, 467 A. 2d, at 1115, and remanded the case to the Commonwealth Court, which later enjoined PennDOT from following the terms of the decree. The Commonwealth then moved to vacate the consent decree pursuant to Federal Rule of Civil Procedure 60(b). The District Court denied the motion, and the Court of Appeals affirmed. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 755 F. 2d 38 (CA3), cert. denied, 474 U. S. 819 (1985).
In determining the lodestar amounts, the District Court eliminated more than one-third of all of the hours submitted by Delaware Valley. Some of these hours were eliminated because they were not documented in sufficient detail. 581 F. Supp., at 1420-1421. Additional hours were excluded because the court disallowed all time spent by attorneys in preparing for or in attending hearings in which another attorney for Delaware Valley was the principal advocate. Id., at 1421. The court also denied a certain number of hours for activities in related proceedings that it found were not necessary to protect Delaware Valley’s rights under the consent decree. Id., at 1430. Finally, a significant number of hours were eliminated based on the court’s conclusion that the time spent on the particular activity was “excessive,” or that a less amount of time was “reasonable.” See e. g., id., at 1423, 1425, 1429.
The District Court also awarded Delaware Valley an additional $3,380 in legal fees for the work done preparing the fee petition itself. 581 F. Supp., at 1431.
Judge Becker dissented from the court’s affirmance of the award of multipliers. The risk of not prevailing in Phases IV and VII was “simply insufficient to justify the very substantial multiplier awarded by the district court,” because in both phases, the Commonwealth had the burden of proof in seeking to modify the consent decree. 762 F. 2d, at 282, n. 12. As for the multiplier of four used in Phase V, Judge Becker concluded that, “even assuming an award of quality and contingency multipliers is appropriate . . . , the multipliers must be recalculated because the case was not so very rare as to justify in light of Blum, the award of this extraordinary multiplier.” Ibid, (citations omitted).
We express no judgment on the question whether an award of attorney’s fees is appropriate in federal administrative proceedings when there is no connected court action in which fees are recoverable.
In addition to this statutory exception, courts traditionally have recognized three other other exceptions to the “American Rule.” First, courts can enforce their own orders by assessing attorney’s fees for the wilfull violation of a court order. Alyeska, 421 U. S., at 258. Second, courts are empowered to award fees against a losing party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Id., at 258-259. And finally, a court’s equitable powers allow it to award fees in commercial litigation to plaintiffs who recovered a “common fund” for themselves and others through securities or antitrust litigation. Id., at 257. None of these situations are involved in the present case.
The 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other 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 attorney; (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 were taken from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980).
|
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"
] |
[
32
] |
ROBERTSON, PRESIDENT OF THE ARMY REVIEW BOARD, v. CHAMBERS.
No. 295.
Argued March 1, 1951.
Decided April 9, 1951.
Oscar H. Davis argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp, Samuel D. Slade and Morton Hollander.
H. Russell Bishop argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
Respondent, a former captain in the Army, was honorably discharged for physical disability and without retirement pay, as the result of a decision by an Army Retiring Board. Respondent applied to the Army Disability Review Board for review of that action. The Review Board held that respondent was not entitled to retirement pay. Respondent, having requested a rehearing, was allowed to examine the record on which the rehearing would be based. He discovered that the record contained certain medical reports of the Veterans’ Administration concerning his condition. Respondent requested the Review Board to remove those reports from the record. The Review Board refused. Respondent thereupon instituted this mandamus proceeding seeking a mandatory injunction directing the President of the Review Board to exclude those reports from the record. The District Court dismissed the complaint. The Court of Appeals reversed. 87 U. S. App. D. C. 91, 183 F. 2d 144. The case is here on certiorari. 340 U. S. 889.
The principal question relates to the provision in § 302 (a) of the Servicemen’s Readjustment Act of 1944, 58 Stat. 287, 59 Stat. 623, 38 U. S. C. § 693i (a), which describes the scope of review by the Review Board as follows: “Such review shall be based upon all available service records relating to the officer requesting such review, and such other evidence as may be presented by such officer.” Respondent contends that the term “service records” means the record of the service which the military man has rendered from the time of his entry into the service until his discharge. That was the view of the Court of Appeals. We, however, think otherwise.
Section 302 (a) grants the Review Board “the same powers as exercised by, or vested in, the board whose findings and decision are being reviewed.” That board is the Retiring Board which R. S. § 1248, 10 U. S. C. § 963, says may “inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and shall have such powers of a court-martial and of a court of inquiry as may be necessary for that purpose.”
These powers of the Retiring Board have been given a wide reach, so that the nature and cause of the disability may be ascertained. Their broad character will not, of course, override the specific provision of § 302 (a) to the effect that the “review shall be based upon all available service records,” etc. But the nature of the powers granted under R. S. § 1248 has relevance to the arguments pressed on us for and against reading “service records” narrowly.
The powers granted the Retiring Board have been construed by the regulations in a liberal fashion, not in a narrow and stifling way. Thus the Adjutant General is required to furnish the board with the “originals or certified copies of the complete medical history, and of all other official records affecting the health and physical condition of the officer.” The oral examination of the officer is granted for the purpose “of making full discovery of all facts as to his condition.” These hearings are not contests; they are inquiries concerning disability. The purpose is to get at the truth of the matter.
The medical history following the retirement will often be of great importance to the Review Board, since the statute of limitations which governs review is a long one. Requests for review may be made within 15 years after the retirement or after June 22, 1944, whichever is the later. § 302 (b). Medical history may therefore be highly pertinent to the inquiry. Plainly the officer is granted authority under § 302 (a) to introduce such evidence; and it is certain he will do so if it is favorable. We hesitate at a construction of the statute which forecloses the Army from considering the evidence when it is unfavorable. Yet that would be the result if we construed “service records” narrowly. We think it would be more in harmony with the nature of the procedure, the purpose of the inquiry, and the powers granted the Review Board to construe “service records” broadly enough to include these medical reports.
The reports in issue were official government reports transmitted to the Army and incorporated in that department’s files. They therefore became a part of the record of the officer pertaining to his service. We conclude that they are “service records” within the meaning of § 302 (a).
Reversed.
Army Reg. 605-250, Mar. 28,1944, par. 3a.
Id. at par. 21.
The regulations governing the Disability Review Board have incorporated this broad construction of the powers granted. Thus the Adjutant General is to provide that Board with “all available Department of the Army and/or other records pertaining to the health and physical condition of the applicant.” 32 CFR § 581.1 (a) (2) (iii). And see note 4, infra.
The regulations promulgated to govern Disability Review Board proceedings have not restricted the inquiry by such a cramped construction. They authorize the Board “to receive additional evidence bearing on the causes and service-connection of [the disability]” without limitation. 32 CFR §581.1 (a) (1) (iii). Indeed they empower the Board to make its own physical examination of the retired officer at the time of the hearing. 32 CFR § 581.1 (b) (2) (v).
|
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"
] |
[
5
] |
DANDRIDGE, CHAIRMAN, MARYLAND BOARD OF PUBLIC WELFARE, et al. v. WILLIAMS et al.
No. 131.
Argued December 9, 1969
Decided April 6, 1970
George W. Liebmann, Assistant Attorney General of Maryland, argued the cause for appellants. With him on the briefs were Francis B. Burch, Attorney General, Robert F. Sweeney, Deputy Attorney General, and /. Michael McWilliams, Assistant Attorney General.
Joseph A. Matera argued the cause and filed a brief for appellees.
Thomas C. Lynch, Attorney General, and Elizabeth Palmer, Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Thomas L. Fike for the Legal Aid Society of Alameda County, and by Carl Rachlin, Anthony B. Ching, Peter E. Sitkin, and Steven J. Antler for the Center on Social Welfare Policy and Law et al.
Mr. Justice Stewart
delivered the opinion of the Court.
This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families With Dependent Children (AFDC) program, 42 U. S. C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935. Under this jointly financed program, a State computes the so-called “standard of need” of each eligible family unit within its borders. See generally Rosado v. Wyman, ante, p. 397. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a “maximum grant regulation,” has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court convened pursuant to 28 U. S. C. § 2281, held that the Maryland regulation violates the Equal Protection Clause. 297 F. Supp. 450. This direct appeal followed, 28 U. S. C. § 1253, and we noted probable jurisdiction, 396 U. S. 811.
The operation of the Maryland welfare system is not complex. By statute the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the incre-merits become proportionately smaller. The regulation here in issue imposes upon the grant that any single family may receive an. upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State. The appellees all have large families, so that their standards of need as computed by the State substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.
In its original opinion the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment's equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation’s invalidity entirely on the constitutional ground. Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. We consider the statutory question first, because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U. S. 288, 346-347 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449.
I
The appellees contend that the maximum grant system is contrary to §402 (a) (10) of the Social Security Act, as amended, which requires that a state plan shall
“provide . . . that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.”
The argument is that the state regulation denies benefits to the younger children in a large family. Thus, the appellees say, the regulation is in patent violation of the Act, since those younger children are just as “dependent” as their older siblings under the definition of “dependent child” fixed by federal law. See King v. Smith, 392 U. S. 309. Moreover, it is argued that the regulation, in limiting the amount of money any single household may receive, contravenes a basic purpose of the federal law by encouraging the parents of large families to “farm out” their children to relatives whose grants are not yet subject to the maximum limitation.
It cannot be gainsaid that the effect of the Maryland maximum grant provision is to reduce the per capita benefits to the children in the largest families. Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic view is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. Cf. King v. Smith, supra, at 335 n. 4 (Douglas, J., concurring). It is no more accurate to say that the last child's grant is wholly taken away than to say that the grant of the first child is totally rescinded. In fact, it is the family grant that is affected. Whether this per capita diminution is compatible with the statute is the question here. For the reasons that follow, we have concluded that the Maryland regulation is permissible under the federal law.
In King v. Smith, supra, we stressed the States’ “undisputed power,” under these provisions of the Social Security Act, “to set the level of benefits and the standard of need.” Id., at 334. We described the AFDC enterprise as “a scheme of cooperative federalism,” id., at 316, and noted carefully that “[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” Id., at 318-319.
Congress was itself cognizant of the limitations on state resources from the very outset of the federal welfare program. The first section of the Act, 42 U. S. C. § 601 (1964 ed., Supp. IV), provides that the Act is
“For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as jar as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection . . . .” (Emphasis added.)
Thus the starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.
The very title of the program, the repeated references to families added in 1962, Pub. L. 87-543, § 104 (a)(3), 76 Stat. 185, and the words of the preamble quoted above, show that Congress wished to help children through the family structure. The operation of the statute itself has this effect. From its inception the Act has defined “dependent child” in part by reference to the relatives with whom the child lives. When a “dependent child” is living with relatives, then “aid” also includes payments and medical care to those relatives, including the spouse of the child’s parent. 42 U. S. C. § 606 (b) (1964 ed., Supp. IV). Thus, as the District Court noted, the amount of aid “is . . . computed by treating the relative, parent or spouse of parent, as the case may be, of the 'dependent child’ as a part of the family unit.” 297 F. Supp., at 455. Congress has been so desirous of keeping dependent children within a family that in the Social Security Amendments of 1967 it provided that aid could go to children whose need arose merely from their parents’ unemployment, under federally determined standards, although the parent was not incapacitated. 42 U. S. C. § 607 (1964 ed., Supp. IV).
The States must respond to this federal statutory concern for preserving children in a family environment. Given Maryland’s finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family. We see nothing in the federal statute that forbids a State to balance the stresses that uniform insufficiency of payments would impose on all families against the greater ability of large families — because of the inherent economies of scale — to accommodate their needs to diminished per capita payments. The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need. Nor does the maximum grant system necessitate the dissolution of family bonds. For even if a parent should be inclined to increase his per capita family income by sending a child away, the federal law requires that the child, to be eligible for AFDC payments, must live with one of several enumerated relatives. The kinship tie may be attenuated but it cannot be destroyed.
The appellees rely most heavily upon the statutory requirement that aid “shall be furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. § 602 (a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the “aid” furnished must equal the total of each individual’s standard of need in every family group. Indeed the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual’s receiving aid equal to his standard of need. As we have noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive - some aid. We find nothing in 42 U. S. C. § 602 (a) (10) (1964 ed., Supp. IY) that requires more than this. So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.
This is the view that has been taken by the Secretary of Health, Education, and Welfare (HEW), who is charged with the administration of the Social Security Act and the approval of state welfare plans. The parties have stipulated that the Secretary has, on numerous occasions, approved the Maryland welfare scheme, including its provision of maximum payments to any one family, a provision that has been in force in various forms since 1947. Moreover, a majority of the States pay less than their determined standard of need, and 20 of these States impose máximums on family grants of the kind here in issue. The Secretary has not disapproved any state plan because of its maximum grant provision. On the contrary, the Secretary has explicitly recognized state maximum grant systems.
Finally, Congress itself has acknowledged a full awareness of state maximum grant limitations. In the Amendments of 1967 Congress added to § 402 (a) a subsection, 23:
“[The State shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.” 81 Stat. 898, 42 U. S. C. § 602 (a) (23) (1964 ed., Supp. IV). (Emphasis added.)
This specific congressional recognition of the state maximum grant provisions is not, of course, an approval of any specific maximum. The structure of specific máxi-mums Congress left to the States, and the validity of any such structure must meet constitutional tests. However, the above amendment does make clear that Congress fully recognized that the Act permits maximum grant regulations.
For all of these reasons, we conclude that the Maryland regulation is not prohibited by the Social Security Act.
II
Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation “is invalid on its face for overreaching,” 297 F. Supp., at 468 — that it violates the Equal Protection Clause “[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply . . . .” 297 F. Supp., at 469.
If this were a case involving government action claimed to violate the First Amendment guarantee of free speech, a finding of “overreaching” would be significant and might be crucial. For when otherwise valid governmental regulation sweeps so broadly as to impinge upon activity protected by the First Amendment, its very overbreadth may make it unconstitutional. See, e. g., Shelton v. Tucker, 364 U. S. 479. But the concept of “overreaching” has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of .state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U. S. 483, 488. That era long ago passed into history. Ferguson v. Skrupa, 372 U. S. 726.
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 426.
To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. See Snell v. Wyman, 281 E. Supp. 853, aff’d, 393 U. S. 323. It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U. S. 464; Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552. See also Flemming v. Nestor, 363 U. S. 603. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.
Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient’s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.
It is true that in some AFDC families there may be no person who is employable. It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61. It is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test.
We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, ante, p. 254. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Steward Mach. Co. v. Davis, 301 U. S. 548, 584-585; Helvering v. Davis, 301 U. S. 619, 644.
The judgment is reversed.
[For Appendix, see post, p. 488.]
APPENDIX TO OPINION OF THE COURT
The following was the schedule for determining subsistence needs, exclusive of rent, at the time this action was brought. Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, Sched. A, p. 27:
STANDARD FOR DETERMINING COST OF SUBSISTENOE NEEDS
Modification of standard for cost
Other schedules set the estimated cost of shelter in the various counties in Maryland. See id., Sched. B — Plan A, p. 29; Sched. B— Plan B, p. 30. The present schedules, which are substantially the same, appear in the Md. Manual of Dept, of Social Services, Rule 200, pp. 33, 35.
49 Stat. 620, as amended, 42 U. S. C. §§301-1394 (1964 ed. and Supp. IV).
Maryland Ann. Code, Art. 88A, § 44A et seq. (1969 Repl. Vol.).
The schedule for determining subsistence needs is set forth in an Appendix to this opinion.
The regulation now provides:
“B. Amount — The amount of the grant is the resulting amount of need when resources are deducted from requirements as set forth in this Rule, subject to a maximum on each grant from each category:
“1. $250 — for local departments under any ‘Plan A’ of Shelter Schedule
“2. $240 — for local departments under any 'Plan B' of Shelter Schedule
“Except that:
“a. If the requirements of a child over 18 are included to enable him to complete high school or training for employment (III-C-3), the grant may exceed the maximum by the amount of such child's needs.
“b. If the resource of support is paid as a refund (VI-B-6),. the grant may exceed the maximum by an amount of such refund. This makes consistent the principle that the amount from public assistance funds does not exceed the maximum.
“c. The maximum may be exceeded by the amount of an emergency grant for items not included in a regular monthly grant. (VIII)
“d. The maximum may be exceeded up to the amount of a grant to a person in one of the nursing homes specified in Schedule D, Section a.
“3. A grant is subject to any limitation established because of insufficient funds.”
Md. Manual of Dept, of Social Services, Rule 200, § X, B, p. 23, formerly Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, § VII, 1, p. 20.
In addition, ÁFDC recipients in Maryland may be eligible for certain assistance in kind, including food stamps, public housing, and medical aid. See, e. g., 42 U. S. C. § 1396 et seq. (1964 ed., Supp. IV); 7 U. S. C. §§ 1695-1697. The applicable provisions of state and federal law also permit recipients to keep part of their earnings from outside jobs. 42 U. S. C. §§ 630-644 (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Ride 200, §VI, B (8) (c)(2). Both federal and state law require that recipients seek work and take it if it is available. 42 U. S. C. § 602 (a) (19) (F) (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Rule 200, § III (D) (1) (d).
Both opinions appear at 297 F. Supp. 450.
The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court. Compare Langnes v. Green, 282 U. S. 531, 538, with Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 567-568. As the Court said in United States v. American Ry. Exp. Co., 265 U. S. 425, 435-436: “[lit is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed.” When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court. See Aetna Cas. & Sur. Co. v. Flowers, 330 U. S. 464, 468; United States v. Ballard, 322 U. S. 78, 88. That is not the situation here, however. The issue having been fully argued both here and in the District Court, consideration of the statutory claim is appropriate. Bondholders Committee v. Commissioner, 315 U. S. 189, 192 n. 2; H. Hart & H. Wechsler, The Federal Courts and the Federal System 1394 (1953). See also Jaffke v. Dunham, 352 U. S. 280.
64 Stat. 550, as amended, 76 Stat. 185, 81 Stat. 881, 42 U. S. C. § 602 (a) (10) (1964 ed., Supp. V).
42 U. S. C. §606 (a) (1964 ed., Supp. IV) provides:
“The term ‘dependent child’ means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew', or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.”
The Act also covers children who have been placed in foster homes pursuant to judicial order or because they are state charges. 42 TJ. S. C. § 608 (1964 ed., Supp. IV).
42 U. S. C. § 606 (a) (1964 ed., Supp. IV), supra, n. 8, formerly § 406, 49 Stat. 629, as amended, § 321, 70 Stat. 860. See also S. Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935).
The Maryland Dept, of Social Services, Monthly Financial and Statistical Report, Table 7 (Nov. 1969), indicates that 32,504 families receive AFDC assistance. In the Maryland Dept, of Social Services, 1970 Fiscal Year Budget, the department estimated that 2,537 families would be affected by the removal of the maximum grant limitation. It thus appears that only one-thirteenth of the AFDC families in Maryland receive less than their determined need because of the operation of the maximum grant regulation. Of course, if the same funds were allocated subject to a percentage limitation, no AFDC family would receive funds sufficient to meet its determined need.
42 U. S. C. § 606 (a) (1964 ed., Supp. IV), n. 8, supra.
The State argues that in the total context of the federal statute, reference to “eligible individuals” means eligible applicants for AFDC grants, rather than all the family members whom the applicants may represent, and that the statutory provision was designed only to prevent the use of waiting lists. There is considerable support in the legislative history for this view. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (1949) (remarks of Rep. Forand). And it is certainly true that the statute contemplates that actual payments will be made to responsible adults. See, e. g., 42 U. S. C. § 605. For the reasons given above, however, we do not find it necessary to consider this argument.
See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct. 1967, Table 4 (NCSS Report D-4). See also Hearings on H. R. 5710 before the House Committee on Ways and Means, 90th Cong., 1st Sess., pt. 1, p. 118 (1967).
HEW, State Máximums and Other Methods of Limiting Money Payments to Recipients of Special Types of Public Assistance, Oct. 1962, p. 3:
“When States are unable to meet need as determined under their standards they reduce payments on a percentage or flat reduction basis .... These types of limitations may be used in the absence of, or in conjunction with, legal or administrative máximums. A maximum limits the amount of assistance that may be paid to persons whose determined need exceeds that maximum, whereas percentage or flat reductions usually have the effect of lowering payments to most or all recipients to a level below that of determined need.”
See also HEW Interim Policy Statement of May 31, 1968, 33 Fed. Reg. 10230 (1968); 45 CFR §233.20 (a)(2)(h), 34 Fed. Reg. 1394 (1969).
’The provisions of 42 U. S. C. § 1396b (f) (1964 ed., Supp. IV), also added by the Amendments of 1967, 81 Stat. 898, a.re consistent with this view. That section provides that no medical assistance shall be given to any family that has a certain level of income. The section, however, makes an exception, 42 II. S. C. § 1396b (f) (1) (B) (ii) (1964 ed., Supp. IV):
“If the Secretary finds that the operation of a uniform maximum limits pajonents to families of more than one size, he may adjust the amount otherwise determined under clause (i) to take account-of families of different sizes.”
These provisions have particular significance in light of the Administration’s initial effort to secure a law forcing each State to pay its full standard of need. See Rosado v. Wyman, supra.
This recognition of the existence of state máximums is not new with the Amendments of 1967. In reporting on amendments to the Social Security Act in 1962, 76 Stat. 185, the Senate committee referred to “States in which there is a maximum limiting the amount of assistance an individual may receive.” S. Rep. No. 1589, S7th Cong., 2d Sess., 14 (1962).
Cf. Shapiro v. Thompson, 394 U. S. 618, where, by contrast, the Court found state interference with the constitutionally protected freedom of interstate travel.
It is important to note that there is no contention that the Maryland regulation is infected with a racially discriminatory purpose or effect such as to make it inherently suspect. Cf. McLaughlin v. Florida, 379 U. S. 184.
See Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1082-1087.
The present federal minimum wage is $52-$64 per 40-hour week, 29 U. S. C. §206 (1964 ed., Supp. IV). The Maryland minimum wage is $46-$52 per week, Md. Ann. Code, Art. 100, § 83 (Supp. 1969).
It appears that no family members of any of the named plaintiffs in the present case are employable.
|
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",
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"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
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"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",
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"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",
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"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",
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"National Security Agency",
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"Office of Management and Budget",
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"Unidentifiable",
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"NO Admin Action",
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] |
[
116
] |
JOHN DOE AGENCY et al. v. JOHN DOE CORP.
No. 88-1083.
Argued October 2, 1989
Decided December 11, 1989
Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, O’Connor, and Kennedy, JJ., joined. Blackmun, J., also filed a separate statement, post, p. 158. Brennan, J., filed a concurring opinion, post, p. 158. Stevens, J., filed a dissenting opinion, post, p. 159. SCALIA, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 160.
Edwin S. Kneedler argued the cause for petitioners. On the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Wallace, Roy T. Englert, Jr., Leonard Schaitman, and John C. Hoyle.
Milton Eisenberg argued the cause for respondent. With him on the brief were Arthur Lazarus, Jr., and John T. Boese.
Patti A. Goldman and David C. Vladeck filed a brief for Public Citizen et al. as amici curiae urging affirmance.
Justice Blackmun
delivered the opinion of the Court.
Once again, we are faced with an issue under the Freedom of Information Act (FOIA or Act), 5 U. S. C. § 552. This time, we are concerned with the Act’s Exemption 7, §552 (b)(7). That provision exempts from disclosure
“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. . .
Our focus is on the Exemption’s threshold requirement that the materials be “records or information compiled for law enforcement purposes.”
I
Respondent John Doe Corporation (Corporation) is a defense contractor. As such, it is subject to periodic audits by the Defense Contract Audit Agency (DCAA), the accounting branch of the Department of Defense. See 32 CFR §§ 357.2 and 357.4 (1988). In 1978, in connection with an audit, an exchange of correspondence took place between the DCAA and the Corporation concerning the proper accounting treatment of certain costs. The Government auditor, by letter dated May 2 of that year, claimed that the costs should have been charged to identifiable programs instead of to a technical overhead account. About $4.7 million in 1977 costs were discussed. The Corporation, by letter dated July 11, 1978, replied and defended its allocation. App. 22-28. No further action regarding the allocation of those costs was taken by the DCAA or the Corporation during the next eight years.
In 1985, the office of the United States Attorney for the Eastern District of New York instituted an investigation into possible fraudulent practices by the Corporation. A subpoena was issued to the Corporation by a grand jury on February 21, 1986. It requested documents relating to the cost allocation question which was the subject of the 1978 correspondence. On September 30, 1986, the Corporation submitted to the DCAA a request under the FOIA for any documents “that are related in any way to the subject matter” of the 1978 correspondence. Id., at 19. Upon the advice of an Assistant United States Attorney, the DCAA denied the request on November 18, citing Exemptions 7(A) and (E) of the Act. App. 29. Two days later the requested records were transferred to the Federal Bureau of Investigation (FBI). Id., at 92.
On February 3, 1987, the Corporation renewed its FOIA request but this time directed it to the FBI. Id., at 46. That agency denied the request, citing only Exemption 7(A). Id., at 49.
After exhausting its administrative remedies, the Corporation instituted the present litigation, seeking review of the withholding of the requested documents, in the United States District Court for the Eastern District of New York. Id., at 6, 11. In due course, the Corporation moved to compel the preparation of a “Vaughn Index.”
The Government opposed disclosure, the preparation of the Index, and answers to propounded interrogatories on the ground that compliance with any of these would interfere with the grand jury proceeding and would provide the Corporation with information that might be useful to it in connection with anticipated criminal litigation. The District Court ordered the Government to prepare a Vaughn Index and to answer the interrogatories. It ordered sua sponte, however, that this material be submitted to the court for examination in camera rather than be given directly to the Corporation. Id., at 62, 66.
After conducting its examination without a hearing, the District Court ruled that petitioners were not required to turn over any of the contested documents to the Corporation. It then dismissed the complaint, stating: “[W]e are satisfied that there is a substantial risk that disclosure of any of this material, the documents, the Vaughn index and the answers to [the] interrogatories, would jeopardize the grand jury proceeding.” App. to Pet. for Cert. 13a-14a.
The Corporation appealed to the United States Court of Appeals for the Second Circuit. That court reversed and remanded the case. 850 F. 2d 105, 110 (1988). It ruled that the law enforcement Exemption 7, upon which the District Court implicitly relied, did not protect the records from disclosure because they were not “compiled for law enforcement purposes.” Id., at 109. It observed that the records “were compiled in 1978, seven years before the investigation began in 1985,” id., at 108, and that the 1974 amendments to the Act “make it clear that a governmental entity cannot withhold materials requested under the FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance.” Id., at 109. The Court of Appeals acknowledged that compliance with the FOIA may compel disclosure of materials that ordinarily are beyond the scope of discovery in a criminal investigation, and thus may enable a potential defendant to prepare a response and construct a defense to a criminal charge. The court concluded, however, that this concern was more properly addressed to Congress. Ibid. The court ruled, nonetheless, that on remand the Government was to be allowed to bring to the District Court’s attention “any particular matter that would, if disclosed, expose some secret aspect of the grand jury’s investigation.” Id., at 110.
The court refused to stay its mandate; it was issued on November 28, 1988. App. to Pet. for Cert. 15a. On remand, the District Court concluded that the Second Circuit’s opinion required that the Vaughn Index be turned over to the Corporation. App. 86. The Court of Appeals on January 10, 1989, refused to stay the District Court’s order requiring the furnishing of the Index, id., at 96, but later that same day the Circuit Justice entered a temporary stay pending a response from the Corporation. On January 30, the Circuit Justice granted a full stay. See 488 U. S. 1306 (Marshall, J., in chambers).
Because of the importance and sensitivity of the issue and because of differing interpretations of the pertinent language of Exemption 7, we granted certiorari. 489 U. S. 1009 (1989).
II
This Court repeatedly has stressed the fundamental principle of public access to Government documents that animates the FOIA. “Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” EPA v. Mink, 410 U. S. 73, 80 (1973). The Act’s “basic purpose reflected ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’” Department of Air Force v. Rose, 425 U. S. 352, 360-361 (1976), quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). “The basic purpose of FOIA is to ensure.an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 242 (1978). See also Department of Justice v. Reporters Committee for Freedom of Press, 489 U. S. 749, 772-773 (1989). There are, to be sure, specific exemptions from disclosure set forth in the Act. “But these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U. S., at 361. Accordingly, these exemptions “must be narrowly construed.” Ibid. Furthermore, “the burden is on the agency to sustain its action.” 5 U. S. C. § 552(a)(4)(B).
Despite these pronouncements of liberal congressional purpose, this Court has recognized that the statutory exemptions are intended to have meaningful reach and application. On more than one occasion, the Court has upheld the Government’s invocation of FOIA exemptions. See EPA v. Mink, supra; Robbins Tire, supra; Reporters Committee, supra; FBI v. Abramson, 456 U. S. 615 (1982). In the case last cited, the Court observed: “Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information,” and therefore provided the “specific exemptions under which disclosure could be refused.” Id., at 621. Recognizing past abuses, Congress sought “to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 6 (1966). See also EPA v. Mink, 410 U. S., at 80. The Act’s broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the “balance” Congress has struck.
rH HH 1 — I
We have noted above that our focus here is on § 552(b)(7) s exemption from production of “records or information compiled for law enforcement purposes” to the extent that such production meets any one of six specified conditions or enumerated harms. Before it may invoke this provision, the Government has the burden of proving the existence of such a compilation for such a purpose. In deciding whether Exemption 7 applies, moreover, a court must be mindful of this Court’s observations that the FOIA was not intended to supplement or displace rules of discovery. See Robbins Tire, 437 U. S., at 236-239, 242; id., at 243 (Stevens, J., concurring). See also United States v. Weber Aircraft Corp., 465 U. S. 792, 801-802 (1984). Indeed, the Court of Appeals acknowledged that this was not a principal intention of Congress. 850 F. 2d, at 108.
As is customary, we look initially at the language of the statute itself. The wording of the phrase under scrutiny is simple and direct: “compiled for law enforcement purposes.” The plain words contain no requirement that compilation be effected at a specific time. The objects sought merely must have been “compiled” when the Government invokes the Exemption. A compilation, in its ordinary meaning, is something composed of materials collected and assembled from various sources or other documents. See Webster’s Third New International Dictionary 464 (1961); Webster’s Ninth New Collegiate Dictionary 268 (1983). This definition seems readily to cover documents already collected by the Government originally for non-law-enforcement purposes. See Gould Inc. v. General Services Administration, 688 F. Supp. 689, 698 (DC 1988).
The Court of Appeals, however, throughout its opinion would have the word “compiled” mean “originally compiled.” See 850 F. 2d, at 109. We disagree with that interpretation for, in our view, the plain meaning of the word “compile,” or, for that matter, of its adjectival form “compiled,” does not permit such refinement. This Court itself has used the word “compile” naturally to refer even to the process of gathering at one time records and information that were generated on an earlier occasion and for a different purpose. See FBI v. Abramson, 456 U. S., at 622, n. 5; Reporters Committee, supra.
Respondent, too, has used the word “compile” in its ordinary sense to refer to the assembling of documents, even though those documents were put together at an earlier time for a different purpose. In its FOIA requests of September 30,1986, and February 3,1987, respondent asked that the requested materials be furnished as soon as they were available, and that the response to the request “not await a compilation of all the materials requested.” App. 21, 47-48. This was a recognition, twice repeated, that the documents having been compiled once for the purpose of routine audits were not disqualified from being “compiled” again later for a different purpose.
We thus do not accept the distinction the Court of Appeals drew between documents that originally were assembled for law enforcement purposes and those that were not so originally assembled but were gathered later for such purposes. The plain language of Exemption 7 does not permit such a distinction. Under the statute, documents need only to have been compiled when the response to the FOIA request must be made.
If, despite what we regard as the plain meaning of the statutory language, it were necessary or advisable to examine the legislative history of Exemption 7, as originally enacted and as amended in 1974, we would reach the same conclusion. Justice Marshall, writing for the Court in Robbins Tire, 437 U. S., at 224-236, discussed this legislative history in detail. In its original 1966 form, Exemption 7 permitted nondisclosure of “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” Pub. L. 89-487, § 3(e)(7), 80 Stat. 251. But the Court in Robbins Tire observed: “Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases.” 437 U. S., at 224.
To accommodate these needs, Congress in 1974 amended the Act in several respects. See id., at 226-227. Concern was expressed on the Senate floor that four recent decisions in the United States Court of Appeals for the District of Columbia Circuit had permitted Exemption 7 to be applied whenever an agency could show that the document sought was an investigatory file compiled for law enforcement purposes. Congress feared that agencies would use that rule to commingle otherwise nonexempt materials with exempt materials in a law enforcement investigatory file and claim protection from disclosure for all the contents.
The aim of Congress thus was to prevent commingling. This was accomplished by two steps. The first was to change the language from investigatory “files” to investigatory “records.” The second was to make the compilation requirement necessary rather than sufficient. As amended, Exemption 7 requires the Government to demonstrate that a record is “compiled for law enforcement purposes” and that disclosure would effectuate one or more of the six specified harms. See Robbins Tire, 437 U. S., at 221-222, 229-230, 235. These changes require consideration of the nature of each particular document as to which exemption was claimed. Id., at 229-230. Evasional commingling thus would be prevented. The legislative history of the 1974 amendments says nothing about limiting Exemption 7 to those documents originating as law enforcement records.
A word as to FBI v. Abramson, 456 U. S. 615 (1982), is in order. There the Court was faced with the issue whether information originally compiled for law enforcement purposes lost its Exemption 7 status when it was summarized in a new document not created for law enforcement purposes. See id., at 623. The Court held that such information continued to meet the threshold requirements of Exemption 7. But we do not accept the proposition, urged by respondent, that the converse of this holding — that information originally compiled for a non-law-enforcement purpose cannot become exempt under Exemption 7 when it is recompiled at a future date for law enforcement purposes — is true. See Brief for Respondent 20.
This Court consistently has taken a practical approach when it has been confronted with an issue of interpretation of the Act. It has endeavored to apply a workable balance between the interests of the public in greater access to information and the needs of the Government to protect certain kinds of information from disclosure. The Court looks to the reasons for exemption from the disclosure requirements in determining whether the Government has properly invoked a particular exemption. See e. g., NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148-154 (1975). In applying Exemption 7, the Court carefully has examined the effect that disclosure would have on the interest the exemption seeks to protect. Robbins Tire, 437 U. S., at 242-243; Abramson, 456 U. S., at 625. See also Department of State v. Washington Post Co., 456 U. S. 595 (1982). The statutory provision that records or information must be “compiled for law enforcement purposes” is not to be construed in a nonfunctional way.
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.
Statement of
Justice Blackmun.
I add on my own account a word of caution. Simply because a party is a defense contractor does not mean that all doubts automatically are to be resolved against it and those in any way associated with it. A situation of the kind presented by this case can be abused, and after-the-fact acknowledgment of abuse by the Government hardly atones for the damage done by reason of the abuse. The recent General Dynamics case and the sad consequences for a former National Aeronautics and Space Administration administrator whose indictment was dismissed before trial (“because the Justice Department concedes it ha[d] no case,” Washington Post, June 24, 1987, p. A24, col. 1) are illustrative. Petitioners themselves, see Reply Brief for Petitioners 11, “recognize the theoretical potential for abuse.” I perceive no abuse in the present case, however, that would make it resemble General Dynamics.
All the names in the caption of this case — “John Doe Agency” and “John Doe Government Agency,” petitioners, and “John Doe Corporation,” respondent, are pseudonyms. John Doe Agency, however, is the DCAA, and John Doe Government Agency is the Federal Bureau of Investigation. John Doe Corporation is a private corporation; it tells us, Brief for Respondent 1, n. 1, that its identity is revealed in materials filed under seal with the Court of Appeals.
The Solicitor General’s office states, Brief for Petitioners ii; Tr. of Oral Arg. 26, that the Government has no objection to public disclosure of petitioners’ names. Accordingly, in this opinion we use the real name of each “Agency.” We adhere, however, to the use of respondent’s pseudonym.
“Vaughn Index” is a term derived from Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973), cert. denied, 415 U. S. 977 (1974). The “Index” usually consists of a detailed affidavit, the purpose of which is to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.” 157 U. S. App. D. C., at 346, 484 F. 2d, at 826.
As to this conclusion, see also North v. Walsh, 279 U. S. App. D. C. 373, 382, 881 F. 2d 1088, 1097 (1989).
See New England Medical Center Hospital v. NLRB, 548 F. 2d 377, 386 (CA1 1976); Gould Inc. v. General Services Administration, 688 F. Supp. 689, 699 (DC 1988); Hatcher v. United States Postal Service, 556 F. Supp. 331 (DC 1982); Fedders Corp. v. FTC, 494 F. Supp. 325, 328 (SDNY), aff’d, 646 F. 2d 560 (CA2 1980); Gregory v. FDIC, 470 F. Supp. 1329, 1333-1334 (DC 1979). See also Crowell & Moring v. Department of Defense. 703 F. Supp. 1004, 1009 (DC 1989).
There is disagreement between the parties as to how the opinion of the Court of Appeals is to be read. Petitioners state that the Second Circuit unequivocally held that a document must originally be compiled for law enforcement purposes in order to qualify for protection under Exemption 7. Brief for Petitioners 15. Respondent disagrees and says: “The court of appeals had no occasion to rule in this case on whether records ‘originally compiled’ for non-law-enforcement purposes but later recompiled for law-enforcement purposes could meet the threshold requirement of Exemption 7.” Brief for Respondent 13-14. Instead, argues respondent, the Court of Appeals merely held that the records in this case were never “compiled” for law enforcement, originally or subsequently, and “no other result was possible based on the facts of this case.” Id., at 14.
We agree with petitioners. The Court of Appeals stated:
“In the instant case, the documents requested were generated by [the DCAA] independent of any investigation in the course of its routine monitoring of Corporation’s accounting procedures with regard to Corporation’s defense contracts. The records were compiled in 1978, seven years before the investigation began in 1985. They were thus not ‘compiled for law-enforcement purposes’ and are not exempted by Subsection (b)(7).” 850 F. 2d 105, 108-109 (CA2 1988).
The court’s use of the word “thus” suggests that it believed a record had to be compiled for law enforcement purposes- from the outset in order to be protected by Exemption 7.
In the instant case, it is not clear when compilation took place. The record does disclose that the documents were transferred from the DCAA to the FBI shortly after the DCAA denied the FOIA request. The timing of the transfer, however, was not stressed by the Court of Appeals or treated by that court as dispositive. Instead, as noted above, the Court of Appeals ruled that Exemption 7 was not available because the documents were obtained originally for non-law-enforcement purposes.
While we leave to the lower courts the determination whether these documents were “compiled for law enforcement purposes” when the Government invoked Exemption 7, we do note that the pendency of the grand jury investigation serves to negate any inference that the chronology of this case raises a question about the bona fides of the Government’s claim that any compilation was not made solely in order to defeat the FOIA request. See Goldberg v. United States Department of State, 260 U. S. App. D. C. 205, 211, 818 F. 2d 71, 77 (1987), cert. denied, 485 U. S. 904 (1988); Miller v. United States Department of State, 779 F. 2d 1378, 1388 (CA8 1985).
The cases were Weisberg v. United States Department of Justice, 160 U. S. App. D. C. 71, 489 F. 2d 1195 (1973), cert. denied, 416 U. S. 993 (1974); Aspin v. Department of Defense, 160 U. S. App. D. C. 231, 491 F. 2d 24 (1973); Ditlow v. Brinegar, 161 U. S. App. D. C. 154, 494 F. 2d 1073 (1974); and Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U. S. App. D. C. 368, 502 F. 2d 370 (1974).
General Dynamics Corp. v. Department of Army, Civ. Action No. 86-522-FFF (CD Cal.), filed January 9,1986. See Washington Post, June 23, 1987, p. Al, col. 1; N. Y. Times, June 23, 1987, p. Al, col. 3; Washington Post, June 24, 1987, p. A24, col. 1 (editorial: “It is hard to understand how this case was brought in the first place”).
|
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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"Renegotiation Board",
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"United States Sentencing Commission",
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"State Agency",
"Unidentifiable",
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"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
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"NO Admin Action",
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] |
[
23
] |
GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., et al. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al.
No. 79-488.
Argued March 25, 26, 1980
Decided May 12, 1980
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Burger, C. J., and Powell, Rehnquist, and Stevens, JJ., filed a dissenting statement, post, p. 334.
James R. Dickens argued the cause for petitioners. With him on the briefs were C. Lee Coulter and N. Huntley Holland.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief for the federal respondent were Solicitor General McCree, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager. Herman L. Wacker filed a memorandum for Local Union No. 89, International Brotherhood of Electrical Workers, respondent under this Court’s Buie 21 (4).
Avrum M. Goldberg, William R. Weissman, Robert E. Williams, Douglas S. McDowell, and Philip Elman filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Barry L. Goldstein and Jack Greenberg filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.
Mr. Justice White
delivered" the opinion of the Court.
The issue in this case is whether the Equal Employment Opportunity Commission (EEOC) may seek classwide relief under §706 (f)(1) of Title VII of the Civil Rights Act of 1964 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure. The Court of Appeals for the Ninth Circuit held that certification was not required. 599 F. 2d 322 (1979). Because this is a recurring issue on which the federal courts are divided, we granted certiorari, 444 U. S. 989 (1979). We affirm the judgment.
I
Four employees of General Telephone Company of the Northwest, Inc. (General Telephone), filed charges with the EEOC complaining of sex discrimination in employment. After investigation, the EEOC found reasonable cause to suspect discrimination against women, and in April 1977 brought suit in the United States District Court for the Western District of Washington under § 706 (f)(1) of Title VII, as amended, § 4, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (l). The EEOC named as defendants General Telephone and its subsidiary, West Coast Telephone Company of California, Inc. (hereinafter collectively referred to as General Telephone), as well as the certified bargaining agent, Local Union No. 89, International Brotherhood of Electrical Workers. The complaint alleged discrimination against female employees in General Telephone’s facilities in the States of California, Idaho, Montana, and Oregon, in the form of restrictions on maternity leave, access to craft jobs, and promotion to managerial positions; it sought injunctive relief and backpay for the women affected by the challenged practices.
The complaint did not mention Federal Rule of Civil Procedure 23, and the EEOC did not seek class certification pursuant to that Rule. In August 1977, the EEOC moved pursuant to Federal Rule of Civil Procedure 42 (b) “for an order bifurcating the issue of class liability from the issue of individual damages.” The District Court referred the motion to a Magistrate, see Title VII, §706 (f)(5), and General Telephone moved “for an order dismissing the class action aspects” of the complaint.
The Magistrate concluded that the EEOC was hot required to comply with Rule 23 and recommended that the motion be denied. The District Court adopted the recommendation, denied the motion to dismiss, and then certified the issue for interlocutory appeal to the Ninth Circuit. The Court of Appeals accepted the appeal, see 28 U. S. C. § 1292 (b), and affirmed the District Court’s ruling.
II
We agree with the Court of Appeals that Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices. We rely on the language of Title VII, the legislative intent underlying the 1972 amendments to Title VII, and the enforcement procedures under Title VII prior to the amendments.
A
Title VII protects all employees of and applicants for employment with a covered employer, employment agency, labor organization, or training program against discrimination based on race, color, religion, sex, or national origin. Section 706 (a) empowers the EEOC “to prevent any person from engaging in any unlawful . . . practice” as set forth in the Title. Section 706 (f)(1) specifically authorizes the EEOC to bring a civil action against any respondent not a governmental entity upon failure to secure an acceptable conciliation agreement, the purpose of the action being to terminate unlawful practices and to secure appropriate relief, including “reinstatement or hiring . . . , with or without back pay,” for the victims of the discrimination. See § 706 (g).
Title VII thus itself authorizes the procedure that the EEOC followed in this case. Upon finding reasonable cause to believe that General Telephone.had discriminated against female employees, the EEOC filed suit seeking a permanent injunction against the discriminatory practices, remedial action to eradicate the effect of past discrimination, and “make whole” backpay, with interest, for persons adversely affected by the unlawful practices. Given the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule 23, and the Rule has no application to a § 706 suit.
Of course, Title VII defendants do not welcome the prospect of backpay liability; but the law provides for such liability and the EEOC’s authority to sue for it. Moreover, the EEOC here requested relief only on behalf of “those persons adversely affected” and “in an amount to be proved at trial.” App. 11. There is no claim or suggestion of unjustified, windfall backpay awards. That backpay relief is authorized is no basis- for imposing the Rule 23 framework in an EEOC enforcement action. We do no more than follow a straightforward reading of the- statute, which seems to us to authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act.
B
This understanding of the statute is supported by the purpose of the 1972 amendments of providing the EEOC with enforcement authority. The purpose of the amendments, plainly enough, was to secure more effective enforcement of Title VII. As Title VII was originally enacted as part of the Civil Rights Act of 1964, the EEOC’s role in eliminating unlawful employment practices was limited to “informal methods of conference, conciliation, and persuasion.” Civil actions for enforcement upon the EEOC’s inability to secure voluntary compliance could be filed only by the aggrieved person. § 706 (e), 78 Stat. 260. Congress became convinced, however, that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII.” S. Rep. No. 92-415, p. 4 (1971). The 1972 amendments to § 706 accordingly expanded the EEOC’s enforcement powers by authorizing the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII. In so doing, Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. The amendments did not transfer all private enforcement to the EEOC and assign to that agency exclusively the task of protecting private interests. The EEOC’s civil suit was intended to supplement, not replace, the private action. Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 45 (1974). The EEOC was to bear the primary burden of litigation, but the private action previously available under § 706 was not superseded. Under § 706 (f)(1), the aggrieved person may bring his own action at the expiration of the 180-day period of exclusive EEOC administrative jurisdiction if the agency has failed to move the case along to the party’s satisfaction, has reached a determination not to sue, or has reached a conciliation or settlement agreement with the respondent that the party finds unsatisfactory. The aggrieved person may also intervene in the EEOC’s enforcement action. These private-action rights suggest that the EEOC is not merely a proxy for the victims of discrimination and that the EEOC’s enforcement suits should not be considered representative actions subject to Rule 23. Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by “the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.” 118 Cong. Rec. 4941 (1972). When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.
c
Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect “a pattern or practice” of discrimination. These actions did not depend upon the filing of a charge with the EEOC; nor were they designed merely to advance the personal interest of any particular aggrieved person. Prior to 1972, the Department of Justice filed numerous § 707 pattern-or-practice suits. 118 Cong. Rec. 4080 (1972) (remarks of Sen. Williams). In none was it ever suggested that the Attorney General sued in a representative capacity or that his enforcement suit must comply with the requirements of Rule 23; and this was true even though specific relief was awarded to individuals not parties to the suit.
The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his own motion. In discussing the transfer, Senator Hruska described § 707 actions as “in the nature of class actions” 118 Cong. Rec. 4080 (1972). Senator Williams then noted that, upon the transfer, “[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a 'pattern or practice’ charge and those which the [EEOC] will be able to bring.” Id., at 4081. Senator Javits agreed with both Senators: “The EEOC . . . has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice.” Senator Javits further noted that “if [the EEOC] proceeds by suit, then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits. . . . [T] he power to sue . . . fully qualifies the [EEOC] to take precisely the action now taken by the Department of Justice.” Id., at 4081-4082. As we have said, the Department of Justice brought its suits in the name of the United States and without obtaining certification under Rule 23 — it did not sue as a representative of the persons aggrieved — and we must assume Congress’ familiarity with the procedure. It is clear that with the 1972 amendments Congress intended the EEOC to proceed in the same manner; and thus, given the context, it is similarly clear that the references in debate to “class” suits referred to the availability of relief and not the procedure that would be applicable in such actions.
Ill
It is also apparent that forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards but seemingly authorized by § 706 (f) (1). The undesirability of doing either supports our conclusion that the procedural requirements of the Rule do not apply.
A
Rule 23 (a), see n. 3, supra, imposes the prerequisites of numerosity, commonality, typicality, and adequacy of representation. When considered in the light of these requirements, it is clear that the Rule was not designed to apply to EEOC actions brought in its own name for the enforcement of federal law. Some of the obvious and more severe problems are worth noting.
The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations. Title VII, however, applies to employers with as few as 15 employees. When judged by the size of the putative class in various cases in which certification has been denied, this minimum would be too small to meet the numerosity requirement. In such cases, applying Rule 23 would require the EEOC to join all aggrieved parties despite its statutory authority to proceed solely in its own name.
The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff’s claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party’s stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable. See, e. g., EEOC v. General Electric Co., 532 F. 2d 359, 366 (CA4 1976); EEOC v. McLean Trucking Co., 525 F. 2d 1007, 1010 (CA6 1975). The latter approach is far more consistent with the EEOC’s role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.
We note finally that the adequate-representation requirement is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class. In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes. But unlike the Rule 23 class representative, the EEOC is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged. The individual victim is given his right to intervene for this very reason. The EEOC exists to advance the public interest in preventing and remedying employment discrimination, and it does so in part by making the hard choices where conflicts of interest exist. We are reluctant, absent clear congressional guidance, to subject §706 (f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute.
B
We observe that General Telephone does not urge application of Rule 23 to EEOC enforcement actions in the expectation or hope that the agency could not comply and would be forced to drop its action against General Telephone. Indeed, petitioners urge that the EEOC, in proper cases, would be able to meet the Rule 23 requirements. Brief for Petitioners 16-22. As we understand, petitioners’ objective in seeking to invoke Rule 23 is aimed at securing a judgment in the EEOC’s suit that will be binding upon all individuals with similar grievances in the class or subclasses that might be certified. We are sensitive to the importance of the res judicata aspects of Rule 23 judgments, but we are not free to depart from what we believe the statutory design to be.
We have noted in a related context the interface between employment discrimination remedies under a collective-bargaining agreement and those under Title VII. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), held that the employee did not forfeit Title VII relief by invoking the grievance and arbitration procedures under the collective-bargaining contract. We noted that "federal courts have been assigned plenary powers to secure compliance with Title VII.” Id., at 45. Similarly, the courts retain remedial powers under Title VII despite a finding by the EEOC of no reasonable cause to believe that Title VII has been violated. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 798-799 (1973). We have also stressed the strong congressional intent to provide “make whole” relief to Title VII claimants: “ ‘The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. . . .’ 118 Cong. Rec. 7168 (1972).” Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975).
The 1972 amendments retained the private right of action as “an essential means of obtaining judicial enforcement of Title VII,” Alexander v. Gardner-Denver Co., supra, at 45, while also giving the EEOC broad enforcement powers. In light of the “general intent to accord parallel or overlapping remedies against discrimination,” 415 U. S., at 47, we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all “class” members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved. Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 (1977).
The courts, however, are not powerless to prevent undue hardship to the defendant and should perform accordingly. The employer may, by discovery and other pretrial proceedings, determine the nature and extent of the claims that the EEOC intends to pursue against it. Here, as we have noted, the EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof. It also goes without saying that the courts can and should preclude double recovery by an individual. Cf. Alexander v. Gardner-Denver Co., supra, at 51, n. 14. Also, where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action. The Title VII remedy is an equitable one; a court of equity should adjust the relief accordingly.
IV
We hold, therefore, that the EEOC may maintain its § 706 civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23. The judgment of the Ninth Circuit is accordingly
Affirmed.
The Chief Justice, Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens, for the reasons that are well stated by the Court of Appeals for the Fifth Circuit in EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978), would reverse the judgment in this case.
The Fifth Circuit previously addressed this same issue and held that certification was required. EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978). The District Courts have decided the issue both ways.
Section 706 (f)(1) provides in pertinent part:
“If within thirty days after a charge is filed with the Commission . . . , the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. . . . The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission .... If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.”
Rule 23 provides in pertinent part:
“(a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
"(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) the prosecution of separate actions by or against individual members of the class would create a risk of
“(A) inconsistent or varying adjudications' with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
Local Union No. 89, International Brotherhood of Electrical Workers, did not join in this motion. Discussions were underway between the union and the EEOC to resolve the allegations in the complaint against the union. The union also did not participate in the appeal to the Ninth Circuit following the denial of the motion to dismiss. On December 18, 1978, the District Court entered a consent decree against the union; General Telephone’s cross-claim for judgment against the union if General Telephone is found liable on the sex discrimination claims is still pending.
The union also did not join in General Telephone’s petition for certiorari and is, therefore, a respondent in this Court. See this Court’s Rule 21 (4).
Petitioners characterize this action as a “class action”; the EEOC characterizes it as an action “affecting a class of individuals.” We need not choose between these characterizations. The issue is whether an action, however it is styled, brought by a Government agency to enforce the federal law with whose enforcement the agency is charged is subject to the requirements of Rule 23.
The Attorney General is authorized to bring suit against a governmental entity.
The Senate Report on the amendments notes:
“The most striking deficiency of the 1964 Act is that the EEOC does not have the authority to issue judicially enforceable orders to back up its findings of discrimination. . . .
“As a consequence, unless the Department of Justice concludes that a pattern or practice of resistance to Title VII is involved, the burden of obtaining enforceable relief rests upon each individual victim of discrimination, who must go into court as a private party, with the delay and expense that entails, in order to secure the rights promised him under the law.” S. Rep. No. 92-415, p. 4 (1971).
The Senate Committee contemplated EEOC enforcement through an administrative proceeding followed by a cease-and-desist order with review in the appropriate United States court of appeals. Although a floor amendment changed the procedure to a civil suit in the district court, the policy remained the same.
Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 368 (1977) (“[U]nder the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion”). Cf. also Porter v. Warner Holding Co., 328 U. S. 395, 397-398 (1946) (The Price Administrator “invoke[s] the jurisdiction of the District Court to enjoin acts and practices made illegal by the [Emergency Price Control Act of 1942] and to enforce compliance with the Act. . . . [S]inee the public interest is involved in a proceeding of this nature, [the District Court's] equitable powers assume an even broader and more flexible character than when only a private controversy is at stake”).
Nor has it been so suggested in § 707 suits brought since 1972. In fact, the only Court of Appeals to hold that the EEOC must comply with Rule 23 in its § 706 actions has intimated that the procedural requirements would not apply in a § 707 action. The Fifth Circuit, in EEOC v. D. H. Holmes Co., although imposing the Rule 23 strictures on § 706 actions, noted “emphatically that this is not a situation in which application of procedural rules will thwart any substantive right whatsoever.
“If, for any reason, EEOC is not certified below but still believes a pattern or practice of discrimination exists in the Holmes Company, its recourse is to file a suit under § 707. . . .” 556 F. 2d, at 792, n. 8.
See, e. g., United States v. Chesapeake & O. R. Co., 471 F. 2d 582, 589-590 (CA4 1972) (constructive seniority), cert. denied sub nom. Railroad Trainmen v. United States, 411 U. S. 939 (1973); United States v. St. Louis-S. F. R. Co., 464 F. 2d 301, 309-311 (CA8 1972) (en banc) (preferential hiring and constructive seniority), cert. denied sub nom. Transportation Union v. United States, 409 U. S. 1107 (1973); United States v. Ironworkers Local 86, 443 F. 2d 544, 548, 552-554 (CA9) (preferential hiring), cert. denied, 404 U. S. 984 (1971).
Since 1972, backpay has also been awarded in pattem-or-practice suits, and without suggestion that Rule 23 is implicated. E. g., EEOC v. Detroit Edison Co., 515 F. 2d 301, 314-315 (CA6 1975); United States v. Georgia Power Co., 474 F. 2d 906, 919-920 (CA5 1973); cf. United States v. N. L. Industries, Inc., 479 F. 2d 354, 378-380 (CA8 1973). And we see nothing to indicate that prior to 1972, in cases where backpay was requested and denied, the result rested on the ground that the Government could not obtain individual relief in its enforcement action without compliance with Rule 23. See, e. g., United States v. St. Louis-S. F. R. Co., supra, at 311; United States v. Hayes Int’l Corp., 456 F. 2d 112, 121 (CA5 1972).
The legislative debate at this point focused on whether and when to make the transfer. The issue arose in the wake of the decision the day before to empower the EEOC to proceed by civil action and not cease-and-desist order. As finally agreed upon, the transfer was to occur two years after the effective date of the amendments.
Senator Javits goes on here to note that “[t]hese are essentially class actions, and if they can sue for an individual claimant, then they can sue for a group of claimants.” Given its juxtaposition between the discussion of the Department of Justice’s pattern-or-practice actions and the EEOC’s newly granted ability to sue, it is unclear whether the Senator’s characterization here as “class actions” referred to § 707 or § 706.
Petitioners rely heavily on the statement by Senator Javits immediately following the quotation set out in n. 12, supra, that “this is provided for by the rules of civil procedure in the Federal courts.” The Senator then elaborated:
“I have referred to the rules of civil procedure. I now refer specifically to rule 23 of those rules, which is entitled Class Actions and which give[s] the opportunity to engage in the Federal Court in class actions by properly suing parties. We ourselves have given permission to the EEOC to be a properly suing party.” 118 Cong. Rec. 4082 (1972).
Again, given the context, the point that emerges most clearly is that the Senator’s comments merely compare the effect of the amendments to § 706 with the Rule 23 procedure; the comments were not intended to impose the requirements of the Rule on the § 706 action. Indeed, the idea that the EEOC’s enforcement suits were to be subject to the full range of Rule 23 requirements is completely inconsistent with the Senator’s own comparisons, noted in text, between the EEOC’s authority under § 706 as amended and the authority of the Department of Justice under the original version of § 707.
See, e. g., Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Texas, 511 F. 2d 1073, 1077 (CA10 1975) (37 class plaintiffs); Peterson v. Albert M. Bender Co., 75 F. R. D. 661, 667 (ND Cal. 1977) (35-45); Murray v. Norberg, 423 F. Supp. 795, 798 (RI 1976) (fewer than 20); Chmieleski v. City Products Corp., 71 F. R. D. 118, 150-151 (WD Mo. 1976) (22); Lopez v. Jackson County Bd. of Supervisors, 375 F. Supp. 1194, 1196-1197 (SD Miss. 1974) (16); Moreland v. Rucker Pharmacal Co., 63 F. R. D. 611, 613-614 (WD La. 1974) (26); Anderson v. Home Style Stores, Inc., 58 F. R. D. 125, 130-131 (ED Pa. 1972) (18).
An acceptance of the benefits under an EEOC-negotiated settlement could be drafted to provide for a similar relinquishment.
We by no means suggest that the Federal Rules generally are inapplicable to the EEOC's §706 actions. Title VII itself refers to Rule 63, see §706 (f)(5), and the Court itself has discussed Rule 54(c). See Albemarle Paper Co. v. Moody, 422 U. S. 405, 424 (1975). We hold only that the nature of the EEOC’s enforcement action is such that it is not properly characterized as a “class action” subject to the procedural requirements of Rule 23.
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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",
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] |
[
31
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CLEVELAND BOARD OF EDUCATION et al. v. LaFLEUR et al.
No. 72-777.
Argued October 15, 1973
Decided January 21, 1974
Stewart, J., delivered the opinion of the Court, in which BreN-NAN, White, Marshall, and BlackmuN,. JJ., joined. Douglas, J., concurred in the result. Powell, J., filed an opinion concurring in the result, post, p. 651. RehNquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 657.
Charles F. Clarke argued the cause and filed a brief for petitioners in No. 72-777. Philip J. Hirschkop argued the cause for. petitioner in No. 72-1129. With him on the brief was John B. Mann.
Jane M. Picker argued the cause for respondents in No. 72-777. With her on the brief were Rita Page Reuss and Sidney Picker, Jr. Samuel W. Hixon III argued the cause for respondents in No. 72-1129. With him on the brief was Frederick T. Gray.
Together with No. 72-1129, Cohen v. Chesterfield County School Board et al., on certiorari to the United States Court of Appeals for the Fourth Circuit.
Andrew J. Ruzicho filed a brief for the International Association of Official Human Rights Agencies as amicus curiae urging affirmance in No. 72-777. Philip J. Tierney filed a brief for the Maryland Commission on Human Relations as amicus curiae urging reversal in No. 72-1129. Briefs of amici curiae urging affirmance in No. 72-1129 were filed by Andrew P. Miller, Attorney General, and Walter H. Ryland, Assistant Attorney General, for the Commonwealth of Virginia, and by Gordon Dean Booth, Jr., Richard S. Maurer, and Sidney F. Davis for Delta Air Lines, Inc. Briefs of amici curiae urging reversal in No. 72-1129 and affirmance in No. 72-777 were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Louis F. Claiborne, Joseph T. Eddins, and Beatrice Rosenberg for the United States; by David Rubin and Jerry D. Anker for the National Education Assn, et ah; by Winn Newman and Ruth Wey- and for the International Union of Electrical,, Radio and Machine Workers, AFL-CIO; by Theodore R. Mann, Joseph B. Robison, Sylvia Roberts, Ruth Bader Ginsburg, Melvin L. Wulf, and John Ligtenberg for the American Civil Liberties Union et al.; and by Paul O. H. Pigman for Margaret M. Broussard. Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and Joanne Condas, Deputy Attorney General, filed a brief for the California Department of Human Resources Development as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
The respondents in No. 72-777 and the petitioner in No. 72-1129 are female public school teachers. During the 1970-1971 school year, each informed her local school board that she was pregnant; each was compelled by a mandatory maternity leave rule to quit her job without pay several months before the expected birth of her child. These cases call upon us to decide the constitutionality of the school boards’ rules.
I
Jo Carol LaFleur and Ann Elizabeth Nelson, the respondents in No. 72-777, are junior high school teachers employed by the Board of Education of Cleveland, Ohio. Pursuant to a rule first adopted in 1952, the school board requires every pregnant school teacher to take maternity leave without pay, beginning five months before the expected birth of her child. Application for such leave must be made no later than two weeks prior to the date of departure. A teacher on maternity leave is not allowed to return to work until the beginning of the next regular school semester which follows the date when her child attains the age of three months. A doctor’s certificate attesting to the health of the teacher is a prerequisite to return; an additional physical examination may be required. The teacher on maternity leave is not promised re-employment after the birth of the child; she is merely given priority in reassignment to a position for which she is qualified. Failure to comply with the mandatory maternity leave provisions is ground for dismissal.
Neither Mrs. LaFleur nor Mrs. Nelson wished to take an unpaid maternity leave; each wanted to continue teaching until the end of the school year. Because of the mandatory maternity leave rule, however, each was required to leave her job in March 1971. The two women then filed separate suits in the United States District Court for the Northern District of Ohio under 42 U. S. C. § 1983, challenging the constitutionality of the maternity leave rule. The District Court tried the cases together, and rejected the plaintiffs’ arguments. 326 F. Supp. 1208. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed, finding the Cleveland rule in violation of the Equal Protection Clause of the Fourteenth Amendment. 465 F. 2d 1184.
The petitioner in No. 72-1129, Susan Cohen, was employed by the School Board of Chesterfield County, Virginia. That school board’s maternity leave regulation requires that a pregnant teacher leave work at least four months prior to the expected birth of her child. Notice in writing must be given to the school board at least six months prior to the expected birth date. A teacher on maternity leave is declared re-eligible for employment when she submits written notice from a physician that she is physically fit for re-employment, and when she can give assurance that care of the child will cause only minimal interference with her job responsibilities. The teacher is guaranteed re-employment no later than the first day of the school year following the date upon which she is declared re-eligible.
Mrs. Cohen informed the Chesterfield County School Board in November 1970, that she was pregnant and expected the birth of her child about April 28, 1971. She initially requested that she be permitted to continue teaching until April 1, 1971. The school board rejected the request, as it did Mrs. Cohen’s subsequent suggestion that she be allowed to teach until January 21, 1971, the end of the first school semester. Instead, she was required to leave her teaching job on December 18, 1970. She subsequently filed this suit under 42 U. S. C. § 1983 in the United States District Court for the Eastern District of Virginia. The District Court held that the school board regulation violates the Equal Protection Clause, and granted appropriate relief. 326 F. Supp. 1159. A divided panel of the Fourth Circuit affirmed, but, on rehearing en banc, the Court of Appeals upheld the constitutionality of the challenged regulation in a A-3 decision. 474 F. 2d 395.
We granted certiorari in both cases, 411 U. S. 947, in order to resolve the conflict between the Courts of Appeals regarding the constitutionality of such mandatory maternity leave rules for public school teachers.
II
This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U. S. 113; Loving v. Virginia, 388 U. S. 1, 12; Griswold v. Connecticut, 381 U. S. 479; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. See also Prince v. Massachusetts, 321 U. S. 158; Skinner v. Oklahoma, 316 U. S. 535. As we noted in Eisenstadt v. Baird, 405 U. S. 438, 453, there is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms. Because public school maternity leave rules directly affect “one of the basic civil rights of man,” Skinner v. Oklahoma, supra, at 541, the Due Process Clause of the Fourteenth Amendment requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher’s constitutional liberty. The question before us in these cases is whether the interests advanced in support of the rules of the Cleveland and Chesterfield County School Boards can justify the particular procedures they have adopted.
The school boards in these cases have offered two essentially overlapping explanations for their mandatory maternity leave rules. First, they contend that the firm cutoff dates are necessary to maintain continuity of classroom instruction, since advance knowledge of when a pregnant teacher must leave facilitates the finding and hiring of a qualified substitute. Secondly, the school boards seek to justify their maternity rules by arguing that at least some teachers become physically incapable of adequately performing certain of their duties during the latter part of pregnancy. By keeping the pregnant teacher out of the classroom during these final months, the maternity leave rules are said to protect the health of the teacher and her unborn child, while at the same time assuring that students have a physically capable instructor in the classroom at all times.
It cannot be denied that continuity of instruction is a significant and legitimate educational goal. Regulations requiring pregnant teachers to provide early notice of their condition to school authorities undoubtedly facilitate administrative planning toward the important objective of continuity. But, as the Court of Appeals for the Second Circuit noted in Green v. Waterford Board of Education, 473 F. 2d 629, 635:
“Where a pregnant teacher provides the Board with a date certain for commencement of leave . . . that value [continuity] is preserved; an arbitrary leave date set at the end of the fifth month is no more calculated to facilitate a planned and orderly transition between the teacher and a substitute than is a date fixed closer to confinement. Indeed, the latter . . . would afford the Board more, not less, time to procure a satisfactory long-term substitute.” (Footnote omitted.)
Thus, while the advance-notice provisions in the Cleveland and Chesterfield County rules are wholly rational and may well be necessary to serve the objective of continuity of instruction, the absolute requirements of termination at the end of the fourth or fifth month of pregnancy are not. Were continuity the only goal, cutoff dates much later during pregnancy would serve as well as or better than the challenged rules, providing that ample advance notice requirements were retained. Indeed, continuity would seem just as well attained if the teacher herself were allowed to choose the date upon which to commence her leave, at least so long as the decision were required to be made and notice given of it well in advance of the date selected.
In fact, since the fifth or sixth month of pregnancy will obviously begin at different times in the school year for different teachers, the present Cleveland and Chesterfield County rules may serve to hinder attainment of the very continuity objectives that they are purportedly designed to promote. For example, the beginning of the fifth month of pregnancy for both Mrs. LaFleur and Mrs. Nelson occurred during March of 1971. Both were thus required to leave work with only a few months left in the school year, even though both were fully willing to serve through the end of the term. Similarly, if continuity were the only goal, it seems ironic that the Chesterfield County rule forced Mrs. Cohen to leave work in mid-December 1970 rather than at the end of the semester in January, as she requested.
We thus conclude that the arbitrary cutoff dates embodied in the mandatory leave rules before us have no rational relationship to the valid state' interest of preserving continuity of instruction. As long as the teachers are required to give substantial advance notice of their condition, the choice of firm dates later in pregnancy would serve the boards’ objectives just as well, while imposing a far lesser burden on the women’s exercise of constitutionally protected freedom.
The question remains as to whether the cutoff dates at the beginning of the fifth and sixth months can be justified on the other ground advanced by the school boards — the necessity of keeping physically unfit teachers out of the classroom. There can be no doubt that such an objective is perfectly legitimate, both on educational and safety grounds. And, despite the plethora of conflicting medical testimony in these cases, we can assume, arguendo, that at least some teachers become physically disabled from effectively performing their duties during the latter stages of pregnancy.
The mandatory termination provisions of the Cleveland and Chesterfield County rules surely operate to insulate the classroom from the presence of potentially incapacitated pregnant teachers. But the question is whether the rules sweep too broadly. See Shelton v. Tucker, 364 U. S. 479. That question must be answered in the affirmative, for the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing. There is no individualized determination by the teacher’s doctor — or the school board’s — as to any particular teacher’s ability to continue at her job. The rules contain an irrebuttable presumption of physical incompetency, and that presumption applies even when the medical evidence as to an individual woman’s physical status might be wholly to the contrary.
As the Court noted last Term in Vlandis v. Kline, 412 U. S. 441, 446, “permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments.” In Vlandis, the Court declared unconstitutional, under the Due Process Clause of the Fourteenth Amendment, a Connecticut statute mandating an irrebuttable presumption of non-residency for the purposes of qualifying for reduced tuition rates at a state university. We said in that case, id., at 452:
“[I]t is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of non-residence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.”
Similarly, in Stanley v. Illinois, 405 U. S. 645, the Court held that an Illinois statute containing an irrebut-table presumption that unmarried fathers are incompetent to raise their children violated the Due Process Clause. Because of the statutory presumption, the State took custody of all illegitimate children upon the death of the mother, without allowing the father to attempt to prove his parental fitness. As the Court put the matter:
“It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id., at 654 (footnotes omitted).
Hence, we held that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination. See also United States Dept. of Agriculture v. Murry, 413 U. S. 508; id., at 514-517 (concurring opinion); Bell v. Burson, 402 U. S. 535; Carrington v. Rash, 380 U. S. 89.
These principles control our decision in the cases before us. While the medical experts in these cases differed on many points, they unanimously agreed on one — the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter. Even assuming, arguendo, that there are some women who would be physically unable to work past the particular cutoff dates embodied in the challenged rules, it is evident that there are large numbers of teachers who are fully capable of continuing work for longer than the Cleveland and Chesterfield County regulations will allow. Thus, the conclusive presumption embodied in these rules, like that in Vlandis, is neither “necessarily [nor] universally true,” and is viola-tive of the Due Process Clause.
The school boards have argued that the mandatory termination dates serve the interest of administrative convenience, since there are many instances of teacher pregnancy, and the rules obviate the necessity for case-by-case determinations. Certainly, the boards have an interest in devising prompt and efficient procedures to achieve their legitimate objectives in this area. But, as the Court stated in Stanley v. Illinois, supra, at 656:
“[T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” (Footnote omitted.)
While it might be easier for the school boards to conclusively presume that all pregnant women are unfit to teach past the fourth or fifth month or even the first month, of pregnancy, administrative convenience alone is insufficient to make valid what otherwise is a violation of due process of law. The Fourteenth Amendment requires the school boards to employ alternative administrative means, which do not so broadly infringe upon basic constitutional liberty, in support of their legitimate goals.
We conclude, therefore, that neither the necessity for continuity of instruction nor the state interest in keeping physically unfit teachers out of the classroom can justify the sweeping mandatory leave regulations that the Cleveland and Chesterfield County School Boards have adopted. While the regulations no doubt represent a good-faith attempt to achieve a laudable goal, they cannot pass muster under the Due Process Clause of the Fourteenth Amendment, because they employ irrebuttable presumptions that unduly penalize a female teacher for deciding to bear a child.
Ill
In addition to the mandatory termination provisions, both the Cleveland and Chesterfield County rules contain limitations upon a teacher’s eligibility to return to work after giving birth. Again, the school boards offer two justifications for the return rules — continuity of instruction and the desire to be certain that the teacher is physically competent when she returns to work. As is the case with the leave provisions, the question is not whether the school board’s goals are legitimate, but rather whether the particular means chosen to achieve those objectives unduly infringe upon the teacher’s constitutional liberty.
Under the Cleveland rule, the teacher is not eligible to return to work until the beginning of the next regular school semester following the time when her child attains the age of three months. A doctor’s certificate attesting to the teacher’s health is required before return; an additional physical examination may be required at the option of the school board.
The respondents in No. 72-777 do not seriously challenge either the medical requirements of the Cleveland rule or the policy of limiting eligibility to return to the next semester following birth. The provisions concerning a medical certificate or supplemental physical examination are narrowly drawn methods of protecting the school board’s interest in teacher fitness; these requirements allow an individualized decision as to the teacher’s condition, and thus avoid the pitfalls of the presumptions inherent in the leave rules. Similarly, the provision limiting eligibility to return to the semester following delivery is a precisely drawn means of serving the school board’s interest in avoiding unnecessary changes in classroom personnel during any one school term.
The Cleveland rule, however, does not simply contain these reasonable medical and next-semester eligibility provisions. In addition, the school board requires the mother to wait until her child reaches the age of three months before the return rules begin to operate. The school board has offered no reasonable justification for this supplemental limitation, and we can perceive none. To the extent that the three-month provision reflects the school board’s thinking that no mother is fit to return until that point in time, it suffers from the same constitutional deficiencies that plague the irrebuttable presumption in the termination rules. The presumption, moreover, is patently unnecessary, since the requirement of a physician’s certificate or a medical examination fully protects the school’s interests in this regard. And finally, the three-month provision simply has nothing to do with continuity of instruction, since the precise point at which the child will reach the relevant age will obviously occur at a different point throughout the school year for each teacher.
Thus, we conclude that the Cleveland return rule, insofar as it embodies the three-month age provision, is wholly arbitrary and irrational, and hence violates the Due Process Clause of the Fourteenth Amendment. The age limitation serves no legitimate state interest, and unnecessarily penalizes the female teacher for asserting her right to bear children.
We perceive no such constitutional infirmities in the Chesterfield County rule. In that school system, the teacher becomes eligible for re-employment upon submission of a medical certificate from her physician; return to work is guaranteed no later than the beginning of the next school year following the eligibility determination. The medical certificate is both a reasonable and narrow method of protecting the school board’s interest in teacher fitness, while the possible deferring of return until the next school year serves the goal of preserving continuity of instruction. In short, the Chesterfield County rule manages to serve the legitimate state interests here without employing unnecessary presumptions that broadly burden the exercise of protected constitutional liberty.
IY
For the reasons stated, we hold that the mandatory termination provisions of the Cleveland and Chesterfield County maternity regulations violate the Due Process Clause of the Fourteenth Amendment, because of their use of unwarranted conclusive presumptions that seriously burden the exercise of protected constitutional liberty. For similar reasons, we hold the three-month provision of the Cleveland return rule unconstitutional.
Accordingly, the judgment in No. 72-777 is affirmed; the judgment in No. 72-1129 is reversed, and the case is remanded to the Court of Appeals for the Fourth Circuit for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Douglas concurs in the result.
The Cleveland rule provides:
“Any married teacher who becomes pregnant and who desires to return to the employ of the Board at a future date may be granted a maternity leave of absence without pay.
“APPLICATION A maternity leave of absence shall be effective not less than five (5) months before the expected date of the normal birth of the child. Application for such leave shall be forwarded to the Superintendent at least two (2) weeks before the effective date of the leave of absence. A leave of absence without pay shall be granted by the Superintendent for a period not to exceed two (2) years.
“REASSIGNMENT A teacher may return to service from maternity leaves not earlier than the beginning of the regular school semester which follows the child’s age of three (8) months. In unusual circumstances, exceptions to this requirement may be made by the Superintendent with the approval of the Board. Written request for return to service from maternity leave must reach the Superintendent at least six (6) weeks prior to the beginning of the semester when the teacher expects to resume teaching and shall be accompanied by a doctor’s certificate stating the health and physical condition of the teacher. The Superintendent may require an additional physical examination.
“When- a teacher qualifies to return from maternity leave, she shall have priority in reassignment to a vacancy for which she is qualified under her certificate, but she shall not have prior claim to the exact position she held before the leave of absence became effective.
“A teacher’s failure to follow the above rules for maternity leave of absence shall be construed as termination of contract or as grounds for dismissal.” (Emphasis in original.)
Mrs. LaFleur’s child was born on July 28, 1971; Mrs. Nelson’s child was bom during August of that year.
Effective February 1, 1971, the Cleveland regulation was amended to provide that only teachers with one year of continuous service qualified for maternity leave; teachers with less than one year were required to resign at the beginning of the fifth month of pregnancy. Since Mrs. Nelson had less than a year of service at the time she notified her principal that she was pregnant, the school board originally required her to resign her teaching position. The school board has since conceded that the February 1 amendment did not apply to Mrs. Nelson, since it was enacted after her contract of employment was executed. Pursuant to that concession, the board has placed Mrs. Nelson, like Mrs. LaFleur, on mandatory leave.
Chief Judge Phillips filed a separate opinion, dissenting in part and concurring in part. He felt that the portion of the challenged regulation requiring maternity leave at the beginning of the fifth month of pregnancy was constitutional; he agreed with the majority, however, that the three-month post-delivery waiting period before becoming eligible to return to teaching was unconstitutional.
The Chesterfield County rule provides:
“MATERNITY PROVISIONS
“a. Notice in writing must be given to the School Board at least six (6) months prior to the date of expected birth.
“b. Termination of employment of an expectant mother shall become effective at least four (4) months prior to the expected birth of the child. Termination of employment may be extended if the superintendent receives written recommendations from the expectant mother’s physician and her principal, and if the superintendent feels that an extension will be in the best interest of the pupils and school involved.
“c. Maternity Leave
“(1) Maternity leave must be requested in writing at the time of termination of employment.
“(2) Maternity leave will be granted only to those persons who have a record of satisfactory performance.
“(3) An individual will be declared eligible for re-employment when she submits written notice from her physician that she is physically fit for full-time employment and when she can give full assurance that care of the child will cause minimal interference with job responsibilities.
“(4) Re-employment will be guaranteed no later than the first day of the school year following the date that the individual was declared eligible for re-employment.
“(5) All personnel benefits accrued, including seniority, will be retained during maternity leave unless the person concerned shall have accepted other employment.
“(6) The school system will have discharged its responsibility under this policy after offering re-employment for the first vacancy that occurs after the individual has been declared eligible for re-employment.”
Mrs. Cohen’s child was in fact bom on May 2.
Unlike the Cleveland rule, n. 1, supra, the Chesterfield County regulation allows the superintendent of schools to extend a teacher’s employment beyond the normal cutoff date, if he determines that such action is in the best interests of the students and school involved. See n. 5, supra.
Apart from the cases here under review, there are at least three other reported federal appellate opinions dealing with the constitutionality of mandatory maternity leave regulations. Compare Green v. Waterford Board of Education, 473 F. 2d 629 (CA2), and Buckley v. Coyle Public School System, 476 F. 2d 92 (CA10) (both invalidating mandatory leave rules for pregnant public school teachers) with Schattman v. Texas Employment Comm’n, 459 F. 2d 32 (CA5) (upholding a leave policy of a state agency).
For opinions of the district courts dealing with mandatory maternity leaves, see, e. g., Heath v. Westerville Board of Education, 345 F. Supp. 501 (SD Ohio); Pocklington v. Duval County School Board, 345 F. Supp. 163 (MD Fla.); Bravo v. Board of Education of the City of Chicago, 345 F. Supp. 155 (ND Ill.); Williams v. San Francisco Unified School District, 340 F. Supp. 438 (ND Cal.); Seaman v. Spring Lake Park Independent School District, 363 F. Supp. 944 (Minn.); Monell v. Department of Social Services, 357 F. Supp. 1051 (SDNY).
Cf. Struck v. Secretary of Defense, 460 F. 2d 1372 (CA9), vacated and remanded to consider the issue of mootness, 409 U. S. 1071; Gutierrez v. Laird, 346 F. Supp. 289 (DC); Robinson v. Rand, 340 F. Supp. 37 (Colo.) (all dealing with Air Force regulations requiring separation of pregnant personnel).
The practical impact of our decision in the present cases may have been somewhat lessened by several recent developments. At the time that the teachers in these cases were placed on maternity leave, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq., did not apply to state agencies and educational institutions. 42 U. S. C. §§ 2000e (b) and 2000e-1. On March 24, 1972, however, the Equal Employment Opportunity Act of 1972 amended Title VII to withdraw those exemptions. Pub. L. 92-261, 86 Stat. 103. Shortly thereafter, the Equal Employment Opportunity Commission promulgated guidelines providing that a mandatory leave or termination policy for pregnant women presumptively violates Title VII. 29 CFR § 1604.10, 37 Fed. Reg. 6837. While the statutory amendments and the administrative regulations are, of course, inapplicable to the cases now before us, they will affect like suits in the future.
In addition, a number of other federal agencies have promulgated regulations similar to those of the Equal Employment Opportunity Commission, forbidding discrimination against pregnant workers with regard to sick leave policies. See, e. g., 5 CFR § 630.401 (b) (Civil Service Commission); 41 CFR § 60-20.3 (g) (Office of Federal Contract Compliance). See generally Koontz, Childbirth and Child Rearing Leave: Job-Related Benefits, 17 N. Y. L. F. 480, 487-490; Comment, Love’s Labors Lost: New Conceptions of Maternity Leaves, 7 Harv. Civ. Rights-Civ. Lib. L. Rev. 260, 280-281. We, of course, express no opinion as to the validity of any of these regulations.
The records in these cases suggest that the maternity leave regulations may have originally been inspired by other, less weighty, considerations. For example, Dr. Mark C. Schinnerer, who served as Superintendent of Schools in Cleveland at the time the leave rule was adopted, testified in the District Court that the rule had been adopted in part to save pregnant teachers from embarrassment at the hands of giggling schoolchildren; the cutoff date at the end of the fourth month was chosen because this was, when the teacher “began to show.” Similarly, at least several members of the Chesterfield County School Board thought a mandatory leave rule was justified in order to insulate schoolchildren from the sight of conspicuously pregnant women. One member of the school board thought that it was “not good for the school system” for students to view pregnant teachers, “because some of the kids say, my teacher swallowed a water melon, things like that.”
The school boards have not contended in this Court that these considerations can serve as a legitimate basis for a rule requiring pregnant women to leave work; we thus note the comments only to illustrate the possible role of outmoded taboos in the adoption of the rules. Cf. Green v. Waterford Board of Education, 473 F. 2d, at 635 (“Whatever may have been the reaction in Queen Victoria's time, pregnancy is no longer a dirty word”).
It is, of course, possible that either premature childbirth or complications in the latter stages of pregnancy might upset even the most careful plans of the teacher, the substitute, and the school board. But there is nothing in these records to indicate that such emergencies could not be handled, as are all others, through the normal use of the emergency substitute teacher process. See Green, supra, at 635-636.
Indeed, it is somewhat difficult to view the Cleveland mandatory leave rule as seriously furthering the goal of continuity, since the rule requires only two weeks’ advance notice before the leave is to commence.
There were three medical witnesses in the Cleveland case: Dr. Sarah Marcus and Dr. Veners Rutenbeigs (Mrs. Nelson’s obstetrician), who testified on behalf of the respondents, and Dr. William C. Weir, the petitioners’ expert. While Dr. Weir generally disagreed with his colleagues on the potential effects of pregnancy on a teacher’s job performance, he noted that each pregnancy was an individual matter, and should be prescribed for as such. Similarly, the two medical experts in the Chesterfield County case, Dr. Leo J. Dunn and Dr. David C. Forrest, testified that each particular pregnancy must be managed as an individual matter. Cf. R. Benson, Handbook of Obstetrics & Gynecology 109 (4th ed. 1971); Curran, Equal Protection of the Law: Pregnant School Teachers, 285 New England J. Medicine 336; Comment, Mandatory Maternity Leave of Absence Policies—An Equal Protection Analysis, 45 Temp. L. Q. 240, 245.
This is not to say that the only means for providing appropriate protection, for the rights of pregnant teachers is an individualized determination in each case and in every circumstance. We are not dealing in these cases with maternity leave regulations requiring a termination of employment at some firm date during the last few weeks of pregnancy. We therefore have no occasion to decide whether such regulations might be justified by considerations not presented in these records — for example, widespread medical consensus about the “disabling” effect of pregnancy on a teacher’s job performance during these latter days, or evidence showing that such firm cutoffs were the only reasonable method of avoiding the possibility of labor beginning while some teacher was in the classroom, or proof that adequate substitutes could not be procured without at least some minimal lead time and certainty as to the dates upon which their employment was to begin.
The school boards have available to them reasonable alternative methods of keeping physically unfit teachers out of the classroom. For example, they could require the pregnant teacher to submit to medical examination by a school board physician, or simply require each teacher to submit a current certification from her obstetrician as to her ability to continue work. Indeed, when evaluating the physical ability of a teacher to return to work, each school board in this ease relies upon precisely such procedures. See nn. 1 and 5, supra; see also text, infra, at 648-650.
It is clear that the factual hypothesis of such a presumption— that no mother is physically fit to return to work until her child reaches the age of three months — is neither necessarily nor universally true. See R. Benson, supra, n. 12, at 209 (patient may return to “full activity or employment” if course of progress up to fourth or fifth week is normal). Cf. Comment, Love’s Labors Lost: New Conceptions of Maternity Leaves, 7 Harv. Civ. Rights-Civ. Lib. L. Rev., at 262 n. 11, 287 n. 145.
Of course, it may be that the Cleveland rule is based upon another theory — that new mothers are too busy with their children within the first three months to allow a return to work. Viewed in that light, the rule remains a conclusive presumption, whose underlying factual assumptions can hardly be said to be universally valid.
The Virginia rule also requires that the teacher give assurance that care of the child will not unduly interfere with her job duties. While such a requirement has within it the potential for abuse, there is no evidence on this record that the assurance required here is anything more than that routinely sought by employers from prospective employees — that the worker is willing to devote full attention to job duties. Nor is there any evidence in this record that the school authorities do not routinely accept the woman’s assurance of her ability to return.
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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
] |
FEDERAL COMMUNICATIONS COMMISSION v. NEXTWAVE PERSONAL COMMUNICATIONS INC. et al.
No. 01-653.
Argued October 8, 2002
Decided January 27, 2003
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which Stevens, J., joined as to Parts I and II. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 308. Breyer, J., filed a dissenting opinion, post, p. 310.
Acting Solicitor General Clement argued the cause for petitioner Federal Communications Commission in No. 01-653. With him on the briefs were Deputy Solicitor General Wallace, Jeffrey A. Lamken, William Kanter, Jacob M. Lewis, John A. Rogovin, Daniel M. Armstrong, and Joel Marcus. Jonathan S. Franklin argued the cause for petitioners Arctic Slope Regional Corp. et al. in No. 01-657. With him on the briefs was Lorane F. Hebert.
Donald B. Verrilli, Jr., argued the cause for respondents in both cases. With him on the briefs were Ian Heath Gershengorn, William M. Hohengarten, Thomas G. Hungar, Douglas R. Cox, Miguel A. Estrada, G. Eric Brunstad, Jr., and Deborah L. Schrier-Rape.
Laurence H. Tribe argued the cause and filed a brief for Creditors NextWave Communications, Inc., as amici curiae urging affirmance. With him on the brief were Charles Fried and Elizabeth Warren.
Together with No. 01-657, Arctic Slope Regional Corp. et al. v. Next-Wave Personal Communications Inc. et al., also on certiorari to the same court.
Briefs of amici curiae urging affirmance were filed for Airadigm Communications, Inc., by Richard P. Bress and James F. Rogers; for Urban Comm-North Carolina, Inc., et al. by Charles J. Cooper, David H. Thompson, Prehen Jensen, and Charles E. Simpson; for Professor Kathryn R. Heidt, pro se; and for Senator Patrick Leahy et al. by Walter Dellinger and Jonathan D. Hacker.
Justice Scalia
delivered the opinion of the Court.
In these cases, we decide whether § 525 of the Bankruptcy Code, 11 U. S. C. § 525, prohibits the Federal Communications Commission (FCC or Commission) from revoking licenses held by a debtor in bankruptcy upon the debtor’s failure to make timely payments owed to the Commission for purchase of the licenses.
I
In 1993, Congress amended the Communications Act of 1934 to authorize the FCC to award spectrum licenses “through a system of competitive bidding.” 48 Stat. 1085, as amended, 107 Stat. 387,47 U. S. C. §309(j)(1). It directed the Commission to “promot[e] economic opportunity and competition” and “avoi[d] excessive concentration of licenses” by “disseminating licenses among a wide variety of applications, including small businesses [and] rural telephone companies.” § 309(j)(3)(B). In order to achieve this goal, Congress directed the FCC to “consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments ... or other schedules or methods . . . .” § 309(j)(4)(A).
The FCC decided to award licenses for broadband personal communications services through simultaneous, multiple-round auctions. In re Implementation of Section 309(j) of the Communications Act — Competitive Bidding, 9 FCC Red. 2348, ¶¶54, 68 (1994). In accordance with §§309(j) (3)(B) and (4)(A), it restricted participation in two of the six auction blocks (Blocks “C” and “F”) to small businesses and other designated entities with total assets and revenues below certain levels, and it allowed the successful bidders in these two blocks to pay in installments over the term of the license. 47 CFR § 24.709(a)(1) (1997).
Respondents NextWave Personal Communications, Inc., and NextWave Power Partners, Inc. (both wholly owned subsidiaries of NextWave Telecom, Inc., and hereinafter jointly referred to as respondent NextWave), participated, respectively, in the FCC’s “C-Block” and “F-Block” auctions. NextWave was awarded 63 C-Block licenses on winning bids totaling approximately $4.74 billion, and 27 F-Block licenses on winning bids of approximately $123 million. In accordance with FCC regulations, NextWave made a downpayment on the purchase price, signed promissory notes for the balance, and executed security agreements that the FCC perfected by filing under the Uniform Commercial Code. The security agreements gave the Commission a first “lien on and continuing security interest in all of the Debtor’s rights and interest in [each] License.” Security Agreement between NextWave and FCC ¶ 1 (Jan. 3, 1997), 2 App. to Pet. for Cert. 402a. In addition, the licenses recited that they were “conditioned upon the full and timely payment of all monies due pursuant to . . . the terms of the Commission’s installment plan as set forth in the Note and Security Agreement executed by the licensee,” and that “[f]ailure to comply with this condition will result in the automatic cancellation of this authorization.” Radio Station Authorization for Broadband PCS (issued to NextWave Jan. 3,1997), 2 App. to Pet. for Cert. 388a.
After the C-Block and F-Block licenses were awarded, several successful bidders, including NextWave, experienced difficulty obtaining financing for their operations and petitioned the Commission to restructure their installment-payment obligations. See 12 FCC Red. 16436, ¶ 11 (1997). The Commission suspended the installment payments, 12 FCC Red. 17325 (1997); 13 FCC Red. 1286 (1997), and adopted several options that allowed C-Block licensees to surrender some or all of their licenses for full or partial forgiveness of their outstanding debt. See 12 FCC Red. 16436, ¶ 6; 13 FCC Red. 8345 (1998). It set a deadline of June 8, 1998, for licensees to elect a restructuring option, and of October 29, 1998, as the last date to resume installment payments. 13 FCC Red. 7413 (1998).
On June 8, 1998, after failing to obtain stays of the election deadline from the Commission or the Court of Appeals for the District of Columbia Circuit, NextWave filed for Chapter 11 bankruptcy protection in New York. See In re NextWave Personal Communications, Inc., 235 B. R. 263, 267 (Bkrtcy. Ct. SDNY 1998). It suspended payments to all creditors, including the FCC, pending confirmation of a reorganization plan. NextWave initiated an adversary proceeding in the Bankruptcy Court, alleging that its $4.74 billion indebtedness on the C-Block licenses was avoidable as a “fraudulent conveyance” under §544 of the Bankruptcy Code, 11 U. S. C. §544, because, by the time the Commission actually conveyed the licenses, their value had declined from approximately $4.74 billion to less than $1 billion. The Bankruptcy Court agreed — ruling in effect that the company could keep its C-Block licenses for the reduced price of $1.02 billion — and the District Court affirmed. NextWave Personal Communications, Inc. v. FCC, 241 B. R. 311, 318-319 (SDNY 1999). The Court of Appeals for the Second Circuit reversed, holding that, although the Bankruptcy Court might have jurisdiction over NextWave’s underlying debts to the FCC, it could not change the conditions attached to NextWave’s licenses. In re NextWave Personal Communications, Inc., 200 F. 3d 43, 55-56 (1999) (per curiam). The Second Circuit also held that since, under FCC regulations, “NextWave’s obligation attached upon the close of the auction,” there had been no fraudulent conveyance by the FCC acting in its capacity as creditor. Id., at 58.
Following the Second Circuit’s decision, NextWave prepared a plan of reorganization that envisioned payment of a single lump sum to satisfy the entire remaining $4.3 billion obligation for purchase of the C-Block licenses, including interest and late fees. The FCC objected to the plan, asserting that NextWave’s licenses had been canceled automatically when the company missed its first payment deadline in October 1998. The Commission simultaneously announced that NextWave’s licenses were “available for auction under the automatic cancellation provisions” of the FCC’s regulations. Public Notice, Auction of C and F Block Broadband PCS Licenses, 15 FCC Rcd. 693 (2000). NextWave sought emergency relief in the Bankruptcy Court, which declared the FCC’s cancellation of respondent’s licenses “null and void” as a violation of various provisions of the Bankruptcy Code. In re NextWave Personal Communications, Inc., 244 B. R. 253, 257-258 (Bkrtcy. Ct. SDNY 2000). Once again, the Court of Appeals for the Second Circuit reversed. In re Federal Communications Commission, 217 F. 3d 125 (2000). Granting the FCC’s petition for a writ of mandamus, the Second Circuit held that “[exclusive jurisdiction to review the FCC’s regulatory action lies in the courts of appeals” under 47 U. S. C. § 402, and that since the reauction decision was regulatory, proclaiming it to be arbitrary was “outside the jurisdiction of the bankruptcy court.” 217 F. 3d, at 139, 136. The Second Circuit noted, however, that “NextWave remains free to pursue its challenge to the FCC’s regulatory acts.” Id., at 140.
NextWave filed a petition with the FCC seeking reconsideration of the license cancellation, denial of which is the gravamen of the cases at bar. In the Matter of Public Notice DA 00-49 Auction of C and F Block Broadband PCS Licenses, Order on Reconsideration, 15 FCC Rcd. 17500 (2000). NextWave appealed that denial to the Court of Appeals for the D. C. Circuit pursuant to 47 U. S. C. § 402(b), asserting that the cancellation was arbitrary and capricious, and contrary to law, in violation of the Administrative Procedure Act, 5 U. S. C. § 706, and the Bankruptcy Code. The Court of Appeals agreed, holding that the FCC’s cancellation of NextWave’s licenses violated 11 U. S. C. §525: “Applying the fundamental principle that federal agencies must obey all federal laws, not just those they administer, we conclude that the Commission violated the provision of the Bankruptcy Code that prohibits governmental entities from revoking debtors’ licenses solely for failure to pay debts dis-chargeable in bankruptcy.” 254 F. 3d 130, 133 (2001). We granted certiorari. 535 U. S. 904 (2002).
II
The Administrative Procedure Act requires federal courts to set aside federal agency action that is “not in accordance with law,” 5 U. S. C. § 706(2)(A) — which means, of course, any law, and not merely those laws that the agency itself is charged with administering. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 413-414 (1971) (“In all cases agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements”). Respondent contends, and the Court of Appeals for the D. C. Circuit held, that the FCC’s revocation of its licenses was not in accordance with § 525 of the Bankruptcy Code.
Section 525(a) provides, in relevant part:
“[A] governmental unit may not... revoke ... a license ... to ... a person that is ... a debtor under this title ... solely because such ... debtor... has not paid a debt that is dischargeable in the case under this title . . . .”
No one disputes that the Commission is a “governmental unit” that has “revoke[d]” a “license,” nor that NextWave is a “debtor” under the Bankruptcy Act. Petitioners argue, however, that the FCC did not revoke respondent’s licenses “solely because” of nonpayment, and that, in any event, Next Wave’s obligations are not “dischargeable” “debt[s]” within the meaning of the Bankruptcy Code. They also argue that a contrary interpretation would unnecessarily bring § 525 into conflict with the Communications Act. We find none of these contentions persuasive, and discuss them in turn.
A
The FCC has not denied that the proximate cause for its cancellation of the licenses was Next Wave’s failure to make the payments that were due. It contends, however, that § 525 does not apply because the FCC had a “valid regulatory motive” for the cancellation. Brief for Petitioners Arctic Slope Regional Corp. et al. 19; see Brief for Petitioner FCC 17. In our view, that factor is irrelevant. When the statute refers to failure to pay a debt as the sole cause of cancellation (“solely because”), it cannot reasonably be understood to include, among the other causes whose presence can preclude application of the prohibition, the governmental unit’s motive in effecting the cancellation. Such a reading would deprive § 525 of all force. It is hard to imagine a situation in which a governmental unit would not have some further motive behind the cancellation — assuring the financial solvency of the licensed entity, e. g., Perez v. Campbell, 402 U. S. 637 (1971); In re The Bible Speaks, 69 B. R. 368, 374 (Bkrtcy. Ct. Mass. 1987), or punishing lawlessness, e. g., In re Adams, 106 B. R. 811, 827 (Bkrtcy. Ct. NJ 1989); In re Colon, 102 B. R. 421, 428 (Bkrtcy. Ct. ED Pa. 1989), or even (quite simply) making itself financially whole. Section 525 means nothing more or less than that the failure to pay a dischargeable debt must alone be the proximate cause of the cancellation — the act or event that triggers the agency’s decision to cancel, whatever the agency’s ultimate motive in pulling the trigger may be.
Some may think (and the opponents of § 525 undoubtedly thought) that there ought to be an exception for cancellations that have a valid regulatory purpose. Besides the fact that such an exception would consume the rule, it flies in the face of the fact that, where Congress has intended to provide regulatory exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly, rather than by a device so subtle as denominating a motive a cause. There are, for example, regulatory exemptions from the Bankruptcy Code’s automatic stay provisions. 11 U. S. C. § 362(b)(4). And even § 525(a) itself contains explicit exemptions for certain Agriculture Department programs, see n. 2, supra. These latter exceptions would be entirely superfluous if we were to read § 525 as the Commission proposes — which means, of course, that such a reading must be rejected. See United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).
B
Petitioners contend that NextWave’s license obligations to the Commission are not “debt[s] that [are] dischargeable” in bankruptcy. 11 U. S. C. § 525(a). First, the FCC argues that “regulatory conditions like the full and timely payment condition are not properly classified as ‘debts’” under the Bankruptcy Code. Brief for Petitioner FCC 33. In its view, the “financial nature of a condition” on a license “does not convert that condition into a debt.” Ibid. This is nothing more than a retooling of petitioners’ recurrent theme that “regulatory conditions” should be exempt from §525. No matter how the Commission casts it, the argument loses. Under the Bankruptcy Code, “debt” means “liability on a claim,” 11 U. S. C. § 101(12), and “claim,” in turn, includes any “right to payment,” § 101(5)(A). We have said that “[c]laim” has “the broadest available definition,” Johnson v. Home State Bank, 501 U. S. 78, 83 (1991), and have held that the “plain meaning of a ‘right to payment’ is nothing more nor less than an enforceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation,” Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559 (1990). See also Ohio v. Kovacs, 469 U. S. 274 (1985). In short, a debt is a debt, even when the obligation to pay it is also a regulatory condition.
Petitioners argue that respondent’s obligations are not “dischargeable” in bankruptcy because it is beyond the jurisdictional authority of bankruptcy courts to alter or modify regulatory obligations. Brief for Petitioners Arctic Slope Regional Corp. et al. 28-29; Brief for Petitioner FCC 30-31. Dischargeability, however, is not tied to the existence of such authority. A preconfirmation debt is dischargeable unless it falls within an express exception to discharge. Subsection 1141(d) of the Bankruptcy Code states that, except as otherwise provided therein, the “confirmation of a plan [of reorganization] . . . discharges the debtor from any debt that arose before the date of such confirmation,” 11 U. S. C. § 1141(d)(1)(A) (emphasis added), and the only debts it excepts from that prescription are those described in § 523, see § 1141(d)(2). Thus, “[e]xcept for the nine kinds of debts saved from discharge by 11 U. S. C. § 523(a), a discharge in bankruptcy discharges the debtor from all debts that arose before bankruptcy. § 727(b).” Kovacs, supra, at 278 (emphasis added).
Artistically symmetrical with petitioners’ contention that the Bankruptcy Court has no power to alter regulatory obligations is their contention that the D. C. Circuit has no power to modify or discharge a debt. See Brief for Petitioner FCC 31-32; Brief for Petitioner Arctic Slope Regional Corp. et al. 32, n. 9. Just as the former is irrelevant to whether the Bankruptcy Court can discharge a debt, so also the latter is irrelevant to whether the D. C. Circuit can set aside agency action that violates § 525. That court did not seek to modify or discharge the debt, but merely prevented the FCC from violating § 525 by canceling licenses because of failure to pay debts dischargeable by bankruptcy courts.
C
Finally, our interpretation of § 525 does not create any conflict with the Communications Act. It does not, as petitioners contend, obstruct the functioning of the auction provisions of 47 U. S. C. §309(j), since nothing in those provisions demands that cancellation be the sanction for failure to make agreed-upon periodic payments. Indeed, nothing in those provisions even requires the Commission to permit payment to be made over time, rather than leaving it to impecunious bidders to finance the full purchase price with private lenders. What petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC’s part for (1) selling licenses on credit and (2) canceling licenses rather than asserting security interests in licenses when there is a default. Such administrative preferences cannot be the basis for denying respondent rights provided by the plain terms of a law. “‘[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 143-144 (2001) (quoting Morton v. Mancari, 417 U. S. 535, 551 (1974)). There being no inherent conflict between § 525 and the Communications Act, “we can plainly regard each statute as effective.” J. E. M., supra, at 144. And since §525 circumscribes the Commission’s permissible action, the revocation of Next-Wave’s licenses is not in accordance with law. See 5 U.S. C. §706.
III
The dissent finds it “dangerous... to rely exclusively upon the literal meaning of a statute’s words,” post, at 311 (opinion of Breyer, J.). Instead, it determines, in splendid isolation from that language, the purpose of the statute, which it takes to be “to forbid discrimination against those who are, or were, in bankruptcy and, more generally, to prohibit governmental action that would undercut the ‘fresh start’ that is bankruptcy’s promise,” post, at 313. It deduces these language-trumping “purposes” from the most inconclusive of indications. First, the ambiguous title of § 525(a), “Protection against discriminatory treatment,” ibid. This, of course, could as well refer to discrimination against impending bankruptcy, aka insolvency. Second, its perception that the other prohibitions of § 525(a) apply only to acts “done solely for bankruptcy-related reasons.” Ibid. We do not share that perception. For example, the prohibition immediately preceding the one at issue here forbids adverse government action taken because the debtor “has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge.” That seems to us clearly tied to insolvency alone (plus the mere fact of subsequent or contemporaneous bankruptcy), and does not require some additional motivation based on bankruptcy. The dissent’s third indication of “purpose” consists of the ever-available snippets of legislative history, post, at 314-315.
The dissent does eventually get to the statutory text at issue here: Step two of its analysis is to ask what interpretation of that text could possibly fulfill its posited “purposes.” “One obvious way,” the dissent concludes, “is to interpret the relevant phrase, ‘solely because’ of nonpayment of ‘a debt that is dischargeable,’ as requiring something more than a purely factual connection .... The statute’s words are open to the interpretation that they require a certain relationship between (1) the dischargeability of the debt and (2) the decision to revoke the license.” Post, at 316. To demonstrate that “openness,” the dissent gives the example of a “rule telling apartment owners that they cannot refuse to rent ‘solely because a family has children who are adopted.’” Post, at 319. Such a rule, it says quite correctly, is most reasonably read as making the adoptive nature of the children part of the prohibited motivation. But the example differs radically from the cases before us in two respects: (1) because an adopted child is the exception rather than the rule, and (2) because the class of children other than adopted children is surely not a disfavored one. In the cases before us, by contrast, the descriptive clause describes the rule rather than the exception. (As the dissent acknowledges, “virtually all debts” are dischargeable, post, at 310.) And the debts that do not fall within the rule (nondischargeable debts) are clearly disfavored by the Bankruptcy Code. To posit a text similar to the one before us, the dissent should have envisioned a rule that prohibited refusal to rent “solely because a family has children who are no more than normally destructive.” Would the “no-more-than-normal-destructiveness” of the children be a necessary part of the apartment owner’s motivation before he is in violation of the rule? That is to say, must he refuse to rent specifically because the children are no more than normally destructive? Of course not. The provision is most reasonably read as establishing an exception to the prohibition, rather than adding a motivation requirement: The owner may refuse to rent to families with destructive children. And the same is obviously true here: The government may take action that is otherwise forbidden when the debt in question is one of the disfavored class that is nondischargeable.
In addition to distorting the text of the provision, the dissent’s interpretation renders the provision superfluous. The purpose of “forbid[ding] discrimination against those who are, or were, in bankruptcy,” post, at 313, is already explicitly achieved by another portion of § 525(a), which prohibits termination of a license “solely because [the] bankrupt or debtor is or has been ... a bankrupt or debtor under the Bankruptcy Act.” 11 U. S. C. §525(a) (emphasis added). The dissent would have us believe that the language “solely because [the] bankrupt or debtor ... has not paid a debt that is dischargeable” merely achieves the very same objective through inappropriate language. We think Congress meant what it said: The government is not to revoke a bankruptcy debtor’s license solely because of a failure to pay his debts.
The dissent makes much of the “serious anomaly” that would arise from permitting “every car salesman, every residential home developer, every appliance company [to] threaten repossession of its product if a buyer does not pay,” but denying that power to the government alone, post, at 312. It is by no means clear than any anomaly exists. The ear salesman, residential home developer, etc., can obtain repossession of his product only (as the dissent acknowledges) “if [he] has taken a security interest in the product,” ibid. It is neither clear that a private party can take and enforce a security interest in an FCC license, see, e. g., In re Cheskey, 9 FCC Rcd. 986, ¶ 8 (1994), nor that the FCC cannot. (As we described in our statement of facts, the FCC purported to take such a security interest in the present cases. What is at issue, however, is not the enforcement of that interest in the bankruptcy process, but rather elimination of the licenses through the regulatory step of “revoking” them— action that the statute specifically forbids.) In any event, if there is an anomaly it is one that has been created by Congress — a state of affairs the dissent does not think intolerable, since its own disposition creates the anomaly of allowing the government to reclaim its property by means other than the enforcement of a security interest, but not permitting private individuals to do so.
* * *
For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit is
Affirmed.
We do not reach the merits of the determination that the licenses should be valued as of the time they were conveyed, rather than as of the time NextWave won the auction entitling it to conveyance.
The full text of 11 U. S. C. § 525(a) reads as follows:
“Except as provided in the Perishable Agricultural Commodities Act, 1930, the Packers and Stockyards Act, 1921, and section 1 of the Act entitled ‘An Act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1944, and for other purposes,’ approved July 12, 1943, a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.”
Justice Stevens does not join this Part.
The portion of the dissenting opinion that deduces the statute’s purposes, Part II, post, at 313-315, contains no discussion of the portion of § 525(a) at issue here.
The second of the purposes, by the way — prohibiting government action that “would undercut the ‘fresh start’ that is bankruptcy’s promise,” post, at 313 — plays no real role in the dissent’s analysis, if indeed such a circular criterion could ever play a role in any analysis. The whole issue before us can be described as asking what the Bankruptcy Code’s promise of a “fresh start” consists of. Rather than reframing the question, our interpretation concretely accords a “fresh start” where the dissent would not — where there is revocation of a license solely because of a bankrupt’s failure to pay dischargeable debts.
The FCC initially participated in the bankruptcy proceedings as a creditor. See, e. g., In re NextWave Personal Communications, Inc., 235 B. R. 314 (Bkrtcy. Ct. SDNY 1999). However, after NextWave prepared a plan of reorganization the FCC asserted that the licenses had been automatically canceled and gave notice of its intent to reauction them. The Second Circuit treated this decision as “regulatory,” and thus outside the scope of the Bankruptcy Court’s jurisdiction. See In re Federal Communications Commission, 217 F. 3d 125, 139, 136 (2000). The decision by the D. C. Circuit recognized and seemingly approved that distinction. See 254 F. 3d 130, 143 (2001).
|
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",
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"NO Admin Action",
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] |
[
37
] |
ARKANSAS BEST CORP. v. COMMISSIONER OF INTERNAL REVENUE
No. 86-751.
Argued December 9, 1987
Decided March 7, 1988
Marshall, 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.
Vester T. Hughes, Jr., argued the cause for petitioner. With him on the briefs were David Bryant and Stephen D. Good.
Alan I. Horowitz argued the cause for respondent. With him on the brief were Solicitor General Fried, Acting Assistant Attorney General Durney, Deputy Solicitor General Lauber, and Michael L. Paup.
Thomas Smidt II, Charles L. Saunders, Jr., and A. Jerry Busby filed a brief for Circle K Corp. as amicus curiae urging reversal.
Briefs of amici curiae were filed for Kraft, Inc., by Don S. Harnack, James L. Malone III, Richard A. Hanson, and Thomas J. McHugh; and for the National Council of Farmer Cooperatives by Arthur E. Bryan, Jr., George W. Benson, and James S. Krzyminski.
Justice Marshall
delivered the opinion of the Court.
The issue presented in this case is whether capital stock held by petitioner Arkansas Best Corporation (Arkansas Best) is a “capital asset” as defined in § 1221 of the Internal Revenue Code regardless of whether the stock was purchased and held for a business purpose or for an investment purpose.
I
Arkansas Best is a diversified holding company. In 1968 it acquired approximately 65% of the stock of the National Bank of Commerce (Bank) in Dallas, Texas. Between 1969 and 1974, Arkansas Best more than tripled the number of shares it owned in the Bank, although its percentage interest in the Bank remained relatively stable. These acquisitions were prompted principally by the Bank’s need for added capital. Until 1972, the Bank appeared to be prosperous and growing, and the added capital was necessary to accommodate this growth. As the Dallas real estate market declined, however, so too did the financial health of the Bank, which had a heavy concentration of loans in the local real estate industry. In 1972, federal examiners classified the Bank as a problem bank. The infusion of capital after 1972 was prompted by the loan portfolio problems of the bank.
Petitioner sold the bulk of its Bank stock on June 30, 1975, leaving it with only a 14.7% stake in the Bank. On its federal income tax return for 1975, petitioner claimed a deduction for an ordinary loss of $9,995,688 resulting from the sale of the stock. The Commissioner of Internal Revenue disallowed the deduction, finding that the loss from the sale of stock was a capital loss, rather than an ordinary loss, and that it therefore was subject to the capital loss limitations in the Internal Revenue Code.
Arkansas Best challenged the Commissioner’s determination in the United States Tax Court. The Tax Court, relying on cases interpreting Corn Products Refining Co. v. Commissioner, 350 U. S. 46 (1955), held that stock purchased with a substantial investment purpose is a capital asset which, when sold, gives rise to a capital gain or loss, whereas stock purchased and held for a business purpose, without any substantial investment motive, is an ordinary asset whose sale gives rise to ordinary gains or losses. See 83 T. C. 640, 653-654 (1984). The court characterized Arkansas Best’s acquisitions through 1972 as occurring during the Bank’s “‘growth’ phase,” and found that these acquisitions “were motivated primarily by investment purpose and only incidentally by some business purpose.” Id., at 654. The stock acquired during this period therefore constituted a capital asset, which gave rise to a capital loss when sold in 1975. The court determined, however, that the acquisitions after 1972 occurred during the Bank’s “‘problem’ phase,” ibid., and, except for certain minor exceptions, “were made exclusively for business purposes and subsequently held for the same reasons.” Id., at 656. These acquisitions, the court found, were designed to preserve petitioner’s business reputation, because without the added capital the Bank probably would have failed. Id., at 656-657. The loss realized on the sale of this stock was thus held to be an ordinary loss.
The Court of Appeals for the Eighth Circuit reversed the Tax Court’s determination that the loss realized on stock purchased after 1972 was subject to ordinary-loss treatment, holding that all of the Bank stock sold in 1975 was subject to capital-loss treatment. 800 F. 2d 215 (1986). The court reasoned that the Bank stock clearly fell within the general definition of “capital asset” in Internal Revenue Code § 1221, and that the stock did not fall within any of the specific statutory exceptions to this definition. The court concluded that Arkansas Best’s purpose in acquiring and holding the stock was irrelevant to the determination whether the stock was a capital asset. We granted certiorari, 480 U. S. 930, and now affirm.
II
Section 1221 of the Internal Revenue Code defines “capital asset” broadly as “property held by the taxpayer (whether or not connected with his trade or business),” and then excludes five specific classes of property from capital-asset status. In the statute’s present form, the classes of property exempted from the broad definition are (1) “property of a kind which would properly be included in the inventory of the taxpayer”; (2) real property or other depreciable property used in the taxpayer’s trade or business; (3) “a copyright, a literary, musical, or artistic composition,” or similar property; (4) “accounts or notes receivable acquired in the ordinary course of trade or business for services rendered” or from the sale of inventory; and (5) publications of the Federal Government. Arkansas Best acknowledges that the Bank stock falls within the literal definition of “capital asset” in § 1221, and is outside of the statutory exclusions. It asserts, however, that this determination does not end the inquiry. Petitioner argues that in Corn Products Refining Co. v. Commissioner, supra, this Court rejected a literal reading of § 1221, and concluded that assets acquired and sold for ordinary business purposes rather than for investment purposes should be given ordinary-asset treatment. Petitioner’s reading of Corn Products finds much support in the academic literature and in the courts. Unfortunately for petitioner, this broad reading finds no support in the language of § 1221.
In essence, petitioner argues that “property held by the taxpayer (whether or not connected with his trade or business)” does not include property that is acquired and held for a business purpose. In petitioner’s view an asset’s status as “property” thus turns on the motivation behind its acquisition. This motive test, however, is not only nowhere mentioned in § 1221, but it is also in direct conflict with the parenthetical phrase “whether or not connected with his trade or business.” The broad definition of the term “capital asset” explicitly makes irrelevant any consideration of the property’s connection with the taxpayer’s business, whereas petitioner’s rule would make this factor dispositive.
In a related argument, petitioner contends that the five exceptions listed in § 1221 for certain kinds of property are illustrative, rather than exhaustive, and that courts are therefore free to fashion additional exceptions in order to further the general purposes of the capital-asset provisions. The language of the statute refutes petitioner’s construction. Section 1221 provides that “capital asset” means “property held by the taxpayer[,] . . . but does not include” the five classes of property listed as exceptions. We believe this locution signifies that the listed exceptions are exclusive. The body of § 1221 establishes a general definition of the term “capital asset,” and the phrase “does not include” takes out of that broad definition only the classes of property that are specifically mentioned. The legislative history of the capital-asset definition supports this interpretation, see H. R. Rep. No. 704, 73d Cong., 2d Sess., 31 (1934) (“[T]he definition includes all property, except as specifically excluded”); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A273 (1954) (“[A] capital asset is property held by the taxpayer with certain exceptions”), as does the applicable Treasury regulation, see 26 CFR § 1.1221-1(a) (1987) (“The term ‘capital assets’ includes all classes of property not specifically excluded by section 1221”).
Petitioner’s reading of the statute is also in tension with the exceptions listed in § 1221. These exclusions would be largely superfluous if assets acquired primarily or exclusively for business purposes were not capital assets. Inventory, real or depreciable property used in the taxpayer’s trade or business, and accounts or notes receivable acquired in the ordinary course of business, would undoubtedly satisfy such a business-motive test. Yet these exceptions were created by Congress in separate enactments spanning 30 years. Without any express direction from Congress, we are unwilling to read § 1221 in a manner that makes surplusage of these statutory exclusions.
In the end, petitioner places all reliance on its reading of Corn Products Refining Co. v. Commissioner, 350 U. S. 46 (1955) — a reading we believe is too expansive. In Corn Products, the Court considered whether income arising from a taxpayer’s dealings in corn futures was entitled to capital-gains treatment. The taxpayer was a company that converted corn into starches, sugars, and other products. After droughts in the 1930’s caused sharp increases in corn prices, the company began a program of buying corn futures to assure itself an adequate supply of corn and protect against price increases. See id., at 48. The company “would take delivery on such contracts as it found necessary to its manufacturing operations and sell the remainder in early summer if no shortage was imminent. If shortages appeared, however, it sold futures only as it bought spot corn for grinding.” Id., at 48-49. The Court characterized the company’s dealing in corn futures as “hedging.” Id., at 51. As explained by the Court of Appeals in Corn Products, “[h]edging is a method of dealing in commodity futures whereby a person or business protects itself against price fluctuations at the time of delivery of the product which it sells or buys.” 215 F. 2d 513, 515 (CA2 1954). In evaluating the company’s claim that the sales of corn futures resulted in capital gains and losses, this Court stated:
“Nor can we find support for petitioner’s contention that hedging is not within the exclusions of [§1221]. Admittedly, petitioner’s corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of [§ 1221] must not be so broadly applied as to defeat rather, than further the purpose of Congress. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. . . . Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly.” 350 U. S., at 51-52 (citations omitted).
The Court went on to note that hedging transactions consistently had been considered to give rise to ordinary gains and losses, and then concluded that the corn futures were subject to ordinary-asset treatment. Id., at 52-53.
The Court in Corn Products proffered the oft-quoted rule of construction that the definition of “capital asset” must be narrowly applied and its exclusions interpreted broadly, but it did not state explicitly whether the holding was based on a narrow reading of the phrase “property held by the taxpayer,” or on a broad reading of the inventory exclusion of § 1221. In light of the stark language of § 1221, however, we believe that Corn Products is properly interpreted as involving an application of § 1221’s inventory exception. Such a reading is consistent both with the Court’s reasoning in that case and with § 1221. The Court stated in Corn Products that the company’s futures transactions were “an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements.” 350 U. S., at 50. The company bought, sold, and took delivery under the futures contracts as required by the company’s manufacturing needs. As Professor Bittker notes, under these circumstances, the futures can “easily be viewed as surrogates for the raw material itself.” 2 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 51.10.3, p. 51-62 (1981). The Court of Appeals for the Second Circuit in Corn Products clearly took this approach. That court stated that when commodity futures are “utilized solely for the purpose of stabilizing inventory cost[,] . . . [they] cannot reasonably be separated from the inventory items,” and concluded that “property used in hedging transactions properly comes within the exclusions of [§1221].” 215 F. 2d, at 516. This Court indicated its acceptance of the Second Circuit’s reasoning when it began the central paragraph of its opinion: “Nor can we find support for petitioner’s contention that hedging is not within the exclusions of [§ 1221].” 350 U. S., at 51. In the following paragraph, the Court argued that the Treasury had consistently viewed such hedging transactions as a form of insurance to stabilize the cost of inventory, and cited a Treasury ruling which concluded that the value of a manufacturer’s raw-material inventory should be adjusted to take into account hedging transactions in futures contracts. See id., at 52-53 (citing G. C. M. 17322, XV-2 Cum. Bull. 151 (1936)). This discussion, read in light of the Second Circuit’s holding and the plain language of § 1221, convinces us that although the corn futures were not “actual inventory,” their use as an integral part of the taxpayer’s inventory-purchase system led the Court to treat them as substitutes for the corn inventory such that they came within a broad reading of “property of a kind which would properly be included in the inventory of the taxpayer” in § 1221.
Petitioner argues that by focusing attention on whether the asset was acquired and sold as an integral part of the taxpayer’s everyday business operations, the Court in Corn Products intended to create a general exemption from capital-asset status for assets acquired for business purposes. We believe petitioner misunderstands the relevance of the Court’s inquiry. A business connection, although irrelevant to the initial determination whether an item is a capital asset, is relevant in determining the applicability of certain of the statutory exceptions, including the inventory exception. The close connection between the futures transactions and the taxpayer’s business in Corn Products was crucial to whether the corn futures could be considered surrogates for the stored inventory of raw corn. For if the futures dealings were not part of the company’s inventory-purchase system, and instead amounted simply to speculation in corn futures, they could not be considered substitutes for the company’s corn inventory, and would fall outside even a broad reading of the inventory exclusion. We conclude that Corn Products is properly interpreted as standing for the narrow proposition that hedging transactions that are an integral part of a business’ inventory-purchase system fall within the inventory exclusion of § 1221. Arkansas Best, which is not a dealer in securities, has never suggested that the Bank stock falls within the inventory exclusion. Corn Products thus has no application to this case.
It is also important to note that the business-motive test advocated by petitioner is subject to the same kind of abuse that the Court condemned in Corn Products. The Court explained in Corn Products that unless hedging transactions were subject to ordinary gain and loss treatment, taxpayers engaged in such transactions could “transmute ordinary income into capital gain at will.” 350 U. S., at 53-54. The hedger could garner capital-asset treatment by selling the future and purchasing the commodity on the spot market, or ordinary-asset treatment by taking delivery under the future contract. In a similar vein, if capital stock purchased and held for a business purpose is an ordinary asset, whereas the same stock purchased and held with an investment motive is a capital asset, a taxpayer such as Arkansas Best could have significant influence over whether the asset would receive capital or ordinary treatment. Because stock is most naturally viewed as a capital asset, the Internal Revenue Service would be hard pressed to challenge a taxpayer’s claim that stock was acquired as an investment, and that a gain arising from the sale of such stock was therefore a capital gain. Indeed, we are unaware of a single decision that has applied the business-motive test so as to require a taxpayer to report a gain from the sale of stock as an ordinary gain. If the same stock is sold at a loss, however, the taxpayer may be able to garner ordinary-loss treatment by emphasizing the business purpose behind the stock’s acquisition. The potential for such abuse was evidenced in this case by the fact that as late as 1974, when Arkansas Best still hoped to sell the Bank stock at a profit, Arkansas Best apparently expected to report the gain as a capital gain. See 83 T. C., at 647-648.
Ill
We conclude that a taxpayer’s motivation in purchasing an asset is irrelevant to the question whether the asset is “property held by a taxpayer (whether or not connected with his business)” and is thus within §1221’s general definition of “capital asset.” Because the capital stock held by petitioner falls within the broad definition of the term “capital asset” in § 1221 and is outside the classes of property excluded from capital-asset status, the loss arising from the sale of the stock is a capital loss. Corn Products Refining Co. v. Commissioner, supra, which we interpret as involving a broad reading of the inventory exclusion of § 1221, has no application in the present context. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
Title 26 U. S. C. § 1211(a) states that “[i]n the case of a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of gains from such sales or exchanges.” Section 1212(a) establishes rules governing carrybacks and carryovers of capital losses, permitting such losses to offset capital gains in certain earlier or later years.
In 1975, when petitioner sold its Bank stock, § 1221 contained a different exception (5), which excluded certain federal and state debt obligations. See 26 U. S. C. § 1221(5) (1970 ed.). That exception was repealed by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, § 505(a), 95 Stat. 331. The present exception (5) was added by the Tax Reform Act of 1976, Pub. L. 94-455, § 2132(a), 90 Stat. 1925. These changes have no bearing on this case.
See, e. g.,2 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 51.10.3, p. 51-62 (1981); Chirelstein, Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments, 49 Minn. L. Rev. 1, 41 (1964); Troxell & Noall, Judicial Erosion of the Concept of Securities as Capital Assets, 19 Tax L. Rev. 185, 187 (1964); Note, The Corn Products Doctrine and Its Application to Partnership Interests, 79 Colum. L. Rev. 341, and n. 3 (1979).
See, e. g., Campbell Taggart, Inc. v. United States, 744 F. 2d 442, 456-458 (CA5 1984); Steadman v. Commissioner, 424 F. 2d 1, 5 (CA6), cert. denied, 400 U. S. 869 (1970); Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 893-896, 303 F. 2d 916, 920-921 (1962); W. W. Windle Co. v. Commissioner, 65 T. C. 694, 707-713 (1976).
Petitioner mistakenly relies on cases in which this Court, in narrowly applying the general definition of “capital asset,” has “construed ‘capital asset’ to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income,” even though these items are property in the broad sense of the word. United States v. Midland-Ross Corp., 381 U. S. 54, 57 (1965). See, e. g., Commissioner v. Gillette Motor Co., 364 U. S. 130 (1960) (“capital asset” does not include compensation awarded taxpayer that represented fair rental value of its facilities); Commissioner v. P. G. Lake, Inc., 356 U. S. 260 (1958) (“capital asset” does not include proceeds from sale of oil payment rights); Hort v. Commissioner, 313 U. S. 28 (1941) (“capital asset” does not include payment to lessor for cancellation of unexpired portion of a lease). This line of cases, based on the premise that § 1221 “property” does not include claims or rights to ordinary income, has no application in the present context. Petitioner sold capital stock, not a claim to ordinary income.
The inventory exception was part of the original enactment of the capital-asset provision in 1924. See Revenue Act of 1924, ch. 234, § 208(a)(8), 43 Stat. 263. Depreciable property used in a trade or business was excluded in 1938, see Revenue Act of 1938, ch. 289, § 117(a)(1), 52 Stat. 500, and real property used in a trade or business was excluded in 1942, see Revenue Act of 1942, ch. 619, § 151(a), 56 Stat. 846. The exception for accounts and notes receivable acquired in the ordinary course of trade or business was added in 1954. Internal Revenue Code of 1954, § 1221(4), 68A Stat. 322.
Although congressional inaction is generally a poor measure of congressional intent, we are given some pause by the fact that over 25 years have passed since Corn Products Refining Co. v. Commissioner was initially interpreted as excluding assets acquired for business purposes from the definition of “capital asset,” see Booth Newspapers, Inc. v. United States, 157 Ct. Cl. 886, 303 F. 2d 916 (1962), without any sign of disfavor from Congress. We cannot ignore the unambiguous language of § 1221, however, no matter how reticent Congress has been. If a broad exclusion from capital-asset status is to be created for assets acquired for business purposes, it must come from congressional action, not silence.
|
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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"NO Admin Action",
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] |
[
68
] |
RILEY, GOVERNOR OF ALABAMA v. KENNEDY et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
No. 07-77.
Argued March 24, 2008
Decided May 27, 2008
Kevin C. Newsom argued the cause for appellant. With him on the briefs were Troy King, Attorney General of Alabama, and Margaret L. Fleming, James W. Davis, and Misty S. Fairbanks, Assistant Attorneys General, Matthew H. Lembke, John C. Neiman, Jr., and Scott Burnett Smith.
Pamela S. Karlan argued the cause for appellees. With her on the brief were Edward Still, Amy Howe, Kevin Russell, Sam Heldman, Jeffrey L. Fisher, and Thomas C. Goldstein.
Kannon K. Shanmugam argued the cause for the United States as amicus curiae supporting appellees in part. On the brief were Solicitor General Clement, Acting Assistant Attorney General Becker, Deputy Solicitor General Garre, Eric D. Miller, Diana K. Flynn, Gregory B. Friel, and Sarah E. Harrington.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Bill McCollum, Attorney General of Florida, Gene C. Schaerr, and Steffen N. Johnson, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, James D. Caldwell of Louisiana, Kelly A. Ayotte of New Hampshire, Gary K King of New Mexico, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, and Bob McDonnell of Virginia; for the Project on Fair Representation by Bert W. Rein; for Former State Court Justice Charles Fried et al. by H. Christopher Bartolomucci; and for Abigail Thernstrom et al. by Keith A. Noreika.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, and Steven R. Shapiro; for the Lawyers’ Committee for Civil Rights Under Law by Jonathan E. Nuechterlein, Daniel S. Volchok, and Jon M. Greenbaum; and for the NAACP Legal Defense and Educational Fund, Inc., by Kristen Clarke, Theodore M. Shaw, Jacqueline A. Berrien, Debo P. Adegbile, and Ryan P. Haygood.
Justice Ginsburg
delivered the opinion of the Court.
This case presents a novel question concerning § 5 of the Voting Rights Act of 1965. The setting, in a nutshell: A covered State passed a law adopting a new election practice, obtained the preclearance required by § 5, and held an election. Soon thereafter, the law under which the election took place was invalidated by the State’s highest court on the ground that it violated a controlling provision of the State’s Constitution. The question presented: Must the State obtain fresh preclearance in order to reinstate the election practice prevailing before enactment of the law struck down by the State’s Supreme Court? We hold that, for §5 purposes, the invalidated law never gained “force or effect.” Therefore, the State’s reversion to its prior practice did not rank as a “change” requiring preclearance.
I
The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq., “was designed by Congress to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). In three earlier statutes, passed in 1957,1960, and 1964, Congress had empowered the Department of Justice (DOJ or Department) to combat voting discrimination through “case-by-case litigation.” Id., at 313. These lawsuits, however, made little headway. Voting-rights suits were “unusually onerous to prepare” and the progress of litigation was “exceedingly slow,” in no small part due to the obstructionist tactics of state officials. Id., at 314. Moreover, some States “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.” Id., at 335.
The VRA reflected Congress’ determination that “sterner and more elaborate measures” were needed to counteract these formidable hindrances. Id., at 309. Sections 4 and 5 impose the most stringent of the Act’s remedies. Under §4(b), as amended, a State or political subdivision is a so-called “covered jurisdiction” if, on one of three specified coverage dates: (1) it maintained a literacy requirement or other “test or device” as a prerequisite to voting, and (2) fewer than 50% of its voting-age citizens were registered to vote or voted in that year’s Presidential election. 42 U. S. C. § 1973b(b). Section 4(a) suspends the operation of all such “test[s] or devicefs]” in covered jurisdictions. §1973b(a). Section 5 requires covered jurisdictions to obtain what has come to be known as “preclearance” from the District Court for the District of Columbia or the DOJ before “enact[ing] or seeking] to administer” any alteration of their practices or procedures affecting voting. § 1973c(a).
A change will be precleared only if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [because of membership in a language minority group].” Ibid. An election practice has the “effect” of “denying or abridging the right to vote” if it “lead[s] to a retrogression in the position of racial [or language] minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). See also Young v. Fordice, 520 U. S. 273, 276 (1997); 28 CFR §51.54 (2007). As amended in 2006, the statute defines “purpose” to include “any discriminatory purpose.” 120 Stat. 581, codified at 42 U. S. C. § 1973c(c).
Congress took the extraordinary step of requiring covered jurisdictions to preclear all changes in their voting practices because it “feared that the mere suspension of existing tests [in § 4(a)] would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect.” Allen v. State Bd. of Elections, 393 U. S. 544,548 (1969). By putting the burden on covered jurisdictions to demonstrate that future changes would not be discriminatory, § 5 served to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.” Katzenbach, 383 U. S., at 328.
Sections 4 and 5 were originally scheduled to lapse once a covered jurisdiction complied with § 4(a)’s ban on the use of tests and devices for five years. See 79 Stat. 438. Finding continuing discrimination in access to the ballot, however, Congress renewed and expanded §§ 4 and 5 on four occasions, most recently in 2006. Sections 4 and 5 are now set to expire in 2031, see 42 U. S. C. § 1973b(a)(8), but a covered jurisdiction may “bail out” at any time if it satisfies certain requirements, see § 1973b(a)(l).
II
The voting practice at issue in this litigation is the method used to fill midterm vacancies on the Mobile County Commission, the governing body of Mobile County, Alabama. Composed of three members elected by separate districts to four-year terms, the Commission has the power to levy taxes, make appropriations, and exercise other countywide executive and administrative functions. See Ala. Code § 11— 3-11 (1975).
We set out first, as pivotal to our resolution of this ease, a full account of two disputes over the means of filling midterm vacancies on the Commission. The first occurred between 1985 and 1988; the second began in 2004 and culminates in the appeal now before us.
A
Alabama is a covered jurisdiction with a coverage date of November 1, 1964. See 30 Fed. Reg. 9897 (1965). As of that date, Alabama law provided that midterm vacancies on all county commissions were to be filled by gubernatorial appointment. See Ala. Code §12-6 (1958). The relevant provision was later recodified without substantive change as Ala. Code § 11-3-6 (1975), which stated:
“In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.”
In 1985, however, the state legislature passed a “local law” providing that any vacancy on the Mobile County Commission occurring “with twelve months or more remaining on the term of the vacant seat” would be filled by special election rather than gubernatorial appointment. 1985 Ala. Acts no. 85-237 (1985 Act). The DOJ precleared this new law in June 1985.
The first midterm opening on the Commission postpassage of the 1985 Act occurred in 1987, when the seat for District One — a majority African-American district — became vacant. In accord with the 1985 Act, the Governor called a special election. A Mobile County voter, Willie Stokes, promptly filed suit in state court seeking to enjoin the election. The 1985 Act, he alleged, violated Art. IV, § 105, of the Alabama Constitution, which provides that no “local law . . . shall be enacted in any case which is provided for by a general law.” On Stokes’s reading, the 1985 Act conflicted with § 105 because the Act addressed a matter already governed by Ala. Code §11-3-6.
The state trial court rejected Stokes’s argument and entered judgment for the state defendants. Stokes immediately appealed to the Alabama Supreme Court and sought an order staying the election pending that court’s decision. The requested stay was denied, and the special election went forward in June 1987. The winner, Samuel Jones, took office as District One’s Commissioner in July 1987. Approximately 14 months later, however, in September 1988, the Alabama Supreme Court reversed the trial court’s judgment. Finding that the 1985 Act “clearly offend[ed] §105 of the [Alabama] Constitution,” the court declared the Act unconstitutional. Stokes v. Noonan, 534 So. 2d 237, 238-239.
The Alabama Supreme Court’s decree cast grave doubt on the legitimacy of Jones’s election and, consequently, on his continued tenure in office. The Governor, however, defused any potential controversy by immediately invoking his authority under Ala. Code § 11-3-6 and appointing Jones to the Commission.
B
The next midterm vacancy on the Commission did not occur until October 2005, when Jones — who had been reelected every four years since 1988 — was elected mayor of the city of Mobile. Once again, the method of filling the vacancy became the subject of litigation. In 2004, the state legislature had passed (and the DOJ had precleared) an amendment to Ala. Code § 11-3-6 providing that vacancies on county commissions were to be filled by gubernatorial appointment “[u]nless a local law authorizes a special election.” 2004 Ala. Acts no. 2004-455 (2004 Act). When the 2005 vacancy arose, three Mobile County voters and Alabama state legislators — appellees Yvonne Kennedy, James Buskey, and William Clark (hereinafter Kennedy) — filed suit against Alabama’s Governor, Bob Riley, in state court. The 2004 Act’s authorization of local laws providing for special elections, they urged, had revived the 1985 Act and cured its infirmity under § 105 of the Alabama Constitution. Adopting Kennedy’s view, the state trial court ordered Governor Riley to call a special election.
While the Governor’s appeal to the Alabama Supreme Court was pending, Mobile County’s election officials obtained preclearance of procedures for a special election, scheduled to take place in January 2006. In November 2005, however, the Alabama Supreme Court reversed the trial court’s order. Holding that the 2004 Act “provide[d] for prospective application only” and thus did not resurrect the 1985 Act, Alabama’s highest court ruled that “Governor Riley [wa]s authorized to fill the vacancy on the Mobile County Commission by appointment.” Riley v. Kennedy, 928 So. 2d 1013,1017. Governor Riley promptly exercised that authority by appointing Juan Chastang.
The day after the Alabama Supreme Court denied rehearing, Kennedy commenced the instant suit in Federal District Court. Invoking §5, she sought declaratory relief and an injunction barring Governor Riley from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the decisions in Stokes and Kennedy. As required by § 5, a three-judge District Court convened to hear the suit. See 42 U. S. C. §1973c(a); Allen, 393 U. S., at 563.
In August 2006, the three-judge court, after a hearing, granted the requested declaration. The court observed first that for purposes of §5’s preclearance requirement, “[cjhanges are measured by comparing the new challenged practice with the baseline practice, that is, the most recent practice that is both precleared and in force or effect.” 445 F. Supp. 2d 1333, 1336 (MD Ala.). It then determined that the 1985 Act’s provision requiring special elections had been both precleared and put into “force or effect” with the special election of Jones in 1987. It followed, the District Court reasoned, that the gubernatorial appointment called for by Stokes and Kennedy ranked as a change from the baseline practice; consequently “the two [Alabama Supreme Court] decisions . .. should have been precleared before they were implemented.” 445 F. Supp. 2d, at 1336.
Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance of Stokes and Kennedy. 445 F. Supp. 2d, at 1336. Without conceding that preclearance was required, the State submitted the decisions to the DOJ. Finding that the State had failed to prove that the reinstatement of gubernatorial appointment would not be retrogressive, the Department denied preclearance. See App. to Motion to Dismiss or Affirm 2a-8a. “The African-American voters of District 1,” the DOJ explained, “enjoy the opportunity to elect minority candidates of their choice” under the 1985 Act. Id., at 6a. A change to gubernatorial appointment would be retrogressive because it “would transfer this electoral power to a state official elected by a statewide constituency whose racial make-up and electoral choices regularly differ from those of the voters of District 1.” Ibid.
After the State unsuccessfully sought DOJ'reconsideration, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court ruled that “Governor Bob Riley’s appointment of Juan Chastang to the Mobile County Commission . . . was unlawful under federal law” and vacated the appointment. App. to Juris. Statement la-2a. Governor Riley filed a notice of appeal in the District Court on May 18, 2007, and a jurisdictional statement in this Court on July 17, 2007. In November 2007, we postponed a determination of jurisdiction until our consideration of the case on the merits. 552 U. S. 1035.
In the meantime, a special election was held in Mobile County in October 2007 to fill the vacancy resulting from the District Court’s order vacating Chastang’s appointment. Chastang ran in the election but was defeated by Merceria Ludgood, who garnered nearly 80% of the vote. See Certification of Results, Special Election, Mobile County (Oct. 16, 2007), http://records.mobile-county.net/ViewImagesPDFAll. Aspx?ID=2007081288 (as visited May 22, 2008, and available in Clerk of Court’s case file). Ludgood continues to occupy the District One seat on the Commission. Her term will expire in November 2008.
Ill
Before reaching the merits of Governor Riley’s appeal, we first take up Kennedy’s threshold objection. The appeal, Kennedy urges, must be dismissed as untimely.
Section 5 provides that “any appeal” from the decision of a three-judge district court “shall lie to the Supreme Court.” 42 U. S. C. § 1973c(a). Such an appeal must be filed within 60 days of the District Court’s entry of a final judgment. See 28 U. S. C. § 2101(b). Kennedy maintains that Governor Riley’s May 18, 2007 notice of appeal came too late because the District Court’s August 2006 order qualified as a final judgment. If Kennedy’s characterization is correct, then Governor Riley’s time to file an appeal expired in October 2006, and his appeal must be dismissed. But if, as Governor Riley maintains, the District Court did not issue a final judgment until the order vacating Chastang’s appointment on May 1, 2007, then the Governor filed his appeal well within the required time.
A final judgment is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945). The District Court’s August 2006 order declared that the Alabama Supreme Court’s decisions in Stokes and Kennedy required preclearance, but that order left unresolved Kennedy’s demand for injunctive relief. We have long held that an order resolving liability without addressing a plaintiff’s requests for relief is not final. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 742-743 (1976). See also 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3915.2, p. 271 (2d ed. 1992).
Resisting the conclusion these authorities indicate, Kennedy maintains that the August 2006 order ranked as a final decision for two reasons. First, she contends, that order conclusively settled the key remedial issue, for it directed Governor Riley to seek preclearance of the Alabama Supreme Court’s decisions in Stokes and Kennedy. See Brief for Appellees 26-27. This argument misapprehends the District Court’s order: Far from requiring the Governor to seek preclearance, the District Court expressly allowed for the possibility that he would elect not to do so. See 445 F. Supp. 2d, at 1337 (“Defendant Riley is to keep the court informed of what action, if any, the State decides to take . . . .” (emphasis added)). Second, Kennedy notes that the District Court directed entry of its August 2006 order “as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure,” ibid. See Brief for Appellees 27. “The label used by the District Court,” however, “cannot control [an] order’s appealability.” Sullivan v. Finkelstein, 496 U. S. 617, 628, n. 7 (1990). See also Wetzel, 424 U. S., at 741-743.
Because the District Court did not render its final judgment until May 1, 2007, Governor Riley’s May 18 notice of appeal was timely. We therefore proceed to the merits.
IV
Prior to 1985, Alabama filled midterm vacancies on the Mobile County Commission by gubernatorial appointment. The 1985 Act adopted a different practice — special elections. That new practice was used in one election only, held in 1987. The next year, the Alabama Supreme Court determined, in Stokes v. Noonan, that the Act authorizing special elections was invalid under the State’s Constitution. Properly framed, the issue before us is whether § 5 required Alabama to obtain preclearance before reinstating the practice of gubernatorial appointment in the wake of the decision by its highest court invalidating the special-election law.
It is undisputed that a “change” from election to appointment is a change “with respect to voting” and thus covered by § 5. See Allen, 393 U. S., at 569-570; Presley v. Etowah County Comm’n, 502 U. S. 491, 502-503 (1992). We have also stated that the preclearance requirement encompasses “voting changes mandated by order of a state court.” Branch v. Smith, 538 U. S. 254, 262 (2003). See also Hathorn v. Lovorn, 457 U. S. 255, 265-266, and n. 16 (1982). The question is whether, given the circumstances here presented, any “change” within the meaning of § 5 occurred in this case.
In order to determine whether an election practice constitutes a “change” as that term is defined in our § 5 precedents, we compare the practice with the covered jurisdiction’s “baseline.” We have defined the baseline as the most recent practice that was both precleared and “in force or effect”— or, absent any change since the jurisdiction’s coverage date, the practice that was “in force or effect” on that date. See Young, 520 U. S., at 282-283. See also Presley, 502 U. S., at 495. The question is “whether a State has ‘enact[ed]’ or is ‘seeking] to administer’ a ‘practice or procedure’ that is ‘different’ enough” from the baseline to qualify as a change. Young, 520 U. S., at 281 (quoting 42 U. S. C. § 1973c).
For the reasons that follow, we conclude that the 1985 Act was never “in force or effect” within the meaning of § 5. At all relevant times, therefore, the baseline practice for filling midterm vacancies on the Commission was the pre-1985 practice of gubernatorial appointment. The State’s reinstatement of that practice thus did not constitute a change requiring preclearance.
A
We have directly addressed the § 5 term of art “in force or effect” on three prior occasions. As will become clear, these precedents do not control this case because they differ in a critical respect. They do, however, provide the starting point for our inquiry.
In Perkins v. Matthews, 400 U. S. 379 (1971), the question was what practice had been “in force or effect” in the city of Canton, Mississippi, on that State’s §5 coverage date, November 1, 1964. A 1962 state law required selection of city aldermen by at-large elections rather than by ward. Canton, however, “ignored the mandate [of the statute] in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards.” Id., at 394. In the 1969 election, the city sought to switch to at-large elections. We held that this move was a change requiring preclearance because election by ward was “the procedure in fact ‘in force or ef-. feet’ in Canton on November 1, 1964.” Id., at 395.
We endeavored to determine in Perkins the voting procedure that would have been followed on the coverage date, November 1, 1964. Two choices were apparent: the state law on the books since 1962 calling for at-large elections, or the practice Canton actually used, without challenge, in 1965 — election by wards. We picked the 1965 practice as the more likely indicator of the practice Canton would have employed had it held an election on the coverage date, just seven months earlier. See id., at 394-395.
Similarly, in City of Lockhart v. United States, 460 U. S. 125 (1983), the question was what practice had been “in force or effect” in Lockhart, Texas, on the relevant §5 coverage date, November 1, 1972. For more than 50 years, without challenge, the city had used a “numbered-post” system to elect its city council. See id., at 182, n. 6. A group of plaintiffs nonetheless contended that the numbered-post system was never “in force or effect” because it lacked state-law authorization. We noted that the validity of the numbered-post system under state law was “not entirely clear.” Id., at 132. Relying on Perkins, we considered the uncertain state of Texas law “irrelevant,” for “[t]he proper comparison [wa]s between the new system and the system actually in effect on November 1, 1972, regardless of what state law might have required.” 460 U. S., at 132 (footnote omitted).
Finally, in Young v. Fordice, decided in 1997, the question was whether a provisional voter registration plan implemented by Mississippi election officials had been “in force or effect.” Believing that the state legislature was about to amend the relevant law, the officials had prepared and obtained preclearance for a new voter registration scheme. See 520 U. S., at 279. Roughly one-third of the State’s election officials implemented the plan, registering around 4,000 voters. See id., at 278, 283. As it turned out, however, the state legislature failed to pass the amendment, and the voters who had registered under the provisional plan were required to reregister. See id., at 278. When the case reached us, we rejected the argument that “the [provisional [p]lan, because it was precleared by the Attorney General, became part of the baseline against which to judge whether a future change must be precleared.” Id., at 282. Regarding the provisional plan as a “temporary misapplication of state law,” we held that, for § 5 purposes, the plan was “never ‘in force or effect.’ ” Ibid. We emphasized that the officials who implemented the provisional plan “did not intend to administer an unlawful plan” and that they abandoned it “as soon as its unlawfulness became apparent.” Id., at 283. We also noted that the provisional plan had been used for only 41 days and that the State “held no elections” during that period. Ibid.
B
Perkins and Lockhart established that an election practice may be “in force or effect” for § 5 purposes despite its illegality under state law if, as a practical matter, it was “actually in effect.” Lockhart, 460 U. S., at 132. Our more recent decision in Young, however, qualified that general rule: A practice best characterized as nothing more than a “temporary misapplication of state law,” we held, is not “ ‘in force or effect,’” even if actually implemented by state election officials. 520 U. S., at 282.
If the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case falling somewhere between the two poles established by our prior decisions. On one hand, as in Young, the 1985 Act was a “temporary misapplication” of state law: It was on the books for just over three years and applied as a voting practice only once. In Lockhart, by contrast, the city had used the numbered-post system “for over 50 years without challenge.” 460 U. S., at 132, n. 6. (Perkins is a less clear case: The city failed to alter its practice in response to changed state law for roughly seven years, but only a single election was held during that period. See 400 U. S., at 394.) On the other hand, in Young no election occurred during the time the provisional registration plan was in use, while in this case one election was held under the later invalidated 1985 Act.
We are convinced, however, that an extraordinary circumstance not present in any past case is operative here, impelling the conclusion that the 1985 Act was never “in force or effect”: The Act was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court.
These characteristics plainly distinguish the present case from Perkins and Lockhart. The state judiciary had no involvement in either of those cases, as the practices at issue were administered without legal challenge of any kind. And in Lockhart, we justified our unwillingness to incorporate a practice’s legality under state law into the §5 “force or effect” inquiry in part on this ground: “We doubt[ed] that Congress intended” to require “the Attorney General and the District Court for the District of Columbia” to engage in “speculation as to state law.” 460 U. S., at 133, n. 8. Here, in contrast, the 1985 Act’s invalidity under the Alabama Constitution has been definitively established by the Alabama Supreme Court.
The prompt legal challenge and the Alabama Supreme Court’s decision not only distinguish this case from Perkins and Lockhart; they also provide strong cause to conclude that, in the context of § 5, the 1985 Act was never “in force or effect.” A State’s highest court is unquestionably “the ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421 U. S. 684, 691 (1975). And because the prerogative of the Alabama Supreme Court to say what Alabama law is merits respect in federal forums, a law challenged at first opportunity and invalidated by Alabama’s highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice for §5 purposes. Indeed, Kennedy and the United States appear to concede that the 1985 Act would not have been “in force or effect” had the Alabama Supreme Court stayed the 1987 election pending its decision in Stokes (or simply issued its decision sooner). See Brief for Appellees 51; Brief for United States as Amicus Curiae 23-24.
There is no good reason to hold otherwise simply because Alabama’s highest court, proceeding at a pace hardly uncommon in litigated controversies, did not render its decision until after an election was held. In this regard, we have recognized that practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5-6 (2006) (per curiam) (“Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the [challenged] rules.”).
Ruling as Kennedy and the United States urge, moreover, would have the anomalous effect of binding Alabama to an unconstitutional practice because of a state trial court’s error. If the trial court had gotten the law of Alabama right, all agree, there would have been no special election and no tenable argument that the 1985 Act had ever gained “force or effect.” But the trial court misconstrued the State’s law and, due to that court’s error, an election took place. That sequence of events, the District Court held, made the Act part of Alabama’s § 5 baseline. No precedent of this Court calls for such a holding.
The District Court took care to note that its decision “d[id] not in any way undermine [Stokes and Kennedy] under state law.” 445 F. Supp. 2d, at 1337. In some theoretical sense, that may be true. Practically, however, the District Court’s decision gave controlling effect to the erroneous trial court decision and rendered the Alabama Supreme Court’s corrections inoperative. Alabama’s Constitution, that State’s Supreme Court determined, required that, in the years here involved, vacancies on the Mobile County Commission be filled by appointment rather than special election. Nothing inherent in the practice of -appointment violates the Fifteenth Amendment or the VRA. The DOJ, however, found that a change from special elections to appointment had occurred in District One, and further found that the change was retrogressive, hence barred by § 5. The District Court’s final decision, tied to the DOJ determination, thus effectively precluded the State from reinstating gubernatorial appointment, the only practice consistent with the Alabama Constitution pre-2006. Indeed, Kennedy’s counsel forthrightly acknowledged that the position she defends would “loc[k] into place” an unconstitutional practice. Tr. of Oral Arg. 32.
The dissent, too, appears to concede that its reading of § 5 would bind Alabama to an unconstitutional practice because of an error by the state trial court. See post, at 435. But it contends that this imposition is no more “offensive to state sovereignty” than “effectively requiring a State to administer a law it has repealed,” post, at 436 — a routine consequence of § 5. The result described by the dissent, however, follows directly from the Constitution’s instruction that a state law may not be enforced if it conflicts with federal law. See Art. VI, cl. 2. Section 5 prohibits States from making retrogressive changes to their voting practices, and thus renders any such changes unenforceable. To be sure, this result constrains States’ legislative freedom. But the rule advocated by the dissent would effectively preclude Alabama’s highest court from applying to a state law a provision of the State Constitution entirely harmonious with federal law. That sort of interference with a state supreme court’s ability to determine the content of state law, we think it plain, is a burden of a different order.
This burden is more than a hypothetical concern. The realities of election litigation are such that lower state courts often allow elections to proceed based on erroneous interpretations of state law later corrected on appeal. See, e.g., Akins v. Secretary of State, 154 N. H. 67, 67-68, 74, 904 A. 2d 702, 703,708 (2006) (preelection challenge rejected by a state trial court but eventually sustained in a postelection decision by the State Supreme Court); Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶¶ 1-17,140 N. M. 77, 79-83 (same); Maryland Green Party v. Maryland Bd. of Elections, 377 Md. 127, 137-139, 832 A. 2d 214,220-221 (2003) (same); O’Callaghan v. State, 914 P. 2d 1250,1263-1264 (Alaska 1996) (same); Peloza v. Freas, 871 P. 2d 687, 688, 692 (Alaska 1994) (same). We decline to adopt a rigid interpretation of “in force or effect” that would deny state supreme courts the opportunity to correct similar errors in the future.
C
Although our reasoning and the particular facts of this case should make the narrow scope of our holding apparent, we conclude with some cautionary observations. First, the presence of a judgment by Alabama’s highest court declaring the 1985 Act invalid under the State Constitution is critical to our decision. We do not suggest the outcome would be the same if a potentially unlawful practice had simply been abandoned by state officials after initial use in an election. Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was challenged the first time it was invoked and struck down shortly thereafter. The same result would not necessarily follow if a practice were invalidated only after enforcement without challenge in several previous elections. Cf. Young, 520 U. S., at 283 (“[T]he simple fact that a voting practice is unlawful under state law does not show, entirely by itself, that the practice was never fin force or effect.’... A State, after all, might maintain in effect for many years a plan that technically . . . violated some provision of state law.”). Finally, the consequence of the Alabama Supreme Court’s decision in Stokes was to reinstate a practice — gubernatorial appointment — identical to the State’s §5 baseline. Preclearance might well have been required had the court instead ordered the State to adopt a novel practice.
* * *
For the reasons stated, the judgment of the United States District Court for the Middle District of Alabama is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Souter joins, dissenting.
Voting practices in Alabama today are vastly different from those that prevailed prior to the enactment of the Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq. Even though many of those changes are, at least in part, the consequence of vigorous and sustained enforcement of the VRA, it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were. The principal events at issue in this case occurred in the 1980’s, when the State’s transition from a blatantly discriminatory regime was well underway.
Nevertheless, since Congress recently decided to renew the VRA, and our task is to interpret that statute, we must give the VRA the same generous interpretation that our cases have consistently endorsed throughout its history. In my judgment, the Court’s decision today is not faithful to those cases or to Congress’ intent to give § 5 of the VRA, § 1973c, the “broadest possible scope,” reaching “any state enactment which altered the election law of a covered State in even a minor way.” Allen v. State Bd. of Elections, 393 U. S. 544, 566-567 (1969). I think it clear, as the Department of Justice argues and the three-judge District Court held, 445 F. Supp. 2d 1333 (MD Ala. 2006), that the Alabama Supreme Court’s decision in Stokes v. Noonan, 534 So. 2d 237 (1988), caused a change in voting practice that required preclearance.
I
Section 5 preclearance is required “[w]henever a [covered] State ... 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.” 42 U. S. C. § 1973c. The critical question in this case is whether the procedure for selecting Mobile County Commissioners arising out of Stokes — gubernatorial appointment — is a “change” under § 5.
As an initial matter, the language of § 5 requires that the practice be “different from that in force or effect on November 1, 1964.” It is undisputed that the practice in force or effect in 1964 was gubernatorial appointment, see Ala. Code § 12-6 (1958); the practice of calling a special election to fill midterm openings on the Mobile County Commission was not introduced until the passage of Alabama Act No. 85-237 (1985 Act).
The argument that a return to gubernatorial appointment will never require preclearance under § 5 because gubernatorial appointment was the practice in effect in 1964 is neither persuasive nor properly before the Court. Appellant expressly abandoned any such argument in his briefs to this Court. See Reply Brief 8 (“Our contention, as we have already said, is not that the Court needs to rethink prior dicta suggesting that, despite its language, §5 operates like a ratchet to subsume newly-precleared practices .... That question is not before the Court, and we take no position on it”). Further, appellant did not raise the argument in either of his trial briefs to the District Court. Governor’s Trial Brief in Kennedy v. Riley, Civ. Action No. 2:05 CV 1100-T (MD Ala.); Governor’s Supp. Trial Brief in Kennedy v. Riley, Civ. Action No. 2:05 CV 1100-T (MD Ala.).
Appellant’s decision not to challenge the preclearance requirement on this ground was no doubt because of the settled law to the contrary. Reflecting the fact that Congress certainly did not intend § 5 to create a “safe harbor” for voting practices identical to practices in effect in 1964, the settled understanding among lower courts and the Department of Justice is that § 5 operates instead as a ratchet, freezing in place the most recent voting practice. See Brief for United States as Amicus Curiae 16-18 (collecting cases); 28 CFR § 51.12 (2007). Furthermore, Congress has reauthorized the VRA in the face of this understanding without amending the relevant language of § 5. See Voting Rights Act Reauthorization and Amendments Act of 2006,120 Stat. 577; ante, at 413, n. 1 (describing the history of renewals and extensions of the VRA). Thus, the inclusion of the date 1964 in the language of § 5 poses no obstacle to my conclusion that Stokes — even though it returned to gubernatorial practice— implemented a change in voting practice that required preclearance.
II
Whether a voting practice represents a change that requires preclearance is measured against the previously precleared “baseline” practice in force or effect. Young v. Fordice, 520 U. S. 273, 282-283 (1997); Presley v. Etowah County Comm’n, 502 U. S. 491, 495 (1992). The baseline is the practice actually in effect immediately prior to the putative change, whether or not that practice violates state law. In Perkins v. Matthews, 400 U. S. 379 (1971), for example, we held that the baseline practice was not at-large elections, even though at-large elections were required by a 1962 state statute. Because the city had never implemented that statute, we held that the practice actually in force or effect on November 1,1964, was ward elections, despite that practice’s illegality under state law. Id., at 394-395.
The situation was similar in City of Lockhart v. United States, 460 U. S. 125 (1983). There we considered whether the practice of using numbered posts for elections was in force on the relevant coverage date and concluded that despite the possibility that this practice was illegal under Texas law, the numbered-post system could serve as the baseline. Id., at 132, and n. -6. We emphasized once again that “[s]ection 5 was intended to halt actual retrogression in minority voting strength' without regard for the legality under state law of the practices already in effect.” Id., at 133.
In Fordice, 520 U. S. 273, our most recent case deciding whether a voting practice was a baseline under § 5, we concluded that the registration procedure at issue was not “in force or effect” and therefore could not serve as the § 5 baseline. In 1994, Mississippi began modifying its registration practices in an attempt to comply with the National Voter Registration Act of 1993, 107 Stat. 77, 42 U. S. C. § 1973gg et seq. In late 1994, the Mississippi secretary of state proposed a series of changes and assumed that the Mississippi Legislature would adopt those changes. The secretary of state told at least one election official to begin registering voters under the new plan. The proposed changes were precleared, and about 4,000 voters were registered. The legislature failed to adopt the proposal, however, and the registrants were notified that they were not, as they had thought, registered to vote in state or local elections. Fordice, 520 U. S., at 277-278. We held that the provisional registration system was not the baseline because it was never in force or effect.
An ordinary observer asked to describe voting practice in Alabama with respect to the method of filling vacancies on the Mobile County Commission would no doubt state that before 1985 the practice was gubernatorial appointment, between 1985 and 1988 the practice was special election, and beginning in 1988 the practice changed to gubernatorial appointment.
In the face of this history, the Court comes to the startling conclusion that for purposes of the VRA Alabama has never ceased to practice gubernatorial appointment as its method of selecting members of the Mobile County Commission. But under our case law interpreting §5, it is clear that a change occurred in 1988 when Stokes returned Alabama to gubernatorial appointment. This represented a change because the relevant baseline was the special election procedure mandated by the Alabama Legislature’s enactment of the 1985 Act, which was precleared by the Department of Justice in June 1985. Pursuant to that law, the Governor called a special election when a vacancy arose in 1987. The vacancy was filled, and the newly elected commissioner took office in July 1987 serving, by way of his election, until September 1988.
It is difficult to say that the special election practice was never “in force or effect” with a straight face. Jones was elected and sat on the three-member Mobile County Commission for approximately 14 months. During those 14 months, the county commission held dozens of meetings, at which the commission exercised its executive and administrative functions. During the time he served as a result of the special election, Jones was central to actions having a direct and immediate impact on Mobile County. For example, at a meeting held on October 13, 1987, the commission considered 25 agenda items, one of which was paying claims and payrolls of over $1 million. Minutes from Meeting Oct. 13, 1987.
The differences between this case and Fordice are legion. In holding that the provisional registration system in Fordice did not constitute the baseline by which to measure future practices, we emphasized that the plan was abandoned as soon as it was clear that it would not be enacted, the plan was in use for only 41 days, and only about one-third of the election officials had even implemented the proposal. 520 U. S., at 283. Further, the State rectified the situation far in advance of any elections; there was no evidence that anyone was prevented from voting because of reliance on the rejected plan. Ibid.
Fordice was in essence a case of “no harm, no foul.” Here, of course, the special election did take place, and the elected commissioner held his post for 14 months, voting on hundreds of measures shaping the governance of Mobile County. While the voters in Fordice could be reregistered under the new procedures, Jones’ election to the commission and his 14-month service cannot be undone.
The majority seems to acknowledge that Fordice is distinguishable, stating that if “the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case.” Ante, at 424. The Court relies, however, on the “extraordinary circumstance” that the 1985 Act was challenged immediately and that the 1987 election was held “in the shadow” of that legal challenge. Ante, at 424-425. But a cloud of litigation cannot undermine the obvious conclusion that the special election practice was in force or effect. That practice, therefore, is the practice to which gubernatorial appointment must be compared.
The majority makes much of the fact that to adopt the view of the three-judge District Court would make the question whether a voting practice is “in force or effect” turn on whether the circuit court happened to get the law right in time to stop the election. Ante, at 426. But the majority’s approach turns instead on whether Alabama possesses highly motivated private litigants. If Stokes had not challenged the election until it had already taken place (or had failed to appeal), the election would be in force or effect under the majority’s view. Nothing in the VRA or our cases suggests that the VRA’s application should hinge on how quickly private litigants challenge voting laws.
Our decisions in Perkins and Lockhart give no indication that if a citizen in Canton, Mississippi, or Lockhart, Texas, had challenged the legality of the ward elections or the numbered-post system, the illegality of those practices under state law would have been any more relevant to their status as the relevant baselines. This case calls for nothing more than a straightforward application of our precedent; that precedent makes clear that the special election procedure was the relevant baseline and that gubernatorial appointment therefore represents a change that must be precleared.
Ill
The VRA makes no distinction among the paths that can lead to a change in voting practice, requiring preclearance “whenever” a State seeks to enact “any” change in voting practice. 42 U. S. C. § 1973c. And changes to voting practice can arise in at least four ways: (1) legislative enactment; (2) executive action; (3) judicial changes, either by a proactive judicial decision (e. g., redistricting) or, as in this case, through judicial interpretation of state law; or (4) informal abandonment or adoption by election officials.
The majority does not dispute that a change in voting practice wrought by a state court can be subject to preclearance. See ante, at 420-421 (citing Branch v. Smith, 538 U. S. 254 (2003), and Hathorn v. Lovorn, 457 U. S. 255 (1982)). But the majority falters when it treats the change effected by Stokes differently for §5 preclearance purposes than it would treat a newly enacted statute or executive regulation. The majority finds it “anomalous” that Alabama might be bound “to an unconstitutional practice because of a state trial court’s error.” Ante, at 426. The clear theme running through the majority’s analysis is that the Alabama Supreme Court is more deserving of comity than the Alabama Legislature.
Imagine that the 1985 Act had been held constitutional by the Alabama Supreme Court in Stokes, but that in 1988 the Alabama Legislature changed its mind and repealed the Act, enacting in its place a statute providing for gubernatorial appointment. Imagine further that the Department of Justice refused to preclear the practice (as it no doubt would); if Alabama wanted to fill an open seat on the Mobile County Commission it would have to administer its former special election practice even though that law had been repealed. It is not clear to me or to the United States, see Brief as Amicus Curiae 25-27, why effectively requiring a State to administer a law it has repealed is less offensive to state sovereignty than requiring a State to administer a law its highest court has found unconstitutional. The VRA, “by its nature, intrudes on state sovereignty.” Lopez v. Monterey County, 525 U. S. 266, 284 (1999).
The majority attempts to portray the Circuit Court Judge’s decision as so far outside the bounds of Alabama law, see ante, at 426, that allowing it to effectively establish the special election practice as a §5 baseline would be intolerable. I am certain, however, that the two Alabama Supreme Court Justices dissenting in Stokes would disagree. 534 So. 2d, at 239 (opinion of Steagall, J., joined by Adams, J.). The dissenting justices argued that the 1985 Act was sufficiently “amendatory” to avoid the requirements of Peddycoart v. Birmingham, 354 So. 2d 808 (Ala. 1978), because it merely amended the 1957 Act creating the Mobile County Commission. The Circuit Court Judge followed similar reasoning, citing Alabama Supreme Court precedent stating that “[i]t is the duty of the courts to sustain the constitutionality of a legislative act unless it is clear beyond a reasonable doubt that it is in violation of the fundamental law.” Stokes v. Noonan, No. CV-87-001316 (Mobile Cty., May 19, 1987). Nothing in the Circuit Court Judge’s decision indicates that this case calls for anything other than a straightforward application of our precedent.
IV
Finally, the history of the voting practices that the VRA sought to address, especially in Alabama itself, indicates that state courts must be treated on the same terms as state legislatures for §5 purposes. Specifically, the history of Alabama’s voter registration requirements makes this quite clear. Alabama’s literacy test originated in a constitutional convention called in 1901 “largely, if not principally, for the purpose of changing the 1875 Constitution so as to eliminate Negro voters.” United States v. Alabama, 252 F. Supp. 95, 98 (MD Ala. 1966); see also M. McMillan, Constitutional Development in Alabama, 1789-1901, pp. 217-232 (1955); Hunter v. Underwood, 471 U. S. 222 (1985). Not wishing to run directly afoul of the Fifteenth Amendment, delegates at the convention devised a poll tax and a literacy test in order to disfranchise African-Americans. The effects of the new Constitution were staggering: In 1900, 100,000 African-Americans were enrolled as voters in Alabama. By 1908, only 3,742 African-Americans were registered to vote. Alabama, 252 F. Supp., at 99; V. Hamilton, Alabama: A Bicentennial History 96 (1977).
The Alabama Constitution provided for judicial review of contested registrar decisions, see § 186 (1901), but that review provision was rendered all but useless by the Alabama Supreme Court’s adoption of both a strong presumption that the Board of Registrars’ decisions were valid and stringent pleading requirements. For example, in Hawkins v. Vines, 249 Ala. 165, 30 So. 2d 451 (1947), the Alabama Supreme Court rejected a petition from a denial of registration because the petitioner averred that he “is a citizen of the United States,” “is able to read and write,” and “is over the age of twenty-one years,” rather than expressly stating that he met those requirements at the time he attempted to register. Id., at 169, 30 So. 2d, at 455 (emphasis deleted; internal quotation marks omitted). In Hawkins, the Alabama Supreme Court also reaffirmed its previous holding in Boswell v. Bethea, 242 Ala. 292, 296-297, 5 So. 2d 816, 820-821 (1942), that the decisions of the board of registrars are “presumptively regular and valid and the burden is on the one who would attack the order to show error.” 249 Ala., at 169, 30 So. 2d, at 454.
Alabama’s literacy test was later amended via the “Boswell Amendment” to include a requirement that voters demonstrate that they were able to “understand and explain any article of the constitution of the United States in the English language.” Ala. Const. § 181 (1901) (as amended in 1946 by Arndt. 55). That amendment was held to be unconstitutional in Davis v. Schnell, 81F. Supp. 872,881 (SD Ala. 1949). Not easily deterred, the legislature responded with a new amendment, ratified in December 1951, which provided that the Alabama Supreme Court would promulgate a uniform questionnaire to be completed by all applicants. Ala. Const. § 181 (1901) (as amended in 1951 by Arndt. 91); see United States v. Penton, 212 F. Supp. 193, 204, 205 (MD Ala. 1962) (reproducing questionnaire in App. B).
During the period from 1951 to 1964, the Alabama Supreme Court rendered the questionnaire more and more complex. In 1960, in response to the efforts of African-American organizations to educate voters, the questions were arranged in different sequences for different questionnaires. B. Landsberg, Free at Last To Vote: The Alabama Origins of the 1965 Voting Rights Act 19 (2007). These new questionnaires had the effect of blocking the registration of thousands of African-American voters. For example, as a district court in Alabama found, between 1954 and 1960 only 14 African-Americans were registered to vote in Dallas County — a county with approximately 15,000 African-Americans. See United States v. Atkins, 323 F. 2d 733, 736 (CA5 1963). Among the African-Americans denied registration were two doctors and six college graduates. Ibid.
The Alabama Supreme Court responded to the litigation surrounding its questionnaire by drafting a new questionnaire in 1964; that questionnaire had a literacy and civics test on which questions were rotated, resulting in 100 different forms of the test. E. Yadlosky, Library of Congress Legislative Reference Service, State Literacy Tests as Qualifications for Voting 19 (1965). The tests contained questions such as “Ambassadors may be named by the President without the approval of the United States Senate. (True or False),” and “If no person receives a majority of the electoral vote, the Vice President is chosen by the Senate. (True or False).” Ibid, (internal quotation marks omitted). These tests were finally put to rest throughout the country in the VRA, which mandates that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote.” 42 U. S. C. § 1973aa.
In sum, prior to the VRA, the Alabama Supreme Court worked hand in hand with the Alabama Legislature to erect obstacles to African-American voting. While I do not wish to cast aspersions on the current members of the Alabama Supreme Court or the court that decided Stokes v. Noonan, 534 So. 2d 237, the history of the Alabama Supreme Court’s role in designing Alabama’s literacy test provides a vivid illustration of why voting changes wrought by state-court decisions must be treated on the same terms as those brought into effect by legislative or executive action.
V
There is simply nothing about this case that takes it outside the ordinary reach of our VRA precedents. Because the 1985 Act was precleared and put in effect during the 1987 election, the practice of special elections serves as the relevant baseline. With the correct baseline in mind, it is obvious that the gubernatorial appointment put in place by Stokes is a practice “different from” the baseline. Because gubernatorial appointment represents a change, it must be precleared, as the three-judge District Court correctly held.
I therefore respectfully dissent.
See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577; Voting Rights Act Amendments of 1982, 96 Stat. 131; Voting Rights Act Amendments of 1975, 89 Stat. 400; Voting Rights Act Amendments of 1970, 84 Stat. 314.
Under the Alabama Constitution, a “general” law is “a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class.” Art. IV, § 110. A “special or private” law is a law that “applies to an individual, association or corporation.” Ibid. A “local” law is “a law which is not a general law or a special or private law.” Ibid. The 1985 Act was a local law because it applied only to Mobile County; the remainder of the State continued to be governed by Ala. Code § 11-3-6 (1975).
The District Court denied the Governor’s motion to stay its judgment pending this appeal. See App. 7.
Regardless of the outcome of this litigation, the method for filling future midterm vacancies on the Commission appears to have been settled. In 2006, the Alabama Legislature enacted a new measure providing that, on a going-forward basis, vacancies on the Commission will be filled by special election. See 2006 Ala. Acts no. 2006-342. The DOJ precleared the statute in July 2007. The passage of this law does not render this case moot: If the Governor prevails in his appeal, Chastang may seek reinstatement to the Commission to serve out the remainder of the term ending in November 2008. See Brief for United States as Amicus Curiae 5, n. 1.
Catlin and the other authorities cited in this Part interpret the meaning of “final decisions” in 28 U. S. C. § 1291, the statute governing appeals from district courts to the courts of appeals. We find them instructive in interpreting the parallel term “final” judgment in § 2101(b).
As framed by the District Court, the issue was whether the Alabama Supreme Court’s decisions in Stokes v. Noonan, 534 So. 2d 237 (1988), and Riley v. Kennedy, 928 So. 2d 1013 (2005), should have been preeleared. See 445 F. Supp. 2d, at 1336. This formulation, we conclude, misstates the issue in two technical respects. First, §5 requires a covered jurisdiction to seek preclearance of any changed “practice . . . with respect to voting.” 42 U. S. C. § 1973c(a). The “practice” at issue here is gubernatorial appointment. That practice, and not the Alabama Supreme Court’s interpretation of state law in Stokes and Kennedy, is the proper subject of the § 5 inquiry. Second, as Governor Riley noted, see Brief for Appellant 25, if there was a change requiring preclearanee, it came about as a result of Stokes, not Kennedy. Stokes held that the 1985 Act violated the Alabama Constitution, and the State accordingly reinstated the practice of gubernatorial appointment with the Governor’s 1988 appointment of Jones. Kennedy simply determined that the 2004 Act did not resurrect the 1985 Act; that decision itself prompted no change in the State’s election practices.
By its terms, §5 requires preclearanee of any election practice that is “different from that in force or effect on” the relevant coverage date — in this case, November 1, 1964. 42 U. S. C. § 1973e(a). Governor Riley’s opening brief suggested that this text could be read to mean that no preclearanee is required if a covered jurisdiction seeks to adopt the same practice that was in force or effect on its coverage date — even if, because of intervening changes, that practice is different from the jurisdiction’s baseline. See Brief for Appellant 26-27. In response, Kennedy and the United States noted that the DOJ, see 28 CFR § 51.12 (2007), and the lower courts to consider the question, see, e. g., NAACP, DeKalb Cty. Chapter v. Georgia, 494 F. Supp. 668, 677 (ND Ga. 1980) (three-judge court), have rejected this interpretation. See Brief for Appellees 47-49; Brief for United States as Amicus Curiae 17-18. We need not resolve this dispute because the result in this ease is the same under either view. But see post, at 431 (taking the issue up, although it is academic here).
Under the “numbered post” system, “the two commissioner posts were designated by number, and each candidate for commissioner specified the post for which he or she sought election.” City of Lockhart v. United States, 460 U. S. 125, 127 (1983) (internal quotation marks omitted). It contrasted with an alternative system “in which all of the candidates . . . run in a single election, and the two receiving the greatest number of votes are elected.” Id., at 127, n. 1.
We commented in this regard that the longevity of the numbered-post system “suggested] a presumption of legality under state law.” Id., at 132, n. 6.
The dissent observes that the Alabama Supreme Court’s decision in Stokes was not unanimous. See post, at 436-437. Like this Court, the Alabama Supreme Court does not shy away from revealing dissenting opinions. Of course, it is the majority opinion that declares what state law is.
As earlier noted, see supra, at 418, n. 4, the Alabama Legislature modified the relevant state law in 2006 by adopting special elections on a going-forward basis.
There is no indication in the record that the Alabama Supreme Court’s decisions in Stokes and Kennedy were anything other than reasonable and impartial interpretations of controlling Alabama law.
In view of these limitations, the concern expressed in Part IV of the dissent, see post, at 437-441, is misplaced. The Alabama Supreme Court’s historical role in administering the State’s discriminatory literacy test, the dissent contends, “indicates that state courts must be treated on the same terms as state legislatures for § 5 purposes,” post, at 437. But it is common ground that a “change” made pursuant to a state-court order is subject to §5 scrutiny; the only question is whether the Alabama Supreme Court’s ruling in Stokes triggered a “change” within the meaning of our decisions. See supra, at 420-421; post, at 436. More importantly, none of the past discriminatory actions by the state court identified in the dissent would have been sheltered from §5 review by our tightly bounded decision in this case.
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The Act passed the Senate by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006).
Even the majority cannot escape this conclusion, stating that “[t]he State’s reinstatement of th[e] practice [of gubernatorial appointment] did not constitute a change requiring preclearance.” Ante, at 422 (emphasis added); see also, e. g., ante, at 416-417, 421-422. Of course, if there was no change, then there was nothing to reinstate.
The NAACP Legal Defense and Educational Fund’s amicus brief provides a history of the role that Alabama courts played in promoting and retaining discriminatory voting practices.
The spirit of the Constitution’s registration provision was captured by the statement of Delegate Heflin:
“We want the white men who once voted in this State and controlled it, to vote again. We want to see that old condition restored. Upon that theory we took the stump in Alabama, having pledged ourselves to the white people of Alabama, upon the platform that we would not disfranchise a single white man, if you trust us to frame an organic law for Alabama, but it is our purpose, it is our intention, and here is our registered vow to disfranchise every negro in the State and not a single white man.” 3 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901, To September 3rd 1901, p. 2844 (1941).
Provisions following the lead of the 1890 “Mississippi Plan” were enacted in other State Constitutions, with similar results. See C. Zelden, The Battle for the Black Ballot 17-18 (2004) (describing similar changes to registration practice in Mississippi, South Carolina, North Carolina, Louisiana, Alabama, Virginia, Texas, and Georgia and their effects on registration); C. Woodward, Origins of the New South 1877-1913, pp. 321-349 (1951) (describing effect of Mississippi Plan on the States that adopted it). While poor white voters were also disfranchised to a significant degree, these provisions fell most heavily on African-American voters. See id., at 342-343 (demonstrating that between 1897 and 1900 in Louisiana registered white voters dropped by about 40,000 and registered African-Americans dropped by approximately 125,000).
Some of other questions were “Are post offices operated by the state or federal government?,” “When residents of a city elect their officials, the voting is called a municipal election. (True or false),” “Of what political party is the president of the United States a member?,” and “What is the chief executive of Alabama called?” United States v. Parker, 236 F. Supp. 511, 524, 525, 528 (MD Ala. 1964) (reproducing the questionnaire).
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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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[
26
] |
SECRETARY OF AGRICULTURE v. UNITED STATES et al.
NOS. 6 AND 11.
Argued October 12, 1955.
Decided January 9, 1956.
Marvin E. Frankel argued the cause for the United States and the Secretary of Agriculture. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Barnes, William J. Lamont, Robert L. Farrington, Neil Brooks and Donald A. Campbell.
Samuel R. Howell argued the cause and filed a brief for the Interstate Commerce Commission.
William F. Zearfaus argued the cause for the Intervening Railroads, appellees. With him on the brief was J. Edgar McDonald.
On a brief were John H. Pratt for the Utah Poultry & Farmers Cooperative, Marcus Whiting for Armour & Co., and Arthur C. O’Meara and John P. Staley for Swift & Co., appellants in Nos. 7 and 12.
Opinion of the Court by
Mr. Justice Harlan,
announced by Mr. Justice Clark.
These cases involve the validity of railroad tariff provisions exonerating the appellee railroads from liability for stated percentages of damage to shell eggs shipped over their lines. The cases come to us by direct appeal from a judgment of a three-judge district court in Utah, which dismissed an action brought to set aside and enjoin an order of the Interstate Commerce Commission approving such tariff provisions. We noted probable jurisdiction on October 14, 1954.
Claims against the railroads for damage to egg shipments steadily and rapidly increased in the years following 1939, particularly on shipments to the eastern seaboard area. In 1950 the railroads, believing that because of the difficulties of proof they were being exposed to liability for damage for which they were not responsible, filed with the Commission proposed tariff provisions similar in form to those approved by the order under review. After an investigation and hearing, the Commission concluded that egg shipments ordinarily contained substantial amounts of damage for which the railroads were not responsible — namely, (a) damage existing prior to shipment, and (b) damage unavoidably arising in transit because of the inherently fragile nature of eggs. The average amount of such damage was found to be 3% for eggs packaged at railhead points and 5% for those packaged elsewhere. On the basis of this finding, the Commission, although rejecting the higher-percentage provisions proposed by the railroads, found reasonable— and hence authorized the railroads to include in their tariff schedules — the following tolerance provision :
“On eggs placed in packages at rail point of origin of the shipment, no claim shall be allowed where the physical damage to the eggs at destination does not exceed 3% of the contents of the packages containing damaged eggs. Where damage exceeds 3%, claims shall be allowed for all damage in excess of 3%, if investigation develops carrier liability.
“Exception. — Where bona fide certificates of Federal or State egg inspection agencies showing extent of physical damage to eggs determined at rail point of origin of the shipment immediately prior to tender for rail transportation indicate the actual shell damage to be other than 2%, the percentage of actual damage as shown on such certificates, plus 1% shall be used in lieu of 3% specified in this Section.”
An otherwise identical provision applicable to “eggs placed in packages at points other than the rail point of origin” was determined to be reasonable with a tolerance of 5%.
It is claimed that these tariff provisions violate §20 (11) of the Interstate Commerce Act, 24 Stat. 386, as amended, 49 U. S. C. § 20 (11), which provides that any common carrier subject to the Act receiving property for interstate transportation “shall be liable ... for any loss, damage, or injury to such property caused by it ... , and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier . . . from the liability hereby imposed . . . .”
The Commission and the court below (one judge dissenting) held that the tolerance provisions did not violate §20 (11) because the pre-shipment and unavoidably-caused damage represented by the tolerances was not damage “caused by” the railroads; hence the tolerance regulations, in providing a means for determining the extent of such damage, did not limit the railroads’ proper liability, but operated simply to eliminate from damage claims the damage for which the railroads were not liable.
The appellants attack the provisions on six principal grounds: (1) the Commission has no jurisdiction over damage claims and hence no power to prescribe regulations governing their disposition; (2) tolerances based on averages necessarily embrace a forbidden limitation of liability since, by definition, some shipments will contain less than the “average” damage, resulting in those cases in the carrier being relieved of its full liability; (3) the railroads are liable for in-transit damage even though “unavoidable” ; (4) the averages found by the Commission are not supported by the evidence; (5) the approval of uniform nation-wide tolerances was unreasonable in light of the wide differences in the egg-damage experience of consignees located in different areas of the country; and (6) the conclusion that the tolerances do not limit liability is not supported by the Commission’s findings. Our agreement with this last contention makes it unnecessary for us to consider the other arguments, and we may assume, though we do not decide, that the tariff provisions are not invalid for any of the other reasons assigned.
The Commission’s justification of the tolerance regulations as not limiting liability rests upon two distinct propositions: (1) that there is present in every case of eggs at destination physical damage not “caused by” the railroads — and hence for which they are not liable under § 20 (11) — in the amount of the specified percentages; and (2) that the deduction of those percentages from damage claims operates merely to prevent liability for such damage from being improperly imposed on the railroads. We shall accept for purposes of discussion the validity of the first proposition. The infirmity we find in the Commission’s report is rather that the second proposition is simply assumed and is supported by no findings upon which we can say that the Commission’s conclusion was reasonably based. Such a conclusion being essential to remove the tolerance provisions from the prohibition of § 20 (11), the lack of findings necessary to justify that conclusion renders invalid the Commission’s order approving the tolerance regulations. See Florida v. United States, 282 U. S. 194, 215. Indeed, so far does the report fail to support the Commission’s conclusion that it tends affirmatively to support precisely the opposite conclusion— namely, that the tolerances do unlawfully limit liability. We know of no better way to illustrate the inadequacies of the report than by showing the manner in which the inferences raised by it and unanswered by the Commission would, if accepted, lead to that opposing conclusion.
In the first place, we are unable to discover in the report any showing that damage claims include — or should reasonably be deemed to include — the exempt damage which is to be deducted from them. At common law, proof that a case of eggs contained a specified amount of damage for which the carrier was not liable would afford no defense to a damage claim not shown to include that damage. To complete the defense, some showing that the damage claimed included the exempt damage would be required, such as evidence that all of the damage had been found and claimed. Similarly, to justify a regulation authorizing the deduction from damage claims of a tolerance representing exempt damage, some basis for inferring that damage claims ordinarily include such damage would seem required, such as a finding that the type of inspection upon which damage claims are based is adequate to reveal substantially all the damage present in a case.
Far from making such a finding, however, the Commission report indicates that damage claims normally do not include all the damage present in a case. As described by the Commission, the customary inspection at destination upon which damage claims are based is simply a visual examination of a layer of 36 eggs at a time, continuing only until a layer in the case with no visible damage is found, at which point none of the succeeding layers is even looked at. Inasmuch as “damage” of the sort represented by the tolerances includes even the most minor shell imperfections, the inference seems inevitable that much damage is overlooked. This inference is strengthened by the Commission’s statement that much of the damage normally present in a case could be found only “by candling and clicking, and could not be detected by the kind of inspection performed at” destination. And that damage claims do not in practice include all damage is further indicated by the Department of' Agriculture studies cited by the Commission in which the damage overlooked by customary inspections at destination was found to range between 3.6% and 7.3%. Indeed, if the inferences suggested by these latter studies be accepted, it would appear that there is ordinarily overlooked in the destination inspection — and hence not included in damage claims — physical damage nearly equal to or greater than the exempt damage represented by the tolerances. If that be true, a further reduction of the claim by the full amount of the tolerance would necessarily operate to “limit” liability by approximately the full amount of the tolerance.
Nor is it an answer to this that the consignee is entitled to make a more thorough inspection than the prevailing practice entails. By in effect requiring a consignee to prove that his damage claim does not include the exempt damage, the tolerances would impose on the consignee the burden of disproving a defense which at common law it would be the carrier’s burden to establish. Whether or not the Commission has power so to alter the burden of proof, there is nothing to indicate that it had any intention of doing so. The Commission seems to have believed that under the prevailing commercial practices the carriers were being exposed to an improper liability and that the tolerances, applied in the same commercial setting, would do no more than remedy that situation. It would pervert the Commission’s purpose to deal realistically with a commercial problem now to seek to justify the tolerances on the ground that it is technically possible for consignees, by departing from the normal commercial practices, to avoid the limitation of liability caused by the tolerances. Especially is this true in the absence of any suggestion in the Commission’s report that such a complete inspection by consignees would be commercially feasible.
Another inadequacy of the Commission’s report arises from its failure to distinguish between different kinds of physical damage in the application of the tolerances. The most favorable evidence supporting the Commission’s conclusions as to the extent of the damage not “caused by” the railroads was a Department of Agriculture study showing that at destination the average case of eggs contains 4.8% “checked” or “stained” eggs and 0.3% broken eggs. Presumably, therefore, the tolerances approved by the Commission represent physical damage in the same proportions — that is, primarily checked and stained eggs with only a nominal percentage of broken eggs. Checked and stained eggs are salable at a reduced price and therefore, unlike broken eggs, represent only a partial loss. The tariff provisions, however, do not differentiate between these types of damage and apparently authorize the deduction of the full tolerance without regard to the nature of the damage claimed. But to permit the offsetting of checked and stained eggs, representing only a partial loss, against broken eggs, representing a total loss, would seem necessarily to limit the railroads’ proper liability under § 20 (11).
A third major respect in which the Commission’s report falls short of establishing that the tolerances will not limit liability results from its failure to consider the relationship between the physical damage represented by the tolerances and the legal loss for which damage claims are asserted. We have thus far assumed that “physical damage” could properly be equated with “loss” and have shown that, even on that assumption, the Commission has not shown the existence of a relationship between the damage represented by the tolerances and that included in damage claims which would justify the deduction authorized by the tariff provisions. In fact, however, it would appear that damage claims are based not on physical damage to individual eggs but rather on the loss of commercial accceptability of a case of eggs as a whole. As the Commission observed, the “commercially sound” case of eggs invariably contains some damage, and it is apparently only when the damage is so great as to make a case commercially unacceptable for its grade that it loses value. When a commercially unsound case is received, the consignee, rather than suffer the presumably greater loss that would result from selling it at a lower grade or as salvage, ordinarily “reconditions” the case by replacing the visibly damaged eggs and, if necessary, the packaging materials. From the character of this process as described by the Commission, it is apparent that the purpose is simply to make the case commercially sound and not to discover and remove all the damage present in the case. The damage claim, if liability is asserted against the carrier, then consists simply of the cost of reconditioning the case — that is, the labor and material costs plus the loss on the damaged eggs removed.
Viewed in the above terms, the probable effect of the tolerances on liability becomes even more apparent. Inasmuch as the highest grade specifications prescribed by the Department of Agriculture permit physical damage of 5%, a case of eggs received at destination with only the tolerance damage of 3% or 5% would presumably be considered “commercially sound” and be salable at the full price. Thus it would seem that presence of the tolerance damage by itself causes the consignee no loss and affords no basis for a damage claim, and that it is only when there is additional damage, making it necessary to recondition the case to make it commercially sound, that there is a loss for which a claim may be asserted. And if the additional damage is caused by the railroad, it necessarily follows that the cost of the reconditioning made necessary only because of that damage is a loss “caused by” the railroad within § 20 (11) , Any reduction of the damage claim in such circumstances would thus relieve the carrier of its proper liability.
The Commission’s report thus leaves us not merely with uncertainty as to the impact of the tolerances, cf. United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 504-505, 510-511, but with the strong impression that they are likely to operate in a forbidden manner. The report contains no answers to the problems we have raised, if indeed the Commission considered them at all. Since the report falls far short of establishing that the tolerances will not operate to limit carrier liability in violation of § 20 (11), the order of the Commission approving the tolerances must be set aside, and the judgment below
Reversed.
28 U. S. C. §§ 1253, 2325. The Secretary of Agriculture’s standing in these proceedings derives from 52 Stat. 36, 7 U. S. C. § 1291 (a) and (b).
Utah Poultry & Farmers Cooperative v. United States, 119 F. Supp. 846.
2841. C. C. 377.
348 U. S. 807.
The Commission found that on eggs shipped to New York the average claim per car increased more than 1800% from 1940 to 1947, 284 I. C. C., at 386, 390, and that the total claims paid in 1947 exceeded 50% of the gross revenue on such shipments, id., at 387.
36 Stat. 552, as amended, 49 U. S. C. § 15 (7).
The tariff provisions as originally filed established 4% and 6% tolerances as opposed to the 3% and 5% tolerances found reasonable by the Commission. See 284 I. C. C., at 407-408.
Promptly after the Commission's order, the railroads refiled the tariff provisions with the approved percentages. They were permitted to go into effect on May 2,1952.
It is conceded that §20 (11) codifies the common-law rule making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity. See, e. g., Bills of Lading, 52 I. C. C. 671, 679; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 421-422; Adams Express Co. v. Croninger, 226 U. S. 491, 506-507, 509. The “unavoidable” damage to eggs is claimed to be within the “inherent vice” exception. The appellants contend, however, that the exception does not include damage induced by external force, however slight or unavoidable, but is limited to loss or damage arising solely from the nature of the property without the intervention of human factors, such as loss from decay, fermentation, evaporation or natural shrinkage. See, e. g., Austin v. Seaboard R. Co., 188 F. 2d 239, 240-241 (C. A. 5th Cir.) ; Akerly v. Railway Exp. Agency, 96 N. H. 396, 400-402, 77 A. 2d 856, 860-861; Jackson & Perkins Co. v. Mushroom Transp. Co., 351 Pa. 583, 590-591, 41 A. 2d 635, 639; Watson Bros. Transp. Co. v. Domenico, 118 Colo. 133, 135-137, 194 P. 2d 323, 325.
The Commission found that the increase of damage claims to “substantial amounts” had occurred principally in connection with shipments to certain points in the eastern seaboard territory — particularly New York, Baltimore, Philadelphia, Boston and Newark—and that “Generally there has been no increase in the damage claims on shell eggs moved by rail to other territories.” 284 I. C. C., at 385-386, 392.
2841. C. C., at 395.
2841. C. C., at 393-394. In “candling,” each egg is placed before a light to disclose defects not otherwise detectable; in “clicking,” two eggs are knocked together, the sound revealing shell imperfections.
284 I. C. C., at 396. In answer to the implications of these un-controverted studies, the Commission simply said: “The record does not indicate the handling received by those particular shipments after they were delivered to the consignees. It does indicate, however, based on the number and amount of claims, that the inspection of shipments of eggs arriving at New York is being performed with a view to detecting all damaged eggs. Claims in amounts exceeding 50 percent of the revenue on the entire egg traffic to New York in 1947 do not appear to be based on a cursory inspection.” Ibid. But this speculative reasoning hardly overcomes the Commission’s own explicit finding of the inadequacy of the destination inspections to discover all the damage.
To the contrary, the report notes that, despite the efforts of packers by careful inspection to eliminate all damage, “absolute perfection is commercially impossible” and a substantial amount is overlooked, 284 I. C. C., at 393, and the difficulties would seem even greater under the more adverse conditions prevailing at destination. Nor do the Department of Agriculture test studies upon which the tolerances were based indicate the feasibility of an inspection adequate to uncover all damage. The usual Department of Agriculture grading inspections involve an examination only of 100 eggs from each of 15 cases out of a carload, 284 I. C. C., at 393, and, while the Commission does not clearly say so, apparently the test studies utilized a similar spot-check inspection, from which the total amount of damage was simply inferred. Damage claims, on the other hand, can be asserted only for the damage that is actually found.
284 I. C. C., at 393-394. “Checked” eggs have slight cracks but the membrane is unbroken; “stained” eggs are sound eggs which have been stained by leakage from other eggs, /d., at 384, 385.
2841. C. C., at 393.
284 I. C. C., at 395. The eggs are simply transferred from the damaged case to a new case a whole layer (36 eggs) at a time, in the course of which any obviously damaged eggs are removed and replaced.
2841. C. C., at 385, 399.
284 I. C. C., at 401. Of this 5% (for Grade A or AA eggs), no more than 0.5% may consist of broken eggs. As appears above, however, the proportion of broken eggs represented by the tolerances is well within this limit.
It seems immaterial that in a given case the consignee might remove more damage than the minimum necessary to make the case commercially sound. The cost of the extensive inspection that would be necessary to assure that precisely the right amount of damage is removed — a cost the consignee would presumably be entitled to recover — would defeat the mitigation of damages which is the very purpose of the reconditioning. The carrier can ask no more than that the consignee act reasonably in mitigating damages, and there is no suggestion that the commercially accepted method of reconditioning unsound cases is unreasonable.
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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
] |
BARRY, CHAIRMAN, RACING AND WAGERING BOARD OF NEW YORK, et al. v. BARCHI
No. 77-803.
Argued November 7, 1978
Decided June 25, 1979
White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part, in which Stewart, Marshall, and Stevens, JJ., joined, post, p. 68.
Robert S. Hammer, Assistant Attorney General of New York, argued the cause for appellants. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Joseph A. Faraldo argued the cause and filed a brief for appellee.
Briefs of amici curiae urging affirmance were filed by Dominic H. Frinzi and Joseph F. Asher for Harness Horsemen International, Inc.; by Philip P. Ardery for the Horsemen’s Benevolent and Protective Association; and by Roger D. Smith for the Jockeys’ Guild, Inc.
0. Carlysle McCandless, Miles M. Tepper, Ira A. Finkelstein, and Ruth jD. MacNaughton filed a brief for the New York Racing Association, Inc., as amicus curiae.
Mr. Justice White
delivered the opinion of the Court.
The New York State Racing and Wagering Board (Board) is empowered to license horse trainers and others participating in harness horse-race meets in New York. The Board also issues regulations setting forth the standards of conduct that a horse trainer must satisfy to retain his license. Among other things, the rules issued by the Board forbid the drugging of horses within 48 hours of a race and make trainers responsible for the condition and soundness of their horses before, during, and after a race. A trainer is forbidden to permit a horse in his custody to start a race “if he knows, or if by the exercise of reasonable care he might have known or have cause to believe” that a horse trained by him has been drugged. Every trainer is required to “guard or cause to be guarded each horse trained by him in such manner ... as to prevent any person not employed by or connected with the owner or trainer from administering any drug . ...” And when a postrace test, which must be administered to horses finishing first, second, or third, reveals the presence of drugs, it is to be presumed — subject to rebuttal — that the drug “was either administered by the trainer or resulted from his negligence in failing to adequately protect against such occurrence.”
On June 22, 1976, Be Alert, a harness race horse trained by appellee, John Barchi, finished second in a race at Monticello Raceway. Two days later, Barchi was advised by the Board steward that a postrace urinalysis had revealed a drug in Be Alert’s system. Barchi proclaimed his innocence, and two lie-detector tests supported his lack of knowledge of the drugging. On July 8, relying on the trainer’s responsibility rules and the evidentiary presumption arising thereunder, the steward suspended Barchi for 15 days, commencing July 10. Under § 8022 of the New York Unconsolidated Laws, a suspended licensee is entitled to a post-suspension hearing, but the section ordains that “[p]ending such hearing and final determination thereon, the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect.” The section specifies no time in which the hearing must be held, and it affords the Board as long as 30 days after the conclusion of the hearing in which to issue a final order adjudicating a case. Without resorting to the § 8022 procedures, Barchi filed this suit in the United States District Court.
Barchi alleged that his trainer’s license was protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and that § 8022 was unconstitutional because it permitted his license to be suspended without a prior hearing to determine his culpability and because a summary suspension could not be stayed pending the administrative review provided by the statute. Barchi also challenged the rule permitting the Board to presume rebuttably from the drugging of a horse that its trainer was responsible. His claim was that “there is no rational connection between the fact proved, that the horse was illegally drugged, and the ultimate fact presumed that the trainer is guilty of the act or carelessly guarded against the act occurring,” App. 15a (complaint), it being impossible, Barchi alleged, for the trainer to guard the horse against all those who by stealth might gain access to it. Barchi’s third claim was that, in prohibiting a stay of his suspension pending administrative review, § 8022 denied him equal protection of the laws, since in the context of' thoroughbred racing, in contrast to harness racing, suspensions can be stayed pending appeal.
The District Court upheld the evidentiary presumption on its face, concluding: “[T]he duty of a trainer to oversee his horses is sufficiently connected to the occurrence of tampering to support the presumption established by the trainer’s ‘insurer’ rules. The state’s definition of trainer responsibility is reasonably related to the interests involved and, given the rebuttable nature of the 4120.5 presumption, the high standard of accountability is not unconstitutional.” Barchi v. Sarafan, 436 F. Supp. 775, 784 (SDNY 1977). The District Court went on to hold, however, that § 8022 of the New York law was unconstitutional under the Due Process Clause since it permitted the State “to irreparably sanction a harness race horse trainer without a pre-suspension or a prompt post-suspension hearing in violation of plaintiff’s right to due process.” App. to Juris. Statement 2a (order of judgment). The court further concluded that the difference between the procedures applicable to harness racing and those applicable to thoroughbred racing was so unwarranted as to violate the Equal Protection Clause of the Fourteenth Amendment.
We noted probable jurisdiction of the appeal. 435 U. S. 921 (1978). In this Court, the appellants adhere to their fundamental position that, as a constitutional matter, Barchi was entitled to no more process than was available to him under § 8022 either before or after the suspension was imposed and became effective. Barchi, on the other hand, continues to insist that his suspension could in no event become effective without a prior hearing to establish that his horse had been drugged and that he was culpable.
We agree with appellants that § 8022 does not affront the Due Process Clause by authorizing summary suspensions without a presuspension hearing, and we reject Barchi’s contrary contention. In disagreement with appellants, however, we conclude that Barchi was not assured a sufficiently timely postsuspension hearing and that § 8022 was unconstitutionally applied in this respect.
It is conceded that, under New York law, Barchi’s license could have been suspended only upon a satisfactory showing that his horse had been drugged and that he , was at least negligent in failing to prevent the drugging. As a threshold matter, therefore, it is clear that Barchi had a property interest in his license sufficient to invoke the protection of the Due Process Clause. We do not agree with Barchi’s basic contention, however, that an evidentiary hearing was required prior to the effectuation of his suspension. Unquestionably, the magnitude of a trainer’s interest in avoiding suspension is substantial; but the State also has an important interest in assuring the integrity of the racing carried on under its auspices. In these circumstances, it seems to us that the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that would definitely determine the issues, whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. Cf. Gerstein v. Pugh, 420 U. S. 103, 111-112 (1975); Mitchell v. W. T. Grant Co., 416 U. S. 600, 609 (1974); Bell v. Burson, 402 U. S. 635, 542 (1971). In such circumstances, the State’s interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute. At the same time, there is substantial assurance that the trainer’s interest is not being baselessly compromised.
Under this standard, Barchi received all the process that was due him prior to the suspension of his license. As proof that Barchi’s horse had been drugged, the State adduced the assertion of its testing official, who had purported to examine Barchi’s horse pursuant to prescribed testing procedures. To establish probable cause, the State need not postpone a suspension pending an adversary hearing to resolve questions of credibility and conflicts in the evidence. At the interim suspension stage, an expert’s affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements.
As for Barchi’s culpability, the New York trainer’s responsibility rules, approved by the District Court, established a rebuttable presumption or inference, predicated on the fact of drugging, that Barchi was at least negligent. In light of the duties placed upon the trainer by the trainer’s responsibility rules, we accept this inference of culpability as defensible and would not put the State to further presuspension proof that Barchi had not complied with the applicable rules. Furthermore, although Barchi was not given a formal hearing prior to the suspension of his license, he was immediately notified of the alleged drugging, 16 days elapsed prior to the imposition of the suspension, and he was given more than one opportunity to present his side of the story to the State’s investigators. In fact, he stated his position in the course of taking two lie-detector examinations. He points to nothing in the record demonstrating convincingly that he was not negligent, and the State’s investigators apparently failed to unearth an explanation for the drugging that would completely exonerate him. Even if the State's presuspension procedures, then, were not adequate finally to resolve the issues fairly and accurately, they sufficed for the purposes of probable cause and interim suspension.
That the State’s presuspension procedures were satisfactory, however, still leaves unresolved how and when the adequacy of the grounds for suspension is ultimately to be determined. As the District Court found, the consequences to a trainer of even a temporary suspension can be severe; and we have held that the opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U. S. 545, 552 (1965). Here, the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. Indeed, insofar as the statutory requirements are concerned, it is as likely as not that Barchi and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Yet, it is possible that Barchi’s horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the contrary, it would seem as much in the State’s interest as Barchi’s to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing.
In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay. Because the statute as applied in this case was deficient in this respect, Barchi’s suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment.
The question remains whether the State’s prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing denies harness racing trainers equal protection of the laws. The District Court acknowledged that the inquiry in this respect is “whether or not the classification is without a reasonable basis.” 436 F. Supp., at 783. Put another way, a statutory classification such as this should not be overturned “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U. S. 93, 97 (1979). In holding that §8022 violated the Equal Protection Clause, the District Court misapplied this standard. The legislative history of § 8022 makes clear that the section and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation, and neither Barchi nor the District Court has demonstrated that the acute problems attending harness racing also plague the thoroughbred racing industry. Barchi has not shown that the two industries should be identically regulated in all respects; he has not convinced us that “the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, supra, at 111. It was not the State’s burden to disprove by resort to “current empirical proof,” 440 U. S., at 110, Barchi’s bare assertions that thoroughbred and harness racing should be treated identically.
It also seems clear to us that the procedural mechanism selected to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. The State could reasonably conclude that swift suspension of harness racing trainers was necessary to protect the public from fraud and to foster public confidence in the harness racing sport. Accordingly, we think the District Court erred in disapproving the difference in the procedural courses applicable to harness racing and thoroughbred racing.
We thus affirm the judgment of the District Court insofar as it ruled Barchi’s suspension unconstitutional for lack of assurance of a prompt postsuspension hearing. We reverse its judgment, however, to the extent that it declared § 8022 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The judgment of the District Court is accordingly affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
New York Unconsol. Laws §8010(1) (McKinney 1979) authorizes the “state harness racing commission,” whose powers are now exercised by the New York State Racing and Wagering Board, see §§ 7951-a, 8162 (McKinney 1979), to “license drivers and such other persons participating in harness horse race meets, as the commission may by rule prescribe ....” See also 9 N. Y. C. R. R. § 4101.24 (1975).
The Board has issued, in particular, a series of rules specifying a trainer’s responsibility for the condition of horses under the trainer’s care, 9 N. Y. C. R. R. §§ 4116.11, 4120.5, 4120.6 (1974):
“4116.11. Trainer’s responsibility. A trainer is responsible for the condition, fitness, equipment, and soundness of each horse at the time it is declared to race and thereafter when it starts in a race.”
“4120.5. Presumptions. Whenever [certain tests required to be made pn horses that place first, second, or third in a race] disclose the presence
in any horse of any drug, stimulant, depressant or sedative, in any amount whatsoever, it shall be presumed:
“ (a) that the same was administered by a person or persons having the control and/or care and/or custody of such horse with the intent thereby to affect the speed or condition of such horse and the result of the race in which it participated;
“(b) that it was administered within the period prohibited [by § 4120.4 (d), see n. 3, infra]; and
“(c) that a sufficient quantity was administered to affect the speed or condition of such animal.
“4120.6. Trainer’s responsibility. A trainer shall be responsible at all times for the condition of all horses trained by him. No trainer shall start a horse or permit a horse in his custody to be started if he knows, or if by the exercise of reasonable care he might have known or have cause to believe, that the horse has received any drug, stimulant, sedative, depressant, medicine, or other substance that could result in a positive test. Every trainer must guard or cause to be guarded each horse trained by him in such manner and for such period of time prior to racing the horse so as to prevent any person not employed by or connected with the owner or trainer from administering any drug, stimulant, sedative, depressant, or other substance resulting in a positive test.”
Title 9 N. Y. C. R. R. §4120.4 (1974) provides in part:
“No person shall, or attempt to, or shall conspire with another or others to:
“(a) Stimulate or depress a horse through the administration of any drug, medication, stimulant, depressant, hypnotic or narcotic.
“(d) Administer any drug, medicant, stimulant, depressant, narcotic or hypnotic to a horse within 48 hours of its race.”
See also § 4116.11, quoted in n. 2, supra.
9 N. Y. C. R. R. § 4120.6 (1974), quoted in n. 2, supra.
Ibid.
Barchi v. Sarafan, No. 76 Civ. 3070 (SDNY, Dec. 23, 1976), reprinted in-App. to Juris. Statement 24a; see Barchi v. Sarafan, 436 F. Supp. 775, 784 (SDNY 1977); App. 25a (affidavit of John Barchi). The Assistant Attorney General of New York interpreted the presumption in this way both before the three-judge court and in oral argument before this Court:
“QUESTION: What this is is a presumption to get the matter started and that can be rebutted by other evidence.
“MR. HAMMER: Absolutely, Your Honor. This is a permissive presumption. It is a rule of evidence, nothing more.” Tr. of Oral Arg. 7. See id., at 5; Tr. 33-34 (trainer not held absolutely responsible for drugging of horse “if it is shown that the trainer was not culpable, that he, himself, could not administer the drug and he was not found to be negligent in supervising the people under him”).
Title 9 N. Y. C. R. R. §4105.8 (f) (1974) authorizes presiding judges “[w]here a violation of any rule is suspected to conduct an inquiry promptly and to take such action as may be appropriate . . . .” New York Unconsol. Laws § 8010 (2) (McKinney 1979) states the grounds for revocation or suspension:
"... The commission may suspend or revoke a license issued pursuant to this section if it shall determine that (a) the applicant or licensee (1) has been convicted of a crime involving moral turpitude; (2) has engaged in boolonaking or other form of illegal gambling; (3) has been found guilty of any fraud in connection with racing or breeding; (4) has been guilty of any violation or attempt to violate any law, rule or regulation of any racing jurisdiction for which suspension from racing might be imposed in such jurisdiction; (5) or . . . has violated any rule, regulation or order of the commission, or [that (b)] the experience, character or general fitness of any applicant or licensee is such [that] the participation of such person in harness racing or related activities would be inconsistent with the public interest, convenience or necessity or with the best interests of racing generally.”
New York Unconsol. Laws §8022 (McKinney 1979) provides in full:
“If the state harness racing commission shall refuse to grant a license applied for under this act, or shall revoke or suspend such a license granted by it, or shall impose a monetary fine upon a participant in harness racing the applicant or licensee or party fined may demand, within ten days after notice of the said act of the commission, a hearing before the commission and the commission shall give prompt notice of a time and place for such hearing at which the commission will hear such applicant or licensee or party fined in reference thereto. Pending such hearing and final determination thereon, the action of the commission in refusing to grant or in revoking or suspending a license or in imposing a monetary fine shall remain in full force and effect. The commission may continue such hearing from time to time for the convenience of any of the parties. Any of the parties affected by such hearing may be represented by counsel, and the commission may be represented by the attorney-general, a deputy attorney-general or its counsel. In the conduct of such hearing the commission shall not be bound by technical rules of evidence, but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. In connection with such hearing, each member of the commission shall have the power to administer oaths and examine witnesses, and may issue subpoenas to compel attendance of witnesses, and the production of all material and relevant reports, books, papers, documents, correspondence and other evidence. The commission may, if occasion shall require, by order, refer to one or more of its members or officers, the duty of taking testimony in such matter, and to report thereon to the commission, but no determination shall be made therein except by the commission. Within thirty days after the conclusion of such hearing, the commission shall make a final order in writing, setting forth the reasons for the action taken by it and a copy thereof shall be served on such applicant or licensee or party fined, as the case may be. The action of the commission in refusing to grant a license or in revoking or suspending a license or in imposing a monetary fine shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules.”
The provision applicable to thoroughbred racing, N. Y. Unconsol. Laws §7916 (3) (McKinney 1979), provides:
“No license shall be revoked unless such revocation is at a meeting of the state racing commission on notice to the licensee, who shall be entitled to a hearing in respect of such revocation. In the conduct of such hearing the commission shall not be bound by technical rules of evidence but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. The action of the commission in refusing, suspending or in revoking a license shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules. Such hearing may be held by the chairman thereof or by any commissioner designated by him in writing, and the chairman or said commissioner may issue subpoenas for witnesses and administer oaths to witnesses. The chairman or commissioner holding such hearing shall, at the conclusion thereof, malee his findings with respect thereto and said findings, if concurred in by two members of the commission, shall become the findings and determination of the commission.”
The District Court declined to abstain to permit the state courts to construe § 8022 prior to adjudication of Barchi’s constitutional claims on their merits. Appellants had maintained that the provision might be construed to give the Board discretion to stay suspensions pending the outcome of the postsuspension hearing provided by § 8022. The District Court thought the language of the statute unequivocally foreclosed that construction. We cannot say that the District Court erred in this respect. Section 8022 provides that, pending a full hearing and final determination thereon, “the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect.” (Emphasis added.) The provision gives no assurance of a presuspension or prompt postsuspension hearing and determination. And it makes clear that the Board need not reach a determination until “thirty days after the conclusion of [the] hearing.”
We reject appellants’ further contention that Barchi should not have commenced suit prior to exhausting the procedure contemplated under § 8022. Under existing authority, exhaustion of administrative remedies is not required when “the question of the adequacy of the administrative remedy . . . [is] for all practical purposes identical with the merits of [the plaintiff’s] lawsuit.” Gibson v. Berryhill, 411 U. S. 564, 575 (1973).
Under New York law, a license may not be revoked or suspended at the discretion of the racing authorities. Cf. Bishop v. Wood, 426 U. S. 341 (1976). Rather, suspension may ensue only upon proof of certain contingencies. See N. Y. Unconsol. Laws § 8010 (McKinney 1979), quoted in n. 7, supra. Notably, when a horse is found to have been drugged, the license of the horse’s trainer may be suspended or revoked if he did the drugging, if he knew'or should have known that the horse had been drugged, or if he negligently failed to prevent it. Accordingly, state law has engendered a clear expectation of continued enjoyment of a license absent proof of culpable conduct by the trainer. Barchi, therefore, has asserted a legitimate “claim of entitlement . . . that he may invoke at a hearing.” Perry v. Sindermann, 408 U. S. 593, 601 (1972); see Board of Regents v. Roth, 408 U. S. 564 (1972); Bell v. Burson, 402 U. S. 535, 539 (1971); Goldberg v. Kelly, 397 U. S. 254 (1970).
In response to the slaying of a union official who represented employees at a harness track and the resulting disclosure of “a pattern of activities . . . clearly inimical to the public interest,” Governor Dewey appointed a commission to inquire into the general regulation of harness tracks. N. Y. Legis. Doc. No. 86, 177th Sess., 3 (1954). The investigation disclosed that harness racing had become “a lush and attractive field for every kind of abuse.” Id., at 4; see Report of the New York State Commission, in Public Papers of Governor Thomas E. Dewey 505 (1954). The Commission- recommended major changes in the harness racing laws, including enactment of the provisions of § 8022 ruled unconstitutional by the District Court. See 1954 N. Y. Laws, ch. 510, § 8; Report of the New York State Commission, supra, at 512.
We express no view on whether the procedures under § 8022, as that section may have been modified by subsequent legislation, satisfy the strictures of the Due Process Clause. After the District Court rendered its decision, the Appellate Division of the New York Supreme Court nullified a Board order summarily suspending a veterinarian’s license to practice medicine at racetracks on the ground that the Board had not made “any finding that the public health, safety, or welfare imperatively required such emergency action as a suspension prior to a hearing.” Gerard v. Barry, 59 App. Div. 2d 901, 399 N. Y. S. 2d 876 (1977). The court relied on § 401 (3) of the State Administrative Procedure Act, N. Y. State Admin. Proc. Act § 401 (3) (McKinney Supp. 1977), which provides:
“If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”
Section 401 (3) did not take effect until September 1, 1976, two months after Barchi was suspended. The section has no bearing on the constitutionality of procedures under § 8022 as applied to persons like Barchi who were suspended prior to its effective date. See N. Y. State Admin. Proc. Act § 103 (3) (McKinney Supp. 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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] |
[
116
] |
TEXAS GAS TRANSMISSION CORP. et al. v. SHELL OIL CO.
No. 167.
Argued April 20-21, 1960.
Decided June 13, 1960.
Mathias F. Correa' argued the cause for petitioners in No. 167. With him on the brief were Gavin H. Cochran and Lawrence W. Keepnews.
Willard W. Gatchell argued the cause for petitioner in No. 170. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Daniel M. Friedman, Samuel D. Slade, Anthony L. Mondello and Howard E. Wahrenbrock.
Oliver L. Stone argued the cause for respondent. With him on the brief were William F. Kenney and George C. Schoenberger, Jr.
Together with No. 170, Federal Power Commission v. Shell Oil Co., also on certiorari to the same Court.
Mr. Justice Brennan
delivered the opinion of the Court.
One of the series of orders issued by the Federal Power Commission after this Court’s decision in Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, required affected independent producers of natural gas to submit rate schedules in effect on June 7, 1954, the date Phillips was decided. The respondent, Shell Oil Company, on November 18, 1954, submitted its contract dated May 1, 1951, with Texas Gas Transmission Corporation, as a rate schedule on June 7, 1954, for gas from its Chalkley Field, Cameron Parish, Louisiana. The Commission, on March-13, 1957, accepted the contract as a rate schedule but ordered a hearing for the purpose of determining and fixing the price effective thereunder on June 7, 1954.
At the hearing, Texas Gas contended that paragraph 1 of Article VI of the contract specifying the price of 8.997 cents per thousand cubic feet (Mcf.) for the period which included June 7, 1954, established that price for the date. This was the price at which Shell was billing Texas Gas for gas at the time. However, Shell contended that when Texas Gas, prior to June 7, 1954, began paying 12.5 cents per Mcf. to Atlantic Refining Company, for gas produced in nearby Acadia Parish, Shell became entitled to receive the same price under the so-called “favored nation” clause of the Shell contract. That clause, paragraph 3 of Article VI, provides that “[i]f at any time after December 31,1951, [Texas Gas] shall enter into a contract providing for the purchase by it of gas” at a higher price [than that currently being paid under this— the Shell — contract], the price currently being paid will be increased to equal the “price payable under such other contract.”
When Texas Gas and Shell made the contract of May 1, 1951, Atlantic Refining Company was selling gas to the former from Acadia Parish production under a contract concluded in 1943 for a 25-year term. The Atlantic contract specified a price effective for the first five years and provided that during succeeding five-year periods, “prices to be paid will be determined at the beginning of each period . . . .” “The price to be paid . . . is to be agreed upon . . . after a survey of prevailing prices for gas being sold in similar quantities in the southwestern part of Louisiana.” The contract further provided that “ [i] n the event that the parties are unable to agree upon the price . . . such determination shall be submitted to arbitration”; the arbitrators to be selected as provided in the agreement. Negotiations between Atlantic and Texas Gas as to the price to be effective for the five-year period beginning September 1, 1953, terminated with a letter agreement dated February 17, 1954, which recited: “[I]t is hereby agreed that the price to be paid . . . between September 1, 1953, and August 31, 1958, both inclusive, shall be 12.2 cents net” plus .3 cent for severance tax, or 12.5 cents. It is this letter agreement which Shell contends triggered the Shell contract’s “favored nation” clause.
The Commission’s examiner issued his decision on August 9, 1957. He held that in making the Atlantic letter agreement Texas Gas “enter [ed] into a contract providing for the purchase by it of gas” within the meaning of the Shell “favored nation” clause and that this had escalated the Shell price to 12.5 cents per Mcf. The Commission reversed the examiner’s decision and determined that the effective price on June 7, 1954, was 8.997 cents per Mcf., the price fixed in paragraph 1 of Article VI. 18 F. P. C. 617. Shell’s petition for rehearing was denied. 19 F. P. C. 74. The Court of Appeals for the Third Circuit, on review, vacated the Commission’s order. 263 F. 2d 223. We granted the separate petitions for certiorari of Texas Gas and Louisville Gas and Electric Company in No. 167, and of the Federal Power Commission in No. 170, being particularly moved to do so by the contention made in both petitions that the Court of Appeals exceeded the appropriate scope of judicial review of the Commission’s determination. 361 U. S. 811.
We may assume with the petitioners that the Court of Appeals did not treat the Commission’s order as one which it was required to accept if reasonably supported in the record, and instead considered that it could examine de novo the question of the proper interpretation to be given the Shell “favored nation” clause. The petitioners’ argument that the Court of Appeals exceeded the allowable limits of judicial review is based upon the premise that the Commission's interpretation of the “favored nation” clause reflects the application of its expert knowledge and judgment to a highly technical field, so that the Court of Appeals was required to accept the Commission’s interpretation if it had “ ‘warrant in the record’ and a ‘reasonable basis in law,’ ” citing Unemployment Compensation Comm’n v. Aragon, 329 U. S. 143, 153-154. But the record nowhere discloses that the Commission arrived at its interpretation of the “favored nation” clause on the basis of specialized knowledge gained from experience in the regulation of the natural gas business, or upon the basis of any trade practice concerning “favored nation” clauses. On the contrary the opinions of the examiner and the Commission show that both treated the question as one to be determined simply by the application of ordinary rules of contract construction. The examiner stated that “[t]he language [of the “favored nation” clause] is clear enough to reveal the intent of the parties without resort to parole evidence or self-serving memoranda. . . . [I]ts plain meaning is . . . Shell sought to cause its selling price to rise to that called for by any other contract Buyer made for gas after an agreed date .... The language was evidently broad; not narrowly technical in character.” The examiner concluded that “elemental principles of contract law . . . too commonly known to the legal profession to require citations in support thereof” compelled the decision he reached. The Commission, in turn, relying for authority entirely upon court decisions and texts, construed the “favored nation” clause to be applicable only when Texas Gas entered into a “new” contract after December 31, 1951, and held that the February 17, 1954, “agreement with Atlantic does not constitute a new contract as required by Shell’s escalation clause, but merely represents action taken under a pre-existing contract between Texas Gas and Atlantic.” 18 F. P. C., at 618-619. It is apparent that the Commission rested its determination upon a construction of the words of the contract as it supposed a court would interpret them.
“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, 87. Therefore, since the Commission professed to dispose of the case solely upon its view of the result called for by the application of canons of contract construction employed by the courts, and did not in any wise rely on matters within its special competence, the Court of Appeals was fully justified in making its own independent determination of the correct application of the governing principles. See Federal Communications Comm’n v. RCA Communications, Inc., 346 U. S. 86, 91. There applies here what the Court said in Chenery: “Since the decision of the Commission was explicitly based upon the applicability of principles [of contract interpretation] announced by courts, its validity must likewise be judged on that basis." 318 U. S., at 87.
In the circumstances, considerations of the scope of review of administrative determinations need not deter us from reviewing the decision of the Court of Appeals and deciding the proper construction of the “favored nation” clause. We proceed to do so since the question of interpretation of the clause was presented in both petitions, our grant of certiorari was not limited to exclude it, and the question has been briefed and argued.
The question to be decided is: did the parties to the Shell contract mean that an agreement of the nature of the Atlantic letter agreement of February 17,1954, should constitute the “enter [ing] into a contract [by Texas Gas] providing for the purchase by it of gas . . .”? We first consider the nature of the letter agreement. The pricing provisions of the Atlantic contract specify a price for the first five-year period, and provide that prices for the four succeeding five-year periods should be determined by agreement of the parties, or failing such agreement, by arbitration. In either case the determination is to be made “after a survey of prevailing prices for gas being sold in similar quantities in the southwestern part of Louisiana.” Pursuant to this provision a letter agreement dated October 29, 1948, and a modification agreement dated February 16, 1949, established prices for the five-year period from September 1,1948, to August 31, 1953. The letter agreement of February 17, 1954, setting the price for the 1953-1958 period was thus the second such agreement.
Shell urges that the letter agreement is in actuality an entirely new contract which incorporates by inferential reference the terms of the 1943 contract. There is nothing in the letter agreement or otherwise in the record to substantiate this contention. On the contrary, the letter agreement affirmatively states that the action was taken “in accordance with” the 1943 contract.
To be sure, the letter agreement may be said to have been a “contract” insofar as Atlantic and Texas Gas agreed therein upon a price and gave up the right to have arbitrators determine the price for them. But their act was merely in the performance of an undertaking they assumed in 1943 when they chose this binding method for periodic price adjustments instead of some method which would have foreordained the adjustments in precise amounts. The letter agreement in discharge of this obligation assumed in 1943 is thus simply “executory of the [1943] contract between the parties." Phillips Petroleum Co. v. Federal Power Comm’n, 227 F. 2d 470, 475. We .therefore agree with the Commission's holding that the letter agreement “merely represents action taken under a pre-existing contract between Texas Gas and Atlantic.” 18 F. P. C., at 619.
In the light of this, we do not think that in being party to the letter agreement Texas Gas “enter [ed] into a contract for the purchase ... of gas” within the meaning of those words as employed by the parties in the “favored nation” clause. The language of that clause of the Shell contract is virtually the same as the parties used several times at the very outset of that contract. The sense in which the parties used the language there reveals its meaning in the “favored nation” clause and, so interpreted, the Atlantic letter agreement is not a “contract” within the meaning of the clause. The contract begins:
“This Contract, made and entered into as of May 1, 1951 . . .
“Whereas, under date of October 1, 1943, Shell Oil Company, Inc., entered into a contract for the sale of gas . . .
"Whereas, . . . Buyer and Seller now desire to rescind said contract and enter into a new contract for the purchase of gas . . . .” (Emphasis added.)
What follows are the nine Articles which detail the many aspects of the parties’ relationship for the 20-year term of the contract. The Articles are captioned “Sale of Gas,” “Quantity of Gas,” “Pressure Decline,” “Point of Delivery,” “Warranty of Title to Gas,” “Prices,” “Arbitration,” “Term of Contract,” and “Miscellaneous.” In addition an exhibit made part of the contract deals with such matters as “Quality of Gas,” “Measurements,” “Billing and Payment,” “Regulatory Bodies” and “Force Majeure.” In other words “enter[ing] into a contract providing for the purchase of gas” meant to the parties the making of a full-fledged contract containing all the terms defining the complete relationship.
This conclusion is borne out in the “Prices” Article itself. That Article divides the contract term into five periods, one from May 1, 1951, until January 1, 1952, and four others each of five years. Paragraph 1 specifies the price for each period according to a schedule of automatic step-increases. Adjustment otherwise to higher prices may result in one of two ways: (1) under paragraph 3, the “favored nation” clause, or (2) under paragraph 4 — applicable only to the last two five-year periods — if Shell requests a “price redetermination.” Upon such request “determination is to be made by the parties or, if they are unable to agree, by the arbitrators” upon the basis of “the three (3) highest prices to be paid during such period by operating interstate transporters of natural gas, including [Texas Gas]” for gas purchased from named Louisiana fields.
In all probability any “price redetermination” agreed upon by Shell and Texas Gas under paragraph 4 would be evidenced by a writing stating the determination. Surely the parties who used the language “enter [ing] into a contract” as they did in the preamble to their agreement would not conceive of such a “price redetermination” as “enter [ing] into a contract providing for the purchase ... of gas.” No more does the similar periodic price adjustment under the Atlantic contract partake of the nature of “enter [ing] into a contract providing for the purchase ... of gas,” within the meaning of the language of the Shell “favored nation” clause.
The Court of Appeals, in holding that the letter agreement came within the intendment of “enter [ing] into a contract providing for the purchase ... of gas,” stressed that Shell’s objective was to assure itself a “top price for its gas” and said that the facts tended to show “that the intention of the parties was for any higher price paid by [Texas Gas] to another producer to trigger a rise on the Shell contract to the same figure . . . .” 263 F. 2d, at 225. We think the contract demonstrates the contrary, and we find the record barren of any other evidence which would support this conclusion. Of course, we recognize that Shell desired to protect itself during so extended a contract period by provisions for price increases; and it did so. Indeed in this respect the contract is a one-way street. Shell is guaranteed automatic periodic step-increases and in addition, during the last 10 years of the contract term, at Shell’s option, prices are to be redetermined to reflect any higher prevailing market prices. Then there is the “favored nation” clause — also part of the protection afforded Shell. Shell is entitled to the highest price which any of these methods will yield. In contrast, there is no provision allowing Texas Gas the possibility of a price decrease.
Even assuming that the parties assigned paramount importance to giving Shell the “top price,” the “favored nation” clause as written is not as broad as it might have been. Shell has made other contracts with “favored nation” clauses which are triggered by every higher price paid by the buyer to other producers. In contrast, Shell concedes that this "favored nation” clause would not be triggered by higher prices paid by Texas Gas to other producers under pre-existing contracts by way of automatic increases or increases which are mathematically determined. The most reasonable explanation for the inclusion of the concededly more limited clause is that the parties meant to distinguish between increases which Texas Gas was contractually bound to pay under provisions of pre-1951 contracts and higher prices which Texas Gas voluntarily assumed to pay after 1951. In deciding which increases do and which do not trigger this “favored nation” clause we would be making an irrational distinction were we to focus upon the mechanics chosen in the Atlantic contract and conclude that the Shell clause was activated by a post-1951 price determination under the Atlantic contract, although it would not have been activated by price increases pursuant to a more mathematically precise formula. In its essential respects the Atlantic price adjustment was no different from the latter, for the Atlantic adjustment was required under a preexisting contract, and Texas Gas was powerless to prevent it.
We therefore hold that the Court of Appeals erred in its interpretation of the “favored nation” clause and that the Commission correctly construed it as not effecting an increase in price by reason of the letter agreement.
There remains for mention an argument of Shell which the Court of Appeals found unnecessary to consider because of the rationale which it adopted. This is the contention that the 1943 Atlantic agreement did not provide for a fixed and determined price beyond the first five-year period, so that under applicable state law enforceability was suspended until the contract price for a particular succeeding five-year term was supplied by agreement or arbitration. From this premise it is argued that when the second five-year period came to an end on August 31, 1953, neither Atlantic nor Texas Gas was under any enforceable obligation to continue the prior relationship and therefore when on February 17, 1954, Texas Gas signed the letter agreement it was not acting pursuant to any pre-existing obligation but was exercising its free choice to enter what was in effect a new contract. In its petition for writ of certiorari the Commission argued that not only was there no doubt about the enforceability of the Atlantic contract but that the issue is immaterial because the parties to that contract treated the contract as binding and that it is not for Shell, a stranger to the contract, to say that it was not legally enforceable. However, the Commission suggested that should we reverse the decision of the Court of Appeals, premised as it is upon the assumption that the 1943 Atlantic contract imposed a binding obligation for its entire stated term, and if we considered the question of enforceability to be material, we should remand the issue of enforceability to the Court of Appeals for its decision. Shell has maintained in this Court that the issue of enforceability is material but, in view of the Commission’s statement, has argued neither that issue nor the issue of enforceability. We agree that it is appropriate that the Court of Appeals address itself to the enforceability issue, if it is material, but under the circumstances we think the Court of Appeals should first decide the question of materiality. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
It is so ordered.
Me. Justice Black concurs in the result.
The Phillips case held that the Commission had jurisdiction over the independent producers and the order in question was Order No. 174r-B now incorporated in Regulations under the Natural Gas Act, 18 CFR §§ 154.92-154.93.
The contract was actually between Shell and Louisiana Natural Gas Corporation, a wholly owned subsidiary of the petitioner, Texas Gas Transmission Corporation. The subsidiary was merged into its parent in 1955.
The hearing was ordered after Shell filed on February 11, 1957, an application for a rate increase from 12.5 cents per thousand cubic feet (Mcf.) to 16.75 cents per Mcf. plus tax reimbursement. This price increase has been suspended and is pending before the Commission in another proceeding. The Commission noted in its opinion herein that it was “necessary in connection with any rate proceeding after suspension of increased rates . . . that we know the rate previously in effect . . . .” 18 F. P. C. 617, 618. Texas Gas and its customer, the other petitioner in No. 167, Louisville Gas and Electric Company, were permitted to intervene in these proceedings.
Article YI, paragraph 1, provides in pertinent part:
“1. The prices to be paid by Buyer for gas hereunder shall be as follows:
“For all gas purchased from January 1, 1952, through December 31, 1956. 8.99700 per 1000 cu. ft.”
Paragraph 3 of Article VI is as follows:
“If at any time after December 31, 1951, Buyer shall enter into a contract providing for the purchase by it of gas produced from a field or fields located, and delivered to Buyer, within a radius of fifty (50) miles of any point of delivery provided hereunder, Buyer shall forthwith notify Seiler of such fact, and if the price per one thousand (1000) cubic feet at any time payable under such other contract is higher than the price payable hereunder, each price payable hereunder which is less than thé price payable at the same time under such other contract shall be immediately increased so that it will equal the price payable under such other contract. In determining whether the price payable under such other contract is ‘higher’ than the price payable for gas under this contract, due consideration shall be given to the provisions of this contract as compared with such other contract as to quality of gas; delivery pressures, gathering and compressing arrangements, quantity, provisions regarding measurement of gas, including deviation from Boyle’s Law, taxes payable on or in .respect of gas delivered and all other pertinent factors.”
The pertinent provisions are in Article III of the 1943 Atlantic contract reading as follows:
“The Buyer agrees to pay for the gas received hereunder a price computed as follows:
“(b) At the end of the first five-year period, Buyer and Seller are to reach an agreement as to the price for gas sold and delivered under this contract during the second five-year period. The price to be paid during such second five-year period is to be agreed upon at the beginning of such period after a survey of prevailing prices for gas being sold in similar quantities in the southwestern part of Louisiana.
“(c) During succeeding five-year periods, prices to be paid will be determined at the beginning of each period in the same manner as provided for in paragraph (b) above.
“(d) In the event that the parties are unable to agree upon the price to be paid for gas after the first five-year period, in accordance with the arrangements set forth in paragraphs (b) and (c) above, such determination shall be submitted to arbitration in accordance with Condition XII.”
Tlie Commission reached its conclusion as to the interpretation of the “favored nation” clause without dissent. There was one dissent, by Commissioner Connole, from an' alternative ground of decision, namely, that the effective rate on June 7, 1954, was 8.997 cents per Mcf. because that was the charge actually being collected from Texas Gas. 18 F. P. C. 621. The Court of Appeals found no merit in this ground saying “What that rate was . . . depends upon the contract-established provisions rather than on the fortuity of rates which were being actually paid on that date.” 263 F. 2d, at 224. The Commission did not present this question among the Questions Presented in its petition for certiorari and we intimate no view upon its merits.
For purposes of its decision the Court of Appeals “assumed without deciding that the Atlantic contract of 1943 did in fact impose a binding agreement-to-agree on the price for gas in each of the contract’s last four five year periods.” 263 F. 2d, at 226. We proceed on the same assumption in reviewing the interpretation of the “favored nation” clause in the Shell contract.
The pertinent text of the letter is as follows:
“Under date of September 1, 1943, Defense Plant Corporation, as Buyer, entered into a gas purchase contract with The Atlantic Refining Company, as Seller, for the purchase of gas produced from Seller’s leases in the North Tepetate pool of Acadia Parish, Louisiana, which contract was subsequently amended February 16, 1949. Louisiana Natural Gas Corporation purchased the pipe line operated by Defense Plant Corporation and the aforesaid contract with The Atlantic Refining Company was assigned to Louisiana Natural Gas Corporation.
“In accordance with Paragraph III of said [1943] contract, it is hereby agreed that the price to be paid by Louisiana Natural Gas Corporation to The Atlantic Refining Company for gas sold and delivered under such contract between September 1, 1953, and August 31, 1958, both inclusive, shall be 12.2 cents net for each 1,000 cubic feet at a pressure base of 15.025 psia of gas received at the central point or points set forth in the original contract, regardless of whether such gas is delivered to a government plant or not; and, in addition, Buyer shall reimburse Seller for all state severance taxes, or similar taxes, which Seller is obligated to pay and has paid to the State of Louisiana on such eas.”
For example the Commission’s opinion on the order denying rehearing, 19 F. P. C., at 77, states:
“For instance in Shell’s Gas Rate Schedule No. 4 it is provided:
“ ‘If at any time or times the price per Mcf of gas or dry gas purchased by [the Buyer] from any gas producer whomever . . . shall be greater than the price per Mcf of gas purchased hereunder, [the Buyer] will increase the price per Mcf payable to [Shell] for gas delivered hereunder. . . .’
“In Shell’s Gas Rate Schedule No. 7, it is provided:
“ ‘Buyer agrees that if, during the term of this agreement, it purchases or agrees to purchase natural gas at any place within a distance of twenty-five (25) miles of the delivery point under the present contract, at a price or prices higher . . . than the prices provided for by the present contract, ... it will, upon seller’s request, thereafter pay to seller a price or prices under the present agreement not less than the higher price so being paid.’
“There are numerous other examples included in the present record.”
We do not read the following statement of the Court of Appeals as foreclosing the Commission’s argument that the issue of enforceability is not material:
“We have assumed without deciding that the Atlantic contract of 1943 did in fact impose a binding agreement-to-agree on the price for gas in each of the contract’s last four five year periods. Thus it has not been necessary to determine the several questions raised in connection with the arguments directed to that phase of the oase. Of course if the Atlantic contract of 1943 was not a binding agreement-to-agree, that circumstance alone would place the February, 1954 Atlantic contract fully within the terms of the escalation clause in the Shell contract.” 263 F. 2d, at 226.
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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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] |
[
51
] |
UNITED STATES v. MINKER.
NO. 35.
Argued November 14, 1955.
Decided January 16, 1956.
Marvin E. Frankel argued the cause for the United States in No. 35 and for respondent in No. 47. With him on the briefs were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay.
Jacob Kossman argued the cause and filed a brief for respondent in No. 35.
George Morris Fay argued the cause for petitioners in No. 47. With him on a brief was John P. Burke. Anthony S. Falcone also filed a brief for petitioners in No. 47.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Because of conflicting constructions by the Courts of Appeals for the Second and Third Circuits of § 235 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, we brought these cases here. 349 U. S. 904; 349 U. S. 927. They were heard in sequence, and, since minor differences in their facts are irrelevant to the problems now before us, they may be disposed of in one opinion.
Section 235 (a) provides that any immigration officer “shall have power to require by subpena the attendance and testimony of witnesses before immigration officers . . . relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the. administration of the Service, and to that end may invoke the aid of any court of the United States.” The controlling issue presented by these cases is whether this section empowers an immigration officer to subpoena a naturalized citizen who is the subject of an investigation by the Service, where the purpose of the investigation is to determine if good cause exists for the institution of denaturalization proceedings under § 340 (a) of the Act.
In No. 35, the District Director of the Immigration and Naturalization Service at Philadelphia, in accordance with § 340.11 of the Service’s regulations, instituted an investigation of respondent for the aforementioned purpose. In furtherance of this inquiry into the legality of Minker’s naturalization the Director subpoenaed him to give testimony at the offices of the Service. Prior to the required date of his appearance, he moved to quash the subpoena in the United States District Court for the Eastern District of Pennsylvania upon the ground, inter alia, that it was unauthorized by the Act. This motion was denied, In re Minker, 118 P. Supp. 264, and no appeal was taken. When respondent thereafter failed to obey the subpoena, the District Court, on application of the District Director, ordered respondent to appear before the Service and testify. He disregarded this order. After a hearing he was adjudged in contempt for so doing and fined $500. The Court of Appeals for the Third Circuit reversed, holding that while the power to subpoena under § 235 (a) was available for investigations directed toward denaturalization proceedings, respondent as a putative defendant in such a proceeding was not a “witness” within the meaning of the section, and the Service was, therefore, without power to subpoena him. 217 F. 2d 350.
In No. 47, each petitioner was served with a subpoena issued by the officer in charge of the Immigration and Naturalization Service at Syracuse, New York. The subpoenas commanded petitioners’ appearance and testimony, and required them to produce specified documents. They appeared with documents as ordered, but refused to be sworn or to testify. Thereupon an application for an order of compliance was made by the Service in the United States District Court for the Northern District of New York; but the court, denying the Service’s authority, refused to compel petitioners to appear and give testimony. 116 F. Supp. 464. On appeal, to the Court of Appeals for the Second Circuit, this judgment was reversed. 219 F. 2d 137. The court held that § 235 (a) of the Act permitted the immigration officer to subpoena the petitioners in furtherance of the Service’s investigation of them under § 340.11 of the regulations. The decision assumed, although the court did not discuss the question, that each petitioner, even though a subject of investigation, was a “witness” within the meaning of § 235 (a).
This brings us to an examination of the scope of § 235 (a). It had its genesis in § 16 of the Immigration Act of 1917, 39 Stat. 874, 885, which dealt with the examination of entering aliens by the Immigration Service. With respect to subpoenas the section provided: “Any commissioner of immigration or inspector in charge shall also have power to require by subpoena the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end may invoke the aid of any court of the United States . . . .” Obviously, this provision strictly defined the purposes for which officers of the Service could subpoena witnesses. It did not give them power to issue subpoenas as aids in investigating potential naturalization offenses.
The 1952 Act in § 235 (a) retained the substance of this language in § 16. But the word “alien” was changed to “person,” and additional language extended the subpoena power to “any matter which is material and relevant to the enforcement of this Act and the administration of the Service.” If the additional clause, following the portion “relating to the privilege of any person to enter, reenter, reside in, or pass through the United States,” had merely read “and any other matter which is material and relevant,” the doctrine of ejusdem generis would appropriately be invoked to limit the subpoena power to an investigation pertaining to questions of admission and deportation. The comprehensive addition of the clause “or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service,” precludes such narrowing reading. “Act” encompasses the full range of subjects covered by the statute. The Immigration and Nationality Act of 1952 brought together in one statute the previously atomized subjects of immigration, nationality and naturalization. The unqualified use of the word “Act” in § 235 (a), if read as ordinary English, embraces all of these subjects even though § 235 (a) is itself in the immigration title of the statute. But “the title of a statute and the heading of a section cannot limit the plain meaning . . . .” Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529. Throughout this statute the word “Act” is given its full significance. . The word embraces the entire statute. On the other hand, when only a particular title is referred to, it is designated as such, and when the reference is to a section, that word is employed. No justification appears for treating “Act” in § 235 (a) as meaning “section.” Thus far the Second and Third Circuits are in agreement.
We come then to the question upon which the two Courts of Appeals part ways in their construction of § 235 (a), namely, whether Salvatore and Joseph Falcone in the one case and Abraham Minker in the other, although each the subject of a denaturalization investigation under § 340.11 of the regulations, were “witnesses” within the meaning of the power given to “any immigration officer” to require “by subpoena the attendance and testimony of witnesses” before immigration officers.
If the answer to the question merely depended upon whether, as a matter of allowable English usage, the word “witness” may fairly describe a person in the position of Minker and the Falcones, it could not be denied that the word could as readily be deemed to cover persons in their position as not. In short, the word is patently ambiguous: it can fairly be applied to anyone who gives testimony in a proceeding, although the proceeding immediately or potentially involves him as a party, or it may be restricted to the person who gives testimony in another’s case.
It is pertinent to note the breadth of § 235 (a) not only with respect to the type of investigation in which a subpoena may be issued (“any matter which is material and relevant to the enforcement of this Act”), but also with respect to the member of the Service empowered to issue it. The power is granted “any immigration officer,” who in turn is defined in § 101 (a) (18) of the Act as “any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this Act or any section thereof.” This extensive delegated authority reinforces the considerations inherent in the nature of the power sought to be exercised that make for a restrictive reading of the Janus-faced word “witness.” The subpoena power “is a power capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer. . . . True, there can be no penalty incurred for contempt before there is a judicial order of enforcement. But the subpoena is in form an official command, and even though improvidently issued it has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the subpoena’s validity by litigation.” Cudahy Packing Co., Ltd. v. Holland, 315 U. S. 357, 363-364.
These concerns, relevant to the construction of this ambiguously worded power, are emphatically pertinent to investigations that constitute the first step in proceedings calculated to bring about the denaturalization of citizens. See Schneiderman v. United States, 320 U. S. 118; Baumgartner v. United States, 322 U. S. 665. This may result in “loss of both property and life; or of all that makes life worth living.” Ng Fung Ho v. White, 259 U. S. 276, 284. In such a situation where there is doubt it must be resolved in the citizen’s favor. Especially must we be sensitive to the citizen’s rights where the proceeding is nonjudicial because of “[t]he difference in security of judicial over administrative action . . . .” Ng Fung Ho v. White, supra, at 285.
These considerations of policy, which determined the Court’s decisions in requiring judicial as against administrative adjudication of the issue of citizenship in a deportation proceeding and those defining the heavy criterion of proof to be exacted by the lower courts from the Government before decreeing denaturalization, are important guides in reaching decision here. They give coherence to law and are fairly to be assumed as congressional presuppositions, unless by appropriate explicitness the lawmakers make them inapplicable. Cf. Bell v. United States, 349 U. S. 81, 83. It does not bespeak deprecation of official zeal, nor does it bring into question disinterestedness, to conclude that compulsory ex parte administrative examinations, untrammelled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences to prospective defendants in denaturalization suits.
These general considerations find specific reinforcement in the language of other provisions of the Act, wherein the person who is the subject of an investigation is referred to with particularity. The most striking example of this is to be found in § 335 and its legislative history which pertains to the investigation of an alien who petitions for naturalization. Section 335 (b) provides: “The Attorney General shall designate employees of the Service to conduct preliminary examinations upon petitions for naturalization .... For such purposes any such employee so designated is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to administer oaths, including the oath of the petitioner for naturalization and the oaths of petitioner’s witnesses to the petition for naturalization, and to require by subpena the attendance and testimony of witnesses, including petitioner . . . Contrast this with § 335 (b)’s predecessor, § 333 (a) of the Nationality Act of 1940, 54 Stat. 1137, 1156: . . any such designated examiner is hereby authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to subpena witnesses, and to administer oaths, including the oath of the petitioner to the petition for naturalization and the oath of petitioner’s witnesses.” Other examples of Congress’ careful differentiation between a witness who is not the subject of an investigation and the person who is, may be found in §§ 236 (a), 242 (b) and 336 (d) of the 1952 Act.
All these considerations converge to the conclusion that Congress has not provided with sufficient clarity that the subpoena power granted by § 235 (a) extends over persons who are the subject of denaturalization investigations; therefore Congress is not to be deemed to have done so impliedly. Since this is so, we are not called upon to consider whether Congress may empower an immigration officer to secure evidence, under the authority of a subpoena, from a citizen who is himself the subject of an investigation directed toward his denaturalization. The judgment in No. 35 is affirmed; in No. 47, the judgment is reversed.
Affirmed and reversed respectively.
Section 235 (a) in full provides: “The inspection, other than the physical and mental examination, of aliens (including alien crewmen) seeking admission or readmission to, or the privilege of passing through the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. Immigration officers are hereby authorized and empowered to board and search any vessel, aircraft, railway car, or other conveyance, or vehicle in which they believe aliens are being brought into the United States. The Attorney General and any immigration officer, including special inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and, where such action may be necessary, to make a written record of such evidence. Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not he intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 212. The Attorney General and any immigration officer, including special inquiry officers, shall have power to require by subpena the attendance and testimony of witnesses before immigration officers and special inquiry officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service, and to that end may invoke the aid of any court of the United States. Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer or special inquiry officer may, in the event of neglect or refusal to respond to a subpena issued under this subsection or refusal to testify before an immigration officer or special inquiry officer, issue an order requiring such persons to appear before an immigration officer or special inquiry officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof.”
Section 340 (a) provides: “It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 310 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.”
8 CFR § 340.11 provides: “Investigation and report. Whenever it appears that any grant of naturalization may have been procured by concealment of a material fact or by wilful misrepresentation, the facts shall be reported to the district director having jurisdiction over the naturalized person’s last known place of residence. If the district director is satisfied that a prima facie showing has been made that grounds for revocation exist, he shall cause an investigation to be made and report the facts in writing to the Commissioner with a recommendation as to whether revocation proceedings should be instituted. If it appears that naturalization was procured in violation of section 1425 of Title 18 of the United States Code, the facts in regard thereto may be presented by the district director to the appropriate United States Attorney for possible criminal prosecution.”
The question whether respondent was required to obey the order of the District Court irrespective of that court’s power under § 235 (a) has not been raised. See United States v. United Mine Workers of America, 330 U. S. 258.
The Court of Appeals for the Fifth Circuit has taken the same view. Lansky et al. v. Savoretti, 220 F. 2d 906.
E. g., § 215 (g): “Passports, visas, reentry permits, and other documents required for entry under this Act may be considered as permits to enter for the purposes of this section.” § 241 (a) (2): “Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who — 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 Act or in violation of any other law of the United States.” § 290 (a): “There shall be established in the office of the Commissioner for the use of the security and enforcement agencies of the Government of the United States, a central index, which shall contain the names of all aliens heretofore admitted to the United States, or excluded therefrom, insofar as such information is available from the existing records of the Service, and the names of all aliens hereafter admitted to the United States, or excluded therefrom, the names of their sponsors of record, if any, and such other relevant information as the Attorney General shall require as an aid to the proper enforcement of this Act.”
E. g., §284: “Nothing contained in this title shall be construed so as to limit, restrict, deny, or affect the coming into or departure from the United States of an alien member of the Armed Forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces: Provided, That nothing contained in this section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under this Act, which are not otherwise specifically granted by this Act.”
“While the Nationality Act [§ 333 (a) of the 1940 Act] provides for subpena of witnesses at a preliminary [naturalization] hearing and for calling of witnesses in any naturalization proceedings in court, specific provision is not made for subpenaing the petitioner. The subcommittee feels that the proposed bill should contain the requirement that the petitioner be required to attend hearings and is so recommending.” S. Rep. No. 1515, 81st Cong., 2d Sess. 739.
Section 236 (a) provides: “A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses.”
Section 242 (b) provides: “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation.”
Section 336 (d) provides: “The Attorney General shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner’s right to admission to citizenship, and shall have the right to call witnesses, including the petitioner, produce evidence, and be heard in opposition to, or in favor of, the granting of any petition in naturalization proceedings.”
|
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"
] |
[
67
] |
MANDOLI v. ACHESON, SECRETARY OF STATE.
No. 15.
Argued October 17, 1952.
Decided November 24, 1952.
Jack Wasserman argued the cause for petitioner. With him on the brief were Gaspare Cusumano and Harry Meisel.
Oscar H. Davis argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg and John R. Wilkins.
Mr. Justice Jackson
delivered the opinion of the Court.
This case presents but a single question, upon which petitioner and the Government are substantially agreed that the judgment of the Court of Appeals should be reversed. Does a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation lose his United States citizenship by foreign residence long continued after attaining his majority?
Petitioner Mandoli was born in this country, of un-naturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law. While he was a suckling, his parents returned to Italy taking him with them. At about the age of fifteen, he sought to come to the United States; but permission was refused by the American Consul at Palermo upon the ground that he was too young to take the journey unaccompanied.
In 1931, Mandoli saw brief service in the Italian army. In 1937, being 29 or 30 years of age, he attempted to come to the United States, but was rejected because of such army service. He renewed the effort in 1944, with the same result. In 1948, he was granted a certificate of identity which permitted him to enter the United States for prosecution of an action to establish his citizenship.
Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, contrary to his contentions, it found that his service in the Italian army was voluntary and that he then took an oath of allegiance to the King of Italy; second, that he continued to reside in Italy after attaining his majority, thereby electing between his dual citizenships in favor of that of Italy.
The Government abandoned the first ground because the Attorney General ruled that such service in the Italian army by one similarly situated could “only be regarded as having been taken under legal compulsion amounting to duress.” He said, “The choice of taking the oath or violating the law was, for a soldier in the army of Fascist Italy, no choice at all.” The Court of Appeals, however, relying largely on Perkins v. Elg, 307 U. S. 325, affirmed upon the ground that failure to return to the United States upon the attainment of his majority operated to extinguish petitioner’s American citizenship. We conclude that Mandoli has not lost his citizenship.
It would be as easy as it would be unrewarding to point out conflict in precept and confusion in practice on this side of the Atlantic, where ideas of nationality and expatriation were in ferment during the whole Nineteenth Century. Reception of the common law confronted American courts with a doctrine that a national allegiance into which one was born could be renounced only with consent of his sovereign. European rulers, losing subjects (particularly seamen) to the New World, adhered fiercely to the old doctrine. On the other hand, the United States, prospering from the migrant’s freedom of choice, became champion of the individual’s right to expatriate himself, for which it contended in diplomacy and fought by land and by sea. However, this personal freedom of expatriation was not always recognized by our own courts, because of their deference to common-law precedent. Finally, Congress, by the Act of July 27, 1868, declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness” and that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”
But this statute left unanswered many questions as to the overt acts that would effect a voluntary expatriation by our own citizens or would cause an involuntary forfeiture of citizenship. Prior to 1907, courts and administrators were left to devise their own answers.
Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship board. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of persons with dual citizenship. This board recommended that Congress follow what it assumed to be established de-cisional law and enact, among other things, that expatriation be assumed as to any citizen who became domiciled in a foreign state, with a rebuttable presumption of foreign domicile from five years of residence in a foreign state. This was proposed as to all citizens and not merely those possessing dual citizenship. Congress, however, instead of accepting this broad doctrine of expatriation, by the Expatriation Act of 1907 limited the presumption of expatriation from foreign residence to the case of naturalized but not of native-born citizens.
If petitioner, when he became of full age in 1928, were under a statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship, that duty must result from the 1907 Act then applicable. In the light of the foregoing history, we can find no such obligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.
The Nationality Act of 1940, though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill. This disagreement between the Departments was called to the attention of the Congress. While in some other respects Congress enlarged the grounds for loss of nationality, it refused to require a citizen by nativity to elect between dual citizenships upon reaching a majority.
The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins v. Elg, supra, had declared it to be the law. Miss Elg was American-born, of naturalized parents Swedish in origin. They took her to Sweden when she was but four years old, where she remained during her nonage. By virtue of a Swedish-American Treaty of 1869, this resumption of residence in Sweden repatriated the parents, which carried with it Swedish citizenship for their minor child. Under the Act of 1907, any American citizen is deemed expatriated if naturalized in a foreign state in conformity with its laws. Undoubtedly, Miss Elg had become naturalized under the laws of Sweden. But it was not by any act of her own or within her control, and about eight months after she became twenty-one, she sought and obtained an American passport and returned to this country where she resided for something over five years. American immigration officials then decided that her derivative naturalization had deprived her of American citizenship and put their harsh and technical doctrine to test by instituting proceedings to deport her. That case did not present and the Court could not properly have decided any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here. What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.
We find no warrant in the statutes for concluding that petitioner has suffered expatriation. And, since Congress has prescribed a law for this situation, we think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate. The judgment of the Court of Appeals should be reversed, with directions to remand the case to the District Court for the entry of an order declaring that the petitioner is a citizen of the United States.
Reversed and so ordered.
Certiorari was granted without opposition, 343 U. S. 976.
D. C. opinion not reported.
41 Op. Atty. Gen., Op. No. 16.
90 U. S. App. D. C. 1121, 193 F. 2d 920.
15 Stat. 223, 8 U. S. C. § 800.
H. R. Doc. No. 326, 59th Cong., 2d Sess., p. 23; see also 74, 79, 160 et seq.
34 Stat. 1228.
Administrative practice, when involving protections abroad, involves very different policy considerations and is not controlling here. However, while not always consistent, it seems to have settled to the rule we apply in this case. 3 Hackworth, Digest of International Law, 371; see also Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col. L. Rev. 840, 854.
8 U. S. C., c. 11.
See Hearings before House of Representatives Committee on Immigration and Naturalization on H. R. 9980, 76th Cong., 1st Sess., p. 32.
See also § 350 of Pub. L. No. 414, 82d Cong., 2d Sess., 66 Stat. 163, 269.
The question of whether the statutory grounds under the 1940 Act exclude other acts that will amount to voluntary expatriation was reserved in Kawakita v. United States, 343 U. S. 717, 730-732. It is not present in this case.
|
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"
] |
[
27
] |
SARNO et al. V. ILLINOIS CRIME INVESTIGATING COMMISSION
No. 70-7.
Argued January 11, 1972
Decided May 22, 1972
Frank G. Whalen argued the cause and filed a brief for petitioners.
Joel M. Flaum, First Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Soott, Attorney General, and Jayne A. Carr, Assistant Attorney General.
Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Per Curiam.
Petitioners were ordered to testify before the Illinois Crime Investigating Commission under a grant of immunity conferred pursuant to Ill. Rev. Stat., c. 38, § 203— 14 (1969). The occasion for granting the writ in this case was to consider whether Illinois must demonstrate to petitioners, prior to an adjudication for contempt for refusal to answer the Commission’s questions, that immunity as broad in scope as the protection of the privilege against self-incrimination is available and applicable to them. 401 U. S. 935 (1971). The writ was granted in light of petitioners’ claim that the statute did not provide complete transactional immunity. On the same day that the writ was granted, probable jurisdiction was noted in Zicarelli v. New Jersey State Commission of Investigation, 401 U. S. 933 (1971), to resolve the question whether a State can compel testimony from an unwilling witness, who invokes the privilege against self-incrimination, by granting immunity from use and derivative use of the compelled testimony, or whether transactional immunity is required.
We held today in Kastigar- v. United States, ante, p. 441, and in Zicarelli v. New Jersey State Commission of Investigation, ante, p. 472, that testimony may be compelled from an unwilling witness over a claim of the privilege against self-incrimination by a grant of use and derivative use immunity. The premise of petitioners’ arguments is that transactional immunity is required. They say that Illinois failed to demonstrate satisfactorily that transactional immunity was provided, but they do not contend that the Illinois immunity statute affords pro-téetion less comprehensive than use and derivative use immunity. Respondent asserts that the statute affords complete transactional immunity, reflecting a long-standing Illinois policy of providing immunity greater than that required by the United States Constitution. Since neither party contends that the scope of the immunity provided by the Illinois statute falls below the constitutional requirement set forth in Kastigar, we conclude that any uncertainty regarding the scope of protection in excess of the constitutional requirement should best be left to the courts of Illinois. Accordingly, the writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Mr. Justice Brennan and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Mr. Justice Douglas dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 462.
Mr. Justice Marshall dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 467.
|
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
] |
BOARD OF LICENSE COMMISSIONERS OF THE TOWN OF TIVERTON v. PASTORE, LIQUOR CONTROL ADMINISTRATOR OF RHODE ISLAND, et al.
No. 83-963.
Argued November 27, 1984
Decided January 8, 1985
Kathleen Managhan argued the cause for petitioner. With her on the brief was Patrick O’N. Hayes, Jr.
John H. Hines, Jr., argued the cause and filed a brief for respondents.
Per Curiam.
We granted certiorari in this case, 468 U. S. 1216 (1984), to decide whether the Fourth Amendment exclusionary rule applies in civil liquor license revocation hearings. Some state courts have held that the exclusionary rule applies. See New York State Liquor Authority v. Finn’s Liquor Shop Inc., 24 N. Y. 2d 647, 249 N. E. 2d 440, cert. denied, 396 U. S. 840 (1969); Pennsylvania Liquor Control Board v. Leonardziak, 210 Pa. Super. 511, 233 A. 2d 606 (1967) (exclusionary rule applies in Liquor Control Board proceeding in which Board imposed fine, but could also have revoked license). Illinois, on the other hand, admits evidence obtained during a search pursuant to an invalid warrant on the reasoning that the State can and does require consent to a warrantless search as a prerequisite to the issuance of a liquor license. Daley v. Berzanskis, 47 Ill. 2d 395, 269 N. E. 2d 716 (1971).
In proceedings below, the Tiverton Board of License Commissioners had considered evidence obtained during a search of the Attic Lounge, a local liquor-serving establishment, in deciding to revoke its license. A Rhode Island judge in related criminal proceedings subsequently ruled that the evidence had been obtained in violation of the Fourth Amendment. Rhode Island v. Benoit, No. N2/77-51 (Super. Ct. Newport Cty., R. L, Jan. 16, 1978). The Attic Lounge then argued that evidence obtained in violation of the Fourth Amendment could not be admitted in a civil hearing to revoke its liquor license. The Rhode Island Liquor Control Administrator reversed the decision of the Tiverton Commissioners on unrelated grounds, and directed that the license be reinstated. After losing an appeal to the State Superior Court, Civ. Action No. 78-2659 (Super. Ct., Providence Cty., R. L, Aug. 6, 1980), the Tiverton Commissioners obtained review in the Rhode Island Supreme Court through a petition for certiorari naming both the Attic Lounge and the Liquor Control Administrator as respondents. The Rhode Island Supreme Court held that the exclusionary rule applies to liquor license revocation hearings. 463 A. 2d 161 (1983).
After this Court issued a writ of certiorari to the Rhode Island Supreme Court, considered briefs on the merits, and commenced oral argument, we learned that the Attic Lounge has gone out of business. Counsel for both the Tiverton Board of License Commissioners and the respondent Liquor Control Administrator stated at oral argument that no decision on the merits by this Court can now have an effect on the Attic Lounge’s liquor license. Tr. of Oral Arg. 28, 31. The case is therefore moot. At oral argument counsel discussed some circumstances under which a decision on the merits by this Court might conceivably affect substantive rights of interested parties. But as the Court noted in DeFunis v. Odegaard, 416 U. S. 312, 320, n. 5 (1974):
“ ‘[S]uch speculative contingencies afford no basis for our passing on the substantive issues [the petitioner] would have us decide,’ Hall v. Beals, 396 U. S. 45, 49 (1969), in the absence of ‘evidence that this is a prospect of immediacy and reality.’ Golden v. Zwickler, 394 U. S. 103, 109 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).”
It is appropriate to remind counsel that they have a “continuing duty to inform the Court of any development which may conceivably affect the outcome” of the litigation. Fusari v. Steinberg, 419 U. S. 379, 391 (1975) (Burger, C. J., concurring). When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court’s Rules 34.1(g) (petitioner’s statement of the case shall contain all that is material to the issues); 34.2 (respondent’s brief may correct any omission from petitioner’s statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).
The writ of certiorari is dismissed as moot.
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?
|
[
"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
] |
TOUCHE ROSS & CO. v. REDINGTON, TRUSTEE, et al.
No. 78-309.
Argued March 26, 1979
Decided June 18, 1979
Rehnqttist, J., delivered the opinion of the Court, in which BtjRGER, C. J., and BkenNAN, Stewakt, White, Blackmtjn, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 579. Marshall, J., filed a dissenting opinion, post, p. 580. Powell, J., took no part in the consideration or decision of the case.
Arnold I. Roth argued the cause for petitioner. With him on the briefs were Arthur 8. Linker and Barry 8. Berger.
Philip R. Forlenza argued the cause for respondent Securities Investor Protection Corp. With him on the brief were Wilfred R. Caron and Rafael Pastor. James B. Kobak, Jr., argued the cause for respondent Redington. With him on the brief was John W. Schwartz.
Kenneth J. Bialkin and Louis A. Craco filed a brief for the American Institute of Certified Public Accountants as amicus curiae urging reversal.
Me. Justice Retinquist
delivered the opinion of the Court.
Once again, we are called upon to decide whether a private remedy is implicit in a statute not expressly providing one. During this Term alone, we have been asked to undertake this task no fewer than five times in cases in which we have granted certiorari. Here we decide whether customers of securities brokerage firms that are required to file certain financial reports with regulatory authorities by § 17 (a) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 897, as amended, 15 U. S. C. § 78q (a), have an implied cause of action for damages under § 17 (a) against accountants who audit such reports, based on misstatements contained in the reports.
I
Petitioner Touche Ross & Co. is a firm of certified public accountants. Weis Securities, Inc. (Weis), a securities brokerage firm registered as a broker-dealer with the Securities and Exchange Commission (Commission) and a member of the New York Stock Exchange (Exchange), retained Touche Ross to serve as Weis’ independent certified public accountant from 1969 to 1973. In this capacity, Touche Ross conducted audits of Weis’ books and records and prepared for filing with the Commission the annual reports of financial condition required by § 17 (a) of the 1934 Act, 15 U. S. C. § 78q (a), and the rules and regulations adopted thereunder. 17 CFR § 240.17a-5 (1972) . Touche Ross also prepared for Weis responses to financial questionnaires required by the Exchange of its member firms.
This case arises out of the insolvency and liquidation of Weis. In 1973, the Commission and the Exchange learned of Weis’ precarious financial condition and of possible violations of the 1934 Act by Weis and its officers. In May 1973, the Commission sought and was granted an injunction barring Weis and five of its officers from conducting business in violation of the 1934 Act. At the same time, the Securities Investor Protection Corporation (SIPC), pursuant to statutory authority, applied in the United States District Court for the Southern District of New York for a decree adjudging that Weis’ customers were in need of the protection afforded by the Securities Investor Protection Act of 1970 (SIPA), 84 Stat. 1636, 15 U. S. C. § 78aaa et seq. The District Court granted the requested decree and appointed respondent Red-ington (Trustee) to act as trustee in the liquidation of the Weis business under SIPA.
During the liquidation, Weis’ cash and securities on hand appeared to be insufficient to make whole those customers who had left assets or deposits with Weis. Accordingly, pursuant to SIPA, SIPC advanced the Trustee $14 million to satisfy, up to specified statutory limits, the claims of the approximately 34,000 Weis customers and certain other creditors of Weis. Despite the advance of $14 million by SIPC, there apparently remain several million dollars of unsatisfied customer claims.
In 1976, SIPC and the Trustee filed this action for damages against Touche Ross in the District Court for the Southern District of New York. The “common allegations” of the complaint, which at this stage of the case we must accept as true, aver that certain of Weis’ officers conspired to conceal substantial operating losses during its 1972 fiscal year by falsifying financial reports required to be filed with regulatory authorities pursuant to § 17 (a) of the 1934 Act. App. 8. SIPC and the Trustee seek to impose liability upon Touche Ross by reason of its allegedly improper audit and certification of the 1972 Weis financial statements and preparation of answers to the Exchange financial questionnaire. Id., at 15-19. The complaint alleges that because of its improper conduct, Touche Ross breached duties that it owed SIPC, the Trustee, and others under the common law, § 17 (a) and the regulations thereunder, and that Touche Ross’ alleged dereliction prevented Weis’ true financial condition from becoming known until it was too late to take remedial action to forestall liquidation or to lessen the adverse financial consequences of such a liquidation to the Weis customers. App. 8-9. The Trustee seeks to recover $51 million on behalf of Weis in its own right and on behalf of the customers of Weis whose property the Trustee was unable to return. SIPC claims $14 million, either as subrogee of Weis’ customers whose claims it has paid under SIPA or in its own right. The federal claims are based on § 17 (a) of the 1934 Act; the complaint also alleges several state common-law causes of action based on accountants’ negligence, breach of contract, and breach of warranty.
The District Court dismissed the complaint, holding that no claim for relief was stated because no private cause of action could be implied from § 17 (a). 428 P. Supp. 483 (SDNY 1977). A divided panel of the Second Circuit reversed. 592 F. 2d 617 (1978). The court first found that § 17 (a) imposes a duty on accountants. 592 F. 2d, at 621. It next concluded, based on the factors set forth in Cort v. Ash, 422 U. S. 66, 78 (1975), that an accountant’s breach of his § 17 (a) duty gives rise to an implied private right of action for damages in favor of a broker-dealer’s customers, even though it acknowledged that the “legislative history of the section is mute on the issue.” 592 F. 2d, at 622. The court held that SIPC and the Trustee could assert this implied cause of action on behalf of the Weis customers. We granted certiorari, 439 U. S. 979 (1978), and we now reverse.
II
The question of the existence of a statutory cause of action is, of course, one of statutory construction. Cannon v. University of Chicago, 441 U. S. 677, 688 (1979); see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453, 458 (1974) (hereinafter Amtrak). SIPC’s argument in favor of implication of a private right of action based on tort principles, therefore, is entirely misplaced. Brief for Respondent SIPC 22-23. As we recently have emphasized, “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. University of Chicago, supra, at 688. Instead, our task is limited solely to determining whether Congress intended to create the private right of action asserted by SIPC and the Trustee. And as with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself. Cannon v. University of Chicago, supra, at 689; Teamsters v. Daniel, 439 U. S. 551, 558 (1979); Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 472 (1977); Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 24 (1977); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 197 (1976).
At the time pertinent to the case before us, § 17 (a) read, in relevant part, as follows:
“Every national securities exchange, every member thereof, .. . and every broker or dealer registered pursuant to . . . this title, shall make, keep, and preserve for such periods, such accounts, correspondence, . . . and other records, and make such reports, as the Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. § 78q (a) (1970 ed.).
In terms, § 17 (a) simply requires broker-dealers and others to keep such records and file such reports as the Commission may prescribe. It does not, by its terms, purport to create a private cause of action in favor of anyone. It is true that in the past our cases have held that in certain circumstances a private right of action may be implied in a statute not expressly providing one. But in those cases finding such implied private remedies, the statute in question at least prohibited certain conduct or created federal rights in favor of private parties. E. g., Cannon v. University of Chicago, supra (20 U. S. C. §1681); Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975) (42 U. S. C. § 1981); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6 (1971) (15 U. S. C. § 78j (b)); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (42 U. S. C. § 1982); Allen v. State Board of Elections, 393 U. S. 544 (1969) (42 U. S. C. § 1973c); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968) (42 U. S. C. § 1982); J. I. Case Co. v. Borak, 377 U. S. 426 (1964) (15 U. S. C. § 78n (a)). By contrast, § 17 (a) neither confers rights on private parties nor proscribes any conduct as unlawful.
The intent of § 17 (a) is evident from its face. Section 17 (a) is like provisions in countless other statutes that simply require certain regulated businesses to keep records and file periodic reports to enable the relevant governmental authorities to perform their regulatory functions. The reports and records provide the regulatory authorities with the necessary information to oversee compliance with and enforce the various statutes and regulations with which they are concerned. In this case, the § 17 (a) reports, along with inspections and other information, enable the Commission and the Exchange to ensure compliance with the “net capital rule,” the principal regulatory tool by which the Commission and the Exchange monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers. The information contained in the § 17 (a) reports is intended to provide the Commission, the Exchange, and other authorities with a sufficiently early warning to enable them to take appropriate action to protect investors before the financial collapse of the particular broker-dealer involved. But § 17 (a) does not by any stretch of its language purport to confer private damages rights or, indeed, any remedy in the event the regulatory authorities are unsuccessful in achieving their objectives and the broker becomes insolvent before corrective steps can be taken. By its terms, § 17 (a) is forward-looking, not retrospective; it seeks to forestall insolvency, not to provide recompense after it has occurred. In short, there is no basis in the language of § 17 (a) for inferring that a civil cause of action for damages lay in favor of anyone. Cort v. Ash, 422 U. S., at 79.
As the Court of Appeals recognized, the legislative history of the 1934 Act is entirely silent on the question whether a private right of action for damages should or should not be available under § 17 (a) in the circumstances of this case. 592 F. 2d, at 622. SIPC and the Trustee nevertheless argue that because Congress did not express an intent to deny a private cause of action under § 17 (a), this Court should infer one. But implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 64 (1978). And 'where, as here, the plain language of the provision weighs against implication of a private remedy, the fact that there is no suggestion whatsoever in the legislative history that § 17 (a) may give rise to suits for damages reinforces our decision not to find such a right of action implicit within the section. See Cort v. Ash, supra, at 82-84; cf. Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 (1975); Amtrak, 414 U. S. 453 (1974); T. I. M. E. Inc. v. United States, 359 U. S. 464 (1959).
Further justification for our decision not to imply the private remedy that SIPC and the Trustee seek to establish may be found in the statutory scheme of which § 17 (a) is a part. First, § 17 (a) is flanked by provisions of the 1934 Act that explicitly grant private causes of action. § 16 (b), 15 U. S. C. § 78p (b); § 18 (a), 15 U. S. C. § 78r (a). Section 9 (e) of the 1934 Act also expressly provides a private right of action. 15 U. S. C. § 78i (e). See also § 20, 15 U. S. C. § 78t. Obviously, then, when Congress wished to provide' a private damages remedy, it knew how to do so and did so expressly. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 734 (1975); see Amtrak, supra, at 458; T. I. M. E. Inc. v. United States, supra, at 471.
Second, § 18 (a) creates a private cause of action against persons, such as accountants, who “make or cause to be made” materially misleading statements in any reports or other documents filed with the Commission, although the cause of action is limited to persons who, in reliance on the statements, purchased or sold a security whose price was affected by the statements. 15 U. S. C. § 78r (a); see Ernst & Ernst v. Hochfelder, 425 U. S., at 211 n. 31; Blue Chip Stamps v. Manor Drug Stores, supra, at 736. Since SIPC and the Trustee do not allege that the Weis customers purchased or sold securities in reliance on the § 17 (a) reports at issue, they cannot sue Touche Ross under § 18 (a). Instead, their claim is that the Weis customers did not get the enforcement action they would have received if the § 17 (a) reports had been accurate. SIPC and the Trustee argue that § 18 (a) cannot provide the exclusive remedy for misstatements made in § 17 (a) reports because the cause of action created by § 18 (a) is expressly limited to purchasers and sellers. They assert that Congress could not have intended in § 18 (a) to deprive customers, such as those whom they seek to represent, of a cause of action for misstatements contained in § 17 (a) reports.
There is evidence to support the view that § 18 (a) was intended to provide the exclusive remedy for misstatements contained in any reports filed with the Commission, including those filed pursuant to § 17 (a). Certainly, SIPC and the Trustee have pointed to no evidence of a legislative intent to except § 17 (a) reports from § 18 (a)’s purview. Cf. Securities Investor Protection Corp., 421 U. S., at 419-420; Amtrak, 414 U. S., at 458. But we need not decide whether Congress expressly intended § 18 (a) to provide the exclusive remedy for misstatements contained in § 17 (a) reports. For where the principal express civil remedy for misstatements in reports created by Congress contemporaneously with the passage of § 17 (a) is by its terms limited to purchasers and sellers of securities, we are extremely reluctant to imply a cause of action in § 17 (a) that is significantly broader than the remedy that Congress chose to provide. Blue Chip Stamps v. Manor Drug Stores, supra, at 735-736; see Ernst & Ernst v. Hochfelder, supra, at 210; Securities Investor Protection Corp. v. Barbour, supra, at 421-423; Amtrak, supra, at 458; cf. T. I. M. E. Inc. v. United States, 359 U. S., at 471.
SIPC and the Trustee urge, and the Court of Appeals agreed, that the analysis should not stop here. Relying on the factors set forth in Cort v. Ash, 422 U. S., at 78, they assert that we also must consider whether an implied private remedy is necessary to "effectuate the purpose of the section” and whether the cause of action is one traditionally relegated to state law. SIPC and the Trustee contend that implication of a private remedy is essential to the goals of § 17 (a) and that enforcement of § 17 (a) is properly a matter of federal, not state, concern. Brief for Respondent Redington 30 — 35; Brief for Respondent SIPC 42-52. We need not reach the merits of the arguments concerning the “necessity” of implying a private remedy and the proper forum for enforcement of the rights asserted by SIPC and the Trustee, for we believe such inquiries have little relevance to the decision of this case. It is true that in Cort v. Ash, the Court set forth four factors that it considered “relevant” in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose, see 422 U. S., at 78 — are ones traditionally relied upon in determining legislative intent. Here, the statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful. And the parties as well as the Court of Appeals agree that the legislative history of the 1934 Act simply does not speak to the issue of private remedies under § 17 (a). At least in such a case as this, the inquiry ends there: The question whether Congress, either expressly or by implication, intended to create a private right of action, has been definitely answered in the negative.
Finally, SIPA and the Trustee argue that our decision in J. I. Case Co. v. Borak, 377 U. S. 426 (1964), requires implication of a private cause of action under § 17 (a). In Borak, the Court found in § 14 (a) of the 1934 Act, 15 U. S. C. § 78n (a), an implied cause of action for damages in favor of shareholders for losses resulting from deceptive proxy solicitations in violation of § 14 (a). SIPC and the Trustee emphasize language in Borak that discusses the remedial purposes of the 1934 Act and § 27 of the Act, which, inter alia, grants to federal district courts the exclusive jurisdiction of violations of the Act and suits to enforce any liability or duty created by the Act or the rules and regulations thereunder. They argue that Touche Ross has breached its duties under § 17 (a) and the rules adopted thereunder and that in view of § 27 and of the remedial purposes of the 1934 Act, federal courts should provide a damages remedy for the breach.
The reliance of SIPC and the Trustee on § 27 is misplaced. Section 27 grants jurisdiction to the federal courts and provides for venue and service of process. It creates no cause of action of its own force and effect; it imposes no liabilities. The source of plaintiffs’ rights must be found, if at all, in the substantive provisions of the 1934 Act which they seek to enforce, not in the jurisdictional provision. See Securities Investor Protection Corp. v. Barbour, 421 U. S., at 424. The Court in Borak found a private cause of action implicit in § 14 (a). See Cannon v. University of Chicago, 441 U. S., at 690-693, n. 13; Piper v. Chris-Craft Industries, Inc., 430 U. S. at 25; Allen v. State Board of Elections, 393 U. S., at 557. We do not now question the actual holding of that case, but we decline to read the opinion so broadly that virtually every provision of the securities Acts gives rise to an implied private cause of action. E. g., Piper v. Chris-Craft Industries, Inc., supra.
The invocation of the “remedial purposes” of the 1934 Act is similarly unavailing. Only last Term, we emphasized that generalized references to the “remedial purposes” of the 1934 Act will not justify reading a provision “more broadly than its language and the statutory scheme reasonably permit.” SEC v. Sloan, 436 U. S. 103, 116 (1978); see Ernst & Ernst v. Hochfelder, 425 U. S., at 200. Certainly, the mere fact that § 17 (a) was designed to provide protection for brokers’ customers does not require the implication of a private damages action in their behalf. Cannon v. University of Chicago, supra, at 688, and n. 9; Securities Investor Projection Corp. v. Barbour, supra, at 421. To the extent our analysis in today’s decision differs from that of the Court in Borah, it suffices to say that in a series of cases since Borah we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today. Cannon v. University of Chicago, supra, at 688-709. The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.
III
SIPC and the Trustee contend that the result we reach sanctions injustice. But even if that were the case, the argument is made in the wrong forum, for we are not at liberty to legislate. If there is to be a federal damages remedy under these circumstances, Congress must provide it. “[I]t is not for us to fill any hiatus Congress has left in this area.” Wheeldin v. Wheeler, 373 U. S. 647, 652 (1963). Obviously, nothing we have said prevents Congress from creating a private right of action on behalf of brokerage firm customers for losses arising from misstatements contained in § 17 (a) reports. But if Congress intends those customers to have such a federal right of action, it is well aware of how it may effectuate that intent.
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.
Mr. Justice Powell took no part in the consideration or decision of this case.
See, in addition to the instant case, Chrysler Corp. v. Brown, 441 U. S. 281 (1979); Cannon v. University of Chicago, 441 U. S. 677 (1979); Southeastern Community College v. Davis, ante, p. 397; Transamerica Mortgage Advisers, Inc. v. Lewis, No. 77-1645, cert. granted, 439 U. S. 952 (1978).
In 1972, the date relevant to the instant case, § 17 (a), as set forth in 15 U. S. C. § 78q (a) (1970 ed.), read as follows:
“(a) Every national securities exchange, every member thereof, every broker or dealer who transacts a business in securities through the medium of any such member, every registered securities association, and every broker or dealer registered pursuant to section 78o of this title, shall make, keep, and preserve for such periods, such accounts, correspondence, memo-randa, papers, books, and other records, and make such reports, as the Commission by its rules and regulation's may prescribe as necessary or appropriate in the public interest or for the protection of investors. Such accounts, correspondence, memoranda, papers, books, and other records shall be subject at any time or from time to time to such reasonable periodic, special, or other examinations by examiners or other representatives of the Commission as the Commission may deem necessary or appropriate in the public interest or for the protection of investors.”
Section 17 of the 1934 Act was substantially amended by the Securities Acts Amendments of 1975. § 14, 89 Stat. 137. The present § 17 (a) (1) contains essentially the same language as the first sentence of the 1972 version of §17 (a). Compare 15 U. S. C. § 78q (a) (1970 ed.) with 15 U. S. C. §78q (a)(1) (1976 ed.).
In Ernst & Ernst v. Hochfelder, 425 U. S. 185, 194 n. 13 (1976), we reserved decision on the question whether the respondents in that case could assert a private cause of action against Ernst & Ernst under § 17 (a).
At the time Touche Ross performed auditing services for Weis, Commission Rule 17a-5 required Weis to file an annual report of its financial condition, including a certificate by an independent public accountant stating “clearly the opinion of the accountant with respect to the financial statement covered by the certificate and the accounting principles and practices reflected therein.” 17 CFR §§ 240.17a-5 (a), (h) (1972). See also SEC Release No. 3338 (Nov. 28, 1942), X-17A-5. The Rule also required the accountant’s certificate to contain a “reasonably comprehensive statement as to the scope of the audit made, including a statement as to whether the accountant reviewed the procedures followed for safeguarding the securities of customers, . . . whether the audit was made in accordance with generally accepted auditing standards applicable in the circumstances; and . . . whether the audit made omitted any procedure deemed necessary by the accountant under the circumstances of the particular case.” 17 CFR § 240.17a — 5 (g) (2) (1972). Nothing in the Rule was to be interpreted to imply authority to omit any procedure the accountant ordinarily would employ in the course of an audit made for the purpose of expressing the opinions required by the Rule. § 240.17a-5 (g) (3). Weis was required to attach an oath or affirmation to the report that the financial statements were true and correct. § 240.17a-5 (b) (2). The Commission has amended Rule 17a-5 since 1972. See 17 CFR § 240-17a-5 (1978).
Some months later, several of Weis’ officers were indicted, in part, for a conspiracy to violate and a number of substantive violations of the recordkeeping and reporting regulations adopted by the Commission under § 17 (a). United States v. Levine, 73 Crim. 693 (SDNY); see United States v. Solomon, 509 F. 2d 863, 865 (CA2 1975). Four of the defendants pleaded guilty to at least one substantive count; the other was found guilty of one substantive count. Ibid.
SIPC is a nonprofit organization of securities dealers established by Congress in 1970 in the Securities Investor Protection Act. 15 U. S. C. § 78ccc. SIPC maintains a fund, supported by assessments of its members, which is used to compensate, up to specified limits, customers of brokerage firms who incur losses as a result of broker insolvencies. §§ 78ddd, 78fff (f). If SIPC determines that a member has failed or is in danger of failing to meet its obligations to customers and finds any one of five specified conditions indicating possible financial instability, it may apply to a court of competent jurisdiction for a decree adjudicating that the customers of such member are in need of the protection afforded by the Act. § 78eee (a) (2). SIPA also provides procedures for the liquidation of brokerage firms when required. § 78fff. See generally Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 415-418 (1975).
At the time Weis was liquidated, property on hand permitted the Trustee to return to the Weis customers 67% of the property they should have received. 592 P. 2d 617, 620 n. 6 (CA2 1978). Subsequent marshaling of assets and recoveries in other litigation apparently have reduced the amount of the deficit in the fund of customer property. Brief for Respondent Redington 10 n. 5. The Weis customer accounts were protected by SIPA up to a maximum of $50,000 for each customer, except that cash claims were limited to $20,000. 15 U. S. C. § 78fff (f).
Approximately one year prior to institution of this action in federal court, SIPC and the Trustee commenced a nearly identical suit against Touche Ross in New York state court. Redington v. Touche Ross & Co., Index No. 13996/76 (N. Y. S. Ct., N. Y. County). The parties, factual allegations, claims, and requests for damages are the same in the state-court action as they are in the federal suit, except that there is no claim in the state-court action under § 17 (a). Touche Ross has begun discovery in the state-court action, but otherwise it has remained virtually inactive since the filing of the complaint. 592 F. 2d, at 620 n. 7.
In the District Court’s view, § 17 (a) was essentially a bookkeeping provision. By its terms, it did not impose any duty on accountants and did not “create any rights in anybody.” 428 F. Supp., at 489, 491. By contrast, the court noted that § 18 (a) of the 1934 Act, 15 U. S. C. § 78r (a), did create an express private right of action for damages arising from materially misleading statements in any report filed pursuant to the 1934 Act in favor of any person who, in reliance on the statements, purchased or sold a security whose price was affected by the statements. See n. 12, infra. SIPC and the Trustee could not sue under § 18 (a) because neither they nor Weis’ customers had bought or sold stock in reliance on the reports Touche Ross had prepared and certified. In view of § 18 (a), the court declined to infer a private right of action under § 17 (a) broader than the express remedy Congress had created in the very next section of the Act. The court concluded that the subject matter, titles, and juxtaposition of the two sections “strongly suggest a legislative intent that the only private claim for a violation of Section 17 was the claim created in Section 18.” 428 F. Supp., at 489.
The District Court also held that since the § 17 (a) claim should be dismissed, there was no basis for exercising pendent jurisdiction over the common-law claims, and that there was no other basis for exercising subject-matter jurisdiction over the common-law claims. 428 F. Supp., at 492-493. None of these latter rulings are before us.
The court rejected the District Court’s conclusion that § 18 (a) was intended to be the exclusive remedy for violation of § 17 (a). Because, in the court’s view, it was plain that brokers’ customers were the “favored wards” of § 17 (a), it could not agree that “Congress simultaneously sought to protect a class and deprived the class [by virtue of § 18’s limiting language] of the means of protection.” 592 F. 2d, at 623. The court held that the Trustee could assert the § 17 (a) action on behalf of the Weis customers as “bailee” of the customer property that he was unable to return, and that SIPC could sue on behalf of the customers as “subrogee” of the customers whose claims it had paid. 592 F. 2d, at 624-625. The court also held that the Trustee could not maintain the § 17 (a) action in its own right, and it reserved decision on whether “SIPC could ever have a claim for damages other than on behalf of a broker’s customers.” 592 F. 2d, at 624, and n. 13. The court remanded the case to the District Court for consideration of whether to exercise pendent jurisdiction over the state actions in light of the Court of Appeals’ ruling on § 17 (a) and whether to stay the federal action pending determination of the state action. 592 F. 2d, at 619 n. 3, 625. Since we hold that the Court of Appeals wrongly implied a private federal claim under § 17 (a), it is unnecessary to reach these other' rulings by the Court of Appeals.
See, e. g., Study of Unsafe and Unsound Practices of Brokers and Dealers, Report and Recommendations of the Securities and Exchange Commission, H. R. Doc. No. 92-231, pp. 7-8, 15, 22, 24 (1971); Exchange Act Release No. 11497 (1975); National Assn, of Securities Dealers, Inc., 12 S. E. C. 322, 329 n. 9 (1942). The net capital rule requires a broker to maintain a certain minimum ratio of net capital to aggregate indebtedness so that the broker’s assets will always be sufficiently liquid to enable him to meet all of his current obligations. See 15 U. S. C. § 78o- (c) (3) ; 17 CFR § 240.15c3-l (1978).
A number of provisions of the 1934 Act provide the Commission with the authority needed to enforce the reporting requirements of § 17 (a) and the rules adopted thereunder. E. g., § 15 (b) (4), 15 U. S. C. § 78o (b) (4) (authorizes institution of administrative proceedings and imposition of sanctions against brokers for, inter alia, materially misleading statements in reports or applications required to be filed with the Commission); § 21, 15 U. S. C. § 78u (allows Commission to investigate and enjoin violations and to refer violations to the Attorney General for possible prosecution); § 32, 15 U. S. C. § 78ff (authorizes criminal sanctions for violations of statute and rules and for materially misleading statements in reports or documents required to be filed by the statute or rules); see n. 4, supra.
What legislative history there is of § 17 (a) simply confirms our belief that § 17 (a) was intended solely to be an integral part of a system of preventative reporting and monitoring, and not to provide remedies to customers for losses after liquidation. S. Rep. No. 792, 73d Cong., 2d Sess., 13, 21 (1934); H. R. Rep. No. 1383, 73d Cong., 2d Sess., 25 (1934); Hearing on H. R. 7852 et al. before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 22, 225-226 (1934). See also S. Rep. No. 94-75, p. 119 (1975) (legislative history of the 1975 amendments to §17).
Section 18 (a), as set forth in 15 TJ. S. C. § 78r (a), provides:
“Liability for misleading statements
“(a) Any person who shall make* or cause to be made any statement in any application, report, or document filed pursuant to this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 78o of this title, which statement was at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable to any person (not knowing that such statement was false or misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by such statement, for damages caused by such reliance, unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading. A person seeking to enforce such liability may sue at law or in equity in any court of competent jurisdiction. In any such suit the court may, in its discretion, require an undertaking for the payment of the costs of such suit, and assess reasonable costs, including reasonable attorneys’ fees, against either party litigant.”
In another action arising out of the Weis financial collapse, the District Court has sustained a § 18 (a) claim against Touche Ross by a bank that allegedly purchased securities of Weis in reliance upon the § 17 (a) reports involved in this case. Exchange National Bank v. Touche Ross & Co., 75 Civ. 916 (SDNY); see 592 F. 2d, at 631 n. 5 (Mulligan, J., dissenting). And in a case related to the instant case, the customers of Weis brought a class action against Touche Ross under § 18 (a), claiming, inter alia, that Touche Ross violated Commission Rule 17a-5, 17 CFR §240.17a-5 (1972). The District Court in that ease dismissed the complaint on the ground that the plaintiffs did not meet the purchaser-seller requirement of § 18 (a) and thus could not maintain an action under that section. Rich v. Touche Ross & Co., 415 F. Supp. 95, 102-104 (SDNY 1976). We express no view as to the correctness of either of these rulings.
For example, the complaint alleges:
“Weis’ 1973 forced liquidation under [SIPA] would not have become necessary, and most if not all of Weis’ assets and its good will as a going concern could have been preserved by a number of means including [infusion of capital or merger with another firm] .... Moreover, if a liquidation of Weis had become necessary as the result of . . . truthful reporting, such liquidation could have occurred at the end of Weis’ 1972 fiscal year, when its assets were greater and the aggregate of its liabilities was lower than a year later.” App. 8-9.
For example, Senator Fletcher in introducing the bill that formed the basis for the 1934 Act, stated that “Section [18] imposes civil liability for false or misleading statements in any of the reports or records required under this act.” 78 Cong. Rec. 2271 (1934) (emphasis added). Richard Whitney, President of the New York Stock Exchange, testified at length regarding the 1934 Act proposals. In testimony before the Senate Committee on Banicing and Currency, he indicated his understanding that § 18 (a) liability extended to “persons transacting business in securities.” Hearings on S. Res. 84 et al. before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., pt. 15, p. 6638 (1934).
Touche Ross insists that the existence of SIPA also is relevant to the question whether to imply a private right of action in § 17 (a). Congress specifically enacted SIPA in 1970 to afford customers of broker-dealers, such as Weis’ customers, protection against losses they might incur as a result of the financial failure of their broker-dealer. SIPA established a comprehensive plan of insurance for customers of brokerage firms. See n. 5, swpra. And recently, Congress has increased the amounts by which customer accounts are insured to $40,000 for cash claims and $100,000 for cash and securities claims. Securities Investor Protection Act Amendments of 1978, § 9, 92 Stat. 265, 15 U. S. C. § 78fff-3 (1976 ed., Supp. Ill). Touche Ross asserts that there is no indication in the legislative history of SIPA or its amendments that Congress thought the 1934 Act contained a remedy for customers of insolvent brokerage firms. Brief for Petitioner 62 n. 37; Reply Brief for Petitioner 11-12. It claims that Congress believed it was “ ‘filling a regulatory void’ ” when it passed SIPA. Id., at 12; see S. Rep. No. 91-1218, p. 3 (1970). Given the fact that our task is to discern the intent of Congress when it enacted § 17 (a) in 1934, we doubt the relevance of SIPA to our inquiry. And even if the 91st Congress had believed that there was an implied right of action under § 17 (a), SIPA still would have been.needed to protect customers in situations where there was no fraud or where the fraud was committed only by the broker, who, because of its insolvency, would probably be judgment proof. Accordingly, our decision not to infer a right of action in favor of brokerage customers from § 17 (a) is not influenced by the existence of SIPA.
Section 27, as set forth in 15 XJ. S. C. § 78aa, provides as follows:
“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 exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, and 1292 of Title 28. No costs shall be assessed for or against the Commission in any proceeding under this chapter brought by or against it in the Supreme Court or such other courts.”
SIPC and the Trustee also appear to suggest that the rules adopted under § 17 (a) can themselves provide the source of an implied damages remedy even if § 17 (a) itself cannot. See Brief for Respondent SIPC 27-31; Brief for Respondent Redington 25-35; n. 3, supra. It suffices to say, however, that the language of the statute and not the rules must control. Ernst & Ernst v. Hochfelder, 425 U. S., at 214; Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 472 (1977).
We also have found implicit within § 10 (b) of the 1934 Act a private cause of action for damages. See Superintendent of Insurance v. Bankers Life & Cos. Co., 404 U. S. 6, 13 n. 9 (1971). But we recently have stated that in Superintendent this Court simply explicitly acquiesced in the 25-year-old acceptance by the lower federal courts of an implied action under § 10 (b). Cannon v. University of Chicago, 441 U. S., at 690-693, n. 13; see Ernst & Ernst v. Hochfelder, supra, at 196; Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730 (1975). There is no similar history of longstanding lower-court interpretation in this case. Indeed, only one other court in the 45-year history of the 1934 Act has held that a private cause of action for damages is available under § 17 (a). Hawkins v. Merrill, Lynch, Pierce, Fenner & Beane, 85 F. Supp. 104, 124 (WD Ark. 1949). In Hawkins, a national brokerage firm was held liable for damages under § 17 (a) to a defalcating correspondent’s customers for improperly advising the correspondent, who was found to be controlled by the national firm, to describe its business in such a way as to avoid filing certified financial statements with the Commission under § 17 (a). Citing Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946), the District Court simply stated that violation of any of the provisions of the 1934 Act would give rise to a civil suit for damages on the part of the one injured, and that the defendants did not contend to the contrary. 85 F. Supp., at 121.
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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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] |
[
104
] |
RITA v. UNITED STATES
No. 06-5754.
Argued February 20, 2007
Decided June 21, 2007
Breyek, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Auto, JJ., joined, and in which Scaua and Thomas, JJ., joined as to Part III. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II, post, p. 360. Scaua, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 368. Souter, J., filed a dissenting opinion, post, p. 384.
Thomas N. Cochran argued the cause for petitioner. With him on the briefs were Louis C. Allen III, William C. Ingram, Elizabeth A. Flagg, Jeffrey T. Green, Robert N. Hochman, and Eric A. Shumsky.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Dan Himmelfarb, Matthew D. Roberts, Nina Goodman, and Jeffrey P. Singdahlsen.
Briefs of amici curiae urging reversal were filed for Families Against Mandatory Minimums by Gregory L. Poe, Mary Price, and Peter Goldberger; for Federal Public and Community Defenders et al. by Thomas W. Hülier II, Amy Baron-Evans, Laura E. Mate, and Sara E. Noonan; for the National Association of Criminal Defense Lawyers by Miguel A Estrada, David Debold, and Jeffrey L. Fisher; for the National Veterans Legal Services Program et al. by Louis R. Cohen and Jonathan Nuechterlein; for the New York Council of Defense Lawyers by Alexandra A E. Shapiro and Paul H. Schwartz; for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar; and for Marc L. Miller et al. by Mr. Miller, pro se, Robert B. Fiske, Earl J. Silbert, and Peter Vaira.
Briefs of amici curiae were filed for Law Professors Who Study Sentencing Reform by Edward S. Lee; and for the United States Sentencing Commission by David C. Frederick and Pamela O. Barron.
Justice Breyer
delivered the opinion of the Court.
The federal courts of appeals review federal sentences and set aside those they find “unreasonable.” See, e. g., United States v. Booker, 543 U. S. 220, 261-263 (2005). Several Circuits have held that, when doing so, they will presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence. See, e. g., 177 Fed. Appx. 357, 358 (CA4 2006) (per curiam) (case below); see also United States Sentencing Commission, Guidelines Manual (Nov. 2006) (USSG or Guidelines). The most important question before us is whether the law permits the courts of appeals to use this presumption. We hold that it does.
I
A
The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts kit,’” could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that Inter-Ordnance had not secured proper registrations for the importation of the guns. App. 7, 16-19, 21-22.
Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. Id., at 119-120; Supp. App. 5-8. But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a maehinegun. App. 23-24,120; Supp. App. 2-5,8-10,13-14.
The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. App. 19, 120-121; Supp. App. 11-12. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts. App. 7-13, 94, 103.
B
The parties subsequently proceeded to sentencing. Initially, a probation officer, with the help of the parties, and after investigating the background both of the offenses and of the offender, prepared a presentence report. See Fed. Rules Crim. Proc. 32(c)-(d); 18 U. S. C. § 3552(a). The completed report describes “offense characteristics,” “offender characteristics,” and other matters that might be relevant to the sentence, and then calculates a Guidelines sentence. The report also sets forth factors potentially relevant to a departure from the Guidelines or relevant to the imposition of an other-than-Guidelines sentence. It ultimately makes a sentencing recommendation based on the Guidelines. App. 115-136.
In respect to “offense characteristics,” for example, the report points out that the five counts of conviction all stem from a single incident. Id., at 122. Hence, pursuant to the Guidelines, the report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG § 3B1.1. The single most serious offense in Rita's case is “perjury.” The relevant Guideline, §2J1.3(c)(l), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury ... in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense, §2X3.1. And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense” (emphasis added) (the offense that the perjury may have helped someone commit). Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. App. 124; USSG §2M5.2 (providing sentence for violation of 22 U. S. C. § 2778(b)(2), importation of defense articles without authorization). The base offense level for the gun registration crime is 26. See USSG §2M5.2. Six levels less is 20. And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 45.
The presentence report next considers Rita’s “Criminal History.” Id., at 125. Rita was convicted in May 1986, and sentenced to five years’ probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count against Rita. And because Rita had no other relevant convictions, the Guidelines considered him as having no “criminal history points.” Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines’ sentence.
The report goes on to describe other “Offender Characteristics.” Id., at 126. The description includes Rita’s personal and family data, Rita’s physical condition (including a detailed description of ailments), Rita’s mental and emotional health, the lack of any history of substance abuse, Rita’s vocational and nonvocational education, and Rita’s employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita’s financial condition. Id., at 126-132.
Ultimately, the report calculates the Guidelines sentencing range. Id., at 132. The Guidelines specify for base level 20, criminal history category I, a sentence of 33-to-41 months’ imprisonment. Ibid. The report adds that there “appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines.” Id., at 133.
C
At the sentencing hearing, both Rita and the Government presented their sentencing arguments. Each side addressed the report. Rita argued for a sentence outside (and lower than) the recommended Guidelines 33-to-41 month range.
The judge made clear that Rita's argument for a lower sentence could take either of two forms. First, Rita might argue within the Guidelines’ framework, for a departure from the applicable Guidelines range on the ground that his circumstances present an “atypical case” that falls outside the “heartland” to which the United States Sentencing Commission intends each individual Guideline to apply. USSG § 5K2.0(a)(2). Second, Rita might argue that, independent of the Guidelines, application of the sentencing factors set forth in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV) warrants a lower sentence. See Booker, 543 U. S., at 259-260.
Thus, the judge asked Rita’s counsel, “Are you going to put on evidence to show that [Rita] should be getting a downward departure, or under 3553, your client would be entitled to a different sentence than he should get under sentencing guidelines?” App. 52. And the judge later summarized:
“[Y]ou’re asking for a departure from the guidelines or a sentence under 3553 that is lower than the guidelines, and here are the reasons:
“One, he is a vulnerable defendant because he’s been involved in [government criminal justice] work which has caused people to become convicted criminals who are in prison and there may be retribution against him.
“Two, his military experience ....” Id., at 64-65.
Counsel agreed, while adding that Rita’s poor physical condition constituted a third reason. And counsel said that he rested his claim for a lower sentence on “[j]ust [those] three” special circumstances, “[p]hysical condition, vulnerability in prison and the military service.” Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74-77. The sentencing judge asked questions about each factor.
After hearing the arguments, the judge concluded that he was “unable to find that the [report’s recommended] sentencing guideline range ... is an inappropriate guideline range for that, and under 3553 ... the public needs to be protected if it is true, and I must accept as true the jury verdict.” Id., at 87. The court concluded: “So the Court finds that it is appropriate to enter” a sentence at the bottom of the Guidelines range, namely, a sentence of imprisonment “for a period of 33 months.” Ibid.
D
On appeal, Rita argued that his 33-month sentence was “unreasonable” because (1) it did not adequately take account of “the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with the purposes of sentencing set forth in 18 U. S. C. § 3553(a)(2).” Brief for Appellant in No. 05-4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not “reasonable.” The Circuit stated that “a sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable.” 177 Fed. Appx., at 358 (internal quotation marks and citations omitted). It added that “while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The Fourth Circuit then rejected Rita’s arguments and upheld the sentence. Ibid, (internal quotation marks omitted).
E
Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use of a presumption of reasonableness for within-Guidelines sentences. Compare United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006) (uses presumption); United States v. Green, 436 F. 3d 449, 457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d 551, 554 (CA5 2006) (same); United States v. Williams, 436 F. 3d 706, 708 (CA6 2006) (same); United States v. Mykytiuk, 415 F. 3d 606, 608 (CA7 2005) (same); United States v. Lincoln, 413 F. 3d 716, 717 (CA8 2005) (same); and United States v. Kristl, 437 F. 3d 1050, 1053-1054 (CA10 2006) (per curiam) (same), with United States v. Jimenez-Beltre, 440 F. 3d 514, 518 (CA1 2006) (en banc) (does not use presumption); United States v. Fernandez, 443 F. 3d 19, 27 (CA2 2006) (same); United States v. Cooper, 437 F. 3d 324, 331 (CA3 2006) (same); and United States v. Talley, 431 F. 3d 784, 788 (CA11 2005) (per curiam) (same).
We consequently granted Rita’s petition. We agreed to decide whether a court of appeals may afford a “presumption of reasonableness” to a “within-Guidelines” sentence. We also agreed to decide whether the District Court properly analyzed the relevant sentencing factors and whether, given the record, the District Court’s ultimate choice of a 33-month sentence was “unreasonable.”
II
The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can.
A
For one thing, the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case. Cf., e. g., Raytheon Co. v. Hernandez, 540 U. S. 44, 49-50, n. 3 (2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000), and McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973)). Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge. Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.
Further, the presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV). That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely, (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to “impose a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set out above.
Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U. S. C. § 991(b) indicates that one of the Commission’s basic objectives is to “assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2)].” The provision adds that the Commission must seek to “provide certainty and fairness” in sentencing, to “avoi[d] unwarranted sentencing disparities,” to “maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” and to “reflect, to the extent practicable, [sentencing-relevant] advancement in [the] knowledge of human behavior.” Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U. S. C. §§ 994(f), 994(m).
The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.
The Commission has made a serious, sometimes controversial, effort to carry out this mandate. The Commission, in describing its Guidelines-writing efforts, refers to these same statutory provisions. It says that it has tried to embody in the Guidelines the factors and considerations set forth in § 3553(a). The Commission’s introductory statement recognizes that Congress “foresees guidelines that will further the basic purposes of criminal punishment, i. e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender.” USSG § 1A1.1, intro, to comment., pt. A, ¶2 (The Statutory Mission). It adds that Congress “sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct,” as well as “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.” Id., ¶ 3, at 2 (The Basic Approach).
The Guidelines commentary explains how, despite considerable disagreement within the criminal justice community, the Commission has gone about writing Guidelines that it intends to embody these ends. It says, for example, that the goals of uniformity and proportionality often conflict. The commentary describes the difficulties involved in developing a practical sentencing system that sensibly reconciles the two ends. It adds that a “philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment.” Some would emphasize moral culpability and “just punishment”; others would emphasize the need for “crime control.” Rather than choose among differing practical and philosophical objectives, the Commission took an “empirical approach,” beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. Id., ¶ 3, at 3.
The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill this statutory mandate. They also reflect the fact that different judges (and others) can differ as to how best to reconcile the disparate ends of punishment.
The Commission’s work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual cases, may depart (either pursuant to the Guidelines or, since Booker, by imposing a non-Guidelines sentence). The judges will set forth their reasons. The courts of appeals will determine the reasonableness of the resulting sentence. The Commission will collect and examine the results. In doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others. And it can revise the Guidelines accordingly. See generally 28 U. S. C. § 994(p) and note following § 994 (Commission should review and amend Guidelines as necessary, and Congress has power to revoke or amend Guidelines); Mistretta v. United States, 488 U. S. 361, 393-394 (1989); USSG §1B1.10(c) (listing 24 amendments promulgated in response to evolving sentencing concerns); USSG § 1A1.1, comment.
The result is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.
An individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general. Despite Justice Souter’s fears to the contrary, post, at 390-392 (dissenting opinion), the courts of appeals’ “reasonableness” presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable. Indeed, even the Circuits that have declined to adopt a formal presumption also recognize that a Guidelines sentence will usually be reasonable, because it reflects both the Commission’s and the sentencing court’s judgment as to what is an appropriate sentence for a given offender. See Fernandez, 443 F. 3d, at 27; Cooper, 437 F. 3d, at 331; Talley, 431 F. 3d, at 788.
We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate “reasonableness” review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. 18 U. S. C. § 3552(a); Fed. Rule Crim. Proc. 32. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the “heartland” to which the Commission intends individual Guidelines to apply, USSG §5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless, see Rule 32(f). Thus, the sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(1)(C), and (i)(1)(D); see also Burns v. United States, 501 U. S. 129, 136 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing). In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Booker, 543 U. S., at 259-260.
B
Rita and his supporting amici make two further arguments against use of the presumption. First, Rita points out that many individual Guidelines apply higher sentences in the presence of special facts, for example, brandishing a weapon. In many cases, the sentencing judge, not the jury, will determine the existence of those facts. A pro-Guidelines “presumption of reasonableness” will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences. For that reason, Rita says, the presumption raises Sixth Amendment “concerns.” Brief for Petitioner 28.
In our view, however, the presumption, even if it increases the likelihood that the judge, not the jury, will find “sentencing facts,” does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences. See Cunningham v. California, 549 U. S. 270, 281-282 (2007) (citing Booker, supra, at 243-244; Blakely v. Washington, 542 U. S. 296, 304-305 (2004); Ring v. Arizona, 536 U. S. 584, 602 (2002); and Apprendi v. New Jersey, 530 U. S. 466, 471 (2000)).
The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede). Blakely, supra, at 303-304 (“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority” (internal quotation marks and citation omitted)); see Cunningham, supra, at 283-284 (discussing Blakely) (“The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty,” “[b]ecause the judge in Blakely’s case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range... was the relevant” maximum sentence for Sixth Amendment purposes); Booker, 543 U. S., at 244 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”); id., at 232 (discussing Blakely) (“We rejected the State’s argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence” (emphasis in original)).
A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it prohibit the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption.
Justice Scalia concedes that the Sixth Amendment concerns he foresees are not presented by this case. Post, at 373-374 (opinion concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not “raise a multitude of constitutional problems.” Clark v. Martinez, 543 U. S. 371, 380-381 (2005). Similarly, Justice Scalia agrees that we have never held that “the Sixth Amendment prohibits judges from ever finding any facts” relevant to sentencing. Post, at 373. In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much, 543 U. S., at 260-264. Booker held unconstitutional that portion of the Guidelines that made them mandatory. Id., at 233-234, 243-244. It also recognized that when district courts impose discretionary sentences, which are reviewed under normal appellate principles by courts of appeals, such a sentencing scheme will ordinarily raise no Sixth Amendment concern. Ibid.; see id., at 233 (opinion for the Court by Stevens, J.) (“Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [federal sentencing statute] the provisions that make the Guidelines binding on district judges”). That being so, our opinion in Booker made clear that today’s holding does not violate the Sixth Amendment.
Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. It sought a Guidelines system that would bring about greater fairness in sentencing through increased uniformity. The fact that the presumption might help achieve these congressional goals does not provide cause for holding the presumption unlawful as long as the presumption remains constitutional. And, given our case law, we cannot conclude that the presumption itself violates the Sixth Amendment.
The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable. See Brief for United States 34-35. Several courts of appeals have also rejected a presumption of unreasonableness. See, e. g., United States v. Howard, 454 F. 3d 700, 703 (CA7 2006); United States v. Matheny, 450 F. 3d 633, 642 (CA6 2006); United States v. Myers, 439 F. 3d 415, 417 (CA8 2006); United States v. Moreland, 437 F. 3d 424, 433 (CA4 2006). However, a number of Circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance. See, e. g., United States v. Smith, 445 F. 3d 1, 4 (CA1 2006); Moreland, supra, at 434; United States v. Armendariz, 451 F. 3d 352, 358 (CA5 2006); United States v. Davis, 458 F. 3d 491, 496 (CA6 2006); United States v. Dean, 414 F. 3d 725, 729 (CA7 2005); United States v. Dalton, 404 F. 3d 1029, 1033 (CA8 2005); United States v. Bishop, 469 F. 3d 896, 907 (CA10 2006); United States v. Crisp, 454 F. 3d 1285, 1291-1292 (CA11 2006). We will consider that approach next Term in Gall v. United States, No. 06-7949, cert. granted, post, p. 1113.
Second, Rita and his amici claim that use of a pro-Guidelines presumption on appeal conflicts with Congress’ insistence that sentencing judges apply the factors set forth in 18 U. S. C. § 3553(a) (2000 ed., Supp. IV) (and that the resulting sentence be “sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in that statute). We have explained above, however, why we believe that, where judge and Commission both determine that the Guidelines sentence is an appropriate sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its “not greater than necessary” requirement). See supra, at 348. This circumstance alleviates any serious general conflict between § 3553(a) and the Guidelines, for the purposes of appellate review. And, for that reason, we find that nothing in § 3553(a) renders use of the presumption unlawful.
Ill
We next turn to the question whether the District Court properly analyzed the relevant sentencing factors. In particular, Rita argues that the court took inadequate account of § 3553(c) (2000 ed., Supp. IV), a provision that requires a sentencing judge, “at the time of sentencing,” to “state in open court the reasons for its imposition of the particular sentence.” In our view, given the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient.
The statute does call for the judge to “state” his “reasons.” And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge's use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.
That said, we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word “granted” or “denied” on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment.
In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. See, e. g., United States v. Taylor, 487 U. S. 326, 336-337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a) — that is, argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure, the judge normally need say no more. Cf. § 3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.)
Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so. To our knowledge, an ordinary explanation of judicial reasons as to why the judge has, or has not, applied the Guidelines triggers no Sixth Amendment “jury trial” requirement. Cf. Booker, 543 U. S., at 233 (“For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant”), and id., at 242 (requirement of finding, not articulation of it, creates Sixth Amendment problem).
By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. That being so, his reasoned sentencing judgment, resting upon an effort to filter the Guidelines’ general advice through §3553(a)’s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge’s explanation should help the Guidelines constructively evolve over time, as both Congress and the Commission foresaw. See generally supra, at 351.
In the present case the sentencing judge’s statement of reasons was brief but legally sufficient. Rita argued for a downward departure from the 33-to-41 month Guidelines sentence on the basis of three sets of special circumstances: health, fear of retaliation in prison, and military record. See App. 40-47. He added that, in any event, these same circumstances warrant leniency beyond that contemplated by the Guidelines.
The record makes clear that the sentencing judge listened to each argument. The judge considered the supporting evidence. The judge was fully aware of defendant’s various physical ailments and imposed a sentence that takes them into account. The judge understood that Rita had previously worked in the immigration service where he had been involved in detecting criminal offenses. And he considered Rita’s lengthy military service, including over 25 years of service, both on active duty and in the Reserve, and Rita’s receipt of 35 medals, awards, and nominations.
The judge then simply found these circumstances insufficient to warrant a sentence lower than the Guidelines range of 33 to 45 months. Id., at 87. He said that this range was mot “inappropriate.” (This, of course, is not the legal standard for imposition of sentence, but taken in context it is plain that the judge so understood.) He immediately added that he found that the 33-month sentence at the bottom of the Guidelines range was “appropriate.” Ibid. He must have believed that there was not much more to say.
We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evidence and argument; that (as no one before him denied) he thought the Commission in the Guidelines had determined a sentence that was proper in the mine run of roughly similar perjury cases; and that he found that Rita’s personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning underlies the judge’s conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.
IV
We turn to the final question: Was the Court of Appeals, after applying its presumption, legally correct in holding that Rita’s sentence (a sentence that applied, and did not depart from, the relevant Sentencing Guideline) was not “unreasonable”? In our view, the Court of Appeals’ conclusion was lawful.
As we previously said, see Part I, supra, the crimes at issue are perjury and obstruction of justice. In essence those offenses involved the making of knowingly false, material statements under oath before a grand jury, thereby impeding its criminal investigation. The Guidelines provide for a typical such offense a base offense ievel of 20, 6 levels below the level provided for a simple violation of the crime being investigated (here, the unlawful importation of machineguns). The offender, Rita, has no countable prior offenses and consequently falls within criminal history category I. The intersection of base offense level 20 and criminal history category I sets forth a sentencing range of imprisonment of 33 to 41 months.
Rita argued at sentencing that his circumstances are special. He based this argument upon his health, his fear of retaliation, and his prior military record. His sentence explicitly takes health into account by seeking assurance that the Bureau of Prisons will provide appropriate treatment. The record makes out no special fear of retaliation, asserting only that the threat is one that any former law enforcement official might suffer. Similarly, though Rita has a lengthy and distinguished military record, he did not claim at sentencing that military service should ordinarily lead to a sentence more lenient than the sentence the Guidelines impose. Like the District Court and the Court of Appeals, we simply cannot say that Rita’s special circumstances are special enough that, in light of § 3553(a), they require a sentence lower than the sentence the Guidelines provide.
Finally, Rita and supporting amici here claim that the Guidelines sentence is not reasonable under § 3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are “not ordinarily relevant.” USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it.
* * *
For the foregoing reasons, 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.",
"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"
] |
[
112
] |
NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., et al. v. UNITED STATES et al.
No. 479.
Decided February 25, 1963.
Bryce Rea, Jr. and Frederick A. Babson, Jr. for appellants.
Solicitor General Cox, Assistant Attorney General Loevinger, Robert B. Hummel, Robert W. Ginnane and Fritz R. Kahn for the United States and the Interstate Commerce Commission.
D. Robert Thomas, Harry C. Ames, Sr., Giles Morrow, S. Sidney Eisen and James L. Givan for appellee freight forwarders.
Per Curiam.
The petition for rehearing is denied. However, we think we should make clear the basis upon which our per curiam order affirmed the judgment of the District Court. 371 U. S. 223. The District Court dismissed appellants’ action to set aside an order of the Interstate Commerce Commission on two grounds: (1) that the appellants lacked standing to challenge the Commission’s order in the District Court; (2) that the appellants’ challenge to the Commission’s order was without merit. Our per curiam order affirmed the District Court’s judgment insofar as it upheld the validity of the Commission’s order on the merits. We disagreed that appellants lacked standing to challenge the Commission’s order in the District Court. The appellants are associations of motor carriers, authorized under 49 U. S. C. § 5b, and perform significant functions in the administration of the Interstate Commerce Act, including the representation of member carriers in proceedings before the Commission. Since individual member carriers of appellants will be aggrieved by the Commission’s order, and since appellants are proper representatives of the interests of their members, appellants have standing to challenge the validity of the Commission’s order in the District Court. See Administrative Procedure Act, 5 U. S. C. § 1009 (a); FCC v. Sanders Bros. Radio Station, 309 U. S. 470; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459.
Mr. Justice Harlan concurs in the denial of the petition for rehearing and in the affirmance of the judgment of the District Court insofar as that judgment refused to set aside the order of the Interstate Commerce Commission. He believes, however, that the question of “standing” should not be decided without plenary consideration.
Mr. Justice Stewart would grant the petition for rehearing.
|
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
] |
WINKELMAN, a minor, by and through his parents and legal guardians, WINKELMAN et ux., et al. v. PARMA CITY SCHOOL DISTRICT
No. 05-983.
Argued February 27, 2007
Decided May 21, 2007
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. X, and Stevens, Souter, Ginsburg, Breyer, and Alito, JX, joined. Scalia, X, filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, X, joined, post, p. 535.
Jean-Claude André argued the cause and filed briefs for petitioners.
David B. Salmons argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Kim, Deputy Solicitor General Garre, David K. Flynn, Gregory B. Friel, and Kent D. Talbert.
Pierre H. Bergeron argued the cause for respondent. With him on the brief was Christina Henagen Peer
Briefs of amici curiae urging reversal were filed for the Autism Society of America et al. by Barbara E. Etkind, and Ilise L. Feitshans; for the Council of Parent Attorneys and Advocates, Inc., et al. by Lynn S. Preece, Erin McCloskey Maus, and Angela C. Vigil; for the Equal Justice Foundation et al. by Benson A Wolman, Robert J. Krummen, and Robert M. Clyde, Jr.; for the Ohio Coalition for the Education of Children with Disabilities et al. by Thomas C. Goldstein, Eric H. Zagrans, Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, and Kevin K. Russell; and for Senator Edward M. Kennedy et al. by Jody Manier Kris.
Julie Wright Halbert and Pammela Quinn filed a brief for the Council of the Great City Schools as amicus curiae urging affirmance.
Julie Carleton Martin, Francisco M. Negron, Jr., Naomi E. Gittins, Thomas E. M. Hutton, and Lisa E. Soronen filed a brief for the National School Boards Association et al. as amici curiae.
Justice Kennedy
delivered the opinion of the Court.
Some four years ago, Mr. and Mrs. Winkelman, parents of five children, became involved in lengthy administrative and legal proceedings. They had sought review related to concerns they had over whether their youngest child, 6-year-old Jacob, would progress well at Pleasant Valley Elementary School, which is part of the Parma City School District in Parma, Ohio.
Jacob has autism spectrum disorder and is covered by the Individuals with Disabilities Education Act (Act or IDEA), 84 Stat. 175, as amended, 20 U. S. C. § 1400 et seq. (2000 ed. and Supp. IV). His parents worked with the school district to develop an individualized education program (IEP), as required by the Act. All concede that Jacob’s parents had the statutory right to contribute to this process and, when agreement could not be reached, to participate in administrative proceedings including what the Act refers to as an “impartial due process hearing.” § 1415(f)(1)(A) (2000 ed., Supp. IV).
The disagreement at the center of the current dispute concerns the procedures to be followed when parents and their child, dissatisfied with the outcome of the due process hearing, seek further review in a United States District Court. The question is whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys. Resolution of this issue requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or alternatively, whether the Act allows them, in their status as parents, to represent their child in court proceedings.
I
Respondent Parma City School District, a participant in IDEA’S educational spending program, accepts federal funds for assistance in the education of children with disabilities. As a condition of receiving funds, it must comply with IDEA’S mandates. IDEA requires that the school district provide Jacob with a “free appropriate public education,” which must operate in accordance with the IEP that Jacob’s parents, along with school officials and other individuals, develop as members of Jacob’s “IEP Team.” Brief for Petitioners 3 (internal quotation marks omitted).
The school district proposed an IEP for the 2003-2004 school year that would have placed Jacob at a public elementary school. Regarding this IEP as deficient under IDEA, Jacob’s nonlawyer parents availed themselves of the administrative review provided by IDEA. They filed a complaint alleging respondent had failed to provide Jacob with a free appropriate public education; they appealed the hearing officer’s rejection of the claims in this complaint to a state-level review officer; and after losing that appeal they filed, on their own behalf and on behalf of Jacob, a complaint in the United States District Court for the Northern District of Ohio. In reliance upon 20 U. S. C. § 1415(i)(2) (2000 ed., Supp. IV) they challenged the administrative decision, alleging, among other matters: that Jacob had not been provided with a free appropriate public education; that his IEP was inadequate; and that the school district had failed to follow procedures mandated by IDEA. Pending the resolution of these challenges, the Winkelmans had enrolled Jacob in a private school at their own expense. They had also obtained counsel to assist them with certain aspects of the proceedings, although they filed their federal complaint, and later their appeal, without the aid of an attorney. The Winkelmans’ complaint sought reversal of the administrative decision, reimbursement for private-school expenditures and attorney’s fees already incurred, and, it appears, declaratory relief.
The District Court granted respondent’s motion for judgment on the pleadings, finding it had provided Jacob with a free appropriate public education. Petitioners, proceeding without counsel, filed an appeal with the Court of Appeals for the Sixth Circuit. Relying on its recent decision in Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), the Court of Appeals entered an order dismissing the Winkelmans’ appeal unless they obtained counsel to represent Jacob. See Order in No. 05-3886 (Nov. 4,2005), App. A to Pet. for Cert. la. In Cavanaugh the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf, ibid. See also 28 U. S. C. § 1654 (allowing parties to prosecute their own claims pro se). As for the parents’ alternative argument, the court held, nonlawyer parents cannot litigate IDEA claims on behalf of their child because IDEA does not abrogate the common-law rule prohibiting nonlawyer parents from representing minor children. 409 F. 3d, at 756. As the court in Cavanaugh acknowledged, its decision brought the Sixth Circuit in direct conflict with the First Circuit, which had concluded, under a theory of “statutory joint rights,” that the Act accords to parents the right to assert IDEA claims on their own behalf. See Maroni v. Pemi-Baker Regional School Dist., 346 F. 3d 247, 249, 250 (CA1 2003).
Petitioners sought review in this Court. In light of the disagreement among the Courts of Appeals as to whether a nonlawyer parent of a child with a disability may prosecute IDEA actions pro se in federal court, we granted certiorari. 549 U. S. 990 (2006). Compare Cavanaugh, supra, with Maroni, supra; see also Mosely v. Board of Ed. of Chicago, 434 F. 3d 527 (CA7 2006); Collinsgru v. Palmyra Bd. of Ed., 161 F. 3d 225 (CA3 1998); Wenger v. Canastota Central School Dist., 146 F. 3d 123 (CA2 1998) (per curiam); Devine v. Indian River Cty. School Bd., 121 F. 3d 576 (CA11 1997).
II
Our resolution of this case turns upon the significance of IDEA’S interlocking statutory provisions. Petitioners’ primary theory is that the Act makes parents real parties in interest to IDEA actions, not “mer[e] guardians of their children’s rights.” Brief for Petitioners 16. If correct, this allows Mr. and Mrs. Winkelman back into court, for there is no question that a party may represent his or her own interests in federal court without the aid of counsel. See 28 U. S. C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel... ”). Petitioners cannot cite a specific provision in IDEA mandating in direct and explicit terms that parents have the status of real parties in interest. They instead base their argument on a comprehensive reading of IDEA. Taken as a whole, they contend, the Act leads to the necessary conclusion that parents have independent, enforceable rights. Brief for Petitioners 14 (citing Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 60 (2004)). Respondent, accusing petitioners of “knit[ting] together various provisions pulled from the crevices of the statute” to support these claims, Brief for Respondent 19, reads the text of IDEA to mean that any redressable rights under the Act belong only to children, id., at 19-40.
We agree that the text of IDEA resolves the question presented. We recognize, in addition, that a proper interpretation of the Act requires a consideration of the entire statutory scheme. See Dolan v. Postal Service, 546 U. S. 481, 486 (2006). Turning to the current version of IDEA, which the parties agree governs this case, we begin with an overview of the relevant statutory provisions.
A
The goals of IDEA include “ensurjjng] that all children with disabilities have available to them a free appropriate public education” and “ensur[ing] that the rights of children with disabilities and parents of such children are protected.” 20 U. S. C. §§ 1400(d)(1)(A)-(B) (2000 ed., Supp. IV). To this end, the Act includes provisions governing four areas of particular relevance to the Winkelmans’ claim: procedures to be followed when developing a child’s IEP; criteria governing the sufficiency of an education provided to a child; mechanisms for review that must be made available when there are objections to the IEP or to other aspects of IDEA proceedings; and the requirement in certain circumstances that States reimburse parents for various expenses. See generally §§ 1412(a)(10), 1414, 1415. Although our discussion of these four areas does not identify all the illustrative provisions, we do take particular note of certain terms that mandate or otherwise describe parental involvement.
IDEA requires school districts to develop an IEP for each child with a disability, see §§ 1412(a)(4), 1414(d), with parents playing “a significant role” in this process, Schaffer v. Weast, 546 U. S. 49, 53 (2005). Parents serve as members of the team that develops the IEP. § 1414(d)(1)(B). The “concerns” parents have “for enhancing the education of their child” must be considered by the team. § 1414(d)(3)(A)(ii). IDEA accords parents additional protections that apply throughout the IEP process. See, e. g., § 1414(d)(4)(A) (requiring the IEP Team to revise the IEP when appropriate to address certain information provided by the parents); § 1414(e) (requiring States to “ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child”). The statute also sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e. g., § 1415(a) (requiring States to “establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education”); § 1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally §§1414, 1415. A central purpose of the parental protections is to facilitate the provision of a “‘free appropriate public education,’” §1401(9), which must be made available to the child “in conformity with the [IEP],” §1401(9)(D).
The Act defines a “free appropriate public education” pursuant to an IEP to be an educational instruction “specially designed ... to meet the unique needs of a child with a disability,” § 1401(29), coupled with any additional “ ‘related services’ ” that are “required to assist a child with a disability to benefit from [that instruction],” § 1401(26)(A). See also § 1401(9). The education must, among other things, be provided “under public supervision and direction,” “meet the standards of the State educational agency,” and “include an appropriate preschool, elementary school, or secondary school education in the State involved.” Ibid. The instruction must, in addition, be provided at “no cost to parents.” § 1401(29). See generally Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982) (discussing the meaning of “free appropriate public education” as used in the statutory precursor to IDEA).
When a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide “[a]n opportunity for any party to present a complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). By presenting a complaint a party is able to pursue a process of review that, as relevant, begins with a preliminary meeting “where the parents of the child discuss their complaint” and the local educational agency “is provided the opportunity to [reach a resolution].” § 1415(f)(l)(B)(i)(IV). If the agency “has not resolved the complaint to the satisfaction of the parents within 30 days,” § 1415(f)(l)(B)(ii), the parents may request an “impartial due process hearing,” § 1415(f)(1)(A), which must be conducted either by the local educational agency or by the state educational agency, ibid., and where a hearing officer will resolve issues raised in the complaint, § 1415(f)(3).
IDEA sets standards the States must follow in conducting these hearings. Among other things, it indicates that the hearing officer’s decision “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education,” § 1415(f)(3)(E)(i), and that, “[i]n matters alleging a procedural violation,” the officer may find a child “did not receive a free appropriate public education,” § 1415(f)(3)(E)(ii), only if the violation
“(I) impeded the child’s right to a free appropriate public education;
“(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or
“(III) caused a deprivation of educational benefits.” Ibid.
If the local educational agency, rather than the state educational agency, conducts this hearing, then “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.” § 1415(g)(1). Once the state educational agency has reached its decision, an aggrieved party may commence suit in federal court: “Any party aggrieved by the findings and decision made [by the hearing officer] shall have the right co bring a civil action with respect to the complaint.” § 1415(i)(2)(A); see also § 1415(i)(l).
IDEA, finally, provides for at least two means of cost recovery that inform our analysis. First, in certain circumstances it allows a court or hearing officer to require a state agency “to reimburse the parents [of a child with a disability] for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child.” § 1412(a)(10)(C)(ii). Second, it sets forth rules governing when and to what extent a court may award attorney’s fees. See § 1415(i)(3)(B). Included in this section is a provision allowing an award “to a prevailing party who is the parent of a child with a disability.” § 1415(i)(3)(B)(i)(I).
B
Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.
The statute sets forth procedures for resolving disputes in a manner that, in the Act’s express terms, contemplates parents will be the parties bringing the administrative complaints. In addition to the provisions we have cited, we refer also to § 1415(b)(8) (requiring a state educational agency to “develop a model form to assist parents in filing a complaint”); § 1415(c)(2) (addressing the response an agency must provide to a “parent’s due process complaint notice”); and § 1415(i)(3)(B)(i) (referring to “the parent’s complaint”). A wide range of review is available: Administrative complaints may be brought with respect to “any matter relating to . . . the provision of a free appropriate public education.” § 1415(b)(6)(A). Claims raised in these complaints are then resolved at impartial due process hearings, where, again, the statute makes clear that parents will be participating as parties. See generally supra, at 525-526. See also § 1415(f)(3)(C) (indicating “[a] parent or agency shall request an impartial due process hearing” within a certain period of time); § 1415(e)(2)(A)(ii) (referring to “a parent’s right to a due process hearing”). The statute then grants “[a]ny party aggrieved by the findings and decision made [by the hearing officer] . . . the right to bring a civil action with respect to the complaint.” § 1415(i)(2)(A).
Nothing in these interlocking provisions excludes a parent who has exercised his or her own rights from statutory protection the moment the administrative proceedings end. Put another way, the Act does not sub silentio or by implication bar parents from seeking to vindicate the rights accorded to them once the time comes to file a civil action. Through its provisions for expansive review and extensive parental involvement, the statute leads to just the opposite result.
Respondent, resisting this line of analysis, asks us to read these provisions as contemplating parental involvement only to the extent parents represent their child’s interests. In respondent’s view IDEA accords parents nothing more than “collateral tools related to the child’s underlying substantive rights — not freestanding or independently enforceable rights.” Brief for Respondent 25.
This interpretation, though, is foreclosed by provisions of the statute. IDEA defines one of its purposes as seeking “to ensure that the rights of children with disabilities and parents of such children are protected.” § 1400(d)(1)(B). The word “rights” in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense.
Further provisions confirm this view. IDEA mandates that educational agencies establish procedures “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.” § 1415(a). It presumes parents have rights of their own when it defines how States might provide for the transfer of the “rights accorded to parents” by IDEA, § 1415(m)(l)(B), and it prohibits the raising of certain challenges “[njotwithstanding any other individual right of action that a parent or student may maintain under [the relevant provisions of IDEA],” §§ 1401(10)(E), 1412(a)(14)(E). To adopt respondent’s reading of the statute would require an interpretation of these statutory provisions (and others) far too strained to be correct.
Defending its countertextual reading of the statute, respondent cites a decision by a Court of Appeals concluding that the Act’s “references to parents are best understood as accommodations to the fact of the child’s incapacity.” Doe v. Board of Ed. of Baltimore Cty., 165 F. 3d 260, 263 (CA4 1998); see also Brief for Respondent 30. This, according to respondent, requires us to interpret all references to parents’ rights as referring in implicit terms to the child’s rights— which, under this view, are the only enforceable rights accorded by IDEA. Even if we were inclined to ignore the plain text of the statute in considering this theory, we disagree that the sole purpose driving IDEA’S involvement of parents is to facilitate vindication of a child’s rights. It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child. See, e. g., Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925) (acknowledging “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923). There is no necessary bar or obstacle in the law, then, to finding an intention by Congress to grant parents a stake in the entitlements created by IDEA. Without question a parent of a child with a disability has a particular and personal interest in. fulfilling “our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” § 1400(c)(1).
We therefore find no reason to read into the plain language of the statute an implicit rejection of the notion that Congress would accord parents independent, enforceable rights concerning the education of their children. We instead interpret the statute’s references to parents’ rights to mean what they say: that IDEA includes provisions conveying rights to parents as well as to children.
A variation on respondent’s argument has persuaded some Courts of Appeals. The argument is that while a parent can be a “party aggrieved” for aspects of the hearing officer’s findings and decision, he or she cannot be a “party aggrieved” with respect to all IDEA-based challenges. Under this view the causes of action available to a parent might relate, for example, to various procedural mandates, see, e. g., Collinsgru, 161 F. 3d, at 233, and reimbursement demands, see, e. g., § 1412(a)(10)(C)(ii). The argument supporting this conclusion proceeds as follows: Because a “party aggrieved” is, by definition, entitled to a remedy, and parents are, under IDEA, only entitled to certain procedures and reimbursements as remedies, a parent cannot be a “party aggrieved” with regard to any claim not implicating these limited matters.
This argument is contradicted by the statutory provisions we have recited. True, there are provisions in IDEA stating parents are entitled to certain procedural protections and reimbursements; but the statute prevents us from placing too much weight on the implications to be drawn when other entitlements are accorded in less clear language. We find little support for the inference that parents are excluded by implication whenever a child is mentioned, and vice versa. Compare, e. g., § 1411(e)(3)(E) (barring States from using certain funds for costs associated with actions “brought on behalf of a child” but failing to acknowledge that actions might also be brought on behalf of a parent) with § 1415(i)(3)(B)(i) (allowing recovery of attorney’s fees to a “prevailing party who is the parent of a child with a disability” but failing to acknowledge that a child might also be a prevailing party). Without more, then, the language in IDEA confirming that parents enjoy particular procedural and reimbursement-related rights does not resolve whether they are also entitled to enforce IDEA’S other mandates, including the one most fundamental to the Act: the provision of a free appropriate public education to a child with a disability.
We consider the statutory structure. The IEP proceedings entitle parents to participate not only in the implementation of IDEA’S procedures but also in the substantive formulation of their child’s educational program. Among other things, IDEA requires the IEP Team, which includes the parents as members, to take into account any “concerns” parents have “for enhancing the education of their child” when it formulates the IEP. § 1414(d)(3)(A)(ii). The IEP, in turn, sets the boundaries of the central entitlement provided by IDEA: It defines a “ ‘free appropriate public education’ ” for that parent’s child. § 1401(9).
The statute also empowers parents to bring challenges based on a broad range of issues. The parent may seek a hearing on “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6)(A). To resolve these challenges a hearing officer must make a decision based on whether the child “received a free appropriate public education.” § 1415(f)(3)(E). When this hearing has been conducted by a local educational agency rather than a state educational agency, “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision” to the state educational agency. § 1415(g)(1). Judicial review follows, authorized by a broadly worded provision phrased in the same terms used to describe the prior stage of review: “Any party aggrieved” may bring “a civil action.” § 1415(i)(2)(A).
These provisions confirm that IDEA, through its text and structure, creates in parents an independent stake not only in the procedures and costs implicated by this process but also in the substantive decisions to be made. We therefore conclude that IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents. As a consequence, a parent may be a “party aggrieved” for purposes of §1415(i)(2) with regard to “any matter” implicating these rights. See § 1415(b)(6)(A). The status of parents as parties is not limited to matters that relate to procedure and cost recovery. To find otherwise would be inconsistent with the collaborative framework and expansive system of review established by the Act. Cf. Cedar Rapids Community School Dist. v. Garret F., 526 U. S. 66, 73 (1999) (looking to IDEA’S “overall statutory scheme” to interpret its provisions).
Our conclusion is confirmed by noting the incongruous results that would follow were we to accept the proposition that parents’ IDEA rights are limited to certain nonsubstantive matters. The statute’s procedural and reimbursement-related rights are intertwined with the substantive adequacy of the education provided to a child, see, e. g., § 1415(f)(3)(E), see also § 1412(a)(10)(C)(ii), and it is difficult to disentangle the provisions in order to conclude that some rights adhere to both parent and child while others do not. Were we nevertheless to recognize a distinction of this sort it would impose upon parties a confusing and onerous legal regime, one worsened by the absence of any express guidance in IDEA concerning how a court might in practice differentiate between these matters. It is, in addition, out of accord with the statute’s design to interpret the Act to require that parents prove the substantive inadequacy of their child’s education as a predicate for obtaining, for example, reimbursement under § 1412(a)(10)(C)(ii), yet to prevent them from obtaining a judgment mandating that the school district provide their child with an educational program demonstrated to be an appropriate one. The adequacy of the educational program is, after all, the central issue in the litigation. The provisions of IDEA do not set forth these distinctions, and we decline to infer them.
The bifurcated regime suggested by the courts that have employed it, moreover, leaves some parents without a remedy. The statute requires, in express terms, that States provide a child with a free appropriate public education “at public expense,” §1401(9)(A), including specially designed instruction “at no cost to parents,” § 1401(29). Parents may seek to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child. Under the countervailing view, which would make a parent’s ability to enforce IDEA dependant on certain procedural and reimbursement-related rights, a parent whose disabled child has not received a free appropriate public education would have recourse in the federal courts only under two circumstances: when the parent happens to have some claim related to the procedures employed; and when he or she is able to incur, and has in fact incurred, expenses creating a right to reimbursement. Otherwise the adequacy of the child’s education would not be regarded as relevant to any cause of action the parent might bring; and, as a result, only the child could vindicate the right accorded by IDEA to a free appropriate public education.
The potential for injustice in this result is apparent. What is more, we find nothing in the statute to indicate that when Congress required States to provide adequate instruction to a child “at no cost to parents,” it intended that only some parents would be able to enforce that mandate. The statute instead takes pains to “ensure that the rights of children with disabilities and parents of such children are protected.” § 1400(d)(1)(B). See, e. g., § 1415(e)(2) (requiring that States implement procedures to ensure parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education); § 1415(e)(2)(A)(ii) (requiring that mediation procedures not be “used to deny or delay a parent’s right to a due process hearing ... or to deny any other rights afforded under this subchapter”); cf. § 1400(c)(3) (noting IDEA’S success in “ensuring children with disabilities and the families of such children access to a free appropriate public education”).
We conclude IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child.
C
Respondent contends, though, that even under the reasoning we have now explained petitioners cannot prevail without overcoming a further difficulty. Citing our opinion in Arlington Central School Dish Bd. of Ed. v. Murphy, 548 U. S. 291 (2006), respondent argues that statutes passed pursuant to the Spending Clause, such as IDEA, must provide “‘clear notice’” before they can burden a State with some new condition, obligation, or liability. Brief for Respondent 41. Respondent contends that because IDEA is, at best, ambiguous as to whether it accords parents independent rights, it has failed to provide clear notice of this condition to the States. See id., at 40-49.
Respondent’s reliance on Arlington is misplaced. In Arlington we addressed whether IDEA required States to reimburse experts’ fees to prevailing parties in IDEA actions. “[W]hen Congress attaches conditions to a State’s acceptance of federal funds,” we explained, “the conditions must be set out ‘unambiguously. ’ ” 548 U. S., at 296 (quoting Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981)). The question to be answered in Arlington, therefore, was whether IDEA “furnishes clear notice regarding the liability at issue.” 548 U. S., at 296. We found it did not.
The instant case presents a different issue, one that does not invoke the same rule. Our determination that IDEA grants to parents independent, enforceable rights does not impose any substantive condition or obligation on States they would not otherwise be required by law to observe. The basic measure of monetary recovery, moreover, is not expanded by recognizing that some rights repose in both the parent and the child. Were we considering a statute other than the one before us, the Spending Clause argument might have more force: A determination by the Court that some distinct class of people has independent, enforceable rights might result in a change to the States’ statutory obligations. But that is not the case here.
Respondent argues our ruling will, as a practical matter, increase costs borne by the States as they are forced to defend against suits unconstrained by attorneys trained in the law and the rules of ethics. Effects such as these do not suffice to invoke the concerns under the Spending Clause. Furthermore, IDEA does afford relief for the States in certain cases. The Act empowers courts to award attorney’s fees to a prevailing educational agency whenever a parent has presented a “complaint or subsequent cause of action ... for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” § 1415(i)(3)(B)(i)(III). This provision allows some relief when a party has proceeded in violation of these standards.
Ill
The Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf. The decision by Congress to grant parents these rights was consistent with the purpose of IDEA and fully in accord with our social and legal traditions. It is beyond dispute that the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child; and, what is more, Congress has found that “the education of children with disabilities can be made more effective by . .. strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” § 1400(c)(5).
In light of our holding we need not reach petitioners’ alternative argument, which concerns whether IDEA entitles parents to litigate their child’s claims pro se.
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.
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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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YOUNGBERG, SUPERINTENDENT, PENNHURST STATE SCHOOL AND HOSPITAL, et al. v. ROMEO, AN INCOMPETENT, BY HIS MOTHER AND NEXT FRIEND, ROMEO
No. 80-1429.
Argued January 11, 1982
Decided June 18, 1982
Powell, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a concurring opinion, in which Brennan and O’Connor, JJ., joined, post, p. 325. Burger, C. J., filed an opinion concurring in the judgment, post, p. 329.
David H. Allshouse, Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were Leroy S. Zimmerman, Attorney General, and Robert B. Hoffman and Allen C. Warshaw, Deputy Attorneys General.
Edmond A. Tiryak argued the cause for respondent. With him on the brief were Ralph J. Moore, Jr., and William F. Sheehan.
A brief for the State of Connecticut et al. as amici curiae urging reversal was filed by Carl R. Ajello, Attorney General of Connecticut, and Hugh Barber, Richard T. Couture, and Francis J. Mac Gregor, Assistant Attorneys General, Charles A. Graddick, Attorney General of Alabama, and R. Emmett Poundstone 111, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Assistant Attorney General, Steve Clark, Attorney General of Arkansas, and Robert R. Ross, Deputy Attorney General, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Paul L. Douglas, Attorney General of Nebraska, Gregory H. Smith, Attorney General of New Hampshire, James R. Zazzali, Attorney General of New Jersey, Robert 0. Wefald, Attorney General of North Dakota, William J. Brown, Attorney General of Ohio, David B. Frohnmayer, Attorney General of Oregon, Dennis J. Roberts II, Attorney General of Rhode Island, Daniel R. McLeod, Attorney General of South Carolina, Marshall Coleman, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, and Chauncey H. Browning, Jr., Attorney General of West Virginia.
Briefs of amid curiae urging affirmance were filed by Margaret F. Ewing, Paul R. Friedman, and Jane Bloom Yohalem for the American Orthopsychiatric Association et al.; and by Dan Stormer and Mary Bur-dick for Mental Health Advocacy Services et al.
H. Bartow Farr III filed a brief for the American Psychiatric Association as amicus curiae.
Justice Powell
delivered the opinion of the Court.
The question presented- is whether respondent, involuntarily committed to a state institution for the mentally retarded, has substantive rights under the Due Process Clause of the Fourteenth Amendment to (i) safe conditions of confinement; (ii) freedom from bodily restraints; and (iii) training or “habilitation.” Respondent sued under 42 U. S. C. § 1983 three administrators of the institution, claiming damages for the alleged breach of his constitutional rights.
I
Respondent Nicholas Romeo is profoundly retarded. Although 33 years old, he has the mental capacity of an 18-month-old child, with an I. Q. between 8 and 10. He cannot talle and lacks the most basic self-care skills. Until he was 26, respondent lived with his parents in Philadelphia. But after the death of his father in May 1974, his mother was unable to care for him. Within two weeks of the father’s death, respondent’s mother sought his temporary admission to a nearby Pennsylvania hospital.
Shortly thereafter, she asked the Philadelphia County Court of Common Pleas to admit Romeo to a state facility on a permanent basis. Her petition to the court explained that she was unable to care for Romeo or control his violence. As part of the commitment process, Romeo was examined by a physician and a psychologist. They both certified that respondent was severely retarded and unable to care for himself. App. 21a-22a and 28a-29a. On June 11, 1974, the Court of Common Pleas committed respondent to the Penn-hurst State School and Hospital, pursuant to the applicable involuntary commitment provision of the Pennsylvania Mental Health and Mental Retardation Act, Pa. Stat. Ann., Tit. 50, § 4406(b) (Purdon 1969).
At Pennhurst, Romeo was injured on numerous occasions, both by his own violence and by the reactions of other residents to him. Respondent’s mother became concerned about these injuries. After objecting to respondent’s treatment several times, she filed this complaint on November 4, 1976, in the United States District Court for the Eastern District of Pennsylvania as his next friend. The complaint alleged that “[djuring the period July, 1974 to the present, plaintiff has suffered injuries on at least sixty-three occasions.” The complaint originally sought damages and injunctive relief from Pennhurst’s director and two supervisors; it alleged that these officials knew, or should have known, that Romeo was suffering injuries and that they failed to institute appropriate preventive procedures, thus violating his rights under the Eighth and Fourteenth Amendments.
Thereafter, in late 1976, Romeo was transferred from his ward to the hospital for treatment of a broken arm. While in the infirmary, and by order of a doctor, he was physically restrained during portions of each day. These restraints were ordered by Dr. Gabroy, not a defendant here, to protect Romeo and others in the hospital, some of whom were in traction or were being treated intravenously. 7 Tr. 40, 49, 76-78. Although respondent normally would have returned to his ward when his arm healed, the parties to this litigation agreed that he should remain in the hospital due to the pending lawsuit. 5 id., at 248; 6 id., at 57-58 and 137. Nevertheless, in December 1977, a second amended complaint was filed alleging that the defendants were restraining respondent for prolonged periods on a routine basis. The second amended complaint also added a claim for damages to compensate Romeo for the defendants’ failure to provide him with appropriate “treatment or programs for his mental retardation.” All claims for injunctive relief were dropped prior to trial because respondent is a member of the class seeking such relief in another action.
An 8-day jury trial was held in April 1978. Petitioners introduced evidence that respondent participated in several programs teaching basic self-care skills. A comprehensive behavior-modification program was designed by staff members to reduce Romeo’s aggressive behavior, but that program was never implemented because of his mother’s objections. Respondent introduced evidence of his injuries and of conditions in his unit.
At the close of the trial, the court instructed the jury that "if any or all of the defendants were aware of and failed to take all reasonable steps to prevent repeated attacks upon Nicholas Romeo," such failure deprived him of constitutional rights. App. 73a. The jury also was instructed that if the defendants shackled Romeo or denied him treatment “as a punishment for filing this lawsuit,” his constitutional rights were violated under the Eighth Amendment. Id., at 73a-75a. Finally, the jury was instructed that only if they found the defendants “deliberate[ly] indrfferen[t] to the serious medical [and psychological] needs” of Romeo could they find that his Eighth and Fourteenth Amendment rights had been violated. Id., at 74a-75a. The jury returned a verdict for the defendants, on which judgment was entered.
The Court of Appeals for the Third Circuit, sitting en banc, reversed and remanded for a new trial. 644 F. 2d 147 (1980). The court held that the Eighth Amendment, prohibiting cruel and unusual punishment of those convicted of crimes, was not an appropriate source for determining the rights of the involuntarily committed. Rather, the Fourteenth Amendment and the liberty interest protected by that Amendment provided the proper constitutional basis for these rights. In applying the Fourteenth Amendment, the court found that the involuntarily committed retain liberty interests in freedom of movement and in personal security. These were “fundamental liberties” that can be limited only by an “overriding, non-punitive” state interest. Id., at 157-158 (footnote omitted). It further found that the involuntarily committed have a liberty interest in habilitation designed to “treat” their mental retardation. Id., at 164-170.
The en banc court did not, however, agree on the relevant standard to be used in determining whether Romeo’s rights had been violated. Because physical restraint “raises a presumption of a punitive sanction,” the majority of the Court of Appeals concluded that it can be justified only by “compelling necessity.” Id., at 159-160 (footnote omitted). A somewhat different standard was appropriate for the failure to provide for a resident’s safety. The majority considered that such a failure must be justified by a showing of “substantial necessity.” Id., at 164. Finally, the majority held that when treatment has been administered, those responsible are liable only if the treatment is not “acceptable in the light of present medical or other scientific knowledge.” Id., at 166-167 and 173.
Chief Judge Seitz, concurring in the judgment, considered the standards articulated by the majority as indistinguishable from those applicable to medical malpractice claims. In Chief Judge Seitz’ view, the Constitution “only requires that the courts make certain that professional judgment in fact was exercised.” Id., at 178. He concluded that the appropriate standard was whether the defendants’ conduct was “such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff as to demonstrate that the defendants did not base their conduct on a professional judgment.” Ibid.
We granted the petition for certiorari because of the importance of the question presented to the administration of state institutions for the mentally retarded. 451 U. S. 982 (1981).
II
We consider here for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution. In this case, respondent has been committed under the laws of Pennsylvania, and he does not challenge the commitment. Rather, he argues that he has a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement.
The mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment. See, e. g., Vitek v. Jones, 445 U. S. 480, 491-494 (1980). Indeed, the State concedes that respondent has a right to adequate food, shelter, clothing, and medical care. We must decide whether liberty interests also exist in safety, freedom of movement, and training. If such interests do exist, we must further decide whether they have been infringed in this case.
A
Respondent’s first two claims involve liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish. The first is a claim to safe conditions. In the past, this Court has noted that the right to personal security constitutes a “historic liberty interest” protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U. S. 651, 673 (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U. S. 678 (1978). If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions.
Next, respondent claims a right to freedom from bodily restraint. In other contexts, the existence of such an interest is clear in the prior decisions of this Court. Indeed, “[ljiberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part). This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.
B
Respondent’s remaining claim is more troubling. In his words, he asserts a “constitutional right to minimally adequate habilitation.” Brief for Respondent 8, 23, 45. This is a substantive due process claim that is said to be grounded in the liberty component of the Due Process Clause of the Fourteenth Amendment. The term “habilitation,” used in psychiatry, is not defined precisely or consistently in the opinions below or in the briefs of the parties or the amici. As noted previously in n. 1, supra, the term refers to “training and development of needed skills.” Respondent emphasizes that the right he asserts is for “minimal” training, see Brief for Respondent 34, and he would leave the type and extent of training to be determined on a case-by-case basis “in light of present medical or other scientific knowledge,” id., at 45.
In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. See Harris v. McRae, 448 U. S. 297, 318 (1980) (publicly funded abortions); Maher v. Roe, 432 U. S. 464, 469 (1977) (medical treatment). When a person is institutionalized — and wholly dependent on the State — it is conceded by petitioners that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. See Richardson v. Belcher, 404 U. S. 78, 83-84 (1971); Dandridge v. Williams, 397 U. S. 471, 478 (1970). Nor must a State “choose between attacking every aspect of a problem or not attacking the problem at all.” Id., at 486-487.
Respondent, in light of the severe character of his retardation, concedes that no amount of training will make possible his release. And he does not argue that if he were still at home, the State would have an obligation to provide training at its expense. See Tr. of Oral Arg. 33. The record reveals that respondent’s primary needs are bodily safety and a minimum of physical restraint, and respondent clearly claims training related to these needs. As we have recognized that there is a constitutionally protected liberty interest in safety and freedom from restraint, supra, at 315-316, training may be necessary to avoid unconstitutional infringement of those rights. On the basis of the record before us, it is quite uncertain whether respondent seeks any “habilitation” or training unrelated to safety and freedom from bodily restraints. In his brief to this Court, Romeo indicates that even the self-care programs he seeks are needed to reduce his aggressive behavior. See Brief for Respondent 21-22, 50. And in his offer of proof to the trial court, respondent repeatedly indicated that, if allowed to testify, his experts would show that additional training programs, including self-care programs, were needed to reduce his aggressive behavior. App. to Pet. for Cert. OSa-lOéa. If, as seems the case, respondent seeks only training related to safety and freedom from restraints, this case does not present the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se, even when no type or amount of training would lead to freedom.
Chief Judge Seitz, in language apparently adopted by respondent, observed:
“I believe that the plaintiff has a constitutional right to minimally adequate care and treatment. The existence of a constitutional right to care and treatment is no longer a novel legal proposition.” 644 F. 2d, at 176.
Chief Judge Seitz did not identify or otherwise define— beyond the right to reasonable safety and freedom from physical restraint — the “minimally adequate care and treatment” that appropriately may be required for this respondent. In the circumstances presented by this case, and on the basis of the record developed to date, we agree with his view and conclude that respondent’s liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint. In view of the kinds of treatment sought by respondent and the evidence of record, we need go no further in this case.
Ill
A
We have established that Romeo retains liberty interests in safety and freedom from bodily restraint. Yet these interests are not absolute; indeed to some extent they are in conflict. In operating an institution such as Pennhurst, there are occasions in which it is necessary for the State to restrain the movement of residents — for example, to protect them as well as others from violence. Similar restraints may also be appropriate in a training program. And an institution cannot protect its residents from all danger of violence if it is to permit them to have any freedom of movement. The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance “the liberty of the individual” and “the demands of an organized society.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). In seeking this balance in other cases, the Court has weighed the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty. In Bell v. Wolfish, 441 U. S. 520 (1979), for example, we considered a challenge to pretrial detainees’ confinement conditions. We agreed that the detainees, not yet convicted of the crime charged, could not be punished. But we upheld those restrictions on liberty that were reasonably related to legitimate government objectives and not tantamount to punishment. See id., at 539. We have taken a similar approach in deciding procedural due process challenges to civil commitment proceedings. In Parham v. J. R., 442 U. S. 584 (1979), for example, we considered a challenge to state procedures for commitment of a minor with parental consent. In determining that procedural due process did not mandate an adversarial hearing, we weighed the liberty interest of the individual against the legitimate interests of the State, including the fiscal and administrative burdens additional procedures would entail. Id., at 599-600.
Accordingly, whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury. We therefore turn to consider the proper standard for determining whether a State adequately has protected the rights of the involuntarily committed mentally retarded.
B
We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 644 F. 2d, at 178. Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Cf. Estelle v. Gamble, 429 U. S. 97, 104 (1976). At the same time, this standard is lower than the “compelling” or “substantial” necessity tests the Court of Appeals would require a State to meet to justify use of restraints or conditions of less than absolute safety. We think this requirement would place an undue burden on the administration of institutions such as Pennhurst and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents.
Moreover, we agree that respondent is entitled to minimally adequate training. In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent’s liberty interests in safety and freedom from unreasonable restraints. In determining what is “reasonable” — in this and in any case presenting a claim for training by a State — we emphasize that courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions. See Parham v. J.R., supra, at 607; Bell v. Wolfish, supra, at 544 (Courts should not ‘“second-guess the expert administrators on matters on which they are better informed’ ”). For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. In an action for damages against a professional in his individual capacity, however, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability. See n. 13, supra.
IV
In deciding this case, we have weighed those postcom-mitment interests cognizable as liberty interests under the Due Process Clause of the Fourteenth Amendment against legitimate state interests and in light of the constraints under which most state institutions necessarily operate. We repeat that the State concedes a duty to provide adequate food, shelter, clothing, and medical care. These are the es-sentíais of the care that the State must provide. The State also has the unquestioned duty to provide reasonable safety for all residents and personnel within the institution. And it may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training. In this case, therefore, the State is under a duty to provide respondent with such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints. It may well be unreasonable not to. provide training when training could significantly reduce the need for restraints or the likelihood of violence.
Respondent thus enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests. Such conditions of confinement would comport fully with the purpose of respondent’s commitment. Cf. Jackson v. Indiana, 406 U. S. 715, 738 (1972); see n. 27, supra. In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to enable institutions of this type — often, unfortunately, overcrowded and understaffed — to continue to function. A single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day. The administrators, and particularly professional personnel, should not be required to make each decision in the shadow of an action for damages.
In this case, we conclude that the jury was erroneously instructed on the assumption that the proper standard of liability was that of the Eighth Amendment. We vacate the decision of the Court of Appeals and remand for further proceedings consistent with this decision.
So ordered.
The American Psychiatric Association explains: “The word ‘habilitation,’ ... is commonly used to refer to programs for the mentally-retarded because mental retardation is ... a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.” Brief for American Psychiatric Association as Amicus Curiae 4, n. 1.
Mrs. Romeo’s petition to the Court of Common Pleas stated: “Since my husband’s death I am unable to handle him. He becomes violent — Kicks, punches, breaks glass; He can’t speak — wants to express himself but can’t. He is [a] constant 24 hr. care. [Without my husband I am unable to care for him.” App. 18a.
Petitioner Duane Youngberg was the Superintendent of Pennhurst; he had supervisory authority over the entire facility. Petitioner Richard Matthews was the Director of Resident Life at Pennhurst. Petitioner Marguerite Conley was Unit Director for the unit in which respondent lived. According to respondent, petitioners are administrators, not medical doctors. See Brief for Respondent 2. Youngberg and Matthews are no longer at Pennhurst.
Although the Court of Appeals described these restraints as “shackles,” “soft” restraints, for the arms only, were generally used. 7 Tr. 53-55.
Respondent uses “treatment” as- synonymous with “habilitation” or “training.” See Brief for Respondent 21-23.
Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981) (remanded for further proceedings).
Prior to his transfer to Pennhurst’s hospital ward, Romeo participated in programs dealing with feeding, showering, drying, dressing, self-control, and toilet training, as well as a program providing interaction with staff members. Defendants’ Exhibit 10; 3 Tr. 69-70; 5 id., at 44-56, 242-250; 6 id., at 162-166; 7 id., at 41-48.
Some programs continued while respondent was in the hospital, 5 id., at 227,248,256; 6 id., at 50,162-166; 6 id., at 32, 34, 41-48, and they reduced respondent’s aggressive behavior to some extent, 7 id., at 45.
2 id., at 7; 5 id., at 88-90; 6 id., at 88, 200-203; Defendants’ Exhibit 1, p. 9. The program called for short periods of separation from other residents and for use of “muffs” on plaintiff’s hands for short periods of time, i. e., five minutes, to prevent him from harming himself or others.
1 Tr. 53; 4 id., at 25; 6 id., at 204.
The District Judge refused to allow testimony by two of Romeo's witnesses — trained professionals — indicating that Romeo would have benefited from more or different training programs. Hie trial judge explained that evidence of the advantages of alternative forms of treatment might be relevant to a malpractice suit, but was not relevant to a constitutional claim under § 1983. App. to Pet. for Cert. 101.
The “deliberate indifference” standard was adopted by this Court in Estelle v. Gamble, 429 U. S. 97, 104 (1976), a case dealing with prisoners’ rights to punishment that is not “cruel and unusual” under the Eighth Amendment. Although the District Court did not refer to Estelle v. Gamble in charging the jury, it erroneously used the deliberate-indifference standard articulated in that case. See App. 45a, 75a.
The Court of Appeals used “habilitation” and “treatment” as synonymous, though it regarded “habilitation” as more accurate in describing treatment needed by the mentally retarded. See 644 F. 2d, at 165, and n. 40.
The existence of a qualified immunity defense was not at issue on appeal. The defendants had received instructions on this defense, App. 76a, and it was not challenged by respondent. 644 F. 2d, at 173, n. 1. After citing Pierson v. Ray, 386 U. S. 547 (1967), and Scheuer v. Rhodes, 416 U. S. 232 (1974), the majority of the Court of Appeals noted that such instructions should be given again on the remand. 644 F. 2d, at 171-172.
Actually, the court divided the right-to-treatment claim into three categories and adopted three standards, but only the standard described in text is at issue before this Court. The Court of Appeals also stated that if a jury finds that no treatment has been administered, it may hold the institution’s administrators liable unless they can provide a compelling explanation for the lack of treatment, id., at 165,173, but respondent does not discuss this precise standard in his brief and it does not appear to be relevant to the facts of this case. In addition, the court considered “least intrusive” analysis appropriate to justify severe intrusions on individual dignity, such as permanent physical alteration or surgical intervention, id., at 165-166 and 173, but respondent concedes that this issue is not present in this case.
Judge Aldisert joined Chief Judge Seitz’ opinion, but wrote separately to emphasize the nature of the difference between the majority opinion and that of the Chief Judge. On a conceptual level, Judge Aldisert thought that the court erred in abandoning the common-law method of deciding the case at bar rather than articulating broad principles unconnected with the facts of the case and of uncertain meaning. Id., at 182-183. And, on a pragmatic level, Judge Aldisert warned that neither juries nor those administering state institutions would receive guidance from the “amorphous constitutional law tenets” articulated in the majority opinion. Id., at 184. See id., at 183-185.
Judge Garth also joined Chief Judge Seitz’ opinion, and wrote separately to criticize the majority for addressing issues not raised by the facts of this case. Id., at 186.
In pertinent part, that Amendment provides that a State cannot deprive “any person of life, liberty, or property, without due process of law . . . .” U. S. Const., Arndt. 14, § 1.
Respondent no longer relies on the Eighth Amendment as a direct source of constitutional rights. See Brief for Respondent 13, n. 12.
Brief for Petitioners 8, 11, 12, and n. 10; Brief for Respondent 15-16. See also Brief for State of Connecticut et al. as Amici Curiae 8. Petitioners argue that they have fully protected these interests.
Petitioners do not appear to argue to the contrary. See Brief for Petitioners 27-31.
Respondent also argues that because he was committed for care and treatment under state law he has a state substantive right to habilitation, which is entitled to substantive, not procedural, protection under the Due Process Clause of the Fourteenth Amendment. But this argument is made for the first time in respondent’s brief to this Court. It was not advanced in the courts below, and was not argued to the Court of Appeals as a ground for reversing the trial court. Given the uncertainty of Pennsylvania law and the lack of any guidance on this issue from the lower federal courts, we decline to consider it now. See Dothard v. Rawlinson, 433 U. S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U. S. 195, 200 (1927); Old Jordan Milling Co. v. Société Anonyme des Mines, 164 U. S. 261, 264-265 (1896).
Professionals in the habilitation of the mentally retarded disagree strongly on the question whether effective training of all severely or profoundly retarded individuals is even possible. See, e. g., Favell, Risley, Wolfe, Riddle, & Rasmussen, The Limits of Habilitation: How Can We Identify Them and How Can We Change Them?, 1 Analysis and Intervention in Developmental Disabilities 37 (1981); Bailey, Wanted: A Rational Search for the Limiting Conditions of Habilitation in the Retarded, 1. Analysis and Intervention in Developmental Disabilities 45 (1981); Kauffman & Krouse, The Cult of Educability: Searching for the Substance of Things Hoped for; The Evidence of Things Not Seen, 1 Analysis and Intervention in Developmental Disabilities 53 (1981).
See, e. g., description of complaint, supra, at 310.
See also Brief for Appellant in No. 78-1982, pp. 11-14, 20-21, and 24 (CA3).
In the trial court, respondent asserted that “state officials at a state mental hospital have a duty to provide residents . . . with such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit.” App. to Pet. for Cert. 94a-95a. But this claim to a sweeping per se right was dropped thereafter. In his brief to this Court, respondent does not repeat it and, at oral argument, respondent’s counsel explicitly disavowed any claim that respondent is constitutionally entitled to such treatment as would enable him “to achieve his maximum potential.” Tr. of Oral Arg. 46-48.
Chief Judge Seitz used the tern “treatment” as synonymous with training or habilitation. See 644 F. 2d, at 181.
It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case. A federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a State.
Because the facts in cases of confinement of mentally retarded patients vary widely, it is essential to focus on the facts and circumstances of the case before a court. Judge Aldisert, in his concurring opinion in the court below, was critical of the “majority’s abandonment of incremental decision-making in favor of promulgation of broad standards . . . [that] lac[k] utility for the groups most affected by this decision.” Id., at 183-184. Judge Garth agreed that reaching issues not presented by the case requires a court to articulate principles and rules of law in “the absence of an appropriate record . . . and without the benefit of analysis, argument, or briefing” on such issues. Id., at 186.
In Romeo’s case, there can be no question that physical restraint was necessary at times. See n. 2, supra.
See also Jackson v. Indiana, 406 U. S. 715, 738 (1972) (holding that an incompetent pretrial detainee cannot, after a competency hearing, be held indefinitely without either criminal process or civil commitment; due process requires, at a minimum, some rational relation between the nature and duration of commitment and its purpose). This case differs in critical respects from Jackson, a procedural due process case involving the validity of an involuntary commitment. Here, respondent was committed by a court on petition of his mother who averred that in view of his condition she could neither care for him nor control his violence. N. 2, supra. Thus, the purpose of respondent’s commitment was to provide reasonable care and safety, conditions not available to him outside of an institution.
See also Addington v. Texas, 441 U. S. 418 (1979). In that case, we held that the State must prove the need for commitment by “clear and convincing” evidence. See id., at 431-432. We reached this decision by weighing the individual’s liberty interest against the State’s legitimate interests in confinement.
See Parham v. J. R., 442 U. S. 584, 608, n. 16 (1979) (In limiting judicial review of medical decisions made by professionals, “it is incumbent on courts to design procedures that protect the rights of the individual without unduly burdening the legitimate efforts of the states to deal with difficult social problems”). See also Rhodes v. Chapman, 452 U. S. 337, 352 (1981) (“[Cjourts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system . . .”); Bell v. Wolfish, 441 U. S. 520, 539 (1979) (In the context of conditions of confinement of pretrial detainees, “[cjourts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility”); Wolff v. McDonnell, 418 U. S. 539, 556 (1974) (In considering a procedural due process claim in the context of prison, “there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application”). See also Townsend & Mattson, The Interaction of Law and Special Education: Observing the Emperor’s New Clothes, 1 Analysis and Intervention in Developmental Disabilities 75 (1981) (judicial resolution of rights of the handicapped can have adverse as well as positive effects on social change).
By “professional” decisionmaker, we mean a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons.
All members of the Court of Appeals agreed that respondent’s expert testimony should have been admitted. This issue was not included in the questions presented for certiorari, and we have no reason to disagree with the view that the evidence was admissible. It may be relevant to whether petitioners’ decisions were a substantial departure from the requisite professional judgment. See supra, this page.
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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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[
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"Department of Justice or Attorney General",
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"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 et al. v. DRUM et al.
No. 23.
Argued October 11-12, 1961.
Decided January 15, 1962.
Robert W. Ginnane argued the cause for appellants in No. 23. With him on the briefs were Solicitor General Cox, Assistant Attorney General Loevinger, Richard A. Solomon and B. Franklin Taylor, Jr.
Roland Rice argued the cause and filed briefs for appellant in No. 24.
William L. Peterson, Jr. and Charles R. Iden argued the cause for appellees in both cases. With them on the briefs was Walter D. Hanson.
Together with No. 24, Regular Common Carrier Conference of American Trucking Associations, Inc., v. Drum et al., also on appeal from the same Court.
Mr. Justice Brennan
delivered the opinion of the Court.
In an investigation initiated by it under 49 U. S. C. § 304 (c), the Interstate Commerce Commission held that appellees who leased their motor vehicles and hired their services as drivers to the appellee Oklahoma Furniture Manufacturing Company (hereinafter “Oklahoma”) were contract carriers within 49 U. S. C. § 303 (a) (15) and subject to the permit requirements of 49 U. S. C. §309 (a)(1). 79 M. C. C. 403.
A three-judge court in the District Court for the Western District of Oklahoma, convened under 28 U. S. C. § 2325 in a proceeding commenced by appellees pursuant to 28 U. S. C. §§ 1336 and 1398, set aside the cease-and-desist order by which the Commission required the lessors to refrain from their operations unless and until they received appropriate authority therefor from the Commission. 193 F. Supp. 275. The District Court held that Oklahoma was engaged in private carriage as defined in 49 U. S. C. § 303 (a) (17). We noted probable jurisdiction of the appeals lodged here under 28 U. S. C. § 1253. 365 U. S. 839.
The Motor Carrier Act of 1935 subjected many aspects of interstate motor carriage — including entry of persons into the business of for-hire motor transportation and the oversight of motor carrier rates — to administrative controls, on the premise that the public interest in maintaining a stable transportation industry so required. However, although aware that “Both [contract carriers and common carriers] . . . are continually faced with actual or potential competition from private truck operation . . . ,” Congress took cognizance of a shipper’s interest in furnishing his own transportation, and limited the application of the licensing requirements to those persons who provide “transportation ... for compensation” or, under a 1957 Amendment, “for-hire transportation.” The Commission, therefore, has had to decide whether a particular arrangement gives rise to that “for-hire” carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the shipper’s interest in carrying his own goods should prevail. This case is a recent instance of the Commission’s developing technique of decision.
From the beginning underlying principles have been, and have remained, clear. A primary objective of the scheme of economic regulation is to assure that shippers generally will be provided a healthy system of motor carriage to which they may resort to get their goods to market. This is the goal not only of Commission surveillance of licensed motor carriers as to rates and services, but also of the requirement that the persons from whom shippers would purchase a transportation service designed to meet the shippers’ distinctive needs must first secure Commission approval. See Contracts of Contract Carriers, 1 M. C. C. 628, 629; Keystone Transportation Co., 19 M. C. C. 475, 490-492. The statutory requirement that a certificate or permit be issued before any new for-hire carriage may be undertaken bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market. Accordingly, the statutory definitions, while confirming that a shipper is free to transport his own goods without utilizing a regulated instrumentality, at the same time deny him the use of “for compensation” or “for-hire” transportation purchased from a person not licensed by the Interstate Commerce Commission. Because the definitions must, if they are to serve their purpose, impose practical limitations upon unregulated competition in a regulated industry, they are to be interpreted in a manner which transcends the merely formal. Erom the outset the Commission has correctly interpreted them as importing that a purported private carrier who hires the instrumentalities of transportation from another must — if he is not to utilize a licensed carrier — assume in significant measure the characteristic burdens of the transportation business. The problem is one of determining — by reference to the clear but broad remedial purpose of a regulatory statute committed to agency administration — the applicability to a narrow fact situation of imprecise definitional language which delineates the coverage of the measure. Private carriers are defined simply as transporters of property who are neither common nor contract carriers; and the statute will yield up no better verbal guide to the reach of its licensing provisions than transportation “for compensation” or “for-hire.” Compare Bates & Guild Co. v. Payne, 194 U. S. 106; Rochester Tel. Corp. v. United States, 307 U. S. 125, 144-146; Gray v. Powell, 314 U. S. 402, 412-413; Labor Board v. Hearst Publications, 322 U. S. 111, 130-131. Because the Commission’s resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far developed in this area, we are of the opinion that there was no occasion for the District Court to disturb the conclusion reached by the Commission. We therefore reverse the District Court’s judgment.
It was a wish to rid itself of certain burdens of its existing transportation operation which caused Oklahoma to enter into the arrangement here involved. Prior to 1952 Oklahoma, a manufacturer of low-cost furniture, had maintained a full fleet of tractors and trailers in which all its furniture was shipped. A full crew of drivers was employed. Oklahoma absorbed all the expenses, and carried all the risks, of its transportation operation. It utilized a system of delivered pricing which eliminated transportation charges as an identifiable element of the price of its furniture. Its status as a private carrier exempt from licensing requirements was never questioned under the- pre-1952 arrangement. But that method of operation was found to incorporate certain burdensome disadvantages. Oklahoma discovered that its employee-drivers were embezzling its funds through the misuse of credit arrangements which the company had established for the purchasing of fuel and minor repairs on the road. In addition, Oklahoma became convinced that its equipment was too often involved in accidents, and too often in need of repairs and maintenance which could have been avoided by careful operation.
In an effort to eliminate these disadvantages, Oklahoma in 1952 altered its modus opemndi. It decided to terminate its investment in tractors for long hauls and, instead, to lease them from the drivers. The original lease agreements encountered difficulty when, in 1956, the Supreme Court of Arkansas held that the resultant operation constituted for-hire carriage by the owner-operators which required licensing under the applicable Arkansas statutes. Following this turn of events, Oklahoma revised the leases, and also entered into a collective agreement with the union representing its workers setting forth the terms under which the owner-operators were to be employed as drivers. The current lease and collective agreement provide the factual predicate of the present litigation.
The Company presently owns 26 trailers and 6 tractors. It leases 11 tractors for long-haul use in connection with the trailers which it owns. It is solely in connection with the 11 leased tractors and the services of their owner-operators that the Commission discerned the provision of for-hire transportation. The leases are for renewable terms of one year, but they are terminable by either party on 30 days’ notice. Oklahoma is granted the sole right to control the use of the tractor through drivers employed by it; in return, it covenants that such use will be lawful and will be confined to the transportation of the Company’s property. Oklahoma pays for its use of the tractors strictly on a mileage basis. The owner receives weekly rental payments of 10 or 11 cents for each mile the vehicle is driven, plus an extra 3 cents per mile on the backhaul if there is a load of raw materials. Oklahoma does not guarantee any minimum mileage. Operating costs — including gasoline, oil, grease, parts, and registration fees — are paid by the owners. Oklahoma assumes no responsibility for wear and tear or damage to the tractors, nor does it provide collision or fire and theft insurance coverage — although it does pay for public liability and property damage insurance. The owners assume no responsibility to Oklahoma for damage to the cargoes.
Under agreement covering the drivers among its employees, the drivers enjoy certain common employment privileges such as collective bargaining, seniority rights, death benefits, immunity from discharge except for cause, military-service protection, and vacation pay in an amount based on their average weekly pay. Owner-drivers may be discharged for cause. Their remuneration is calculated strictly on a mileage basis, and they are obliged to pay their own living expenses while on the road. No minimum weekly pay or mileage is guaranteed. Drivers are required to maintain their trucks in good running condition at all times.
Oklahoma’s actual operations were a generally faithful reflection of the leases and the collective agreement. Certain matters, not explicitly or unambiguously covered by the written instruments, are of significance. Ordinarily the drivers were assigned to their own tractors, though there were occasional exceptions. Oklahoma’s truck superintendent testified that the owner-operators’ services were not utilized each day. The owners were required to pay for all repairs, though Oklahoma conducted safety inspections. The Company closely directed all details of loading and delivery routes. It instructed the drivers as to steps to be taken in emergencies. It administered physical examinations, supervised the preparation of reports required by the Interstate Commerce Commission, paid social security taxes and withheld income taxes, and provided workmen’s compensation.
In sum, Oklahoma’s operation possessed a number of the hallmarks of a genuine lease of equipment and a genuine employment arrangement.
Still, the Company was able to spare itself — and pass to the owner-operators — certain characteristic burdens of the transportation business. The large capital investment in the tractors and the risk of their premature depreciation or catastrophic loss, was borne by the owner-operators, not by the Company. The owner-operators, rather than Oklahoma, stood the risk of a rise in variable costs such as fuel, repairs and maintenance of the tractors in good operating condition, and living expenses, although the thirty-day cancellation privilege, taken together with the possible bargaining power of the owner-operators en bloc, may have affected the degree to which that burden was actually shifted. Finally, Oklahoma was able to divest itself, to a significant extent, of the risk of non-utilization of high-priced equipment. The owner-operators received neither rental payments nor wages when their tractors were not used and they did not drive. Oklahoma did, however, carry the risk of a nonproductive backhaul.
The question before the Commission was whether, under these particular facts, Oklahoma had so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner-operators would be inconsistent with the statutory scheme. The Commission resolved the issue adversely to Oklahoma and the owner-operators. Division 1, one Commissioner dissenting, held that the owner-operators were engaged in contract carriage and ordered them to cease and desist from the activities thus found to be unlawful until such time as they had secured the necessary permits from the Commission. Applications for such permits were invited, the Division’s Report observing that the activities presently condemned should not prejudice such applications. This disposition was approved by the full Commission on reconsideration.
The Commission dealt with the problem before it by setting out two inquiries which would have to be satisfied before the operations in question could be held to constitute private carriage: First, it would have to be found that no person other than Oklahoma had “any right to control, direct, and dominate” the transportation. Second, it would have to be found that no person before the Commission was “in substance, engaged in the business of . . . transportation of property ... for hire.” The Commission found against the respondents on both tests. In connection with the first, or “control,” test the Commission pointed out that earlier decisions had established a presumption of for-hire transportation whenever equipment was leased by a shipper, which presumption might be defeated by a showing that the shipper had retained the exclusive right to control the operation. Despite the evidence of actual shipper control in this case, the Commission held that the presumption of for-hire transportation remained in effect because “There is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists.” The three-judge District Court reversed the Commission’s conclusion relative to shipper control, and that action of the District Court is not challenged by the Commission on this appeal.
But a finding of shipper control does not require a resolution of the ultimate issue in the shipper’s favor. It is true that until recently, “control” has been at the focus of the Commission’s efforts to delineate verbally the permissible area of non-licensed leases of transportation equipment. The initial technique of the Commission was to assess the lessee-shipper’s assumption of the burdens of transportation in terms of the degree to which he undertook to “control” or “dominate” it. The interest in “control” in turn generated an interest in whether the drivers of leased equipment were in substance treated as the shipper’s employees. Throughout, however, Commission reports have taken note of various factors which clearly transcend any narrow concept of physical direction of the details of the operation; and it has always been apparent that the vesting of such physical “control” in the shipper would not in itself suffice to render the transportation private carriage.
Latterly, the Commission has begun to move away from “control” as the verbal embodiment of its manifold inquiry. The Commission thus accords explicit recognition to a premise which has long been implicit in its decisions: That some indicia of private carriage may be assumed, and detailed surveillance of operations undertaken, without a shipper’s having significantly shouldered the burdens of transportation. The test of substance with which the Commission supplemented its “control” inquiry in this case thus betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of administrative discretion. No more so does the inclusion in the arrangement between Oklahoma and its owner-drivers of a number of particulars also discoverable in arrangements found to constitute private carriage m earlier Commission decisions. We deal in totalities; indicia are instruments of decision, not touchstones. The Commission allowably dealt with this novel situation as an integral and unique problem in judgment, rather than simply as an exercise in counting commonplaces. Nor did it leave the basis for its decision unarticulated.
The Commission's meaning in applying the test of substance in this case is clearly told in the following language in its report:
“Here each owner-operator assigns his motor vehicle for a continuing period of time to the exclusive use of the company, furnishing a service designed to meet the distinct need of the company. He provides a service in which the equipment is furnished, maintained, and driven by the owners thereof to transport property in interstate commerce. He guarantees a fixed and definite cost for the transportation, bears the risk of profit or loss from such transportation hazards as delays in transit, breakdowns of equipment, and highway detours, and meets all of the cost of operation including appropriate licenses and trip expenses.” 79 M. C. C., at 412.
It is evident that the Commission here refused to allow Oklahoma the status of a private carrier because of its belief that financial risks are a significant burden of transportation, and its belief that such risks had been shifted by Oklahoma to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage a departure from the statutory design. We think that such conclusions were well within the range of the responsibility Congress assigned to the Commission. The District Court explicitly recognized the propriety of the Commission’s inquiring into the substance of the arrangements. Yet the court’s conclusion that “what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators,” 193 F. Supp., at 281, rests on no articulated premise other than that Oklahoma did have control. If the court intended to hold that the Commission is confined to the “control” test, we think it clearly in error in view of the statutory objectives which we have set forth above. If, on the other hand, the court meant to substitute its judgment for the Commission’s on the question of substance, we think that, on this record, it indulged in an unwarranted incursion into the administrative domain.
Reversed.
Interstate Commerce Act § 204 (c), 49 Stat. 547, as amended, 49 U. S. C. § 304 (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.”
Interstate Commerce Act § 203 (a) (15), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (15):
“The term ‘contract carrier by motor vehicle’ means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) of this section and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.”
Interstate Commerce Act §203 (a) (14), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (14), defines “common carrier” as follows:
“The term 'common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to chapter 1 of this title, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to chapter 1 of this title.”
Interstate Commerce Act § 209 (a) (1), 49 Stat. 552, as amended, 49 U. S. C. §309 (a)(1);
“Except as otherwise provided in this section and in section 310a of this title [exceptions not here pertinent], no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business . . . .”
See also Interstate Commerce Act §203 (c), 71 Stat. 411, as amended, 49 U. S. C. § 303 (c) :
“Except as provided in section 302 (c) of this title, subsection (b) of this section, in the exception in subsection (a) (14) of this section, and in the second proviso in section 306 (a) (1) of this title [none of which exceptions are here pertinent], no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, on any public highway or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation, nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.'’
The United States intervened as defendant, 28 U. S. C. §2322, and appellee Weather-Seal and appellant Regular Common Carrier Conference intervened as plaintiff and defendant respectively, 28 U. S. C. § 2323.
Interstate Commerce Act § 203 (a) (17), 49 Stat. 545, 49 U. S. C. § 303 (a)(17):
“The term 'private carrier of property by motor vehicle’ means any person not included in the terms ‘common carrier by motor vehicle' or ‘contract carrier by motor vehicle’, who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.”
49 Stat. 543-567, as amended, 49 U. S. C. §§ 301-327.
See S. Rep. No. 482, 74th Cong., 1st Sess. 2; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 3; S. Doc. No. 152, 73d Cong., 2d Sess. 14-15, 22-23 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies).
Id., at 14.
See S. Rep. No. 482, 74th Cong., 1st Sess. 1; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 4; H. R. Doc. No. 89, 74th Cong., 1st Sess. 17 (Report of Federal Coordinator of Transportation on Transportation Legislation).
See notes 2, 5, supra.
See note 3, supra.
See S. Doc. No. 152, 73d Cong., 2d Sess. 33 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies). That concern has found recent legislative expression in a 1958 amendment designed to curb so-called “buy-sell” evasions by purported or “pseudo” private carriers. 72 Stat. 568, 574, amending the Interstate Commerce Act §203 (c), 49 U. S. C. §303 (c). See S. Rep. No. 1647, 85th Cong., 2d Sess. 23-24; H. R. Rep. No. 1922, 85th Cong., 2d Sess. 17-19.
Robinson v. Woodard, 227 Ark. 102, 296 S. W. 2d 672.
While such a discharge would not automatically terminate the affected driver’s truck-lease agreement, it seems obvious that he would immediately exercise his 30-day cancellation privilege and thus remove his truck from Oklahoma’s service.
In contrast, the short-haul drivers of company-owned tractors received $50 per week plus two cents per mile.
The provision of the collective agreement that the owner-drivers “shall be required to maintain the truck in good running condition” superseded, in the parties’ practice, Oklahoma’s undertaking in the lease agreement “to keep and maintain said motor vehicle equipment at all times while in operation under this lease agreement, in first class operating condition and in complete compliance with all safety rules and regulations of all State and Federal regulatory bodies.” See 79 M. C. C., at 406, 407; 193 F. Supp., at 278.
Oklahoma paid an extra three cents per mile rental when there was a load of raw materials in the backhaul. This differential was explained as covering the cost of additional wear and tear and fuel purchases occasioned by the heavier raw materials transported on the return trips. At least to the extent that the differential was in fact absorbed by such incremental costs, it cannot be said to have represented the shifting of any financial risk.
79 M. C. C., at 415. Appellees assert that there is no presently licensed carrier able or willing to provide the type of service essential to Oklahoma's survival as a competitor. See Brief for Henry E. Drum et al., at 3. That circumstance should be presented to and considered by the I. C. C. in passing on appellees’ permit applications ; but it is not a reason for bypassing the Commission’s licensing power if Oklahoma is not a private carrier.
R. 167.
79 M. C. C., at 409-410.
79 M. C. C., at 411.
193 F. Supp., at 281-282.
See Brief for the United States and Interstate Commerce Commission at 17, n. 8:
“In this appeal, we do not challenge the district court’s conclusion that the evidence did not warrant a finding that Oklahoma lacked full control of the details of the operation. Nor do we argue as to whether the court below gave too narrow a meaning to the Commission’s control test. We assume, for present purposes, that the court below correctly applied that test as relating only to the operational aspects of the transportation.”
We need not and we do not now pass on the Commission’s view that if the shipper does not direct the details of the operation he cannot be a private carrier.
The leading case is H. B. Church Truck Service Co., 27 M. C. C. 191, 195:
"Essentially the issue is as to who has the right to control, direct, and dominate the performance of the service. If that right remains in the carrier, the carriage is carriage for hire and subject to regulation. If it rests in the shipper, it is private carriage and not subject to regulation
It was the H. B. Church case which established the presumption that a lease of equipment results in for-hire carriage. The presumption was said to “yield to a showing that the shipper has the exclusive right and privilege of directing and controlling the transportation service, as, for example, if the equipment were operated by the shipper’s employee.” 27 M. C. C., at 196.
See, e. g., Watson Mfg. Co., 51 M. C. C. 223, 226; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665, 670.
Teamsters Union v. Oliver, 358 U. S. 283, did not, as appellees suggest (Brief for Henry E. Drum et al., at 29), hold that owner-operators are in any sense "employees.” That case held that a bargaining unit including an overwhelming majority of concededly employed drivers of carrier-owned equipment was entitled, under § 8 (d) of the National Labor Relations Act, 61 Stat. 142, 29 U. S. C. § 158 (d), to bargain to impasse concerning minimum rentals to be received by owner-drivers. It was not necessary to determine whether the owner-drivers were “employees” protected by the Act, since the establishment of the minimum rental to them was integral to the establishment of a stable wage structure for clearly covered employee-drivers. See id., at 294-295.
See, e. g., Edward Allen Carroll, 1 M. C. C. 788; Centre Trucking Co., 32 M. C. C. 313; William A. Shields, 41 M. C. C. 100; John J. Casale, Inc., 44 M. C. C. 45; Motor Haulage Co., 46 M. C. C. 107; Jacobs Transfer Co., 46 M. C. C. 265; John J. Casale, Inc., 49 M. C. C. 15; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665.
See Pacific Diesel Rental Co., 78 M. C. C. 161, 172-173:
“The primary question here . . . can be asked in two forms; namely (1) Is the transportation here involved such that any person or persons other than the purported private carriers have any right to control, direct, and dominate it, or (2) Are any persons here, in substance, engaged in the business of interstate or foreign transportation of property on the public highways for hire? . . . We are convinced here that, even if all the responsibilities of an employer with respect to the driver are assumed by a shipper, the service offered . . . is, in substance, for-hire motor carriage subject to regulation under part II of the act. To hold otherwise would be inconsistent with the remedial purpose of part II and would be in contravention of our duty, imposed by Congress .... It is evident that, were we to hold that the shipper’s assumption (as an employer) of certain responsibilities which more normally fall upon a carrier, transforms an operation which, apart from such assumption, is clearly a for-hire carrier service, into an operation different in substance, we would open the door to unfair and destructive competitive practices contrary to the national transportation policy declared by Congress.”
The courts have commonly articulated their plotting of the boundary between private and regulated carriage in leased equipment cases in terms of over-all substance, rather than simply in terms of “control.” See Georgia Truck System, Inc., v. I. C. C., 123 F. 2d 210, 212 (“[A]ppellant, in substance and in reality, operates a transportation business.”); A. W. Stickle & Co. v. I. C. C., 128 F. 2d 155, 160, 161 (test of “substance and reality”); Lamb v. I. C. C., 259 F. 2d 358, 360 (“Simply stated [the issue] ... is who was transporting the goods in question.”); B & C Truck Leasing, Inc., v. I. C. C., 283 F. 2d 163, 165 (test of “substance and effect"); I. C. C. v. Isner, 92 F. Supp. 582; United States v. La Tuff Transfer Service, 95 F. Supp. 375; I. C. C. v. Werner, 106 F. Supp. 497; cf. Bridge Auto Renting Corp. v. Pedrick, 174 F. 2d 733; John J. Casale, Inc., v. United States, 114 Ct. Cl. 599, 86 F. Supp. 167. But cf. Earle v. Babler, 180 F. 2d 1016; Vincze v. I. C. C., 267 F. 2d 577; Motor Haulage Co. v. United States, 70 F. Supp. 17, affirmed, 331 U. S. 784; I. C. C. v. Gannoe, 100 F. Supp. 790; Allen v. United States, 187 F. Supp. 625.
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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",
"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",
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] |
[
65
] |
NEW YORK GASLIGHT CLUB, INC., et al. v. CAREY
No. 79-192.
Argued February 19, 1980
Decided June 9, 1980
BlacKmtjN, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Powell, JJ., joined, and in all but n. 6 of which Burger, C. J., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 71. White and Rehnquist, JJ., filed a dissenting statement, post, p. 71.
Albert N. Proujansky argued the cause- for petitioners. With him on the brief was Marvin Luboff.
James I. Meyer son argued the cause and filed a brief, for respondent.
Harriet S. Shapiro argued the cause for the United States et al. as amid curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager
Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, Judith T. Kramer, Arnold Fleischer, and Barbara Levy, Assistant Attorneys General, and Ann Thacher Anderson for the New York State Attorney General et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee for the NAACP Legal Defense and Educational Fund, Inc.; and by Charles C. Parlin, Jr., and Peter Bienstock for the Puerto Rican Legal Defense & Education Fund, Inc,
Mr. Justice Blackmun
delivered the opinion of the Court.
This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney’s fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.
I
Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available.
The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent al-a3. As required by § 706 (c) of Title VII of the Civil Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (c), respondent’s complaint was forwarded to the New York State Division of Human Rights (Division).
In May 1975, after an investigation during which respondent was represented by counsel, the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979), recommended that a public hearing be held.
Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission “reassume” jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent’s matter as soon as possible.
The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney’s fee was awarded.
Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N. Y. Exec. Law § 297-a (McKinney 1972 and Supp. 1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared.
Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706 (b), 42 U. S. C. § 2000e-5 (b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC’s attempts at conciliation also failed. The Commission’s General Counsel chose not to sue, and, as required by § 706 (f)(1), § 2000e-5 (f)(1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706 (f)(1), then had 90 days to file a Title VII action in federal district court.
On August 26, the Appeal Board confirmed the Division’s order. Petitioners immediately appealed the Board’s decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order.
On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U. S. CL § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners’ practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney’s fees, and other appropriate relief. Petitioners’ answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense.
The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board’s determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852, 399 N. Y. S. 2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal.
On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division’s order. App. 73. One week later the New York Court of Appeals denied petitioners’ motion. 43 N. Y. 2d 951 (1978).
The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent’s request for attorney’s fees. See App. 75-79. Respondent sought an award for 82 hours of attorney’s time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29! hours were spent in defending the Division’s order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40.
In July 1978, the District Court dismissed respondent’s complaint, App. 35, but left pending the application for attorney’s fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978).
The District Court found the propriety of the EEOC’s issuance of a right-to-sue letter while state proceedings were pending “very doubtful.” Id., at 80. Although the EEOC’s action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney’s fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81.
The District Court also relied on its conclusion that respondent “had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services,” since state law, N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one of the attorneys for the Division. 458 F. Supp., at 81. The decision in Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977), upholding an award of attorney’s fees for prosecution of a federal employee’s Title VII claim in mandatory preliminary proceedings within the employee’s agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp., at 81.
A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F. 2d 1253 (1979). The court ruled: “A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney’s fees in the same manner as a party who prevails in federal court.” Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute’s strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute’s fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings.
We granted certiorari, 444 U. S. 897 (1979), to consider this question that is significant to the enforcement of the antidis-crimination provisions of Title YII.
II
Section 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k), provides:
“In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs.”
The question presented is whether, in the words of the statute, respondent was the “prevailing party” in an “action or proceeding under this title.” An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VITs enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney’s fees to persons in respondent’s situation.
The words of § 706 (k) leave little doubt that fee awards are authorized for legal work done in “proceedings” other than court actions. Congress’ use of the broadly inclusive disjunctive phrase “action or proceeding” indicates an intent to subject the losing party to an award of attorney’s fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706 (k) with another fee provision in the same Act, namely, § 204 (b) of Title II, 78 Stat. 244, 42 U. S. C. § 2000a-3 (b). The pertinent language of § 204 (b) is identical to that of § 706 (k) except that § 204 (b) permits an award only with respect to “any action commenced pursuant to this title.” The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words “or proceeding” from § 204 (b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words “or proceeding” in § 706 (k) are mere surplusage.
It might be argued that the words “or proceeding” authorize fee awards only for work done in federal administrative proceedings, such as those before the EEOC, but not for state administrative or state judicial proceedings. This reading at least would not render the words “or proceeding” a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706 (k); the purpose of § 706 (k); the humanitarian remedial policies of Title VII; and the statute’s structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion.
Section 706 (k) authorizes a fee award to the prevailing party in “any . . . proceeding under this title.” (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word “proceeding” to describe the state and local remedies to which complainants are required to resort. For example, § 706 (c), 86 Stat. 104, provides:
“[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. ... If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is, sent. . . .” (Emphasis added).
Indeed, throughout Title VII the word “proceeding,” or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial. The conclusion that fees are authorized for work done at the state and local levels is inescapable.
This Court recently examined the legislative history and purpose of §706 (k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706 (k) is “sparse,” 434 U. S., at 420, it is clear that one of Congress’ primary purposes in enacting the section was to “make it easier for a plaintiff of limited means to bring a meritorious suit.” Ibid., quoting 110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of “a private attorney general,” vindicating a policy “of the highest priority,” a prevailing plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances.” 434 U. S., at 416, 417. See also Newman v. Piggie Park Enterprises, 390 U. S., at 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney’s fee award to one in respondent’s situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim.
Title VII establishes a comprehensive enforcement scheme in which state agencies are given “a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination.” Oscar Mayer & Co. v. Evans, 441 U. S. 750, 755 (1979). Congress envisioned that Title VII’s procedures and remedies would “mes[h] nicely, logically, and coherently with the State and city legislation,” and that remedying employment discrimination would be an area in which “[t]he Federal Government and the State governments could cooperate effectively.” 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark).
Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, “no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” § 706 (c). In practice, § 706 (c) has resulted in EEOC’s development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in “suspended animation.” Id., at 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid. ,
Of course, the “ultimate authority” to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U. S. 36, 44-45 (1974). The statute authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, “as promptly as possible” it determines whether there is probable cause to believe that the charge is true. § 706 (b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706 (f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a “right to sue” letter notifying the complainant of his right to bring an action within 90 days. Ibid.
It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U. S., at 48-50.
The construction of § 706 (k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme.
The District Court felt that granting a fee award to respondent would be a “windfall” based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp., at 81. We agree with the District Court that the availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney’s fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress’ plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706 (f)(1)’s authorization óf a civil suit in federal court encompasses a suit solely to obtain an award of attorney’s fees for legal work done in state and local proceedings.
Ill
Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for which the State does not authorize fees infringes on the State’s powers under the Tenth Amendment. Second, they argue that Congress’ intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706 (k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court’s discretion.
We must reject petitioners’ Tenth Amendment argument. Congress’ power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 446 (1976).
Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress’ intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706 (k) and should not be inferred. We find these cases inapposite. Section 706 (k) does not “preempt” state law. “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.” Alexander v. Gardner-Denver Co., 415 U. S., at 48-49. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. §706 (f)(l). One aspect of complete relief is an award of attorney’s fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney’s fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to “supplement” the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706 (k) pre-empts the state rule, we believe that Congress’ intent to achieve this result is manifest.
We also find no merit in petitioners’ suggestion that denial of a fee award was within the District Court’s discretion. As noted earlier, the court’s discretion to deny a fee award to a prevailing plaintiff is narrow. Absent “special circumstances,” see Newman v. Piggie Park Enterprises, 390 U. S., at 402; Christiansburg Garment Co. v. EEOC, 434 U. S., at 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the “case in support of the complaint” is a “special circumstance” which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel.
The New York state procedure, to which respondent’s charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N. Y. Exec. Law § 297 (2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297 (4) (a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 4 — 5.
Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N. Y. Exec. Law §§297 (3) (a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant’s objections. §297 (3)(c).
If efforts at conciliation fail and a hearing is scheduled, state law provides:
“The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney.” § 297 (4) (a) (McKinney Supp. 1979).
At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5. Complainants were “encouraged” to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59.
At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N. Y. Exec. Law § 298 (McKinney Supp. 1979). The Division attorney does not represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6.
It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant’s attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process.
If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the “case in support of the complaint,” not in support of the complainant. N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.
In sum, we conclude that §§ 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney’s fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award.
The judgment of the Court of Appeals is therefore affirmed.
It is so ordered.
The Chief Justice joins the Court’s opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary.
Mr. Justice White and Mr. Justice Rehnquist would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals.
Respondent was represented by counsel employed by the NAACP Special Contribution Fund.
In cases involving federal employees, all the Courts of Appeals that have considered the question have upheld fee awards under § 706 (k) for work done in federal administrative proceedings that must be exhausted as a condition to filing an action in federal court. E. g., Brown v. Bathke, 588 F. 2d 634, 638 (CA8 1978); Fischer v. Adams, 572 F. 2d 406 (CA1 1978); Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977); Foster v. Boorstin, 182 U. S. App. D. C. 342, 561 F. 2d 340 (1977); Johnson v. United States, 554 F. 2d 632 (CA4 1977).
See, e. g., §706 (f)(1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U. S. C. §2000e-5 (f)(1) (court may stay “further proceedings” pending the termination of “State or local proceedings”); § 706 (i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (i) (Commission may commence “proceedings” to compel compliance with court order).
Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706 (b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5(b), requires the EEOC to “accord substantial weight” to a state administrative determination, and § 709 (b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U. S. C. § 2000e-8 (b), authorizes the EEOC to “cooperate with State and local agencies charged with the administration of State fair employment practices laws” in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints.
We thus disagree with the District Court that the propriety of EEOC’s issuance of the right-to-sue letter in this case is “very doubtful.” 458 F. Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings.
We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706 (f)(1) requires the EEOC to give the complainant a “right to sue” letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. §706 (f)(1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney’s fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress’ intent to encourage full use of state remedies.
The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App. Div. 2d 107, 111-112, 313 N. Y. S. 2d 28, 33 (1970), rev'd on other grounds, 29 N. Y. 2d 555, 272 N. E. 2d 884 (1971); State Division of Human Rights v. Gorton, 32 App. Div. 2d 933, 934, 302 N. Y. S. 2d 966, 968 (1969).
On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regulation requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N. Y. C. R. R. § 465.11 (d)(2),
We also reject petitioners’ argument, not suggested in the petition for certiorari, that respondent’s representation by a public interest group is a “special circumstance” that should result in denial of counsel fees. Federal Courts of Appeals’ decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F. 2d 1166 (CA1 1978); Torres v. Sachs, 538 F. 2d 10, 13 (CA2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, which is legislation similar in purpose and design to Title VIPs fee provision. See H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976).
|
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
] |
EVCO, dba EVCO INSTRUCTIONAL DESIGNS v. JONES, COMMISSIONER OF BUREAU OF REVENUE OF NEW MEXICO, et al.
No. 71-857.
Argued November 8, 1972
Decided December 4, 1972
Kendall 0. Schlenker argued the cause for petitioner. With him on the briefs was James M. Parker.
John C. Cook, Assistant Attorney General of New Mexico, argued the cause for respondents. With him on the brief was David L. Norvell, Attorney General.
Per Curiam.
The petitioner, Evco, is a New Mexico corporation that employs writers, artists, and draftsmen to create and design instructional programs. It develops an educational idea into a finished product that generally consists of reproducible originals of books, films, and magnetic audio tapes. Typical of its contracts is Evco’s agreement with the Department of Agriculture to develop camera-ready copies of programmed textbooks, notebooks, and manuals to be used in an orientation course for forest engineers. Evco’s contracts are negotiated and entered into outside New Mexico; it creates the reproducible originals in New Mexico, and then delivers them to its out-of-state clients. The customers in turn use the originals to publish however many books and manuals are needed to implement the instructional program.
The Commissioner of Revenue for New Mexico levied the State's Emergency School Tax and its Gross Receipts Tax on the total proceeds Evco received from these contracts. The company appealed this assessment to the Court of Appeals of New Mexico, arguing that these taxes on out-of-state sales imposed an unconstitutional burden on interstate commerce in violation of Art. I, § 8, of the Constitution. That court found that though the taxes were imposed on the proceeds of out-of-state sales of tangible personal property, rather than on the receipts from sales of services, such taxes were not an unconstitutional burden on commerce. 81 N. M. 724, 472 P. 2d 987. The Supreme Court of New Mexico declined to review the judgment.
In his brief in opposition to the petition for certiorari, which sought our review of that judgment, the Attorney General of New Mexico conceded that the State could not tax the receipts from sales of tangible personal property outside the State. We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for reconsideration in light of the position taken by the Attorney General. 402 U. S. 969.
On remand, the Court of Appeals adhered to its prior findings that these taxes were imposed on out-of-state sales of tangible personal property, not services, but it concluded that the constitutionality of the taxes should not depend on that distinction. It reinstated and reaffirmed its prior opinion finding the taxes constitutional. 83 N. M. 110, 488 P. 2d 1214. The Supreme Coürt of New Mexico again declined to review the case, and we granted certiorari. 405 U. S. 953.
Our prior cases indicate that a State may tax the proceeds from services performed in the taxing State, even though they are sold to purchasers in another State. Hence, in Department of Treasury v. Ingram-Richardson Mfg. Co., 313 U. S. 252, the Court upheld a state gross income tax imposed on a taxpayer engaged in the process of enameling metal parts for its customers. We accepted the finding of the court below that this was a tax on income derived from services, not from the sales of finished products, and we found irrelevant the fact that the sales were made to out-of-state customers. The tax was validly imposed on the service performed in the taxing State. See also Western Live Stock v. Bureau of Revenue, 303 U. S. 250.
But a tax levied on the gross receipts from the sales of tangible personal property in another State is an impermissible burden on commerce. In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, we rejected as unconstitutional a State’s attempt to impose a gross receipts tax on a taxpayer’s sales of road machinery to out-of-state customers.
“The vice of the statute as applied to receipts from interstate sales is that the tax includes in its measure, without apportionment, receipts derived from activities in interstate commerce; and that the exaction is of such a character that if lawful it may in substance be laid to the fullest extent by States in which the goods are sold as well as those in which they are manufactured. Interstate commerce would thus be subjected to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Id., at 311.
See also Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434.
As on the previous petition for certiorari, both parties accept these propositions, and both agree that if the findings of the Court of Appeals of New Mexico are accepted, its judgment must be reversed.
The only real dispute between the parties centers on the factual question of the nature and effect of the taxes. The State contends that these taxes were actually imposed on the receipts from services performed in the State, not on the income from the sale of property outside the State. It argues that the out-of-state purchasers actually paid for the educational programs developed in New Mexico, not for the camera-ready copies that were only incidental to the services purchased. But the Court of Appeals rejected this interpretation of the facts. It found in effect that the reproducible originals were the sine qua non of the contract and that it was the sale of that tangible personal property in another State that New Mexico had taxed. “There are no exceptional circumstances of any kind that would justify us in rejecting the . . . Court’s findings; they are not without factual foundation, and we accept them.” Lloyd A. Fry Roofing Co. v. Wood, 344 U. S. 157, 160. See also Grayson v. Harris, 267 U. S. 352, 357-358; Portland Railway, Light & Power Co. v. Railroad Comm’n, 229 U. S. 397, 411-412.
Accordingly, since the Court of Appeals approved the imposition of a tax on the proceeds of the out-of-state sales of tangible personal property, its judgment is
Reversed.
Taxes were assessed for the period January 1, 1966, through December 31, 1968. From January 1, 1966, through June 30, 1967, the petitioner’s receipts were subject to the Emergency School Tax Act. N. M. Stat. Ann. §§ 72-16-2 to 72-16-19, 1953 Compilation, repealed by N. M. Laws 1966, c. 47, § 22. From July 1, 1967, through December 31, 1968, the remainder of the taxable period, Evco’s receipts were taxed under the Gross Receipts and Compensating Tax Act. N. M. Stat. Ann. §§ 72-16A-1 to 72-16A-19, 1953 Compilation (Supp. 1971).
The court did find, however, that the receipts from sales of tangible personal property to government agencies and certain specified organizations were statutorily exempted from taxation. Those specific exemptions are not at issue here.
|
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
] |
MAHER, COMMISSIONER OF INCOME MAINTENANCE OF CONNECTICUT v. GAGNE
No. 78-1888.
Argued January 9, 1980
Decided June 25, 1980
Stevens, J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Blackmun, JJ., joined, and in Part II of which Burger, C. J., and Powell and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Burger, C. J., and Rehnquist, J., joined, post, p. 133.
Edmund C. Walsh, Assistant Attorney General of Connecticut, argued the cause for petitioner. With him on the brief was Carl R. Ajello, Attorney General.
Joan Eisenman Pilver argued the cause for respondent. With her on the brief were Michael B. Trister and David C. Shaw.
Mr. Justice Stevens
delivered the opinion of the Court.
In an action brought under 42 U. S. C. § 1983, the court, in its discretion, may allow the prevailing party to recover a reasonable attorney’s fee as part of the award of costs. The question presented by this petition is whether fees may be assessed against state officials after a case has been settled by the entry of a consent decree, without any determination that the plaintiff’s constitutional rights have been violated.
Petitioner is responsible for the administration of Connecticut’s Aid to Families with Dependent Children (AFDC), a federally funded public assistance program. Respondent is a working recipient of AFDC benefits. Under state and federal regulations, the amount of her benefits depends, in part, on her net earnings, which are defined as her wages minus certain work-related expenses. In 1975 respondent filed a complaint in the United States District Court for the District of Connecticut alleging that Connecticut’s AFDC regulations denied her credit for substantial portions of her actual work-related expenses, thus reducing the level of her benefits. Her complaint alleged that these regulations violated § 402 (a) (7) of the Social Security Act, 42 U. S. C. § 602 (a)(7), and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The complaint further alleged that relief was authorized by 42 U. S. C. § 1983 and invoked federal jurisdiction under 28 U. S. C. § 1343.
A few months after the action was commenced, while discovery was underway, petitioner amended the AFDC regulations to authorize a deduction for all reasonable work-related expenses. After an interval of almost a year and a half, respondent filed an amended complaint alleging that actual expenses in excess of certain standard allowances were still being routinely disallowed. Thereafter, a settlement was negotiated and the District Court entered a consent decree that, among other things, provided for a substantial increase in the standard allowances and gave AFDC recipients the right to prove that their actual work-related expenses were in excess of the standard. The parties informally agreed that the question whether respondent was entitled to recover attorney’s fees would be submitted to the District Court after the entry of the consent decree.
Following an adversary hearing, the District Court awarded respondent’s counsel a fee of $3,012.19. 455 F. Supp. 1344 (1978). The court held that respondent was the “prevailing party” within the meaning of § 1988 because, while not prevailing “in every particular,” she had won “substantially all of the relief originally sought in her complaint” in the consent decree. Id., at 1347. The court also rejected petitioner’s argument that an award of fees against him was barred by the Eleventh Amendment in the absence of a judicial determination that respondent’s constitutional rights had been violated. Relying on the basic policy against deciding constitutional claims unnecessarily, the court held that respondent was entitled to fees under the Act because, in addition to her statutory claim, she had alleged constitutional claims that were sufficiently substantial to support federal jurisdiction under the reasoning of Hagans v. Lavine, 415 U. S. 528.
The Court of Appeals affirmed, 594 F. 2d 336 (CA2 1979), holding that Congress intended to authorize an award of fees in this kind of situation and that it had the constitutional power to do so. We granted certiorari to consider both the statutory and constitutional questions. 444 U. S. 824.
I
Petitioner’s first argument is that Congress did not intend to authorize the award of attorney’s fees in every type of § 1983 action, but rather limited the courts’ authority to award fees to cases in which § 1983 is invoked as a remedy for a constitutional violation or a violation of a federal statute providing for the protection of civil rights or equal rights. In support of this contention, petitioner relies on our holding in Chapman v. Houston Welfare Rights Organisation, 441 U. S. 600, that there is no federal jurisdiction under § 1343 over § 1983 claims outside these categories and that there is therefore no jurisdiction under § 1343 over a § 1983 claim based solely on a violation of the Social Security Act. Characterizing respondent’s claim in this case as arising solely out of a Social Security Act violation, petitioner argues that the District Court had no authority under § 1988 to award her attorney’s fees.
Even if petitioner’s characterization of respondent’s claim were correct, his argument would have to be rejected. In Maine v. Thiboutot, ante, p. 1, decided this day, we hold that § 1988 applies to all types of § 1983 actions, including actions based solely on Social Security Act violations. As Mr. Justice Brennan’s opinion for the Court in Thihoutot demonstrates, neither the language of § 1988 nor its legislative history provides any basis for importing the distinctions Chapman made among § 1983 actions for purposes of federal jurisdiction into the award of attorney’s fees by a court that possesses jurisdiction over the claim.
We also find no merit in petitioner’s suggestion that respondent was not the “prevailing party” within the meaning of § 1988. The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff’s rights have been violated. Moreover, the Senate Report expressly stated that “for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.” S. Rep. No. 94-1011, p. 5 (1976).
Nor can we accept petitioner’s contention that respondent did not gain sufficient relief through the consent decree to be considered the prevailing party. The District Court’s contrary finding was based on its familiarity with the progress of the litigation through the pleading, discovery, and settlement negotiation stages. That finding was upheld by the Court of Appeals, and we see no reason to question its validity. See Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275.
II
Petitioner’s second argument is that, regardless of Congress’ intent, a federal court is barred by the Eleventh Amendment from awarding fees against a State in a case involving a purely statutory, non-civil-rights claim. Petitioner argues that Congress may empower federal courts to award fees against the States only insofar as it is exercising its power under § 5 of the Fourteenth Amendment to enforce substantive rights conferred by that Amendment. Thus, petitioner contends that fees can only be assessed in § 1983 actions brought to vindicate Fourteenth Amendment rights or to enforce civil rights statutes that were themselves enacted pursuant to § 5 of the Fourteenth Amendment.
In this case, there is no need to reach the question whether a federal court could award attorney’s fees against a State based on a statutory, non-civil-rights claim. For, contrary to petitioner’s characterization, respondent did allege violations of her Fourteenth Amendment due process and equal proteetion rights, which the District Court and the Court of Appeals both held to be sufficiently substantial to support federal jurisdiction under Hagans v. Lavine, 415 U. S. 528. Although petitioner is correct that the trial judge did not find any constitutional violation, the constitutional issues remained in the case until the entire dispute was settled by the entry of a consent decree. Under these circumstances, petitioner’s Eleventh Amendment claim is foreclosed by our decision in Hutto v. Finney, 437 U. S. 678.
In Hutto, we rejected the argument of the Attorney General of Arkansas that the general language of § 1988 was insufficient to overcome a State’s claim of immunity under the Eleventh Amendment, noting that “[t]he Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants.” Id., at 695. Moreover, even if the Eleventh Amendment would otherwise present a barrier to an award of fees against a State, Congress was clearly acting within its power under i 5 of the Fourteenth Amendment in removing that barrier. Under § 5 Congress may pass any legislation that is appropriate to enforce the guarantees of the Fourteenth Amendment. A statute awarding attorney’s fees to a person who prevails on a Fourteenth Amendment claim falls within the category of “appropriate” legislation. And clearly Congress was not limited to awarding fees only when a constitutional or civil rights claim is actually decided. We agree with the courts below that Congress was acting within its enforcement power in allowing the award of fees in a case in which the plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim or in one in which both a statutory and a substantial constitutional claim are settled favorably to the plaintiff without adjudication. As the Court of Appeals pointed out, such a fee award “furthers the Congressional goal of encouraging suits to vindicate constitutional rights without undermining the longstanding judicial policy of avoiding unnecessary decision of important constitutional issues.” 594 F. 2d, at 342. It is thus an appropriate means of enforcing substantive rights under the Fourteenth Amendment.
The judgment is affirmed.
So ordered.
The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, provides:
“In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the cpsts.”
This statute is codifiéá in 42 U. S. C. § 1988; in the codification § 1979 of the Revised Statutes has been renumbered to refer to § 1983 of Title 42 of the United States Code.
The action was filed against petitioner’s predecessor in oflice, Nicholas Norton, Commissioner of Welfare of the State of Connecticut. The title of the position has since been changed to “Commissioner of Income Maintenance.” We shall simply refer to the Commissioner as “petitioner.”
Connecticut’s Department of Social Services Manual provided that only certain enumerated expenses could be deducted; the amounts allowed for lunches and automobile transportation were limited to 50 cents per working day and 6 cents per mile respectively. App. 66. The complaint alleged that respondent's actual transportation expenses were 13.9 cents per mile and that her meal expenses amounted to $1.65 per day. Id., at 8.
The statute requires States to take into reasonably attributable to the earning of . . . income.” In Shea v. Vialpando, 416 U. S. 251, this Court held that participating States could not place arbitrary limits on the amount of work-related expenses that could be claimed by recipients. Although States may use standardized allowances for the sake of administrative convenience, they must give recipients the opportunity to demonstrate that their actual expenses exceed the standard.
In her complaint respondent alleged:
“28. Defendants’ practice and policy constitute an against persons whose work-related expenses exceed the allowances set forth in Index 332.31 and violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by forbidding plaintiff and the class she represents ever from controverting the presumption that their work-related expenses exceeding the transportation and food allowances of Index 332.31 are reasonable.
“32. Defendants’ practice and policy violate the Fourteenth Amendment to the United States Constitution in that:
“a) Defendants’ practice sumption that the plaintiff’s work-related transportation and lunch allowances are unreasonable and operate to deny plaintiff and the class she represents a fair opportunity to rebut it.
“b) The standard lunch and transportation aEowances Index 332.31 are arbitrary in that they were not developed by a statisti-caUy fair averaging, nor do they reflect current prices.” App. 9-10.
“Every person, who, under color any 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.”
Title 28 U. S. C. §§ 1343 (3) and (4) provide as follows:
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
“(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”
As is customary, the consent decree did not purport to adjudicate respondent’s statutory or constitutional claims. Rather, it explicitly stated that “[n]othing in this Consent Decree is intended to constitute an admission of fault by either party to this action.” App. 76.
The court rejected petitioner’s constitutional claim on two grounds. First, it held that the Eleventh Amendment does not apply to an award of attorney’s fees because such fees are ancillary to the imposition of prospective relief within the reasoning of Edelman v. Jordan, 415 U. S. 651. Second, the court held that, even if the Eleventh Amendment did apply, Congress had the power to authorize the assessment of fees in a case such as this under the Fourteenth Amendment:
“The State contends, however, that Congress’ power under the Fourteenth Amendment to override state sovereign immunity extends only to suits in which a party prevails on a constitutional claim. On this view, Congress cannot validly authorize a fee award against a state in the absence of a judicial determination that plaintiff had a meritorious constitutional claim. We disagree. We think it is within Congress’ Fourteenth Amendment power to authorize a fee award when a party prevails on a statutory claim as long as the pendent constitutional claim is a substantial one and arises out of the same operative facts. Such a fee award furthers the Congressional goal of encouraging suits to vindicate constitutional rights without undermining the longstanding judicial policy of avoiding unnecessary decision of important constitutional issues. As we understand the Supreme Court decisions, any appropriate means of implementing the Fourteenth Amendment overrides the State’s Eleventh Amendment rights, see, e. g., Fitzpatrick v. Bitzer, supra, 427 U. S., at 453, 456; Katzenbach v. Morgan, 384 U. S. 641, 648-650 (1966). We hold that the authorization of attorneys’ fees to be awarded under the standards set forth above is an appropriate way to achieve the competing goals described above.” (Emphasis in original.) 594 F. 2d, at 342-343.
Petitioner ignores the fact that respondent did allege constitutional claims which the District Court and the Court of Appeals both found to be sufficiently substantial to support federal jurisdiction under Hagans v. Lavine, 415 U. S. 528. Under these circumstances petitioner could not have prevailed on his statutory argument even if the Court had reached the opposite result in Thihoutot. See n. 15, infra.
The jurisdictional statute at issue in Chapman, 28 U. S. C. § 1343, specifically limits district court jurisdiction to cases in which the plaintiff alleges a violation of a right secured by the Constitution or by a federal statute “providing for equal rights” or “civil rights.” Inasmuch as it does not create substantive rights at all, but merely provides a remedy for the violation of rights conferred by the Constitution or other statutes, § 1983 does not fall within the category of statutes providing for equal rights or civil rights. Therefore, there is not automatically federal jurisdiction under § 1343 whenever a plaintiff files a § 1983 claim; rather, the court must look to the underlying substantive right that was allegedly violated to determine whether that right was conferred by the Constitution or by a civil rights statute.
Section 1988 does not contain language like that in § 1343. Rather, § 1988 provides that attorney’s fees may be awarded to the prevailing party “[i]n any action or proceeding to enforce [§ 1983].” Although the reference to actions “to enforce” § 1983 is somewhat imprecise in light of the fact that § 1983 does not itself create substantive rights, the legislative history makes it perfectly clear that the Act was intended to apply in any action for which § 1983 provides a remedy. See Maine v. Thiboutot, ante, at 9-10.
The Eleventh Amendment provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The Eleventh Amendment issue was not before the Court in Thiboutot because that case involved an award of fees by a state court pursuant to § 1988. Ante, at 9, n. 7.
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Referring to the argument of the Attorney General, we said:
“[H]e argues that these plain indications of legislative intent are not enough. In his view, Congress must enact express statutory language making the States hable if it wishes to abrogate their immunity. The Attorney General points out that this Court has sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See Employees v. Missouri Public Health & Welfare Dept., 411 U. S. 279; see also Edelman v. Jordan, 415 U. S. 651. But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief.
“The Act imposes attorney’s fees ‘as part of the costs.’ Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. Iowa, 7 How. 660, 681; North Dakota v. Minnesota, 263 U. S. 583 (collecting cases). The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants.
“In Fairmont Creamery Co. v. Minnesota, 275 U. S. 70, the State challenged this Court’s award of costs, but we squarely rejected the State’s claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability. The power to make the award was supported by ‘the inherent authority of the Court in the orderly administration of justice as between all parties litigant.’ Id., at 74. A federal court’s interest in orderly, expeditious proceedings ‘justifies [it] in treating the state just as any other litigant and in imposing costs upon it’ when an award is called for. Id., at 77.
“Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States’ Eleventh Amendment immunity. For it would be absurd to require an express reference to state litigants whenever a filing fee, or a new item, such as an expert witness’ fees, is added to the category of taxable costs.” 437 U. S., at 696-697 (footnotes omitted).
The legislative history makes it clear that Congress intended fees to be awarded where a pendent constitutional claim is involved, even if the statutory claim on which the plaintiff prevailed is one for which fees cannot be awarded under the Act. The Report of the Committee on the Judiciary of the House of' Representatives accompanying H. R. 15460, a bill substantially identical to the Senate bill that was finally enacted, stated:
“To the extent a plaintiff joins a claim under one of the statutes enumerated in H. R. 15460 with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F. 2d 880 (7th Cir. 1073). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. Hagans v. Lavine, 415 U. S. 528 (1974). In such cases, if the claim for which fees may be awarded meets the 'substantiality’ test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U. S. 715 (1966), attorney’s fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a 'common nucleus of operative fact.' United Mine Workers v. Gibbs, supra, at 725.” H. R. Rep. No. 94-1558, p. 4, n. 7 (1976).
Petitioner seeks to distinguish this case from Hutto v. Finney on the ground that Hutto involved an adjudication of a constitutional violation, rather than a statutory violation. However, as Mr. Justice Rehnquist noted in his dissent, 437 U. S., at 717-718, the underlying claim in Hutto was predicated on the Eighth Amendment as made applicable to the States by the Fourteenth Amendment rather than on any substantive provision of the Fourteenth Amendment itself. The prisoners’ claim in Hutto was therefore arguably more analogous to the statutory claim involved in this ease than to the constitutional claims asserted here or to the equal protection claim asserted in Fitzpatrick v. Bitzer, 427 U. S. 445.
|
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
] |
COMMISSIONER OF INTERNAL REVENUE v. CONNELLY et ux.
No. 57.
Argued October 21, 1949.
Decided November 7, 1949.
Ellis N. Slack argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant - Attorney General Caudle, Lee A. Jackson and Irving I. Axelrad.
Caesar L. Aiello argued the cause for respondents. With him on the brief was A. Murray Preston.
Mr. Justice Minton
delivered the opinion of the Court.
The question we have here is whether respondent William I. Connelly, hereafter referred to as the taxpayer, is entitled to the $1,500 exclusion from gross income provided by § 22 (b) (13) (A) of the Internal Revenue Code. The taxpayer claimed this additional allowance for the taxable years 1943 and 1944. The Commissioner disallowed the sum deducted. The Tax Court sustained the Commissioner, 8 T. C. 848, and the Court of Appeals reversed, one judge dissenting. 84 U. S. App. D. C. 260, 172 F. 2d 877. We granted certiorari. 337 U. S. 924.
On February 19, 1943, taxpayer was a civil service employee in the legal division of the Coast Guard. On that date he was enrolled as a lieutenant commander within one of the six classifications which constituted the temporary members of the Coast Guard Reserve. His enrollment was under authority of the Coast Guard Auxiliary and Reserve Act which provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” 55 Stat. 12, as amended, 56 Stat. 1021, 14 U. S. C. § 307. On April 24, 1944, he was reenrolled as a commander and his class was described as “Coast Guard Civil Service Employees.”
After enrollment taxpayer performed duties identical with those which he had previously performed. At the time he was enrolled, his civil service rating was P-5. Later this rating was raised to P-6 and his rank was increased at the same time to that of commander. He received the same pay after enrollment that he had received as a civil service employee. He received overtime pay as a civil service employee, deductions were made from his pay for civil service retirement, and he was subject to civil service regulations as to annual and sick leave. If he had been injured or killed, he would have received benefits as a civil employee of the United States. He was still subject to the Selective Training and Service Act. In the case of sickness or disease contracted while on active duty, taxpayer was entitled to the same hospital and medical care as members of the regular Coast Guard, but dental care was not included. While on active duty he was required to wear the uniform of and he received the courtesies due his rank. He was subject to the laws, regulations and orders of the Coast Guard and to disciplinary action.
It is apparent that taxpayer had a dual status. He had a limited military status with the rank of lieutenant commander and later that of commander. He had also the status of a civil service employee, carefully so limited and with all the privileges incident to such status. He was given just enough military status to enable him effectively to carry out his duties. All considerations of an economic character pertaining to his employment by the Government were related to his civil service status.
In Mitchell v. Cohen, 333 U. S. 411, we held that one employed in a department of the Federal Government as a civil service employee who was enrolled temporarily in the Volunteer Port Security Force of the Coast Guard Reserve and who worked part-time as a reservist without pay was not an “ex-serviceman” within the meaning of the Veterans’ Preference Act. Looking to the legislative history of that statute, we found that the over-shadowing purpose of the Act was to favor those who had a real record of military service.
The Court of Appeals found in this case that by the application of “long-established criteria — oath of office, military duty, and subjection to military discipline” taxpayer had acquired a military status and was thus entitled to the exclusion. We agree that he had a military status for some purposes. But the question for tax purposes is whether he received his pay in that status. To come within § 22 (b)(13)(A), he must have received his compensation “for active service as a commissioned officer.” We understand this to mean that if taxpayer received his pay as a commissioned officer, he would be entitled to the exclusion. It seems equally plain that if he received his pay as a civil service employee and served without military pay and allowances, he is not entitled to the claimed exclusion. As in the Cohen case, the emphasis of the statute is on a military and not on a civilian status.
And it is clear that taxpayer received his compensation in a civilian status. As noted, § 307 of the Coast Guard Auxiliary and Reserve Act provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” The Committee on Merchant Marine and Fisheries referred to the amendment by which the parenthetical phrase was added to the statute as being “advisable to clarify this authority [enrollment of temporary members without the pay of their military rank] and resolve any doubt of its applicability to Government employees by specifically providing for temporary membership in the Coast Guard Reserve of Government employees without military pay but with continuance in their civilian positions and the receipt of the compensation thereof.”
From the date of the enactment of the enrollment statute there seems to have been no deviation from the view that the taxpayer was to be paid as a civil service employee and not as a commissioned officer. His pay came from congressional appropriations allocated to civilian positions. His pay was at the civil service scale for his grade, with overtime pay and appropriate deductions for civil service retirement. His continuing civilian status is underlined by his receipt of a civil service promotion, from which his military promotion resulted. Indeed, the taxpayer’s certificate of disenrollment described the duty performed as “Chief of Admiralty and Maritime Section having civil service status, receiving civilian but no military pay, and holding rank of Commander as a Temporary Member of the Coast Guard Reserve.”
The Court of Appeals ignored the status in which taxpayer was compensated and gave effect to his military status which was provided only to facilitate the performance of his duties in wartime. Taxpayer’s rank was for the purpose of getting the job done, and not for the purpose of receiving compensation.
The judgment of the Court of Appeals is
Reversed.
Mr. Justice Frankfurter and Mr. Justice Douglas took no part in the consideration or decision of this case.
As amended by Revenue Act of 1945, § 141 (a), 59 Stat. 571:
“(13) Additional allowance for military and naval personnel.—
“ (A) In the case of compensation received ... for active service as a commissioned officer ... in the military or naval forces of the United States ... so much of such compensation as does not exceed $1,500.”
These classifications and the organization of the Coast Guard Reserve are detailed in Mitchell v. Cohen, 333 U. S. 411, 412-14.
See Judge Edgerton, dissenting in part, below:
“. . .1 would be unable, in view of the rule that tax exemptions are strictly construed, to say that the compensation of a man who did not receive a commissioned officer’s pay but served ‘without pay other than the compensation of [his] civilian positions’ was ‘received ... for active service as a commissioned officer.’ ” 84 U. S. App. D. C. at 263, 172 F. 2d at 880.
H. R. Rep. No. 2525, 77th Cong., 2d Sess., 3 (1942). The Committee added that the amendment “would obviate any possible impairment of the right of such employees to continue to receive the compensation of their civilian positions for the entire period of their performance of active Coast Guard duty as such temporary members. There will be little, if any, change in the nature of their duties after enrollment.”
Office Memorandum No. 13-43 issued by the Commandant of the Coast Guard on July 24,1943, states:
“6. The attention of heads of offices and chiefs of divisions is invited to the fact that one of the principal reasons for the induction of civil service employees into the military establishment as temporary members of the Reserve was to obtain a homogeneous organization on a military basis and to eliminate differences in procedure and practices applicable to military personnel and civil service personnel engaged on exactly the same duty . . . ."
|
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
] |
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. GEORGETOWN UNIVERSITY HOSPITAL et al.
No. 87-1097.
Argued October 11, 1988
Decided December 12, 1988
Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Acting Solicitor General Ayer, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Deputy Assistant Attorney General Spears, John F. Cordes, Mark W. Pennak, Ronald E. Robertson, Terry Coleman, and Henry R. Goldberg.
Ronald N. Sutter argued the cause for respondents. With him on the brief were Mary Susan Philp and Thomas K. Hyatt.
Briefs of amici curiae urging affirmance were filed for Sisters of Mercy Health Corp. et al. by James K. Robinson and Anthony A. Derezinski; and for the American Hospital Association by Linda A. Tomaselli and Robert A. Klein.
Justice Kennedy
delivered the opinion of the Court.
Under the Medicare program, health care providers are reimbursed by the Government for expenses incurred in providing medical services to Medicare beneficiaries. See Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq. (the Medicare Act). Congress has authorized the Secretary of Health and Human Services to promulgate regulations setting limits on the levels of Medicare costs that will be reimbursed. The question presented here is whether the Secretary may exercise this rulemaking authority to promulgate cost limits that are retroactive.
I
The Secretary’s authority to adopt cost-limit rules is established by § 223(b) of the Social Security Amendments of 1972, 86 Stat. 1393, amending 42 U. S. C. § 1395x(v)(l)(A). This authority was first implemented in 1974 by promulgation of a cost-limit schedule for hospital services; new cost-limit schedules were issued on an annual basis thereafter.
On June 30, 1981, the Secretary issued a cost-limit schedule that included technical changes in the methods for calculating cost limits. One of these changes affected the method for calculating the “wage index,” a factor used to reflect the salary levels for hospital employees in different parts of the country. Under the prior rule, the wage index for a given geographic area was calculated by using the average salary levels for all hospitals in the area; the 1981 rule provided that wages paid by Federal Government hospitals would be excluded from that computation. 46 Fed. Reg. 33637, 33638-33639 (1981).
Various hospitals in the District of Columbia area brought suit in United States District Court seeking to have the 1981 schedule invalidated. On April 29, 1983, the District Court struck down the 1981 wage-index rule, concluding that the Secretary had violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., by failing to provide notice and an opportunity for public comment before issuing the rule. See District of Columbia Hospital Assn. v. Heckler, No. 82-2520, App. to Pet. for Cert. 49a (hereinafter DCHA). The court did not enjoin enforcement of the rule, however, finding it lacked jurisdiction to do so because the hospitals had not yet exhausted their administrative reimbursement remedies. The court’s order stated:
“If the Secretary wishes to put in place a valid prospective wage index, she should begin proper notice and comment proceedings; any wage index currently in place that has been promulgated without notice and comment is invalid as was the 1981 schedule.” DOHA, App. to Pet. for Cert. 64a.
The Secretary did not pursue an appeal. Instead, after recognizing the invalidity of the rule, see 48 Fed. Reg. 39998 (1983), the Secretary settled the hospitals’ cost reimbursement reports by applying the pre-1981 wage-index method.
In February 1984, the Secretary published a notice seeking public comment on a proposal to reissue the 1981 wage-index rule, retroactive to July 1, 1981. 49 Fed. Reg. 6175 (1984). Because Congress had subsequently amended the Medicare Act to require significantly different cost reimbursement procedures, the readoption of the modified wage-index method was to apply exclusively to a 15-month period commencing July 1, 1981. After considering the comments received, the Secretary reissued the 1981 schedule in final form on November 26, 1984, and proceeded to recoup sums previously paid as a result of the District Court’s ruling in DCHA. 49 Fed. Reg. 46495 (1984). In effect, the Secretary had promulgated a rule retroactively, and the net result was as if the original rule had never been set aside.
Respondents, a group of seven hospitals who had benefited from the invalidation of the 1981 schedule, were required to return over $2 million in reimbursement payments. After exhausting administrative remedies, they sought judicial review under the applicable provisions of the APA, claiming that the retroactive schedule was invalid under both the APA and the Medicare Act.
The United States District Court for the District of Columbia granted summary judgment for respondents. Applying the balancing test enunciated in Retail, Wholesale and De partment Store Union, AFL-CIO v. NLRB, 151 U. S. App. D. C. 209, 466 F. 2d 380 (1972), the court held that retroactive application was not justified under the circumstances of the case.
The Secretary appealed to the United States Court of Appeals for the District of Columbia Circuit, which affirmed. 261 U. S. App. D. C. 262, 821 F. 2d 750 (1987). The court based its holding on the alternative grounds that the APA, as a general matter, forbids retroactive rulemaking, and that the Medicare Act, by specific terms, bars retroactive cost-limit rules. We granted certiorari, 485 U. S. 903 (1988), and we now affirm.
II
It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress. In determining the validity of the Secretary’s retroactive cost-limit rule, the threshold question is whether the Medicare Act authorizes retroactive rulemaking.
Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. E. g., Greene v. United States, 376 U. S. 149, 160 (1964); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 164 (1944); Miller v. United States, 294 U. S. 435, 439 (1935); United States v. Magnolia Petroleum Co., 276 U. S. 160, 162-163 (1928). By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. See Brimstone R. Co. v. United States, 276 U. S. 104, 122 (1928) (“The power to require readjustments for the past is drastic. It. . . ought not to be extended so as to permit unreasonably harsh action without very plain words”). Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.
The Secretary contends that the Medicare Act provides the necessary authority to promulgate retroactive cost-limit rules in the unusual circumstances of this case. He rests on alternative grounds: first, the specific grant of authority to promulgate regulations to “provide for the making of suitable retroactive corrective adjustments,” 42 U. S. C. § 1395x(v)(l)(A)(ii); and second, the general grant of authority to promulgate cost limit rules, §§ 1395x(v)(l)(A), 1395hh, 1395Ü. We consider these alternatives in turn.
A
The authority to promulgate cost-reimbursement regulations is set forth in § 1395x(v)(l)(A). That subparagraph also provides that:
“Such regulations shall. . . (ii) provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive. ” Ibid.
This provision on its face permits some form of retroactive action. We cannot accept the Secretary’s argument, however, that it provides authority for the retroactive promulgation of cost-limit rules. To the contrary, we agree with the Court of Appeals that clause (ii) directs the Secretary to establish a procedure for making case-by-case adjustments to reimbursement payments where the regulations prescribing computation methods do not reach the correct result in individual cases. The structure and language of the statute require the conclusion that the retroactivity provision applies only to case-by-case adjudication, not to rulemaking.
Section 1395x(v)(l)(A), of which clause (ii) is a part, directs the Secretary to promulgate regulations (including cost-limit rules) establishing the methods to be used in determining reasonable costs for “institutions” and “providers” that participate in the Medicare program. Clause (i) of § 1395x(v)(l)(A) requires these cost-method regulations to take into account both direct and indirect costs incurred by “providers.” Clause (ii) mandates that the cost-method regulations include a mechanism for making retroactive corrective adjustments. These adjustments are required when, for “a provider,” the “aggregate reimbursement produced by the methods of determining costs” is too low or too high. By its terms, then, clause (ii) contemplates a mechanism for adjusting the reimbursement received by a provider, while the remainder of § 1395x(v)(l)(A) speaks exclusively in the plural. The distinction suggests that clause (ii), rather than permitting modifications to the cost-method rules in their general formulation, is intended to authorize case-by-case inquiry into the accuracy of reimbursement determinations for individual providers. Indeed, it is difficult to see how a corrective adjustment could be made to the aggregate reimbursement paid “a provider” without performing an individual examination of the provider’s expenditures in retrospect.
Our conclusion is buttressed by the statute’s use of the term “adjustments.” Clause (ii) states that the cost-method regulations shall “provide for the making of . . . adjustments.” In order to derive from this language the authority to promulgate cost-limit rules, the “adjustments” that the cost-method regulations must “provide for the making of” would themselves be additional cost-method regulations. Had Congress intended the Secretary to promulgate regulations providing for the issuance of further amendatory regulations, we think this intent would have been made explicit.
It is also significant that clause (ii) speaks in terms of adjusting the aggregate reimbursement amount computed by one of the methods of determining costs. As the Secretary concedes, the cost-limit rules are one of the methods of determining costs, and the retroactive 1984 rule was therefore an attempt to change one of those methods. Yet nothing in clause (ii) suggests that it permits changes in the methods used to compute costs; rather, it expressly contemplates corrective adjustments to the aggregate amounts of reimbursement produced pursuant to those methods. We cannot find in the language of clause (ii) an independent grant of authority to promulgate regulations establishing the methods of determining costs.
Our interpretation of clause (ii) is consistent with the Secretary’s past implementation of that provision. The regulations promulgated immediately after enactment of the Medicare Act established a mechanism for making retroactive corrective adjustments that remained essentially unchanged throughout the periods relevant to this case. Compare 20 CFR §§405.451(b)(1), 405.454(a), (f) (1967), with 42 CFR §§405.451(b)(1), 405.454(a), (f) (1983). These regulations provide for adjusting the amount of interim payments received by a provider, to bring the aggregate reimbursement into line with the provider’s actual reasonable costs.
These are the only regulations that expressly contemplate the making of retroactive corrective adjustments. The 1984 reissuance of the 1981 wage-index rule did not purport to be such a provision; indeed, it is only in the context of this litigation that the Secretary has expressed any intent to characterize the rule as a retroactive corrective adjustment under clause (ii).
Despite the novelty of this interpretation, the Secretary contends that it is entitled to deference under Young v. Community Nutrition Institute, 476 U. S. 974, 980-981 (1986), Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985), and Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984). We have never applied the principle of those cases to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice. To the contrary, we have declined to give deference to an agency counsel’s interpretation of a statute where the agency itself has articulated no position on the question, on the ground that “Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Investment Company Institute v. Camp, 401 U. S. 617, 628 (1971); cf. Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962) (“The courts may not accept appellate counsel’s post hoc rationalizations for agency [orders]”). Even if we were to sanction departure from this principle in some cases, we would not do so here. Far from being a reasoned and consistent view of the scope of clause (ii), the Secretary’s current interpretation of clause (ii) is contrary to the narrow view of that provision advocated in past cases, where the Secretary has argued that clause (ii) “merely contemplates a year-end balancing of the monthly installments received by a provider with the aggregate due it for the year.” Regents of the University of California v. Heckler, 771 F. 2d 1182, 1189 (CA9 1985); see also Whitecliff Inc. v. United States, 210 Ct. Cl. 53, 60, n. 11, 536 F. 2d 347, 352, n. 11 (1976), cert. denied, 430 U. S. 969 (1977). Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate. Accordingly, the retroactive rule cannot be upheld as an exercise of the Secretary’s authority to make retroactive corrective adjustments.
B
The statutory provisions establishing the Secretary’s general rulemaking power contain no express authorization of retroactive rulemaking. Any light that might be shed on this matter by suggestions of legislative intent also indicates that no such authority was contemplated. In the first place, where Congress intended to grant the Secretary the authority to act retroactively, it made that intent explicit. As discussed above, § 1395x(v)(l)(A)(ii) directs the Secretary to establish procedures for making retroactive corrective adjustments; in view of this indication that Congress considered the need for retroactive agency action, the absence of any express authorization for retroactive cost-limit rules weighs heavily against the Secretary’s position.
The legislative history of the cost-limit provision directly addresses the issue of retroactivity. In discussing the authority granted by § 223(b) of the 1972 amendments, the House and Senate Committee Reports expressed a desire to forbid retroactive cost-limit rules: “The proposed new authority to set limits on costs . . . would be exercised on a prospective, rather than retrospective, basis so that the provider would know in advance the limits to Government recognition of incurred costs and have the opportunity to act to avoid having costs that are not reimbursable.” H. R. Rep. No. 92-231, p. 83 (1971); see S. Rep. No. 92-1230, p. 188 (1972).
The Secretary’s past administrative practice is consistent with this interpretation of the statute. The first regulations promulgated under § 223(b) provided that “[t]hese limits will be imposed prospectively. . . .” 20 CFR § 405.460(a) (1975). Although the language was dropped from subsection (a) of the regulation when it was revised in 1979, the revised regulation continued to refer to “the prospective periods to which limits are being applied,” and it required that notice of future cost limits be published in the Federal Register “[p]rior to the beginning of a cost period to which limits will be applied ____” 42 CFR §§405.460(b)(2), (3) (1980). Finally, when the regulations were amended again in 1982, the Secretary reinserted the requirement that the limits be applied with prospective effect, noting that the language had been “inadvertently omitted” in the previous amendment but that the reinsertion would “have no effect on the way we develop or apply the limits.” 47 Fed. Reg. 43282, 43286 (1982); see 42 CFR § 405.460(a)(2) (1983).
Other examples of similar statements by the agency abound. Every cost-limit schedule promulgated by the Secretary between 1974 and 1981, for example, included a statement that § 223 permits the Secretary to establish “prospective” limits on the costs that are reimbursed under Medicare. The Secretary’s administrative rulings have also expressed this understanding of § 223(b). See Beth Israel Hospital v. Blue Cross Assn./Blue Cross/Blue Shield of Massachusetts, CCH Medicare and Medicaid Guide ¶ 31, 645 (Nov. 7, 1981).
The Secretary nonetheless suggests that, whatever the limits on his power to promulgate retroactive regulations in the normal course of events, judicial invalidation of-a prospective rule is a unique occurrence that creates a heightened need, and thus a justification, for retroactive curative rule-making. The Secretary warns that congressional intent and important administrative goals may be frustrated unless an invalidated rule can be cured of its defect and made applicable to past time periods. The argument is further advanced that the countervailing reliance interests are less compelling than in the usual case of retroactive rulemaking, because the original, invalidated rule provided at least some notice to the individuals and entities subject to its provisions.
Whatever weight the Secretary’s contentions might have in other contexts, they need not be addressed here. The case before us is resolved by the particular statutory scheme in question. Our interpretation of the Medicare Act compels the conclusion that the Secretary has no authority to promulgate retroactive cost-limit rules.
The 1984 reinstatement of the 1981 cost-limit rule is invalid. The judgment of the Court of Appeals is
Affirmed.
The Courts of Appeals have not spoken in one voice in construing this provision. Some courts have held that clause (ii) permits the Secretary to promulgate retroactive regulations. E. g., Tallahassee Memorial Regional Medical Center v. Bowen, 815 F. 2d 1435, 1453-1454 (CA11 1987), cert. denied, 485 U. S. 1020 (1988); Fairfax Nursing Center, Inc. v. Califano, 590 F. 2d 1297, 1300 (CA4 1979); Springdale Convalescent Center v. Mathews, 545 F. 2d 943, 954-955 (CA5 1977). The Court of Appeals for the Third Circuit has reached the opposite conclusion, construing clause (ii) to provide for nothing more than a year-end balancing of individual providers’ cost-reimbursement accounts. Daughters of Miriam Center for the Aged v. Mathews, 590 F. 2d 1250, 1258, n. 23 (1978). Other courts, without deciding whether clause (ii) permits rulemaking, have held that it requires the Secretary to make case-by-case adjustments to reimbursement determinations. E. g., St. Paul-Ramsey Medical Center v. Bowen, 816 F. 2d 417, 419-420 (CA8 1987); Regents of the University of California v. Heckler, 771 F. 2d 1182, 1188-1189 (CA9 1985).
` It is clear from the language of these provisions that they are intended to implement the Secretary’s authority under clause (ii):
“These regulations also provide for the making of suitable retroactive adjustments after the provider has submitted fiscal and statistical reports. The retroactive adjustment will represent the difference between the amount received by the provider during the year for covered services from both [the Medicare program] and the beneficiaries and the amount determined in accordance with an accepted method of cost apportionment to be the actual cost of services rendered to beneficiaries during the year.” 20 CFR § 405.451(b)(1) (1967); 42 CFR § 405.451(b)(1) (1983).
Section 223(b) of the 1972 amendments amended the Medicare Act to state that the Secretary’s regulations for computing reasonable costs may “provide for the establishment of limits on the direct or indirect overall incurred costs or incurred costs of specific items or services or groups of items or services to be recognized as reasonable based on estimates of the costs necessary in the efficient delivery of needed health services to individuals covered by the insurance programs established under this sub-chapter . . . .” 42 U. S. C. § 1395x(v)(l)(A).
Section 1395hh provides that “[t]he Secretary shall prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter.” Finally, § 1395Ü incorporates 42 U. S. C. § 405(a), which provides that “[t]he Secretary shall have full power and authority to make rules and regulations . . . , not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions . . . .”
See 46 Fed. Reg. 48010 (1981); id., at 33637; 45 Fed. Reg. 41868 (1980); 44 Fed. Reg. 31806 (1979); 43 Fed. Reg. 43558 (1978); 42 Fed. Reg. 53675 (1977); 41 Fed. Reg. 26992 (1976); 40 Fed. Reg. 23622 (1975); 39 Fed. Reg. 20168 (1974); see also 48 Fed. Reg. 39998 (1983) (notice of invalidation of 1981 cost-limit schedule). Even the notice of proposed rulemaking concerning reissuance of the 1981 schedule contained the statement that § 223 “authorizes the Secretary to set prospective limits on the costs that are reimbursed under Medicare.” 49 Fed. Reg. 6175, 6176 (1984). Interestingly, this statement does not appear in the final notice announcing the reissuance of the 1981 schedule. Id., at 46495.
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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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[
62
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WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. JOHNSON et al.
No. 83-747.
Argued April 24, 1984
Decided June 26, 1984
E. Barrett Prettyman, Jr., argued the cause for petitioner. With him on the briefs were Vincent H. Cohen, Walter A. Smith, Jr., Robert B. Cave, Susan M. Hoffman, and Arthur Larson.
William F. Mulroney argued the cause for respondents. With him on the brief were Peter J. Vangsnes and James M. Hanny
Briefs of amici curiae urging reversal were filed for the Alliance of American Insurers by Thomas D. Wilcox; for the Commonwealth of Virginia et al. by Gerald L. Baliles, Attorney General of Virginia, and Stephen H. Sachs, Attorney General of Maryland; and for the National Association of Minority Contractors by Frederick B. Abramson.
Laurence T. Scott, J. Joseph Barse, and Pamela Bresnahan filed a brief for Machean-Grove-Skanska Joint Venture et al. as amici curiae urging affirmance.
Justice Marshall
delivered the opinion of the Court.
Section 4(a) of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA or Act), 44 Stat. (part 2) 1426, 33 U. S. C. § 904(a), makes general contractors responsible for obtaining workers’ compensation coverage for the employees of subcontractors under certain circumstances. The question presented by this case is when, if ever, these general contractors are entitled to the immunity from tort liability provided in §5(a) of the Act, 33 U. S. C. § 905(a).
Petitioner Washington Metropolitan Area Transit Authority (WMATA) is a government agency created in 1966 by the District of Columbia, the State of Maryland, and the Commonwealth of Virginia with the consent of the United States Congress. WMATA is charged with the construction and operation of a rapid transit system (Metro) for the District of Columbia and the surrounding metropolitan region. Under the interstate compact that governs its existence, WMATA is authorized to hire subcontractors to work on various aspects of the Metro construction project. Since 1966 WMATA has engaged several hundred subcontractors, who in turn have employed more than a thousand sub-subcontractors.
Of the multifarious problems WMATA faced in constructing the Metro system, one has been ensuring that workers engaged in the project in the District of Columbia are covered by workers’ compensation insurance. Under §4(a) of the LHWCA, general contractors “shall be liable for. and shall secure the payment of [workers’] compensation to employees of the subcontractor unless the subcontractor has secured such payment.” 33 U. S. C. § 904(a). A company “secures” compensation either by purchasing an insurance policy or by obtaining permission from the Secretary of Labor to self-insure and make compensation payments directly to injured workers. 33 U. S. C. § 932(a). The effect of §4(a) is to require general contractors like WMATA to obtain workers’ compensation coverage for the employees of subcontractors that have not secured their own compensation. See infra, at 938.
During the initial phase of Metro construction, which ran from 1969 to 1971, WMATA relied upon its subcontractors to purchase workers’ compensation insurance for subcontractor employees. However, when the second phase of construction began, WMATA abandoned this policy in favor of a more centralized insurance program. As a financial matter, WMATA discovered that it could reduce the cost of workers’ compensation insurance if it, rather than its numerous subcontractors, arranged for insurance. Practical considerations also influenced WMATA’s decision to change its workers’ compensation program. Requiring subcontractors to purchase their own insurance apparently hampered WMATA’s affirmative action program, because many minority subcontractors were unable to afford or lacked sufficient business experience to qualify for their own workers’ compensation insurance policies. Moreover, as the number of Metro subcontractors grew, it became increasingly burdensome for WMATA to monitor insurance coverage at every tier of the Metro hierarchy. Periodically, subcontractors’ insurance would expire or their insurance companies would go out of business without WMATA’s being informed. In such cases, a group of employees went uninsured, and WMATA technically breached its statutory duty to ensure that these employees were covered by compensation plans.
For all of these reasons, WMATA elected to assume responsibility for securing workers’ compensation insurance for all Metro construction employees. Effective July 31, 1971, WMATA purchased a comprehensive “wrap-up” policy from the Lumberman’s Mutual Casualty Co. Under the policy, WMATA paid a single premium and, in return, Lumberman’s Mutual agreed to make compensation payments for any injuries suffered by workers employed at Metro construction sites and compensable under the relevant workers’ compensation regimes. After arranging for this “wrap-up” coverage, WMATA informed potential subcontractors that WMATA would “for the benefit of contractors and others, procure and pay premiums” for workers’ compensation insurance and that the cost of securing such compensation insurance need no longer be included in bids submitted for Metro construction jobs. App. 104, 106. Subcontractors, however, were also advised that, if they deemed it necessary, they could “at their own expense and effort” obtain their own workers’ compensation insurance. Id., at 104. Once subcontractors were awarded Metro contracts, Lumberman’s Mutual issued certificates of insurance confirming that the subcontractor’s employees were covered by WMATA’s policy. On these certificates, both WMATA and the subcontractor were listed as parties to whom the insurance was issued. Id., at 225.
Respondents are employees of subcontractors engaged in the Metro project. Each respondent filed a compensation claim for work-related injuries. Most of these claims alleged respiratory injuries caused by high levels of silica dust and other industrial pollutants at Metro sites. None of respondents’ employers had secured its own workers’ compensation insurance, and respondents’ claims were therefore handled under the Lumberman’s Mutual policy purchased by WMATA. Lumberman’s Mutual paid five of the respondents lump-sum compensation awards in complete settlement of their claims. The remaining two respondents received partial awards from Lumberman’s Mutual.
The instant litigation arose when respondents attempted to supplement their workers’ compensation awards by bringing tort actions against WMATA. These suits, which were filed before five different judges in the United States District Court for the District of Columbia, involved the same work-related incidents that had given rise to respondents’ LHWCA claims. In each of the actions, WMATA moved for summary judgment on the ground that it was immune from tort liability for such claims under § 5(a) of the LHWCA, 33 U. S. C. § 905(a). In all of the District Court cases, WMATA’s motions for summary judgment were granted, each judge agreeing that, by purchasing workers’ compensation insurance for the employees of its subcontractors, WMATA had earned §5(a)’s immunity from tort suits brought for work-related injuries.
In a consolidated appeal, the United States Court of Appeals for the District of Columbia Circuit reversed. Johnson v. Bechtel Associates Professional Corp., 230 U. S. App. D. C. 297, 717 F. 2d 574 (1983). The Court of Appeals reasoned that § 5(a) of the LHWCA grants general contractors immunity from tort actions by subcontractor employees only if the general contractor has secured compensation insurance in satisfaction of a statutory duty. According to the Court of Appeals, WMATA had not acted under such a duty in this case. Had respondents’ employers actually refused to secure the worker’s compensation insurance, then WMATA as general contractor would have had what the Court of Appeals considered a statutory duty to secure insurance for respondents. However, WMATA never gave respondents’ employers the opportunity to default on their statutory obligations to secure compensation; WMATA pre-empted its subcontractors through its unilateral decision to purchase a “wrap-up” policy covering all subcontractor employees. The Court of Appeals concluded that, by pre-empting its subcontractors, WMATA acted voluntarily, and was therefore not entitled to §5(a)’s immunity. We granted WMATA’s petition for a writ of certiorari, 464 U. S. 1068 (1984), and we now reverse.
I — I I — I
Workers compensation statutes, such as the LHWCA, “provide for compensation, in the stead of liability, for a class of employees.” S. Rep. No. 973, 69th Cong., 1st Sess., 16 (1926). These statutes reflect a legislated compromise between the interests of employees and the concerns of employers. On both sides, there is a quid pro quo. In return for the guarantee of compensation, the employees surrender common-law remedies against their employers for work-related injuries. For the employer, the reward for securing compensation is immunity from employee tort suits. See Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U. S. 624, 636 (1983); Potomac Electric Power Co. v. Director, OWCP, 449 U. S. 268, 282, and n. 24 (1980); see also 2A A. Larson, Law of Workmen’s Compensation § 72.31(c) (1982).
In the case of the LHWCA, §4(a)(b) and §5(a) codify the compromise at the heart of workers’ compensation. The relevant portions of these provisions read as follows:
“Sec. 4. (a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 7, 8, 9. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment.
“(b) Compensation shall be payable irrespective of fault as a cause for the injury.” 44 Stat. (part 2) 1426, 33 U. S. C. §§ 904(a), (b).
“Sec. 5. (a) The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee . . . , except that if an employer fails to secure payment of compensation as required by this Act, an injured employee . . . may elect to claim compensation under this Act, or to maintain an action at law or in admiralty for damages . . . .” 86 Stat. 1263, 33 U. S. C. § 905(a).
The current case stems from an ambiguity in the wording of these sections. It is unclear how §5(a)’s grant of immunity applies to the contractors mentioned in §4(a). This interpretative question divides into two distinct inquiries. First, does § 5(a)’s grant of immunity ever extend to general contractors? And second, if § 5(a) can extend to general contractors, what must a contractor do to qualify for §5(a)’s immunity? We will consider these questions in turn.
A
The language of § 5(a)’s grant of immunity does not effortlessly embrace contractors. Section 5(a) speaks in terms of “an employer” and, at least as far as the employees of subcontractors are concerned, a general contractor does not act as an employer.
A few courts have accepted a literal reading of the language of §5(a) and analogous state immunity provisions. For instance, in Fiore v. Royal Painting Co., 398 So. 2d 863, 865 (1981), a Florida appellate court concluded: “Only the actual employer . . . may get under the immunity umbrella of [33 U. S. C.] § 905.” Similarly, in interpreting an almost identical provision of New York workers’ compensation law, the New York Court of Appeals has reasoned that tort immunity should not apply to contractors because “‘[t]he word “employee” denotes a contractual relationship’” and a contractor never is contractually bound to the employees of a subcontractor. Sweezey v. Arc Electrical Construction Co., 295 N. Y. 306, 310-311, 67 N. E. 2d 369, 370-371 (1946) (quoting Passarelli Columbia Engineering and Contracting Co., 270 N. Y. 68, 75, 200 N. E. 583, 585 (1936)).
The more widely held view, however, is that the term “employer” as used in § 5(a) has a statutory definition somewhat broader than that word’s ordinary meaning. The majority of courts considering the issue, including the Court of Appeals in this case, have concluded that § 5(a)’s tort immunity can extend to general contractors, at least when the contractor has fulfilled its responsibilities to secure compensation for subcontractor employees in accordance with the requirements of §4(a). See, e. g., Johnson v. Bechtel Associates Professional Corp., supra, at 302, 717 F. 2d, at 581; Thomas v. George Hyman Construction Co., 173 F. Supp. 381, 383 (DC 1959); DiNicola v. George Hyman Construction Co., 407 A. 2d 670, 674 (D. C. 1979).
In choosing between these conflicting interpretations of § 5(a), we are predisposed in favor of the majority view that tort immunity should extend to contractors. This position is presumptively the better view because it is more consistent with the compromise underlying the LHWCA. The reward for securing compensation and assuming strict liability for worker-related injuries has traditionally been immunity from tort liability. See supra, at 931-932. “Since the general contractor is [by the operation of provisions like §4(a) of the LHWCA], in effect, made the employer for the purposes of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third-party suit when the facts are such that he could be made liable for compensation.” 2A Larson, supra, § 72.31(a), at 14-112.
Our only difficulty in adopting the majority view is that it requires a slightly strained reading of the word “employer.” As we have repeatedly admonished courts faced with technical questions arising under the LHWCA, “the wisest course is to adhere closely to what Congress has written.” Rodriguez v. Compass Shipping Co., 451 U. S. 596, 617 (1981); see Director, OWCP v. Rasmussen, 440 U. S. 29, 47 (1979). Absent convincing evidence of contrary congressional intent, we are reluctant to depart from this sound canon of statutory construction. However, upon reviewing the use of the term “employer” elsewhere in the Act, we find ample evidence to infer that Congress intended the term “employer” to include general contractors as well as direct employers.
The second sentence of §4(a) provides that “unless the subcontractor has secured [worker’s] compensation,” the contractor “shall secure the payment of such compensation.” This section clearly assumes that contractors have the capacity to secure compensation for subcontractor employees. Securing compensation is a term of art in this area of law. Under the LHWCA, compensation can be secured only through the procedures outlined in § 32(a) of the LHWCA. See supra, at 928. However, § 32(a) speaks only of insurance being secured by an “employer.” 33 U. S. C. § 932(a). Because the LHWCA requires that contractors secure compensation for subcontractor employees under certain circumstances, the term “employer” as used in § 32(a) must be read to encompass general contractors.
Similarly, under § 4(a), contractors are made liable for payment of “compensation payable under sections 7, 8, and 9.” These three sections refer exclusively to employers’ making payments; they contain no references to contractors. See 33 U. S. C. §§ 907(a), 908(f). For purposes of these sections as well, contractors would appear to qualify as statutory employers.
Further evidence that contractors can be employers under the LHWCA is found in § 33(b), which governs the assignment of an injured worker’s right to recover damages from third parties to the worker’s “employer.” 33 U. S. C. § 933(b); see Rodriguez v. Compass Shipping Co., supra. It is difficult to believe that Congress did not intend for contractors making compensation payments under §4(a) to receive assignments under § 33(b) or that Congress wanted the assignment to run to a worker’s actual employer, who may never have secured any compensation insurance. Accordingly, it seems highly probable that “employer” as used in § 33(b) also covers contractors.
Finally, there are the enforcement provisions of § 38 of the Act, 33 U. S. C. § 938. It is generally assumed that contractors who fail to comply with the requirements of § 4(a) may be liable for § 38’s criminal penalties. App. 263-265, 299. This assumption seems reasonable, for, if contractors are not covered by §38, then the LHWCA contains no apparent mechanism for enforcing the second sentence of § 4(a). But, once again, §38 refers only to “[a]ny employer required to secure the payment of compensation under this Act.” If contractors are truly liable under §38, then contractors must be considered statutory employers.
From the foregoing examples, it is clear that Congress must have meant for the term “employer” in other sections of the LHWCA to include contractors. It is reasonable to infer that Congress intended the term “employer” to have that same broad meaning in § 5(a). This is particularly so inasmuch as granting tort immunity to contractors that comply with §4(a) is consistent with the quid pro quo underlying workers’ compensation statutes. For both of these reasons, we adopt the majority view that general contractors can be embraced by the term “employer” as used in § 5(a).
B
Having concluded that § 5(a) can cover general contractors, we now consider the conditions under which contractors may qualify for § 5(a)’s immunity. The Court of Appeals took the view that to qualify for § 5(a)’s grant of immunity, “WMATA must first require its subcontractors to purchase the insurance. It is only by providing compensation insurance when the subcontractors fail to do so that WMATA obtains immunity as a statutory employer.” 230 U. S. App. D. C., at 303, 717 F. 2d, at 582 (emphasis in original). This view— that § 5(a) covers general contractors only if the contractor secures compensation after the subcontractor actually defaults — is consistent with the opinions of several other federal courts. See, e. g., Probst v. Southern Stevedoring Co., 379 F. 2d 763, 767 (CA5 1967); Thomas v. George Hyman Construction, Co., 173 F. Supp., at 383.
The Court of Appeals’ interpretation of the LHWCA rests on the notion that general contractors are entitled to the reward of tort immunity only when the contractor has been statutorily required to secure compensation. In essence, the Court of Appeals would withhold the quid of tort immunity until the contractor had been legally bound to provide the quo of securing compensation. Though plausible given the logic of workers’ compensation statutes, the Court of Appeals’ view is difficult to square with the language of the LHWCA.
Section 5(a) does not say that employers are immune from tort liability if they secure compensation in accordance with the Act. The section provides just the obverse — that employers shall be immune from liability unless the employer “fails to secure payment of compensation as required by this Act.” Immunity is not cast as a reward for employers that secure compensation; rather, loss of immunity is levied as a penalty on those that neglect to meet their statutory obligations.
Since we have already determined that contractors qualify as employers under § 5(a), the most natural reading of § 5(a) would offer general contractors tort immunity so long as they do not fail to meet their statutory obligations to secure compensation. Under § 4(a), a contractor “shall be liable for and shall secure [compensation] unless the subcontractor has secured such payment.” Contrary to the Court of Appeals’ reading of the Act, this provision contains no suggestion that the contractor must make a demand on its subcontractors before securing compensation or that the contractor should forestall securing compensation until the subcontractor has affirmatively defaulted. Rather, the section simply places on general contractors a contingent obligation to secure compensation whenever a subcontractor has failed to do so. Taken together, §§4(a) and 5(a) would appear to grant a general contractor immunity from tort suits brought by subcontractor employees unless the contractor has neglected to secure workers’ compensation coverage after the subcontractor failed to do so.
Besides being faithful to the plain language of the statute, this reading furthers the policy underlying the LHWCA, which is to ensure that workers are not deprived workers’ compensation coverage. If the benefits of securing compensation insurance — that is, tort immunity — did not accrue to contractors until subcontractors had affirmatively elected to default, then contractors would be reluctant to incur the considerable expense of securing compensation insurance until they were absolutely convinced that subcontractors were in statutory default. Inevitably, such a rule would create gaps in workers’ compensation coverage — a result Congress clearly wanted to avoid. The reason for passing the LHWCA was to bring one of the last remaining groups of uninsured workers under the umbrella of workers’ compensation.
A further argument in favor of accepting the natural reading of §§ 4(a) and 5(a) is that it saves courts from the onerous task of determining when subcontractors have defaulted on their own statutory obligations. If a contractor’s tort immunity were contingent upon an affirmative default on the part of subcontractors, then every time a subcontractor employee sued the general contractor after recovering compensation under the contractor’s compensation policy, the contractor would be forced to establish that the worker’s direct employer had been given a reasonable chance to secure compensation for itself and then had failed to respond to the opportunity. Nothing in the LHWCA or its legislative history suggests that Congress intended to unleash such a difficult set of factual inquiries. And it is unlikely that Congress would silently impose such a barrier to contractor immunity.
As the natural reading of §§ 4(a) and 5(a) comports with the policies underlying the LHWCA and is consistent with the legislative history of the Act, there is no cause not to “adhere closely to what Congress has written.” Rodriguez v. Compass Shipping Co., 451 U. S., at 617. We conclude, therefore, that §§4(a) and 5(a) of the LHWCA render a general contractor immune from tort liability provided the contractor has not failed to honor its statutory duty to secure compensation for subcontractor employees when the subcontractor itself has not secured such compensation. So long as general contractors have not defaulted on this statutory obligation to secure back-up compensation for subcontractor employees, they qualify for § 5(a)’s grant of immunity.
HH HH 1 — 1
Applying our interpretation of § 4(a) and § 5(a) to the facts of this case, we conclude that WMATA was entitled to immunity from the tort actions brought by respondents. Far from “failing] to secure payment of compensation as required by [the LHWCA],” 33 U. S. C. § 905(a), WMATA acted above and beyond its statutory obligations. In order to prevent subcontractor employees from going uninsured, WMATA went to the considerable effort and expense of purchasing “wrap-up” insurance on behalf of all of its subcontractors. Rather than waiting to secure its own compensation until subcontractors failed to secure, WMATA guaranteed that every Metro subcontractor would satisfy and keep satisfied its primary statutory obligation to obtain worker’s compensation coverage. Due to the comprehensiveness of its “wrap-up” policy, WMATA’s statutory duty to secure back-up compensation for its subcontractor employees has not been triggered since the second phase of Metro construction began, and WMATA has therefore had no opportunity to default on its statutory obligations established in § 4(a). Under these circumstances, it is clear that WMATA remains entitled to § 5(a)’s grant of tort immunity.
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.
See Washington Metropolitan Area Transit Authority Interstate Compact, Pub. L. 89-774, 80 Stat. 1324; D. C. Code § 1-2431 (1981); 1965 Md. Laws, ch. 869; 1966 Va. Acts, eh. 2.
See 80 Stat. 1329.
For the remainder of this opinion, the term “subcontractor” will be used to include both subcontractors and sub-subcontractors.
District of Columbia Code §36-501 (1973) incorporates the LHWCA, 33 U. S. C. § 901 et seq., to cover employees “carrying on any employment in the District of Columbia.” In the other two jurisdictions in which WMATA operates, state statutes place general contractors under similar duties to ensure that subcontractor employees are covered by worker’s compensation insurance. See Md. Ann. Code, Art. 101 et seq. (1979 and Supp. 1983); Va. Code §65.1-30 et seq. (1980).
Despite contrary findings by the District Courts and Court of Appeals, respondents persist in arguing that WMATA is not a general contractor for purposes of the LHWCA. Whether WMATA serves as the general contractor for the entire Metro construction project turns on a factual inquiry into WMATA’s responsibility for supervising project construction. Because the lower courts’ findings have ample support in the record, see, e. g., App. 163-184, 276-280, we accept their conclusion that WMATA is a general contractor for purposes of § 4(a) of the LHWCA. See Rogers v. Lodge, 458 U. S. 613 (1982).
As a result of its federal funding, WMATA is charged with ensuring that minority business enterprises have a full opportunity to participate in the Metro construction project. See Urban Mass Transportation Act of 1964, § 12, 49 U. S. C. § 1608(f); 49 CFR §23.1 et seq. (1983).
WMATA’s own employees were not covered by the Lumberman’s Mutual policy. For these employees, WMATA has qualified as a self-insurer under § 32(a)(1) of the LHWCA, 33 U. S. C. § 932(a)(1).
1922 N. Y. Laws, ch. 615, §56; see H. R. Rep. No. 1190, 69th Cong., 1st Sess., 2 (1926) (“The [LHWCA] follows in the main the New York State compensation law . . .”).
As discussed below, courts have differed as to what it means for a general contractor to secure compensation in accordance with § 4(a). See infra, at 936-940.
probst v. Southern Stevedoring Co., 379 F. 2d 763, 767 (1967), the Fifth Circuit characterized a contractor’s duty to secure compensation for subcontractor employees as “secondary, guaranty-like liability.” See also Johnson v. Bechtel Associates Professional Corp., 230 U. S. App. D. C. 297, 305, 717 F. 2d 574, 582 (1983). This characterization is apt to the extent that general contractors do not have to secure compensation for these workers “unless the subcontractor” fails to provide insurance. 33 U. S. C. § 904(a). However, this description of a contractor’s duty in no way diminishes the fact that, once a statutory obligation to secure compensation attaches, the contractor must qualify as an “employer” under §§ 7, 8(f), 32(a), 33(b), and 38 in order for its obligation to make any sense under the Act.
See supra, at 931-932. In any workers’ compensation scheme, the onus of securing compensation falls in the first instance on a worker’s immediate employer, even when that employer is a subcontractor. In order to ensure that contractors do not prematurely relieve subcontractors of their responsibility for securing compensation, Congress might have tried to discourage general contractors from securing compensation unless and until a subcontractor actually defaulted on its own statutory obligation. Indeed, several States have adopted workers’ compensation statutes with such a phased obligation to secure compensation. See, e. g., Neb. Rev. Stat. § 48-116 (1978); Ind. Code § 22-3-2-14 (1982). Under these regimes, it might make sense to adopt the Court of Appeals’ view that tort immunity should extend only to those general contractors that secure compensation after a subcontractor defaults on its obligation.
In endorsing the LHWCA, the House Judiciary Committee recommended that “this humanitarian legislation be speedily enacted into law so that this class of workers, practically the only class without the benefit of workmen’s compensation, may be afforded this protection, which has come to be almost universally recognized as necessary in the interest of social justice between employer and employee.” H. R. Rep. No. 1190, 69th Cong., 1st Sess., 3 (1926); accord, S. Rep. No. 973, 69th Cong., 1st Sess., 16 (1926).
The absence of discussion is made more telling because of industry objections to other provisions in the original LHWCA that called for companies to monitor the insurance coverage of other firms. In § 38 of the 1927 Act, Congress required that before employing a stevedoring firm, the owner had to obtain a certificate proving that the firm was insured in compliance with the Act. 44 Stat. (part 2) 1442. The administrative ramifications of this provision sparked considerable debate during congressional hearings. See, e. g., Compensation for Employees in Certain Maritime Employments: Hearings on S. 3170 before a Subcommittee of the Senate Judiciary Committee, 69th Cong., 1st Sess., 48, 98, 101 (1926).
Although the Court of Appeals left the question open, see 230 U. S. App. D. C., at 306, n. 16, 717 F. 2d, at 583, n. 16, the uncontested facts of this case establish that these subcontractors fulfilled their statutory obligation to secure compensation. WMATA bought its “wrap-up” policy “for the benefit of” the contractors. See supra, at 929-930. Respondents’ employers contributed to WMATA’s “wrap-up” policy by reducing the bids they submitted for work on the Metro project. Upon being awarded their jobs, these subcontractors received a certificate of insurance, naming them as insured parties. By thus participating in WMATA's “wrap-up” program, these subcontractors “in substance if not in form” secured compensation for purposes of § 32(a)(1) of the LHWCA. 2A A. Larson, Law of Workmen’s Compensation §67.22, pp. 12-83 (1982); accord, Edwards v. Bechtel Associates Professional Corp., 466 A. 2d 436 (D. C.), cert. denied, 464 U. S. 995 (1983). Because these subcontractors are also “employers” for purposes of § 5(a) and because they have not failed to secure the compensation required by the Act, they would also appear entitled to immunity from tort liability.
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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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[
64
] |
BENDER et al. v. WILLIAMSPORT AREA SCHOOL DISTRICT et al.
No. 84-773.
Argued October 15, 1985
Decided March 25, 1986
Stevens, J., delivered the opinion of the Court, in which Brennan, MARSHALL, Blackmun, and O’Connor, JJ., joined. Marshall, J., filed a concurring opinion, post, p. 549. Burger, C. J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post, p. 551. Powell, J., filed a dissenting opinion, post, p. 555.
James M. Smart, Jr., argued the cause for petitioners. With him on the briefs were Samuel Eric Hans Ericsson, Lynn Robert Buzzard, Kimberlee Wood Colby, Curran Tiffany, Gerald W. Seevers, and Michael Joseph Woodruff Deputy Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Michael W. McConnell, Anthony J. Steinmeyer, and Robert V. Zener.
John C. Youngman, Jr., pro se, argued the cause for respondents and filed a brief for himself.
Briefs of amici curiae urging reversal were filed for the Ad Hoe Group of State Education Officials, School Administrators, and School Board Members by William H. Ellis; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Concerned Women for American Education and Legal Defense Foundation by Michael P. Farris and Jordan W. Lorence; for the Inter-Varsity Christian Fellowship of the U. S. A. by George R. Grange II; and for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko.
Briefs of amici curiae urging affirmance were filed for the American Association of School Administrators by David S. Tatel and Elliot M. Mincberg; for the American Civil Liberties Union et al. by Jack D. Novik, Charles S. Sims, Burt Neubome, Stefan Presser, and Joy L. Koletsky; for the American Jewish Committee et al. by Samuel Rabinove, Richard T. Foltin, William B. Duffy, Jr., and William S. Ellis; for the American Jewish Congress et al. by Robert Reinstein, Jeffrey I. Pasek, Theodore R. Mann, and Nathan Z. Dershowitz; and for the Anti-Defamation League of B’nai B’rith et al. by Ruti G. Teitel, Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, and Steven M. Freeman.
Briefs of amici curiae were filed for the Baptist Joint Committtee on Public Affairs et al. by Donald R. Brewer; for Kiwanis International et al. by Stanley C. Fickle; and for the Rutherford Institute et al. by Larry L. Crain, Guy 0. Farley, Jr., John W. Whitehead, James J. Knicely, Thomas S. Neuberger, Thomas O. Kotouc, and William B. Hollberg.
Justice Stevens
delivered the opinion of the Court.
This case raises an important question of federal appellate jurisdiction that was not considered by the Court of Appeals: Whether one member of a School Board has standing to appeal from a declaratory judgment against the Board. We conclude that although the School Board itself had a sufficient stake in the outcome of the litigation to appeal, an individual Board member cannot invoke the Board’s interest in the case to confer standing upon himself.
I — I
In September 1981 a group of high school students in Wil-liamsport, Pennsylvania, formed a club called “Petros” for the purpose of promoting “spiritual growth and positive attitudes in the lives of its members.” App. 46. The group asked the Principal of the high school for permission to meet on school premises during student activity periods scheduled diming the regular schoolday on Tuesdays and Thursdays. The Principal allowed Petros to hold an organizational meeting that was attended by approximately 45 students. At that meeting passages of scripture were read and some students prayed. There is no evidence that any students, or parents, expressed any opposition or concern about future meetings of Petros. The Principal nevertheless advised the group that they could not hold any further meetings until he had discussed the matter with the School Superintendent. The Superintendent, in turn, advised the students that he would respond to their written request for recognition after he received “competent legal advice [from the School District’s Solicitor] as to the propriety of approving establishment of the proposed prayer club” on school premises. Id., at 42.
On November 16, 1981, the Principal and the Superintendent met with representatives of Petros and advised them that “based on the Solicitor’s legal opinion, their request must be denied.” 563 F. Supp. 697, 701 (MD Pa. 1983). The legal opinion is not a part of the record; nor does the record contain any evidence that the Principal, the Superintendent, or any other person except the Solicitor had voiced any opposition to the proposed meetings by Petros. Indeed, Petros was informed that it could meet off school premises and “would be given released time during the activity period” if it could secure “a location and an adult supervisor, preferably a clergyman” for their meetings. Ibid.
The students thereafter wrote a letter to the Chairman of the Williamsport Area School Board appealing the Superintendent’s decision. At a meeting held January 19, 1982, the Board upheld the Superintendent’s decision and “denied the appeal on the basis of the Solicitor’s opinion.” Ibid. (citations omitted).
II
On June 2, 1982, 10 of the students filed suit in the United States District Court against the Williamsport Area School District, the 9 members of the School Board, the Superintendent of the District, and the Principal of the high school. Although there is a general allegation in the first paragraph of the complaint that the action was brought against the defendants “in their individual and official capacities,” App. 13, the specific allegation concerning each of the named members of the Board was in this form: “John C. Youngman, Jr., is a member of the Williamsport Area School Board and is sued in that capacity,” id., at 16. The complaint alleged that the defendants’ refusal to recognize Petros and to allow it to meet on the same basis as other student groups because óf its religious activities violated the First Amendment. The complaint prayed for declaratory and injunctive relief.
One answer was filed on behalf of all the defendants. Although they admitted most of the material allegations of the complaint, they alleged that they had “requested and received in writing an opinion from the school district solicitor and legal counsel that it would be unlawful, improper and unconstitutional to recognize said group as a student organization.” Id., at 33.
After plaintiffs completed their discovery (defendants took no depositions), the parties filed cross-motions for summary judgment supported by affidavits, the deposition testimony, and statements of material fact not in dispute. On November 9, 1982, the District Court entered an order finding that the record was incomplete. It thereupon directed the parties to submit affidavits or other documentation concerning “the exact nature of the activity period, the type of activities or clubs that have been, and would be, approved, and what proposed groups, if any, have been denied approval.” Id., at 101. After that additional information was supplied, and after the case had been fully briefed, the District Court on May Í2, 1983, filed a detailed and carefully written opinion in which it stated:
“Presently before the court are the parties’ cross-motions for summary judgment. . . . Although the case presents only a question of law, this is not to say that the facts are unimportant. On the contrary, the undisputed facts are of paramount importance to the resolution of the legal question presented in this case. A slight change in the facts could very well have dictated a contrary decision.
“After carefully reviewing those facts, and after giving full consideration to all pertinent legal authority, the court concludes that because the defendant school district is not constitutionally required to deny the plaintiffs the opportunity to meet, by doing so solely on constitutional grounds it has impermissibly burdened their free-speech rights. Accordingly, summary judgment will be granted in favor of the plaintiffs.” 563 F. Supp., at 699-700.
The final order entered by the District Court was a ruling “in favor of the plaintiffs and against the defendants on plaintiffs’ freedom of speech claim.” No injunction was entered, and no relief was granted against any defendant in his individual capacity. The District Court, in effect, merely held that the Board’s attorney was incorrect in his legal advice.
The School District did not challenge the judgment of the District Court in any way. It made no motion for a stay and took no appeal. Instead, it decided to comply with the judgment and to allow Petros to conduct the meetings it had requested.
However, John C. Youngman, Jr., who was then still a member of the Board, did file a timely notice of appeal.
H h-i I — i
In the Court of Appeals no one raised any question about Mr. Youngman’s standing to appeal. The court did note that all of the original plaintiffs had graduated from high school, but it granted a motion to add additional plaintiffs who were currently enrolled students in order to prevent the case from becoming moot. 741 F. 2d 538, 542, n. 4 (CA3 1984). Neither the majority nor the dissenting opinion even mentioned Mr. Youngman.
After repeatedly stressing “the crucial role which the particular facts play in every first amendment analysis,” id., at 541-542, the majority of the Court of Appeals held “that the particular circumstances disclosed by this record and present at the Williamsport Area High School lead to the inexorable conclusion that the constitutional balance of interests tilts against permitting the Petros activity to be conducted within the school as a general activity program,” id., at 561.
In dissent, Judge Adams suggested that the majority had implicitly adopted a per se rule because of its concern about “the possibility of unconstitutional extensions of the Wil-liamsport arrangement elsewhere,” instead of performing the “more difficult adjudicative task [of carefully sifting the facts] on a case-by-case basis.” Id., at 569.
The importance of the question presented by the students’ petition for certiorari persuaded us that the case merited plenary review. 469 U. S. 1206 (1985). After granting cer-tiorari, however, we noticed that neither the Board nor any of the defendants except Mr. Youngman opposed the students’ position and that only Mr. Youngman had challenged the District Court’s judgment by invoking the jurisdiction of the Court of Appeals. We therefore find it necessary to answer the question whether Mr. Youngman had a sufficient stake in the outcome of the litigation to support appellate jurisdiction. The parties and the amici have identified three different capacities in which Mr. Youngman may have had standing to appeal — as an individual, as a member of the Board, and as a parent.
IV
Before considering each of the standing theories, it is appropriate to restate certain basic principles that limit the power of every federal court. Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto. See, e. g., Marbury v. Madison, 1 Cranch 137, 173-180 (1803). For that reason, every federal appellate court has a special obligation to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,” even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U. S. 237, 244 (1934). See Juidice v. Vail, 430 U. S. 327, 331-332 (1977) (standing). “And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” United States v. Corrick, 298 U. S. 435, 440 (1936) (footnotes omitted).
This obligation to notice defects in a court of appeals’ subject-matter jurisdiction assumes a special importance when a constitutional question is presented. In such cases we have strictly adhered to the standing requirements to ensure that our deliberations will have the benefit of adversary presentation and a full development of the relevant facts. Thus, as we emphasized in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982):
“[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 38, 41 (1976). . . .
“The requirement of ‘actual injury redressable by the court,’ Simon, supra, at 39, serves several of the ‘implicit policies embodied in Article III,’ Flast [v. Cohen, 392 U. S. 83,] 96 [(1968)]. It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. The ‘standing’ requirement serves other purposes. Because it assures an actual factual setting in which the litigant asserts a claim of injury in fact, a court may decide the case with some confidence that its decision will not pave the way for lawsuits which have some, but not all, of the facts of the case actually decided by the court.”
V
The first paragraph of the complaint alleged that the action was brought against the defendants “in their individual and official capacities.” App. 13. There is, however, nothing else in the complaint, or in the record on which the District Court’s judgment was based, to support the suggestion that relief was sought against any School Board member in his or her individual capacity. Certainly the District Court’s judgment granted no such relief. See n. 1, supra. Accordingly, to paraphrase our holding in Brandon v. Holt, 469 U. S. 464, 469 (1985), “[t]he course of proceedings . . . make it abundantly clear that the action against [Mr. Youngman] was in his official capacity and only in that capacity.” See Kentucky v. Graham, 473 U. S. 159, 167, n. 14 (1985). Since the judgment against Mr. Youngman was not in his individual capacity, he had no standing to appeal in that capacity.
VI
As a member of the School Board sued in his official capacity Mr. Youngman has no personal stake in the outcome of the litigation and therefore did not have standing to file the notice of appeal. As we held in Brandon v. Holt, supra, “a judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.” Id., at 471-472. We repeated this point in Kentucky v. Graham:
“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon, supra, at 471-472. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.” 473 U. S., at 165-166 (emphasis in original, footnote omitted).
Mr. Youngman’s status as a School Board member does not permit him to “step into the shoes of the Board” and invoke its right to appeal. In this case, Mr. Youngman was apparently the lone dissenter in a decision by the other eight members of the School Board to forgo an appeal. Tr. of Oral Arg. 7. Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take. The Court of Appeals for the District of Columbia Circuit so held in Smuck v. Hobson, 132 U. S. App. D. C. 372, 374-375, 408 F. 2d 175, 177-178 (1969) (en banc) (footnote omitted):
“We also find that Mr. Smuck has no appealable interest as a member of the Board of Education. While he was in that capacity a named defendant, the Board of Education was undeniably the principal figure and could have been sued alone as a collective entity. Appellant Smuck had a fair opportunity to participate in its defense, and in the decision not to appeal. Having done so, he has no separate interest as an individual in the litigation. The order directs the Board to take certain actions. But since its decisions are made by vote as a collective whole, there is no apparent way in which Smuck as an individual could violate the decree and thereby become subject to enforcement proceedings.”
See id., at 387, 408 F. 2d, at 190 (McGowan, J., concurring in part and concurring in result).
VII
At oral argument Mr. Youngman advised the Court that he is the parent of at least one student attending the Williams-port Area High School and that as a matter of conscience he is opposed to prayer activities on school premises during regular school hours. The Solicitor General submits that Mr. Youngman’s status as a parent provides an adequate predicate for federal appellate jurisdiction.
Mr. Youngman’s status as an aggrieved parent, however, like any other kindred fact showing the existence of a justi-ciable “case” or “controversy” under Article III, must affirmatively appear in the record. As the first Justice Harlan observed, “the presumption ... is that the court below was without jurisdiction” unless “the contrary appears affirmatively from the record.” King Bridge Co. v. Otoe County, 120 U. S. 225, 226 (1887). Accord, Thomas v. Board of Trustees, 195 U. S. 207, 210 (1904); Minnesota v. Northern Securities Co., 194 U. S. 48, 62-63 (1904). That lack of standing was not noticed by either party matters not, for as we said in Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884):
“[T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.”
Accord, Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 419 (1911); Kentucky v. Powers, 201 U. S. 1, 35-36 (1906); Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 453 (1900). See Thomson v. Gaskill, 315 U. S. 442, 446 (1942). Moreover, because it is not “sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings,” Grace v. American Central Ins. Co., 109 U. S. 278, 284 (1883); Thomas v. Board of Trustees, 195 U. S., at 210, it follows that the necessary factual predicate may not be gleaned from the briefs and arguments themselves. This “first principle of federal jurisdiction” applies “whether the case is at the trial stage or the appellate stage.” P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 835-836 (2d ed. 1973).
There is nothing in the record indicating anything about Mr. Youngman’s status as a parent. Nor is there anything in the record to indicate that he or his children have suffered any injury as a result of the District Court’s judgment, or as a result of the activities of Petros subsequent to the entry of that judgment. For all that appears in the record, Mr. Youngman and his children might even be active supporters of Petros.
The reasons why Mr. Youngman may not take an appeal in his individual capacity also foreclose an appeal in his capacity as a parent. His interest as a parent in the outcome of the litigation differs from his interest as a member of the School Board which, as we have already noted, is legally that of a “different legal personage.” See n. 6, supra. Since Mr. Youngman was not sued as a parent in the District Court, he had no right to participate in the proceedings in that court in that capacity without first filing an appropriate motion or pleading setting forth the claim or defense that he desired to assert. Thus, even if one were amenable to the dissent’s unprecedented (and unexplained) suggestion that the principle governing determination of subject-matter jurisdiction should be relaxed on appeal, the proposed exception for litigants who were “proper part[ies]” in the District Court, post, at 552, would not help Mr. Youngman because he could not perfect an appeal in either capacity in which he was a “party” in the District Court, i. e., as a School Board member sued in his individual capacity or as a Board member sued in his official capacity. Tacitly conceding Mr. Youngman’s lack of standing on these two bases, the dissent instead would confer standing on Mr. Youngman as a parent — a capacity in which he plainly was not a party in the District Court and to which, therefore, the dissent’s reasoning does not apply. Having failed to assert his parental interest in the District Court — or to adduce any factual support for that interest in this Court— Mr. Youngman has no right to prosecute an appeal in his capacity as a parent.
We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction.
It is so ordered.
The full text of the court’s order read as follows:
“NOW, this 12th day of May, 1983, in accordance with the reasoning set forth in the accompanying Opinion, it is hereby ordered that:
“(1) Summary judgment is granted in favor of the defendants and against the plaintiffs on plaintiffs’ free exercise claim;
“(2) Summary judgment is granted in favor of the plaintiffs and against the defendants on plaintiffs’ freedom of speech claim; and,
“(3) The Clerk of the Court shall close this case.” App. to Pet. for Cert. 105a.
We are advised that his term of office expired while the case was pending before the Court of Appeals.
In this regard, consider also the Court of Appeals’ emphasis on “the specific facts of the ease,” 741 F. 2d, at 559 (emphasis deleted); its statement that the “facts of this case concededly present a close question,” ibid.; its reference to “the unique situation presented here,” id., at 559, n. 28; and the following statement:
“Because each additional fact and factor impacts so heavily upon a school prayer analysis in a determination as to whether the particular circumstances pass constitutional muster, we feel it necessary to be precise in considering the relevant facts leading to a particular conclusion.” Id., at 560, n. 30.
See also, e. g., Sumner v. Mata, 449 U. S. 539, 547-548, n. 2 (1981); City of Kenosha v. Bruno, 412 U. S. 507, 511 (1973); Clark v. Paul Gray, Inc., 306 U. S. 583, 588 (1939); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 287-288, n. 10 (1938); Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 13 (1930); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908) (citing cases); Cameron v. Hodges, 127 U. S. 322, 325 (1888). Cf. Capron v. Van Noorden, 2 Cranch 126, 127 (1804).
We have frequently recognized the importance of the facts and the factfinding process in constitutional adjudication. See, e. g., Minnick v. California Dept. of Corrections, 452 U. S. 105, 120-127 (1981); England v. Louisiana Board of Medical Examiners, 375 U. S. 411, 416 (1964) (“How the facts are found will often dictate the decision of federal claims”); Townsend v. Sain, 372 U. S. 293, 312 (1963) (“It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues”). Cf. supra, at 538-540, and n. 3.
The fact that Mr. Youngman was sued in his official capacity does not give him standing to appeal in his individual capacity. Acts performed by the same person in two different capacities “are generally treated as the transactions of two different legal personages.” F. James & G. Hazard, Civil Procedure § 11.6, p. 594 (3d ed. 1985).
The fact that Mr. Youngman is named in a petition for attorney’s fees that was filed in the District Court after the appeal was taken clearly cannot affect his standing to appeal. Moreover, as we held in Kentucky v. Graham, 473 U. S., at 165 (footnote and citation omitted), “liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, [42 U. S. C.] § 1988 does not authorize a fee award against that defendant.” Accord, id., at 164, 168-170.
It might be an entirely different ease if, for example, state law authorized School Board action solely by unanimous consent, in which event Mr. Youngman might claim that he was legally entitled to protect “the effectiveness of [his] vot[e].” Coleman v. Miller, 307 U. S. 433, 438 (1939). See id., at 438-446; id., at 456 (Black, J., concurring). But in that event Mr. Youngman would have to allege that his vote was diluted or rendered nugatory under state law and even then he would have a mandamus or like remedy against the Secretary of the School Board, ef. id., at 436-437 (mandamus action “to compel a proper record of legislative action”); he would not be entitled to take legal action in the Board’s authority in his own name. For the same reason, Mr. Youngman does not have standing on the rationale employed in Board of Education v. Allen, 392 U. S. 236, 241, n. 5 (1968), that he was forced to violate his constitutional oath. Unlike the members of the School Board majority in Allen who were put “in the position of having to choose between violating their oath and taking a step . . . that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts,” ibid., Mr. Youngman has voted his conscience and, as a member of the Board, must abide by its decision not to appeal absent some state-law provision to the contrary.
“The rules of standing, whether as aspects of the Art. Ill ease-or-controversy requirement or as reflections of prudential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” Warth v. Seldin, 422 U. S. 490, 517-518 (1975). See McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 190 (1936) (“Here, the allegation in the bill of complaint as to jurisdictional amount was traversed by the answer. The court made no adequate finding upon that issue of fact, and the record contains no evidence to support the allegation of the bill. There was thus no showing that the District Court had jurisdiction and the bill should have been dismissed upon that ground”); Jackson v. Ashton, 8 Pet. 148, 149 (1834); Bingham v. Cabot, 3 Dall. 382, 383-384 (1798).
Because his status as a parent was obviously different from his official status as a member of the Board, in order to participate as a parent in the District Court litigation it was incumbent upon Mr. Youngman under Rule 24 of the Federal Rules of Civil Procedure to make “timely application” by an appropriate motion “stat[ing] the grounds” for intervention and “setting forth the claim or defense for which intervention is sought.” Fed. Rules Civ. Proe. 24(a), (c). No such pleading was filed in either of the courts below. It is particularly important to observe these requirements in eases in which the interest of the litigant seeking to appeal diverges from the interest of the party to the suit. In this case, Mr. Youngman’s interest as a parent was not necessarily parallel to the interest of the School Board. For although the record plainly demonstrates that the School Board was interested in obeying the law — it dutifully followed its lawyer’s advice when he concluded that group worship conducted on school premises would violate the Establishment Clause — it also decided not to appeal the District Court’s contrary ruling, and the record does not indicate that the Board disfavored (or favored) groups such as Petros.
|
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
] |
WEST VIRGINIA ex rel. DYER et al. v. SIMS, STATE AUDITOR.
No. 147.
Argued December 5, 1950.
Decided April 9, 1951.
John B. Hollister argued the cause for petitioners. With him on the brief were William C. Marland, Attorney General of West Virginia, Thomas J. Gillooly, Assistant Attorney General, and Leonard A. Weakley.
Charles C. Wise, Jr. argued the cause and filed a brief for respondent.
Briefs of amici curiae supporting petitioners were filed on behalf of the United States by Solicitor General Perl-man, Oscar H. Davis, Alanson W. Willcox and Gladys A. Harrison; on behalf of the States of Illinois by Ivan A. Elliott, Attorney General, and Luden S. Field and William C. Wines, Assistant Attorneys General, Indiana by J. Emmett McManamon, Attorney General, Kentucky by A. E. Funk, Attorney General, and Squire N. Williams, Jr., Assistant Attorney General, New York by Nathaniel L. Goldstein, Attorney General, Ohio by Herbert S. Duffy, Attorney General, William C. Bryant, Chief Counsel to the Attorney General, and W. H. Annat and Hugh A. Sherer, Assistant Attorneys General, and Pennsylvania by Charles J. Margiotti, then Attorney General, M. Vashti Burr, Deputy Attorney General, and Harry F. Stam-baugh; and on behalf of the State of Pennsylvania by Charles J. Margiotti, then Attorney General, M. Vashti Burr, Deputy Attorney General, and Harry F. Stambaugh.
Mr. Justice Frankfurter
delivered the opinion of the Court.
After extended negotiations eight States entered into a Compact to control pollution in the Ohio River system. See Ohio River Valley Water Sanitation Compact, 54 Stat. 752. Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia recognized that they were faced with one of the problems of government that are defined by natural rather than political boundaries. Accordingly, they pledged themselves to cooperate in maintaining waters in the Ohio River basin in a sanitary condition through the administrative mechanism of the Ohio River Valley Water Sanitation Commission, consisting of three members from each State and three representing the United States.
The heart of the Compact is Article VI. This provides that sewage discharged into boundary streams or streams flowing from one State into another “shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per cent (45%) of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, ... in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Industrial wastes are to be treated “to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Sewage and industrial wastes discharged into streams located wholly within one State are to be treated “to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.”
Article IX provides that the Commission may, after notice and hearing, issue orders for compliance enforceable in the State and federal courts. It further provides: “No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory States; and no such order upon a municipality, corporation, person or entity in any State shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state.”
By Article X the States also agree “to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory States . . . .”
The present controversy arose because of conflicting views between officials of West Virginia regarding the responsibility of West Virginia under the Compact.
The Legislature of that State ratified and approved the Compact on March 11, 1939. W. Va. Acts 1939, c. 38. Congress gave its consent on July 11, 1940, 54 Stat. 752, and upon adoption by all the signatory States the Compact was formally executed by the Governor of West Virginia on June 30, 1948. At its 1949 session the West Virginia Legislature appropriated $12,250 as the State’s contribution to the expenses of the Commission for the fiscal year beginning July 1, 1949. W. Va. Acts 1949, c. 9, Item 93. Respondent Sims, the'auditor of the State, refused to issue a warrant upon its treasury for payment of this appropriation. To compel him to issue it, the West Virginia Commissioners to the Compact Commission and the members of the West Virginia. State Water Commission instituted this original mandamus proceeding in the Supreme Court of Appeals of West Virginia. The court denied relief on the merits, 134 W. Va.-, 58 S. E. 2d 766, and we brought the case here, 340 U. S. 807, because questions of obviously important public interest are raised.
The West Virginia court found that the “sole question” before it was the validity of the Act of 1939 approving West Virginia’s adherence to the Compact. It found that Act invalid in that (1) the Compact was deemed to delegate West Virginia’s police power to other States and to the Federal Government, and (2) it was deemed to bind future legislatures to make appropriations for the continued activities of the Sanitation Commission and thus to violate Art. X, § 4 of the West Virginia Constitution.
Briefs filed on behalf of the United States and other States, as amid, invite the Court to consider far-reaching issues relating to the Compact Clause of the United States Constitution. Art. I, § 10, cl. 3. The United States urges that the Compact be so read as to allow any signatory State to withdraw from its obligations at any time. Pennsylvania, Ohio, Indiana, Illinois, Kentucky and New York contend that the Compact Clause precludes any State from limiting its power to enter into a compact to which Congress has consented. We must not be tempted by these inviting vistas. We need not go beyond the issues on which the West Virginia court found the Compact not binding on that State. That these are issues which give this Court jurisdiction to review the State court proceeding, 28 U. S. C. § 1257, needs no discussion after Delaware River Comm’n v. Colburn, 310 U. S. 419, 427.
Control of pollution in interstate streams might, on occasion, be an appropriate subject for national legislation. Compare Oklahoma v. Atkinson Co., 313 U. S. 508. But, with prescience, the Framers left the States free to settle regional controversies in diverse ways. Solution of the problem underlying this case may be attempted directly by the affected States through contentious litigation before this Court. Missouri v. Illinois, 180 U. S. 208, 200 U. S. 496; New York v. New Jersey, 256 U. S. 296. Adjudication here of conflicting State interests affecting stream pollution does not rest upon the law of a particular State. This Court decides such controversies according to “principles it must have power to declare.” Missouri v. Illinois, supra, 200 U. S. at 519. But the delicacy of interstate relationships and the inherent limitations upon this Court’s ability to deal with multifarious local problems have naturally led to exacting standards of judicial intervention and have inhibited the formulation of a code for dealing with such controversies. As Mr. Justice Holmes put it: “Before this court ought to intervene the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side.” Missouri v. Illinois, supra, 200 U. S. at 521.
Indeed, so awkward and unsatisfactory is the available litigious solution for these problems that this Court deemed it appropriate to emphasize the practical constitutional alternative provided by the Compact Clause. Experience led us to suggest that a problem such as that involved here is “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.” New York v. New Jersey, supra, at 313. The suggestion has had fruitful response.
The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of compacts. A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding the national interest is well illustrated in the Compact now under review. Not only was congressional consent required, as for all compacts; direct participation by the Federal Government was provided in the President’s appointment of three members of the Compact Commission. Art. IV; Art. XI, § 3.
But a compact is after all a legal document. Though the circumstances of its drafting are likely to assure great care and deliberation, all avoidance of disputes as to scope and meaning is not within human gift. Just as this Court has power to settle disputes between States where there is no compact, it must have final power to pass upon the meaning and validity of compacts. It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State. To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the “federal common law” governing interstate controversies (Hinderlider v. La Plata Co., 304 U. S. 92, 110), is the function and duty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a State deems to be the law and policy of its State, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a State’s own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the State to undertake it is quite another.
The Supreme Court of Appeals of the State of West Yirginia is, for exclusively State purposes, the ultimate tribunal in construing the meaning of her Constitution. Two prior decisions of this Court make clear, however, that we are free to examine determinations of law by State courts in the limited field where a compact brings in issue the rights of other States and the United States.
Kentucky v. Indiana, 281 U. S. 163, dealt with a compact to build a bridge across the Ohio River. In an original action brought before this Court, Indiana defended on the ground that she should not be compelled to perform until the Indiana courts decided, in a pending case, whether her officials had been authorized to enter into the compact. Mr. Chief Justice Hughes, speaking for a unanimous Court, dismissed the argument: “Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter ‘sese, and this Court must pass upon every question essential to such a determination, although local legislation and questions of state authorization may be involved. Virginia v. West Virginia, 11 Wall. 39, 56; 220 U. S. 1, 28. A decision in the present instance by the state court would not determine the controversy here.” 281 U. S. at 176-177.
In reaching this conclusion the Chief Justice could hardly avoid analogizing the situation to that where a question is raised whether a State has impaired the obligation of a contract. “It has frequently been held that when a question is suitably raised whether the law of a State has impaired the obligation of a contract, in violation of the constitutional provision, this Court must determine for itself whether a contract exists, what are its obligations, and whether they have been impaired by the legislation of the State. ■ While this Court always examines with appropriate respect the decisions of state courts bearing upon such questions, such decisions do not detract from the responsibility of this Court in reaching its own conclusions as to the contract, its obligations and impairment, for otherwise the constitutional guaranty could not properly be enforced. Larson v. South Dakota, 278 U. S. 429, 433, and cases there cited.” 281 U. S. at 176. And see Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100.
Hinderlider v. La Plata Co., supra, is the second of these cases. It also makes clear, if authority be needed, that the fact the compact questions reach us on a writ of certiorari rather than by way of an original action brought by a State does not affect the power of this Court. In the Hinderlider case, an action was brought in the Colorado courts to enjoin performance of a compact between Colorado and New Mexico concerning water rights in the La Plata River. The State court held that the compact was invalid because it affected appropriation rights guaranteed by the Colorado State Constitution. 101 Colo. 73, 70 P. 2d 849; see also 93 Colo. 128, 25 P. 2d 187. Mr. Justice Brandéis, likewise speaking for a unanimous Court, held that the relative claims of New Mexico and Colorado citizens could be determined by compact and reversed the decision of the State court.
The issue in the Hinderlider case was whether the Colorado Legislature had authority, under the State Constitution, to enter into a compact which affected the water rights of her citizens. The issue before us is whether the West Virginia Legislature had authority, under her Constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.
That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated. We are not here concerned, and so need not deal, with specific language in a State constitution requiring that the State settle its problems with other States without delegating power to an interstate agency. What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not.solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. If this Court, in the exercise of its original jurisdiction, were to enter a decree requiring West Virginia to abate pollution of interstate streams, that decree would bind the State. The West Virginia Legislature would have no part in determining the State’s obligation. The State Legislature could not alter it; it could not disregard it, as West Virginia on another occasion so creditably recognized. The obligation would be fixed by this Court on the basis of a master’s report. Here, the State has bound itself to control pollution by the more effective means of an agreement with other States. The Compact involves a reasonable and carefully limited delegation of power to an interstate agency. Nothing in its Constitution suggests that, in dealing with the problem dealt with by the Compact, West Virginia must wait for the answer to be dictated by this Court after harassing and unsatisfactory litigation.’
What Mr. Justice Brandéis said of the Colorado court decision in Hinderlider v. La Plata Co., supra, applies to the decision of the West Virginia court: “It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact — the legislative means — adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts, 12 Pet. 657, 723-25.” 304 U. S. at 104.
The State court also held that the Compact is in conflict with Art. X, § 4, of the State Constitution and for that reason is not binding on West Virginia. This section provides:
“No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion, or defend the State in time of war; but the payment of any liability, other than that for the ordinary expenses of the State, shall be equally distributed over a period of at least twenty years.”
The Compact was evidently drawn with great care to meet the problem of debt limitation in light of this section and similar restrictive provisions in the constitutions of other States. Although, under Art. X of the Compact, the States agree to appropriate funds for administrative expenses, the annual budget must be approved by the Governors of the signatory States. In addition, Article V provides: “The Commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory States, except by and with the authority of the legislature thereof.” In view of these provisions, we conclude that the obligation of the State under the Compact is not in conflict with Art. X, § 4 of the State Constitution.
Reversed and remanded.
Mr. Justice Black concurs in the result.
|
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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"Comptroller General",
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"U.S. Public Health Service",
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"Renegotiation Board",
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"Small Business Administration",
"Securities and Exchange Commission",
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] |
[
64
] |
GULF OIL CO. et al. v. BERNARD et al.
No. 80-441.
Argued March 30, 1981
Decided June 1, 1981
Powell, J., delivered the opinion for a unanimous Court.
Wm. G. Duck argued the cause for petitioners. With him on the briefs were Susan B. Sewell and Carl A. Parker.
Jack Greenberg argued the cause for respondents. With him on the brief were Bill Lann Lee, Barry L. Goldstein, and Ulysses Gene Thibodeaux.
Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Turner, Harlon L. Dalton, Jessica Dunsay Silver, Carol E. Heckman, and Leroy D. Clark.
Stuart Rothman and George C. Smith filed a brief for Hudson Pulp and Paper Corp. as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Arthur B. Spitzer and Kenneth J. Guido, Jr., for the American Civil Liberties Union Fund of the National Capital Area et al.; by Mayo L. Coiner and Harry M. Philo for the Association of Trial Lawyers of America; by Richard F. Watt and Martha A. Milk for the Chicago Council of Lawyers; and by William F. Kaspers and John D. Buchanan, Jr., for the Tallahassee Memorial Hospital.
Justice Powell
delivered the opinion of the Court.
This is a class action involving allegations of racial discrimination in employment on the part of petitioners, the Gulf Oil Co. (Gulf) and one of the unions at its Port Arthur, Tex., refinery. We granted a writ of certiorari to determine the scope of a district court’s authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action. We hold that in the circumstances of this case the District Court exceeded its authority under the Federal Rules of Civil Procedure.
I
In April 1976, Gulf and the Equal Employment Opportunity Commission (EEOC) entered into a conciliation agreement involving alleged discrimination against black and female employees at the Port Arthur refinery. Gulf agreed to cease various allegedly discriminatory practices, to undertake an affirmative-action program covering hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period.
Approximately one month after the signing of the conciliation agreement, on May 18, 1976, respondents filed this class action in the United States District Court for the Eastern District of Texas, on behalf of all black present and former employees, and rejected applicants for employment, at the refinery. They alleged racial discrimination in employment and sought injunctive, declaratory, and monetary relief, based on Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U. S. C. § 1981. The defendants named were Gulf and Local 4-23 of the Oil, Chemical, and Atomic Workers International Union. Plaintiffs’ counsel included three lawyers from the NAACP Legal Defense and Education Fund. Through this lawsuit, the named plaintiffs sought to vindicate the alleged rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement.
On May 27, Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members. An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members. It then asserted that a lawyer for respondents, Ulysses Gene Thibodeaux, had attended a meeting of 75 class members on May 22, where he had discussed the case and recommended that the employees not sign the releases sent under the conciliation agreement. Gulf added that Thibodeaux reportedly had advised employees to return checks they already had received, since they could receive at least double the amounts involved through the class action.
The court entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members. The order listed several examples of communications that were covered, but stated that it was not limited to these examples. It was not based on any findings of fact.
On June 8, Gulf moved for a modification of the order that would allow it to continue mailings to class members, soliciting releases in exchange for the backpay amounts established under the conciliation agreement. Respondents filed a brief in opposition, arguing that the ban on their communications with class members violated the First Amendment. On June 11, the court heard oral argument, but took no evidence. Gulf then filed a supplemental memorandum proposing that the court adopt the language of "Sample Pretrial Order No. 15” in the Manual for Complex Litigation App. § 1.41. Respondents replied with another memorandum, accompanied by sworn affidavits of three lawyers. In these affidavits counsel stated that communications with class members were important in order to obtain needed information about the case and to inform the class members of their rights. Two affidavits stated that lawyers had attended the May 22 meeting with employees and discussed the issues in the case but neither advised against accepting the Gulf offer nor represented that the suit would produce twice the amount of backpay available through the conciliation agreement.
On June 22, another District Judge issued a modified order adopting Gulf’s proposal. This order imposed a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. It gave examples of forbidden communications, including any solicitation of legal representation of potential or actual class members, and any statements “which may tend to misrepresent the status, purposes and effects of the class action” or “create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice.” The order exempted attorney-client communications initiated by the client, and communications in the regular course of business. It further stated that if any party or counsel “assert [ed] a constitutional right to communicate . . . without prior restraint,” and did so communicate, he should file with the court a copy or summary of the communication within five days. The order, finally, exempted communications from Gulf involving the conciliation agreement and its settlement process.
The court made no findings of fact and did not write an explanatory opinion. The only justification offered was a statement in the final paragraph of the order:
“It is Plaintiff’s [sic] contention that any such provisions as hereinbefore stated that limit communication with potential class members are constitutionally invalid, citing Rodgers v. United States Steel Corporation, 508 F. 2d 152 (3rd Cir. 1975), cert. denied, 420 U. S. 969 (1975). This Court finds that the Rodgers case is inapplicable, and that this order comports with the requisites set out in the Manual for Complex Litigation . . . which specifically exempts constitutionally protected communication when the substance of such communication is filed with the Court.”
On July 6, pursuant to the court’s order respondents submitted for court approval a proposed leaflet to be sent to the class members. This notice urged the class to talk to a lawyer before signing the releases sent by Gulf. It contained the names and addresses of respondents’ counsel and referred to this case. Respondents argued that the notice was constitutionally protected and necessary to the conduct of the lawsuit. Gulf opposed the motion. The court waited until August 10 to rule on this motion. On that date, 2 days after the expiration of the 45-day deadline established by the court for acceptance of the Gulf offer by class members, the court denied the motion in a one-sentence order containing no explanation. As a result, the named plaintiffs and their counsel were prevented from undertaking any communication with the class members prior to the deadline.
On appeal from a subsequent final order, respondents argued that the limitations on communications imposed by the District Court were beyond the power granted the court in Federal Rule of Civil Procedure 23 (d) and were unconstitutional under the First Amendment. A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the District Court. 596 F. 2d 1249 (1979).
The panel majority reasoned that orders limiting communications are within the extensive powers of district courts in managing class litigation. It held that the District Court could easily have concluded that the need to limit communications outweighed any competing interests of respondents, especially since the order merely required prior approval of communications, rather than prohibiting them altogether. Id., at 1259-1261. Turning to respondents’ First Amendment argument, the majority held that the order was not a prior restraint because it exempted unapproved communications whenever the parties or their counsel asserted a constitutional privilege in good faith. The court also found no serious “chill” of protected speech. Id., at 1261-1262.
Judge Godbold wrote a dissenting opinion arguing that the order limiting communications was not “appropriate” within the meaning of Federal Rule of Civil Procedure 23 (d) because the court did not make any finding of actual or imminent abuse. He reasoned that Gulf’s unsworn allegations of misconduct could not justify this order, and that a court could not impose such a limitation routinely in all class actions. Id., at 1267-1268. He added that it was improper in this context for the District Court to encourage compliance with the conciliation agreement through such an order. Id., at 1269-1270. Judge Godbold also found that the order violated respondents’ First Amendment rights. Id., at 1270-1275.
The Fifth Circuit granted a rehearing en banc, and reversed the panel decision concerning the order limiting communications. 619 F. 2d 459 (1980). A majority opinion joined by 13 judges held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection. The court held that there was no sufficient particularized showing of need to justify such a restraint, that the restraint was overbroad, and that it was not accompanied by the requisite procedural safeguards. Id., at 466^478. Eight judges concurred specially on the theory that it was unnecessary to reach constitutional issues because the order was not based on adequate findings and therefore was not “appropriate” under Federal Rule of Civil Procedure 23 (d). Id., at 478, 481. One judge would have affirmed the District Court.
We granted a writ of certiorari to review the question whether the order limiting communications was constitutionally permissible. 449 U. S. 1033 (1980).
II
Rule 23 (d) of the Federal Rules of Civil Procedure provides: “(d) ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this rule applies, the court may make appropriate orders: ... (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters.” As the concurring judges below recognized, 619 F. 2d, at 478, 481, prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. See Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandéis, J., concurring). As a result, in this case we first consider the authority of district courts under the Federal Rules to impose sweeping limitations on communications by named plaintiffs and their counsel to prospective class members.
More specifically, the question for decision is whether the limiting order entered in this case is consistent with the general policies embodied in Rule 23, which governs class actions in federal court. Class actions serve an important function in our system of civil justice. They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Because of the potential for abuse, a district court has' both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules. Eisen v. Carlisle & Jacquelin, 417 U. S. 156 (1974). Moreover, petitioners concede, as they must, that exercises of this discretion are subject to appellate review. Brief for Petitioners 21, n. 15; see Eisen, supra; Oppenheimer Fund, Inc. v. Sanders, 437 U. S. 340, 359 (1978).
In the present case, we are faced with the unquestionable assertion by respondents that the order created at least potential difficulties for them as they sought to vindicate the legal rights of a class of employees. The order interfered with their efforts to inform potential class members of the existence of this lawsuit, and may have been particularly injurious — not only to respondents but to the class as a whole — because the employees at that time were being pressed to decide whether to accept a backpay offer from Gulf that required them to sign a full release of all liability for discriminatory acts. In addition, the order made it more difficult for respondents, as the class representatives, to obtain information about the merits of the case from the persons they sought to represent.
Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. In addition, such a weighing — identifying the potential abuses being addressed— should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. As the court stated in Coles v. Marsh, 560 F. 2d 186, 189 (CA3), cert. denied, 434 U. S. 985 (1977):
“[T]o the extent that the district court is empowered . . . to restrict certain communications in order to prevent frustration of the policies of Rule 23, it may not exercise the power without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”
Ill
In the present case, one looks in vain for any indication of a careful weighing of competing factors. Indeed, in this respect, the District Court failed to provide any record useful for appellate review. The court made neither factual findings nor legal arguments supporting the need for this sweeping restraint order. Instead, the court adopted in toto the order suggested by the Manual for Complex Litigation — on the apparent assumption that no particularized weighing of the circumstances of the case was necessary.
The result was an order requiring prior judicial approval of all communications, with the exception of cases where respondents chose to assert a constitutional right. Even then, respondents were required to preserve all communications for submission to the court within five days. The scope of this order is perhaps best illustrated by the fact that the court refused to permit mailing of the one notice respondents submitted for approval. See supra, at 96-97. This notice was intended to encourage employees to rely on the class action for relief, rather than accepting Gulfs offer. The court identified nothing in this notice that it thought was improper and indeed gave no reasons for its negative ruling.
We conclude that the imposition of the order was an abuse of discretion. The record reveals no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order. Although we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the part of a district court in drafting such an order, and attention to whether the restraint is justified by a likelihood of serious abuses.
We recognize the possibility of abuses in class-action litigation, and agree with petitioners that such abuses may implicate communications with potential class members. But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules. There certainly is no justification for adopting verbatim the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. Other, less burdensome remedies may be appropriate. Indeed, in many cases there will be no problem requiring remedies at all.
In the present case, for the reasons stated above, we hold that the District Court abused its discretion. Accordingly, the judgment below is affirmed.
It is so ordered.
The letter stated that “[b]ecause this offer is personal in nature, Gulf asks that you not discuss it with others.” It added, however, that those who did not understand the offer could request that a company official arrange an interview with a Government representative. Brief for United States et al. as Amici Curiae la.
Three of the named plaintiffs, Bernard, Brown, and Johnson, had filed individual charges before the EEOC in 1967. The Commission pursued conciliation efforts based on these charges until February 1975 when these three persons received letters stating that Gulf and the union no longer wished to entertain conciliation discussions. The letters stated that the three could request “right to sue” letters at any time, and'would have 90 days from the receipt of such letters to file suit under Title VII. Bernard and Brown received notices of right to sue from the Commission on June 11, 1976.
The conciliation agreement between Gulf and the EEOC was premised on a separate charge filed against Gulf by the Commission itself in 1968.
Two other attorneys also assisted in the representation.
The Manual, containing an important compilation of suggested procedures for handling complex federal cases, was published under the supervision of a distinguished group of federal judges. It is printed in full in Part 2 of 1 J. Moore, J. Lucas, H. Fink, D. Weckstein, & J. Wicker, Moore’s Federal Practice (1980).
In its proposed order, Gulf added language allowing it to continue paying backpay and obtaining releases under the conciliation agreement. It suggested that the Clerk of the Court should send a notice to class members informing them that they had 45 days in which to decide to accept the Gulf offer.
The June 22 order stated, in part:
“In this action, all parties hereto and their counsel are forbidden directly or indirectly, orally or in writing, to communicate concerning such action with any potential or actual class member not a formal party to the action without the consent and approval of the proposed communication and proposed addresses by order of this Court. Any such proposed communication shall be presented to this Court in writing with a designation of or description of all addressees and with a motion and proposed order for prior approval by this Court of the proposed communication. The communications forbidden by this order include, but are not limited to, (a) solicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action; (b) solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action; (c) solicitation by formal parties to the class action of requests by class members to opt out in class actions under subparagraph (b)(3) of Rule 23, F. R. Civ. P.; and (d) communications from eoun-' sel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice. The obligations and prohibitions of this order are not exclusive. All other ethical, legal and equitable obligations are unaffected by this order.
“This order does not forbid (1) communications between an attorney and his client or a prospective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney, or (2) communications occurring in the regular course of business or in the performance of the duties of public oiflce or agency (such as the Attorney General) which do not have the effect of soliciting representation by counsel, or misrepresenting the status, purposes or effect of the action and orders therein.
“If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral.”
This section of the order was drawn word-for-word from the Manual for Complex Litigation App. § 1.41. The order then went on to authorize Gulf to continue with the settlement process under the terms of the conciliation agreement, and to direct the Clerk of Court to send the notice described in n. 4, supra. A paragraph near the end of the order then reiterated the proscription on communications:
“(8) [It is ordered that] any further communication, either direct or indirect, oral or in writing (other than those permitted pursuant to paragraph (2) above) from the named parties, their representatives or counsel to the potential or actual class members not formal parties to this action is forbidden.”
The proposed notice stated:
“ATTENTION BLACK WORKERS OF GULF OIL
“The Company has asked you to sign a release. If you do, you may be giving up very important civil rights. It is important that you fully understand what you are getting in return for the release. IT IS IMPORTANT THAT YOU TALK TO A LAWYER BEFORE YOU SIGN. These lawyers will talk to you FOR FREE: [names and addresses of respondents’ counsel],
“These lawyers represent six of your fellow workers in a lawsuit titled Bernard v. Gvlf Oil Co., which was filed in Beaumont Federal Court on behalf of all of you. This suit seeks to correct fully the alleged discriminatory practices of Gulf.
“Even if you have already signed the release, talk to a lawyer. You may consult another attorney. If necessary, have him contact the above-named lawyers for more details. All discussions will be kept strictly confidential.
“AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever your decision might be, we will continue to vigorously prosecute this lawsuit in order to correct all the alleged discriminatory practices at Gulf Oil.”
This order had effected a substantial change in the procedure mandated by the conciliation agreement, which provided that “failure on the part of any member to respond within thirty days shall be interpreted as acceptance of back pay” (emphasis added). App. 59.
On January 11, 1977, the District Court granted summary judgment to petitioners, dismissing the complaint as untimely. On appeal, respondents argued that their claims had been presented in timely fashion. Both the Fifth Circuit panel, 596 F. 2d 1249, 1254H258 (1979), and the en banc court, 619 F. 2d 459, 463 (1980), held for respondents on this issue and therefore ordered a remand for further proceedings.
In holding that the order restricted protected speech, the court relied both on cases involving essentially political litigation, NAACP v. Button, 371 U. S. 415 (1963); In re Primus, 436 U. S. 412 (1978), and on cases that may be closer to the present case, involving collective efforts to gain economic benefits accorded a specific group of persons under federal law, United Transportation Union v. Michigan Bar, 401 U. S. 576 (1971); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); Railroad Trainmen v. Virginia State Bar, 377 U. S. 1 (1964).
Rule 83 provides a more general authorization to district courts, stating that in “all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.”
Respondents in this case were performing the customary role of named plaintiffs, who seek to “vindieatfe] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost.” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 338 (1980). Rule 23 expresses “a policy in favor of having litigation in which common interests, or common questions of law or fact prevail, disposed of where feasible in a single lawsuit.” Rodgers v. United States Steel Corp., 508 F. 2d 152, 163 (CA3), cert. denied, 423 U. S. 832 (1975).
Although traditional concerns about “stirring up” litigation remain relevant in the class-action context, see n. 12, infra, such concerns were particularly misplaced here. Respondents were represented by lawyers from the NAACP Legal Defense and Education Fund — a nonprofit organization dedicated to the vindication of the legal rights of blacks and other citizens. See In re Primus, supra, at 422, 426-431 (distinguishing, with respect to First Amendment protections, between solicitation of clients intended to advance political objectives and solicitation of clients for pecuniary gain).
The class-action problems that have emerged since Rule 23 took its present form in 1966 have provoked a considerable amount of comment and discussion. See, e. g., Manual for Complex Litigation; Developments in the Law: Class Actions, 89 Harv. L. Rev. 1318 (1976); Miller, Problems of Administering Judicial Relief in Class Actions under Federal Rule 23 (b) (3), 54 F. R. D. 501 (1972).-
The potential abuses associated with communications to class members are described in Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (ED La. 1977). That court referred, inter alia, to the “heightened susceptibilities of nonparty class members to solicitation amounting to barratry as well as the increased opportunities of the parties or counsel to 'drum up’ participation in the proceeding.” Id., at 790. The court added that “[ujnapproved communications to class members that misrepresent the status or effect of the pending action also have an obvious potential for confusion and/or adversely affecting the administration of justice.” Id., at 790-791. See also Manual for Complex Litigation App. § 1.41.
See generally Comment, Judicial Screening of Class Action Communications, 55 N. Y. U. L. Rev. 671, 699-704 (1980); Note, 88 Harv. L. Rev. 1911, 1917-1920 (1975).
In Title VII, Congress expressed a preference for voluntary settlements of disputes through the conciliation process. E. g., Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 (1974). But, as the en banc majority stated, it is not appropriate to promote such a policy by restricting information relevant to the employee’s choice:
“The choice between the lawsuit and accepting Gulf’s back pay offer and giving a general release was for each black employee to make. The court could not make it for him, nor should it have freighted his choice with an across-the-board ban that restricted his access to information and advice concerning the choice.” 619 F. 2d, at 477.
As noted infra, we do not reach the question of what requirements the First Amendment may impose in this context. FuE consideration of the constitutional issue should await a case with a fully developed record concerning possible abuses of the class-action device.
Cf. In re Halkin, 194 U. S. App. D. C. 257, 274, 598 F. 2d 176, 193 (1979) (“To establish 'good cause’ for a protective order under [Federal Rule of Civil Procedure] 26 (c), '[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements’ ”) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure §2035, p. 265 (1970)).
The order contains a serious ambiguity concerning the response that the court could make if it found no merit in respondents’ assertion of a constitutional right with respect to a particular communication. Arguably, this “constitutional” exception was not a realistic option for respondents because they could be exposed to the risk of a contempt citation if the court determined that a communication submitted after-the-fact was not constitutionally protected. See 619 F. 2d, at 471 (referring to “the omissions and ambiguities of the order and possible differing constructions as to when, if at all, one is protected against contempt”). At the very least, parties or their counsel would be required to defend their good faith, at the risk of a contempt citation. Because of this fact, and the practical difficulties of the filing requirement, see id., at 470-471, this exception for constitutionally protected speech did little to narrow the scope of the limitation on speech imposed by the court.
We agree with the Court of Appeals’ refusal to give weight to Gulf’s unsworn allegations of misconduct on the part of respondents’ attorneys: “We can assume that the district court did not ground its order on a conclusion that the charges of misconduct made by Gulf were true. Nothing in its order indicates that it did, and, if it did, such a conclusion would have been procedurally improper and without evidentiary support. Rather the court appears to have acted upon the rationale of the Manual that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic measure against potential abuses envisioned by the Manual.” Id., at 466' (footnote omitted).
See n. 12, supra.
For example, an order requiring parties to file copies of nonprivi-leged communications to class members with the court may be appropriate in some circumstances.
In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors. Our decision regarding the need for careful analysis of the particular circumstances is limited to the situation before us — involving a broad restraint on communication with class members. We also note that the rules of ethics properly impose restraints on some forms of expression. See, e. g., ABA Code of Professional Responsibility, DR 7-104 (1980).
|
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
] |
COMMISSIONER OF INTERNAL REVENUE v. GLENSHAW GLASS CO.
No. 199.
Argued February 28, 1955.
Decided March 28, 1955.
Solicitor General Sobeloff argued the cause for petitioner. With him on the brief were Assistant Attorney General Holland, Charles F. Barber, Ellis N. Slack and Melva M. Graney.
Max Swiren argued the cause for the Glenshaw Glass Company, respondent. With him on the brief were Sidney B. Oambill and Joseph D. Block.
Samuel H. Levy argued the cause for William Goldman Theatres, Inc., respondent. With him on the brief was Bernard Wolfman.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22 (a) of the Internal Revenue Code of 1939, In a single opinion, 211 F. 2d 928, the Court of Appeals affirmed the Tax Court’s separate rulings in favor of the taxpayers. 18 T. C. 860; 19 T. C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court’s decisions bearing upon the problem, we granted the Commissioner of Internal Revenue’s ensuing petition for certiorari. 348 U. S. 813.
The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows:
Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws. In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer.
Commissioner v. William Goldman Theatres, Inc.— William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew’s, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc. v. Loew’s, Inc., 150 F. 2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F. Supp. 103, aff’d, 164 F. 2d 1021, cert. denied, 334 U. S. 811. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T. C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F. 2d 928.
It is conceded by the respondents that there is no constitutional barrier to the imposition of a tax on punitive damages. Our question is one of statutory construction: are these payments comprehended by § 22 (a) ?
The sweeping scope of the controverted statute is readily apparent:
“SEC. 22. GROSS INCOME.
“(a) General Definition. — ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service ... of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . .” (Emphasis added.)
This Court has frequently stated that this language was used by Congress to exert in this field “the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334; Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223; Douglas v. Will cuts, 296 U. S. 1, 9; Irwin v. Gavit, 268 U. S. 161, 166. Respondents contend that punitive damages, characterized as “windfalls” flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U. S. 28, 49; Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee’s improvements on the rented property was taxed in Helvering v. Bruun, 309 U. S. 461. Cf. Robertson v. United States, 343 U. S. 711; Rutkin v. United States, 343 U. S. 130; United States v. Kirby Lumber Co., 284 U. S. 1. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of § 22 (a), “gains or profits and income derived from any source whatever.” The importance of that phrase has been too frequently recognized since its first appearance in the Revenue Act of 1913 to say now that it adds nothing to the meaning of “gross income.”
Nor can we accept respondents’ contention that a narrower reading of § 22 (a) is required by the Court’s characterization of income in Eisner v. Macomber, 252 U. S. 189, 207, as “the gain derived from capital, from labor, or from both combined.” The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed “only the form, not the essence,” of his capital investment. Id., at 210. It was held that the taxpayer had “received nothing out of the company’s assets for his separate use and benefit.” Id., at 211. The distribution, therefore, was held not a taxable event. In that context — distinguishing gain from capital — the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, at 468-469; United States v. Kirby Lumber Co., supra, at 3.
Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion. The mere fact that the payments were extracted from the wrongdoers as punishment for unlawful conduct cannot detract from their character as taxable income to the recipients. Respondents concede, as they must, that the recoveries are taxable to the extent that they compensate for damages actually incurred. It would be an anomaly that could not be justified in the absence of clear congressional intent to say that a recovery for actual damages is taxable but not the additional amount extracted as punishment for the same conduct which caused the injury. And we find no such evidence of intent to exempt these payments.
It is urged that re-enactment of § 22 (a) without change since the Board of Tax Appeals held punitive damages nontaxable in Highland Farms Corp., 42 B. T. A. 1314, indicates congressional satisfaction with that holding. Re-enactment — particularly without the slightest affirmative indication that Congress ever had the Highland Farms decision before it — is an unreliable indicium at best. Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101; Koshland v. Helvering, 298 U. S. 441, 447. Moreover, the Commissioner promptly published his nonacquiescence in this portion of the Highland Farms holding and has, before and since, consistently maintained the position that these receipts are taxable. It therefore cannot be said with certitude that Congress intended to carve an exception out of § 22 (a)’s pervasive coverage. Nor does the 1954 Code’s legislative history, with its reiteration of the proposition that' statutory gross income is “all-inclusive," give support to respondents’ position. The definition of gross income has been simplified, but no effect upon its present broad scope was intended. Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U. S. 28, 47-52, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, at 223.
Reversed.
Mr. Justice Douglas dissents.
Mr. Justice Harlan took no part in the consideration or decision of this case.
53 Stat. 9, 53 Stat. 574, 26 U. S. C. § 22 (a).
For the bases of Glenshaw’s claim for damages from fraud, see Shawkee Manufacturing Co. v. Hartford-Empire Co., 322 U. S. 2701; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238.
See Hartford-Empire Co. v. United States, 323 U. S. 386, 324 U. S. 570.
See note 1, supra.
38 Stat. 114,167.
The phrase was derived from Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415, and Doyle v. Mitchell Bros. Co., 247 U. S. 179, 185, two cases construing the Revenue Act of 1909, 36 Stat. 11, 112. Both taxpayers were “wasting asset” corporations, one being engaged in mining, the other in lumbering operations. The definition was applied by the Court to demonstrate a distinction between a return on capital and “a mere conversion of capital assets.” Doyle v. Mitchell Bros. Co., supra, at 184. The question raised by the instant case is clearly distinguishable.
1941-1 Cum. Bull. 16.
The long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. See 2 Cum. Bull. 71; 1-1 Cum. Bull. 92, 93; VII-2 Cum. Bull. 123; 1954-1 Cum. Bull. 179, 180. Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes.
68A Stat. 3 et seq. Section 61 (a) of the Internal Revenue Code of 1954, 68A Stat. 17, is the successor to § 22 (a) of the 1939 Code.
H. R. Rep. No. 1337, 83d Cong., 2d Sess. a18; S. Rep. No. 1622, 83d Cong., 2d Sess. 168.
In discussing § 61 (a) of the 1954 Code, the House Report states:
“This section 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).
“Section 61 (a) provides that gross income includes ‘all income from whatever source derived.’ This definition is based upon the 16th Amendment and the word ‘income’ is used in its constitutional sense.” H. R. Rep. No. 1337, supra, note 10, at a18.
A virtually identical statement appears in S. Rep. No. 1622, supra, note 10, at 168.
|
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",
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"State Agency",
"Unidentifiable",
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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"
] |
[
68
] |
NATIONAL LABOR RELATIONS BOARD v. INSURANCE AGENTS’ INTERNATIONAL UNION, AFL-CIO.
No. 15.
Argued December 7-8, 1959.
Decided February 23, 1960.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Thomas 3. McDermott.
Isaac N. Groner argued the cause and filed a brief for respondent. He was also on a brief for Insurance Workers International Union, AFL-GIO.
Nahum A. Bernstein filed a brief for Prudential Insurance Company of America, as amicus curiae, urging reversal. Donald R. Seawell was of counsel.
Me. Justice Brennan
delivered the opinion of the Court.
This case presents an important issue of the scope of the National Labor Relations Board’s authority under § 8 (b) (3) of the National Labor Relations Act, which provides that “it shall be an unfair labor practice for a labor organization or its agents ... to refuse to bargain collectively with an employer, provided it is the representative of his employees . . . .” The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer’s business.
Since 1949 the respondent Insurance Agents’ International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements cdvering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to, collect premiums and to solicit -new business in an assigned locality known in the trade as his “debit.” He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on-collections made and on new policies written;.his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.
In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract wére agreed upon on July 17, 1956. It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.
However, in April 1956, Prudential filed a § 8 (b) (3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a “Work Without a Contract” program — which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.
A complaint of violation of §8 (b)(3) issued on the charge and hearings began before the bargaining was concluded. It was developed in the evidence that the union’s harassing tactics involved activities by the member agents such as these: refusal for a time tó solicit new business, and refusal (after the writing of new business was resumed) to comply with the company’s reporting procedures; refusal to participate in the company’s “May Policyholders’ Month Campaign”; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in “sit-in-mornings,” “doing what comes naturally” and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders’ signatures on petitions directed to the company; and presenting the signed policyholders’ petitions to the company at its home office while simultaneously engaging in mass demonstrations there.
The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N. L. R. B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board’s order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, 97 U. S. App. D. C. 35, 227 F. 2d 409, he did not consider that he was bound to follow it.
However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner’s recommendation, and entered a cease-and-desist order, 119 N. L. R. B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board’s order. 104 U. S. App. D. C. 218, 260 F. 2d 736. We granted the Board’s petition for certiorari to review the important question presented. 358 U. S. 944.
The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union'had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board’s General Counsel in prosecuting the complaint. The.hearing examiner’s analysis of the congressional design in enacting the statutory duty to bargain led him to. conclude that the Board was not authorized to find that such economically* harassing activities constituted a § 8 (b) (3) violation. The Board’s opinion answers flatly “We do not agree” and proceeds to say “. . . the Respondent’s reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith . . . .” 119 N. L. R. B., at 769, 770-771. Thus the Board’s view is that irrespective of the union’s good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of § 8 (b) (3) . Accordingly, as is said in the Board’s brief, “The issue here . . . comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect, support a finding of a failure to bargain' in good faith as required by Section 8 (b) (3).”
First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision. However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision .making it an unfair labor practice for an employer -to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring" an employer to recognize a union selected by his employees as.their representative. It was believed that other rights guaranteed by the Act would not- be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report:
“But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives . .and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect ior law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace.” S. Rep. No. 573, 74th Cong., 1st Sess., p. 12.
However, the nature of the duty to bargain in good faith thus imposed upon employers by § 8 (5) of the original Act was not sweepingly conceived. The Chairman of the Senate Committee declared: “When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, ‘Here they are, the legal representatives of your employees.’ What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.”
The limitation implied by the last sentence has not been in practice maintained — practically, it could hardly have been — but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the ‘ duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer’s unilateral wage increase during the bargaining processes tends to subvert the union’s position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See Labor Board v. Crompton-Highland Mills, Inc., 337 U. S. 217. And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: “Collective bargaining is something more than the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. . . . The Board has repeatedly asserted that good faith on the part of the employer, is an essential ingredient of collective bargaining.” This standard had early judicial approval, e. g., Labor Board v. Griswold Mfg. Co., 106 F. 2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of “take it or leave it”; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. Labor Board, 311 U. S. 514. This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties’ industrial relationship through the formation of a contract. See Teamsters Union v. Oliver, 358 U. S. 283, 295.
But at the same time, Congress was generally not concerned with the substantive terms on which the parties contracted. Cf. Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 6. Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board’s application of the “good-faith” test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice. Thus, in 1947 in Congress the fear was expressed that the Board had “gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make.” H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties’ substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into § 8 (d) of the Act. That section defines collective, bargaining as follows:
“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect.to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of. a concession . . .
The same problems as to whether positions taken at the bargaining table- violate the good-faith test continue to arise under the Act as amended. See Labor Board v. Truitt Mfg. Co., 351 U. S. 149; Labor Board v. Borg-Warner Corp., 356 U. S. 342, 349. But it remains clear . that § 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. Labor Board v. American National Ins. Co., 343 U. S. 395, 404.
Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding § 8 (b) (3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of . the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same “take it or leave it” attitude. that had been condemned in management. 93 Cong. Rec. 4135, 4363, 5005.
Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire, to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace. See Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45. Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board -and. in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any govern-méntal power to regulate the substantive solution of their differences. See Teamsters Union v. Oliver, supra, at 295.
We believe that the Board’s approach in this case— unless it'can be defended, in terms of § 8 (b) (3), as resting on some unique character of the union tactics involved here — must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government dóes not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth — or even with what might be thought to be the ideal of one. The parties — even granting the modification of views that may come from a realization of economic interdependence — still proceed, from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors— necessity for good-faith bargaining between parties, and the availability of economic pressure- devices to each to make the other partv incline to agree on one’s terms— exist side by side. One writer recognizes this by describing economic force as “a prime motive power for agreements in free collective bargaining.” Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at' the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: “Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.” Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1409.
For similar reasons, we think the Board’s approach involves an intrusion into the substantive aspects of the bargaining process — again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of § 8 (b) (3) and the limitations on Board power which were- the design of § 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union’s performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. ' As the parties’ own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union.
Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case, supra, 108 N. L. R. B. 743, set aside, 97 U. S. App. D. C. 35, 227 F. 2d 409; the Boone County case, United Mine Workers, 117 N. L. R. B. 1095, set aside, 103 U. S. App. D. C. 207, 257 F. 2d 211; and the present case. The Board freely (and we think correctly) conceded here that a “total” strike called by the union would not have subjected it to sanctions under § 8 (b)(3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board’s opinion in the instant case is not so unequivocal as this concession (and therefore perhaps more logical) . But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under § 8 (b)(3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.
(a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by §§ 7 and 8 (a)(1) of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board that this Court’s decision in the Briggs-Stratton case, Automobile Workers v. Wisconsin Board, 336 U. S. 245, establishes that the employee conduct here was not a protected concerted activity. On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these “slow-down,” “sit-in,” and arguably unprotected disloyal tactics. See Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240; Labor Board v. Electrical Workers, 346 U. S. 464. But sur.ely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain .in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining.' The, Board suggests that since (on the assumption we make) the union members’ activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There iá little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if théy were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing §8 (b)(3)’s terms, and we do not see how the availability of self-help to the' employer has anything to do with the matter.
(b) The Board contends that because an orthodox “total” strike is “traditional” its use must be taken as being consistent with § 8 (b) (3); but since the tactics here are not “traditional” or “normal,” they neéd not be so viewed. Further, the Board cites what it conceives to be the public’s moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as-we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally-supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it. The same may be said for the Board’s contention that these activities, as opposed to a “normal” strike, are inconsistent with § 8 (b) (3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here, but the matter does not turn on that; Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer weapons that might thus fall under ban would be most extensive.
Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only § 8 (b) (3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly “balanced” bargaining power, or some new distinction of justifiable and unjustifiable, proper and “abusive” economic weapons into the collective bargaining duty imposed by the Act. The Board’s assertion of power under § 8 (b) (3) allows it to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ, judging it on the yery general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed'our belief that this amounts to the Board’s entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.
It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer’s disciplinary action taken against specific workers is permissible or not, or whether a party’s conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. Labor Board v. Truck Drivers Union, 353 U. S. 87. And specifically we do not mean to question in any way the Board’s powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management, shall be branded , as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See § 8 (b)(4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the.Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U. S. C. § 158 (b)(4)); § 8 (b)(7), as added by the latter Act, 73 Stat. 544. But the' activities here involved have never been specifically outlawed by Congress. To be sure, the express prohibitions of the Act are not exclusive — if there were any questions of a stratagem or device to evade thé policies of the Act, the Board hardly wouid be powerless. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194. But it is clear to us that the Board needs a more specific charter than § 8 (b)(3) before it can add to the Act’s prohibitions here.
We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the “ultimate problem is the balancing of the conflicting legitimate interests” it must be remembered that “The function of striking.that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” Labor Board v. Truck Drivers Union, supra, at 96. Certainly a “statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.” Phelps Dodge Corp. v. Labor Board, supra, at 194. • But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board’s actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency-in this area. We think the Board’s resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-cáse adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in a" “ideal” or “balanced” state of collective bargaining.
It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation’s labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of “pure” negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties’ grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress’ policy has not yet moved to this point, and with only § 8 (b) (3) to lean on, we do not see how the Board can do so on its own.
Affirmed.
Separate opinion of
Mr. Justice Frankfurter,
which Mr. Justice Harlan and Mr. Justice Whittaker join.
The sweep of the Court’s opinion, with its far-reaching implications in a domain of lawmaking of such nationwide importance as that of legal control of collective bargaining, compels a separate statement of my views.
The conduct which underlies this action was the respondent union’s' “Work Without a Contract” program which it' admittedly initiated after the expiration of its contract with the Prudential Insurance Company on March 19, 1956. In brief, the union directed its members at various times to arrive late to work; to. decline, by “sitting-in” the company offices, to work according to their regular schedule; to refhse to write.new business or, whén writing it, not to report it in the ordinary fashion; to decline to attend special business meetings; to demonstrate before company offices; and to solicit petitions in the union’s behalf from policyholders with whom they dealt. Prudential was given notice in advance of the details of this program and of the demands which the union sought to achieve by carrying it out.
This action was commenced by a complaint issued on June 5, 1956, alleging respondent’s failure to bargain in good faith. After a hearing, the Trial Examiner recommended that the complaint be dismissed, finding that “[f]rom the ‘circumstantial evidence’ [of the union’s state of mind] of the bargaining itself . . . but one inference is possible . . . the Union’s motive was one of good faith . . .”; and that “whatever inference may be as reasonably drawn from the Union’s concurrent ‘unprotected’ activities” -is not sufficient to outweigh this evidence of good faith.
The Board sustained exceptions to the Trial Examiner’s report, concluding that respondent failed to bargain in good faith. The only facts relied on by the Board were based on the “Work Without a Contract” program. The Board found that such tactics on respondents part “clearly revealed an unwillingness to submit its demands to' the consideration of the bargaining table” and that respondent therefore failed tó bargain in good faith. In support of its conclusion of want of bargaining in good faith, the Board stated that “[hjarassing activities, are plainly ‘irreconcilable with the Act’s requirement of reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest’. . . .” The Board made no finding that the outward course of the negotiations gave rise to an inference that respondent’s state of mind was one of unwillingness to reach agreement. It found from the character of respondent’s activities in carrying out the “Work Without a Contract” program that what appeared to be good faith bargaining at the bargaining table was in fact a sham:
-^“[Tjhe fact that the Respondent continued to confer with the Company and.was desirous of concluding an -agreement does not alone establish that it fulfilled its obligation to bargain in good faith, as the Respondent argues and the Trial Examiner believes. At most, it demonstrates that the Respondent was prepared to go throfigh the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company’s business tó achieve acceptance of its contractual demands.”
The Board issued a cease-and-desist order and sought its enforcement in the Court of Appeals for the District of Columbia. Respondent cross-petitioned to set it aside. The Court of Appeals, relying exclusively on its prior decision in Textile Workers Union v. Labor Board, 97 U. S. App. D. C. 35, 227 F. 2d 409 (1955), denied enforcement and set aside the order. In the Textile Workers case the court had held (one judge dissenting) that the Board could not consider the “harassing” activities of the union there involved as evidence of lack of good faith during the negotiations. “There is . not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants.” 97 U. S. App. D. C. 35, 36, 227 F. 2d 409, 410.
The record presents two different grounds for the Board’s action in this case. The Board’s own opinion proceeds in terms oh an examination of respondent’s conduct as it bears upon the genuineness of its bargaining in the negotiation proceedings. From the respondent’s conduct the Board drew the inference that respondent’s state of mind was inimical to reaching an agreement, and that inference alone supported its conclusion of a refusal to bargain. The Board’s position in this Court proceeded in terms of the relation of conduct such as respondent’s to the kind of bargaining required by the statute, without regard to the bearing of such conduct on the proof of good faith revealed by the actual bargaining. The Board maintained that it
“could appropriately determine that the basic statutory purpose of promoting industrial peace through . the collective bargaining process would be defeated by sanctioning resort to this form of industrial warfare as a collective bargaining technique.”
The opinion of this Court, like that of the Court of Appeals, disposes of both questions by a single broad stroke. It concludes that conduct designed to exert pressure on the.bargaining situation with the aim of achieving favorable results is to be deemed entirely consistent with the duty to bargain in good faith. No evidentiary significance, not even an inference of a lack of good faith, is allowed to be drawn from the conduct in question as pai-o of a total context.
I agree that the position taken by the Board here is not tenable. In enforcing the duty to bargain the Board must find the ultimate fact whether, in the case before it and in the context of all its circumstances, the respondent has engaged in bargaining without the sincere desire to reach agreement which the Act commands. I further agree that the Board's action in this case is not sustainable as resting upon a determination that respondent’s apparent bargaining was in fact a sham, because the evidence is insufficient to justify that conclusion even giving the Board, as we must, every benefit of its right to draw on its experience in interpreting the industrial significance of the facts of a record. See Universal Camera Corp. v. Labor Board, 340 U. S. 474. What the Board.has in fact done is lay down a rule of law that such conduct as was involved in carrying out the “Work Without a Contract” program necessarily betokens bad faith in the negotiations.
The. Court’s opinion rests its conclusion on the generalization that “the ordinary economic strike is not evidence of a failure to bargain in good faith . . . because . . . there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining.” This large statement is justified solely by reference to § 8 (b)(3) and to the proposition that inherent in bargaining is room for the play of forces which reveal the strength of one party, or the weakness of the other, in the economic context in which they seek agreement. But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract “economic pressure.” It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as “economic pressure.” An exertion of “economic pressure” may at the same time be part of a concerted effort to evade or disrupt a normal course of- negotiations. Vital differences in "conduct, varying in character and effect from mild persuasion to destructive, albeit “economic,” violence are obscured under cover of a single abstract .phrase.
While § 8 (b) (3) of course contemplates some play of “economic pressure,” it does not follow that the purpose in engaging in tactics designed to exert it is to reach agreement through the bargaining process in the manner which the statute commands, so that the Board is precluded from considering such conduct,-in the totality of circumstances, as evidence of the actual state of mind of the actor. Surely to deny this scope for allowable judgment to the Board is to deny it the special function with which it has been entrusted. See Universal Camera Corp. v. Labor Board, supra. This Court has in the past declined to pre-empt by broad proscriptions the Board’s competence in the first instance to weigh the significance of the raw facts of conduct and to draw from, them an informed judgment as to the ultimate fact. It has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a finding of an unfair labor practice, “may be altered by imponderable subtleties at work, which it is not our function to appraise” but which are, first, for the Board’s consideration upon all the evidence. Labor Board v. Virginia Power Co., 314 U. S. 469, 479. Activities in isolation may be wholly innocent, lawful and “protected” by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts “are bound together as the parts of a single plan [to frustrate agreement] . The plan may- make the parts unlawful.” Swift & Co. v. United States, 196 U. S. 375, 396. See also Aikens v. Wisconsin, 195 U. S. 194, 206.
Moreover, conduct designed to exert and exerting “economic pressure” may not have the shelter of § 8 (b) (3) even in isolation. Unlawful violence, whether to person or livelihood, to secure accéptance of an offer, is as much a withdrawal of included statutory subjects from,bargaining as the “take it or leave it” attitude which the statute clearly condemns. One need not romanticize thq community of interest between employers and employees, or be unmindful of the' conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8 (b) (3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content.
The main purpose of the Wagner Act was to put the force of law behind the promotion of unionism as the legitimate and necessary instrument “to give laborers opportunity to deal on equality with their employer.” Mr. Chief Justice Taft for the Court, in American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 209. Equality of bargaining power between capital and labor, to use the conventional terminology of our predominant economic system, was the aim of this legislation. The presupposition of collective bargaining was the progressive enlargement of the area of reason in the process of bargaining through the give-and-take of discussion and enforcing machinery within industry) in order- to substitute, in the language of Mr. Justice Brandéis, “processes of justice for the more primitive method of trial by combat.” Duplex Printing Press Co. v. Deering, 254 U. S. 443, 488 (dissenting). Promotion of unionism by the Wagner Act, with the resulting progress of rational collective, bargaining, has been gathering momentum for a quarter of a century. In view of the economic and political strength which has thereby come to unions, interpretations of the Act ought not to proceed on the assumption that it actively throws its weight on the side of unionism in order to redress an assumed inequality of bargaining power. For the Court to fashion the rules governing collective bargaining on the assumption that the power and position of labor unions and their solidarity are what they were twenty-five years ago, is to fashion law on the basis of unreality. Accretion of power may carry with it increasing responsibility for the manner of its exercise.
Therefore, in the unfolding of law in this field it should not be the inexorable premise that the process of collective bargaining is by its nature a bellicose process. The broadly phrased terms of the Taft-Hartley Act should be applied to carry out the broadly conceived policies of the Act. At the core of the promotion of collective bargaining, which was the chief means by which the great social purposes of the National Labor Relations Act were sought to be furthered, is a purpose to discourage, more and more, industrial combatants from pressing their demands by all available means to the limits of the justification of self-interest. This calls for appropriate judicial construction of existing legislation. The statute lays its emphasis upon reason and a willingness to employ it as the dominant force in bargaining. That emphasis is respected by declining to take as a postulate of the duty to bargain that the legally impermissible exertions of so-called economic pressure must be restricted to the crudities of brute foree. Cf. Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240.
However, it of course does not follow because the Board may find in tactics short of violence evidence that a party means not to bargain in good faith that every such finding must be sustained. Section 8 (b) (3) itself, as previously construed by the Board and this Court and as amplified by § 8 (d), provides a substantial limitation on the Board’s becoming, as the Court fears, merely “an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.” The Board’s function in the enforcement of the duty to bargain does not end when it has properly drawn an inference unfavorable to the respondent from particular conduct. It must weigh that inference as part of the totality of inferences which may appropriately be drawn from the entire conduct of the respondent, particularly its conduct at the bargaining table. The state of mind with which the party charged with a refusal to bargain entered into and participated in the bargaining process is the ultimate issue upon which alone the Board must act in each case, and on the sufficiency of the whole record to justify its decision the courts must pass. Labor Board v. American National Ins. Co., 343 U. S. 395.
The Board urges that this Court has approved its enforcement of § 8 (b) (3) by the outlawry of conduct per se, and without regard to ascertainment of a state of mind. It relies upon four cases: H. J. Heinz Co. v. Labor Board, 311 U. S. 514; Labor Board v. Crompton-Highland Mills, 337 U. S. 217; Labor Board v. F. W. Woolworth Co., 352 U. S. 938; and Labor Board v. Borg-Warner Corp., 356 U. S. 342. These cases do not sustain its position. While it is plain that the per se proscription of an employer’s refusal, to reduce a collective agreement to writing was approved in the Heinz case, it is equally plain from its opinion in that case as well as its argument before this Court that the Board itself regarded the act of refusal to agree to the integration of the agreement in a writing as a manifestation that the employer’s state of mind was hostile to agreement with the union. This Court so regarded the evidence. 311 U. S., at 525-526. Decision in the Borg-Warner case proceeded from a similar premise. By forcing a deadlock upon a non-statutory subject of bargaining the employer manifested his intention to withdraw the statutory subjects from bargaining. The Crompton-Highland decision rested not on approval of a per se rule that unilateral changes of the conditions of employment by an employer during, bargaining constitute a refusal to bargain, but upon the inferences of a lack of good faith which arose from the facts, among others, that the employer instituted a greater increase than it had offered the union and that it did so without consulting the union. Finally, no such conclusion as the Board urges can be drawn from the summary disposition of the Woolworth case here. To the extent that in any of these cases language referred to a per se proscription of conduct it was in relation tó facts strongly indicating a lack of a sincere desire to reach agreement.
Moreover, in undertaking to fashion the law of. collective bargaining in this case in accordance with the command of § 8 '(b) (3), the Board has considered § 8 (b) (3) in isolation, as if it were an independent provision of law, and not a part of a reticulated legislative scheme with interlacing purposes. It is the purposes to be drawn from the statute in its entirety, with due regard tó all its interrelated provisions, in relation to which § 8 (b) (3)' is to be applied. Cf. Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 456. A pertinent restraint on the Board's power to consider as inimical to fair bargaining the exercise of the “economic” weapons of labor is expressed in the Act by § 13:
“Nothing in this Act, except as specifically provided for herein, shall be construed so as either to-interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”
Section 501 (2).of the Labor Management Relations Act provides a definition of “strike”:
“When used in this Act — .. . (2) The term “strike” includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a . collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by émployees.”
As the last clause of § 13 makes plain, the section does not recognize an unqualified right, free of Board interference, to engage in “strikes,” as respondent contends. The Senate Report dealing with the addition of the clause to the section confirms that its purpose was to approve the elaboration of limitations on the right to engage in activities nominally within the definition of § 501 (2) which this Court had heretofore developed in such cases as Labor Board v. Fansteel Metallurgical Corp., supra; Labor Board v. Sands Mfg. Co., 306 U. S. 332; and Southern S. S. Co. v. Labor Board, 316 U. S. 31. But “limitations and qualifications” do not extinguish the rule. For the Board to proceed, as it apparently claims power to do, against conduct which, but for the bargaining context in which it occurs, would not be within those limitations, it must rely upomthe specific grant of power to enforce the duty to bargain which is contained in § 8 (b)(3). In construing that section the policy of the rule of construction set forth by § 13, see Automobile Workers v. Wisconsin Board, 336 U. S. 245, 259, must be taken into account. In the light of that policy there is no justification for divorcing from the total bargaining situation particular tactics which the Board finds undesirable, without regard to the actual-conduct of bargaining in the case before it.
The scope of the permission embodied in § 13 must be considered by the Board in determining, finder a proper rule of law, whether the totality of the respondent’s conduct justifies the conclusion that it has violated the “specific” command of §8 (b)(3). When the Board emphasizes tactics outside the negotiations themselves as the basis of the conclusion that the color of illegitimacy is imparted to otherwise apparently bona' fide negotiations, § 13 becomes relevant. A total, peaceful strike in' compliance with the.requirements of § 8 (d) would plainly not suffice to sustain the conclusion; prolonged union-sponsored violence directed at the company to secure eom-pliance as plainly would. Here, as in so many legal situations of different gradations, drawing the line between them is not an abstract, speculative enterprise. Where the line ought to be drawn should await the decision of particular cases by the Board. It involves experienced judgment regarding the justification of the means and the severity of the effect of particular conduct in the spécialized context of bargaining.
Section 8 (d), which was added in the amendments of 1947, is also inconsistent with the Board’s claim of power to proscribe conduct without regard to the state of mind with which the actor participated in negotiations. The 1935 Act did not define the “practice and procedure of collective bargaining” which it purposed to “encourage.” Act of July 5, 1935, § 1, 49 Stat. 449. That definition, until 1947, was evolved by the Board and the courts in the light of experience in the administration of the Act. See, e. g., H. J. Heinz Co. v. Labor Board, supra. In 1947, after considerable controversy over the need to objectify the elements of the duty to bargain, § 8 (d) was enacted. We have held that the history of that enactment demonstrates. an intention to restrain the Board’s power to regulate, whether directly or indirectly, the substantive terms of collective agreements. Labor Board v. American National Ins. Co., supra, at 404. In the same case we recognized that implicit in that purpose is a restraint upon the Board’s proceeding by the proscription of conduct per se and without regard to inferences as to state of mind to be drawn from the totality of the conduct in each case. Id., at 409.
Finally, it is not disputed that the duty to bargain imposed on unions in 1947 was the same as that previously imposed on employers, and it is therefore not without significancé for its present assertion of power that for 25 years of administration of the employer’s duty to bargain, which was imposed by the Act of 1935 and preserved by the amendments of 1947, the Board has not found it necessary to assert thkt it may proscribe conduct as undesirable in bargaining without regard to the actual course of the negotiations. See Federal Trade Comm'n v. Bunte Bros., 312 U. S. 349, 351-352.
These considerations govern the disposition of the case before the Court. Viewed as a determination upon all the evidence that the respondent bargained without the sincere desire to compose differences and reach agreement which the statute commands, the Board’s conclusion must fall for want of support in the evidence as a whole. See Universal Camera Corp. v. Labor Board, supra. Apart from any restraint upon its conclusion imposed by § 13, á niatter which the Board did not consider, no reason is manifest why the respondent’s nuisance tactics here should be thought a sufficient basis for the conclusion that all its bargaining was in reality a sham. On this record it does not appear that respondent merely stalled at the bargaining table until its conduct outside the negotiations might force Prudential to capitulate to its demands, nor does any other evidence’ give the color of pretence to its negotiating procedure! From the conduct of its counsel before the Trial Examiner, and from its opinion, it is apparent that the Board proceeded upon the belief .that respondent’s tactics were, without more, sufficient evidence of a lack of a sincere desire to reach agreement to make other consideration of its conduct unnecessary. For that reason the case should be remanded to the Board for further opportunity to introduce pertinent evidence, if any there be, of respondent’s lack of good faith.
Viewed as a determination by the Board that it could, quite apart from respondent’s state of mind, proscribe its tactics because they were not “traditional,” or were thought to be subject to public disapproval, or because employees who engaged in them may have been subject to discharge, the Board’s conclusion proceeds from the application of an erroneous rule of law. ■
The decision of the Court of Appeals should be vacated, and the case remanded to the Board for further proceedings consistent with these views.
As added by. the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 141, 29 U. S. C. § 158 (b) (3).
A stenographic record of the discussions at the bargaining table was kept, and the transcription of it fills 72 volumes.
The hearings on the unfair labor practice charge were recessed in July to allow the parties to concentrate on the effort to negotiate the settlement which was arrived at in the new contract of July 17, 1956.
Examining the matter de novo without the Personal Products decision of the Board as precedent, the examiner called repeatedly upon the Board’s General Counsel for some evidence of failure to bargain in good faith, besides the harassing tactics themselves. When such evidence was not forthcoming, he commented, “It may well be that the Board will be able to ‘objectively evaluate’ the ‘impact’ of activities upon ‘collective-bargaining negotiations’ from the. mere ‘nature of the activities,’ but the Trial Examiner is .reluctant even to attempt this feat of mental pole vaulting with only presumtion as a pole.” 119 N. L. R. B., at 781-782.
The Board observed that the union’s continued participation in negotiations and desire to reach an agreement only indicated that it “was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company’s business to achieve acceptance of its contractual demands.” 119 N. L. R. B., at 771. The only apparent basis for the conclusion that the union was only going through the “motions” of bargaining is the Board’s own postulate that the tactics in question were inconsistent with the statutorily required norm of collective bargaining, and the Board’s opinion, and its context, reveal that this was all that it meant. This -per se rule amounted to the “pole vaulting” that the examiner said he was “reluctant even to attempt.” See note 4, supra.
We will assume without deciding that the activities in question here were not “protected” under § 7 of the Act. See p. 492 and note 22, infra.
See Hearings before the Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess., p. 43: “Therefore, while the bill does not state specifically the duty of an employer to recognise and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill.”
49 Stat. 453. The corresponding provision in the current form of the Act is § 8 (a) (5), 61 Stat. 141, 29 U. S. C. § 158 (a) (5).
Senator Walsh, at 79 Cong. Rec. 7660.
1 N. L. R. B. Ann. Rep., pp. 85-86.
This Court related the historj' in Labor Board v. American National Ins. Co., 343 U. S. 395, 404.
61 Stat. 142, 29 U. S. C. § 158 (d).
Senator Ellender was most explicit on the matter at 93 Cong. Rec. 4135.
The legislative history seems also to have contemplated that the provision would be applicable to a union which declined to identify its bargaining demands while attempting financially to exhaust the employer: See the remark by Senator Hatch at 93 Cong. Rec. 5005. Cf. note 15, infra. A closely related application is developed in American Newspaper Publishers Assn. v. Labor Board, 193 F. 2d 782, 804-805, affirmed, as to other issues on limited grant of certiorari, 345 U. S. 100.
G. W. Taylor, Government Regulation of Industrial Relations,, p. 18.
The facts in Personal Products did, in the Board’s view, present the case of a union which was using economic pressure against an employer in a bargaining situation without identifying what its bargaining demands were — a matter which can be viewed quite differently in terms of a-§8 (b)(3) violation from the present case. See note 13, supra. The Board’s decision- in Personal Products may have turned on this to some extent, see 108 N. L. R. B., at 746; but its decision in the instant case seems to view Personal Products as turning on the same point as does the present case.
This Court granted certiorari, 350 U. S. 1004, on the Board’s petition, to review that judgment; but in the light of intervening circumstances which at least indicated that the litigation had become less meaningful to the parties, cf. The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, the order granting certiorari was vacated and certiorari was denied. 352 U. S. 864.
The court there displayed a want of sympathy to the Board’s theory that a strike in breach of contract violated §8 (b)(3), see 103 U. S. App. D. C., at 210-211, 257 F. 2d, at 214-215. Cf. Feinsinger, The National Labor Relations Act and Collective Bargaining, 57 Mich. L. Rev. 806-807. However, the court, turned its decision on its ruling, contra the Board, that there was no breach' of the contract involved. On this point, contra is United Mine Woxkers v Benedict Coal Corp., 259 F. 2d 346, 351, affirmed this day by an equally divided Court, ante, p. 459.
Said the Board: “Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union’s conduct is not sanctioned by the Act.” 119 N. L. R. B., at 771-772.
Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals’ judgment urged by respondent. These we take to include the argument that the Board’s order violated the standards of § 8 (c) of the Act, 61 Stat. 142, 29 U. S. C. § 158 (c), and the points touched upon in notes 22 and 23, infra.
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 49 Stat. 452, as amended, 61 Stat. 140, 29 U. S. C. § 157.
“It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ... .” 49 Stat. 452, as amended, 61 Stat. 140, 29 U. S. C. § 158 (a) (1).
Respondent cites a number of specific circumstances in the activities here that might distinguish them from the Briggs-Stratton case as to protection under § 7. We do not pass on the matter.
Briggs-Stratton held,' among other things, that employee conduct quite similar to the conduct at bar was neither protected by § 7 of the Act nor prohibited (made an unfair labor practice) by § 8. The respondent urges that the holding there that , the conduct was not prohibited by § 8 in and of itself requires an affirmance of the judgment here, since in this case the Soard’s order found a violation of § 8. In fact the Board’s General Counsel on oral argument made the concession that Briggs-Stratton would have to be overruled for the Board to prevail here.
But regardless of the status today of the other substantive rulings in the Briggs-Stratton case, we cannot say that the case’s holding as to § 8 requires a judgment for the respondent here. Briggs-Stratton was a direct review on certiorari here of a state board -order, as modified and affirmed in the State Supreme Court, against the union conduct in question. The order was assailed by the union here primarily as being beyond the competence of the State to make, by reason of the federal labor relations statutes. This Court held that the activities in question were neither protected by § 7 nor prohibited by § 8, and allowed the state order to stand. The primary focus of attention was whether the activities were protected by § 7; there seems to have been no serious contention made that they weré prohibited by § 8.. The case arose long before the line of cases beginning with Personal Products in which the Board began to relate such activities to § 8 (b) (3). But of special significance is the fact that the approach to pre-emption taken in Briggs-Stratton was that the state courts and this Court on review were required to decide whether the activities were either protected by § 7 or prohibited by § 8. This approach is “no longer of general application,” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245, n. 4, as this Court has since developed the doctrine in pre-emption cases that questions of interpretation of the National Labor Relations Act are generally committed in the first instance to the Board’s administrative processes, San Diego Building Trades Council v. Garmon, supra; except in the atypical situation where those processes are not relevant to an answer to the question. See Teamsters Union v. Oliver, supra. Therefore to view Briggs-Stratton as controlling on the § 8 issue here would be to compound the defects of a now discarded approach to pre-emption; it would amount to saying that-the Board would be foreclosed in its adjudicative development of interpretation of the Act by a decision rendered long ago, not arising in review of one of its own orders, at a time when its own views had not come to what they now are, ;and in which the precise issue (as to § 8 (b)’(3)) was not litigated at all, and the general § 8 issue not litigated seriously. Hence we construe § 8 here uninfluenced by what was said in Briggs-Stratton.
However, we will not here re-examine what was said in Briggs-Strat-ton as to §§ 13 and 501. The union here contends that the definition of “strike” in § 501 (2) of the Taft-Hartley Act, 61 Stat. 161, 29 U. S. C. § 142 (2), which is broad enough to include the activities here in question, must be applied here under § 13 of the NLRA, which provides that “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” 49 Stat. 457, as amended, 61 Stat. 151, 29 U. S. C. § 163. And if it is so applied, the union argues that § 13 would prevent the Board from considering the conduct in question as an unfair labor practice. The issue was tendered in much the same light in Briggs-Stratton, and the Court quite plainly indicated ' that the definition in § 501 (2) was only to be considered in connection with § 8 (b) (4) and not with § 13, see 336 U. S., at 258-263, especially the last page; at the very least this was a holding alternative to a holding, 336 U. S., at 263-264, that, however defined, § 13, unlike § 7, was not an inhibition on state power. Perhaps this element of the Briggs-Stratton decision has become open also, but certainly this is not so clear as is the fact that tSe § 8 point is open. In any event, we shall not consider the matter further since our affirmance of the Court of Appeals’ reversal of the Board’s order is, we believe, more properly bottomed on a construction of § 8 (b) (3).
The Board quotes, in support of this, general language from a decision of this Court, Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342, 346, dealing with a wholly different matter — the scope of subjects appropriate for collective bargaining.
“To say 'there ought to be a law against it' does not demonstrate the propriety of the NLRB’s imposing the prohibition.” Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1437.
Though it is much urged in the Board's brief here as a general proposition, the Board’s opinion (following its per se approach) contains no discussion of this point at all insofar as the facts of the case were concerned; it did not discuss the economic effect of the activities on the agents themselves and expressly declined to pass on their effect on the employer. 119 N. L. R. B., at 771. Respondent here urges that the evidence establishes quite .the opposite conclusion.
"If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of 'bargaining powers’ to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?” Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1440-1441.
There is a suggestion in the Board’s opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of employment and hence also on this basis violative of § 8 (b) (3), just as an employer’s unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. Labor Board v. Crompton-Highland Mills, Inc., 337 U. S. 217. See 119 N. L. R. B., at 772. Prudential, as amicus curiae here, renews this point though the Board does not make it here. It seems baseless to us. Thére was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing, working Conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. Cf. Note, 71 Harv. L. Rev. 502, 509. Brit this situation is not presented here, and we leave the question open.
The Board’s opinion interprets the National Labor Relations Act to require, in this particular, “a background of balanced bargaining relations.” 119 N. L. R. B., at 772.
The Board in Personal Products condemned the union’s tactics as an “abuse of the Union’s bargaining powers.” 108 N. L. R. B., at 746.
It might be noted that the House bill,: when the Taft-Hartley Act was in the legislative process, contained a list of “unlawful concerted activities” one of which would quite likely have reached some of the union conduct here, but the provision never became law. H. R. 3020, 80th Cong., 1st Sess., § 12.
After we granted certiorari, we postponed to the consideration' of the case on the merits a motion by the Board to join as a party here Insurance Workers International Union, AFL-GIO, the style of a new union formed by merger of respondent and another union, after the decision of this case in the Court of Appeals, and a contingent motion by respondent that it be deleted as a party. 361 U. S. 872. In the light of our ruling on the merits, there is little point in determining here and now what the legal status of the predecessor and successor union is, and if the issue ever becomes important, we think that the matter is best decided then. For what it is worth, we shall treat both as parties before us in this proceeding. The Board’s motion is granted and respondent’s is denied. See Labor Board v. Lion Oil Co., 352 U. S. 282.
The order in part provided: “[T]he Respondent . . . shall: 1. Cease and desist from refusing to bargain collectively in good faith with The Prudential -Insurance Company of America ... by authorizing, directing,'supporting, inducing or encouraging the Company’s employees to engage in slowdowns, harassing activities or other unprotected conduct, in the course of their employment and in disregard of their duties and customary routines, for the purpose of forcing the Company to accept its bargaining demands, or from engaging in any like or related conduct in derogation of its statutory duty to bargain
“There are plenty of methods of coercion short of actual physical violence.” Senator Taft, at 93 Cong. Rec. 4024.
As the Court states, the prevention of union conduct designed to enforce such an attitude was a primary purpose of the enactment of- § 8 (b) (3). See, e. g.,. 93 Cong. Rec. 4135.
The Court held that “The Board acted within its allowable discretion in finding that under the circumstances of this case failure to furnish the wage information constituted an unfair labor practice.” It cited Labor Board v. Truitt Mfg. Co., 351 U. S. 149; and in Truitt the entire Court was in agreement both that the withholding of wage information by the employer was weighty evidence o'f a lack of willingness to bargain sincerely, and that the judgment of the Board had to' be predicated on all the facts pertinent to state of mind. 351 U. S., at 153, 155. Moreover, the lower court in the Woolworth case found that the Board had not proceeded by a per se determination, 235 F. 2d 319, 322 (C. A. 9th Cir.), but that there was no basis for its conclusion that the information requested was relevant to administration of the agreement.
While the Board does consider these sections in connection with respondent’s assertion that they afford protection to its conduct from Board regulation, see n. 8, infra, it does not consider their application as a rule of construction of § 8 (b) (3).
Although I am in sympathy with the Court’s- conclusion that the construction of §8 in this case is to be uninfluenced by what was said in Automobile Workers v. Wisconsin Board, 336 U. S. 245, I do not agreé that that case held that the definitions of § 58J (2) are inapplicable to § 13. The question which the Court there considered was whether §13, as defined in §501(2), independently rendered activities within its terms immune from state regulation. The Court’s observation that for § 501 (2} to have so extended the force of § 13 would have been inconsistent with the purpose of the inclusion of the definition, which was to extend the Board’s power with reference to the unfair labor practice defined by §8 (b)(4), 336 U. S., at 263, was made in light of the contention that § 13 itself had the effect of precluding the States. The crux of the decision with regard to § 13 was that it announced no more than a rule of construction of the Federal Act. It was neither argued nor decided that § 501 (2) does not apply to § 13. There appears to be no support for such a conclusion either in the text of the Act or in its legislative history. It is hardly conceivable that such a word as “strike” could have been defined in these statutes without congressional realization of the obvious scope of its applicatibn.
S. Rep. No. 105, 80th Cong., 1st Sess. (1947), at p. 28. This provision of the Taft bill was adopted by the Conference. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. (1947), at p. 59.
The Board urges that respondent’s activities are not within the "dispensation or protection” of § 13, because Automobile Workers v. Wisconsin Board, 336 U. S. 245, held “slowdowns” to be “unprotected” activities subject to state regulation. The argument misreads the significance of that cas^ as regards § 13. See n. 6, swpra. Nor is it valid to assume that all conduct loosely described as a “slowdown” has the same legal significance, or that union sponsorship of such conduct falls within the “limitations or qualifications” on the,right to strike incorporated in § 13 in every case in which employee participation in it would be “unprotected” by § 7, and therefore subject to economic retaliation, by the employer. See the portions of the Board’s order quoted in n. 1, 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.
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What is the agency involved in the administrative action?
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[
81
] |
VANCE, SECRETARY OF STATE v. TERRAZAS
No. 78-1143.
Argued October 30, 1979
Decided January 15, 1980
White, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmuN, Powell, and RehNquist, JJ., joined. Marshall, J., post, p. 270, and Stevens, J., post, p. 272, filed opinions concurring in part and dissenting in part. Brennan, J., filed a dissenting opinion, in Part II of which Stewart, J., joined, post, p. 274. Stewart, J., filed a dissenting statement, post, p. 270.
Allan A. Ryan, Jr., argued the cause for appellant. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Getter, William G. Otis, and William C. Brown.
Kenneth K. Ditkowsky argued the cause and filed a brief for appellee.
Mr. Justice White
delivered the opinion of the Court.
Section 349 (a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U. S. C. § 1481 (a)(2), provides that “a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof.” The Act also provides that the party claiming that such loss of citizenship occurred must “establish such claim by a preponderance of the evidence” and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349 (c), as added, 75 Stat. 656, 8 U. S. C. § 1481 (c). The issues in this case are whether, in establishing loss of citizenship under § 1481 (a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481 (c).
I
Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing “adherence, obedience, and submission to the laws and authorities of the Mexican Republic” and “expressly renouncing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . .” App. to Brief for Appellant 5a. The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he “has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national.” Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris. Statement 21a.
A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but in December 1971 the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. App. to Juris. Statement 31a. As permitted by § 360 (a) of the Act, 66 Stat. 273, 8 U. S. C. § 1603 (a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo.
The District Court recognized that the first sentence of the Fourteenth Amendment, as construed in Afroyim v. Rusk, 387 U. S. 253, 268 (1967), “ 'protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship’ ” and that every citizen has “ ‘a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.’ ” App. to Juris. Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States.” Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had “knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality,” id., at 28a, and that “[t]he taking of an oath of allegiance to Mexico and renunciation of a foreign country [sic] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality.” Ibid. The District Court concluded that the United States had “proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States,” id., at 29a, and that he had therefore “voluntarily relinquished United States citizenship pursuant to § 349 (a) (2) of the . . . Act.” Ibid.
In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted “voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States,” id., at 25a, and that appellee “knew he was repudiating allegiance to the United States through his actions.” Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F. Supp. 1241, 1245 (SDNY 1975), aff’d, 532 F. 2d 809 (CA2), cert. denied, 429 U. S. 823 (1976), that “the declaration of allegiance to a foreign state in conjunction with the renuncia-tory language of United States citizenship ‘would leave no room for ambiguity as to the intent of the applicant.’ ” App. to Juris. Statement 23a.
The Court of Appeals reversed. 577 F. 2d 7 (1978). As the Court of Appeals understood the law — and there appears to have been no dispute on these basic requirements in the Courts of Appeals — the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee’s part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, “[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court’s findings.” Id., at 10. The Court of Appeals ruled, however, that under Ajroyim v. Busk, supra, Congress had no power to legislate the evidentiary standard contained in § 1481 (c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by “clear, convincing and unequivocal evidence.” 577 F. 2d, at 11. The case was remanded to the District Court for further proceedings.
The Secretary took this appeal under 28 U. S. C. § 1252. Because the invalidation of § 1481 (c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U. S. 970.
II
The Secretary first urges that the Court of Appeals erred in holding that a “specific intent to renounce U. S. citizenship” must be proved “before the mere taking of an oath of allegiance could result in an individual’s expatriation.” 577 F. 2d, at 11. His position is that he need prove only the voluntary commission of an act, such as swearing allegiance to a foreign nation, that “is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.” Brief for Appellant 24. We disagree.
In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that § 401 (e) of the Nationality Act of 1940, 54 Stat. 1168—1169, which provided that an American citizen “shall lose his nationality by . . . [vjoting in a political election in a foreign state,” contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401 (e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen’s intent to renounce his citizenship. This Court, however, in overruling Perez, “reject[ed] the idea . . . that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.” Afroyim v. Rusk, supra, at 257. The Afroyim opinion continued: § 1 of the Fourteenth Amendment is “most reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.” 387 U. S., at 262.
The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481 (a) because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual’s “assent,” 387 u. S., at 257, in addition to his voluntary commission of the expatriating act. It is difficult to understand that “assent” to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.
The Secretary argues that the dissent in Perez, which it is said the Court’s opinion in Afroyim adopted, spoke of conduct so contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that “assent” should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that in such instances the “Government is simply giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.” Perez v. Brownell, supra, at 69. This suggests that the Chief Justice’s conception of “actions in derogation of undivided allegiance to this country,” 356 U. S., at 68, in fact would entail an element of assent.
In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481 (a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Nishikawa v. Dulles, 356 U. S. 129, 139 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.
This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op. Atty. Gen. 397. An “act which does not reasonably manifest an individual’s transfer or abandonment of allegiance to the United States,” the Attorney General said, “cannot be made a basis for expatriation.” Id., at 400. Voluntary relinquishment is “not confined to a written renunciation,” but “can also be manifested by other actions declared, expatriative under the [A]ct, if such actions are in derogation of allegiance to this country.” Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. “In- each case,” the Attorney General stated, “the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.” Id., at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 56-57, n. 28.
Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: “In consideration of the complete record, we view appellant’s declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship.” App. to Juris. Statement 50a. This same view — that expatriation depends on the will of a citizen as ascertained from his words and conduct — was also reflected in the United States’ response to the petition for certiorari in United States v. Matheson, 532 F. 2d 809, cert. denied, 429 U. S. 823 (1976). Insofar as we are advised, this view remained the official position of the United States until the appeal in this case.
As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it.
Ill
With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings and that the proof in such cases must be by clear and convincing evidence rather than by the preponderance standard prescribed in § 1481 (c). We are in fundamental disagreement with these conclusions.
In Nishikawa v. Dulles, 356 U. S. 129 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401 (c) of the Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa’s army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence.
Section 1481 (c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa. The provision “sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable — similarly—by preponderance of the evidence. . . H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961).
We see no basis for invalidating the evidentiary prescriptions contained in § 1481 (c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, supra, at 135. Nor do we agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F. 2d, at 10. Although § 1481 (c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 31 (1976); Hawkins v. United States, 358 U. S. 74, 78 (1958); Tot v. United States, 319 U. S. 463, 467 (1943).
We note also that the Court’s opinion in Ajroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra, at 139. In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished.
We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481 (c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that in criminal and involuntary commitment contexts we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U. S. 684 (1975); Addington v. Texas, 441 U. S. 418 (1979). This Court has also stressed the importance of citizenship and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization). None of these cases involved a congressional judgment, such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence.
IV
The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481 (c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481 (c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits such as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481 (c) is not otherwise constitutionally infirm.
Section 1481 (c) provides in relevant part that “any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” In enacting § 1481 (c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act — there, service in a foreign army — must be performed voluntarily, but it did insist that the Government have the benefit of the usual presumption of voluntariness and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence.
It is important at this juncture to note the scope of the statutory presumption. Section 1481 (c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision.
The majority opinion in Nishikawa referred to the “ordinary rule that duress is a matter of affirmative defense” to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U. S., at 134. Justices Frankfurter and Burton, concurring in the result, also referred to the “ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was.” Id., at 141. And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the “general rule that consciously performed acts are presumed voluntary” and referred to Federal Rule of Civil Procedure 8 (c), which treats duress as a matter of affirmative defense. 356 U. S., at 144. Yet the Court in Nishikawa, because it decided that “the consequences of denationalization are so drastic” and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id., at 133-138.
Section 1481 (c), which was enacted subsequently, and its legislative history, H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. See Hartsville Oil Mill v. United States, 271 U. S. 43, 49-50 (1926); Towson v. Moore, 173 U. S. 17, 23-24 (1899); Savage v. United States, 92 U. S. 382, 387-388 (1876). “Duress, if proved, may be a defence to an action . . . but the burden of proof to establish the charge ... is upon the party making it. . . Mason v. United States, 17 Wall. 67, 74 (1873) , The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also consti-tutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481 (e) has continuing vitality.
V
In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Mr. Justice Stewart dissents for the reasons stated in Part II of Mr. Justice Brennan’s dissenting opinion, which he joins.
The relevant statutory provisions are §§ 349 (a) (2), (c) of the Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8 U. S. C. § 1481:
“(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
“(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof;
“(c) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b) of this section, any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”
The application contained the following statement:
“I therefore hereby expressly renounce. citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of ., of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic.”
The blank spaces in the statement were filled in with the words “Estados Unidos” (United States) and “Norteamérica” (North America), respectively. Brief for Appellant 4.
The Fourteenth Amendment, § 1, reads: “All persons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
In remanding the case to the District Court, the Court of Appeals did not “necessarily requir[e] that court to conduct a new trial.” 577 F. 2d, at 12. The Court of Appeals recognized that, even granting the higher standard of proof it had imposed on the District Court, the factual determinations already on the record might be adequate to permit consideration of the case on remand without the holding of another trial or evidentiary hearing. Ibid.
The Court of Appeals’ discussion of specific intent is submerged in its analysis of proper evidentiary standards. Id., at 11. The absence of independent analysis undoubtedly resulted from the Secretary’s failure to contend in either the District Court or the Court of Appeals that it was unnecessary to prove an intent to relinquish citizenship. Indeed, the jurisdictional statement filed by the Secretary in this Court presented the single question whether 8 U. S. C. § 1481 (c) is unconstitutional under the Citizenship Clause of the Fourteenth Amendment; it did not present separately the question whether proof of a specific intent to relinquish is essential to expatriation.
Our Rule 15 (1) (c) states that “[o]nly the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court.” The Secretary now argues that resolution of the intent issue is an essential, or at least an advisable, predicate to an intelligent resolution of the constitutionality of §1481 (c). There is some merit in this position: arguably the intent issue is fairly comprised in the question set forth in the jurisdictional statement. In any event, consideration of issues not present in the jurisdictional statement or petition for certiorari and not presented in the Court of Appeals is not beyond our power, and in appropriate circumstances we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320, n. 6 (1971); Erie R. Co. v. Tompkins, 304 U. S. 64, 66, 68-69 (1938) (parties agreed that Swift v. Tyson, 16 Pet. 1 (1842), was still good law). Cf. Vachon v. New Hampshire, 414 U. S. 478 (1974); Moragne v. States Marine Lines, 398 U. S. 375 (1970); Silber v. United States, 370 U. S. 717 (1962). See generally R. Stern & E. Gressman, Supreme Court Practice §§ 6.27 and 7.14 (5th ed. 1978).
As will be more apparent below, the Secretary, represented in this Court by the Solicitor General, has changed his position on the intent issue since the decision of the Court of Appeals; and his present position is at odds with a 1969 opinion of the Attorney General, 42 Op. Atty. Gen. 397, which interpreted Afroyim v. Rusk and guided the administrative actions of the State Department and the Immigration and Naturalization Service. The issue of intent is important, the parties have briefed it, and we shall address it.
As the Secretary states in his brief, Brief for Appellant 57, n. 28, “both the State Department and the Immigration and Naturalization Service have adopted administrative guidelines that attempt to ascertain the individual’s intent by taking into consideration the nature of the expatriating act and the individual’s statements and actions made in connection with that act.”
The State Department’s guideline evidences a position on intent quite similar to that adopted here:
“In the light of the Afroyim, decision and the Attorney General’s Statement of Interpretation of that decision, the Department now holds that the taking of a meaningful oath of allegiance to a foreign state is highly persuasive evidence of an intent to transfer or abandon allegiance. The taking of an oath that is not meaningful does not result in expatriation. The meaningfulness of the oath must be decided by the Department on the individual merits of each case.” Department of State, 8 Foreign Affairs Manual § 224.2, p. 2 (1970) (emphasis in original).
Cf. Immigration and Naturalization Service, Interpretations § 349.1 (d) (2), p. 6976.4 (1970) (characterizing Afroyim as overruling Perez’s holding “that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship”).
Contemporaneous academic commentary agreed that Afroyim imposed the requirement of intent to relinquish citizenship on a party seeking to establish expatriation. See Comment, An Expatriation Enigma: Afroyim v. Rusk, 48 B. U. L. Rev. 295, 298 (1968); Note, Acquisition of Foreign Citizenship: The Limits of Afroyim v. Rush, 54 Cornell L. Rev. 624, 624-625 (1969); The Supreme Court: 1966 Term, 81 Harv. L. Rev. 69, 126 (1967); Note, 29 Ohio St. L. J. 797, 801 (1968).
In his response to the petition for certiorari in Matheson, the Solicitor General argued that “Afroyim broadly held that Congress has no power to prescribe any objective conduct that will automatically result in expatriation, absent the individual’s voluntary relinquishment of citizenship. . . .” Brief in Opposition in Matheson v. United States, O. T. 1976, No. 75-1651, p. 8. In Matheson, it was maintained, “there is nothing in the record that would support a finding that decedent’s application for a certificate of Mexican nationality was prompted by a specific intent to relinquish her American citizenship.” Id., at 7. Thus, the Solicitor General concluded no expatriation could be said to have taken place.
The House Report accompanying §1481 (c), H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40 (1961), took direct aim at Nishikawa’s holding that “the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence.” Nishikawa v. Dulles, 356 U. S., at 138. The Report quoted with approval from Mr. Justice Harlan’s dissenting opinion in Nishikawa:
“ 'Although the Court recognizes the general rule that consciously performed acts are presumed voluntary [citations omitted], it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary.
“ ‘One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession.
“ T . . . find myself compelled to dissent because in my opinion the majority’s position can be squared neither with congressional intent nor with proper and well-established rules governing the burden of proof on the issue of duress.’” H. R. Rep. No. 1086, supra, at 41 (quoting Nishikawa v. Dulles, supra, at 144-145).
The Report continued:
“In order to forestall further erosion of the statute designed to preserve and uphold the dignity and the priceless, value of U. S. citizenship, with attendant obligations, [§ 1481 (c)] sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government.” H. R. Rep. No. 1086, supra, at 41. The Report concluded by describing the rebuttable presumption of voluntariness in § 1481 (c).
Tbe Secretary asserts that the § 1481 (e) presumption cannot survive constitutional scrutiny if we hold that intent to relinquish citizenship is a necessary element in proving expatriation. Brief for Appellant 26. The predicate for this assertion seems to be that § 1481 (c) presumes intent to relinquish as well as voluntariness. We do not so read it. Even if we did, and even if we agreed that presuming the necessary intent is inconsistent with Afroyim, it would be unnecessary to invalidate the section iilsofar as it presumes that the expatriating act itself was performed voluntarily.
The Court’s departure from the normal rule that duress is an affirmative defense to be proved by the party seeking to rely on it was noted when Nishikawa was handed down. See The Supreme Court: 1957 Term, 72 Harv. L. Rev. 77, 166, 171 (1958) (Nishikawa “not only extended the Government’s burden in expatriation proceedings to include the absence of duress if this issue is raised, but also determined the standard by which it must be shown. The position of the majority runs counter to the usual rule that duress is an affirmative defense”).
The rule that duress is an affirmative defense to be pleaded and proved by the party attempting to rely on it is well established. Even where a plaintiff’s complaint improperly contains allegations that seek to avoid or defeat a potential affirmative defense, “it is inappropriate for the court to shift the burden of proof on the anticipated defense to plaintiff as a ‘sanction’ for failing to follow the burden of pleading structure established by Rule 8 or by adopting the fiction that plaintiff’s anticipation of the issue evidences his intention to ‘assume’ the burden of proving it.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1276, p. 327 (1969). On affirmative defenses generally, see id., §1270, at 289 et seq.
|
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",
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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",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
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"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
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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",
"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",
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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",
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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",
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"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",
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"Unidentifiable",
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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"
] |
[
27
] |
DELLMUTH, ACTING SECRETARY OF EDUCATION OF PENNSYLVANIA v. MUTH et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 87-1855.
Argued February 28, 1989
Decided June 15, 1989
Maria Parisi Vickers, Chief Deputy Attorney General of Pennsylvania, argued the cause for petitioner. With her on the briefs were LeRoy S. Zimmerman, former Attorney General, Ernest D. Preate, Jr., Attorney General, John G. Knorr III, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General.
Martha A. Field argued the cause for respondents and filed a brief for respondent Muth. Joanne D. Sommer filed a brief for respondent Central Bucks School District.
Lacy H. Thornburg, Attorney General, and Edioin M. Speas, Jr., Special Deputy Attorney General, filed a brief for the State of North Carolina as amicus curiae urging reversal.
Minna J. Kotkin, Kathleen A. Sullivan, Herbert Semmel, and Elizabeth Lottman Schneider filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice Kennedy
delivered the opinion of the Court.
The question before us is whether the Education of the Handicapped Act abrogates the States’ Eleventh Amendment immunity from suit in the federal courts.
I
The Education of the Handicapped Act (EHA), 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq. (1982 ed. and Supp. V.), enacts a comprehensive scheme to assure that handicapped children may receive a free public education appropriate to their needs. To achieve these ends, the Act mandates certain procedural requirements for participating state and local educational agencies. In particular, the Act guarantees to parents the right to participate in the development of an “individualized education program” (IEP) for their handicapped child, and to challenge the appropriateness of their child’s IEP in an administrative hearing with subsequent judicial review. See 20 U. S. C. § 1415 (1982 ed. and Supp. V); School Committee of Burlington v. Department of Education of Massachusetts, 471 U. S. 359, 361 (1985).
Alex Muth, the son of respondent Russell Muth (hereinafter respondent), is a bright child, but one handicapped within the meaning of the EHA by a language learning disability and associated emotional problems. Alex was enrolled in public school in the Central Bucks School District of Pennsylvania from 1980 to 1983. In the summer of 1983, respondent requested a statutory administrative hearing to challenge the district’s IEP for Alex. In September, shortly before the hearing convened, respondent enrolled Alex in a private school for learning disabled children for the coming school year.
The hearing examiner found that Alex’s original IEP was inappropriate and made a number of recommendations. Both respondent and the school district then appealed.the decision to the secretary of education, as provided under Pennsylvania law, see 22 Pa. Code § 13.32(24) (1988). The secretary remanded the case to the hearing examiner with instructions to the school district to revise Alex’s IEP (1988). After the district did so, the hearing examiner issued a decision declaring the revised IEP appropriate, and the secretary-affirmed that decision on October 24, 1984, more than a year after the original due process hearing.
While the administrative proceedings were underway, respondent brought this suit in the Eastern District of Pennsylvania against the school district and the state secretary of education, whose successor is petitioner here. As amended, respondent’s complaint alleged that the district’s IEP for Alex was inappropriate and that the Commonwealth’s administrative proceedings had violated the procedural requirements of the EHA in two respects: the assignment of review to the secretary, an allegedly partial officer; and the delays occasioned by the secretary’s remand to the hearing examiner. Respondent requested declaratory and injunctive relief, reimbursement for Alex’s private-school tuition in 1983-1984, and attorney’s fees.
The District Court found various procedural infirmities in Pennsylvania’s administrative scheme and entered summary judgment on respondent’s procedural claims. The court held a hearing to resolve the remaining issues in the case and to determine the proper remedy for the procedural violations. The court concluded that, while the district’s proposed IEP for 1983-1984 had been appropriate within the meaning of the EHA, respondent was entitled to reimbursement for Alex’s tuition that year because the procedural flaws had delayed the administrative process. The District Court further determined that the school district and the Commonwealth of Pennsylvania were jointly and severally liable, agreeing with respondent that the EHA abrogated Pennsylvania’s Eleventh Amendment immunity from suit. The court also awarded attorney’s fees, assessed jointly and severally against the school district and the Commonwealth.
The United States Court of Appeals for the Third Circuit affirmed. Muth v. Central Bucks School Dist., 839 F. 2d 113 (1988). Most pertinent for this case, the Court of Appeals agreed with the District Court that the Eleventh Amendment did not bar the reimbursement award against the Commonwealth. The court concluded that “the text of EHA and its legislative history leave no doubt that Congress intended to abrogate the 11th amendment immunity of the states.” Id., at 128.
To resolve a conflict among the Circuits, we granted certio-rari sub nom. Gilhool v. Muth, 488 U. S. 815 (1988), on the question whether the EHA abrogates the States’ sovereign immunity under the Eleventh Amendment. Compare David D. v. Dartmouth School Committee, 775 F. 2d 411 (CA1 1985) (finding abrogation), with Gary A. v. New Trier High School Dist. No. 203, 796 F. 2d 940 (CA7 1986); Doe v. Maher, 793 F. 2d 1470 (CA9 1986); and Miener v. Missouri, 673 F. 2d 969 (CA8 1982) (finding no abrogation). We now reverse.
II
We have recognized that Congress, acting in the exercise of its enforcement authority under §5 of the Fourteenth Amendment, may abrogate the States’ Eleventh Amendment immunity. Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). We have stressed, however, that abrogation of sovereign immunity upsets “the fundamental constitutional balance between the Federal Government and the States,” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985), placing a considerable strain on “‘[t]he principles of federalism that inform Eleventh Amendment doctrine,’” Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 100 (1984), quoting Hutto v. Finney, 437 U. S. 678, 691 (1978). To temper Congress’ acknowledged powers of abrogation with due concern for the Eleventh Amendment’s role as an essential component of our constitutional structure, we have applied a simple but stringent test: “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” Atascadero, supra, at 242.
In concluding that the EHA contains the requisite clear statement of congressional intent, the Court of Appeals rested principally on three textual provisions. The court first cited the Act’s preamble, which states Congress’ finding that “it is in the national interest that the Federal government assist State and local efforts to provide programs to meet the education needs of handicapped children in order to assure equal protection of the law.” 20 U. S. C. § 1400(b)(9). Second, and most important for the Court of Appeals, was the Act’s judicial review provision, which permits parties aggrieved by the administrative process to “bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” 20 U. S. C. § 1415(e)(2). Finally, the Court of Appeals pointed to a 1986 amendment to the EHA, which states that the Act’s provision for a reduction of attorney’s fees shall not apply “if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.” 20 U. S. C. § 1415(e)(4)(G) (1982 ed., Supp. V). In the view of the Court of Appeals, this amendment represented an express statement of Congress’ understanding that States can be parties in civil actions brought under the EHA.
Respondent supplements these points with some non-textual arguments. Most notably, respondent argues that abrogation is “necessary ... to achieve the EHA’s goals,” Brief for Respondent Muth 37; and that the 1986 amendments to another statute, the Rehabilitation Act, 100 Stat. 1845, 42 U. S. C. §2000d-7 (1982 ed., Supp. IV), expressly abrogate state immunity from suits brought under the EHA, Brief for Respondent Muth 30. In connection with the latter argument, respondent recognizes that the Rehabilitation Act amendments expressly apply only to “violations that occur in whole or in part after October 21, 1986.” 42 U. S. C. §2000d-7(b) (1982 ed., Supp. IV). Respondent contends, however, that “[a]lthough the amendment became effective after Muth initially filed suit, . . . the overwhelming support for the amendment shows that it reflects Congress’ intent in originally enacting the EHA [in 1975].” Brief for Respondent Muth 32, n. 48.
We turn first to respondent’s nontextual arguments, because they are the easier to dismiss. It is far from certain that the EHA cannot function if the States retain immunity, or that the 1986 amendments to the Rehabilitation Act are a useful guide to congressional intent in 1975. Indeed, the language of the 1986 amendments to the Rehabilitation Act appears to cut against respondent. Without intending in any way to prejudge the Rehabilitation Act amendments, we note that a comparison of the language in the amendments with the language of the EHA serves only to underscore the difference in the two statutes, and the absence of any clear statement of abrogation in the EHA. The amendments to the Rehabilitation Act read in pertinent part:
“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of [several enumerated provisions] or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” 42 U. S. C. §2000d-7(a) (1) (1982 ed., Supp. IV).
When measured against such explicit consideration of' abrogation of the Eleventh Amendment, the EHA’s treatment of the question appears ambiguous at best.
More importantly, however, respondent’s contentions are beside the point. Our opinion in Atascadero should have left no doubt that we will conclude Congress intended to abrogate sovereign immunity only if its intention is “unmistakably clear in the language of the statute. ” Atascadero, 473 U. S., at 242. Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in this area of the law, evidence of congressional intent must be both unequivocal and textual. Respondent’s evidence is neither. In particular, we reject the approach of the Court of Appeals, according to which, “[w]hile the text of the federal legislation must bear evidence of such an intention, the legislative history may still be used as a resource in determining whether Congress’ intention to lift the bar has been made sufficiently manifest.” 839 F. 2d, at 128. Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress’ intention is “unmistakably clear in the language of the statute,” recourse to legislative history will be unnecessary; if Congress’ intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.
The gist of Justice Brennan’s dissent’s argument appears to be that application of the governing law in Atascadero is unfair in this case. The dissent complains that we “resor[t] to an interpretative standard that Congress could have anticipated only with the aid of a particularly effective crystal ball.” Post, at 241. This complaint appears to be premised on an unrealistic and cynical view of the legislative process. We find it difficult to believe that the 94th Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest. Rather, the salient point in our view is that it cannot be said with perfect confidence that Congress in fact intended in 1975 to abrogate sovereign immunity, and imperfect confidence will not suffice given the special constitutional concerns in this area. Cf. Johnson v. Robison, 415 U. S. 361, 373-374 (1974) (federal statute will not be construed to preclude judicial review of constitutional challenges absent clear and convincing evidence of congressional intent).
We now turn our attention to the proper focus of an inquiry into congressional abrogation of sovereign immunity, the language of the statute. We cannot agree that the textual provisions on which the Court of Appeals relied, or any other provisions of the EHA, demonstrate with unmistakable clarity that Congress intended to abrogate the States’ immunity from suit. The EHA makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity. Cf. supra, at 228. Nor does any provision cited by the Court of Appeals address abrogation in even oblique terms, much less with the clarity Atascadero requires. The general statement of legislative purpose in the Act’s preamble simply has nothing to do with the States’ sovereign immunity. The 1986 amendment to the EHA deals only with attorney’s fees, and does not alter or speak to what parties are subject to suit. Respondent conceded as much at oral argument, acknowledging that “the 1986 EHA Amendments . . . are not directly relevant [here] because they concerned only attorney’s fees.” Tr. of Oral Arg. 28. Finally, 20 U. S. C. § 1415(e)(2), the centerpiece of the Court of Appeals’ textual analysis, provides judicial review for aggrieved parties, but in no way intimates that the States’ sovereign immunity is abrogated. As we made plain in Atascadero: “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” 473 U. S., at 246.
At its core, respondent’s attempt to distinguish this case from Atascadero appears to reduce to the proposition that the EHA “is replete with references to the states,” whereas in “Atascadero . . . the statutory language at issue did not include mention of states.” Brief for Respondent Muth 32-33. We recognize that the EHA’s frequent reference to the States, and its delineation of the States’ important role in securing an appropriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging violations of the EHA. This statutory structure lends force to the inference that the States were intended to be subject to damages actions for violations of the EHA. But such a permissible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which, we reaffirm today, is necessary before we will determine that Congress intended to exercise its powers of abrogation.
I — I hH H
We hold that the statutory language of the EHA does not evince an unmistakably clear intention to abrogate the States’ constitutionally secured immunity from suit. The Eleventh Amendment bars respondent’s attempt to collect tuition reimbursement from the Commonwealth of Pennsylvania. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Petitioner concedes that the EHA was enacted pursuant to Congress’ authority under § 5 of the Fourteenth Amendment, and that Congress has the power to abrogate the Eleventh Amendment with respect to the Act. Tr. of Oral Arg. 14-15; see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 244-245, n. 4 (1985). We decide the case on these assumptions.
Respondent also offers us another avenue to affirm the result below, which is to overrule the longstanding holding of Hans v. Louisiana, 134 U. S. 1 (1890), that an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens. We decline this most recent invitation to overrule our opinion in Hans.
Our grant of certiorari also embraced the question whether the EHA precluded petitioner from hearing administrative appeals. Since we conclude that the Commonwealth is not subject to suit under the EHA, and since the school district did not petition for review of the Court of Appeals decision, we have no occasion to reach this question.
After oral argument, respondent filed a motion to remand this suit to the District Court for consolidation with another related action. In light of our disposition today, respondent’s motion is denied.
|
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
] |
DuVERNAY v. UNITED STATES.
No. 814.
Argued February 27, 1969.
Decided March 24, 1969.
Benjamin E. Smith argued the cause for petitioner. With him on the brief were Arthur Kinoy and Morton Stavis.
John S. Martin, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Philip R. Monahan.
Ann Fagan Ginger filed a brief for the National Lawyers Guild as amicus curiae urging reversal.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Mr. Justice Fortas took no part in the consideration or decision of this case.
|
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"
] |
[
106
] |
FEDERAL TRADE COMMISSION v. JANTZEN, INC.
No. 310.
Argued February 14, 1967.
Decided March 13, 1967.
Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Nathan Lewin, Howard E. Shapiro, James Mcl. Henderson and Thomas F. Howder.
Edioin S. Rockefeller argued the cause for respondent. With him on the brief were Donald H. Green and Joel E. Hoffman.
Mr. Justice Clark
delivered the opinion of the Court.
This case involves the effect of the Act of July 23, 1959, 73 Stat. 243 (Finality Act), upon orders issued by the Federal Trade Commission under § 11 of the Clayton Act, 38 Stat. 734, prior to the date of the former Act. The respondent claims that the Finality Act repealed the enforcement provisions of § 11 of the Clayton Act, 15 U: S. C. § 21 (1958 ed.), and that orders of the Commission entered prior to the enactment of the Finality Act are not now enforceable. The Court of Appeals agreed, held that it had no jurisdiction to enforce such orders and directed that the proceeding be dismissed. 356 F. 2d 253. In view of the pendency of almost 400 such orders and the conflict among the circuits on the point, we granted certiorari. 385 U. S. 810.
I.
The facts are not disputed, save on points not relevant here, and will not be stated in detail. Jantzen manufactures men’s, women’s, and children’s apparel. On September 4, 1958, it was charged by the Commission with having violated § 2 (d) of the Clayton Act by allowing discriminatory advertising and promotional allowances to certain of its customers. Jantzen did not answer the complaint. However, it Consented to the entry of a cease-and-desist order against it prohibiting further discrimination in advertising and promotional activities. This agreement and a form of order were approved by a hearing examiner and on January 16, 1959., the order was adopted by the Commission. On July 22, 1964, some five years after the adoption of the Finality Act, the Commission ordered an investigation into charges that Jantzen had violated the 1959 consent order. Jantzen stipulated before a hearing examiner that it had violated the consent order by granting discriminatory allowances to customers in Chattanooga, Temí., and Brooklyn, N. Y. The Commission thereafter concluded that Jantzen had violated the order. -It then applied to the Court of Appeals for an order affirming and enforcing the original order. The application was based on the provisions of the third paragraph of § 11 of the original Clayton Act, which authorized the Commission, in the event spch an order was not obeyed, to apply to a court of appeals for its “enforcement.” Jantzen claimed that the amendment of § 11 by the Finality Act resulted in a repeal of the Commission’s authority to seek, and the courts’ to grant, affirmance and enforcement of such orders. The Court of Appeals agreed and dismissed the application for lack of jurisdiction. We reverse and remand the proceedings for further consideration in light of this opinion.
II.
We start with the proposition that the Congress intended by its enactment of the Finality Act of 1959 to strengthen the hand of the Commission in the enforcement of the Clayton Act. As the report of the Committee on the Judiciary of the Senate stated: “The effectiveness of the Clayton Act . . . has' long been handicapped by the absence of adequate enforcement provisions. ... S. 726 would put teeth' into Clayton Act orders and would fill the enforcement void which has existed for many years.” S. Rep. No. 83, 86th Cong., 1st Sess., 2 (1959). The procedures existing prior to the adoption of the Finality Act required the Commission to investigate, and after complaint, prove a violation of the Clayton Act before it could issue a cease-and-desist order. After its issuance a violation of the order had to be investigated and proved before the Commission might obtain an order compelling its obédience. Only then could a court of appeals order enforcement. And under Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470 (1952), a contempt proceeding would not lie except on allegations of violation of the Act a third time and proof of a failure or refusal to obey the Commission’s order, previously affirmed.
The Finality Act eliminated these “laborious, time consuming, and very expensive” procedures. S. Rep. No. 83, supra, at 2. As Congressman Huddleston, one of the principal supporters of the bill which later became the Act, stated to the House:
“The bill ... is in effect a perfecting amendment to the Clayton Act. It has no other purpose than to effect the will of Congress with respect to the role of the Federal Trade Commission in Clayton Act enforcement in the same manner and to the same degree that the will of Congress was effectuated by the Wheeler-Lea amendments to the Federal Trade Commission Act.” 105 Cong. Rec. 12732.
The remarks of Congressman Celler, Chairman of the House Judiciary Committee, of Congressman Roosevelt and of other supporters of the bill were substantially the same. 105 Cong. Rec. 12730-12733.
The Wheeler-Lea Amendment clarified the procedures of the Federal Trade Commission Act but did not amend those of the Clayton Act. Under the Wheeler-Lea Amendment orders issued by the Commission were to become final 60 days after their issuance or upon affirmance by a court of appeals in which a petition for review had been filed. However, § 5 (a) of the Amendment expressly provided that orders outstanding at the time of the adoption of the Amendment would become final 60 days after the latter date or upon affirmance in review proceedings instituted during that 60-day .period. 52 Stat. 117. The Finality Act instead of using the language of § 5 (a) of the Wheeler-Lea Amendment contains' a special provision, § 2, which reads as follows:
“The amendments made by section 1 shall have no application to any proceeding initiated before the date of enactment of this Act under the third or fourth paragraph of section 11 of1 the [Clayton] Act .... Each such proceeding shall be governed by the provisions of such section as they existed on the day preceding the date of enactment of this Act.”
The Court of Appeals thought the use of this language was significant in that, unlike § 5 (a), it “does not deal with cease and desist orders issued before its effective date, nor provide for their becoming final within the meaning of ■ the amended Act. It deals solely with proceedings begun in a Court of Appeals .... Thus the third paragraph [of § 11] is expressly continued in effect for this very limited purpose, namely, the completion of proceedings for enforcement initiated by the Commission in a Court of Appeals... . . [T]his. is a strong indication that the Congress knew, and intended, that it was repealed for other purposes.” The Court of Appeals buttressed this reading of the Finality Act by noting that the Commission originally took the position “that existing Clayton Act orders would become final within 60 days, under the new law, just as under the Wheeler-Lea Act 356 F. 2d, at 257. See Sperry Rand Corp. v. F. T. C., 110 U. S. App. D. C. 1, 288 F. 2d 403 (1961); F. T. C. v. Nash-Finch Co., 110 U. S. App. D. C. 5, 288 F. 2d 407 (1961). From this, the court indicated that this change of position by the Commission pointed- up its conclusion that “the repeal in this case was express.” 356 F. 2d, at 257.
III.
We cannot agree. 'One error of the Court of Appeals seems to be the limited scope it gives the phrase “proceeding initiated before the date of enactment of this Act.” (Emphasis supplied.) The Court of Appeals thought this included only the application for enforcement under paragraph three or the petition for review under paragraph four of the original § 11 of the Act. We think not. We believe the word “proceeding” was used in the sense that it was employed throughout § 11 prior to the Amendment, namely the action brought by the Commission against the alleged violator of the Clayton Act. It follows that the “proceeding initiated” meant the filing of the “proceeding” before the Commission and was not limited to the application for enforcement or petition for review. This is made clear to us by the last sentence of § 2: “Each such proceeding shall be governed by the provisions of such section [§ 11 of the Clayton Act] as they existed on the day preceding the date of enactment of this Act.” We emphasize that here the Congress said “section^’ not paragraphs 3-7, inclusive, of the section. It follows that the provisions of the entire section were preserved intact and governed all orders predating the Finality Act. The apparent reason for this Variance from the procedure of the Wheeler-Lea Act was because of the heavy penalties which the Congress attached to the violation of final orders of the Commission under the Finality Act. It, therefore, wished to make clear that not only applications for enforcement of pre-Finality Act orders and petitions for review of such orders but any action of the Commission with reference to pre-Finality Act orders would be governed by the provisions of § 11 of the Clayton Act “as they existed on the day preceding the date of enactment of this [Finality] Act.” We believe that this interpretation is implicit in our opinion on the second review by this Court of Federal Trade Comm’n v. Henry Broch & Co., 368 U. S. 360 (1962), where Mr. Justice Brennan held that the 1959 amendments to § 11 of the Clayton Act “do not apply to enforcement of the instant order.” At 365. In note 5, on p. 365, the opinion pointed out that the order “was entered by the Commission on December 10, 1957. The procedures enacted by the 1959 amendments therefore do not apply to it. See Sperry Rand Corp. v. Federal Trade Comm’n, 110 U. S. App. D. C. 1, 288 F. 2d 403.” It is significant that Sperry Rand specifically held that “[enforcement due to any violation of the [pre-Finality Act] consent order which might occur is left to the provisions of the statute as they existed at the time the order was entered.” At 4, 288 F. 2d, at 406. Such a holding here is supported by the fact that the Finality Act nowhere denies the Commission the power to enforce preexisting orders. At most its provisions are silent with regard to such authority. Furthermore, the caption of the Finality Act itself as well as the legislative history gives added weight to our interpretation. The caption recites the purpose of the Act to be “to provide for the more expeditious enforcement of cease and desist orders . . . .” 73 Stat. 243. Such á purpose would certainly not include making approximately 400 orders dead letters. As we have noted previously the legislative history shows beyond contradiction that not only its sponsors but the responsible committees reporting the bill for passage believed “that this legislation will strengthen the enforcement provisions of section 11 of the Clayton Act ....”• S. Rep. No. 83, supra, at 3. Giving some 400 proven violators absolution from prior orders of the Commission would hardly comport with such a congressional intent. The Court of Appeals bottomed its opinion on the language used in the opening sentence of subsection (c) of the Finality Act reading that the “third, fourth, fifth, sixth, and seventh paragraphs of” § 11 of the Clayton Act “are amended to read as follows.” But we must read the Act as a whole as we have § 2 heretofore. And in so doing we cannot, as Mr. Justice Douglas said, ignore the “common sense, precedent, and legislative history” of the setting that gave it birth. United States v. Standard Oil Co., 384 U. S. 224, 225 (1966). And as Mr. Justice Holmes said many years ago:
“The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, .however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”' Johnson v. United States, 163 F. 30, 32 (1908).
But whether or not we are correct in our application and interpretation we have concluded that a sensible construction of the Finality Act compels the opposite result to that reached by the Court of Appeals. That- court would grant review and enforcement of proceedings under the old procedures where the petition for review or the application for enforcement was filed prior to the date of the enactment of the Finality Act but orders from which no petition or application was ever filed would not be capable of enforcement. This would subject violators who sought review to the sanctions of the section but those who had not sought review would be free to violate orders against them with impunity. Consequently, almost 400 separate violators would be forgiven. It is no answer to say that the Commission could file new complaints which would eome under the new procedures. The fact is that some 400 particularized orders written to correct specific mischief violative of the Clayton Act would be unenforceable. There is quite a difference between proving a violation of the Clayton Act and a failure to obey a specific order of the Commission. Long, tedious, and costly investigation, proof of injury to competition as well as other affirmative requirements necessary to the issuance of an order and many defenses such as cost justification, meeting competition,, exclusive dealing, etc., are all avoided. Particularly in merger cases would the enforcement of prior orders be simplified and expedited.
In view of all of these considerations we cannot say that the author of the Finality Act and its sponsors — all stalwart champions of effective antitrust enforcement— would have intended to strip the Commission of all of its enforcement vyeapons with reference to some 400 concerns already adjudged to be Clayton Act violators. Nor could we ascribe to a Congress that has so clearly expressed its will any such result. We.can only say that as between choices Congress rejected only one, namely, that of the Wheeler-Lea Act’s 60-day review provision. Certainly it intended that the old procedures would apply to proceedings on. petition for review or application for enforcement. There is no evidence that it intended to put the pre-1959 orders into the discard. We remain more faithful to the Act, we think, when we find that they too are enforceable under the old procedures.
Reversed and remanded.
See Federal Trade Comm’n v. Pacific-Gamble-Robinson Co., No. 18260 (C. A. 9th Cir. 1962); Federal Trade Comm’n v. Benrus Watch Co., No. 27752 (C. A. 2d Cir. 1962), and the instant case.
The penalties were raised to $5,000 for each day in which a violation continued.
|
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
] |
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 95-124.
Argued February 21, 1996
Decided June 28, 1996
Breyek, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, in which Stevens, O’Con-nor, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Parts I, II, and V, in which Stevens, O’Connor, and Souter, JJ., joined, and an opinion with respect to Parts IV and VI, in which Stevens and Souter, JJ., joined. Stevens, J., -post, p. 768, and Souter, J., post, p. 774, filed concurring opinions. O’Connor, J., filed an opinion concurring in part and dissenting in part, post, p. 779. Kennedy, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Ginsburg, J., joined, post, p. 780. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 812.
I. Michael Greenberger argued the cause for petitioners. With him on the brief for the Alliance for Community Media et al., petitioners in No. 95-227, were James N. Horwood, Andrew Jay Schwartzman, Gigi Sohn, Elliot Mincberg, Lawrence Ottinger, Thomas J. Mikula, and Mark S. Raff-man. Robert T Perry and Brian D. Graifman filed briefs for the New York Citizens Committee for Responsible Media et al., petitioners in No. 95-227. Charles S. Sims, Steven R. Shapiro, and Marjorie Heins filed briefs for the American Civil Liberties Union et al., petitioners in No. 95-124.
Deputy Solicitor General Wallace argued the cause for respondents in both cases. With him on the briefs for the federal respondents were Solicitor General Days, Assistant Attorney General Hunger, James A. Feldman, Barbara L. Herwig, Jacob M. Lewis, William E. Kennard, and Christopher J. Wright. Daniel L. Brenner, Neal M. Goldberg, and Diane B. Burstein filed a brief for the National Cable Television Association, Inc., respondent in both cases.
Together with No. 95-227, Alliance for Community Media et al. v. Federal Communications Commission et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bam-berger and Margaret Jacobs; and for the Association of American Publishers, Inc., by R. Bruce Rich and Jonathan Bloom,
Briefs of amici curiae urging affirmance were filed for the State of New York by Dennis C. Vacco, Attorney General, Victoria A. Graffeo, Solicitor General, Barbara Billet, Deputy Solicitor General, and Stephen D. Houch and Theodore Zang, Jr., Assistant Attorneys General; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Si\, Colby M. May, Keith A. Fournier, and Thomas R Motiaghan; for the Family Research Council et al. by Cathleen A. Cleaver and Bruce A. Taylor; for Morality in Media, Inc., by Paul J. Mc-Geady and Robert W. Peters; and for Time Warner Cable by Stuart W. Gold and Rebeca L. Cutler.
Len L. Munsil filed a brief for the National Family Legal Foundation as amicus curiae.
Justice Breyer
announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, an opinion with respect to Parts I, II, and V, in which Justice Stevens, Justice O’Connor, and Justice Sou-TER join, and an opinion with respect to Parts IV and VI, in which Justice Stevens and Justice Souter join.
These cases present First Amendment challenges to three statutory provisions that seek to regulate the broadcasting of “patently offensive” sex-related material on cable television. Cable Television Consumer Protection and Competition Act of 1992 (1992 Act or Act), 106 Stat. 1486, §§ 10(a), 10(b), and 10(c), 47 U. S. C. §§ 532(h), 532(j), and note following § 531. The provisions apply to programs broadcast over cable on what are known as “leased access channels” and “public, educational, or governmental channels.” Two of the provisions essentially permit a cable system operator to prohibit the broadcasting of “programming” that the “operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner.” 1992 Act, § 10(a); see § 10(c). See also In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992: Indecent Programming and Other Types of Materials on Cable Access Channels, First Report and Order, 8 FCC Red 998 (1993) (First Report and Order); In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of1992, Indecent Programming and Other Types of Materials on Cable Access Channels, Second Report and Order, 8 FCC Red 2638 (1993) (Second Report and Order). The remaining provision requires cable system operators to segregate certain “patently offensive” programming, to place it on a single channel, and to block that channel from viewer access unless the viewer requests access in advance and in writing. 1992 Act, § 10(b); 47 CFR § 76.701(g) (1995).
We conclude that the first provision — which permits the operator to decide whether or not to broadcast such programs on leased access channels — is consistent with the First Amendment. The second provision, which requires leased channel operators to segregate and to block that programming, and the third provision, applicable to public, educational, and governmental channels, violate the First Amendment, for they are not appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to “patently offensive” material.
I
Cable operators typically own a physical cable network used to convey programming over several dozen cable channels into subscribers’ houses. Program sources vary from channel to channel. Most channels carry programming produced by independent firms, including “many national and regional cable programming networks that have emerged in recent years,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 629 (1994), as well as some programming that the system operator itself (or an operator affiliate) may provide. Other channels may simply retransmit through cable the signals of over-the-air broadcast stations. Ibid. Certain special channels here at issue, called “leased channels” and “public, educational, or governmental channels,” carry programs provided by those to whom the law gives special cable system access rights.
A “leased channel” is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated third parties. About 10 to 15 percent of a cable system’s channels would typically fall into this category. See 47 U. S. C. § 532(b). “[P]ublic, educational, or governmental channels” (which we shall call “public access” channels) are channels that, over the years, local governments have required cable system operators to set aside for public, educational, or governmental purposes as part of the consideration an operator gives in return for permission to install cables under city streets and to use public rights-of-way. See § 531; see also H. R. Rep. No. 98-934, p. 30 (1984) (authorizing local authorities to require creation of public access channels). Between 1984 and 1992, federal law (as had much pre-1984 state law, in respect to public access channels) prohibited cable system operators from exercising any editorial control over the content of any program broadcast over either leased or public access channels. See 47 U. S. C. §§ 531(e) (public access), 532(c)(2) (leased access).
In 1992, in an effort to control sexually explicit programming conveyed over access channels, Congress enacted the three provisions before us. The first two provisions relate to leased channels. The first says:
“This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.” 1992 Act, § 10(a)(2), 106 Stat. 1486.
The second provision, applicable only to leased channels, requires cable operators to segregate and to block similar programming if they decide to permit, rather than to prohibit, its broadcast. The provision tells the Federal Communications Commission (FCC or Commission) to promulgate regulations that will (a) require “programmers to inform cable operators if the program[ming] would be indecent as defined by Commission regulations”; (b) require “cable operators to place” such material “on a single channel”; and (e) require “cable operators to block such single channel unless the subscriber requests access to such channel in writing.” 1992 Act, § 10(b)(1). The Commission issued regulations defining the material at issue in terms virtually identical to those we have already set forth, namely, as descriptions or depictions of “sexual or excretory activities or organs in a patently offensive manner” as measured by the cable viewing community. First Report and Order ¶ ¶ 33-38, at 1003-1004. The regulations require the cable operators to place this material on a single channel and to block it (say, by scrambling). They also require the system operator to provide access to the blocked channel “within 30 days” of a subscriber’s written request for access and to reblock it within 30 days of a subscriber’s request to do so. 47 CFR § 76.701(c) (1995).
The third provision is similar to the first provision, but applies only to public access channels. The relevant statutory section instructs the FCC to promulgate regulations that will
“enable a cable operator of a cable system to prohibit the use, on such system, of any channel capacity of any public, educational, or governmental access facility for any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct.” 1992 Act, § 10(c), 106 Stat. 1486.
The FCC, carrying out this statutory instruction, promulgated regulations defining “sexually explicit” in language almost identical to that in the statute’s leased channel provision, namely, as descriptions or depictions of “sexual or excretory activities or organs in a patently offensive manner” as measured by the cable viewing community. See 47 CFR §76.702 (1995) (incorporating definition from § 76.701(g)).
The upshot is, as we said at the beginning, that the federal law before us (the statute as implemented through regulations) now permits cable operators either to allow or to forbid the transmission of “patently offensive” sex-related materials over both leased and public access channels, and requires those operators, at a minimum, to segregate and to block transmission of that same material on leased channels.
Petitioners, claiming that the three statutory provisions, as implemented by the Commission regulations, violate the First Amendment, sought judicial review of the Commission’s First Report and Order and its Second Report and Order in the United States Court of Appeals for the District of Columbia Circuit. A panel of that Circuit agreed with petitioners that the provisions violated the First Amendment. Alliance for Community Media v. FCC, 10 F. 3d 812 (1993). The entire Court of Appeals, however, heard the case en banc and reached the opposite conclusion. It held that all three statutory provisions (as implemented) were consistent with the First Amendment. Alliance for Community Media v. FCC, 56 F. 3d 105 (1995). Four of the eleven en banc appeals court judges dissented. Two of the dissenting judges concluded that all three provisions violated the First Amendment. Two others thought that either one, or two, but not all three of the provisions, violated the First Amendment. We granted certiorari to review the en banc court’s First Amendment determinations.
II
We turn initially to the provision that 'permits cable system operators to prohibit “patently offensive” (or “indecent”) programming transmitted over leased access channels. 1992 Act, § 10(a). The Court of Appeals held that this provision did not violate the First Amendment because the First Amendment prohibits only “Congress” (and, through the Fourteenth Amendment, a “State”), not private individuals, from “abridging the freedom of speech.” Although the court said that it found no “state action,” 56 F. 3d, at 113, it could not have meant that phrase literally, for, of course, petitioners attack (as “abridging] . . . speech”) a congressional statute — which, by definition, is an Act of “Congress.” More likely, the court viewed this statute’s “permissive” provisions as not themselves restricting speech, but, rather, as simply reaffirming the authority to pick and choose programming that a private entity, say, a private broadcaster, would have had in the absence of intervention by any federal, or local, governmental entity.
We recognize that the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech — and this is so ordinarily even where those decisions take place within the framework of a regulatory regime such as broadcasting. Were that not so, courts might have to face the difficult, and potentially restrictive, practical task of deciding which, among any number of private parties involved in providing a program (for example, networks, station owners, program editors, and program producers), is the “speaker” whose rights may not be abridged, and who is the speech-restricting “censor.” Furthermore, as this Court has held, the editorial function itself is an aspect of “speech,” see Turner, 512 U. S., at 636, and a court’s decision that a private party, say, the station owner, is a “censor,” could itself interfere with that private “censor’s” freedom to speak as an editor. Thus, not surprisingly, this Court’s First Amendment broadcasting cases have dealt with governmental efforts to restrict, not governmental efforts to provide or to maintain, a broadcaster’s freedom to pick and to choose programming. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973) (striking restrictions on broadcaster’s ability to refuse to carry political advertising); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (upholding restrictions on editorial authority); FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984) (striking restrictions); cf. Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530 (1980) (striking ban on political speech by public utility using its billing envelopes as a broadcast medium); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980) (striking restriction on public utility advertising).
Nonetheless, petitioners, while conceding that this is ordinarily so, point to circumstances that, in their view, make the analogy with private broadcasters inapposite and make these cases special ones, warranting a different constitutional result. As a practical matter, they say, cable system operators have considerably more power to “censor” program viewing than do broadcasters, for individual communities typically have only one cable system, linking broadcasters and other program providers with each community’s many subscribers. See Turner, supra, at 633 (only one cable system in most communities; nationally more than 60% of homes subscribe to cable, which then becomes the primary or sole source of video programming in the overwhelming majority of these homes). Moreover, concern about system operators’ exercise of this considerable power originally led government— local and federal — to insist that operators provide leased and public access channels free of operator editorial control. H. R. Rep. No. 98-934, at 30-31. To permit system operators to supervise programming on leased access channels will create the very private-censorship risk that this anticensorship effort sought to avoid. At the same time, petitioners add, cable systems have two relevant special characteristics. They are unusually involved with government, for they depend upon government permission and government facilities (streets, rights-of-way) to string the cable necessary for their services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies.
Under these circumstances, petitioners conclude, Congress’ “permissive” law, in actuality, will “abridge” their free speech. And this Court should treat that law as a con-gressionally imposed, content-based, restriction unredeemed as a properly tailored effort to serve a “compelling interest.” See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They further analogize the provisions to constitutionally forbidden content-based restrictions upon speech taking place in “public forums” such as public streets, parks, or buildings dedicated to open speech and communication. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985); Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983); see also H. R. Rep. No. 98-934, supra, at 30 (identifying public access channels as the electronic equivalent of a “speaker’s soap box”). And, finally, petitioners say that the legal standard the law contains (the “patently offensive” standard) is unconstitutionally vague. See, e. g., Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 (1968) (rejecting censorship ordinance as vague, even though it was intended to protect children).
Like petitioners, Justices Kennedy and Thomas would have us decide these cases simply by transferring and applying literally categorical standards this Court has developed in other contexts. For Justice Kennedy, leased access channels are like a common carrier, cablecast is a protected medium, strict scrutiny applies, § 10(a) fails this test, and, therefore, § 10(a) is invalid. Post, at 796-801,806-807. For Justice Thomas, the case is simple because the cable operator who owns the system over which access channels are broadcast, like a bookstore owner with respect to what it displays on the shelves, has a predominant First Amendment interest. Post, at 816-817, 822-824. Both categorical approaches suffer from the same flaws: They import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect.
The history of this Court’s First Amendment jurisprudence, however, is one of continual development, as the Constitution’s general command that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” has been applied to new circumstances requiring different adaptations of prior principles and precedents. The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have not elsewhere required. See, e. g., Schenck v. United States, 249 U. S. 47, 51-52 (1919); Abrams v. United States, 250 U. S. 616, 627-628 (1919) (Holmes, J., dissenting); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943); Texas v. Johnson, 491 U. S. 397, 418-420 (1989). At the same time, our cases have not left Congress or the States powerless to address the most serious problems. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
Over the years, this Court has restated and refined these basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special circumstances of each field of application. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (allowing criticism of public officials to be regulated by civil libel only if the plaintiff shows actual malice); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (allowing greater regulation of speech harming individuals who are not public officials, but still requiring a negligence standard); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (employing highly flexible standard in response to the scarcity problem unique to over-the-air broadcast); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 231-232 (1987) (requiring “compelling state interest” and a “narrowly drawn” means in context of differential taxation of media); Sable, supra, at 126, 131 (applying “compelling interest,” “least restrictive means,” and “narrowly tailored” requirements to indecent telephone communications); Turner, 512 U. S., at 641 (using “heightened scrutiny” to address content-neutral regulations of cable system broadcasts); Central Hudson Gas & Elec. Corp., 447 U. S., at 566 (restriction on commercial speech cannot be “more extensive than is necessary” to serve a “substantial” government interest).
This tradition teaches that the First Amendment embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the Constitution’s constraints, but without imposing judicial formulas so rigid that they become a strait jacket that disables government from responding to serious problems. This Court, in different contexts, has consistently held that government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech. Justices Kennedy and Thomas would have us further declare which, among the many applications of the general approach that this Court has developed over the years, we are applying here. But no definitive choice among competing analogies (broadcast, common carrier, bookstore) allows us to declare a rigid single standard, good for now and for all future media and purposes. That is not to say that we reject all the more specific formulations of the standard — they appropriately cover the vast majority of cases involving government regulation of speech. Rather, aware as we are of the changes taking place in the law, the technology, and the industrial structure related to telecommunications, see, e. g., Telecommunications Act of 1996, 110 Stat. 56; S. Rep. No. 104-23 (1995); H. R. Rep. No. 104-204 (1995), we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now. See Columbia Broadcasting, 412 U. S., at 102 (“The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence”); Pacifica, supra, at 748 (“We have long recognized that each medium of expression presents special First Amendment problems”). We therefore think it premature to answer the broad questions that Justices Kennedy and Thomas raise in their efforts to find a definitive analogy, deciding, for example, the extent to which private property can be designated a public forum, compare post, at 791-793, 794 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part), with post, at 826-829 (Thomas, J., concurring in judgment in part and dissenting in part); whether public access channels are a public forum, post, at 791-792 (opinion of Kennedy, J.); whether the Government’s viewpoint neutral decision to limit a public forum is subject to the same scrutiny as a selective exclusion from a pre-existing public forum, post, at 799-803 (opinion of Kennedy, J.); whether exclusion from common carriage must for all purposes be treated like exclusion from a public forum, post, at 797-798 (opinion of Kennedy, J.); and whether the interests of the owners of communications media always subordinate the interests of all other users of a medium, post, at 816-817 (opinion of Thomas, J.).
Rather than decide these issues, we can decide these cases more narrowly, by closely scrutinizing § 10(a) to assure that it properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech. The importance of the interest at stake here — protecting children from exposure to patently offensive depictions of sex; the accommodation of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in Pacifica; and the flexibility inherent in an approach that permits private cable operators to make editorial decisions, lead us to conclude that § 10(a) is a sufficiently tailored response to an extraordinarily important problem.
First, the provision before us comes accompanied with an extremely important justification, one that this Court has often found compelling — the need to protect children from exposure to patently offensive sex-related material. Sable Communications, 492 U. S., at 126; Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New York v. Ferber, 458 U. S. 747, 756-757 (1982).
Second, the provision arises in a very particular context— congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator’s control. The First Amendment interests involved are therefore complex, and require a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), H. R. Rep. No. 98-934, at 31-36, and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the cable operator would have assigned the channels devoted to access). See Turner, 512 U. S., at 635-637.
Third, the problem Congress addressed here is remarkably similar to the problem addressed by the FCC in Pacifica, and the balance Congress struck is commensurate with the balance we approved there. In Pacifica this Court considered a governmental ban of a radio broadcast of “indecent” materials, defined in part, like the provisions before us, to include
“ ‘language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’ ” 438 U. S., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)).
The Court found this ban constitutionally permissible primarily because “broadcasting is uniquely accessible to children” and children were likely listeners to the program there at issue — an afternoon radio broadcast. 438 U. S., at 749-750. In addition, the Court wrote, “the broadcast media have established a uniquely pervasive presence in the lives of all Americans,” id., at 748, “[p]atently offensive, indecent material... confronts the citizen, not only in public, but also in the privacy of the home,” generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears, ibid.; and “[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs” to hear similar performances, id., at 750, n. 28.
All these factors are present here. Cable television broadcasting, including access channel broadcasting, is as “accessible to children” as over-the-air broadcasting, if not more so. See Heeter, Greenberg, Baldwin, Paugh, Srig-ley, & Atkin, Parental Influences on Viewing Style, in Cable-viewing 140 (C. Heeter & B. Greenberg eds. 1988) (children spend more time watching television and view more channels than do their parents, whether their household subscribes to cable or receives television over the air). Cable television systems, including access channels, “have established a uniquely pervasive presence in the lives of all Americans.” Pacifica, supra, at 748. See Jost, The Future of Television, 4 The CQ Researcher 1131, 1146 (Dec. 23, 1994) (63% of American homes subscribe to cable); Greenberg, Heeter, D’Alessio, & Sipes, Cable and Noncable Viewing Style Comparisons, in Cableviewing, supra, at 207 (cable households spend more of their day, on average, watching television, and will watch more channels, than households without cable service). “Patently offensive” material from these stations can “confron[t] the citizen” in the “privacy of the home,” Pa-cifica, supra, at 748, with little or no prior warning. Cable-viewing, supra, at 217-218 (while cable subscribers tend to use guides more than do broadcast viewers, there was no difference among these groups in the amount of viewing that was planned, and, in fact, cable subscribers tended to sample more channels before settling on a program, thereby making them more, not less, susceptible to random exposure to unwanted materials). There is nothing to stop “adults who feel the need” from finding similar programming elsewhere, say, on tape or in theaters. In fact, the power of cable systems to control home program viewing is not absolute. Over-the-air broadcasting and direct broadcast satellites already provide alternative ways for programmers to reach the home and are likely to do so to a greater extent in the near future. See generally Telecommunications Act of 1996, §201, 110 Stat. 107 (advanced television services), §205 (direct broadcast satellite), § 302 (video programming by telephone companies), and §304 (availability of navigation devices to enhance multichannel programming); L. Johnson, Toward Competition in Cable Television (1994).
Fourth, the permissive nature of § 10(a) means that it likely restricts speech less than, not more than, the ban at issue in Pacifica. The provision removes a restriction as to some speakers — namely, cable operators. See supra, at 743. Moreover, although the provision does create a risk that a program will not appear, that risk is not the same as the certainty that accompanies a governmental ban. In fact, a glance at the programming that cable operators allow on their own (nonaccess) channels suggests that this distinction is not theoretical, but real. See App. 393 (regular channel broadcast of Playboy and “Real Sex” programming). Finally, the provision’s permissive nature brings with it a flexibility that allows cable operators, for example, not to ban broadcasts, but, say, to rearrange broadcast times, better to fit the desires of adult audiences while lessening the risks of harm to children. See First Report and Order ¶ 31, at 1003 (interpreting the Act’s provisions to allow cable operators broad discretion over what to do with offensive materials). In all these respects, the permissive nature of the approach taken by Congress renders this measure appropriate as a means of achieving the underlying purpose of protecting children.
Of course, cable system operators may not always rearrange or reschedule patently offensive programming. Sometimes, as petitioners fear, they may ban the programming instead. But the same may be said of Pacifica’s ban. In practice, the FCC’s daytime broadcast ban could have become a total ban, depending upon how private operators (programmers, station owners, networks) responded to it. They would have had to decide whether to reschedule the daytime show for nighttime broadcast in light of comparative audience demand and a host of other practical factors that similarly would determine the practical outcomes of the provisions before us. The upshot, in both cases, must be uncertainty as to practical consequences — of the governmental ban in the one case and of the permission in the other. That common uncertainty makes it difficult to say the provision here is, in any respect, more restrictive than the order in Pacifica. At the same time, in the respects we discussed, the provision is significantly less restrictive.
The existence of this complex balance of interests persuades us that the permissive nature of the provision, coupled with its viewpoint-neutral application, is a constitutionally permissible way to protect children from the type of sexual material that concerned Congress, while accommodating both the First Amendment interests served by the access requirements and those served in restoring to cable operators a degree of the editorial control that Congress removed in 1984.
Our basic disagreement with Justice Kennedy is narrow. Like him, we believe that we must scrutinize § 10(a) with the greatest care. Like Justices Kennedy and Thomas, we believe that the interest of protecting children that § 10(a) purports to serve is compelling. But we part company with Justice Kennedy on two issues. First, Justice Kennedy’s focus on categorical analysis forces him to disregard the cable system operators’ interests. Post, at 805-806. We, on the other hand, recognize that in the context of cable broadcast that involves an access requirement (here, its partial removal), and unlike in most cases where we have explicitly required “narrow tailoring,” the expressive interests of cable operators do play a legitimate role. Cf. Turner, 512 U. S., at 636-637. While we cannot agree with Justice Thomas that everything turns on the rights of the cable owner, see post, at 823-824, we also cannot agree with Justice Kennedy that we must ignore the expressive interests of cable operators altogether. Second, Justice Kennedy’s application of a very strict “narrow tailoring” test depends upon an analogy with a category (“the public forum cases”), which has been distilled over time from the similarities of many cases. Rather than seeking an analogy to a category of cases, however, we have looked to the cases themselves. And, as we have said, we found that Pacifica provides the closest analogy and lends considerable support to our conclusion.
Petitioners and Justice Kennedy, see post, at 797-798, 803-804, argue that the opposite result is required by two other cases: Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989), a case in which this Court found unconstitutional a statute that banned “indecent” telephone messages, and Turner, in which this Court stated that cable broadcast receives full First Amendment protection. See 512 U. S., at 637-641. The ban at issue in Sable, however, was not only a total governmentally imposed ban on a category of communications, but also involved a communications medium, telephone service, that was significantly less likely to expose children to the banned material, was less intrusive, and allowed for significantly more control over what comes into the home than either broadcasting or the cable transmission system before us. See 492 U. S., at 128. The Court’s distinction in Turner, furthermore, between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable. See 512 U. S., at 637-641. While that distinction was relevant in Turner to the justification for structural regulations at issue there (the “must carry” rules), it has little to do with a case that involves the effects of television viewing on children. Those effects are the result of how parents and children view television programming, and how pervasive and intrusive that programming is. In that respect, cable and broadcast television differ little, if at all. See supra, at 744-745. Justice Kennedy would have us decide that all common carriage exclusions are subject to the highest scrutiny, see post, at 796-799, and then decide these cases on the basis of categories that provide imprecise analogies rather than on the basis of a more contextual assessment, consistent with our First Amendment tradition, of assessing whether Congress carefully and appropriately addressed a serious problem.
Petitioners also rely on this Court’s “public forum” cases. They point to Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S., at 45, a case in which this Court said that “public forums” are “places” that the government “has opened for use by the public as a place for expressive activity,” or which “by long tradition . . . have been devoted to assembly and debate.” Ibid. See also Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S., at 801 (assuming public forums may include “private property dedicated to public use”). They add that the Government cannot “enforce a content-based exclusion” from a public forum unless “necessary to serve a compelling state interest” and “narrowly drawn.” Perry, supra, at 45. They further argue that the statute’s permissive provisions unjustifiably exclude material, on the basis of content, from the “public forum” that the Government has created in the form of access channels. Justice Kennedy adds by analogy that the decision to exclude certain content from common carriage is similarly subject to strict scrutiny, and here does not satisfy that standard of review. See post, at 796-799, 805-807.
For three reasons, however, it is unnecessary, indeed, unwise, for us definitively to decide whether or how to apply the public forum doctrine to leased access channels. First, while it may be that content-based exclusions from the right to use common carriers could violate the First Amendment, see post, at 796-800 (opinion of Kennedy, J.), it is not at all clear that the public forum doctrine should be imported wholesale into the area of common carriage regulation. As discussed above, we are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area. See supra, at 739-743. Second, it is plain from this Court’s cases that a public forum “may be created for a limited purpose.” Perry, supra, at 46, n. 7; see also Cornelius, supra, at 802 (“[T]he government ‘is not required to indefinitely retain the open character of the facility’”)
(quoting Perry, supra, at 46). Our cases have not yet determined, however, that government’s decision to dedicate a public forum to one type of content or another is necessarily subject, to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)? The answer is not obvious. Cf. Perry, supra, at 46, n. 7. But, at a minimum, these cases do not require us to answer it. Finally, and most important, the effects of Congress’ decision on the interests of programmers, viewers, cable operators, and children are the same, whether we characterize Congress’ decision as one that limits access to a public forum, discriminates in common carriage, or constrains speech because of its content. If we consider this particular limitation of indecent television programming acceptable as a constraint on speech, we must no less accept the limitation it places on access to the claimed public forum or on use of a common carrier.
Consequently, if one wishes to view the permissive provisions before us through a “public forum” lens, one should view those provisions as limiting the otherwise totally open nature of the forum that leased access channels provide for communication of other than patently offensive sexual material — taking account of the fact that the limitation was imposed in light of experience gained from maintaining a totally open “forum.” One must still ask whether the First Amendment forbids the limitation. But unless a label alone were to make a critical First Amendment difference (and we think here it does not), the features of these cases that we have already discussed — the Government’s interest in protecting children, the “permissive” aspect of the statute, and the nature of the medium — sufficiently justify the “limitation” on the availability of this forum.
Finally, petitioners argue that the definition of the materials subject to the challenged provisions is too vague, thereby granting cable system operators too broad a program-screening authority. Cf. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982) (citing Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972)) (vague laws may lead to arbitrary enforcement); Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965) (uncertainty may perniciously chill speech). That definition, however, uses language similar to language previously used by this Court for roughly similar purposes.
The provisions, as augmented by FCC regulations, permit cable system operators to prohibit
“programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.” 1992 Act, § 10(a), 106 Stat. 1486.
See also 47 CFR § 76.702 (1995) (reading approximately the same definition into § 10(c)). This language is similar to language adopted by this Court in Miller v. California, 413 U. S. 15, 24 (1973), as a “guideline]” for identifying materials that States may constitutionally regulate as obscene. In Miller, the Court defined obscene sexual material (material that lacks First Amendment protection) in terms of
“(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Ibid, (emphasis added; internal quotation marks omitted).
The language, while vague, attempts to identify the category of materials that Justice Stewart thought could be described only in terms of “I know it when I see it.” Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (concurring opinion). In § 10(a) and the FCC regulations, without Miller’s qualifiers, the language would seem to refer to material that would be offensive enough to fall within that category but for the fact that the material also has “serious literary, artistic, political or scientific value” or nonprurient purposes.
This history suggests that the statute’s language aims at the kind of programming to which its sponsors referred— pictures of oral sex, bestiality, and rape, see 138 Cong. Rec. 981, 985 (1992) (statement of Sen. Helms) — and not at scientific or educational programs (at least unless done with a highly unusual lack of concern for viewer reaction). Moreover, as this Court pointed out in Pacifica, what is “patently offensive” depends on context (the kind of program on which it appears), degree (not “an occasional expletive”), and time of broadcast (a “pig” is offensive in “the parlor” but not the “barnyard”). 438 U. S., at 748, 750. Programming at 2 o’clock in the morning is seen by a basically adult audience and the “patently offensive” must be defined with that fact in mind.
Further, the statute protects against overly broad application of its standards insofar as it permits cable system operators to screen programs only pursuant to a “written and published policy.” 1992 Act, § 10(a), 106 Stat. 1486. A cable system operator would find it difficult to show that a leased access program prohibition reflects a rational “policy” if the operator permits similarly “offensive” programming to run elsewhere on its system at comparable times or in comparable ways. We concede that the statute’s protection against overly broad application is somewhat diminished by the fact that it permits a cable operator to ban programming that the operator “reasonably believes” is patently offensive. Ibid. (emphasis added). But the “reasonable] belie[f]” qualifier here, as elsewhere in the law, seems designed not to expand the category at which the law aims, but, rather, to provide a legal excuse, for (at least) one honest mistake, from liability that might otherwise attach. Cf. Waters v. Churchill, 511 U. S. 661, 682 (1994) (Souter, J., concurring) (public employer’s reasonable belief that employee engaged in unprotected speech excuses liability); United States v. United States Gypsum Co., 438 U. S. 422, 453-455, and n. 29 (1978) (“‘meeting competition’ ” defense in antitrust based on reasonable belief in the necessity to meet competition); Pierson v. Ray, 386 U. S. 547, 555-557 (1967) (police officer has defense to constitutional claim, as did officers of the peace at common law in actions for false arrest, when the officer reasonably believed the statute whose violation precipitated the arrest was valid). And the contours of the shield — reasonableness— constrain the discretion of the cable operator as much as they protect it. If, for example, a court had already found substantially similar programming to be beyond the pale of “patently offensive” material, or if a local authority overseeing the local public, governmental, or educational channels had indicated that materials of the type that the cable operator decides to ban were not “patently offensive” in that community, then the cable operator would be hard pressed to claim that the exclusion of the material was “reasonable.” We conclude that the statute is not impermissibly vague.
For the reasons discussed, we conclude that § 10(a) is consistent with the First Amendment.
III
The statute s second provision significantly differs from the first, for it does not simply permit, but rather requires, cable system operators to restrict speech — by segregating and blocking “patently offensive” sex-related material appearing on leased channels (but not on other channels). 1992 Act, § 10(b). In particular, as previously mentioned, see supra, at 735, this provision and its implementing regulations require cable system operators to place “patently offensive” leased channel programming on a separate channel; to block that channel; to unblock the channel within 30 days of a subscriber’s written request for access; and to reblock the channel within 30 days of a subscriber’s request for reblocking. 1992 Act, § 10(b); 47 CFR §§ 76.701(b), (c), (g) (1995). Also, leased channel programmers must notify cable operators of an intended “patently offensive” broadcast up to 30 days before its scheduled broadcast date. §§ 76.701(d), (g).
These requirements have obvious restrictive effects. The several up-to-30-day delays, along with single channel segregation, mean that a subscriber cannot decide to watch a single program without considerable advance planning and without letting the “patently offensive” channel in its entirety invade his household for days, perhaps weeks, at a time. These restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through “surfing,” minute by minute); to viewers who would like occasionally to watch a few, but not many, of the programs on the “patently offensive” channel; and to viewers who simply tend to judge a program’s value through channel reputation, i. e., by the company it keeps. Moreover, the “written notice” requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the “patently offensive” channel. Cf. Lamont v. Postmaster General, 381 U. S. 301, 307 (1965) (finding unconstitutional a requirement that recipients of Communist literature notify the Post Office that they wish to receive it). Further, the added costs and burdens that these requirements impose upon a cable system operator may encourage that operator to ban programming that the operator would otherwise permit to run, even if only late at night.
The Government argues that, despite these adverse consequences, the “segregate and block” requirements are lawful because they are “the least restrictive means of realizing” a “‘compelling interest,’” namely, ‘“protecting the physical and psychological well-being of minors.’” See Brief for Federal Respondents 11 (quoting Sable, 492 U. S., at 126). It adds that, in any event, the First Amendment, as applied in Pacifica, “does not require that regulations of indecency on television be subject to the strictest” First Amendment “standard of review.” Brief for Federal Respondents 11.
We agree with the Government that protection of children is a “compelling interest.” See supra, at 743. But we do not agree that the “segregate and block” requirements properly accommodate the speech restrictions they impose and the legitimate objective they seek to attain. Nor need we here determine whether, or the extent to which, Pacifica does, or does not, impose some lesser standard of review where indecent speech is at issue, compare 438 U. S., at 745-748 (opinion of Stevens, J.) (indecent materials enjoy lesser First Amendment protection), with id., at 761-762 (Powell, J., concurring in part and concurring in judgment) (refusing to accept a lesser standard for nonobscene, indecent material). That is because once one examines this governmental restriction, it becomes apparent that, not only is it not a “least restrictive alternative” and is not “narrowly tailored” to meet its legitimate objective, it also seems considerably “more extensive than necessary.” That is to say, it fails to satisfy this Court’s formulations of the First Amendment’s “strictest,” as well as its somewhat less “strict,” requirements. See, e. g., Sable, 492 U. S., at 126 (“compelling interest” and “least restrictive means” requirements applied to indecent telephone communications); id., at 131 (requiring “narrowly tailored” law); Turner, 512 U. S., at 641 (using “heightened scrutiny” to address content-neutral structural regulations of cable systems); id., at 662 (quoting “‘no greater than . . . essential’ ” language from United States v. O’Brien, 391 U. S. 367, 377 (1968), as an example of “heightened,” less-than-strictest, First Amendment scrutiny); Central Hudson, 447 U. S., at 566 (restriction on commercial speech cannot be “more extensive than is necessary”); Florida Bar v. Went For It, Inc., 515 U. S. 618, 624 (1995) (restriction must be “narrowly drawn”); id., at 632 (there must be a “reasonable” “fit” with the objective that legitimates speech restriction). The provision before us does not reveal the caution and care that the standards underlying these various verbal formulas impose upon laws that seek to reconcile the critically important interest in protecting free speech with very important, or even compelling, interests that sometimes warrant restrictions.
Several circumstances lead us to this conclusion. For one thing, the law, as recently amended, uses other means to protect children from similar “patently offensive” material broadcast on mleased cable channels, i. e., broadcast over any of a system’s numerous ordinary, or public access, channels. The law, as recently amended, requires cable operators to “scramble or . . . block” such programming on any (unleased) channel “primarily dedicated to sexually-oriented programming.” Telecommunications Act of 1996, §505, 110 Stat. 136 (emphasis added). In addition, cable operators must honor a subscriber’s request to block any, or all, programs on any channel to which he or she does not wish to subscribe. §504, ibid. And manufacturers, in the future, will have to make television sets with a so-called “V-chip”— a device that will be able automatically to identify and block sexually explicit or violent programs. § 551, id., at 139-142.
Although we cannot, and do not, decide whether the new provisions are themselves lawful (a matter not before us), we note that they are significantly less restrictive than the provision here at issue. They do not force the viewer to receive (for days or weeks at a time) all “patently offensive” programming or none; they will not lead the viewer automatically to judge the few by the reputation of the many; and they will not automatically place the occasional viewer’s name on a special list. They therefore inevitably lead us to ask why, if they adequately protect children from “patently offensive” material broadcast on ordinary channels, they would not offer adequate protection from similar leased channel broadcasts as well? Alternatively, if these provisions do not adequately protect children from “patently offensive” material broadcast on ordinary channels, how could one justify more severe leased channel restrictions when (given ordinary channel programming) they would yield so little additional protection for children?
The record does not answer these questions. It does not explain why, under the new Act, blocking alone — without written access requests — adequately protects children from exposure to regular sex-dedicated channels, but cannot adequately protect those children from programming on similarly sex-dedicated channels that are leased. It does not explain why a simple subscriber blocking request system, perhaps a phone-call-based system, would adequately protect children from “patently offensive” material broadcast on ordinary non-sex-dedicated channels (i. e., almost all channels) but a far more restrictive segregate/block/written-access system is needed to protect children from similar broadcasts on what (in the absence of the segregation requirement) would be non-sex-dedicated channels that are leased. Nor is there any indication Congress thought the new ordinary channel protections less than adequate.
The answers to the questions are not obvious. We have no empirical reason to believe, for example, that sex-dedicated channels are all (or mostly) leased channels, or that “patently offensive” programming on non-sex-dedicated channels is found only (or mostly) on leased channels. To the contrary, the parties’ briefs (and major city television guides) provide examples of what seems likely to be such programming broadcast over both kinds of channels.
We recognize, as the Government properly points out, that Congress need not deal with every problem at once. Cf. Semler v. Oregon Bd. of Dental Examiners, 294 U. S. 608, 610 (1935) (the legislature need not “strike at all evils at the same time”); and Congress also must have a degree of leeway in tailoring means to ends. Columbia Broadcasting, 412 U. S., at 102-103. But in light of the 1996 statute, it seems fair to say that Congress now has tried to deal with most of the problem. At this point, we can take Congress’ different, and significantly less restrictive, treatment of a highly similar problem at least as some indication that more restrictive means are not “essential” (or will not prove very helpful). Cf. Boos v. Barry, 485 U. S. 312, 329 (1988) (existence of a less restrictive statute suggested that a challenged ordinance, aimed at the same problem, was overly restrictive).
The record’s description and discussion of a different alternative — the “lockbox” — leads, through a different route, to a similar conclusion. The Cable Communications Policy Act of 1984 required cable operators to provide
“upon the request of a subscriber, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by the subscriber.” 47 U.S. C. § 544(d)(2).
This device — the “lockbox” — would help protect children by permitting their parents to “lock out” those programs or channels that they did not want their children to see. See FCC 85-179, ¶ 132, 50 Fed. Reg. 18637, 18655 (1985) (“[T]he provision for lockboxes largely disposes of issues involving the Commission’s standard for indecency”). The FCC, in upholding the “segregate and block” provisions, said that lockboxes protected children (including, say, children with inattentive parents) less effectively than those provisions. See First Report and Order ¶ ¶ 14-15, 8 FCC Red, at 1000. But it is important to understand why that is so.
The Government sets forth the reasons as follows:
“In the case of lockboxes, parents would have to discover that such devices exist; find out that their cable operators offer them for sale; spend the time and money to buy one; learn how to program the lockbox to block undesired programs; and, finally, exercise sufficient vigilance to ensure that they have, indeed, locked out whatever indecent programming they do not wish their children to view.” Brief for Federal Respondents 37.
We assume the accuracy of this statement. But the reasons do not show need for a provision as restrictive as the one before us. Rather, they suggest a set of provisions very much like those that Congress placed in the 1996 Act.
No provision, we concede, short of an absolute ban, can offer certain protection against assault by a determined child. We have not, however, generally allowed this fact alone to justify “ ‘ “reducing] the adult population . . . to .. . only what is fit for children.”’” Sable, 492 U. S., at 128 (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983), in turn quoting Butler v. Michigan, 352 U. S. 380, 383 (1957)); see Sable, supra, at 130, and n. 10. But, leaving that problem aside, the Government’s list of practical difficulties would seem to call, not for “segregate and block” requirements, but, rather, for informational requirements, for a simple coding system, for readily available blocking equipment (perhaps accessible by telephone), for imposing cost burdens upon system operators (who may spread them through subscription fees); or perhaps even for a system that requires lockbox defaults to be set to block certain channels (say, sex-dedicated channels). These kinds of requirements resemble those that Congress has recently imposed upon all but leased channels. For that reason, the “lockbox” description and the discussion of its frailties reinforces our conclusion that the leased channel provision is overly restrictive when measured against the benefits it is likely to achieve. (We add that the record’s discussion of the “lockbox” does not explain why the law now treats leased channels more restrictively than ordinary channels.)
There may, of course, be other explanations. Congress may simply not have bothered to change the leased channel provisions when it introduced a new system for other channels. But responses of this sort, like guesses about the comparative seriousness of the problem, are hot legally adequate. In other cases, where,.as here, the record before Congress or before an agency provides no convincing explanation, this Court has not been willing to stretch the limits of the plausible, to create hypothetical nonobvious explanations in order to justify laws that impose significant restrictions upon speech. See, e. g., Sable, supra, at 130 (“[T]he congressional record presented to us contains no evidence as to how effective or ineffective the FCC’s most recent regulations were or might prove to be”); Simon & Schuster, 502 U. S., at 120; Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585-586 (1983); Arkansas Writers’ Project, 481 U. S., at 231-232.
Consequently, we cannot find that the “segregate and block” restrictions on speech are a narrowly, or reasonably, tailored effort to protect children. Rather, they are overly restrictive, “sacrificing]” important First Amendment interests for too “speculative a gain.” Columbia Broadcasting, 412 U. S., at 127; see League of Women Voters, 468 U. S., at 397. For that reason they are not consistent with the First Amendment.
IV
The statute’s third provision, as implemented by FCC regulation, is similar to its first provision, in that it too permits a cable operator to prevent transmission of “patently offensive” programming, in this case on public access channels. 1992 Act, § 10(c); 47 CFR § 76.702 (1995). But there are four important differences.
The first is the historical background. As Justice Kennedy points out, see post, at 788-790, cable operators have traditionally agreed to reserve channel capacity for public, governmental, and educational channels as part of the consideration they give municipalities that award them cable franchises. See H. R; Rep. No. 98-934, at 30. In the terms preferred by Justice Thomas, see post, at 827-828, the requirement to reserve capacity for public access channels is similar to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land. Cf. post, at 793-794 (opinion of Kennedy, J.). Significantly, these are channels over which cable operators have not historically exercised editorial control. H. R. Rep. No. 98-934, supra, at 30. Unlike § 10(a) therefore, § 10(c) does not restore to cable operators editorial rights that they once had, and the countervailing First Amendment interest is nonexistent, or at least much diminished. See also post, at 792-793 (opinion of Kennedy, J.).
The second difference is the institutional background that has developed as a result of the historical difference. When a “leased channel” is made available by the operator to a private lessee, the lessee has total control of programming during the leased time slot. See 47 U. S. C. § 532(c)(2). Public access channels, on the other hand, are normally subject to complex supervisory systems of various sorts, often with both public and private elements. See § 531(b) (franchising authorities “may require rules and procedures for the use of the [public access] channel capacity”). Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality, or, in some instances, the cable system owner. See D. Brenner, M. Price, & M. Myerson, Cable Television and Other Non-broadcast Video ¶ 6.04[7] (1993); P. Aufderheide, Public Access Cable Programming, Controversial Speech, and Free Expression (1992) (hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61 communities; the access manager was: a nonprofit organization in 41, a local government official in 12, the cable operator in 5, and an unidentified entity in 3); D. Agosta, C. Rogoff, & A. Norman, The Participate Report: A Case Study of Public Access Cable Television in New York State 28 (1990) (hereinafter Agosta), attached as Exh. K to Joint Comments for the Alliance for Community Media et al., filed with the FCC under MM Docket No. 92-258 (materials so filed hereinafter FCC Record) (“In 88% [of New York public access systems] access channels were programmed jointly between the cable operator and another institution such as a university, library, or non-profit access organization”); id., at 28-32, FCC Record; Comments of National Cable Television Association Inc., at 14, FCC Record (“Operators often have no involvement in PEG channels that are run by local access organizations”). Access channel activity and management are partly financed with public funds — through franchise fees or other payments pursuant to the franchise agreement, or from general municipal funds, see Brenner, Price, & Myerson, supra, ¶ 6.04[3][c]; Aufder-heide, App. 59-60 — and are commonly subject to supervision by a local supervisory board. See, e. g., D. C. Code Ann. § 43-1829 (1990 and Supp. 1996); Lynchburg City Code § 12.1-44(d)(2) (1988).
This system of public, private, and mixed nonprofit elements, through its supervising boards and nonprofit or governmental access managers, can set programming policy and approve or disapprove particular programming services. And this system can police that policy by, for example,, requiring indemnification by programmers, certification of compliance with local standards, time segregation, adult content advisories, or even by prescreening individual programs. See Second Report and Order ¶ 26, 8 FCC Red, at 2642 (“[F]rom the comments received, it appears that a number of access organizations already have in place procedures that require certification statements [of compliance with local standards], or their equivalent, from access programmers”); Comments of Boston Community Access and Programming Foundation, App. 163-164; Aufderheide, id., at 69-71; Comments of Metropolitan Area Communications Commission 2, FCC Record; Reply Comments of Waycross Community Television 4-6, FCC Record; Reply Comments of Columbus Community Cable Access, Inc., App. 329; Reply Comments of City of St. Paul, id., at 318, 325; Reply Comments of Erik Mollberg, Public Access Coordinator, Ft. Wayne, Ind., 3, FCC Record; Comments of Defiance Community Television 3, FCC Record; Comments of Nutmeg Public Access Television, Inc., 3-4, FCC Record. Whether these locally accountable bodies prescreen programming, promulgate rules for the use of public access channels, or are merely available to respond when problems arise, the upshot is the same: There is a locally accountable body capable of addressing the problem, should it arise, of patently offensive programming broadcast to children, making it unlikely that many children will in fact be exposed to programming considered patently offensive in that community. See 56 F. 3d, at 127-128; Second Report and Order ¶ 26, 8 FCC Red 2642.
Third, the existence of a system aimed at encouraging and securing programming that the community considers valuable strongly suggests that a “cable operator’s veto” is less likely necessary to achieve the statute’s basic objective, protecting children, than a similar veto in the context of leased channels. Of course, the system of access managers and supervising boards can make mistakes, which the operator might in some cases correct with its veto power. Balanced against this potential benefit, however, is the risk that the veto itself may be mistaken; and its use, or threatened use, could prevent the presentation of programming, that, though borderline, is not “patently offensive” to its targeted audience. See Aufderheide, App. 64-66 (describing the programs that were considered borderline by access managers, including sex education, health education, broadcasts of politically marginal groups, and various artistic experiments). And this latter threat must bulk large within a system that already has publicly accountable systems for maintaining responsible programs.
Finally, our examination of the legislative history and the record before us is consistent with what common sense suggests, namely, that the public/nonprofit programming control systems now in place would normally avoid, minimize, or eliminate any child-related problems concerning “patently offensive” programming. We have found anecdotal references to what seem isolated instances of potentially indecent programming, some of which may well have occurred on leased, not public access, channels. See 138 Cong. Rec. 984, 990 (1992) (statement of Sen. Wirth) (mentioning “abuses” on Time Warner’s New York City channel); but see Comments of Manhattan Neighborhood Network, App. 235, 238 (New York access manager noting that leased, not public access, channels regularly carry sexually explicit programming in New York, and that no commercial programs or advertising are allowed on public access channels); Brief for Time Warner Cable as Amicus Curiae 2-3 (indicating that relevant “abuses” likely occurred on leased channels). See also 138 Cong. Rec., at 989 (statement of Sen. Fowler) (describing solicitation of prostitution); id., at 985 (statement of Sen. Helms) (identifying newspaper headline referring to mayor’s protest of a “strip act”); 56 F. 3d, at 117-118 (recounting comments submitted to the FCC describing three complaints of offensive programming); Letter from Mayor of Rancho Palos Verdes, FCC Record; Resolution of San Antonio City Council, No. 92-49-40, FCC Record.
But these few examples do not necessarily indicate a significant nationwide pattern. See 56 F. 3d, at 127-128 (public access channels “did not pose dangers on the order of magnitude of those identified on leased access channels,” and “local franchising authorities could respond” to such problems “by issuing Tules and procedures’ or other ‘requirements’”). The Commission itself did not report any examples of “indecent” programs on public access channels. See Second Report and Order, 8 FCC Red, at 2638; see also Comments of Boston Community Access and Programming Foundation, App. 162-163 (noting that the FCC’s Notice of Proposed Rulemaking, 7 FCC Red 7709 (1992), did not identify any “inappropriate” programming that actually exists on public access channels). Moreover, comments submitted to the FCC undermine any suggestion that prior to 1992 there were significant problems of indecent programming on public access channels. See Agosta 10,28, FCC Record (surveying 76 public access systems in New York over two years, and finding “only two examples of controversial programming, and both had been settled by the producers and the access channel”); Reply Comments of Staten Island Community Television 2, FCC Record (“Our access channels have been on the air since 1986 without a single incident which would be covered by Section 10 of the new law”); Reply Comments of Waycross Community Television, at 2, FCC Record (“[I]n-decent and obscene programs ... [have] never been cablecast through Waycross Community Television during our entire ten year programming history”); Reply Comments of Cambridge Community Television, App. 314 (“In Cambridge less than one hour out of 15,000 hours of programming CCTV has run in the past five year[s] may have been affected by the Act”); ibid. (“CCTV feels that there simply is not a problem which needs to be fixed”); Reply Comments of Columbus Community Cable Access, Inc., id., at 329 (“ACTV is unaware of any actions taken by the cable operators under [a local law authorizing them to prohibit “legally obscene matter”] within the last 10 years”); Reply Comments of Cincinnati Community Video, Inc., id., at 316 (“[I]n 10 years of access operations with over 30,000 access programs cablecast not a single obscenity violation has ever occurred”); Comments of Defiance Community Television, at 2-3, FCC Record (in eight years of operation, “there has never been a serious problem with the content of programming on the channel”).
At most, we have found borderline examples as to which people’s judgment may differ, perhaps acceptable in some communities but not others, of the type that petitioners fear the law might prohibit. See, e. g., Aufderheide, App. 64-66; Brief for Petitioners in No. 95-124, p. 7 (describing depiction of a self-help gynecological examination); Comments of Time Warner Entertainment Co., App. 252 (describing an Austin, Tex., program that included “nude scenes from a movie,” and an Indianapolis, Ind., “ ‘safe sex’ ” program). It is difficult to see how such borderline examples could show a compelling need, nationally, to protect children from significantly harmful materials. Compare 138 Cong. Rec., at 985 (statement of Sen. Helms) (justifying regulation of leased access channels in terms of programming that depicts “bestiality” and “rape”). In the absence of a factual basis substantiating the harm and the efficacy of its proposed cure, we cannot assume that the harm exists or that the regulation redresses it. See Turner, 512 U. S., at 664-665.
The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships among local community and nonprofit supervising boards and access managers, which relationships are established through municipal law, regulation, and contract. In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear. At the same time, given present supervisory mechanisms, the need for this particular provision, aimed directly at public access channels, is not obvious. Having carefully reviewed the legislative history of the Act, the proceedings before the FCC, the record below, and the submissions of the parties and amici here, we conclude that the Government cannot sustain its burden of showing that § 10(c) is necessary to protect children or that it is appropriately tailored to secure that end. See, e.g., Columbia Broadcasting, 412 U. S., at 127; League of Women Voters, 468 U. S., at 398-399; Sable, 492 U. S., at 126. Consequently, we find that this third provision violates the First Amendment.
V
Finally, we must ask whether § 10(a) is severable from the two other provisions. The question is one of legislative intent: Would Congress still “have passed” § 10(a) “had it known” that the remaining “provision^ were] invalid”? Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 506 (1985). If so, we need not invalidate all three provisions' New York v. Ferber, 458 U. S., at 769, n. 24 (citing United States v. Thirty-seven Photographs, 402 U. S. 363 (1971)).
Although the 1992 Act contains no express “severability clause,” we can find the Act’s “severability” intention in its structure and purpose. It seems fairly obvious Congress would have intended its permissive “leased access” channels provision, § 10(a), to stand irrespective of § 10(c)’s legal fate. That is because the latter provision concerns only public, educational, and governmental channels. Its presence had little, if any, effect upon “leased access” channels; hence its absence in respect to those channels could not make a significant difference.
The “segregate and block” requirement’s invalidity does make a difference, however, to the effectiveness of the permissive “leased access” provision, § 10(a). Together they told the cable system operator: “Either ban a ‘patently offensive’ program or ‘segregate and block’ it.” Without the “segregate and block” provision, cable operators are afforded broad discretion over what to do with a patently offensive program, and because they will no longer bear the costs of segregation and blocking if they refuse to ban such programs, cable operators may choose to ban fewer programs.
Nonetheless, this difference does not make the two provisions unseverable. Without the “segregate and block” provision, the law simply treats leased channels (in respect to patently offensive programming) just as it treats all other channels. And judging by the absence of similar segregate and block provisions in the context of these other channels, Congress would probably have thought that § 10(a), standing alone, was an effective (though, perhaps, not the most effective) means of pursuing its objective. Moreover, we can find no reason why, in light of Congress’ basic objective (the protection of children), Congress would have preferred no provisions at all to the permissive provision standing by itself. That provision, capable of functioning on its own, still helps to achieve that basic objective. Consequently, we believe the valid provision is severable from the others.
VI
For these reasons, the judgment of the Court of Appeals is affirmed insofar as it upheld § 10(a); the judgment of the Court of Appeals is reversed insofar as it upheld § 10(b) and § 10(c).
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?
|
[
"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"
] |
[
37
] |
NATIONAL LABOR RELATIONS BOARD v. BRANDMAN IRON CO.
No. 35.
Decided January 15, 1962.
Former Solicitor General Rankin, Solicitor General Cox, Stuart Rothman, Dominick L. Manoli and Norton J. Come for petitioner.
Per Curiam.
The petition for a writ of certiorari is granted. The respondent consented to the entry by the National Labor Relations Board of an order directing it to cease and desist from certain practices as regards membership of its employees in a named labor organization “or any other labor organization of its employees.” The respondent further waived all defenses to the entry by the Court of Appeals of a decree enforcing said order. The Court of Appeals, sua sponte, struck the words “or any other labor organization of its employees” wherever they appeared in the Board’s order. 281 F. 2d 797. The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board order. Labor Board v. Ochoa Fertilizer Corp., ante, p. 318.
Mr. Justice Douglas 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?
|
[
"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
] |
UNITED STATES DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS v. GALIOTO
No. 84-1904.
Argued March 26, 1986
Decided June 27, 1986
BURGER, C. J., delivered the opinion for a unanimous Court.
Charles A. Rothfeld argued the cause for appellant. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Getter, and Nicholas S. Zeppos.
Michael A. Casale argued the cause and filed a brief for appellee.
Briefs of amici curiae urging affirmance were filed for the American Psychological Association by Margaret Farrell Ewing, Donald N. Bersoff, and Arlene S. Ranter; for the Coalition for the Fundamental Rights and Equality of Ex-Patients by Richard E. Gardiner and Robert Dowlut; and for the New Jersey Department of the Public Advocate, Division of Mental Health Advocacy, et al. by Linda G. Rosenzweig, Penelope A. Boyd, and Peter Margulies.
Chief Justice Burger
delivered the opinion of the Court.
We noted probable jurisdiction to decide whether Congress may, consistent with the Fifth Amendment, forbid all involuntarily committed former mental patients to purchase firearms while permitting some felons to do so.
In 1982 appellee attempted to purchase a firearm at Ray’s Sport Shop in North Plainfield, New Jersey. The Sport Shop gave appellee a standard questionnaire, which asked, inter alia: “Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?” Appellee had been involuntarily committed to a mental hospital for a period of several days in 1971, and accordingly answered “yes” to this question. The store then refused to sell him a gun by reason of 18 U. S. C. § 922(d)(4), which makes it unlawful for a licensed dealer in firearms “to sell . . . any firearm ... to any person knowing or having reasonable cause to believe that such person. . . has been adjudicated as a mental defective or had been committed to any mental institution.” Federal firearms laws also forbid “any person. . . who has been adjudicated as a mental defective or who has been committed to a mental institution... to ship or transport any firearm or ammunition in interstate or foreign commerce,” 18 U. S. C. § 922(g), or to “receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce,” § 922(h). Partially overlapping provisions of 18 U. S. C. App. §§ 1202(a)(1) and (3) prohibit any person who has “been adjudged by a court ... of being mentally incompetent” from receiving, possessing, or transporting firearms.
After unsuccessfully seeking a special exemption from the Bureau of Alcohol, Tobacco and Firearms, appellee brought suit in the United States District Court for the District of New Jersey, challenging the constitutionality of the firearms legislation. The District Court concluded that those portions of the federal firearms statutes that deprived appellee of his ability to purchase a firearm were constitutionally infirm. 602 F. Supp. 682, 683 (1985). Both felons and persons who have been committed to mental institutions, inter alia, are subject to the firearms disabilities contained in 18 U. S. C. § 922(d). Under 18 U. S. C. § 925(c), however, felons who have committed crimes not involving firearms may apply to the Bureau for administrative relief from these disabilities. No such relief is permitted for former mental patients.
Section 925(c) provides in relevant part:
“A person who has been convicted for a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”
The District Court held that this scheme violated equal protection principles because, in its view, “[t]here is no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts.” 602 F. Supp., at 689. The court also concluded that the statutory scheme was unconstitutional because it “in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous. ” Id., at 690. We noted probable jurisdiction over the Government’s appeal, 474 U. S. 943 (1985), and the case was argued on March 26, 1986.
Meanwhile, Congress came to the conclusion, as a matter of legislative policy, that the firearms statutes should be redrafted. On May 19, 1986, while this case was under consideration here, the President signed into law Pub. L. 99-308, 100 Stat. 449. Section 105 of the statute amends the provision providing for administrative relief from firearms disabilities, 18 U. S. C. § 925(c), by striking out the language limiting the provision to certain felons and changing the statute to read that any person who “is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition” may apply to the Secretary of the Treasury for relief. Section 110 of the statute provides that the amendment made by § 105 “shall be applicable to any action, petition, or appellate proceeding pending on the date of the enactment of this Act.”
This enactment significantly alters the posture of this case. The new statutory scheme permits the Secretary to grant relief in some circumstances to former involuntarily committed mental patients such as appellee. The new approach affords an administrative remedy to former mental patients like that Congress provided for others prima facie ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been “singled out.” Also, no “irrebutta-ble presumption” now exists since a hearing is afforded to anyone subject to firearms disabilities. Accordingly, the equal protection and “irrebuttable presumption” issues discussed by the District Court are now moot. See United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of Camden, 465 U. S. 208, 213 (1984).
In such circumstances, “it is the duty of the appellate court to set aside the decree below . . . .” Duke Power Co. v. Greenwood County, 299 U. S. 259, 267 (1936); see also United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950). We therefore vacate the judgment of the District Court. However, since appellee’s complaint appears to raise other issues best addressed in the first instance by the District Court, we also remand the case for further proceedings consistent with this opinion.
Vacated and remanded.
|
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"
] |
[
107
] |
HUDGENS v. NATIONAL LABOR RELATIONS BOARD et al.
No. 74-773.
Argued October 14, 1975
Decided March 3, 1976
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmüN, Powell, and Rehnquist, JJ., joined. Powell, J., filed a' concurring opinion, in which Burger, C. J., joined, post, p. 523. White, J., filed an opinion concurring in the result, post, p. 524. Marshall, J., filed a dissenting opinion, in which BrennaN, J., joined, post, p. 525. Stevens, J., took no part in the consideration or decision of the case.
Lawrence M. Cohen argued the cause for petitioner. With him on the brief were Steven R. Sender and Dow N. Kirkpatrick, II.
Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Bork, William L. Patton, Peter G. Nash, John S. Irving, Patrick Hardin, and Robert A. Giannasi. Laurence Gold argued the cause for respondent Local 315, Retail & Wholesale Department Store Union, AFL-CIO. With him on the brief were Morgan Stanford and J. Albert Woll.
Muton A. Smith, Richard B. Berman, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Mr. Justice Stewart
delivered the opinion of the Court.
A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F. 2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971.
t — H
The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler’s, can be entered only from the interior mall.
In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company’s failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler’s warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center’s enclosed mall carrying placards which read: “Butler Shoe Warehouse on Strike, AFL-CIO, Local 315.” The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.
The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference. with rights protected by § 7 of the Act, 29 U. S. C. § 157. Relying on this Court’s decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner’s threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1). Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.
The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer’s private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge’s opinion also relied on this Court’s constitutional decision in Logan Valley for a “realistic view of the facts.” The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens’ invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.
Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board’s cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets’ rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property .right considerations discussed in Lloyd Corp. v. Tanner, supra, “burde[n] the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective,” 501 F. 2d, at 169, and that the Board’s General Counsel had met that burden in this case.
In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals’ judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board’s asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.
II
As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.
It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.
This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court’s opinion as follows:
“Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” Id,., at 502-503.
The Court pointed out that if the “title” to Chickasaw had “belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant’s conviction must be reversed.” Id., at 504. Concluding that Gulfs “property interests” should not be allowed to lead to a different result in Chickasaw, which did “not function differently from any other town,” id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant’s conviction.
It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.
The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:
“It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315.
The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:
“The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.” 391 U. S., at 318.
Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.
There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court’s opinion in Marsh, Mr. Justice Black. His disagreement with the Court’s reasoning was total:
“In affirming petitioners’ contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents’ property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. ... I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a ‘town.’ ” 391 U. S., at 330-331 (footnote omitted).
“The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a “business block” on which business places are situated.’ 326 U. S., at 502. I can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner’s private property and give its use to people who want to picket on it.” Id., at 332. “To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .” Id., at 332-333.
Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled’ in their favor, holding that the distribution of handbills on the shopping center’s property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F. 2d 545, expressly relying on this Court’s Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.
The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U. S., at 561-567. But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley.
It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:
“The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....” 407 U. S., at 567.
“Respondents contend . . . that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.
“The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, thé owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.” Id., at 568-569 (footnote omitted).
“We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . Id., at 570.
If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205. “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.
We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.
Ill
From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U. S., at 543. What is “a proper accommodation” in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires “above all else” that expression must not be restricted by government “because of its message, its ideas, its subject matter, or its content.”
In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees’ § 7 rights and employers’ property rights, the Court said in Babcock & Wilcox, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.” 351 U. S., at 112.
Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemploy-ees on the employers’ property. The context of the § 7 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 499; Bus Employees v. Missouri, 374 U. S. 74, 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 668-669. Second, the § 7 activity here was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another.
The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other/’ The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-236; NLRB v. Truckdrivers Union, 353 U. S. 87, 97. “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.” NLRB v. Weingarten, Inc., 420 U. S. 251, 266.
For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.
It is so ordered.
Mr. Justice Stevens took no part in the consideration or decision of this case.
The Butler warehouse was not located within the North DeKalb Shopping Center.
Section 7, 29 U. S. C. § 157, provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a) (3) of this title.”
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N. L. R. B. 671. Section 8(a)(1) makes it an unfair labor practice for “an employer” to “restrain, or coerce employees” in the exercise of their § 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2 (6) and (7) of the Act, 29 ü. S. C. §§ 152 (6) and (7). The Board has held that a statutory “employer” may violate § 8 (a) (1) with respect to employees other than his own. See Austin Co., 101 N. L. R. B. 1257, 1258-1259. See also § 2 (13) of the Act, 29 U. S. C. §152 (13).
Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628.
Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.:
“The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd’s private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley.” 407 U. S., at 575 (Marshall, J., dissenting).
See id., at 570 (Marshall, J., dissenting).
This was the entire thrust of Mr. Justice Marshall’s dissenting opinion in the Lloyd case. See id., at 584.
Mr. Justice White clearly recognized this principle in his Logan Valley dissenting opinion. 391 U. S., at 339.
The Court has in the past held that some expression is not protected “speech” within the meaning of the First Amendment. Roth v. United States, 354 U. S. 476; Chaplinsky v. New Hampshire, 315 U. S. 568.
A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB, 324 U. S. 793. This difference is “one of substance.” NLRB v. Babcock & Wilcox Co., 351 U. S., at 113.
This is not to say that Hudgens was not a statutory “employer” under the Act. See n. 3, supra.
351 U. S., at 112. This language was explicitly reaffirmed as stating “the guiding principle” in Central Hardware Co. v. NLRB, 407 U. S. 539, 544.
|
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
] |
FEDERAL OPEN MARKET COMMITTEE OF THE FEDERAL RESERVE SYSTEM v. MERRILL
No. 77-1387.
Argued December 6, 1978
Decided June 28, 1979
BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNan, White, Marshall, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Stewart, J., joined in part, post, p. 364.
Kenneth S. Getter argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, Leonard Schaitman, and Thomas G. Wilson.
Victor H. Kramer argued the cause for respondent. With him on the brief was Douglas L. Parker.
Diane B. Cohn and Girardeau A. Spann filed a brief for the Reporters Committee for Freedom of the Press et al. as amici curiae urging affirmance.
Mr. Justice Blackmun
delivered the opinion of the Court.
The Federal Open Market Committee has a practice, authorized by regulation, 12 CFR § 271.5 (1978), of withholding certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U. S. C. § 552. 184 U. S. App. D. C. 203, 565 F. 2d 778 (1977). We granted certiorari on the strength of the Committee’s representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U. S. 917 (1978).
I
Open market operations — the purchase and sale of Government securities in the domestic securities market — are the most important monetary policy instrument of the Federal Reserve System. When the Federal Reserve System buys securities in the open market, the payment is ordinarily credited in the reserve account of the seller’s bank, increasing the total volume of bank reserves. When the Federal Reserve System sells securities on the open market, the sales price usually is debited in the reserve account of the buyer’s bank, decreasing the total volume of reserves. Changes in the volume of bank reserves affect the ability of banks to make loans and investments. This in turn has a substantial impact on interest rates and investment activity in the economy as a whole.
The Federal Open Market Committee (FOMC or Committee), petitioner herein, by statute has exclusive control over the open market operations of the entire Federal Reserve System. 12 U. S. C. §263 (b). The FOMC is charged with conducting open market operations “with a view to accommodating commerce and business and with regard to their bearing upon the general credit situation of the country.” § 263 (c). To implement this authority, the Committee has established a combined investment pool for all Federal Reserve banks, known as the System Open Market Account. A senior officer of the Federal Reserve Bank of New York is regularly appointed Account Manager of the System Open Market Account.
The FOMC meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. The Committee’s principal conclusions are embodied in a statement called the Domestic Policy Directive. The Directive summarizes the economic and monetary background of the FOMC’s deliberations and indicates in general terms whether the Committee wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead. The Committee also attempts to agree on specific tolerance ranges for the growth in the money supply and for the federal funds rate. The recent practice of the Committee has been to include these tolerance ranges in the Domestic Policy Directive.
The day-to-day operations of the Account Manager are guided by the Domestic Policy Directive and associated tolerance ranges, and by a daily conference call with the staff and at least one member of the FOMC. Subject to this oversight, the Manager has broad discretion in implementing the Committee’s policy. In transacting business for the System Open Market Account, he deals with about 25 dealers who actively trade in United States Government and federal agency securities. Roughly half of these dealers are departments of large commercial banks; the others include large investment firms and smaller firms that specialize in Government securities. These dealers trade primarily for their own account. App. 33.
The Federal Reserve Board is required by statute to keep a record of all policy actions taken by the FOMC with respect to open market operations. 12 U. S. C. § 247a. To comply with this requirement, the FOMC secretariat prepares a document during the month after each Committee meeting. This document is called the Record of Policy Actions. It contains a general review of economic and monetary conditions at the time of the meeting, the text of the Domestic Policy Directive, any other policy actions taken by the Committee, the votes on these actions, and the dissenting views, if any. A draft of the Record of Policy Actions is distributed to the participants at the next meeting of the Committee for their comments, and is revised and released for publication in the Federal Register a few days later. 41 Fed. Reg. 22261 (1976).
In other words, the Record of Policy Actions is published in the Federal Register almost as soon as it is drafted and approved in final form by the Committee. The Domestic Policy Directive, however, exists as a document for approximately one month before it makes its first public appearance as part of the Record of Policy Actions. Moreover, by the time the Domestic Policy Directive is released as part of the Record of Policy Actions, it has been supplanted by a new Directive and is no longer the current and effective policy of the FOMC.
II
Respondent, when this action was instituted in May 1975, was a law student at Georgetown University Law Center, Washington, D. C. App. 8. The complaint alleged that he had “developed a strong interest in administrative law and the operation of agencies of the federal government,” and had formed a desire to study “the process by which the FOMC regulates the national money supply through the frequent adoption of domestic policy directives.” Ibid.
In pursuit of these professed academic interests, respondent in March 1975, through counsel, filed a request under the Freedom of Information Act (FOIA) seeking the “[r]ecords of policy actions taken by the Federal Open Market Committee at its meetings in January 1975 and February 1975, including, but not limited to, instructions to the Manager of the Open Market Account and any other person relating to the purchase and sale of securities and foreign currencies.” Id., at 13. The FOMC denied the request, explaining that the Records of Policy Actions, including the Domestic Policy Directive, were available only on a delayed basis under the policy set forth in 12 CFR § 271.5. An administrative appeal resulted in release of the requested documents, but only because the withholding period by then had expired. Governor Robert C. Holland of the Federal Reserve Board, on behalf of the Committee, wrote to respondent’s counsel that the Committee remained firmly committed to what he described as “a legislative policy against premature disclosures which would impair the effectiveness of the operations of Government agencies.” App. 21.
Respondent then instituted this litigation in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. App. 7. The FOMC in due course moved for summary judgment, and submitted affidavits from Committee members and staff that generally advanced two reasons why immediate disclosure of the Domestic Policy Directives and tolerance ranges would interfere with the FOMC’s statutory functions.
First, the Committee argued that immediate release of the Domestic Policy Directive and tolerance ranges would make it difficult to implement limited or gradual changes in monetary policy. Disclosure of the FOMC’s monetary policy objectives would have an immediate “announcement effect,” as market participants moved quickly to adjust their holdings of Government securities in anticipation of purchases or sales by the System Open Market Account. This would result in sudden price and interest rate movements, which might be considerably larger than the Committee contemplated and might be beyond the power of the FOMC or the Federal Reserve to control.
Second, the FOMC contended that immediate disclosure of the Directive and tolerance ranges would permit large institutional investors, who would have the means to analyze the information quickly and act rapidly in buying or selling securities, to obtain an unfair advantage over small investors.
Respondent submitted no counter-affidavits to these contentions, since he considered them “irrelevant” to the legal issues presented. Brief for Respondent 33-34, n. 12. The District Court apparently agreed. Without addressing the FOMC’s affidavits, or entering any findings about the effect that premature disclosure might have on open market operations, the court granted summary judgment for respondent. 413 F. Supp. 494 (DC 1976). It held, as the FOMC had conceded, that the Domestic Policy Directives were “statements of general policy . . . formulated and adopted by the agency” that, under 5 U. S. C. § 552 (a)(1)(D), had to be “currently publish [ed] in the Federal Register for the guidance of the public.” It further concluded that by waiting until a new Directive had been promulgated before publishing the preceding one, the FOMC was in violation of the “current publication” requirement. 413 F. Supp., at 505. Finally, the court rejected the Committee’s contentions that the Domestic Policy Directives could be withheld under either Exemption 2 of the FOIA, relating to internal personnel rules and practices of an agency, or Exemption 5, relating to inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with an agency.
On appeal to the United States Court of Appeals for the District of Columbia Circuit, the FOMC did not contest the ruling that the Domestic Policy Directives were “statements of general policy” that, under § 552 (a) (1) (D), had to be “currently publish [ed] ” in the Federal Register. Similarly, it did not challenge the conclusion that the 1-month delay failed to satisfy the current-publication requirement. Moreover, the Committee abandoned the argument that the Directives were covered by Exemption 2. The Committee, instead, concentrated on the contention that premature disclosure would seriously disrupt the conduct of open market operations, and continued to urge that the policy of delayed disclosure was authorized by Exemption 5.
The Court of Appeals rejected the FOMC’s Exemption 5 arguments. It held that the Domestic Policy Directives were not exempt from disclosure under the “executive” privilege attaching to predecisional communications. It also ruled that Exemption 5 was not designed to protect against premature disclosure of otherwise final decisions. Finally, it concluded that there was no other civil discovery privilege that could serve as a basis for holding that the Directives were exempt from disclosure under Exemption 5. Like the District Court, the Court of Appeals expressed no opinion about the FOMC’s assertion that immediate disclosure of the Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy. If the assertion were true, the court suggested, Congress could specifically exempt this material from the prompt-disclosure requirement of the FOIA. 184 U. S. App. D. C. 203, 565 F. 2d 778 (1977).
Ill
This Court has had frequent occasion to consider the FOIA, and it is not necessary to describe its history and background in detail. It suffices to say that the purpose of the FOIA is “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). The Act makes available to any person all agency records, which it divides into three categories: some must be currently published in the Federal Register, 5 U. S. C. § 552 (a)(1); others must be “promptly publish [ed]” or made publicly available and indexed, § 552 (a) (2); and all others must be promptly furnished on request, § 552 (a)(3). It then defines nine specific categories of records to which the Act “does not apply.” § 552 (b). The district court is given jurisdiction to enjoin an agency from withholding agency records, and to order the production of any agency records improperly withheld. §552 (a)(4)(B). The burden in any such proceeding is on the agency to establish that the requested information is exempt. Ibid.
At issue here is Exemption 5 of the FOIA, which provides that the affirmative disclosure provisions do not apply to “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.” § 552 (b)(5). Exemption 5, in other words, applies to documents that (a) are “inter-agency or intra-agency memorandums or letters,” and (b) consist of material that “would not be available by law to a party ... in litigation with the agency.”
A
There can be little doubt that the FOMC’s Domestic Policy Directives constitute “inter-agency or intra-agency memorandums or letters.” FOMC is clearly an “agency” as that term is defined in the Administrative Procedure Act. 5 U. S. C. §§ 551 (1), 552 (e). And the Domestic Policy Directives are essentially the FOMC’s written instructions to the Account Manager, a subordinate official of the agency. These instructions, although possibly of interest to members of the public, are binding only upon the Account Manager. The Directives do not establish rules that govern the adjudication of individual rights, nor do they require particular conduct or forbearance by any member of the public. They are thus “intra-agency memorandums” within the meaning of Exemption 5.
B
Whether the Domestic Policy Directives “would not be available by law to a party ... in litigation with the agency” presents a more difficult question. The House Report states that Exemption 5 was intended to allow an agency to withhold intra-agency memoranda which would not “routinely be disclosed to a private party through the discovery process in litigation with the agency . . . .” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). EPA v. Mink, 410 U. S. 73, 86-87 (1973), recognized that one class of intra-agency memoranda shielded by Exemption 5 is agency reports and working papers subject to the “executive” privilege for predecisional deliberations. NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975), confirmed this interpretation, and further held that Exemption 5 encompasses materials that constitute a privileged attorney’s work product. Id., at 154-155.
The FOMC does not contend that the Domestic Policy Directives are protected by either the privilege for predeci-sional communications or the privilege for an attorney’s work product. Its principal argument, instead, is that Exemption 5 confers general authority upon an agency to delay disclosure of intra-agency memoranda that would undermine the effectiveness of the agency’s policy if released immediately. This general authority exists, according to the FOMC, even if the memoranda in question could be routinely discovered by a party in civil litigation with the agency.
We must reject this analysis. First, since the FOMC does not indicate that the asserted authority to defer disclosure of intra-agency memoranda rests on a privilege enjoyed by the Government in the civil discovery context, its argument is fundamentally at odds with the plain language of the statute. EPA v. Mink, 410 U. S., at 85-86; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149. In addition, the Committee’s argument proves too much. Such an interpretation of Exemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the “efficiency” of its operations or otherwise would not be in the “public interest.” This would leave little, if anything, to FOIA’s requirement of prompt disclosure, and would run counter to Congress’ repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague “public interest” standard. H. R. Rep. No. 1497, supra, at 5, 9; S. Rep. No. 813, supra, at 3, 5, 8; EPA v. Mink, 410 U. S., at 78-80.
The FOMC argues, in the alternative, that there are several civil discovery privileges, in addition to the privileges for pre-decisional communications and an attorney’s work product, that would allow a district court to delay discovery of documents such as the Domestic Policy Directives until they are no longer operative. The Committee contends that Exemption 5 incorporates each of these privileges, and that it thus shields the Directives from a requirement of immediate disclosure.
Preliminarily, we note that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery. See NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 254 n. 12 (1978) (Powell, J., concurring in part and dissenting in part). There are, to be sure, statements in our cases construing Exemption 5 that imply as much. See, e. g., Renegotiation Board v. Grumman Aircraft Corp., 421 U. S. 168, 184 (1975) (“Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context”). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U. S., at 150-154, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption. Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly Exemptions 1, 4, 6, and 7. We hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption. Given that Congress specifically recognized that certain discovery privileges were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution.
The most plausible of the three privileges asserted by the FOMC is based on Fed. Rule Civ. Proc. 26 (c)(7), which provides that a district court, “for good cause shown,” may-order “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” The Committee argues that the Domestic Policy Directives constitute “confidential . . . commercial information,” at least during the month in which they provide guidance to the Account Manager, and that they therefore would be privileged from civil discovery during this period.
The federal courts have long recognized a qualified evi-dentiary privilege for trade secrets and other confidential commercial information. See, e. g., E. I. du Pont de Nemours Powder Co. v. Masland, 244 U. S. 100, 103 (1917); 8 J. Wigmore, Evidence § 2212, pp. 156-157 (McNaughton rev. 1961). The Federal Rules of Civil Procedure provide similar qualified protection for trade secrets and confidential commercial information in the civil discovery context. Federal Rule Civ. Proc. 26 (c)(7), which replaced former Rule 30 (b) in 1970, was intended in this respect to “reflec[t] existing law.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 444. The Federal Rules, of course, are fully applicable to the United States as a party. See, e. g., United States v. Procter & Gamble Co., 356 U. S. 677, 681 (1958); 4 J. Moore, Federal Practice ¶26.61 [2], p. 26-263, (1976). And we see no reason why the Government could not, in an appropriate case, obtain a protective order under Rule 26 (c)(7).
To be sure, the House and Senate Reports do not provide the same unequivocal support for an Exemption 5 privilege for “confidential . . . commercial information” as they do for the executive and attorney work product privileges. Nevertheless, we think that the House Report, when read in conjunction with the hearings conducted by the relevant House and Senate Committees, can fairly be read as authorizing at least a limited form of Exemption 5 protection for “confidential . . . commercial information.”
In hearings that preceded the enactment of the FOIA, various agencies complained that the original Senate bill, which did not include the present Exemption 5, failed to provide sufficient protection for confidential commercial information and other information about Government business transactions. For example, the Department of Defense expressed concern that information relating to the purchase or sale of real estate, materials, or other property might not be protected, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 418 (1965); the General Services Administration stressed the need to avoid early disclosure of information that might prejudice the ¡Government's bargaining position in business transactions, ¡id., at 480; and the Post Office Department urged that in matters such as the negotiation of contracts, it should stand on the same footing as a private party. Hearings on H. It. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 224 (1965). Included among those expressing such criticism was the Acting General Counsel of the Department of the Treasury, who specifically referred to the Department’s concern about premature disclosure of information concerning Federal Reserve open market operations. Id., at 49.
After the hearings were completed, Congress amended the provision that ultimately became Exemption 5 to provide for nondisclosure of materials that “would not be available by law to a party ... in litigation with the agency.” The House Report, echoing the Report on the original Senate bill, S. Rep. No. 1219, 88th Cong., 2d Sess., 6-7, 13-14 (1964), explained that one purpose of the revised Exemption 5 was to protect internal agency deliberations and thereby ensure “full and frank exchange of opinions” within an agency. H. R. Rep. No. 1497, supra n. 15, at 10. It then added, significantly:
“Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy” (emphasis added). Ibid.
In light of the complaints registered by the agencies about premature disclosure of information relating to Government contracts, we think it is reasonable to infer that the House Report, in referring to “information . . . generated '[in] the process of awarding a contract,” specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts.
This conclusion is reinforced by consideration of the differences between commercial information generated in the process of awarding a contract, and the type of material protected by executive privilege. The purpose of the privilege for predecisional deliberations is to insure that a decision-maker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice, including analysis, reports, and expression of opinion within the agency. The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. Consequently, the rationale for protecting such information expires as soon as the contract is awarded or the offer withdrawn.
We are further convinced that recognition of an Exemption 5 privilege for confidential commercial information generated in the process of awarding a contract would not substantially duplicate any other FOIA exemption. The closest possibility is Exemption 4, which applies to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. § 552 (b)(4). Exemption 4, however, is limited to information “obtained from a person,” that is, to information obtained outside the Government. See 5 U. S. C. §551 (2). The privilege for confidential information about Government contracts recognized by the House Report, in contrast, is necessarily confined to information generated by the Federal Government itself.
We accordingly conclude that Exemption 5 incorporates a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract.
c
The only remaining questions are whether the Domestic Policy Directives constitute confidential commercial information of the sort given qualified protection by Exemption 5, and, if so, whether they would in fact be privileged in civil discovery. Although the analogy is not exact, we think that the Domestic Policy Directives and associated tolerance ranges are substantially similar to confidential commercial information generated in the process of awarding a contract. During the month that the Directives provide guidance to the Account Manager, they are surely confidential, and the information is commercial in nature because it relates to the buying and selling of securities on the open market. Moreover, the Directive and associated tolerance ranges are generated in the course of providing ongoing direction to the Account Manager in the execution of large-scale transactions in Government securities; they are, in this sense, the Government’s buy-sell order to its broker.
Although the Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they are protected against immediate disclosure in the civil discovery process. As with most evi-dentiary and discovery privileges recognized by law, “there is no absolute privilege for trade secrets and similar confidential information.” 8 C. Wright & A. Miller, Federal Practice and Procedure § 2043, p. 300 (1970); 4 J. Moore, Federal Practice ¶ 26.60 [4], p. 26-242 (1970). Cf. United States v. Nixon, 418 U. S. 683, 705-707 (1974). “The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 444; 4 J. Moore, Federal Practice ¶ 26.75, pp. 26-540 to 26-543 (1970). We are mindful that “the discovery rules can only be applied under Exemption 5 by way of rough analogies,” EPA v. Mink, 410 U. S., at 86, and, in particular, that the individual FOIA applicant’s need for information is not to be taken into account in determining whether materials are exempt under Exemption 5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149 n. 16. Nevertheless, the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure, should continue to serve as relevant criteria in determining the applicability of this Exemption 5 privilege. Accordingly, we think that if the Domestic Policy Directives contain sensitive information not otherwise available, and if immediate release of these Directives would significantly harm the Government’s monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5.
Here, the District Court made no fiñdings about the impact of immediate disclosure of the Domestic Policy Directives and tolerance ranges. The Committee submitted unanswered affidavits purporting to show that prompt disclosure of this information would interfere with the orderly execution of the FOMC’s monetary policies, and would give unfair advantage to large investors. In this Court, the EOMC has sought to supplement those affidavits by arguing, for the first time, that immediate release of the Domestic Policy Directives would jeopardize the Government’s commercial interests by imposing substantial additional borrowing costs on the United States Treasury. Respondent has sought, again for the first time, to show that there is substantial disagreement among experts about the impact of prompt disclosure of the Directives, and that some experts actually believe prompt disclosure would have a beneficial effect. Brief for Respondent 33-46.
Under the circumstances, we do not consider whether, or to what extent, the Domestic Policy Directives would in fact be afforded protection in civil discovery. That determination must await the development of a proper record. If the District Court on remand concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Domestic Policy Directives can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U. S., at 91.
The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The regulation provides:
Ҥ271.5 Deferment of availability of certain information.
“(a) Deferred availability of information. In some instances, certain types of information of the Committee are not published in the Federal Register or made available for public inspection or copying until after such period of time as the Committee may determine to be reasonably necessary to avoid the effects described in paragraph (b) of this section or as may otherwise be necessary to prevent impairment of the effective discharge of the Committee’s statutory responsibilities.
“(b) Reasons for deferment of availability. Publication of, or access to, certain information of the Committee may be deferred because earlier disclosure of such information would:
“(1) Interfere with the orderly execution of policies adopted by the Committee in the performance of its statutory functions;
“(2) Permit speculators and others to gain unfair profits or to obtain advantages by speculative trading in securities, foreign exchange, or otherwise;
“(3) Result in unnecessary or unwarranted disturbances in the securities market;
“(4) Make open market operations more costly;
“(5) Interfere with the orderly execution of the objectives or policies of other Government agencies concerned with domestic or foreign economic or fiscal matters; or
“(6) Interfere with, or impair the effectiveness of, financial transactions with foreign banks, bankers, or countries that may influence the flow of gold and of dollar balances to or from foreign countries.”
App. 46, 55. See generally Board of Governors of the Federal Reserve System, The Federal Reserve System, Purposes and Functions 14r-15, 49-67 (1974).
Other major economic tools employed by the Federal Reserve System include the setting of reserve requirements for commercial banks that are members of the Federal Reserve System, and the determination of the discount rate for borrowing by member banks. App. 46, 56.
Under the Federal Reserve Board’s Regulation D, 12 CFR Pt. 204 (1978), member banks are required to hold reserves in a prescribed ratio to deposits. Member banks typically respond to an increase in available reserves (or to a reduction in the required reserve-to-deposit ratio) by either making new loans and investments, or by selling their excess reserves to other member banks that can take advantage of these reserves because of particular lending or investment opportunities. App. 47.
The Committee is composed of the seven members of the Board of Governors of the Federal Reserve System, and five representatives of the Federal Reserve banks. 12 U. S. C. § 263 (a).
The tolerance ranges for the growth of the money supply are stated in terms of “Mi,” defined as currency in circulation plus demand deposits held by the public in commercial banks, and “M2,” defined as “M-l” plus time and savings deposits, other than large negotiable certificates of deposit, held in commercial banks. App. 81. The federal funds rate is the rate at which commercial banks are willing to lend or borrow immediately available reserves on an overnight basis. Id., at 78. As such, it is particularly sensitive to changes in the availability of reserves. The Committee’s use of these concepts, expressed in terms of tolerance ranges, is illustrated by the operative language of the Domestic Policy Directive adopted at the October 17, 1978, meeting of the FOMC:
“Early in the period before the next regular meeting, System open market operations shall be directed at attaining a weekly-average Federal funds rate slightly above the current level. Subsequently, operations shall be directed at maintaining the weekly-average Federal funds rate within the range of 8% to 9% per cent. In deciding on the specific objective for the Federal funds rate the Manager shall be guided mainly by a range of tolerance for growth in M-2 over the October-November period of 5% to 9% per cent, provided that growth of M-1 over that period does not exceed an annual rate of 6% per cent.” 64 Fed. Res. Bull. 947, 956, (1978).
Prior to February 1977, the Domestic Policy Directives did not include specific tolerance ranges for the growth in money supply and the federal funds rate. Instead, the operative language of the Directives contained such general phrases as “the Committee seeks to achieve some easing in bank reserve and money market conditions, provided that the monetary aggregates do not appear to be growing excessively”; “the Committee seeks to achieve bank reserve and money market conditions consistent with more rapid growth in monetary aggregates over the months ahead than has occurred in recent months”; or “the Committee seeks to achieve bank reserve and money market conditions consistent with moderate growth in monetary aggregates over the months ahead.” App. 82-83. The record' does not indicate in what manner the tolerance ranges were communicated to the Account Manager during this period.
After February 1977, the operative language of the Directives began to incorporate specific tolerance ranges of the form set forth in n. 5, supra. The record contains no explanation as to why the FOMC began including the tolerance ranges in the Directives at that time. Nor is there any explanation in the Record of Policy Actions issued after the February meeting. 63 Fed. Res. Bull. 380-394 -(1977).
Prior to 1967, the Records of Policy Actions were published only in the Federal Reserve Board’s Annual Report to Congress. See Committee’s Press Release, Mar. 24, 1975, App. 59; 413 F. Supp. 494, 504 (DC 1976). In response to the passage of the Freedom of Information Act in that year, the FOMC instituted a policy of releasing the Record of Policy Actions, including the Domestic Policy Directive, 90 days after the Directive was adopted by the Commission. Ibid. On March 21, 1975, just before the instant lawsuit was filed, the period of delay was shortened to 45 days. 40 Fed. Reg. 13204 (1975). The present policy was adopted on May 24, 1976. 41 Fed. Reg. 22261 (1976).
Because the Record of Policy Actions is not completed and formally adopted until the meeting after the meeting to which it applies, respondent apparently conceded in the Court of Appeals that the Committee’s present guidelines for release of that document are consistent with the FOIA. See 184 U. S. App. D. C. 203, 207, 565 F. 2d 778, 782 (1977).
Respondent also requested the Memoranda of Discussion for the January 1975 and February 1975 meetings. App. 13. Memoranda of Discussion were detailed minutes of the statements made and actions taken at the Committee’s meetings. The District Court held that under 5 U. S. C. § 552 (b) (5) respondent was entitled to those parts of the Memoranda that contained “reasonably segregable” statements of fact, 413 F. Supp., at 506, and the parties subsequently agreed on the factual portions of the Memoranda to be produced. This ruling was not challenged in the Court of Appeals, see 184 U. S. App. D. C., at 207 n. 8, 565 F. 2d, at 782 n. 8, and is not in issue here.
In May 1976, the FOMC voted to discontinue the preparation of Memoranda of Discussion, 62 Fed. Res. Bull. 581, 590-591 (1976).
In accordance with the then-current policy of the FOMC, see n. 7, supra, the regulation specifically provided that “the Committee’s current economic policy directive adopted at each meeting of the Committee is pubished in the Federal Register approximately 90 days after the date of its adoption.” 12 CFR § 271.5 (1975).
Section 552 provides:
“(a) Each agency shall make available to the public information as follows:
“(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
“ (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.”
The District Court also held that policy actions of the FOMC other than the Domestic Policy Directive had to be indexed and promptly disclosed pursuant to 5 U. S. C. § 552 (a) (B).
Title 5 U. S. C. § 552 also provides:
“ (b) This section does not apply to matters that are—
“(2) related solely to the internal personnel rules and practices of an agency;
“(5) 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.”
The third exemption specified by 5 U. S. C. § 552 (b) covers matters that are
“(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, of (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
See EPA v. Mink, 410 U. S. 73 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974); NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975); Renegotiation Board v. Grumman Aircraft Corp., 421 U. S. 168 (1975); FAA Administrator v. Robertson, 422 U. S. 255 (1975); Department of Air Force v. Rose, 425 U. S. 352 (1976); NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978); Chrysler Corp. v. Brown, 441 U. S. 281 (1979).
Although the FOMC argued in the Court of Appeals that the Domestic Policy Directives were protected by executive privilege, it has not presented that argument here. Brief for Petitioner 30 n. 22.
See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (referring to “advice from staff assistants and the exchange of ideas among agency personnel”); S. Rep. No. 813, 89th Cong., 1st Sess., 2 (1965) (noting that Exemption 5 includes “the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties”).
Exemption 1 applies to classified national security information; Exemption 4 applies to trade secrets and privileged commercial or financial information obtained from a person; Exemption 6 covers personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; and Exemption 7 shields certain types of investigatory records gathered for law enforcement purposes. 5 U. S. C. §§ 552 (b)(1), (4), (6), (7).
The two other privileges advanced by the FOMC are a privilege for “official government information” whose disclosure would be harmful to the public interest, see Machín v. Zuckert, 114 U. S. App. D. C. 335, 338, 316 F. 2d 336, 339, cert. denied, 375 U. S. 896 (1963), and a privilege based on Fed. Rule Civ. Proc. 26 (c)(2), which permits a court to order that discovery "may be had only on specified terms and conditions, including a designation of the time or place.” In light of our disposition of this case, we do not consider whether either asserted privilege is incorporated in Exemption 5.
The full text reads:
“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Fed. Rule Civ. Proc. 26 (c)(7).
See Menominee Engineering Corp. v. United States, 20 Fed. Rules Serv. 2d 894 (Ct. Cl. 1975); Consolidated Box Co., Inc. v. United States, 18 Fed. Rules Serv. 2d 115 (Ct. Cl. 1973) (involving applications for protective orders under the identically worded Rule 71 (f) of the Court of Claims).
S. 1666, introduced in the 88th Congress in 1963, included a fifth-numbered exemption for “intra-agency or inter-agency memorandums or letters dealing solely with matters of law or policy.” It was reported favorably by the Senate Judiciary Committee, S. Rep. No. 1219, 88th Cong., 2d Sess. (1964), and passed the Senate, but reached the House too late for action. Department of Air Force v. Rose, 425 U. S., at 362-363; Renegotiation Board v. Bannercraft Clothing Co., 415 U. S., at 18 n. 18. Substantially the same measure was reintroduced in the 89th Congress as S. 1160 and H. R. 5012. Freedom of Information Source Book, Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, S. Doc. No. 93-82, p. 8 (1974). After additional hearings in the House in March and April 1965, Hearings on H. R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess. (1965), and in the Senate in May 1965, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965), the Senate Judiciary Committee struck the words “dealing solely with matters of law or policy,” and inserted in lieu thereof “which would not be available by law to a private party in litigation with the agency.” S. Rep. No. 813, supra n. 15, at 1. The bill, as thus amended, passed the Senate on October 13, 1965. It was reported favorably by the House Committee on Government Operations, H. R. Rep. No. 1497, supra n. 15, passed the House on June 20, 1966, and was signed by President Johnson on July 4, 1966.
Acting General Counsel Smith stated:
“I might interpolate at this point another example or two which I do not have in my statement. Information as to purchases by the Federal Reserve System, for example, of Government securities in the market, if prematurely disclosed could have, we feel5 serious effects on the orderly handling of the Government’s financing requirements so that in all of these things there is a question of timing. There are many things on which full disclosure is made in reports which are published or filed with the Congress with a timelag, there is no basic secrecy about these matters, and yet the premature release of these could be very damaging to the general interest.”
Although the Senate Report does not contain a similar reference to information generated in the process of awarding a contract, there is no inconsistency in this respect between the House Report and the Senate Report. Cf. Department of Air Force v. Rose, 425 U. S., at 363-367.
Our conclusion that the Domestic Policy Directives are at least potentially eligible for protection under Exemption 5 does not conflict with the District Court’s finding that the Directives are “statements of general policy . . . formulated and adopted by the agency,” which must be “currently published] ” in the Federal Register pursuant to 5 U. S. C. §552 (a)(1). 413 F. Supp., at 504^505. It is true that in NLRB v. Sears, Roebuck & Co., we noted that there is an obvious relationship between Exemption 5 and the affirmative portion of the FOIA which requires the prompt disclosure and indexing of final opinions and statements of policy that have been adopted by the agency. 5 U. S. C. § 552 (a) (2). We held that, with respect to final opinions, Exemption 5 can never apply; with respect to other documents covered by 5 U. S. C. § 552 (a) (2), we said that we would be “reluctant” to hold that the Exemption 5 privilege would ever apply. 421 U. S., at 153-154. These observations, however, were made in the course of a discussion of the privilege for predecisional communications. It should be obvious that the kind of mutually exclusive relationship between final opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges. In this respect, we note that Sears itself held that a memorandum subject to the affirmative disclosure requirement of § 552 (a) (2) was nevertheless shielded from disclosure under Exemption 5 because it contained a privileged attorney’s work product. 421 U. S., at 160.
Actually, orders forbidding any disclosure of trade secrets or confidential commercial information are rare. More commonly, the trial court will enter a protective order restricting disclosure to counsel, see, e. g., Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. Supp. 234 (SDNY 1977); Xerox Corp. v. International Business Machines Corp., 64 F. R. D. 367 (SDNY 1974); Scovill Mfg. Co. v. Sunbeam Corp., 61 F. R. D. 598 (Del. 1973); or to the parties, see, e. g., Borden Co. v. Sylk, 289 F. Supp. 847 (ED Pa. 1968); United States v. Article of Drug Consisting of 30 Individually Cartoned Jars, More or Less, 43 F. R. D. 181 (Del. 1967); United States v. Standard Oil Co. (New Jersey), 23 F. R. D. 1 (SDNY 1958). We think the Domestic Policy Directives should be considered “privileged,” for Exemption 5 purposes, if any type of order would be appropriate forbidding disclosure of the confidential material therein to the general public.
In its brief, the Committee argues that the “announcement effect” produced by immediate disclosure of the Directives and tolerance ranges would cause sharper fluctuations in the interest rates on Government securities traded by the System Open Market Account. As a result of these fluctuations, the risk of dealing in or purchasing Government securities would increase. To compensate for this larger risk, dealers and purchasers would demand a higher yield on Government securities. Given the huge amount of borrowing by the Federal Government each year, even a small change in yield on Government securities would represent a substantial cost to the Government. The FOMC estimates that the cost might run as high as $300 million annually. Brief for Petitioner 29.
See nn. 5 and 6, 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.
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What is the agency involved in the administrative action?
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"Office of Price Administration, or Price Administrator",
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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",
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"Department or Secretary of the Treasury",
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"United States Forest Service",
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"State Agency",
"Unidentifiable",
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"NO Admin Action",
"Processing Tax Board of Review"
] |
[
54
] |
SECRETARY OF AGRICULTURE v. UNITED STATES et al.
NO. 480.
Argued April 27-28, 1954.
Decided June 7, 1954.
Neil Brooks argued the cause and filed a brief for appellant in No. 480.
Maxwell W. Wells argued the cause for appellants in No. 481. On the brief were Mr. Wells for the Florida Citrus Commission et al., John F. Donelan and Preston B. Kavanagh for the California Citrus League et al., Sidney Goldstein, Francis A. Mulhern, Wilbur LaRoe, Jr., Arthur L. Winn, Jr. and Samuel H. Moerman for the Port of New York Authority, James J. Thornton and G. Gary Sousa for the City of' New York, Earl J. Gratz and David B. Fitzgerald for the Philadelphia Terminals Marketing Association et al., and Wilmer A. Hill for the United Fresh Fruit & Vegetable Association et ah, appellants in No. 481.
Edward M. Reidy argued the cause for the Interstate Commerce Commission, appellee. With him on the brief was Leo H. Pou.
Hugh B. Cox argued the cause for the Baltimore & Ohio Railroad Co. et al., appellees. With him on the brief were Francis L. Brown, A. P. Donadío, Joseph F. Eshelman and Charles A. Horsky.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Five railroads which transport fruits and vegetables into New York and Philadelphia filed with the Interstate Commerce Commission schedules of charges for unloading services performed by them at these points. Various shippers and shipper organizations, State Commissions, and other interested parties, protested the proposed charges. The Secretary of Agriculture, acting on behalf of the affected agricultural interests, intervened. The Commission in due course approved the charges, 272 I. C. C. 648. On further consideration, the approved charges were cut roughly in half, 286 I. C. C. 119. Complaints against even these reduced charges were then filed with the Commission, but these were dismissed by it on the basis of its prior decision, and this litigation to enjoin and set aside the Commission’s order followed. 28 U. S. C. §§ 1336, 2325. Numerous parties again intervened — the shipper and consumer interests on the side of the protestants, and the carriers involved on the side of the Commission. The three-judge district court, with Judge De Vane dissenting, upheld the Commission, 114 F. Supp. 420. Direct appeals under 28 U. S. C. § 1253 brought the cases here. 347 U. S. 902.
The general rule is that it is the responsibility of the carrier, as part of the transportation service covered by the line-haul rate, to “deliver” the goods by placing them in such a position as to make them accessible to the consignee. Normally unloading is not a part of the delivery and is performed by the consignee. In accordance with these principles, the railroad spots the car on the team track in its yards in .the destination city, and the consignee is given appropriate free time in which to unload. In the case of private sidings, the railroad’s job ends when it has placed the car on the consignee’s siding.
These are not inflexible rules. The law recognizes and reflects the practicalities of transportation by rail and the diversities to which they give rise. Prior to 1925, the railroads, in order to meet the demands of competitive transportation industries, performed the unloading without additional charge at specified points. In the case of Loading and Unloading Carload Freight, 101 I. C. C. 394, the Commission approved tariffs by the railroads abolishing free unloading at most of these points, and authorized the carriers to make an additional charge thereafter for performing the unloading at the consignee’s request. By the time the present proceeding was instituted, Philadelphia and New York were the only points where the carriers were still performing unloading without any charge in addition to the line-haul rate.
The exception of these two cities was no aberration. It is the result of special conditions which exist in New York and Philadelphia. The significance of these special conditions is at the heart of this controversy.
No railroad carrying fruits or vegetables into New York, except the New York Central, has a direct line into Manhattan. The roads transporting the bulk of the produce into New York, the Pennsylvania and Erie Railroads, terminate their lines on the Jersey side of the Hudson River. There, the cars are put on barges and floated across the river, either to be switched onto the carriers’ Manhattan team tracks or to be unloaded directly at the Duane Street piers. These pier terminals are leased by the City of New York to the various carriers and are strategically located adjacent to Washington Market, New York’s largest fruit and vegetable market. At the team tracks, according to the usual practice, the consignees do their own unloading. However, because of the inadequacy of these facilities and because of the more advantageous location of the pier terminals, approximately 75% of the fruits and vegetables coming into New York are directed to the pier stations.
The procedure at the pier stations is as follows. When the floats are docked at the appropriate pier — this usually happens at night — work crews of the railroad begin to unload the cars and place the contents on the pier floor. The consignees are notified in advance of the arrival of their goods, and at specified times their trucks can come onto the pier floor to pick up their merchandise. Sales and auction facilities are also provided by the railroads, and some of the produce is immediately disposed of in this manner. In no event are the consignees allowed to unload the cars themselves; indeed the Commission has found that this would be “impracticable.”
At Philadelphia, the situation is somewhat different. Here there is no problem of water transportation, and the team track facilities where consignees can do their own unloading are not shown to be inadequate. However, in 1927, the Pennsylvania and the Baltimore & Ohio built competitive produce terminals, and, because of the special facilities available there, 95% of the fruits and vegetables consigned to Philadelphia are now received at these stations. Each of these terminals has two platforms, one for produce intended for private sale, one for produce intended for auction sale. The unloading operations here are considerably simpler and cheaper than at the New York piers; but, as in New York, all the unloading here is performed by the carriers.
It was in the light of this background that the carriers, faced by the sharply rising costs of the unloading operation, sought the Commission’s approval for special unloading charges at these two cities. Such charges, the carriers urged, would serve to bring New York and Philadelphia into line with the generally prevailing practice— that consignees must either do their own unloading or, if they want the carrier to do it for them, they must be prepared to pay for it.
The protestants, appellants here, do not challenge these general principles. It is their contention rather that at these particular points the unloading is an essential part of delivery in that without it the goods are not accessible to the consignees; that therefore the line-haul rate encompasses the unloading; and, finally, that a service covered by the line-haul rate cannot be separately compensated unless the carriers show that the line-haul rate is inadequate to cover it.
These are claims that must be met, and the real question before us is whether the Commission has met them with an adequacy that satisfies the requirements of judicial review, limited though its scope may be. With respect to New York, the Commission’s findings clearly show that since the consignees were not permitted to do their own unloading, the goods were not accessible to them until unloaded by the carriers. Cf. United States v. United States Smelting Co., 339 U. S. 186. Moreover, prior cases of the Commission dealing with the New York terminal have indicated that the unloading cost there is an integral part of the through rate. See Fruits and Vegetables to Duane St., N. Y., 66 I. C. C. 135, 139; Erie R. Co. v. Alabama & V. R. Co., 98 I. C. C. 268, 272, 280-281. Yet the court below attributed to the Commission findings that “the line haul service terminated when the cars reached the pier station,” and that “unloading is an additional service, wholly distinct from delivery.” 114 F. Supp., at 424. But the findings of the Commission, taken as a whole, do not support these statements.
Prior cases where the Commission had sustained the imposition of unloading charges do not serve as useful precedents here. E. g., Loading and Unloading Carload Freight, supra. In those cases, there was an absence of circumstances to justify deviation from the normal rule that unloading is not part of delivery, and therefore the Commission was warranted in concluding that the carrier might impose a separate charge for the unloading where the consignee requested it. Here, however, because of the peculiar conditions prevailing at the New York piers, the unloading is an essential part of the delivery and hence is necessarily encompassed in the line haul. Instead of treating this situation on its own merits, the Commission appears to have relied too much on prior decisions dealing with the problem of unloading charges in different contexts.
While the normal course for the Commission in dealing with a situation like the present would have been to re-examine the sufficiency of the line-haul rate, or to initiate a new division of the existing line-haul rate, the Commission was not precluded from following a procedure fairly adapted to the unique circumstances of this case. The Commission may not unnaturally have felt that it would be undesirable to revise the line-haul rate with its inevitable effect on the entire tariff structure, in order to deal appropriately with the special, localized situation presented at the New York piers. Or the Commission might well have thought that a redivision of the line-haul rate would not be appropriate for the substantial additional cost here involved.
It is not necessary now to consider the Commission’s power, under appropriate findings, to approve such unloading charges without pursuing one of these courses. In dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions. But we do say that while the Commission has adumbrated the reasons that commended these charges to its approval, the Commission has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision. We do not know whether the Commission has disregarded its own findings that the unloading here is a prerequisite to delivery of the goods; or whether, in order to meet an unusual situation, the Commission has modified the normal doctrine that delivery is the responsibility of the carrier, see New Eng land Coal & Coke Co. v. Norfolk & W. R. Co., 33 I. C. C. 276; or whether the Commission, for a reason not made explicit, has here deemed irrelevant the prevailing rule of its prior cases that a service necessarily encompassed by the line-haul rate cannot be separately restated without examining the sufficiency of the line-haul rate to cover it. See, e. g., Terminal Charges at Pacific Coast Ports, 255 I. C. C. 673; Unloading Lumber to New York Harbor, 256 I. C. C. 463. In short, the Commission has not explained its decision “with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency. Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74, 86; Florida v. United States, 282 U. S. 194, 215. We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 510-511.
Appellants also contend that to permit separate charges to be imposed for the unloading of fruits and vegetables, while not imposing similar charges on other commodities unloaded at these points, violates §§ 2 and 3 of the Interstate Commerce Act. Since we have already concluded that the case should be remanded to the Commission, the Commission on remand should also make more explicit findings as to the differences and similarities in the treatment accorded other commodities unloaded at these same points. If such commodities are unloaded “under substantially similar circumstances,” the Act requires that the charges imposed be the same. If, on the other hand, there are important differences in treatment justifying the imposition of different unloading charges or of no unloading charges at all, the Commission ought to find no difficulty in defining the differences.
Similarly, we deem it desirable that upon reconsideration of this controversy, the Commission should also be more explicit in stating the reasons that led it to assimilate, so far as these unloading charges are concerned, the situation at Philadelphia to that at New York.
The judgment is vacated, and the cases are ordered to be remanded to the Commission for further proceedings not inconsistent with this opinion.
It is so ordered.
The Chief Justice, Mr. Justice Black, and Mr. Justice Douglas would hold the Commission’s order invalid and enjoin its enforcement on the ground that the Commission failed to determine the reasonableness of the railroads’ line-haul rates on the basis of increased unloading rates allowed by the Commission.
Mr. Justice Jackson took no part in the consideration or decision of these cases.
Under 7 U. S. C. § 1291, the Secretary of Agriculture is authorized to make complaint to the Commission as well as to intervene before the Commission and resort to original and appellate judicial remedies in cases affecting the transportation of farm products.
The New York Central and the Baltimore & Ohio Railroads also perform such floatage.
The unloading practices vary somewhat from carrier to carrier. For example, the Erie has a special contractor do its unloading; the Pennsylvania uses automatic equipment instead of manual labor.
272 I. C. C., at 655. In its later report, the Commission also made the somewhat inconsistent finding that “at the original hearing the railroads offered to permit consignees to unload their freight from the car float.” 286 I. C. C., at 125. But when the California Fruit Growers Exchange, after the Commission’s initial decision, requested the railroads to “permit the consignees, as a whole, to perform the unloading at the piers” the railroads refused.
The B. & 0. terminal is used jointly by it and the Reading Railroad.
At Philadelphia, too, the consignees requested the carriers to be permitted to do their own unloading, or to let the auction company which was selling the fruit on their account do the unloading. The Pennsylvania refused, on the ground that the “terminal was a public facility and that the granting of such permission might give rise to a dual method of unloading, one to be conducted by the fruit and vegetable trade, and the other by the railroad for the general public.” 286 I.. C. C., at 137. In this connection, it should be noted that the Commission made no findings that it would be “impracticable” for the consignees to do the unloading at the Philadelphia produce terminals.
272 I. C. C. 648, 654-655: “Delivery to the consignee is not effected until after the cars are unloaded and the lading placed at a convenient location on the pier floor.” 286 I. C. C. 119, 125: “The pier floor is the first place where, after the freight has been unloaded, delivery can be taken.” 286 I. C. C. 119, 127: “After the vegetables are placed on the pier platform they are accessible to the consignee . . . .” 286 I. C. C. 119, 129: The proposed charge, in addition to the line-haul rate, is “for making delivery at New York piers.”
The relation between the unloading charges and the line haul was also adverted to in the Commission’s earlier report, 272 I. C. C., at 662, but not with sufficient clarity.
Under 49 U. S. C. § 15 (6), the Commission may authorize a new division of the rate among the participating carriers if it finds the present division “unjust, unreasonable, [or] inequitable.” In such a proceeding special terminal costs can be taken into account prior to allocating the rate among the line-haul carriers. See Erie B. Co. v. Alabama & V. R. Co., 98 I. C. C. 268, 280; Atlantic Coast Line R. Co. v. Arcade & A. R. Corp., 194 I. C. C. 729, 745-747; Official-Southern Divisions, 287 I. C. C. 497, 538-543; Official-Southwestern Divisions, 287 I. C. C. 553, 584-593.
As the Commission stated:
“An unusual situation, arising primarily from the topography of the area, exists on lower Manhattan as a result of which the present method of handling shipments through the pier stations is of benefit to both shippers (including consignees) and carriers. It is also helpful in the avoidance of traffic congestion. The acquisition of land in that area for additional track facilities would be impracticable if not impossible. . . . Physical conditions in and around New York which limit available space for the establishment and operation of railroad terminal facilities is a general community problem and obviously there should be some sharing between the carriers and their patrons of the burden of overcoming the existing difficulties if this congested area is to be served by railroad transportation.” 286 I. C. C., at 139-140.
The Commission also made reference to figures introduced by the carriers showing the considerable disparity between the cost per car of making team track delivery and cost per car of making terminal delivery, including unloading (286 I. C. C., at 131):
New York
Manhattan Pier
Team Tracks Terminals
Erie. $45.44 $83.87
Pennsylvania . 73.57 122.73
B. & 0 . 70.46 119.86
Philadelphia
Produce
Team Tracks Terminals
Pennsylvania . $39.64 $109.36
B. & 0 . 27.66 75.94
49 U. S. C. § 2 prohibits a carrier from charging or receiving “a greater or less compensation for any service rendered . . . than it charges . . . any other person . . . [for] a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances . . . .”
Section 3 (1) makes it unlawful for any carrier to subject “any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .”
In its latest report, the Commission stated that “as regards the movement of freight, other than fruits and vegetables . . . the operation is identical with the manner in which fruits and vegetables are car-floated and unloaded.” 286 I. C. C., at 123. Without more, the Commission then concluded that “the record does not warrant a finding of undue preference and prejudice or unjust discrimination in violation of sections 2 or 3 of the act.” 286 I. C. C., at 142.
|
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
] |
FIRST AGRICULTURAL NATIONAL BANK OF BERKSHIRE COUNTY v. STATE TAX COMMISSION.
No. 755.
Argued April 22, 1968.
Decided June 17, 1968.
Ronald H. Kessel argued the cause for appellant. With him on the brief were John P. Weitzei and Alex J. McFarland.
Alan J. Dimond, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Elliot L. Richardson, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Mark L. Cohen, Deputy Assistant Attorney General.
Briefs of amici curiae were filed by James Lawrence White for the Colorado Bankers Assn.; by William C. Sennett, Attorney General, John J. Gain, Assistant Attorney General, and Edward T. Baker and George W. Keitel, Deputy Attorneys General, for the Commonwealth of Pennsylvania; by Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Robert W. Bush, Assistant Attorney General, for the State of New York, and by James F. Bell and Brian C. Elmer for the National Association of Supervisors of State Banks.
Mr. Justice Black
delivered the opinion of the Court.
The principal issue raised by this case concerns the extent to which States may tax a national bank. The Supreme Judicial Court for the Commonwealth of Massachusetts held that appellant, First Agricultural National Bank of Berkshire County, was subject to Massachusetts’ recently enacted sales and use taxes on purchases for its own use of tangible personal property. For reasons to be stated we believe this decision was erroneous, and we reverse.
As long ago as 1819, in the historic case of M'Culloch v. Maryland, 4 Wheat. 316, this Court declared unconstitutional a state tax on the bank of the United States since, according to Chief Justice Marshall, this amounted to a “tax on the operation of an instrument employed by the government of the Union to carry its powers into execution.” 4 Wheat., at 436-437. A long line of subsequent decisions by this Court has firmly established the proposition that the States are without power, unless authorized by Congress, to tax federally created, or, as they are presently called, national, banks. Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 668; Des Moines Nat. Bank v. Fairweather, 263 U. S. 103, 106; First Nat. Bank v. Hartford, 273 U. S. 548, 550; Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 244. As recently as 1966, Mr. Justice Fortas, speaking for a unanimous Court, thought this ancient principle so well established that he used national banks as an example in holding the American Red Cross immune from state taxation:
“In those respects in which the Red Cross differs from the usual government agency — e. g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs — the Red Cross is like other institutions — e. g., national banks — whose status as tax-immune instrumentalities of the United States is beyond dispute.” Department of Employment v. United States, 385 U. S. 355, 360. (Emphasis added.)
The decision below recognized the strong precedents against taxation, but the Massachusetts Supreme Judicial Court was of the opinion that the status of national banks has been so changed by the establishment of the Federal Reserve System that they should no longer be considered nontaxable by the States as instrumentalities of the United States. Essentially the reasoning of the Supreme Judicial Court is that under present-day conditions and regulations there is no substantial difference between national banks and state banks; and the implication of this is, of course, that national banks lack any unique quality giving them the character of a federal instrumentality. Because of pertinent congressional legislation in the banking field, we find it unnecessary to reach the constitutional question of whether today national banks should be considered nontaxable as federal instrumentalities.
As will be seen, Congress has been far from reluctant to pass legislation in the banking field. There are important committees on banking and currency in both Houses which continually monitor banking affairs and propose new legislation when changes are felt to be needed. For purposes of this case, the most important piece of banking legislation is 12 U. S. C. § 548 which originated as part of the Act of June 3, 1864, c. 106, § 41, 13 Stat. 111. This section allows state taxation of national banks in any one of four specified ways in addition to taxes on their real estate. Before this legislation was originally enacted in 1864, there was sharp controversy in the Congress over the extent to which the States should be allowed to tax national banks. A vocal opponent to any state taxation of national banks was the powerful Senator Sumner of Massachusetts, who said:
“If you allow the State to interfere with the proposed system [of national banks] in any way, may they not embarrass it? Where shall they stop? Where will you run a line?
“Now, sir, every consideration, every argument which goes to sustain this great judgment [M‘Culloch v. Maryland] may be employed against the proposed concession to the States of the power to tax this national institution in any particular, whether directly or indirectly.” Cong. Globe, 38th Cong., 1st Sess., 1893-1894 (1864).
On the other side, proposed amendments expressly permitting much broader state and local taxation of national banks were introduced, debated, and rejected by the Congress. Among these was an amendment introduced in the House which would have made national banks subject, without exception, to all state and local general taxes on personal as well as real property:
“And the said associations or corporations shall severally be subject to State and municipal taxation upon their real and personal estate, the same as persons residing at their respective places of business are subject to such taxation by State laws.” Cong. Globe, 38th Cong., 1st Sess., 1392 (1864).
The result of this conflict was that the legislation, when finally passed, was a compromise which permitted state taxation of national banks in certain ways, but prohibited all other forms of state taxation. Senator Fessenden, Chairman of the Finance Committee, clearly defined the compromise that was being enacted:
“If the Senator reads this bill he will perceive that all the power of taxation upon the operations of the bank itself, all upon the circulation, all upon the deposits, all upon everything which can properly be made by a tax is reserved to the General Government ; that the States cannot touch it in any possible form; that they are limited and controlled; the simple right is given them to say that the property which their own citizens have invested in it shall contribute to State taxation precisely as other property.” Cong. Globe, 38th Cong., 1st Sess., 1895 (1864).
It seems clear to us from the legislative history that 12 U. S. C. § 548 was intended to prescribe the only ways in which the States can tax national banks. And this is certainly not a novel interpretation of the section, as shown by previous decisions of this Court. As early as 1899 the Court declared:
“This section [R. S. §5219, 12 U. S. C. § 548], then, of the Revised Statutes is the measure of the power of a State to tax national banks, their property or their franchises. By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void.” Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 669.
A more complete explanation of § 548 and its meaning appears in this Court’s opinion in Bank of California v. Richardson, 248 U. S. 476, where it was said:
“There is also no doubt from the section [R. S. § 5219, 12 U. S. C. § 548] that it was intended to comprehensively control the subject with which it dealt and thus to furnish the exclusive rule governing state taxation as to the federal agencies created as provided in the section. . . .
“Two provisions in apparent conflict were adopted. First, the absolute exclusion of power in the States to tax the banks, the national agencies created, so as to prevent all interference with their operations, the integrity of their assets, or the administrative governmental control over their affairs. Second, preservation of the taxing power of the several States so as to prevent any impairment thereof from arising from the existence of the national agencies created, to the end that the financial resources engaged in their development might not be withdrawn from the reach of state taxation ....
“The first aim was attained by the non-recognition of any power whatever in the States to tax the federal agencies, the banks, except as to real estate specially provided for, and, therefore, the exclusion of all such powers. The second was reached by a recognition of the fact that, considered from the point of view of ultimate and beneficial interest, every available asset possessed or enjoyed by the banks would be owned by their sto.ckholders and would be, therefore, reached by taxation of the stockholders as such. . . 248 U. S., at 483.
Finally, so there can be no doubt, consider these words of the Court in Des Moines Bank v. Fairweather, 263 U. S. 103:
“This section [R. S. § 5219, 12 U. S. C. § 548] shows, and the decisions under it hold, that what Congress intended was that national banks and their property should be free from taxation under state authority, other than taxes on their real property and on shares held by them in other national banks; and that all shares in such banks should be taxable to their owners, the stockholders, much as other personal property is taxable . . ." 263 U. S., at 107.
Thus, at least since the Owensboro decision, supra, in 1899, it has been abundantly clear that 12 U. S. C. § 548 marks the outer limit within which States can tax national banks. Now this Court is asked to change what legislative history and prior decisions have established is the precise meaning of an Act of Congress. This we cannot do. For, as we pointed out above, the banking field has traditionally been an area of particular congressional concern marked by legislation responsive to new problems. This can be illustrated by the history of § 548 alone. It was originally passed in 1864 because the 1863 Currency Act contained no provision for state taxation of national banks or their shares. In 1868 a technical amendment was made to the section. Then in 1923 a substantive amendment was made which, among other things, authorized the state taxation of national bank income and dividends. Another important part of this amendment was the declaration that “bonds, notes, or other evidences of indebtedness” in the hands of individual citizens were not to be considered “moneyed capital . . . coming into competition with the business of national banks.” Just two years before, this Court had ruled in Merchants’ Nat. Bank of Richmond v. Richmond, 256 U. S. 635 (1921), that such bonds and notes were moneyed capital in competition with national banks and thus covered by § 548. Senator Pepper, who spoke for the amendment, made clear that it was offered as a response to this Court’s decision which had placed an erroneous interpretation on the section. Then again in 1926, § 548 was amended to permit States to levy franchise and excise taxes on national banks measured by the entire income (including income from tax-exempt securities) of the banks. Finally, in 1950, a bill was sent to the Senate Committee on Banking and Currency which expressly permitted the levying of state sales and use taxes on national banks, but Congress did not pass it.
Because of § 548 and its legislative history, we are convinced that if a change is to be made in state taxation of national banks, it must come from the Congress, which has established the present limits.
With this primary question out of the way, there is one additional issue which must be resolved. The court below held, contrary to appellant’s contention, that the Massachusetts sales tax is not imposed upon the bank as a purchaser, but is a tax upon vendors who sell tangible personal property to the bank. Of course if this is true, the bank cannot object if a particular vendor decides to pass the burden of the tax on to it through an increased price. But if this is not true, and if the tax is on the bank as a purchaser, then, because it is a national bank, appellant is exempt under 12 U. S. C. § 548. Because the question here is whether the tax affects federal immunity, it is clear that for this limited purpose we are not bound by the state court’s characterization of the tax. See Society for Savings v. Bowers, 349 U. S. 143, 151, and the cases cited therein. And essentially the question for us is: On whom does the incidence of the tax fall? See Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, 121-122. Also see Carson v. Roane-Anderson Co., 342 U. S. 232.
It would appear to be indisputable that a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser. See Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95, 99. Subsection 3 of the Massachusetts sales tax provides:
“Reimbursement for the tax hereby imposed shall be paid by the purchaser to the vendor and each vendor in this commonwealth shall add to the sales price and shall collect from the purchaser the full amount of the tax imposed by this section, or an amount equal as nearly as possible or practicable to the average equivalent thereof; and such tax shall be a debt from the purchaser to the vendor, when so added to the sales price, and shall be recoverable at law in the same manner as other debts.” Acts and Resolves, 1966, c. 14, § 1, subsec. 3. (Emphasis added.)
This subsection reads to us as a clear requirement that the sales tax be passed on to the purchaser. And this interpretation is reinforced by subsection 23 which pro-Mbits as unlawful advertising the holding out by any vendor that he will assume or absorb the tax on any sale that he may make. We cannot accept the reasoning of the court below that simply because there is no sanction against a vendor who refuses to pass on the tax (assuming this is true), this means the tax is on the vendor. There can be no doubt from the clear wording of the statute that the Massachusetts Legislature intended that this sales tax be passed on to the purchaser. For our purposes, at least, that intent is controlling. And it seems clear to us that the force of the law, especially the language in subsection 3, is such that, regardless of sanctions, businessmen will attempt, in their everyday commercial affairs, to conform to its provisions as written.
For these reasons we reverse and hold that appellant is immune from both the Massachusetts use and sales taxes.
Reversed.
MR. Justice Fortas took no part in the consideration or decision of this case.
Acts and Resolves, 1966, e. 14, §§ 1 and 2.
The Federal Reserve Act of December 23, 1913, c. 6, 38 Stat. 251, 12 U. S. C. § 221 et seq.
This section provides in pertinent part:
"The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income ....
“1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others ....
“3. Nothing herein shall be construed to exempt the real property of associations from taxation in any State or in any subdivision thereof, to the same extent, according to its value, as other real property is taxed.”
Act of February 25, 1863, c. 58, 12 Stat. 665.
Act of February 10, 1868, c. 7, 15 Stat. 34.
Act of March. 4, 1923, c. 267, 42 Stat. 1499.
64 Cong. Rec. 1454 (1923).
Act of March 25, 1926, c. 88, 44 Stat. 223.
See Hearing on S. 2547 before the Subcommittee on Federal Reserve Matters of the Senate Committee on Banking and Currency, 81st Cong., 2d Sess., 9 (1950).
|
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 LABOR RELATIONS BOARD v. DANT et al., doing business as DANT & RUSSELL, LTD.
No. 97.
Argued December 15, 1952.
Decided February 2, 1953.
David P. Findling argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, George J. Bott and Mozart G. Ratner.
John T. Casey argued the cause for respondents.. With him on the brief were R. S. Smethurst and R. S. Haslam.
Arthur J. Goldberg and Thomas E. Harris filed a brief for the Congress of Industrial Organizations, as amicus curiae, urging reversal.
An amici curiae brief urging affirmance was filed by Rufus G. Poole for the Shell Chemical Corporation, Frank A. Constangy for the American Thread Company, J. Adrian Rosenburg for Jack Smith Beverages, Inc., Edward F. Conlin for Edwards Brothers, Inc., and Alexander E. Wilson, Jr. and O. Maynard Smith for the I. B. S. Manufacturing Company.
Mr. Justice Reed
delivered the opinion of the Court.
The National Labor Relations Board issued a complaint on March 27, 1950, following a charge filed August 3, 1949, by the International Woodworkers of America, Local 6-7, against respondent, Dant & Russell, Ltd. The charge was filed in accordance with the procedure of the Act, § 10 (b), and was based on violations of § 8 (a) (1) and (3). After the usual proceedings, the Board ordered respondent to take appropriate remedial action to correct the charged unfair labor practices. The International Woodworkers Union was and is an affiliate of the Congress of Industrial Organizations. There were on file with the Board at the time the charge was made the non-Communist affidavits executed by the officers of the local union as required by § 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, § 101. Affidavits executed by the officers of the C. I. 0. were filed with the Board prior to the issuance of the complaint but subsequent to the filing of the charge.
Section 9 (h) of the Act provided, at the time of the filing of the charge and the issuance of the complaint, that
“No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9 (e)(1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed ... by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate . . . that he is not a member of the Communist Party . . . .”
Respondent challenged the order on the ground that the Board could not issue a valid complaint based on a charge by a union if the charging union was not in compliance with § 9 (h) when the charge was filed in spite of the fact that at the time the complaint was issued, the union was in full compliance. In response to this challenge, the Board held that § 9 (h) required compliance “at the time of the issuance of the complaint, rather than at the time of the filing of the charge.” On petition for enforcement, the Court of Appeals for the Ninth Circuit set aside the order on the single ground that, under i 9 (h), “the Board was not empowered to entertain the charge or to issue the complaint or the order.” This followed, according to the court, because our decision in Labor Board v. Highland Park Mfg. Co., 341 U. S. 322, had construed § 9 (h) as prohibiting the issuance of any complaint by the Board unless the charging labor organization was in full compliance at the time its charge was filed.
We do not think the Highland Park opinion supports the Court of Appeals opinion in the present case. That former opinion, dealing with a charge that the employer violated § 8 (a) (5) by refusing to bargain with the bargaining agent of the employees, § 9 (a), held only that the C. I. 0. was a “national or international labor organization” within the meaning of § 9 (h). For that reason the C. I. 0. was required to file non-Communist affidavits as a prerequisite to the achievement of full compliance status by its affiliates. There, the C. I. O.’s compliance with § 9 (h) occurred almost a year after the complaint had issued. Since compliance subsequent to the issuance of the complaint also occurred in the other decisions relied on by the court below, language in them concerning the institution of proceedings was not directed at charges under § 8 (a) (3) and therefore there was no occasion for those courts to analyze § 9 (h) to determine its applicability to the present situation.
In respondent’s view, and in the view of the Courts of Appeals that have considered this issue, § 9 (h) precludes noncomplying unions from filing “valid” charges, and prohibits the Board from taking any action on a charge filed by a noncomplying union. We do not agree. Section 9 (h) prohibited the Board from doing three things. It specifically stated that “unless” the prerequisite affidavits had been filed, the Board shall not (1) make an “investigation” as authorized by § 9 (c) concerning the representation of employees; (2) entertain a “petition under section 9 (e)(1),” as it then stood; or (3) issue a “complaint . . . pursuant to a charge made by a labor organization under subsection (b) of section 10.” It does not by its terms preclude either the filing of a charge by a noncomplying labor organization or the entertainment of the charge by the Board.
The “unless” clause limits the issuance of a “complaint.” It has no specific reference to the phrase “pursuant to a charge made by a labor organization.” If Congress had intended to enact such a requirement for the filing of the charge, it would have been a simple matter to have stated that “no charge shall be entertained.” We think the purpose of the “pursuant” phrase is to make it clear that the “unless” limitation on the issuance of complaints is restricted to charges filed by such labor organizations and does not apply to charges filed by individuals, or by employers against such organizations. The phrase so construed follows the pattern of the first phrase in § 9 (h) which applies to proceedings by employees for collective bargaining representation “raised by a labor organization under subsection (c) of this section.” That there is no such qualifying clause in § 9 (h) for the union-shop election clause provision of §9 (e)(1), as it then read, is in accord with this construction, for all petitions for such an election would then have been filed on behalf of a union.
The requirements for non-Communist affidavits in § 9 (h) make it unlawful for the Board to investigate a petition by a labor organization under § 9 (c) for collective bargaining representation. Likewise the absence of such affidavits kept the Board from entertaining a petition for a union-shop election under §9 (e)(1). The careful specification in § 9 (h) that these affidavits must be filed before investigation, entertainment or complaint shows that § 9 (h) was not directed at the filing of a charge. Such particularity distinguishes between charge and complaint.
This has been the position of the Board from the enactment of the Labor Management Relations Act. Section 102.13 (b) (2) of the Board’s Rules and Regulations, effective August 18, 1948, defines compliance with § 9 (h) of the Act in terms of requiring the affidavits to be “executed contemporaneously with the charge (or petition).” This, however, is a direction as to what should be done and is not an interpretation by the Board of the requirement of § 9 (h). According to § 102.13 (b), the definition of compliance is set down, “For the purpose of the regulations in this part.” The Board had made it clear in § 101.3 of these Rules that there is a 10-day period of grace given to charging unions to achieve compliance status. The Board states it has followed a practice of extending this period upon a proper showing that the union is making a diligent effort to comply. An interpretation that the Act permits the filing of a charge prior to compliance with § 9 (h) is the same as that made by the Board in an opinion as early as December 16, 1948, In the Matter of Southern Fruit Distributors, 80 N. L. R. B. 1283. That opinion was handed down by the Board before our ruling in the Highland Park case and the position has been maintained, though the Board failed to set out fully in its opinions the reason for its conclusion.
Respondent urges that the above construction of § 9 (h) weakens the over-all purpose of the section in that it allows the Board to provide noncomplying labor organizations with substantial benefits by the filing of the charge without any assurance of compliance.
Phrased differently, the argument is that the benefits of the Act may not flow to a labor organization unless the non-Communist affidavits are on file. We agree with the argument, and believe that it is in accord with our interpretation of § 9 (h). Since the remedial processes of the Act to cure practices forbidden by § 8 (a)(3) can only be invoked by the issuance of a complaint, we do not see how a noncomplying labor organization can be said to benefit from the fact that it need not be in compliance at the date of the filing of the charge. The filing of a charge, which is subject to dismissal within 10 days under the Board’s rule, unless reasonable assurance is given by the filing union that it will comply with the affidavit requirement, is of no benefit to the charging union unless it is followed by the issuance of a complaint. Absent the issuance of a complaint, the filing of a charge is a useless act.
Another factor militating against the construction of the Act adopted below arises out of the fluid and elective nature of the official personnel of labor unions. As a practical matter, elections of new officers, changes in organizational structures, difficulties and delays in auditing financial statements or in obtaining information with respect to the numerous details which § 9 (f) and (g) requires, make compliance at a given moment, or continuous compliance, a matter of happenstance. Under § 9 (f) and (g) the filing of union financial and organizational reports is also a condition precedent to the issuance of complaints under subsection (b) of § 10 of the Act. It would seem that the construction of § 9 (h) urged by respondent would lead to a like construction of §9 (f) and (g). Such normal noncompliance at the time of filing a charge should not work to frustrate the Act’s purpose of remedying unfair labor practices committed against unions which do have leadership willing to comply.
Finally, respondent makes the argument that its position is supported by the legislative history of § 9 (h). But in the face of the specific words of the statute, the legislative history does not persuade us. It contains no discussion of the necessity of filing § 9 (h) affidavits before filing the charge. The purpose of § 9 (h) was to stop the use of the Labor Board by union leaders unwilling to be limited in government by the processes of reason. That purpose was sought through the elimination of such leaders rather than by making difficult the union’s compliance with the Act. The legislative comments are to be read in that light. Indeed those comments are so lacking in definitiveness on the point here at issue that both parties suggest that § 9 (h) itself best shows the purpose of Congress.
We hold that the sought-for congressional intent is found in the language of the Act; and as we have found it, the decision below must be reversed.
Reversed.
National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 29 U. S. C. § 158:
“ (a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided,
29 U. S. C. § 160:
“(b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board
Section 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 146, 29 U. S. C. (Supp. Ill) §159 (h).
The clause “no petition under section 9 (e) (1) shall be entertained” was deleted by Act of October 22, 1951, 65 Stat. 601.
195 F. 2d 299, 300. The Courts of Appeals for the Third and Fifth Circuits have taken similar positions where the affidavits were filed prior to the issuance of the complaints in Labor Board v. Nina Dye Works Co., Inc., 198 F. 2d 362; and Labor Board v. American Thread Co., 198 F. 2d 137, respectively. Each of these cases agreed with the analysis and conclusion of the Court of Appeals for the Ninth Circuit in the present case. See judgment of this Court reversing these decisions entered today, post, p. 924.
84 N. L. R. B. 744, 745.
Labor Board v. Postex Cotton Mills, 181 F. 2d 919; Labor Board v. J. I. Case Co., 189 F. 2d 599; Labor Board v. Clark Shoe Co., 189 F. 2d 731.
See S. 655, 83d Cong., 1st Sess., introduced by Senator Taft to amend § 9 (h) by forbidding entertainment by the Board of a charge under § 10 (b) unless the required affidavits are filed.
29 CFR §102.13:
“(b) For the purpose of the regulations in this part, compliance with section 9 (h) of the act means in the case of a national or international labor organization, that it has filed with the general counsel in Washington, D. C., and in the case of a local labor organization, that any national or international labor organization of which it is an affiliate or constituent body has filed with the general counsel in Washington, D. C., and that the labor organization has filed with the regional director in the region in which the proceeding is pending:
“(2) An affidavit by each officer referred to in subparagraph (1) of this paragraph, executed contemporaneously with the charge (or petition) or within the preceding 12-month period, stating that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.”
29 CFR §101.3:
“(b) In addition, the labor organization and every national or international labor organization of which it is an affiliate or constituent unit must have complied with section 9 (h) of the act as follows: At the time of filing -the charge (or petition) or prior thereto, or within a reasonable period not to exceed 10 days thereafter, the national or international labor organization shall have on file with the general counsel in Washington, D. C., and the local labor organization shall have on file with the regional director in the region in which the proceeding is pending, or in which it customarily files cases, a declaration by an authorized agent executed contemporaneously or within the preceding 12-month period listing the titles of all offices of the filing organization and stating the names of the incumbents, if any, in each such office and the date of expiration of each incumbent’s term, and an affidavit from each such officer, executed contemporaneously or within the preceding 12-month period, stating that he is not a member of the Communist Party or affiliated with such party and that he does not believe in, and is not a member of nor supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods.”
Respondent asserts that this practice, which was followed by the Board in this case, contravenes § 3 of the Administrative Procedure Act. That section requires every agency to publish in the Federal Register “statements of the general course and method by which its functions are channeled and determined, including the nature and requirement of all formal or informal procedures available,” and provides that “[n]o person shall in any manner be required to resort to organization or procedure not so published.” 5 U. S. C. § 1002 (a). The Board’s practice of extending the 10-day period on a proper showing by the labor organization can hardly be called a procedure to which respondent was required to resort.
In the Matter of H & H Manufacturing Co., Inc., 87 N. L. R. B. 1373. Compare a contrary position taken by the Third Circuit in Labor Board v. Nina Dye Works Co., Inc., 198 F. 2d 362.
N. L. R. B. Rules and Regulations and Statement of Procedure, 29 CFR §§ 101.3 and 102.13.
29 U. S. C. § 159:
“(f) ... No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b), of section 160 of this title, unless such labor organization and any national or international labor organization of which such labor organization is an affiliate or constituent unit (A) shall have prior thereto filed with the Secretary of Labor copies of its constitution and bylaws and a report, in such form as the Secretary may prescribe, showing— ....
“ (g) ... It shall be the obligation of all labor organizations to file annually with the Secretary of Labor, in such form as the Secretary of Labor may prescribe, reports bringing up to date the information required to be supplied in the initial filing by subsection (f) (A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f) (B) of this section. No labor organization shall be eligible for certification under this section as the representative of any employees, and no complaint shall issue under section 160 of this title with respect to a charge filed by a labor organization unless it can show that it and any national or international labor organization of which it is an affiliate or constituent unit has complied with its obligation under this subsection.”
The House Conference Report No. 510, 80th Cong., 1st Sess., p. 46, speaks of the filing of the required data as a condition to the labor organization’s receiving “benefits under the act.” To the same effect see the analysis of the Act at 93 Cong. Rec. 6534. Senator Taft, in analyzing the differences between the Senate bill and the Conference Report, stated: “Subsection 9 (h) of the conference agreement embodies the principle . . . which would have prevented a labor organization from being eligible for certification if any of its . . . officers were members or affiliates of the Communist Party .... There was a similar provision in the House bill .... In reconciling the two provisions the conferees took into account the fact that representation proceedings might be indefinitely delayed if the Board was required to investigate the character of all the local and national officers as well as the character of the officers of the parent body or federation. The conference agreement provides that no certification shall be made or any complaint issued unless the labor organization in question submits affidavits executed by each of its officers ... to the effect that they are not members or affiliates” of organizations accepting the doctrine of violence in government. 93 Cong. Rec. 6444.
Referring to subsections 9 (f) and (g), containing provisions regarding financial reports, similar to those of § 9 (h), Senator Taft stated that “[t]he filing of such report is a condition of certification as bargaining agent under the law, and is also a condition of the right to file any charges under the . . . Act.” 93 Cong. Rec. 3839. Congressman Hartley’s remarks were that the section “prohibits labor organizations from invoking the processes of the act unless all of the officers file affidavits with the board that they are not members of the Communist Party . . . .” 93 Cong. Rec. 6383. In the House Conf. Rep. No. 510, 80th Cong., 1st Sess., pp. 51-52, it was stated that the bill which was enacted made several changes with respect to § 9 (f) and (g). “First, the filing of the information and reports is made a condition ... to eligibility for filing petitions for representation and eligibility for making changes.” To the same effect see also the subsequent statement of Congressman Hartley, in his book, “Our New National Labor Policy,” at pp. 162-163.
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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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] |
[
81
] |
UNITED STATES et al. v. MITCHELL et al.
No. 798.
Argued April 20, 1971
Decided June 7, 1971
Blackmun, J., delivered the opinion for a unanimous Court.
William Terry Bray argued the cause for- the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Matthew J. Zinn, and Crombie J. D. Garrett.'
Paul K. Kirkpatrick, Jr., argued the cause and filed a brief for respondent Mitchell. Patrick M. Schott argued the cause and filed a brief for respondent Angello.
Mr. Justice Blackmun
delivered the opinion of the Court.
The petition here, arising from two cases Below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community de- ' spite the exercise of her statutory right of exoneration. The-issue arises in the .context, in one case, of a divorce, and, in the other, of the husband’s death.
I
Mrs.. Mitchell and Mrs. Sims: The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under § 6651 (a) (failure to file return), § 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and § 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U. S. C. §§ 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under § 6901 as Mrs. Mitchell’s transferee without consideration.
Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit. Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code, she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of “debts contracted during the marriage.”
Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income.
Mrs. Mitchell had little knowledge of her husband’s finances. She rarely knew the balance in the family bank account.. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple’s financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on .his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959.
The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims.
Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T. C. 641 (1969).
On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell v. Commissioner, 430 F. 2d 1 (CA5 1970). Judge Simpson dissented on the basis of Judge Forrester’s opinion in the Tax Court. 430 F. 2d, at 7.
Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who. was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income wás realized by the Sparacios during those years, but neither the husband nor the. wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio’s life. The insured died, in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community’s income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case. •
Each side then moved for summary judgment. Judge Christenberry granted the Government’s motion and denied Mrs. Angello’s. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel’s decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F. 2d 7 (CA5 1970). Judge Simpson again dissented.
We granted certiorari in both cases, 400 U. S. 1008 (1971), on a single petition filed under our Rule 23 (5).
II
Sections 1 and 3 of the 1954 Code, 26 U. S. C. §§ 1 and 3, as have all of their predecessors since the Revenue Act of .1917, impose a tax on the taxable income “of every individual.” The statutes, however, have not specified what that phrase includes.
Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of §§ 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said:
“These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual’s income. The use of the word 'of' denotes ownership. It would be a strained construction, which, in the absence of further definition by Congress, should impute a broader significance to the phrase.” Poe v. Seaborn, 282 U. S. 101, 109 (1930).
The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has “a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both.” Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U. S. 315 (1926), the opposite result had been reached under the then California law. But;
“In the Robbins case, we found that' the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that' he was in fact the owner.” 282 U. S., at 116.
In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U. S. 118 (1930); Hopkins v. Bacon, 282 U. S. 122 (1930); Bender v. Pfaff, 282 U. S. 127 (1930). In the Louisiana case it was said:
“It the test be, as we have held it is,, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife’s ownership of one-half of that income.” 282 U. S., at 131.
The Court then reviewed the relevant Louisiana statutes and the power-of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon the wrongful exercise of his power over community property are more stringent than in many other States. It concluded:
“Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each ‘of’ them as an ‘individual’ as those words are used in §§ 210 (a) and 211 (a) of the Revenue Act of 1926.” 282 U. S., at 132.
Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U. S. 792 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question:
“Has the wife under § 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?” 282 U. S., at 794.
This affirmative answer to a question phrased in terms of “should,” not “may,” clearly indicates that the wife had the obligation, not merely the right, to report half the community income.
The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F. 2d 942 (1961), rev’d on other grounds, 372 U. S. 39 (1963); Van Antwerp v. United States, 92 F. 2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 (ND Cal. 1961); Dillin v. Commissioner, 56 T. C. 228 (1971); Kimes v. Commissioner, 55 T. C. 774 (1971); Hill v. Commissioner, 32 T. C. 254 (1959); Hunt v. Commissioner, 22 T. C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff’d, 125 F. 2d 366 (CA9 1942). - There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F. 2d 49, 50 (1943); Saenger v. Commissioner, 69 F. 2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson’s Estate v. Commissioner, 155 F. 2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F. 2d 667, 669 (CA5 1959).
Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, 300 U. S. 5, 11-14 (1937). See Hoeper v. Tax Comm’n, 284 U. S. 206 (1931). In the determination of ownership, state law controls. “The state law creates legal interests., but the federal statute determines when and how they shall be taxed.” Burnet v. Harmel, 287 U. S. 103, 110 (1932); Morgan v. Commissioner, 309 U. S. 78, 80-81 (1940); Helvering v. Stuart, 317 U. S. 154, 162 (1942); Commissioner v. Harmon, 323 U. S. 44, 50-51 (1944) (Douglas, J., dissenting); see Commissioner v. Estate of Bosch, 387 U. S. 456 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation.
Ill
This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife’s interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order.
Every marriage contracted in Louisiana “superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary,” La. Civ. Code Ann., Art. 2399 (1971). . “This partnership or community consists of the profits of all the effects of which the husband has the administration and' enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. . . .” Art. 2402. The debts contracted during the marriage “enter into the partnership or community of gains; and must be acquitted out of the common fund . . . Art. 2403. “The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.” Also “he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.” Art. 2404. The same article, however, denies him the power of conveyance, “by a gratuitous title,” of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage “all effects which both husband and wife reciprocally possess, are presumed common effects or gains . . . .” Art. 2405. At dissolution, “The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and thé wife, or between their heirs . . . Art. 2406. “It is understood that, in the partition of the effects of the partnership' or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.” Art. 2409. Then the wife and her heirs or assigns may “exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.” Art. 2410. And the wife “who renounces, loses every sort of right to the effects of the partnership or community of gains” except that “she takes back all her effects, whether dotal or extradotal.” Art. 2411.
The Louisiana court has described and forcefully stated the -nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said:
“The wife’s half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it' be acquired in the name of only one of them. . . . There are loose expressions, appearing in some of the. opinions rendered by this court, to the effect that the wife’s half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved- and liquidated. But that is contrary to the provisions of the Civil Code . . . and is contrary to the rule announced in every decision of this court since the error was first committed . . . .”
Later, in Succession of Wiener, 203 La. 649, 14 So. 2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said:
“That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state . . . .”
“The conclusion we have reached in this ease is.in keeping with .the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. . . .” 203 La., at 657 and 662, 14 So. 2d, at 477 and 479.
After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed:
“In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. . . . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. . . .
“It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its codifiers saw fit, in their wisdom, to place the hus-„ band at the head of the partnership, but this did not in any way affect the status of the property or the wife’s ownership of her half thereof. . . . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act.” 203 La., at 665-667, 14 So. 2d, at 480-481.
The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded:
“It is obvious, therefore, that the wife’s interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract.” 203 La., at 669, 14 So. 2d, at 481-482.
The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife.
These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So. 2d 328, 330 (1968); Gebbia v. City of New Orleans, 249 La. 409, 415-416, 187 So. 2d 423, 425 (1966); Azar v. Azar, 239 . La. 941, 946, 120 So. 2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So. 2d 169, 173 (1956) ; Dixon v. Dixon’s Executors, 4 La. 188 (1832).
This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, 326 U. S. 340 (1945). There the inclusion in the decedent’s gross estate of the entire community property was upheld for ■ purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death:
“As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife’s share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never ‘owned,’ and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax.
“Similarly, with the death of the wife, her title or ownership in her share of the • community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband’s share from the restrictions which the existence of the community had placed upon his control of it. •. . .
“This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense ‘vested’ from the moment the community began. . . 326 U. S., at 355-356.
Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents.
IV
Despite all this, despite the concession that the wife’s interest in the community property is not a mere expectancy, and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income, respondents take the position that somehow the wife’s interest is insufficient to make her liable for federal income tax computed on that half of the community income.
It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that, owns the property; and that Seaborn and it's companion cases were concerned only with the right to split income, not with the. obligation so to do. It is also said that the wife’s dominion over the community property is nonexistent in Louisiana; that the husband administers. the community’s affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax'; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U. S., at 103-105, and in its companion cases, 282 U. S., at 119, 123, and 128, and were unavailing there, 282 U. S., at 111-113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T. C., at 646, Mrs. Mitchell’s renunciation “came long after her liabilities for the annual income-taxes here in issue had attached.” Further, “[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. . . .” 1 W. deFuniak, Principles of Community Property § 218, p. 621 (1943). .
The results urged by the respondents might follow, of course, in connection with a tax or other, obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.
Section 6321 of the 1954 Code imposes a lien for the income tax “upon all property and rights to property . . . belonging to” the person liable for the tax. Section 6331 (a) authorizes levy “upon all property and rights to property . . . belonging to such person .'. . .” What is exempt from levy is specified in § 6334 (a). Section 6334 (c) provides, “Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).” This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state lawi United States v. Bess, 357 U. S. 51, 56-57 (1958); Shambaugh v. Scofield, 132 F. 2d 345 (CA5 1942); United States v. Heffron, 158 F. 2d 657 (CA9), cert. denied, 331 U. S. 831 (1947); Treas. Reg. § 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P. 2d 417 (1965). As a consequence, state law which exempts a husband’s interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F. 2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F. 2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different.
It must be conceded that these cases are “hard” cases and exceedingly unfortunate for the two women taxpayers. Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband’s life insurance policy. This takes .place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The “fault,” if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds. .
The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of § 6013 and the final sen- ■ tence of § 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to. omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents’. situation.
The judgment in each case is reversed.
It is so ordered.
Art. 2410. “Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.”
Accord, with respect to Texas, law, Ramos v. Commissioner, 429 F. 2d 487 (CA5 1970).
Internal Revenue Code of 1939, §§ 11 and 12; Revenue Act of 1938, §§ 11 and 12, 52 Stat. 452, 453; Revenue Act of 1936, §§ 11 and 12, 49 Stat. 1653; Revenue Act of 1934, §§ 11 and 12, 48 Stat. 684; Revenue Act of 1932, §§ 11 and 12, 47 Stat. 174; Revenue Act of 1928, §§ 11 and 12, 45 Stat. 795, 796; Revenue Act of 1926, §§ 210 and 211, 44 Stat. 21; Revenue Act of 1924, §§ 210 and 211, 43 Stat. 264, 265; Act of March 4, 1923, 42 Stat. 1507; Revenue Act of 1921, §§ 210 and 211, 42 Stat. 233; Revenue Act of 1918, §§ 210 and 211, 40 Stat. 1062; Revenue Act of 1917, §§ 1 and 201, 40 Stat. 300, 303.
Angello Brief 2.
Angello Brief 2, 9.
Of course, as Baron Rolfe long ago observed, hard cases “are apt to introduce bad law.” Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng. Rep. 402, 406 (1842).
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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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PITTSTON COAL GROUP et al. v. SEBBEN et al.
No. 87-821.
Argued October 3, 1988
Decided December 6, 1988
Deputy Solicitor General Ayer argued the cause for the federal petitioners. With him on the briefs were Solicitor General Fried, Christopher J. Wright, George R. Salem, Allen H. Feldman, Charles I. Hadden, and Edward D. Sieger. Mark E. Solomons argued the cause for petitioners Pittston Coal Group et al. With him on the briefs were John D. Maddox, Laura Metcoff Klaus, and Allen R. Prunty.
Paul M. Smith argued the cause for respondents in all cases. With him on the brief for respondents Sebben et al. were Joseph N. Onek and I. John Rossi. Robert E. Lehrer filed a brief for respondents Broyles et al. With him on the brief was Raymond T. Reott.
Together with No. 87-827, McLaughlin, Secretary of Labor, et al. v. Sebben et al., also on certiorari to the same court, and No. 87-1095, Director, Office of Workers’ Compensation Programs v. Broyles et al., on certiorari to the United States Court of Appeals for the Fourth Circuit.
Briefs of amici curiae urging reversal were filed for the National Coal Association by Robert F. Stauffer; and for the National Council on Compensation Insurance et al. by Michael Camilleri, Mark Gordon, and John Nangle.
Justice Scalia
delivered the opinion of the Court.
These consolidated cases call into question the Secretary of Labor’s interpretation of 30 U. S. C. § 902(f)(2), which, for specified categories of black lung benefit claimants, provides that “[cjriteria applied by the Secretary of Labor in the case of . . . any claim . . . shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973.” Respondents contend that interim regulations applied by the Secretary in adjudicating their claims, see 20 CFR pt. 727 (1988), did not comply with this provision. In Broyles v. Director, OWCP, 824 F. 2d 327 (CA4 1987) (No. 87-1095), the Court of Appeals for the Fourth Circuit agreed, and directed the Secretary to adjudicate the claims pursued by respondents Broyles and Colley under the less restrictive standards in force on June 30, 1973. See 20 CFR § 410.490 (1973). In In re Sebben, 815 F. 2d 475 (CA8 1987) (Nos. 87-821 and 87-827), the Court of Appeals for the Eighth Circuit similarly found the interim Labor regulation invalid under § 902(f)(2), and reversed the District Court’s refusal to issue a writ of mandamus compelling the Secretary to readjudicate a class of claims previously considered under the interim regulation, notwithstanding that the Secretary’s decision in those cases had become final. We granted certiorari, 484 U. S. 1058 (1988), to decide the statutory issue, which is the subject of` a Circuit conflict, and further to decide, in the event we find the Secretary’s interpretation of the statute unlawful, whether mandamus will lie to compel the readjudication of claims decided under erroneous standards but not directly appealed to the courts within the time prescribed.
I
The black lung benefits program provides benefits to those who have become totally disabled because of pneumoconiosis, a chronic respiratory and pulmonary disease arising from coal mine employment. See Mullins Coal Co. v. Director, OWCP, 484 U. S. 135, 141 (1987). Originally enacted as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), Pub. L. 91-173, 83 Stat. 792-798, the program has consisted of two separate parts. Under the original legislation, part B constituted a temporary program of federally financed benefits to be administered by the Secretary of Health, Education, and Welfare (HEW), and part C envisioned a more permanent program operating under the auspices of the Secretary of Labor and relying on state workers’ compensation programs where possible.
For part B claims, the FCMHSA provided that the Secretary of HEW “shall by regulation prescribe standards for determining . . . whether a miner is totally disabled due to pneumoconiosis.” FCMHSA § 411(b). The regulations relevant here consisted of “permanent” and “interim” components. The permanent HEW regulations generally prescribed methods and standards for establishing elements of statutory entitlement. See 20 CFR §§410.401-410.476 (1973). In addition, following (and in response to) the Black Lung Benefits Act of 1972, Pub. L. 92-303, 86 Stat. 150, the Secretary of HEW adopted an interim regulation designed to “permit prompt and vigorous processing of the large backlog of claims” that had developed during the early phases of administering part B. See 20 CFR § 410.490(a) (1973). To deal with a perceived inadequacy in facilities and medical tests, this interim HEW regulation established two classes of presumptions. First, under the presumption at issue here, a claimant could establish presumptive entitlement by showing that “[a] chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis” and that “[t]he impairment . . . arose out of coal mine employment.” §§410.490(b)(l)(i), (b)(2). The proof of causality required for this first presumption was to be established under §410.416 or §410.456, both of which accorded a rebuttable presumption of causality to claimants with 10 years of mining service and also permitted claimants to prove causality by direct evidence. See § 410.490(b)(2). The second presumption (drafted in a most confusing manner) enables a claimant to obtain presumptive entitlement by establishing specified scores on ventilatory tests if the miner had “at least 10 years of the requisite coal mine employment.” §§ 410.490(b)(l)(ii), (b)(3). Both presumptions were rebuttable by a showing that the miner was working or could work at his former mine employment or the equivalent. § 410.490(c). Miners unable to obtain either presumption had to proceed under the permanent HEW regulations. § 410.490(e). The term of the interim regulation coincided with the term of the part B program, and expired after June 30, 1973, for claims filed by living miners and after December 31, 1973, for survivors’ claims. § 410.490(b).
The FCMHSA provided that after part B ceased, part C would shift black lung benefits claims into state workers’ compensation programs approved by the Secretary of Labor as “adequate” under statutory standards. FCMHSA §421. If no statutorily approved program existed in a given State, the Secretary of Labor was to handle the benefits claims arising in that State directly, and was to prescribe regulations for assigning liability to responsible mine owners. See FCMHSA § 422(a). Events did not unfold as expected, however. The Secretary of Labor approved no state workers’ compensation program during the relevant period, see Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 688 (1983), and part C became exclusively a federally run workers’ compensation program administered by the Secretary of Labor. Significantly, the FCMHSA provided that “[t]he regulations of the Secretary of Health, Education, and Welfare under section 411(a) of this title shall also be applicable to claims [processed by the Secretary of Labor] under [part C].” FCMHSA § 422(h). Thus, because the interim HEW regulation expired as part C began, the Secretary of Labor adjudicated part C claims exclusively under the permanent HEW regulations.
This state of affairs persisted until Congress passed the Black Lung Benefits Reform Act of 1977 (BLBRA), Pub. L. 95-239, 92 Stat. 95. The BLBRA amended 30 U. S. C. § 902(f) to give the Secretary of Labor authority to establish total disability regulations for part C cases. § 902(f)(1). Pending issuance of the new Labor Department regulations, the BLBRA provided for an interim administrative regime applying standards different from (and more generous than) those of the permanent HEW regulations. Moreover, the BLBRA provided not only that these interim standards would be applied to cases filed or pending during the interim period, but also that claims previously denied would, upon the claimant’s request, be reopened and readjudicated under the interim standards. 30 U. S. C. § 945. The nature of the interim standards was to be such that the “[cjriteria applied by the Secretary of Labor in the case of . . . any claim . . . shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973.” 30 U. S. C. § 902(f)(2). That is the language giving rise to the dispute in these cases.
In response to the BLBRA, the Secretary of Labor promulgated the interim regulation at issue here for claims within the scope of § 902(f)(2). This regulation accords a presumptive claim of entitlement to miners having 10 years’ experience in coal mines and satisfying one of several “medical requirements,” including X-ray, biopsy, or autopsy evidence of pneumoconiosis or ventilatory study evidence identical to that required by the HEW interim regulation. 20 CFR § 727.203(a) (1988). It is central to the present cases that under this interim regulation, unlike the interim HEW regulation (§§410.490(b)(l)(i), (b)(2)), a miner cannot obtain the first presumption of entitlement without 10 years of coal mine service. Moreover, the rebuttal provisions of the interim Labor regulation mandate that “all relevant medical evidence shall be considered,” § 727.203(b), permitting rebuttal not only on the grounds available in the interim HEW regulation (§ 410.490(c)), but also on the basis that “the total disability or death of the miner did not arise in whole or in part out of coal mine employment” or that “the miner does not, or did not, have pneumoconiosis.” See §§727.203(b)(l)-(4). A § 902(f)(2) claimant unable to obtain the interim Labor presumption can prove entitlement under either the permanent HEW regulations or the (subsequently issued) permanent Labor regulations, depending on when the claim was filed and adjudicated. 20 CFR § 727.4(b) (1988). The permanent Labor regulations took effect on April 1, 1980. See 20 CFR § 718.2 (1988).
II
One of the three consolidated cases before us, Director, OWCP v. Broyles, No. 87-1095, is itself a consolidation by the Fourth Circuit of two separate cases brought by, respectively, Lisa Kay Colley and Charlie Broyles. Respondent Colley’s father, Bill Colley, and respondent Broyles filed claims for black lung benefits in 1974 and 1976, respectively. Under 30 U. S. C. § 945(b), both claimants were entitled to have their claims adjudicated pursuant to the BLBRA amendments. Thus, the interim Labor regulation applied. Since, however, neither claimant had worked 10 years in the mines, neither qualified for the presumption of entitlement under §727.203, so that both cases were adjudicated under the permanent HEW regulations. In both cases, the Administrative Law Judge found against the claimants, and the Benefits Review Board (BRB) affirmed. The Court of Appeals for the Fourth Circuit reversed the BRB as to both claimants, holding that the unavailability of the interim Labor presumption to short-term miners violated § 902(f)(2) by forcing the application of the “more restrictive” “criteria” found in the permanent HEW regulations. See 824 F. 2d, at 329-330.
The other two consolidated cases before us, Pittston Coal Group v. Sebben, No. 87-821, and McLaughlin v. Sebben, No. 87-827, both involve a potential class of claimants consisting of those who
“(1) have filed claims for benefits under the BLBA between December 30, 1969, and April 1, 1980; (2) have claimed a disability due to pneumoconiosis caused by employment in the coal mining industry; (3) have submitted a positive X-ray as proof of the presence of pneumoconiosis; (4) have been denied the benefit of the presumption of pneumoconiosis contained in 20 CFR § 727.203(a)(1) because they did not prove that they had worked ten years in the coal mines; (5) were not afforded the opportunity to submit a claim under 20 CFR §410.490; and (6) do not have claims under 20 CFR § 410.490 or 20 CFR § 727.203(a)(1) currently pending before the Department of Labor.” 815 F. 2d, at 484-485.
These claimants differ from those in No. 87-1095 in that the latter have timely appealed the Labor Department’s adverse decisions to the courts, while these claimants have permitted the time for direct appeal to expire. See 815 F. 2d, at 478, 485. The Eighth Circuit ordered the certification of this class and decided that mandamus would appropriately lie to compel the Secretary of Labor to readjudicate the class members’ claims under §410.490. The panel’s opinion relied on the Eighth Circuit’s earlier decision in Coughlan v. Director, OWCP, 757 F. 2d 966 (CA8 1985), which, like Broyles, had determined that 30 U. S. C. § 902(f)(2) required the application of §410.490 standards to claims filed before April 1, 1980. It further held that the claimants’ failure to perfect direct appeals from the Secretary’s adverse decisions was no obstacle to the present suit.
Ill
The statutory text at issue here provides that “[cjriteria applied by the Secretary of Labor . . . shall not be more restrictive than the criteria applicable” under the interim HEW regulation. The respect in which it is claimed here that the Labor criteria are more restrictive is this: whereas under the first presumption of the interim HEW regulation (see supra, at 109) a miner would obtain a presumption of entitlement by establishing (1) pneumoconiosis and (2) either 10 years of coal mining experience or proof that the pneumoconiosis was caused by mining employment, under the interim Labor regulation 10 years’ experience is the exclusive element of the second factor. In defending the interim Labor regulation, the Secretary maintains that the term “criteria” is ambiguous, and that her resolution of that ambiguity is reasonable and therefore must be sustained. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843, and n. 9 (1984). We disagree. In our view, the statute simply will not bear the meaning the Secretary has adopted.
“Criteria” are “standard[s] on which a judgment or decision may be based.” Webster’s Ninth New Collegiate Dictionary 307 (1983). It is undisputed that in the current context the standards referred to include the standards for obtaining the presumption of entitlement. The distinctive feature of the interim HEW regulation was precisely its establishment of presumptions, and to fix it as a benchmark without reference to its presumptions would be meaningless.
The Secretary contends, however, that the criteria referred to in § 902(f)(2) do not include the criteria for all the elements necessary to a successful claim. Those elements are essentially three: (1) pneumoconiosis; (2) causation by coal mine employment; and (3) total disability (defined as the inability of the claimant to do his former mine work or the equivalent because of pneumoconiosis). See Mullins Coal Co. v. Director, OWCP, 484 U. S. 135 (1987). The Secretary argues that since § 902(f)(2) is part of the statutory definition section dealing with “total disability,” the “criteria” to which it refers must be limited to those bearing upon that element. Total disability criteria would in her view consist of essentially medical (and to some extent vocational) factors, but in no circumstances could include the 10-year-employment requirement at issue here, which obviously goes to causation rather than disability.
The premise of the Secretary’s argument — that “criteria” means total disability criteria — has considerable merit, though it is by no means free from doubt. Assuming it is correct, however, we find it unavailing to sustain the Secretary’s interim regulation, which in our view does impose more restrictive total disability criteria. For although the categorical 10-year-employment requirement bears proximately upon causation, it bears ultimately upon total disability as well. The interim HEW regulation had provided, in effect, that if certain evidence of the first two elements of entitlement (pneumoconiosis and causation) was established, the third element (total disability) would, aidomatically be presumed. Thus, to increase the requirements for the presumption of causality is necessarily to increase the requirements for the presumption of total disability. No other view of the matter accords with the reality. By making the criteria for proving causation “more restrictive” for miners who seek a presumption of entitlement and can establish pneumoconiosis, the interim Labor regulation necessarily applies “more restrictive” total disability criteria than those in the interim HEW regulation.
The Secretary goes further still, however, and argues that the legislative history leading up to the enactment of the BLBRA actually discloses a congressional intention to preserve only “medical criteria” in the adoption of § 902(f)(2). We need not canvass in detail that legislative history, which shows at most that medical criteria were the focus of the House and Senate debates. It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history, and the text of the present statute plainly embraces criteria of more general application. We refer not merely to use of the unqualified term “criteria” in § 902(f)(2) itself, but also to the text of related provisions. Immediately preceding § 902(f)(2) in the text of the BLBRA and of the United States Code is § 902(f)(1)(D), which provides that the “Secretary of Labor . . . shall establish criteria for all appropriate medical tests under this subsection which accurately reflect total disability.” (Emphasis added.) If, as the Secretary contends, Congress intended the word “criteria” to cover only medical criteria (such as ventilatory scores) in both of these simultaneously adopted subsections, it is most implausible that it would have qualified the word in the one but not in the other.
Moreover, the Secretary has suggested no reason why Congress should insist that only the medical criteria under the interim Labor regulation be no more restrictive, while being utterly indifferent as to the addition of other conditions for recovery. There was assuredly no belief that the interim HEW medical criteria were particularly precise or accurate. Quite to the contrary, the prologue of the regulation that adopted them made very clear that they were rough guesses adopted for the time being “in the light of limited medical resources and techniques.” 20 CFR §410.490 (1988). Petitioners Pittston Coal Group et al. cite persuasive evidence for the proposition that the X-ray evidence required in §410.490 does not conclusively establish pneumoconiosis, and that the ventilatory scores employed in that provision “are basically normal values for retired coal miners.” Brief for Petitioners in No. 87-821, pp. 31-33. It seems likely that Congress had no particular motive in preserving the HEW interim medical criteria other than to assure the continued liberality of black lung awards. Since that motive applies to racwmedical criteria with equal force, there is no apparent reason for giving the unqualified word “criteria” the unnaturally limited meaning the Secretary suggests.
Even if we agreed with the Secretary’s assertion that the “criteria” in § 902(f)(2) consist solely of “medical criteria,” we would still conclude that the interim Labor regulation is in violation of the statute. The various criteria that go into determining a claim of entitlement under the interim HEW regulation are closely — indeed, inextricably — intertwined. The configuration of a claimant’s nonmedical characteristics effectively determines which “medical criteria” the claimant must establish in order to obtain presumptive entitlement. Thus, in order to make out a prima facie claim of entitlement by submitting X-ray, biopsy, or autopsy evidence establishing pneumoconiosis, a miner proceeding under the interim HEW regulation must fall within either the class of claimants having 10 years of coal mine experience or the class of claimants able to prove that respiratory impairment arose out of coal mine employment. Under the interim Labor regulation, however, this medical evidence no longer suffices for the latter class of claimants; they must in addition submit affirmative proof of total disability (regardless of whether they then proceed under the permanent HEW or the permanent Labor regulations), which would principally involve submission of medical proof of disability. See 20 CFR §§410.422-410.426 (1988) (permanent HEW regulations); id., §718.204 (permanent Labor regulations). Thus, for claims brought by miners in that class, the medical criteria are necessarily more restrictive — violating the statutory requirement of “no more restrictive” criteria “in the case of . . . any claim.”
That the Secretary has increased medical criteria can be more readily understood by transposing the substance of what has occurred here to a more commonplace, analogous context. Just as the black lung program considers both medical and nonmedical criteria for entitlement, college admissions programs typically consider both academic and extracurricular criteria for admission. Assume a hypothetical college that has traditionally tendered offers of admission to all applicants with a B + average, and to all high school student-body presidents and football-team captains with a B average. • The Board of Trustees, concerned about increasing intellectualism at the institution, issues a directive providing that “the academic criteria applied by the admissions committee in considering any application for admission shall be no more restrictive than those employed in the past.” Surely one would not say that this directive permits the admissions committee to terminate the practice of admitting football-team captains with a B average. To be sure, the admissions committee could assert that it was merely applying stricter extracurricular activity requirements for those who had B averages, just as the Secretary here claims that she is merely applying stricter causality requirements for those miners who have the requisite evidence of pneumoconiosis. But the admissions committee would at the same time be raising the academic criteria for all football-team captains — just as the Secretary is raising the medical criteria for miners who can establish causality only by direct evidence.
The Secretary’s remaining arguments require little discussion. She points out that Congress could very easily have adopted the entire interim HEW regulation if it had meant to preserve all aspects of the HEW presumptions. But that course (which is in any event no more simple than § 902(f)(2)) would have produced a different result, because it would not have permitted the Secretary to adopt less restrictive criteria. The' Secretary also observes that in enacting the BLBRA, Congress had before it evidence suggesting that disabling pneumoconiosis rarely manifests itself in miners with fewer than 10 years of coal mine experience. Though that is quite true, we do not sit to determine what Congress ought to have done given the evidence before it, but to apply what Congress enacted — and, as we have discussed, the exclusion of short-term miners from the benefits of the presumption finds no support in the statute. The Secretary and private petitioners cite favorable postenactment statements by key sponsors of the BLBRA. Since such statements cannot possibly have informed the vote of the legislators who earlier enacted the law, there is no more basis for considering them than there is to conduct postenactment polls of the original legislators. Finally, the Secretary focuses on the interim Labor regulation’s additional rebuttal provisions, which permit the introduction of evidence disputing both the presence of pneumoconiosis and the connection between total disability and coal mine employment. Respondents have conceded the validity of these provisions, even though they permit rebuttal of more elements of statutory entitlement than did the interim HEW regulation. The Secretary argues that there is no basis for drawing a line that permits alteration of the rebuttal provisions, but not the affirmative factors addressed by the Secretary. That may or may not be so, but it does not affect our determination regarding the affirmative factors, for which it seems to us the statutory requirements are clear. Respondents’ concession on the rebuttal provisions means that we are not required to decide the question of their validity, not that we must reconcile their putative validity with our decision today. (The concession also means that we have no occasion to consider the due process arguments of petitioners, which are predicated upon the proposition that the rebuttal provisions must be more expansive than those in the' HEW interim regulation.)
Finally, we address an argument not made by the Secretary — neither before us nor, as far as appears, before any other court in connection with this extensive litigation — but relied upon by the dissent. The dissent believes that the Secretary of HEW made a typographical error in drafting §410.490, and that the reference in paragraph (b)(3) to subparagraph (b)(1)(h) should be a reference to subparagraph (b)(l)(i). Even if this revision of what the Secretary wrote (and defended here) made total sense, we would hesitate to impose it uninvited. But in fact it does not bring order to the regulation. It does not, as the dissent contends, eliminate redundancy in §410.490, but merely shifts redundancy from one paragraph to another. Under the dissent’s revision of the regulation, a claimant submitting X-ray, biopsy, or autopsy evidence of pneumoconiosis under subparagraph (b)(l)(i) would also have to establish disease causation under paragraph (b)(2) and total disability causation under paragraph (b)(3). The last of these requires 10 years of coal mine employment. But if that can be established, the second requirement, contained in paragraph (b)(2), is entirely superfluous, since that provides (by cross-references to §§410.416 and 410.456) that a presumption of disease causation is established by 10 years of coal mine employment. (To be sure, §§410.416 and 410.456 permit rebuttal of the presumption, but it is plainly not the intended purpose of paragraph (b)(2) to serve as a rebuttal provision rather than a substantive requirement.) Nor would paragraph (b)(2) have any operative effect for a claimant proceeding under subparagraph (b)(1)(h), since that itself (without reference to paragraph (b) (3)) requires a minimum of 15 years of coal mine employment.
Moreover, even if the Secretary of HEW had made a typographical error, the dissent offers no evidence whatever to establish that in enacting the BLBRA, Congress, unlike past and present Secretaries, was aware of that error, and meant to refer to the regulation as the dissent would amend it. To support congressional agreement with its understanding of the regulation, the dissent produces, from the voluminous legislative history of hearings, debates, and committee reports dealing with this subject, nothing more than stray remarks made by a United Mine Workers official and a single Representative at hearings occurring four years and two Congresses before the BLBRA was enacted, see post, at 147-148 — remarks that the dissent concedes could be attributable to a simple “misread[ing] [of] the regulation,” post, at 148, n. 12. We do not think this suffices to justify rewriting §410.490 as the dissent believes (perhaps quite reasonably) it should have been written.
IV
Having agreed with the conclusion of both courts below that the interim Labor regulation violates § 902(f)(2), there remains for us to consider the propriety of the orders which that conclusion produced. In Broyles (No. 87-1095), the Fourth Circuit remanded the case to the Benefits Review Board for further proceedings in accordance with its opinion. That action was correct — with the clarification, however, that its opinion requires application of criteria no more restrictive than §410.490 only as to the affirmative factors for invoking the presumption of entitlement, and not as to the rebuttal factors, the validity of which respondents have conceded.
The order of the Eighth Circuit in Sebben (Nos. 87-821 and 87-827) is more problematic. There, as we described earlier, the finding that the interim Labor regulation violated § 902(f)(2) was the basis for mandamus instructing the Secretary to readjudicate, under the correct standard, cases that had already become final by reason of the claimants’ failure to pursue administrative remedies or petition for judicial review in a timely manner. The Eighth Circuit’s rationale for this order is deceptively simple: with respect to both the claims reopened and readjudicated pursuant to 30 U. S. C. §945, and the claims initially adjudicated under the interim Labor regulation, the Court of Appeals reasoned that the Secretary had never fulfilled her statutory duty because she had failed to adjudicate the claims “under the proper standard.” 815 F. 2d, at 482. This rationale does not suffice.
The extraordinary remedy of mandamus under 28 U. S. C. § 1361 will issue only to compel the performance of “a clear nondiscretionary duty.” Heckler v. Ringer, 466 U. S. 602, 616 (1984). Under the provisions of the Longshore and Harbor Workers’ Compensation Act made applicable to the adjudication of black lung benefits claims by 30 U. S. C. 932(a), initial administrative determinations become final after 30 days if not appealed to the Benefits Review Board, see 33 U. S. C. § 921(a), and persons aggrieved by a final order of the Board may have such an order set aside only by petitioning for review in a court of appeals within 60 days of the final order, see 33 U. S. C. § 921(c). Determinations of all of the Sebben claims became final at one of these two stages. Thus, to succeed in the present cases the Sebben respondents had to establish not only a duty to apply less restrictive criteria than those found in 20 CFR §727.203 (1988), but also a duty to reopen the final determinations. The latter was not established.
With respect to claims filed between the effective date of the BLBRA and that of the permanent Labor regulations, and with respect to claims filed before the effective date of the BLBRA but not yet adjudicated at that time, there is not even a colorable basis for the contention that Congress has imposed a duty to reconsider finally determined claims. And with respect to the already adjudicated pre-BLBRA claims that 30 U. S. C. § 945 required the Secretary to readjudicate under the new, interim Labor regulation, a basis for reopening can be found only if one interprets § 945 to override the principle of res, judicata not just once but perpetually, requiring readjudication and re-readjudication (despite the normal rules of finality) until the Secretary finally gets it right. But there is no more reason to interpret a command to readjudicate pursuant to a certain standard as permitting perpetual reopening, until the Secretary gets it right, than there is to interpret a command to adjudicate in this fashion. That is to say, one could as plausibly contend that every statutory requirement that adjudication be conducted pursuant to a particular standard permits reopening until that requirement is complied with. This is not the way the law works. The pre-BLBRA claimants received what § 945 required: a readjudication of their cases governed by the new statutorily prescribed standards. Assuming they are correct that these new standards would have entitled them to benefits, they would have been vindicated if they had sought judicial review; they chose instead to accept incorrect adjudication. They are in no different position from any claimant who seeks to avoid the bar of res judicata on the ground that the decision was wrong.
We do not believe that Bowen v. City of New York, 476 U. S. 467 (1986), upon which the Sebben respondents place principal reliance, has any bearing upon the present cases. There we held that the application of a secret, internal policy by the Secretary of Health and Human Services in adjudicating Social Security Act claims equitably tolled the limitations periods for seeking administrative or judicial review. Id., at 478-482. Even assuming that equitable tolling is available under the relevant provisions of the Longshore and Harbor Workers’ Compensation Act, the conditions for applying it do not exist. The agency action here was not taken pursuant to a secret, internal policy, but under a regulation that was published for all to see. If respondents wished to challenge it they should have done so when their cases were decided.
Accordingly, we affirm the decision of the Fourth Circuit, and reverse the decision of the Eighth Circuit and remand with instructions to direct the District Court to dismiss the petition for mandamus.
It is so ordered.
Besides the Fourth and Eighth Circuits, two other federal appeals courts have found the interim Labor regulations impermissibly “restrictive” under § 902(f)(2). See Kyle v. Director, OWCP, 819 F. 2d 139 (CA6 1987); Halon v. Director, OWCP, 713 F. 2d 21 (CA3 1983). The Seventh Circuit has held to the contrary. See Strike v. Director, OWCP, 817 F. 2d 395, 404-405 (1987).
The dissent asserts that “criteria” in § 902(f)(2) was merely “shorthand” for the earlier phrase “criteria for all appropriate medical tests,” proving the point to its satisfaction by recasting the two statutory provisions into a single sentence where such shorthand reference would be obvious. See post, at 133-134. It is difficult to argue with the proposition that a statute can be rephrased to say something different. The point here is that the two provisions do not occur within the same sentence, or indeed even within parallel sentences (one being a subparagraph, and the next the beginning of a new paragraph), and that they do not naturally suggest any ellipsis. Moreover, not only is the unqualified term “criteria” used in the separate paragraph immediately following the lengthier phrase “criteria for all appropriate medical tests,” but it is also used in the separate subparagraph immediately preceding use of the lengthier phrase — namely, in § 902(f)(1)(C), which provides that the Secretary’s regulations “shall not provide more restrictive criteria than those applicable under section 223(d) of the Social Security Act.” Surely this preceding provision cannot be interpreted as a “shorthand” for a longer provision that has not yet appeared, which means that if the dissent’s construction is correct the word “criteria” in the statute is used twice, one paragraph apart, with two different meanings. It is true that § 902(f)(1)(C) was a pre-existing provision, whereas §§ 902(f)(1)(D) and 902(f)(2) were simultaneously added by the BLBRA; even so, one should not attribute to the draftsmen of the BLBRA the use of a shorthand that produces such a peculiarity in the United States Code.
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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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[
70
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AMERICAN ELECTRIC POWER CO., INC., et al. v. CONNECTICUT et al.
No. 10-174.
Argued April 19, 2011
Decided June 20, 2011
Peter D. Keisler argued the cause for petitioners. With him on the briefs were Carter G. Phillips, Quin M. Soren-son, F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Shawn Patrick Regan, Martin H. Redish, Donald B. Ayer, Kevin P Holewinski, Thomas E. Fennell, and Michael L. Rice.
Acting Solicitor General Katyal argued the cause for respondent Tennessee Valley Authority in support of petitioners under this Court’s Rule 12.6. With him on the briefs were Assistant Attorney General Moreno, Deputy Solicitor General Knccdlcr, Deputy Assistant Attorney General Shenkman, Curtis E. Gannon, Douglas N. Letter, Lisa E. Jones, H. Thomas Byron, Justin R. Pidot, Ralph E. Rodgers, Harriet A. Cooper, and Maria V. Gillen.
Barbara D. Underwood, Solicitor General of New York, argued the cause for respondents. With her on the brief for respondents State of Connecticut et al. were Eric T. Schnei-derman, Attorney General of New York, Benjamin N. Gut-man, Deputy Solicitor General, Monica Wagner, Assistant Solicitor General, and Michael J. Myers, Morgan A. Costello, and Robert Rosenthal, Assistant Attorneys General, as well as Attorneys General George Jepsen of Connecticut, Kamala D. Harris of California, Thomas J. Miller of Iowa, Peter F. Kilmartin of Rhode Island, William H. Sorrell of Vermont, and Michael A. Cardozo. Matthew F. Pawa, David D. Doni- ger, Gerald Goldman, Michael K. Kellogg, and Gregory G. Rapawy filed a brief for respondents Open Space Institute, Inc., et al.
Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor Cencral, and Heather Hagan McVeigh and Ashley Tai-man Harwel, Deputy Attorneys General, by William H. Ryan, Jr., Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective Statos as follows! Luther Strange of Alabama, John J. Burns of Alaska, Thomas C. Horne of Arizona, Dustin McDaniel of Arkansas, John W. Suthors of Colorado, Pamela Jo Bondi of Florida, Samuel S. Olens of Georgia, Lawrence G. Wasden of Idaho, Derek Schmidt of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, Chris Roster of Missouri, Jon Bruning of Nebraska, Wayne Stenehjem of North Dakota, Michael DeWine of Ohio, E. Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Marty Jackley of South Dakota, Mark L. Shurtleff of Utah, Darrell V. McGraw, Jr., of West Virginia, and Bruce A Salzburg of Wyoming; for the American Chemistry Council et al. by Richard 0. Faulk and John S. Gray; for the Association of Global Automakers et al. by Raymond B. T/ndwismoski; for the Business Roundtable by Robert P. Charrow, Laura Metcoff Kla/uo, and David G. Mandelbaum; for the Cato Institute by Megan L. Brown and Ilya Shapiro; for the Chamber of Commerce of the United States of America by Gregory G. Garre, Richard P. Bress, Gabriel K Bell, and Robin S: Conrad; for Chevron U. S. A., Inc., ot al. by Paul D. Clement, Ashley C. Parrish, Daniel P. Collins, Raynuoud Michael Ripple, Donna L. Goodman, Russell C. Swartz, Trade J. Ren-froe, Andrew B. Clubok, and Susan E. Engel; for the Consumer Energy Alliance et al. by Tristan L. Duncan and Jonathan S. Massey; for DRI— The Voice of the Defense Bar by R. Matthew Cairns, John Parker Sweeney, T. Sky Woodward, Michael T. Nilan, Peter Gray, Cynthia P. Arends, and Benjamin J. Rolf; for the Edison Electric Institute et al. by Christopher T. Handman, Dominic F. Parella, Edward H. Comer, William L. Fang, Susan N. Kelly, and Rao E. Gronmiller; for Law Profe33ors by David B. Rivkin, Jr., and Loo A. Casey; for the Mountain States Legal Foundation by Steven J. Lochnor; for the National Black Chamber of Commerce et al. by Peter S. Glaser, Mark E. Nagle, and Douglas A Henderson; for the National Federation of Independent Business Small Business Legal Center et al. by Victor E. Schwartz, Philip S. Goldberg, Christopher E, Appeli Karon R. Earned, Elizabeth Milito, and Douglas T. Nelson; for the Pacific Legal Foundation by R. S. Radford and Damien M. Schiff; for the Southeastern Legal Foundation, Ine., et al. by Shannon Lee Goessling, Harry W. MacDougald, and Edward A Kazmarek; for the Washington Legal Foundation by Daniel J. Popeo and Cory L. Andrews; for Nicholas Johnson by John P. Krill, Jr., and Christopher R Kratovil; and for Representative Fred Upton et al. by Mary B. Neumayr.
Briefs of amici curiae urging affirmance were filed for the State of North Carolina et al. by Roy Cooper, Attorney General of North Carolina, Christopher G. Browning, Jr., Solicitor General, Jamos C. Guliok, Senior Deputy Attorney General, and Marc D. Bernstein, Special Deputy Attorney General, and by the Attorneys General for their respective States as follows: Lisa Madigan of Illinois, Douglas F. Gansler of Maryland, and Martha Coakley of Massachusetts; for AUEarth Renewables, Inc., et al. by Lori Potter; for Law Profeooors by Jamos R-. May and Stuart Banner; for the North Coant Rivero Alliance ct al. by Stephan C. Volkor; for Tort Law Scholars by Douglas A Kysar, pro se; and for the Unitarian Univer-salist Ministry for Earth et al. by Ned Miltenberg.
Briefs of amici curiao woro filed for the American Farm Bureau Fedor ation et al. by Peter S. Glaser, Mark E. Nagle, Douglas A. Henderson, and Ellen Steen; for the American Petroleum Institute et al. by Charles Fried and Jeffrey Bates; for the Center for Constitutional Jurisprudence by John Eastman, Anthony T. Caso, and Edwin Moooo III; for Dofondcro of Wildlife et al. by Eric R. Glitzenstein, William S. Eubanks II, Jason C. Rylander, and Sean H. Donahue; for Environmental Law Professors by Amanda C. Leila, pro se; for the National Association of Home Builders by Amy C. Chai and Thomas J. Ward; and for James G. Anderson, Ph. D., et al. by Richard Webster, James M. Hecker, Matthew W. H. Wess-ler, and Arthur H. Bryant.
Justice Ginsburg
delivered the opinion of the Court.
We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common-law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.
H
In Massachusetts v. EPA, 549 U. S. 497 (2007), this Court held that the Clean Air Act, 69 Stat. 322, as amended, 42 U. S. C. § 7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[Naturally present in the atmosphere and . . . also emitted by human activities,” greenhouse gases are so named because they “trap . . . heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009). Massachusetts held that the Environmental Protection Agency (EPA or Agency) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U. S., at 510-511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the meaning of the governing Clean Air Act provision, id., at 528-529 (quoting § 7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no “reasoned explanation” for failing to do so, we concluded that the Agency had not acted “in accordance with law” when it denied the requested rule-making. Id., at 534-535 (quoting § 7607(d)(9)(A)).
Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the Agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. § 7521(a)(1); 74 Fed. Reg. 66496. The Agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic emissions,” id., at 66517; mean global temperatures, the Agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523-66524, EPA concluded that “compelling” evidence supported the “attribution of observed climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpaek and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524-66535.
EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy-duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[mjajor [greenhouse gas] emitting facilities” use the “best available control technology.” § 7475(a)(4); 75 Fed. Reg. 31520-31521. Finally, EPA commenced a rule-making under § 111 of the Act, 42 U. S. C. § 7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired powerplants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18.
II
The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States and New York City, the second joined three nonprofit land trusts; both groups are respondents here. The defendants, now petitioners, are four private companies and the Tennessee Valley Authority, 'a federally owned corporation that operates fossil-fuel fired powerplants in several States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a.
By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103-105,145-147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. Id., at 88-93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. Id., at 139-145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” Id., at 110, 153.
The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349.
Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350-351; see, e. g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan).
The Court of Appeals further determined that the Clean Air Act did not “displace" federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316-319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common-law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. § 1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310-311 (citing § 1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F. 3d, at 379-381. “Until EPA completes the rulemaking process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] directly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380.
We granted certiorari. 562 U. S. 1091 (2010).
III
The petitioners contend that the federal courts lack authority to adjudicate this case. Four Members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U. S., at 520-526; and, further, that no other threshold obstacle bars review. Four Members of the Court, adhering to a dissenting opinion in Massachusetts, id,., at 535 (opinion of Roberts, C. J.), or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U. S. 33, 44 (1941).
IV
A
“There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 89 N. Y. U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” 39 N. Y. U. L. Rev., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id,., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” 39 N. Y. U. L. Rev., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421-422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” Id., at 421-422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U. S., at 103.
Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal common-law suits brought by one State to abate pollution emanating from another State. See, e. g., Missouri v. Illinois, 180 U. S. 208, 241-243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U. S. 473, 477, 481-483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U. S. 650 (1916) (ordering private copper companies to curtail sulfur-dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U. S., at 107 (post-Erie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions.
Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken “the prudent course” of “adopting] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U. S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 32-34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U. S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U. S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbiter of federal fiscal affairs”).
In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all maimer of pollution originating outside its borders.
The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China. Cf. Brief for Petitioners 18-19. The plaintiffs, on the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondent Open Space Institute et al. 32-85. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U. S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 472 (1942) (Jackson, J., concurring) (“federal courts are free to apply the traditional common-law technique of decision” when fashioning federal common law).
We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common-law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.
B
“[Wjhen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. 451 U. S., at 317. “'[D]ue regard for the presuppositions of our embracing federal system ... as a promoter of democracy,’” id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest, TVA v. Hill, 437 U. S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speakfs] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236-237 (1985).
We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528-529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.
Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment.. . caus[e], or contribute] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” § 7411(b)(1)(A). Once EPA lists a category, the Agency must establish standards of performance for emission of pollutants from new or modified sources within that category. § 7411(b)(1)(B); see also § 7411(a)(2). And, most relevant here, § 7411(d) then requires regulation of existing sources within the same category. For existing sources, EPA issues emissions guidelines, see 40 CFR §§ 60.22, 60.23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, § 7411(d)(1).
The Act provides multiple avenues for enforcement. See County of Oneida, 470 U. S., at 237-239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate implementation and enforcement authority to the States, §§ 7411(c)(1), (d)(1), but the Agency retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§ 7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act imposes criminal penalties on any person who knowingly violates emissions standards issued under §7411. See § 7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. § 7604(a).
If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See § 7607(b)(1); Massachusetts, 649 U. S., at 516-517, 529. As earlier noted, see supra, at 417-418, EPA is currently engaged in a § 7411 rule-making to set standards for greenhouse gas emissions from fossil-fuel fired powerplants. To settle litigation brought under § 7607(b) by a group that included the majority of the plaintiffs in this very case, the Agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic powerplants — the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.
C
The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i. e., until it sets standards governing emissions from the defendants’ plants. We disagree.
The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source discharge” of water pollution was “prohibited unless covered by a permit.” 451 U. S., at 318-320 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing.
The Clean Air Act is no less an exercise of the Legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 22, n. 32 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from powerplants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing § 7411 rule-making, the federal courts would have no warrant to employ the federal common law of nuisance to upset the Agency’s expert determination.
EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 425, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 424, the Clean Air Act directs EPA to establish emissions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contribute] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). “[T]he use of the word ‘judgment,’ ” we explained in Massachusetts, “is not a roving license to ignore the statutory text.” 549 U. S., at 533. “It is but a direction to exercise discretion within defined statutory limits.” Ibid. EPA may not decline to regulate carbon-dioxide emissions from powerplants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.
Indeed, this prescribed order of decisionmaking — the first decider under the Act is the expert administrative agency, the second, federal judges — is yet another reason to resist setting emissions standards by judicial decree under federal tort law. 'The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: As with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.
The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each “standard of performance” EPA sets must “tak[e] into account the cost of achieving [emissions] reduction and any nonair quality health and environmental impact and energy requirements.” §§7411(a)(1), (b)(1)(B), (d)(1); see also 40 CFR § 60.24(f) (EPA may permit state plans to. deviate from generally applicable emissions standards upon demonstration that costs are “[Unreasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions. §§ 7411(b)(2), (d); see also 40 CFR § 60.22(b)(5). And the Agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” § 7411( j)(l)(A). The Act envisions extensive cooperation between federal and state authorities, see §§ 7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §§ 7411(c)(1), (d)(l)-(2).
It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865-866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice- and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.
Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103,145, and then decide what level of reduction is “practical, feasible and economically viable,” id., at 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.
The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, ... or otherwise not in accordance with law.” § 7607(d)(9).
V
The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate powerplants. See App. 105, 147. The Second Circuit did not reach the state-law claims because it held that federal common law governed. 582 F. 3d, at 392; see International Paper Co. v. Ouellette, 479 U. S. 481, 488 (1987) (if a case “should be resolved by reference to federal common law[,]... state common law [is] pre-empted”). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.
^ ‡ ^
For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor took no part in the consideration or decision of this case.
In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499.
For views opposing EPA's, see, e. g., Dawidoff, The Civil Heretic, N. Y. Times Magazine, Mar. 29, 2009, p. 32. The Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change.
California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondent Connecticut et al. 3, n. 1.
Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.
American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Company, Xcel Energy Inc., and Cinergy Corporation.
In addition to renewing the political question argument made below, the pctitionoro now aooort on additional thrcohold obotaclc: They occlc dio-missal because of a “prudential” bar to the adjudication of generalized grievances, purportedly distinct from Article Ill’s bar. See Brief for Ten-ncoocc Valley Authority 14-24; Brief for Pctitionoro 30-31.
There is an exception: EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408-7410, or the “hazardous air pollutants” program, § 7412. See § 7411(d)(1).
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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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"Patent Office, or Commissioner of, or Board of Appeals of",
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"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
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"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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] |
[
32
] |
VERMONT YANKEE NUCLEAR POWER CORP. v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.
No. 76-419.
Argued November 28,1977
Decided April 3, 1978
Rehnquist, J., delivered the opinion of the Court, in which all other Members joined except Blackmun and Powell, JJ., who took no part in the consideration or decision of the cases.
Thomas G. Dignan, Jr., argued the cause for petitioner in No. 76,-419. With him on the briefs were G. Marshall Moriarty, William L. Patton, and B. K. Gad III. Charles A. Horsky argued the cause for petitioner in No. 76-528. With him on the briefs was Harold F. Beis.
Deputy Solicitor General Wallace argued the cause for the federal respondents in support of petitioners in both cases pursuant to this Court’s Rule 21 (4). On the briefs were Solicitor General McCree, Acting Assistant Attorney General Liotta, Harriet S. Shapiro, Edmund B. Clark, John J. Zimmerman, Peter L. Strauss, and Stephen F. Eilperin. Henry V. Nickel and George C. Freeman, Jr., filed a brief for respondents Baltimore Gas & Electric Co. et al. in support of petitioner in No. 76-419 pursuant to Rule 21 (4).
Bichard E. Ayres argued the cause and filed briefs for respondents in No. 76-419. Myron M. Cherry argued the cause for the nonfederal respondents in No. 76-528. With him on the brief was Peter A. Flynn.
Together with No. 76-528, Consumers Power Co. v. Aeschliman et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Cameron F. Mac-Roe, Leonard M. Trosten, and Harry H. Voigt for Edison Electric Institute et al. in No. 76-419; by Leonard J. Theberge, John M. Cannon, Edward H. Dowd, and L. Manning Muntzing for Hans A. Betlie et al. in No. 76-528; and by Max Dean and David S. Heller for the U. S. Labor Party in No. 76-528.
Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Philip Weinberg and John F. Shea III, Assistant Attorneys General; Cabanne Howard, Assistant Attorney General of Maine; and Ellyn Weiss, Assistant Attorney General of Massachusetts, filed a brief for 24 named States as amici curiae urging affirmance in both cases, joined by officials for their respective States as follows: William J. Baxley, Attorney General of Alabama, and Henry H. Caddell, Assistant Attorney General; Richard R. Wier, Jr., Attorney General of Delaware, and June D. MacArtor, Deputy Attorney General; Robert L. Shevin, Attorney General of Florida, and Marty Friedman, Assistant Attorney General; Arthur K. Bolton, Attorney General of Georgia, and Robert Bornar, Senior Assistant Attorney General; William J. Scott, Attorney General of Illinois, and Richard W. Cosby, Assistant Attorney General; Curt T. Schneider, Attorney General of Kansas, and William Griffin, Assistant Attorney General; Robert F. Stephens, Attorney General of Kentucky, and David Short, Assistant Attorney General; William J. Guste, Attorney General of Louisiana, and Richard M. Troy, Assistant Attorney General; Joseph E. Brennan, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland,, and Warren K. Rich, Assistant Attorney General; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan, and Stewart H. Freeman, Assistant Attorney General; Warren R. Spannaus, Attorney General of Minnesota, and Jocelyn F. Olson, Assistant Attorney General; John Ashcroft, Attorney General of Missouri, and Robert H. Lindholm, Assistant Attorney General; Toney Anaya, Attorney General of New Mexico, and James Huber, Assistant Attorney General; Rufus L. Edmisten, Attorney General of North Carolina, and Dan Oakley, Assistant Attorney General; William J. Brown, Attorney General of Ohio, and David Northrup, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Richard M. Sandvik, Assistant Attorney General; Robert P. Kane, Attorney General of Pennsylvania, and Douglas Blazey, Assistant Attorney General; John L. Hill, Attorney General of Texas, and Troy C. Webb and Paul G. Gosselink, Assistant Attorneys General; Robert B. Hansen, Attorney General of Utah, and William C. Quigley; M. Jerome Diamond, Attorney General of Vermont, and Benson D. Scotch, Assistant Attorney General; and Bronson C. LaFollette, Attorney General of Wisconsisn, and John E. Kofron, Assistant Attorney General. George C. Deptula and James N. Barnes filed a brief for the Union of Concerned Scientists Fund, Inc., as amicus curiae urging affirmance in No. 76-419.
Ronald A. Zumbrun, Raymond, M. Momboisse, Robert K. Best, Albert Ferri, Jr., and W. Hugh O’Riordan filed a brief for the Pacific Legal Foundation as amicus curiae in both cases.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only “a new, basic and comprehensive regulation of procedures in many agencies,” Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), but was also a legislative enactment which settled “long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.” Id., at 40. Section 4 of the Act, 5 U. S. C. § 553 (1976 ed.), dealing with rulemaking, requires in subsection (b) that “notice of proposed rule making shall be published in the Federal Register . . . describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” Interpreting this provision of the Act in United States v. AlleghenyLudlum Steel Corp., 406 U. S. 742 (1972), and United States v. Florida East Coast R. Co., 410 U. S. 224 (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances- which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare.
Even apart from the Administrative Procedure Act this Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 290 (1965), the Court explicated this principle, describing it as “an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.” The Court there relied on its earlier ease of FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 138 (1940), where it had stated that a provision dealing with the conduct of business by the Federal Communications Commission delegated to the Commission the power to resolve “subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions.”
It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. 429 U. S. 1090 (1977). We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings. We also find it necessary to examine the Court of Appeals’ decision with respect to agency action taken after full adjudicatory hearings. We again conclude that the court improperly intruded into the agency’s decisionmaking process, making it necessary for us to reverse and remand with respect to- this part of the cases also.
I
A
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq., the Atomic Energy Commission was given broad regulatory authority over the development of nuclear energy. Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the operation stage of the project. See 42 U. S. C. §§ 2133, 2232, 2235, 2239. In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project. See 10 CFR §§2.101, 50.30 (f), 50.33a, 50.34 (a) (1977). This application then undergoes exhaustive review by the Commission’s staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy. Both groups submit to the Commission their own evaluations, which then become part of the record of the utility’s application. See 42 U. S. C. §§ 2039, 2232 (b). The Commission staff also undertakes the review required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR §§ 51.22-51.25 (1977), is revised and becomes a final environmental impact statement. § 51.26. Thereupon a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U. S. C. § 2241, and reaches a decision which can be appealed to the Atomic Safety and Licensing Appeal Board, and currently, in the Commission’s discretion, to the Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final agency decision may be appealed to the courts of appeals. 42 U. S. C. § 2239; 28 U. S. C. § 2342. The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR § 50.34 (b) (1977), except that a hearing need only be held in contested cases and may be limited to the matters in controversy. See 42 U. S. C. § 2239 (a); 10 CFR §2.105 (1977); 10 CFR pt. 2, App. A, V (f) (1977).
These cases arise from two separate decisions of the Court of Appeals for the District of Columbia Circuit. In the first, the court remanded a decision of the Commission to grant a license to petitioner Vermont Yankee Nuclear Power Corp. to operate a nuclear power plant. Natural Resources Defense Council v. NRC, 178 U. S. App. D. C. 336, 547 F. 2d 633 (1976). In the second, the court remanded a decision of that same agency to grant a permit to petitioner Consumers Power Co. to construct two pressurized water nuclear reactors to generate electricity and steam. Aeschliman v. NRC, 178 U. S. App. D. C. 325, 547 F. 2d 622 (1976).
B
In December 1967, after the mandatory adjudicatory hearing and necessary review, the Commission granted petitioner Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. See 4 A. E. C. 36 (1967). Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC’s objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations. This ruling was affirmed by the Appeal Board in June 1972.
In November 1972, however, the Commission, making specific reference to the Appeal Board’s decision with respect to the Vermont Yankee license, instituted rulemaking proceed-' ings “that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors.” App. 352.' The notice of proposed rulemaking offered two alternatives, both predicated on a report prepared by the Commission’s staff entitled Environmental Survey of the Nuclear Euel Cycle. The first would have required no quantitative evaluation of the environmental hazards of fuel reprocessing or disposal because the Environmental Survey had found them to be slight. The second would have specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. See id., at 356-357.
Much of the controversy in this case revolves around the procedures used in the rulemaking hearing which commenced in February 1973. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. All participants would be given a reasonable opportunity to present their position and could be represented by counsel if they so desired. Written and, time permitting, oral statements would be received and incorporated into the record. All persons giving oral statements would be subject to questioning by the Commission. At the conclusion of the hearing, a transcript would be made available to the public and the record would remain open for 30 days to allow the filing of supplemental written statements. See generally id., at 361-363. More than 40 individuals and organizations representing a wide variety of interests submitted written comments. On January 17, 1973, the Licensing Board held a planning session to schedule the appearance of witnesses and to discuss methods for compiling a record. The hearing was held on February 1 and 2, with participation by a number of groups, including the Commission’s staff, the United States Environmental Protection Agency, a manufacturer of reactor equipment, a trade association from the nuclear industry, a group of electric utility companies, and a group called Consolidated National Intervenors which represented 79 groups and individuals including respondent NRDC.
After the hearing, the Commission’s staff filed a supplemental document for the purpose of clarifying and revising the Environmental Survey. Then the Licensing Board forwarded its report to the Commission without rendering any decision. The Licensing Board identified as the principal procedural question the propriety of declining to use full formal adjudicatory procedures. The major substantive issue was the technical adequacy of the Environmental Survey.
In April 1974, the Commission issued a rule which adopted the second of the two proposed alternatives described above. The Commission also approved the procedures used at the hearing, and indicated that the record, including the Environmental Survey, provided an “adequate data base for the regulation adopted.” Id., at 392. Finally, the Commission ruled that to the extent the rule differed from the Appeal Board decisions in Vermont Yankee “those decisions have no further precedential significance,” id., at 386, but that since “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, ... it is unnecessary to apply the amendment to applicant’s environmental reports submitted prior to its effective date or to Final Environmental Statements for which Draft Environmental Statements have been circulated for comment prior to the effective date,” id., at 395.
Respondents appealed from both the Commission’s adoption of the rule and its decision to grant Vermont Yankee’s license to the Court of Appeals for the District of Columbia Circuit.
C
In January 1969, petitioner Consumers Power Co. applied for a permit to construct two nuclear reactors in Midland, Mich. Consumers Power’s application was examined by the Commission’s staff and the ACRS. The ACRS issued reports which discussed specific problems and recommended solutions. It also made reference to “other problems” of a more generic nature and suggested that efforts should be made to resolve them with respect to these as well as all other projects. Two groups, one called Saginaw and another called Mapleton, intervened and opposed the application. Saginaw filed with the Board a number of environmental contentions, directed over 300 interrogatories to the ACRS, attempted to depose the chairman of the ACRS, and requested discovery of various ACRS documents. The Licensing Board denied the various discovery requests directed to the ACRS. Hearings were then held on numerous radiological health and safety issues. Thereafter, the Commission’s staff issued a draft environmental impact statement. Saginaw submitted 119 environmental contentions which were both comments on the proposed draft statement and a statement of Saginaw’s position in the upcoming hearings. The staff revised the statement and issued a final environmental statement in March 1972. Further hearings were then conducted during May and June 1972. Saginaw, however, choosing not to appear at or participate in these latter hearings, indicated that it had “no conventional findings of fact to set forth” and had not “chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved.” See App. 190 n. 9. But the Licensing Board, recognizing its obligations to “independently consider the final balance among conflicting environmental factors in the record,” nevertheless treated as contested those issues “as to which intervenors introduced affirmative evidence or engaged in substantial cross examination.” Id., at 205, 191.
At issue now are 17 of those 119 contentions which are claimed to raise questions of “energy conservation.”', The Licensing Board indicated that as far as appeared from the record, the demand for the plant was made up, of normal industrial and residential use. Id., at 207. It went on to state that it was “beyond our province to inquire into whether the customary uses being made of electricity in our society are ‘proper’ or ‘improper.’ ” Ibid. With respect to claims that Consumers Power stimulated demand by its advertising the Licensing Board indicated that “[n]o evidence was offered on this point and absent some evidence that Applicant is creating abnormal demand, the Board did not consider the question.” Id., at 207-208. The Licensing Board also' failed to consider the environmental effects of fuel reprocessing or disposal of radioactive wastes. The Appeal Board ultimately-affirmed the Licensing Board’s grant of a construction permit and the Commission declined to further review the matter.
At just about the same time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements. 38 Fed. Reg. 20550 (1973). The regulations mentioned for the first time the necessity of considering in impact statements energy conservation as one of the alternatives to a proposed project. The new guidelines were to apply only to final impact statements filed after January 28, 1974. Id., at 20557. Thereafter, on November 6, 1973, more than a year after the record had been closed in the Consumers Power case and while that case was pending before the Court of Appeals, the Commission ruled in another case that while its statutory power to compel conservation was not clear, it did not follow that all evidence of energy conservation issues should therefore be barred at the threshold. In re Niagara Mohawk Power Corp., 6 A. E. C. 995 (1973). Saginaw then moved the Commission to clarify its ruling and reopen the Consumers Power proceedings.
In a lengthy opinion, the Commission declined to reopen the proceedings. The Commission first ruled it was required to consider only energy conservation alternatives which 'were “ ‘reasonably available,’ ” would in their aggregate effect curtail demand for electricity to a level at which the proposed facility would not be needed, and were susceptible of a reasonable degree of proof. App. 332. It then determined, after a thorough examination of the record, that not all of Saginaw’s contentions met these threshold tests. Id., at 334-340. It further determined that the Board had been willing at all times to take evidence on the other contentions. Saginaw had simply failed to present any such evidence. The Commission further criticized Saginaw for its total disregard of even those minimal procedural formalities necessary to give the Board some idea of exactly what was at issue. The Commission emphasized that “[particularly in these circumstances, Saginaw’s complaint that it was not granted a hearing on alleged energy conservation issues comes with ill grace.” Id., at 342. And in response to Saginaw’s contention that regardless of whether it properly raised the issues, the Licensing Board must consider all environmental issues, the Commission basically agreed, as did the Board itself, but further reasoned that the Board must have some workable procedural rules and these rules
“in this setting must take into account that energy conservation is a novel and evolving concept. NEPA 'does not require a “crystal ball” inquiry.’ Natural Resources Defense Council v. Morton, [148 U. S. App. D. C. 5, 15, 458 F. 2d 827, 837 (1972) ]. This consideration has led us to hold that we will not apply Niagara retroactively. As we gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors.
“However, at this emergent stage of energy conservation principles, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some affirmative showing if they wish to have these novel contentions explored further.” Id., at 344 (footnotes omitted).
Respondents then challenged the granting of the construction permit in the Court of Appeals for the District of Columbia Circuit.
D
With respect to the challenge of Vermont Yankee’s license, the court first ruled that in the absence of effective rulemaking proceedings, the Commission must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings. 178 U. S. App. D. C., at 344, 547 P. 2d, at 641. The court then examined the rulemaking proceedings and, despite the fact that it appeared that the agency employed all the procedures required by 5 U. S. C. § 553 (1976 ed.) and more, the court determined the proceedings to be inadequate and overturned the rule. Accordingly, the Commission’s determination with respect to Vermont Yankee’s license was also remanded for further proceedings. 178 U. S. App. D. C., at 358, 547 P. 2d, at 6.55.
With respect to the permit to Consumers Power, the court first held that the environmental impact statement for construction of the Midland reactors was fatally defective for failure to examine energy conservation as an alternative to a plant of this size. 178 U. S. App. D. C., at 331,547F. 2d, at 628. The uourt also thought the report by ACRS was inadequate, although it did not agree that discovery from individual ACRS members was the proper way to obtain further explication of the report. Instead, the court held that the Commission should have sua sponte sent the report back to the ACRS for further elucidation of the “other problems” and their resolution. Id., at 335, 547 F. 2d, at 632. Finally, the court ruled that the fuel cycle issues in this case were controlled by NRDC v. NRC, discussed above, and remanded for appropriate consideration of waste disposal and other unaddressed fuel cycle issues as described in that opinion. 178 U. S. App. D. C., at 335, 547 F. 2d, at 632.
II
A
Petitioner Vermont Yankee first argues that the Commission may grant a license to operate a nuclear reactor without any consideration of waste disposal and fuel reprocessing. We find, however, that this issue is no longer presented by the record in this case. The Commission does not contend that it is not required to consider the environmental impact of the spent fuel processes when licensing nuclear power plants. Indeed, the Commission has publicly stated subsequent to the Court of Appeals’ decision in the instant case that consideration of the environmental impact of the back end of the fuel cycle in “the environmental impact statements for individual LWR’s [light-water power reactors] would represent a full and candid assessment of costs and benefits consistent with the legal requirements and spirit of NEPA.” 41 Fed. Reg. 45849 (1976). Even prior to the Court of Appeals’ decision the Commission implicitly agreed that it would consider the back end of the fuel cycle in all licensing proceedings: It indicated that it was not necessary to reopen prior licensing proceedings because “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant,” and thus incorporation of those effects into the cost-benefit analysis would not change the results of such licensing proceedings. App. 395. Thus, at this stage of the proceedings the only question presented for review in this regard is whether the Commission may consider the environmental impact of the fuel processes when licensing nuclear reactors. In addition to the weight which normally attaches to the agency’s determination of such a question, other reasons support the Commission’s conclusion.
Vermont Yankee will produce annually well over 100 pounds of radioactive wastes, some of which will be highly toxic. The Commission itself, in a pamphlet published by its information office, clearly recognizes that these wastes “pose the most severe potential health hazard . . . U. S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute “adverse environmental effects which cannot be avoided should the proposal be implemented,” or that by operating nuclear power plants we are not making “irreversible and irretrievable commitments of resources.” 42 U. S. C. §§ 4332 (2) (C) (ii), (v). As the Court of Appeals recognized, the environmental impact of the radioactive wastes produced by a nuclear power plant is analytically indistinguishable from the environmental effects of “the stack gases produced by a coal-burning power plant.” 178 U. S. App. D. C., at 341, 547 F. 2d, at 638. For these reasons we hold that the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings.
B
We next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Brief for Petitioner in No. 76-419, pp. 30-38. Respondents, on the other hand, labeling petitioner’s view of the decision a “straw man,” argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. Brief for Respondents in No. 76 — A19, pp. 28-30, 40. But we unfortunately have not found the parties’ characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby, 345 U. S. 83, 87 (1953), that “in this Court the parties changed positions as nimbly as if dancing a quadrille.”
After a thorough examination of the opinion itself, we con-elude that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. The court first determined the intervenors’ primary argument to be “that the decision to preclude 'discovery or cross-examination’ denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process.” 178 U. S. App. D. C., at 346, 547 F. 2d, at 643. The court then went on to frame the issue for decision thus:
“Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues.” Ibid., 547 F. 2d, at 643.
The court conceded that absent extraordinary circumstances it is improper for a reviewing court to prescribe the procedural format an agency must follow, but it likewise clearly thought it entirely appropriate to “scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided . . . .” Id., at 347, 547 F. 2d, at 644. The court also refrained from actually ordering the agency to follow any specific procedures, id., at 356-357, 547 F. 2d, at 653-654, but there is little doubt in our minds that the ineluctable mandate of the court’s decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, particularly the testimony of Dr. Pittman, and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more “sensitive” application of those devices employed during the proceedings. Ibid. The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the sufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole or even the principal basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong.
In prior opinions we have intimated that even in a rule-making proceeding when an agency is making a “ 'quasi-judicial’ ” determination by which a very small number of persons are “ 'exceptionally affected, in each case upon individual grounds,’ ” in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process. United States v. Florida East Coast R. Co., 410 U. S., at 242, 245, quoting from Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 446 (1915). It might also be true, although we do not think the issue is presented in this case and accordingly do not decide it, that a totally unjustified departure from well-settled agency procedures of long standing might require judicial correction.
But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the “administrative agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’ ” FCC v. Schreiber, 381 U. S., at 290, quoting from FCC v. Pottsville Broadcasting Co., 309 U. S., at 143. Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra, at 290, and n. 17, upheld this principle in a variety of applications, including that case where the District Court, instead of inquiring into the validity of the Federal Communications Commission’s exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining §4 (j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals’ serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.
We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to “exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops.” Id., at 333. We went on to emphasize:
“At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of ‘propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ SEC v. Chenery Corp., 332 U. S. 194, 196 (1947).” Ibid.
Respondent NRDC argues that § 4 of the Administrative Procedure Act, 5 U. S. C. § 553 (1976 ed.), merely establishes lower procedural bounds and that a court may routinely require more than the minimum when an agency’s proposed rule addresses complex or technical factual issues or “Issues of Great Public Import.” Brief for Respondents in No. 76-419, p. 49. We have, however, previously shown that our decisions reject this view. Supra, at 542 to this page. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became § 4 thus:
“This subsection states . . . the minimum requirements of public rule making procedure short of statutory hearing. Under it agencies might in addition confer with industry advisory committees, consult organizations, hold informal ‘hearings,’ and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency’s determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures.” S. Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945).
The House Report is in complete accord:
“ ‘[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts .... It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power may likewise operate under uniform rules of practice and procedure and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power/
“The bill is an outline of minimum essential rights and procedures. ... It affords private parties a means of knowing what their rights are and how they may protect them ....
"... [The bill contains] the essentials of the different forms of administrative proceedings . . . H. R. Rep. No. 1980, 79th Cong., 2d Sess., 9,16-17 (1946).
And the Attorney General’s Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given, some deference by this Court because of the role played by the Department of Justice in drafting the legislation, further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.
There are compelling reasons for construing § 4 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court’s opinion, perfectly tailored to reach what the court perceives to be the “best” or “correct” result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ the “best” procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted “a formula upon which opposing social and political forces have come to rest,” Wong Yang Sung v. McGrath, 339 U. S., at 40, but all the inherent advantages of informal rulemaking would be totally lost.
Secondly, it is obvious that the court in these cases reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing, 178 U. S. App. D. C., at 347, 547 F. 2d, at 644, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.
Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U. S. C. § 553 (c) (1976 ed.). Thus, the adequacy of the “record” in this type of proceeding is not correlated directly to the type of procedural devices employed, but .rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to support the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress.
Respondent NRDC also argues that the fact that the Commission's inquiry was undertaken in the context of NEPA somehow permits a court to require procedures beyond those specified in § 4 of the APA when investigating factual issues through rulemaking. The Court of Appeals was apparently also of this view, indicating that agencies may be required to “develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking. 178 U. S. App. D. C., at 356, 547 F. 2d, at 653. But we search in vain for something in NEPA which would mandate such a result. We have before observed that “NEPA does not repeal by implication any other statute.” Aberdeen & Bockfish B. Co. v. SCRAP, 422 U. S. 289, 319 (1975). See also United States v. SCBAP, 412 U. S. 669, 694 (1973). In fact, just two Terms ago, we emphasized that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act. Kleppe v. Sierra Club, 427 U. S. 390, 405-406 (1976). Thus, it is clear NEPA cannot serve as the basis for a substantial revision of the carefully constructed procedural specifications of the APA.
In short, nothing in the APA, NEPA, the circumstances of this case, the nature of the issues being considered, past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case.
There remains, of course, the question of whether the challenged rule finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court. Judge Tamm, concurring in the result reached by the majority of the Court of Appeals, thought that it did not. There are also intimations in the majority opinion which suggest that the judges who joined it likewise may have thought the administrative proceedings an insufficient basis upon which to predicate the rule in question. We accordingly remand so that the Court of Appeals may review the rule as the Administrative Procedure Act provides. We have made it abundantly clear before that when there is a contemporaneous explanation of the agency decision, the validity of that action must “stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration.” Camp v. Pitts, 411 U. S. 138, 143 (1973). See also SEC v. Chenery Corp., 318 U. S. 80 (1943). The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are “best” or most likely to further some vague, undefined public good.
Ill
A
We now turn to the Court of Appeals’ holding “that rejection of energy conservation on the basis of the 'threshold test’ was capricious and arbitrary,” 178 U. S. App. D. C., at 332, 547 F. 2d, at 629, and again conclude the court was wrong.
The Court of Appeals ruled that the Commission’s “threshold test” for the presentation of energy conservation contentions was inconsistent with NEPA’s basic mandate to the Commission. Id., at 330, 547 F. 2d, at 627. The Commission, the court reasoned, is something more than an umpire who sits back and resolves adversary contentions at the hearing stage. Ibid., 547 F. 2d, at 627. And when an intervenor’s comments “bring sufficient attention to the issue to stimulate the Commission’s consideration of it,’ ” the Commission must “undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS. Moreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted.” Id., at 331, 547 F. 2d, at 628, quoting from Indiana & Michigan Electric Co. v. FPC, 163 U. S. App. D. C. 334, 337, 502 F. 2d 336, 339 (1974), cert. denied, 420 U. S. 946 (1975).
While the court’s rationale is not entirely unappealing as an abstract proposition, as applied to this case we think it basically misconceives not only the scope of the agency’s statutory responsibility, but also the nature of the administrative process, the thrust of the agency’s decision, and the type of issues the intervenors were trying to raise.
There is little doubt that under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power. 42 U. S. C. § 2021 (k). The Commission’s prime area of concern in the licensing context, on the other hand, is national security, public health, and safety. §§ 2132, 2133, 2201. And it is clear that the need, as that term is conventionally used, for the power was thoroughly explored in the hearings. Even the Federal Power Commission, which regulates sales in interstate commerce, 16 U. S. C. § 824 et seq. (1976 ed.), agreed with Consumers Power’s analysis of projected need. App. 207.
NEPA, of course, has altered slightly the statutory balance, requiring “a detailed statement by the responsible official on . . . alternatives to the proposed action.” 42 U. S. C. § 4332 (C). But, as should be obvious even upon a moment’s reflection, the term “alternatives” is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:
“There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives’ put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed.” Natural Resources Defense Council v. Morton, 148 U. S. App. D. C. 5, 15-16, 458 F. 2d 827, 837-838 (1972).
See also Life of the Land v. Brinegar, 485 F. 2d 460 (CA9 1973), cert. denied, 416 U. S. 961 (1974). Common sense also teaches us that the “detailed statement of alternatives” cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. ' Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.
With these principles in mind we now turn to the notion of “energy conservation,” an alternative the omission of which was thought by the Court of Appeals to have been “forcefully pointed out by Saginaw in its comments on the draft EIS.” 178 U. S. App. D. C., at 328, 547 F. 2d, at 625. Again, as the Commission pointed out, “the phrase 'energy conservation’ has a deceptively simple ring in this context. Taken literally, the phrase suggests a virtually limitless range of possible actions and developments that might, in one way or another, ultimately reduce projected demands for electricity from a particular proposed plant.” App. 331. Moreover, as a practical matter, it is hard to dispute the observation that it is largely the events of recent years that have emphasized not only the need but also a large variety of alternatives for energy conservation. Prior to the drastic oil shortages incurred by the United States in 1973, there was little serious thought in most Government circles of energy conservation alternatives. Indeed, the Council on Environmental Quality did not promulgate regulations which even remotely suggested the need to consider energy conservation in impact statements until August 1, 1973. See 40 CFR § 1500.8 (a) (4) (1977); 38 Fed. Reg. 20554 (1973). And even then the guidelines were not made applicable to draft and final statements filed with the Council before January 28, 1974. Id., at 20557, 21265. The Federal Power Commission likewise did not require consideration of energy conservation in applications to build hydroelectric facilities until June 19, 1973. 18 CFR pt. 2, App. A., §8.2 (1977); 38 Fed. Reg. 15946, 15949 (1973). And these regulations were not made retroactive either. Id., at 15946. All this occurred over a year and a half after the draft environmental statement for Midland had been prepared, and over a year after the final environmental statement had been prepared and the hearings completed.
We think these facts amply demonstrate that the concept of “alternatives” is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood. This was well understood by the Commission, which, unlike the Court of Appeals, recognized that the Licensing Board’s decision had to be judged by the information then available to it. And judged in that light we have little doubt the Board’s actions were well within the proper bounds of its statutory authority. Not only did the record before the agency give every indication that the project was actually needed, but also there was nothing before the Board to indicate to the contrary.
We also think the court’s criticism of the Commission’s “threshold test” displays a lack of understanding of the historical setting within which the agency action took place and of the nature of the test itself. In the first place, while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of uncharted territory, as was the question of energy conservation in the late 1960’s and early 19'70’s.
“[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made ... ; it must show why the mistake was of possible significance in the results . . . .” Portland Cement Assn. v. Ruckelshaus, 158 U. S. App. D. C. 308, 327, 486 F. 2d 375, 394 (1973), cert. denied sub nom. Portland Cement Corp. v. Administrator, EPA, 417 U. S. 921 (1974).
Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that “ought to' be” considered and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.” In fact, here the agency continually invited further clarification of Saginaw’s contentions. Even without such clarification it indicated a willingness to receive evidence on the matters. But not only did Saginaw decline to further focus its contentions, it virtually declined to participate, indicating that it had “no conventional findings of fact to set forth” and that it had not “chosen to search the record and respond to this proceeding by submitting citations of matter which we believe were proved or disproved.”
We also think the court seriously mischaracterized the Commission’s “threshold test” as placing “heavy substantive burdens ... on intervenors . . . .” 178 U. S. App. D. C., at 330, and n. 11, 547 F. 2d, at 627, and n. 11. On the contrary, the Commission explicitly stated:
“We do not equate this burden with the civil litigation concept of a prima jade case, an unduly heavy burden in this setting. But the showing should be sufficient to require reasonable minds to inquire further.” App. 344 n. 27.
We think this sort of agency procedure well within the agency’s discretion.
In sum, to characterize the actions of the Commission as “arbitrary or capricious” in light of the facts then available to it as described at length above, is to deprive those words of any meaning. As we have said in the past:
“Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed]. ... If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.” ICC v. Jersey City, 322 U. S. 503, 514 (1944).
See also Northern Lines Merger Cases, 396 U. S. 491, 521 (1970).
We have also made it clear that the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.
“Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.” Kleppe v. Sierra Club, 427 U. S., at 410 n. 21.
We think the Court of Appeals has forgotten that injunction here and accordingly its judgment in this respect must also be reversed.
B
Finally, we turn to the Court of Appeals’ holding that the Licensing Board should have returned the ACRS report to ACRS for further elaboration, understandable to a layman, of the reference to other problems.
The Court of Appeals reasoned that since one function of the report was “that all concerned may be apprised of the safety or possible hazard of the facilities,” the report must be in terms understandable to a layman and replete with cross-references to previous reports in which the “other problems” are detailed. Not only that, but if the report does not so elaborate, and the Licensing Board fails to sun sponte return the report to ACRS for further development, the entire agency action, made after exhaustive studies, reviews, and 14 days of hearings, must be nullified.
Again the Court of Appeals has unjustifiably intruded into the administrative process. It is true that Congress thought publication of the ACRS report served an important function. But the legislative history shows that the function of publication was subsidiary to its main function, that of providing technical advice from a body of experts uniquely qualified to provide assistance. See 42 U. S. C. § 2039; S. Rep. No. 296, 85th Cong., 1st Sess., 24 (1957); Joint Committee on Atomic Energy, A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., 32-34 (Comm. Print 1957). The basic information to be conveyed to the public is not necessarily a full technical exposition of every facet of nuclear energy, but rather the ACRS’s position, and reasons therefor, with respect to the safety of a proposed nuclear reactor. Accordingly, the ACRS cannot be faulted for not dealing with every facet of nuclear energy in every report it issues.
Of equal significance is the fact that the ACRS was not obfuscating its findings. The reports to which it referred were matters of public record, on file in the Commission’s public-documents room. Indeed, all ACRS reports are on file there. Furthermore, we are informed that shortly after the Licensing Board’s initial decision, ACRS prepared a list which identified its “generic safety concerns.” In light of all this it is simply inconceivable that a reviewing court should find it necessary or permissible to order the Board to sua sponte return the report to ACRS. Our view is confirmed by the fact that the putative reason for the remand was that the public did not understand the report, and yet not one member of the supposedly uncomprehending public even asked that the report be remanded. This surely is, as petitioner Consumers Power claims, “judicial intervention run riot.” Brief for Petitioner in No. 76-528, p. 37.
We also think it worth noting that we find absolutely nothing in the relevant statutes to justify what the court did here. The Commission very well might be able to remand a report for further clarification, but there is nothing to support a court’s ordering the Commission to take that step or to support a court’s requiring the ACRS to give a short explanation, understandable to a layman, of each generic safety concern.
All this leads us to make one further observation of some relevance to this case. To say that the Court of Appeals’ final reason for remanding is insubstantial at best is a gross understatement. Consumers Power first applied in 1969 for a construction permit — not even an operating license, just a construction permit. The proposed plant underwent an incredibly extensive review. The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in-other reports available to the public, borders on the Kafkaesque. Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function. NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 IT. S. C. § 4332. See also Aberdeen & Bockfish R. Co. v. SCRAP, 422 U. S., at 319. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, Consolo v. FMC, 383 U. S. 607, 620 (1966), not simply because the court is unhappy with the result reached. And a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made .after an otherwise exhaustive proceeding.
Reversed and remanded.
Mr. Justice Blackmun and Mr. Justice Powell took no part in the consideration or decision of these cases.
While there was division in this Court in United, States v. Florida East Coast R. Co. with respect to the constitutionality of such an interpretation in a case involving ratemaking, which Mr. Justice Douglas and Mr. Justice Stewart felt was “adjudicatory” within the terms of the Act, the cases in the Court of Appeals for the District of Columbia Circuit which we review here involve rulemaking procedures in their most pristine sense.
The licensing and regulatory functions of the Atomic Energy Commission (AEC) were transferred to the Nuclear Regulatory Commission (NRC) by the Energy Reorganization Act of 1974, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. V). Hereinafter both the AEC and NRC will be referred to as the Commission.
ACRS is required to review each construction permit application for the purpose of informing the Commission of the "hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards.” 42 U. S. C. § 2039.
The Licensing Board issues a permit if it concludes that there is reasonable assurance that the proposed plant can be constructed and operated without undue risk, 42 U. S. C. §2241; 10 CFR §50.35 (a) (1977), and that the environmental cost-benefit balance favors the issuance of a permit.
When a license application is contested, the Licensing Board must find reasonable assurance that the plant can be operated without undue risk and will not be mimical to the common defense and security or to the health and safety of the public. See 42 U. S. C. § 2232 (a); 10 CER § 50.57 (a) (1977). The Licensing Board's decision is subject to review similar to that afforded the Board's decision with respect to a construction permit.
The nuclear fission which takes place in light-water nuclear reactors apparently converts its principal fuel, uranium, into plutonium, which is itself highly radioactive but can be used as reactor fuel if separated from the remaining uranium and radioactive waste products. Fuel reprocessing refers to the process necessary to recapture usable plutonium. Waste disposal, at the present stage of technological development, refers to the storage of the very long lived and highly radioactive waste products until they detoxify sufficiently that they no longer present an environmental hazard. There are presently no physical or chemical steps which render this waste less toxic, other than simply the passage of time.
The Commission stated:
“In our view, the procedures adopted provide a more than adequate basis for formulation of the rule we adopted. All parties were fully heard. Nothing offered was excluded. The record does not indicate that any evidentiary material would have been received under different procedures. Nor did the proponent of the strict 'adjudicatory’ approach make an offer of proof — or even remotely suggest — what substantive matters it would develop under different procedures. In addition, we note that 11 documents including the Survey were available to the parties several weeks before the hearing, and the Regulatory staff, though not requested to do so, made available various drafts and handwritten notes. Under ah of the circumstances, we conclude that adjudicatory type procedures were not warranted here.” App. 389-390 (footnote omitted).
The ACRS report as quoted, 178 U. S. App. D. C., at 333, 547 F. 2d, at 630, stated:
“Other problems related to large water reactors have been identified by the Regulatory Staff and the ACRS and cited in previous ACRS reports. The Committee believes that resolution of these items should apply equally to the'Midland Plant Units 1 & 2.
“The Committee believes that the above items can be resolved during construction and that, if due consideration is given to these items, the nuclear units proposed for the Midland Plant can be constructed with reasonable assurance that they can be operated without undue risk to the health and safety of the public.”
Saginaw included the Saginaw Valley Nuclear Study Group, the Citizens Committee for Environmental Protection of Michigan, the United 'Automobile Workers International, and three other environmental groups. Mapleton included Nelson Aeschliman and five other residents of a community near the proposed plantsite. Mapleton did not raise any contentions relating to energy conservation.
Pursuant to the regulations then in effect, the Licensing Board refused to consider most of the environmental issues in this first set of hearings. On the last day of those hearings, however, the Court of Appeals for the District of Columbia Circuit decided Calvert Cliffs’ Coordinating Comm. v. ABC, 146 U. S. App. D. C. 33, 449 F. 2d 1109 (1971), which invalidated the Commission’s NEPA regulations. One effect of that decision was to require that environmental matters be considered in pending proceedings, including this one. Accordingly, the Commission revised its regulations and then undertook an extensive environmental review of the proposed nuclear plants, requiring Consumers Power to file a lengthy environmental report. Thereafter the Commission’s staff prepared the draft environmental impact statement discussed in text.
The Licensing Board had highlighted this same problem in its initial decision, noting “that the failure to propose proper findings and conclusions has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are in fact contested.” App. 190 n. 10. The Appeal Board was even less charitable, noting that that “[participation in this manner, in our opinion, subverts the entire adjudicatory process,” Id., at 257.
In what was essentially dictum, the Commission also ruled, after considering the various relevant factors — such as the extent to which the new rule represents a departure from prior practice, the degree of reliance on past practice and consequent burdens imposed by retroactive application of the rule — that the rule enunciated ip Niagara should not be applied retroactively to eases which had progressed to final order and issuance of construction permits before Niagara was decided. App. 337.
In the Court of Appeals no one questioned the Commission’s authority to deal with fuel cycle issues by informal rulemaking as opposed to adjudication. 178 U. S. App. D. C., at 345-346, 547 F. 2d, at 642-643. Neither does anyone seriously question before this Court the Commission’s authority in this respect.
After the decision of the Court of Appeals the Commission promulgated a new interim rule pending issuance of a final rule. 42 Fed. Reg. 13803 (1977). See Vermont Yankee Nuclear Power Corp., 5 N. R. C. 717 (1977). The Commission then, at the request of the New England Coalition on Nuclear Pollution, applied the interim rule to Vermont Yankee and determined that the cost-benefit analysis was still in the plant’s favor. Vermont Yankee Nuclear Power Corp., 6 N. R. C. 25 (1977). That decision is presently on appeal to the Court of Appeals for the First Circuit. The Commission has also indicated in its brief that it intends to complete the proceedings currently in progress looking toward the adoption of a final rule regardless of the outcome of this case. Brief for Federal Respondents 37 n. 36. Following oral argument, respondent NRDC, relying on the above facts, filed a suggestion of mootness and a motion to dismiss the writ of certiorari as improvidently granted. We hold that the case is not moot, and deny the motion to dismiss the writ of certiorari as improvidently granted.
Upon remand, the majority of the panel of the Court of Appeals is entirely free to agree or disagree with Judge Tamm’s conclusion that the rule pertaining to the back end of the fuel cycle under which petitioner Vermont Yankee’s license was considered is arbitrary and capricious within the meaning of § 10 (e) of the Administrative Procedure Act, 5 U. S. C. §706 (1976 ed.), even though it may not hold, as it did in its previous opinion, that the rule is invalid because of the inadequacy of the agency procedures. Should it hold the rule invalid, it appears in all probability that the Commission will proceed to promulgate a rule resulting from rule-making proceedings currently in progress. Brief for Federal Respondents 37 n. 36. In all likelihood the Commission would then be required, under the compulsion of the court’s order, to examine Vermont Yankee’s license under that new rule.
If, on the other hand, a majority of the Court of Appeals should decide that it was unwilling to hold the rule in question arbitrary and capricious merely on the basis of § 10 (e) of the Administrative Procedure Act, Vermont Yankee would not necessarily be required to have its license reevaluated. So far as petitioner Vermont Yankee is concerned, there is certainly a case or controversy in this Court with respect to whether it must, by virtue of the Court of Appeals’ decision, submit its license to the Commission for reevaluation and possible revocation under a new rule. It is true that we do not finally determine here the validity of the rule upon which the validity of Vermont Yankee’s license in turn depends. Neither should anything we say today be taken as a limitation on the Court of Appeals’ discretion to take due account, if appropriate, of any additions made to' the record by the Commission or to consolidate this appeal with the appeal from the interim rulemaking proceeding which is already pending. But the fact that the question of the validity of the first rule remains open upon remand makes the controversy no less “live.”
As we read the opinion of the Court of Appeals, its view that reviewing courts may in the absence of special circumstances justifying such a course of action impose additional procedural requirements on agency action raises questions of such significance in this area of the law as to warrant our granting certiorari and deciding the case. Since the vast majority of challenges to administrative agency action are brought to the Court of Appeals for the District of Columbia Circuit, the decision of that court in this case will serve as precedent for many more proceedings for judicial review of agency actions than would the decision of another Court of Appeals. Finally, this decision will continue to play a major role in the instant litigation regardless of the Commission’s decision to press ahead with further rulemaking proceedings. As we note in n. 15, infra, not only is the NRDC relying on the decision of the Court of Appeals as a device to force the agency to provide more procedures, but it is also challenging the interim rules promulgated by the agency in the Court of Appeals, alleging again the inadequacy of the procedures and citing the opinion of the Court of Appeals as binding precedent to that effect.
Vermont Yankee’s interpretation has been consistent throughout the litigation. That cannot be said of the other parties, however. The Government, Janus-like, initially took both positions. While the petition for certiorari was pending, a brief was filed on behalf of the United States and the Commission, with the former indicating that it believed the court had unanimously held the record to be inadequate, while the latter took Vermont Yankee’s view of the matter. See Brief for Federal Respondents 5-9 (filed Jan. 10, 1977). When announcing its intention to undertake licensing of reactors pending the promulgation of an “interim” fuel cycle rule, however, the Commission, said:
“[T]he court found that the rule was inadequately supported by the record insofar as it treated two particular aspects of the fuel cycle — the impacts from reprocessing of spent fuel and the impacts from radioactive waste management.” 41 Fed. Reg. 45850 (1976).
And even more recently, in opening another rulemaking proceeding to replace the rule overturned by the Court of Appeals, the Commission stated:
“The original procedures proved adequate for the development and illumination of a wide range of fuel cycle impact issues ....
“. . . The court here indicated that the procedures previously employed could suffice, and indeed did for other issues.
“Accordingly, notice is hereby given that the rules for the conduct of the reopened hearing and the authorities and responsibilities of the Hearing Board will be the same as originally applied in this matter (38 Fed. Reg. 49, January 3, 1973) except that specific provision is hereby made for the Hearing Board to entertain suggestions from participants as to questions which the Board should ask of witnesses for other participants.” 42 Fed. Reg. 26988-26989 (1977).
Respondent NRDC likewise happily switches sides depending on the forum. As indicated above, it argues here that the Court of Appeals held only that the record was inadequate. Almost immediately after the Court of Appeals rendered its decision, however, NRDC filed a petition for rulemaking with the Commission which listed over 13 pages of procedural suggestions it thought “necessary to comply with the Court’s order and with the mandate of [NEPA].” NRDC, Petition for Rulemaking, NRC Docket No. RM-50-3 (Aug. 10, 1976). These proposals include cross-examination, discovery, and subpoena power. Id., Attachment, Rules for Conduct of Hearing on Environmental Effects of the Uranium Fuel Cycle, ¶¶5 (a), 9 (b), 11. NRDC likewise challenged the interim fuel cycle rule and suggested to the Court of Appeals that it hold the ease pending our decision in this case because the interim rules were “defective due to the inadequacy of the procedures used in developing the rule . . . .” Motion to Hold Petition for Review in Abeyance 1, in NRDC v. NRC, No. 77-1448 (DC Cir., petition for review filed May 13, 1977; motion filed July 5, 1977). NRDC has likewise challenged the procedures being used in the final rulemaking proceeding as being “no more than a re-run of hearing procedures which were found inadequate [by the Court of Appeals] .” * NRDC Petition for Reconsideration of the Ruling Reopening the Hearings on the Environmental Effects of the Uranium Fuel Cycle 10, NRC Docket No. RM-50-3 (June 6, 1977).
Respondent NRDC does not now argue that additional procedural devices were required under the Constitution. Since this was clearly a rulemaking proceeding in its purest form, we see nothing to support such a view. See United States v. Florida East Coast R. Co., 410 U. S. 224, 24A-245 (1973); Bowles v. Willingham, 321 U. S. 503 (1944); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441 (1915).
NRDC argues that the agency has in the past provided more than the minimum procedures specified in § 4 of the APA and therefore something more is required here, since “[a]gencies are not free to alter their procedures on a whim, grossly constricting parties’ procedural rights when it deems them an impediment or embarrassment to implementing its own views.” Brief for Respondents in No. 76-419, p. 46. In support NRDC first argues that the Commission has considered other equally generic issues in adjudicatory proceedings. But NRDC conceded in the court below that the agency could promulgate rules regarding the fuel cycle in rulemaking proceedings. 178 U. S. App. D. C., at 346, 547 F. 2d, at 643. Moreover, even here it concedes “that the Commission has in the past chosen to consider both environmental and safety issues that would ordinarily be addressed in adjudicatory licensing proceedings through 'generic’ rulemaking, a practice with which the lower court did not take issue.” Brief for Respondents in No. 76-419, p. 48. It now contends, however, that the Commission provided more procedural safeguards in those rulemaking proceedings than in the proceeding presently under review. In support it cites three previous proceedings where cross-examination was supposedly provided. Id., at 49 n. 69.
Pretermitting both the fact that the Court of Appeals in no way relied upon this argument in its decision and the question of whether courts can impose additional procedures even when an agency substantially departs from past practice, we find NRDC’s argument without merit. In the first place, three proceedings out of the many held by NRC and its predecessor hardly establish the type of longstanding and well-established practice deviation from which might justify judicial intervention. It appears, moreover, that in fact the hearings cited by NRDC are not only not part of a longstanding practice but are themselves aberrational. Since 1970 the Commission has conducted a large number of rulemaking proceedings, some of which have involved matters of substantial importance, and almost none of which have involved cross-examination. Sée, e. g., Quality Assurance Criteria for Nuclear Power Plants, 35 Fed. Reg. 10499 (1970); General Design Criteria for Nuclear Power Plants, 36 Fed. Reg. 3255 (1971); Pre-Construction Permit Activities, 39 Fed. Reg. 14506 (1974); Environmental Protection — Licensing and Regulatory Policy and Procedures. Id., at 26279.
See, e. g., CAB v. Hermann, 353 U. S. 322 (1957); Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 (1946); Wallace Corp. v. NLRB, 323 U. S. 248 (1944); Endicott Johnson Corp. v. Perkins, 317 U. S. 501 (1943); Utah, Fuel Co. v. National Bituminous Coal Comm’n, 306 U. S. 56 (1939); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 (1933).
See Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961); United States v. Zucca, 351 U. S. 91, 96 (1956).
See Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 387-388 (1974).
Of course, the court must determine whether the agency complied with the procedures mandated by the relevant statutes. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 417 (1971). But, as we indicated above, there is little doubt that the agency was in full compliance with all the applicable requirements of the Administrative Procedure Act.
The court also indicated at the end of the opinion in Aeschliman that since “this matter requires remand and reopening of the issues of energy-conservation alternatives as well as recalculation of costs and benefits, we assume that the Commission will take into account the changed circumstances regarding Dow’s [the principal customer for the plant’s steam] need for process steam, and the intended continued operation of Dow’s fossil-fuel generating facilities.” 178 U. S. App. D. C., at 335, 547 P. 2d, at 632. As we read the Court of Appeals opinion, however, this was not an independent basis for vacating and remanding the Commission’s licensing decision. It also appears from the record that the Commision has reconsidered the changed circumstances and refused to reopen the proceedings at least three times, see App. 346-347, 348-349, 350-351, and possibly a fourth, see Brief for Nonfederal Respondents in No. 76-528, pp. 19-20, n. 8. We see no error in the Commission’s actions in this respect.
|
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"
] |
[
1
] |
UNITED STATES v. WUNDERLICH et al.
No. 11.
Argued November 6, 1951.
Decided November 26, 1951.
Paul A. Sweeney argued the cause for the United States. With him on the . brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Morton Lijtih.
Harry D. Ruddiman argued the cause for respondents. With him on the brief was John W. Gaskins.
Mr. Justice Minton
delivered the opinion of the Court.
This Court is again called upon to determine the meaning of the “finality clause” of a standard form government contract. Respondents agreed tó build a dam for the United States under a contract containing the usual “Article 15.” That Article provides that all disputes involving questions of fact shall be decided by the contracting officer, with the right of appeal to the head of the department “whose decision shall be final and conclusive upon the parties thereto.” Dissatisfied with the resolution of various disputes by the department head, in this instance the Secretary of the Interior, respondents brought suit in the Court of Claims. That court reviewed their contentions, and in the one claim involved in this proceeding set aside the decision' of the department head. 117 Ct. Cl. 92. Although there was some dispute below, the parties now agree that the question decided by the department head was a question of fact. We granted certiorari, 341 U. S. 924, to clarify the rule of this Court which created an exception to the conclusiveness of such administrative decision.
The same Article 15 of a government contract was before this Court recently, and we held, after a review of the authorities, that such Article was valid. United States v. Moorman, 338 U. S. 457. Nor was the Moor-man case one of first impression. Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to Article 15 have been approved and enforced “in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment . . . .” Kihlberg v. United States, 97 U. S. 398, 402; Sweeney v. United States, 109 U. S. 618, 620; Martinsburg & P. R. Co. v. March; 114 U. S. 549, 553; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 195.
In Ripley v. United States, 223 U. S. 695, 704, gross mistake implying bad faith is equated to “fraud.” Despite the fact that other words such as “negligence,” “incompetence,” “capriciousness,” and “arbitrary” have been used in the course of the opinions, this Court has consistently upheld the finality of the department head’s decision unless it was founded on fraud, alleged and proved. So. fraud is in essence the exception. By fraud we mean conscious wrongdoing, an intention to cheat or be dishonest. The 'decision of the department head, absent fraudulent conduct, must stand under the plain meaning of the contract.
If the decision of the department head finder Article 15 is to be set aside for fraud, fraud should be alleged and proved, as it is never presumed. United States v. Colorado Anthracite Co., 225 U. S. 219, 226. In the case at bar,’ there was no allegation of fraud. There was no finding of fraud nor request for such a finding. The finding of the Court of Claims was that the decision of the department head was “arbitrary,” “capricious,” and “grossly erroneous.” But these words are not the equivalent of fraud, the exception which this Court has heretofore laid down and to which it now adheres without qualification.
Respondents were, not compelled or coerced into making the contract. It was a voluntary undertaking on their part. As competent parties they have contracted for the settlement of disputes in an arbitral manner. This, we have said in Moorman, Congress has left them free to do. United States v. Moorman, supra, at 462. The limitation upon this arbitral process is fraud, placed there by this Court. If the standard of fraud that we adhere to is too limited, that is a matter for Congress.
. Since there was no pleading of fraud, and no finding of fraud, and no request for such a finding, we are not’ disposed to remand the case for any further findings, as respondents urge. We assume that if the evidence had been sufficient to constitute fraud, the Court of Claims would have so found. In the absence of such finding, the decision of the department head must stand as conclusive, and the judgment is
Reversed.
“ Article 15. Disputes. — Except as otherwise: specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.”
|
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"
] |
[
25
] |
UNITED STATES v. MERSEY et al.
No. 31.
Argued November 10, 1959.
Decided February 23, 1960.
Eugene L. Grimm argu,ed the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg.
Julius L. Schapira argued the cause and filed a brief for appellees.
Me. Justice Clark
delivered the opinion of the Court.
The Congress has'provided in the Tariff Act of 1930, 46 Stat. 590, as amended, that imported articles be marked to indicate to an ultimate purchaser in the United States the English name of the country of origin. 19 U. S. C. § 1304. Pursuant to the Act, the. Secretary of. the Treasury adopted implementing regulations. This case tests the application of these provisions to the importation of 10 violins from the Soviet Zone of Germany. Appellees were charged with removing the labels from the violins with intent to conceal from, the ultimate purchasers in the United States the identity of the violins’ country of origin. The District Court dismissed the information, holding that the changing of the labels did not violate the Act because the applicable regulation appeared to require the Soviet Zone' marking only for tariff purposes rather than to apprise the ultimate purchasers of the place of origin. In any event, the court found, the intent of the regulation was not “manifested in a manner sufficiently clear and unambiguous to justify a criminal prosecution.” On appeal by the Government, the Court of Appeals held that the District Court’s opinion, interpreting the regulation, was tantamount to a construction of the statute upon which the information was founded; and hence, under the Criminal Appeals Act, 18 U. S. C. § 373Í, the order of dismissal was appealable directly to this Court rather than to the Court of Appeals. It was also of the opinion that the effect of the dismissal was to sustain a motion in bar, which, under § 3731, likewise required appeal to this Court. Accordingly, it certified the appeal, 261 F. 2d 40, and we postponed the question of jurisdiction to a hearing on the merits, 359 U. S. 951. We have concluded to accept the certification of the Court of Appeals and, on the merits, to affirm’ the- District Court judgment dismissing the information.
Appellees, dealers in musical instruments in the United States, had purchased the violins' from importers and thereafter sold them to other dealers. Upon obtaining possession of the violins from the importers, appellees replaced labels marked “Germany/USSR Occupied,” then on each of the violins, with others inscribed “Made in Germany.” After resale of the violins,' an information was filed against appellees, charging that they removed the original labels attached to the violins with intent to conceal from the ultimate purchasers the identity of the country of origin. The Government’s theory was that the removal of the labels violated 19 U, S. C. § 1304 and its implementing regulations.
I.
Our first consideration is the jurisdictional issue. The Criminal Appeals Act specifies several conditions, any one of which permits a direct appeal by the Government to this Court, and makes our jurisdiction in such cases exclusive. ' In the event that-an appeal which should have been taken here is erroneously effected to a Court of Appeals, that court is directed to certify it here. Prior to 1907, the date of the original Act, the United States had no appeal whatever in criminal cases. As passed by the House, the bill gave the Government “the same right of review by writ of error-'that is given to the defendant.” However, in the Senate, the bill was amended so as to allow review from judgments setting aside indictments, “where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded.” 41 Cong. Rec. 2819. The final language emerged from the Conference Committee of the two Houses. See H. R. Conf. Rep. No. 8113, 59th Cong., 2d Sess. As was stated by Senator Knox, one of. the proponents of the measure, a member of the Judiciary Committee and a former Attorney General .of the United' States, the bill “only proposed to give it [the Government] an appeal upon questions of law raised by the defendant to defeat the trial . . . .” 41 Cong. Rec. 2752. The bill was intended to create “the opportunity to settle important questions of law,” its “great purpose” being, “to secure the ultimate decision of the court of final resort on questions of law.” The situation sought to be remedied was outlined by Senator Patterson, also of the Judiciary Committee and a proponent óf the bill, in these words:
“We have a district court in one jurisdiction holding that a law is ineffective for one reason or another— it may be that it is unconstitutional, or for some other reason — and we have a district court in another jurisdiction holding the reverse; and as the cases multiply in the several sections of the country we may find one half of the courts of the country arrayed against the other half of the courts of the country upon the same identical law; one half holding that it is entirely constitutional and the other half holding that it is unconstitutional.' So, Mr. President;- that confusion, that ridiculous condition, exists and must continue to exist, because, as the law now stands, . until a case involving the question shall go to the Supreme Court and it is brought there by the defendant, there can be no adjudication' by a court whose decision and judgment is controlling. . . . The bill is intended to cure a defect in the administration of justice .
It therefore appears abundantly clear that the remedial purpose of the Act was to avert “the danger of frequent conflicts, real or apparent, in the decisions of the various district or circuit courts, and the unfortunate results thereof”; and to eliminate “the impossibility of the government’s obtaining final and uniform rulings by recourse to a higher court.” 20 Harv. L. Rev. 219. Moreover, the desirability of expedition in the determination of the validity of Acts of Congress, which is pointed to as a desideratum for direct appeal, applies equally to regulations. In practical operation, correction of a regulation by agency revision invariably awaits judicial action.
The.information charged violations of 19 U. S. C. § 1304 “and the.regulations promulgated thereunder.” This section requires imported articles kr be marked “to indicate to an ultimate purchaser . . . the country of origin,” and imposes criminal sanctions on anyone who removes such a mark with intent to conceal the information contained therein.- The Secretary of the Treasury is authorized to implement it by appropriate regulations. The term “country,” as used by the Congress in requiring the markings, was defined by regulation to mean “the political entity known as a nation.” 19 CFR § 11.8. By Treasury Decision 51527, August 28,1946, Germany was to be considered the country of origin of articles manüfáctured or produced in all parts of Germany. Following a change in duty rates applicable to Soviet Zone products, T. D. 53210 was issued in 1953, providing that articles from Eastern Germany should be “marked to indicate Germany (Soviet occupied).” The issue posed to the District Court wás whether this last regulation carried with it the sanctions of § 1304. As we see it, a construction of the. regulation necessarily is an interpretation of the statute.
An administrative regulation, of course, is not a “statute.” While in practical effect regulations may be called “little. laws,” they are at most but offspring of statutes. Congress alone may pass a statute,, and the Criminal Appeals Act calls, for direct appeals if the District Court’s dismissal is based upon the invalidity or construction of a statute. See United States v. Jones, 345 U. S. 377 (1953). This, Court has always construed the Criminal Appeals Act narrowly, limiting it strictly “to the instances specified.” United States v. Borden Co., 308 U. S. 188, 192 (1939). See also United States v. Swift & Co., 318 U. S. 442 (1943). Here the statute is not complete by itself, since it merely declares the range- of its operation and leaves to its progeny the means to be utilized in the effectuation of its command. But. it is the statute which creates the offense of the willful removal of the labels of origin and provides the punishment for violations. The regulations, on the other hand, prescribe the identifying language of the label itself, and assign the resulting tags to their respective geographical areas. Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. • The result is that neither the statute nor the regulations are complete without the other, and only together do they have, any force. In effect, therefore, the construction of one necessarily involves the construction of the other. The charges in the information are founded on § 1304 and its accompanying regulations, and the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute. This, we believe, gives recognition to the congressional purpose to give the Government the right of appeal upon “questions of law raised by the defendant to defeat the trial” and thus promptly to “secure the ultimate decision” of this Court, affording a desired “uniform enforcement of the law throughout the entire limits of the United States”’ In view of this conclusion, we. need not pass upon the claim that the District Court sustained in effect a “motion in bar.” Our disposition requires that the case come directly here, and accordingly we accept the certificate of the Court of Appeals and now turn to the merits. ,
II.
, In 1946, the Treasury implemented the country-of-origin provisions of § 1304 by issuance of T. D. 51527, which provided that, “For the purposes of the marking provisions of the Tariff Act of 1930, . . . Germany shall bfe considered the country of origin of articles mamifac-tured ... in all parts of the German area subject to the authority of the Allied Control Commission and the United States, British, Soviet, and French zone Commanders . . . Thus the marking on articles produced in the Soviet Zone were required to be labeled “Made in Germany.”
In 1951 the Congress directed the President to suspend or withdraw any reduction in the rates of custom duties or other concessions then applicable to the importation of articles manufactured in any areas dominated by the Soviet Union. 65 Stat. 73; 19 U. S. C. § 1362. In Proclamation No. 2935, 65 Stat. C25, the President suspended any reduction in rates of duty applicable to any articles manufactured in the Soviet Zone of Germany and the Soviet Sector of Berlin. Treasury Decision 52788, issued the same day, changed the rate of duty as provided in this proclamation. ' In 1953 the Secretary issued T. D. 53210, the regulation in controversy. This Treasury Decision is headed: “Tariff status, marking to indicate the name of the country of origin, and customs valuation of products of Germany, Poland, and Danzig.” The first paragraph of T. D. 53210 refers to the-presidential proclamation changing the structure of the rates of duty. The second paragraph specifies that, “For the purposes of the value provisions of section 402, Tariff Act of 1930,” Western Germany shall be treated as ono country, and “the Soviet Zone . . . shall be treated as another ‘country.’ ” The third paragraph is the one crucial to this prosecution: it provides that products of Western Germany shall be “marked to indicate Germany as the ‘country of origin,’ but products of th§ Soviet Zone . . . shall be marked to indicate Germany ('Soviet occupied) as the ‘country of origin.’ ” The District Court-concluded that T. D. 53210 was “issued primarily to establish mark; ings for purposes of the differences in the duties appl¿ cable”; thus the indication of Soviet Zone origin would not be required beyond entry into this country, the stage at which duty is payable.
We agree with the District -Court, It appears that T. D. 53210, unlike T. D. 51527, is aimed at the collection of duties rather than the protection of the ultimate purchaser in the United States. Its caption indicates that it deals with “tariff status” and “customs valuation,” and the marking requirements are but aids thereof. Taking up the body of the document, we note that the first paragraph deals entirely with the fact that Soviet-dominated areas “shall not receive reduced rates of duty,” while Western Germany and the Western Sectors of Berlin shall “continue to receive most-favored-nation treatment.” The second paragraph is introduced by the phrase, “For the purposes of the value provisions” of the Tariff Act, and provides that “the Soviet Zone . . . shall be treated as another ‘country.’ ” This language, as well as the make-up of the regulation, suggests that the third paragraph (the one involved here), requiring distinctive marking for Soviet Zone products, is but another step, in the implementation of .the tariff changes. It contains no reference to the requirement of § 1304 that the article be marked in a “conspicuous place,” “legibly, indelibly, and permanently,” so that an “ultimate purchaser in the United States”' would’ be on notice. We note that •appellees placed on the violins the labels “Made in Germany” as required by T. D. 51527.
In the context of criminal prosecution, we must apply the rule of strict construction when interpreting this regulation and statute. United States v. Halseth, 342 U. S. 277, 280 (1952); United States v. Wiltberger, 5 Wheat. 76, 95-96 (1820). A reading of the regulation leaves the distinct impression that it was intended to protect and expedite the collection of customs duties. Certainly its emphasis on duties and its silence on the protection of the public from deceit support the conclusion that the old provisions were to continue insofar as markings after importation are concerned. If the intent were otherwise, it should not have been left to implication. There must be more to support criminal sanctions: businessmen must not .be left to guess the meaning of regulations. The appellees insist that they changed the labels in good faith, believing their actions to be permissible under the law. There is nothing in the record to the contrary. A United States district .judge concurred in their reading of the regulation. In the framework of criminal prosecution, unclarity alone is enough to resolve the doubts in favor of defendants.
Accordingly, the judgment of the District Court is
Affirmed.
“19 U. S. C. § 1304. Marking of imported articles and containers.
“(a) Marking of articles.
, "... [E] very article of foreign origin . . . imported into the United States shall be marked in a conspicuous place as legibly,, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in’¡the United States the English name of the country of origin of the article. The Secretary of. the Treasury may by regulations—
“(1) Determine the character of words and phrases or abbreviations thereof which shall be acceptable as indicating the country of origin . . . ;
“ (2) Require the addition of any other words or symbols which may be appropriate to prevent’ deception or mistake as to the origin of the article ....■■
“(e) Penalties.
“If any person shall, with intent to conceal the information given thereby or contained therein, deface, destroy,' remove, alter, cover, obscure, or obliterate any mark required under the provisions of this chapter, he shall, upon conviction, be fined not more than $5,000 or imprisoned not more than one year, or both.”
18 U. S. C. § 3731xprovides, in part:
“An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all' criminal cases in the following instances:-
“From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
“From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.
“If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court’ of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to, the same extent as if an appeal had been taken directly to that Court.”
In addition to the substantive charges, there was a count alleging conspiracy so to alter the labels.
Senator Bacon, a member of the Judiciary Committee. 41 Cong. Rec. 2195-2196.
41 Cong. Rec. 2753. See also comments of Senator Clarke, who, after discussing the matter with Senator Nelson, the manager of the bill on the floor, stated:
“[W]henever the validity of a statute has been adversely decided by a trial court . . . the Government ought to have the right to promptly submit that to the tribunal having authority, to. dispose of such questions in order that there may be a uniform enforcement of the-.law throughout the entire-limits of the United States.” 41 Cong. Rec. 2820.
Several months later, T. D. 53281 was issued, providing alternative wordings for the Soviet Zone labels.
Vom Baur, Federal Administrative Law, § 490, at 489.
Since we hold that T. D. 53210 deals only with the collection of duties, its marking provisions supersede those of T. D.-51527'only as thé latter relate thereto.
|
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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"Alien Property Custodian",
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"Bureau of Indian Affairs",
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"Central Intelligence Agency",
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"Department of Justice or Attorney General",
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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",
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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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"National Enforcement Commission",
"National Highway Traffic Safety Administration",
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"U.S. Public Health Service",
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"Renegotiation Board",
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"Unidentifiable",
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"NO Admin Action",
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] |
[
107
] |
UNITED STATES et al. v. ALLEGHENY-LUDLUM STEEL CORP. et al.
No. 71-227.
Argued March 27, 1972
Decided June 7, 1972
Rehnquist, J., delivered the opinion for a unanimous Court.
Samuel Huntington argued the cause for the United States et al. With him on the briefs were Solicitor General Griswold, Assistant Attorney General McLaren, Acting Assistant Attorney General Comegys, Frits R. Kahn, Betty Jo Christian, and James F. Tao.
Max 0. Truitt, Jr., and William M. Moloney argued the cause for appellees. With Mr. Truitt on the brief for appellees Allegheny-Ludlum Steel Corp. et al. was Sally Katzen. With Mr. Moloney on the brief for ap-pellee Association of American Railroads were James I. Collier, Jr., and Gordon E. Neuenschwander. John F. Donelan filed a brief for appellee National Industrial Traffic League.
Mr. Justice Rehnquist delivered the opinion of the Court.
In 1969 the Interstate Commerce Commission promulgated two “car service rules” that would have the general effect of requiring that freight cars, after being unloaded, be returned in the direction of the lines of the road owning the cars. Several railroads and shippers instituted two separate suits under 28 U. S. C. §§ 2321-2325 to enjoin enforcement of these rules. In Florida East Coast R. Co. v. United States, 327 F. Supp. 1076 (MD Fla. 1971), the action of the Commission was sustained by a three-judge court, but in the case now before us a similar court for the Western District of Pennsylvania held the Commission’s order invalid. 325 F. Supp. 352 (WD Pa. 1971). We noted probable jurisdiction, 404 U. S. 937, and for the reasons hereinafter stated we conclude that the Commission’s action here challenged was within the scope of the authority conferred upon it by Congress and conformed to procedural requirements.
The country’s railroads long ago abandoned the custom of shifting freight between the cars of connecting roads, and adopted the practice of shipping the same loaded car over connecting lines to its ultimate destination. The freight cars of the Nation thus became in essence a single common pool, used by all roads. This practice necessarily required some arrangements for eventual return of a freight car to the lines of the road which owned it, and in 1902 the railroads through their trade association dealt with this and related problems in a code of car-service rules with which the roads agreed among themselves to comply. The effect of the Commission’s order now under review is to promulgate two of these rules as the Commission’s own, with the result that sanctions attach to their violation by the railroads.
Because of critical freight-car shortages experienced during World War I, Congress enacted the Esch Car Service Act of 1917, which empowered the Commission to establish reasonable rules and practices with respect to car service by railroads. 40 Stat. 101, 49 U. S. C. §1(14) (a). The pertinent language of that Act provides:
“The Commission may . . . establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter . . .
No party to this proceeding has questioned that the rules promulgated by the Commission are “rules, regulations, and practices with respect to car service,” and therefore the issue before us is whether these rules are “reasonable” as that term is used in the Esch Act. The court below concluded, and the appellees here contend, that for a number of reasons the rules in question do not meet the statutory requirement of reasonableness. Appellees also contend that the findings of the Corn-mission are insufficient under the Administrative Procedure Act, 5 U. S. C. § 551 et seg.
The record of proceedings before the Commission establishes that the Commission has been increasingly concerned with recurring shortages of freight cars available to serve the Nation’s shippers. It found that shortages of varying duration and severity occur both as an annual phenomenon at peak loading periods and also during times of national emergency. The result of these shortages has been that roads were unable to promptly supply freight cars to shippers who had need of them.
Underlying these chronic shortages of available freight cars, the Commission found, was an inadequate supply of freight cars owned by the Nation’s railroads. The Commission concluded that one of the principal factors causing this inadequate supply of freight cars was the operation of the national car-pool system. In practice this system resulted in freight cars being on lines other than those of the owning road for long periods of time, since the rules providing for the return of unloaded freight cars in the direction of the lines of the owning road were observed more often than not in the breach. Since the owning road was deprived of the use of its own freight cars for extended periods of time, the Commission found, there was very little incentive for it to acquire new freight cars. In addition, since a road which owned a supply of freight cars inadequate to serve its own on-line shippers could generally, by hook or by crook, arrange to utilize cars owned by other roads, the national car-pool system significantly reduced the normal incentive for a railroad to acquire sufficient equipment to serve its customers. The rules promulgated by the Commission are intended to make those railroads whose undersupply of freight cars contributes to the national shortage more directly feel the pinch resulting from the shortage that they have helped to cause. By thus requiring each road to face up to any inadequacies in its ownership of freight cars, the rules are intended in the long run to correct the nationwide short supply of freight cars that the Commission has found to exist.
Central to the justification for the Commission's promulgation of these rules is its finding that there was a nationwide shortage of freight car ownership. The court below assumed the correctness of that finding, and we conclude that it was supported by substantial evidence.
Shortly after the Second World War, the Commission conducted an investigation into the adequacy of freight car supply and utilization by the Nation's railroads. The Commission in that proceeding concluded that there was “an inadequacy in freight car ownership by rail carriers as a group.” Recognizing that this inadequacy was caused at least in part by the inability of the railroads to acquire new equipment, first during an era of wartime demand and then during an era of post-war boom, the Commission at that time imposed no obligation on the railroads except to require them to file with it their rules and regulations with respect to car service.
In 1963 the Commission began this investigation into the adequacy of car ownership, distribution, and utilization. At the conclusion of the investigatory phase of the proceeding in 1964, the Commission determined that there was a shortage of freight cars in general service. 323 I. C. C. 48 (1964). Formal notification of proposed rulemaking was then issued, and a questionnaire was submitted to the various railroads for the purpose of compiling data on car ownership and use. After these data were gathered, railroads, shippers, and other interested parties were permitted to file verified statements providing further factual material and to adduce legal arguments. The Commission, through its Bureau of Operations, presented to the Hearing Examiner tabular collations of the freight car ownership and use data, and suggested a formula by which a railroad might compute the sufficiency of its freight car ownership. The Bureau also proposed that the entire Code of Car Service Rules adopted by the Association of American Railroads be promulgated by the Commission for mandatory observance.
Many railroads and shippers opposed mandatory enforcement of the rules. Some roads and shippers appeared in favor of at least some mandatory enforcement of the rules, arguing that unless some compulsion were used in enforcing them, cars purchased by a railroad for use by its shippers would continue to be detained for inordinately long periods of time by other roads.
After 50 days of hearings, the Trial Examiner issued his report, recommending against mandatory enforcement of the car-service rules. Although the Commission, prior to referring the matter to him, had previously made a definitive finding that a shortage of freight cars existed, the Examiner’s report stated that there was no competent evidence in the record developed before him upon which such a determination could be made. The Examiner assigned several reasons for recommending against mandatory enforcement of the rules.
The Commission issued a comprehensive opinion disagreeing with the trial examiner in many respects, and ordering that two of the car-service rules be promulgated as rules of the Commission with sanctions attaching to noncompliance. Finding that “[t]he continuing relocation of cars on owner’s lines is of major importance to the maintenance of an adequate car supply,” the Commission concluded that the inconveniences feared by the shippers were outweighed by the long-term benefit that would accrue from the mandatory enforcement of the two car-service rules.
After its first order adopting the two rules was issued, the Commission considered claims that there was need for some procedure for exceptions to the mandatory enforcement of the rules. A supplemental order that established another rule that permitted the railroads to seek exception from the Commission’s Bureau of Operations, in order to alleviate inequities and hardships.
The court below held that the rules were not “reasonable,” as that term is used in the Esch Act, for three reasons. First, although there was a general finding of a nationwide freight car shortage, the court said that a specific shortage on owner lines should have been found in order to justify the promulgation of these rules. Second, it said there should have been a finding as to the financial effects upon the railroads and shippers who would be affected by the rules. Finally, it supported its conclusion that the rules were not “reasonable” by the fact that even though violation of the rules could be enforced by monetary penalties, the Commission nonetheless conceded that obtaining complete compliance with them would be impossible.
The standard of judicial review for actions of the Interstate Commerce Commission in general, Western Chemical Co. v. United States, 271 U. S. 268 (1926), and for actions taken by the Commission under the authority of the Esch Act in particular, Assigned Car Cases, 274 U. S. 564 (1927), is well established by prior decisions of this Court. We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. In judicially reviewing these particular rules promulgated by the Commission, we must be alert to the differing standard governing review of the Commission’s exercise of its rulemaking authority, on the one hand, and that governing its adjudicatory function, on the other:
“In the cases cited, the Commission was determining the relative rights of the several carriers in a joint rate. It was making a partition; and it performed a function quasi-judicial in its nature. In the case at bar, the function exercised by the Commission is wholly legislative. Its authority to legislate is limited to establishing a reasonable rule. But in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection, the Commission, like other legislators, may reason from the particular to the general.” Assigned Car Cases, supra, at 583.
The finding of the Commission as to a nationwide shortage of freight cars was based primarily on data submitted by the railroads themselves covering the years 1955 through 1964. Over this 10-year period total freight car ownership of Class I railroads dropped 12.4%, and aggregate carrying capacity of those railroads dropped 5%. Over the same period revenue tons orig-mated dropped 2.9%. The decline in ownership of plain box cars, as opposed to more sophisticated types of cars, was even more dramatic; ownership of cars over the 10-year period in question dropped 22.1%, while aggregate carrying capacity of such cars dropped 18.9%. Testimony of witnesses for the National Industrial Traffic League, the Western Wood Products Association, the American Plywood Association, and the Vulcan Materials Association also supported the finding of a car shortage. These statistics, taken together with the Commission’s post-war determination of a car shortage, portray a gradually worsening ratio of carrying capacity to revenue tons originated.
The Commission further found that freight car shortages, in the sense that a particular road was unable to promptly supply freight cars to particular shippers who needed them, have occurred chronically, both during peak loading seasons each year and during times of national emergency. It is quite true, as appellees suggest, that inability of the roads to supply cars to shippers at particular times is not conclusive evidence that there is a national shortage of freight car ownership. Conceivably, freight car ownership could be adequate, yet poor utilization of the supply could result in shortages. Nonetheless, the Commission may fairly rely on these chronic shortages in availability of freight cars as one factor upon which to base its conclusion that there was an overall shortage of ownership of freight cars.
The Commission also found that a surprisingly low percentage of freight cars was actually on the tracks of the roads owning the cars at any given time, and that this percentage had been decreasing during the period in question. In March 1966, less than 30% of the railroads’ plain box cars were on the line of their owner, and during the preceding year that percentage remained mostly in the low thirties. The Commission summarized the factual situation it found in these words:
“From the evidence adduced and the data collected, it is obvious thdt an adequate freight car supply is as much a problem today as it was during the period considered in our last proceeding in 1947. Car service which involves a shortage of approximately one out of every ten cars ordered or even one out of every fifteen cars ordered demands that every available means be marshalled to eliminate such deficiencies.” 335 I. C. C., at 285.
One of the means marshaled by the Commission to eliminate such deficiencies was the promulgation of the two rules under attack here. The thrust of these rules is to require that freight cars after unloading be dispatched in the direction of the lines of the owning road.
Thus, the Commission concluded after investigation that the railroads were frequently unable to supply shippers with freight cars. It reasoned from this fact, and from statistics showing a significantly more rapid decline in aggregate carrying capacity than in revenue tons originated, that an underlying and important cause of the unavailability of box cars to shippers was that the Nation’s railroads simply did not jointly own a sufficient number of freight cars to adequately serve shippers of goods over their lines. Because of the existence of the national pool of freight cars, whereby roads may service on-line shippers with foreign cars, it was difficult, if not impossible, to relate inadequate ownership statistically to any particular road or roads. The Commission therefore chose to make mandatory two of the car-service rules that would have the effect of aligning more closely than at present the ownership of freight cars on the part of the road with the availability of those freight cars to the owning road for use of its on-line shippers. The result of these rules, over the long term, the Commission reasoned, would be to bring home to those roads which themselves had an inadequate supply of cars to serve their on-line shippers that fact, and also without doubt to supply incentive to such roads to augment their supply of freight cars in order to adequately serve their on-line shippers. The national supply of freight cars would thereby be augmented, and the railroads as a result would be better able to supply the needs of shippers.
Appellees’ fundamental substantive contention is that the short-term consequences of the enforcement of these rules will so seriously disrupt established industry practices as to outweigh any possible long-term benefits in service that might accrue from them, and that therefore the rules are not “reasonable” as that term is used in the Esch Act. While, of course, conceding that the railroads themselves originally promulgated the rules for voluntary compliance, appellees argue that because the rules have been observed largely in the breach, usages and practices have grown up that permit far more efficient utilization of the existing fleet of freight cars than would be permitted if the two rules in question were enforced by the Commission. Appellees state that in reliance on the existence of a national pool of freight cars, and on the consequent availability to shippers of cars not owned by the line originating the shipment, manufacturing plants have been located and enlarged. They claim that enforcement of the rules now would seriously hamper the movement of freight traffic from these and other shipping points.
It may be conceded that the immediate effect of the Commission's order will be to disrupt some established practices with respect to the handling and routing of freight cars, and on occasion to cause serious inconvenience to shippers and railroads alike. If the Commission were thrusting these regulations upon an admittedly smoothly functioning transportation industry, well supplied with necessary rolling stock and adequately serving all shippers, the rationality of its action might well be open to question.
But such is not the case. The Commission’s finding that there are recurring periods of significant length when there is not an adequate freight car supply to service shippers is supported by substantial evidence. While the flexible system of routing freight cars presently in existence may well have short-term advantages both for some shippers and some roads, the Commission could quite reasonably conclude that it has long-term drawbacks as well. The otherwise adverse effect on a road’s ability to serve shippers that would result from its owning too few cars is cushioned; the beneficial effect on a road’s ability to serve shippers that would result from its owning a sufficient supply of cars is dissipated. The Commission undoubtedly felt that rules designed only to most efficiently utilize the existing inadequate fleet of freight cars would have little or no effect on the nationwide shortage of such cars. Indeed, the appellees stress the concession by the Commission that these rules “are not designed to improve the utilization of freight cars, except insofar as return loading is compatible with the primary objective of increasing availability of cars to the owner.” 335 I. C. C., at 294.
But only if we were to hold that Congress, in enacting the Esch Car Service Act, intended that the only-criterion that the Commission might consider in establishing “reasonable rules, regulations, and practices with respect to car service” was the optimum utilization of an existing fleet of freight cars, however numerically inadequate that fleet might be, could this argument be sustained. Neither the language that Congress used nor the legislative history of the Act supports such a narrow reading of its grant of authority to the Commission. On the record before it, the Commission was justified in deciding that the railroads and the shippers were afflicted with an economic illness that might have to get worse before it got better. Existing practices respecting car service tended to destroy any incentive on the part of railroads to acquire new cars, and the resulting failure to acquire new equipment contributed to an overall nationwide shortage of freight cars that prevented the railroad industry from adequately serving shippers. Car-service rules that would tend to restore incentive to the various roads to augment their supply of freight cars, even at the temporary expense of optimum utilization of the existing fleet of freight cars, conform under these circumstances to the statutory requirement of reasonableness.
Appellees support their claim that the Commission’s promulgation of these rules is not “reasonable” under the Esch Act on two grounds not directly related to the rules’ claimed adverse effect on the ability of the roads to serve shippers. They attack the absence of a Commission finding as to the financial ability of roads inadequately supplied with freight cars to purchase new ones, and they cite the conceded impossibility of obtaining complete compliance with the rules as additional evidence of their unreasonableness.
The Commission’s order does not require any road to purchase any freight cars. It abridges to some extent the existing practice among railroads of treating the freight cars that they own as a pool, and for that reason may ultimately cause roads that do not have an adequate supply of freight cars to serve on-line shippers to be less able to serve such shippers than they are now. If, as a result of this fact, such roads are placed under economic and competitive pressure to acquire additional freight cars, there is certainly no principle of law we know of that would require the Commission to permit them to avoid this economic pressure by continuing to borrow freight cars acquired and owned by other lines.
The Commission, acceding to the arguments of shippers and railroads on rehearing, agreed that mandatory total compliance with the rules promulgated would be impossible in view of the tremendous number of units involved, and, accordingly a procedure by which exceptions might be applied for was established. How the provision for exceptions will be administered in practice is a matter about which we could only speculate at present. It is well established that an agency’s authority to proceed in a complex area such as car-service regulation by means of rules of general application entails a concomitant authority to provide exemption procedures in order to allow for special circumstances. Permian Basin Area Rate Cases, 390 U. S. 747, 784-786 (1968). What bearing any of these factors might have on an action under the provisions of 49 U. S. C. § 1 (17) for the collection of penalties for a violation of the rules in question is a question best decided in such a proceeding. The fact that violation of a rule promulgated under the E'sch Car Service Act may be the basis for a proceeding to collect a penalty does not either expand or contract the statutory definition of “reasonable” found in that Act.
What we have said thus far is enough to indicate our view that there is sufficient relationship between the Commission’s conclusions and the factual bases in the record upon which it relied to substantively support this exercise of its authority under the Esch Act. Appellees press on us an additional claim that the Commission failed to comply with the provisions of the Administrative Procedure Act, 5 U. S. C. § 551 et seq., citing Burlington Truck Lines v. United States, 371 U. S. 156 (1962), and Secretary of Agriculture v. United States, 347 U. S. 645 (1954). Burlington Truck Lines is clearly inapposite, however, since in that case the Court was dealing with adjudication, not rulemaking. In criticizing the Commission’s action there, the Court said that “the Administrative Procedure Act will not permit us to accept such adjudicatory practice,” 371 U. S., at 167. In Secretary of Agriculture v. United States, supra, the Court reviewed the Commission’s action, not under the Administrative Procedure Act, but on the basis of its prior cases establishing the standard for judicial review of agency action. Commenting that “[i]n dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions,” the Court went on to conclude that the Commission “has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision.” 347 U. S., at 652-653. For the reasons previously stated, we find no such infirmities here.
This Court has held that the Administrative Procedure Act applies to proceedings before the Interstate Commerce Commission. Minneapolis & St. Louis R. Co. v. United States, 361 U. S. 173, 192 (1959). Appellees claim that the Commission’s procedure here departed from the provisions of 5 U. S. C. §§ 556 and 557 of the Act. Those sections, however, govern a rule-making proceeding only when 5 U. S. C. § 553 so requires. The latter section, dealing generally with rulemaking, makes applicable the provisions of §§ 556 and 557 only “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing . . . The Esch Act, authorizing the Commission “after hearing, on a complaint or upon its own initiative without complaint, [to] establish reasonable rules, regulations, and practices with respect to car service . . . ,” 49 U. S. C. §1 (14) (a), does not require that such rules “be made on the record.” 5 U. S. C. § 553. That distinction is determinative for this case. “A good deal of significance lies in the fact that some statutes do expressly require determinations on the record.” 2 K. Davis, Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied “only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be ‘on the record.’ ” Siegel v. Atomic Energy Comm’n, 130 U. S. App. D. C. 307, 314, 400 F. 2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U. S. App. D. C. 112, 115 n. 9, 344 F. 2d 497, 500 n. 9 (1965). Cf. First National Bank v. First Federal Savings & Loan Assn., 96 U. S. App. D. C. 194, 225 F. 2d 33 (1955). We do not suggest that only the precise words “on the record” in the applicable statute will suffice to make §§ 556 and 557 applicable to rule-making proceedings, but we do hold that the language of the Esch Car Service Act is insufficient to invoke these sections.
Because the proceedings under review were an exercise of legislative rulemaking power rather than adjudicatory hearings as in Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), and Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U. S. 292 (1937), and because 49 U. S. C. §1 (14) (a) does not require a determination “on the record,” the provisions of 5 U. S. C. §§ 556 and 557 were inapplicable.
This proceeding, therefore, was governed by the provisions of 5 U. S. C. § 553 of the Administrative Procedure Act, requiring basically that notice of proposed rulemaking shall be published in the Federal Register, that after notice the agency give interested persons an opportunity to participate in the rulemaking through appropriate submissions, and that after consideration of the record so made the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. The “Findings” and “Conclusions” embodied in the Commission’s report fully comply with these requirements, and nothing more was required by the Administrative Procedure Act.
We conclude that the Commission’s action in promulgating these rules was substantively authorized by the Esch Act and procedurally acceptable under the Administrative Procedure Act. The judgment of the District Court must therefore be
Reversed.
“Rule 1. Foreign cars, empty at a junction with the home road, must be:
“(a) Loaded at that junction to or via home rails, or,
“(b) Delivered empty at that junction to home road, except in instances where Rule 6 has been invoked, or unless otherwise agreed by roads involved.
“Rule 2. Foreign empty cars other than those covered in Rule 1 shall be:
“(a) Loaded to or via owner’s rails.
“(b) Loaded to a destination closer to owner’s rails than is the loading station or delivered empty to a short line or switch loading road for such loading. (Car Selection Chart is designed to aid in so selecting cars for loading.)
“(c) Delivered empty to the home road at any junction subject to Rule 6.
“(d) Delivered empty to the road from which originally received under load, at the junction where received, Except that when handled in road haul service, cars of direct connection ownership may not be delivered empty to a road which does not have a direct connection with the car owner.
“(e) Returned empty to the delivering road when handled only in switching service.” Jurisdictional Statement 64.
335 I. C. C. 264, 293 (1969).
“Rule 19 — Exceptions
“Exceptions to the rules (prescribed by the Interstate Commerce Commission for mandatory observance) for the purpose of further improving car supply and utilization, increasing availability of cars to their owners, improving the efficiency of railroad operations, or alleviating inequities or hardships, may be authorized by the Director or Assistant Director of the Bureau of Operations, Interstate Commerce Commission, Washington, D. C.” Jurisdictional Statement 172.
Three separate briefs have been filed here in support of appellees, each of which understandably presents the case for affirmance in slightly differing form, and no one of which completely adopts the reasoning of the District Court. We have not found it necessary in deciding the case to deal with each separate argument in support of affirmance, since we believe all of them to be generally subsumed under those claims with which we deal.
49 U. S. C. § 1 (14) (a) likewise requires the Commission to conduct a hearing before promulgating rules.
|
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
] |
NATIONAL LABOR RELATIONS BOARD v. STRONG, dba STRONG ROOFING & INSULATING CO.
No. 61.
Argued December 10, 1968.
Decided January 15, 1969.
Harris Weinstein argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Gome.
Charles G. Bakaly, Jr., argued the cause for respondent. With him on the brief was William B. Carman.
Mr. Justice White
delivered the opinion of the Court.
The Roofing Contractors Association of Southern California, of which respondent was then a member, negotiated a collective bargaining contract with the Roofers Union effective August 15, 1963, establishing compensation levels for the employees of member firms for the next four years. On August 20, 1963, respondent sought to withdraw from the multiple employer bargaining association which had negotiated this agreement. He then refused repeated demands from the union that he sign the contract. At length, the union filed unfair labor practice charges with the National Labor Relations Board, which found that respondent’s refusal to sign the contract which had been negotiated on his behalf by the Association was a violation of §§ 8 (a)(5) and (1) of the National Labor Relations Act, 61 Stat. 140-141, as amended, 29 U. S. C. §§ 158(a)(5) and (1). The Board ordered respondent to sign the contract, cease and desist from unfair labor practices, post notices, and “[p]ay to the appropriate source any fringe benefits provided for in the above-described contract.” 152 N. L. R. B. 9, 14 (1965). The Court of Appeals enforced the Board’s order except as it required the payment of fringe benefits. That part of the order, the Court of Appeals said, “is an order to respondent to carry out provisions of the contract and is beyond the power of the Board.” 386 F. 2d 929, 933 (1967). The Government sought and we granted certiorari as to this holding. 391 U. S. 933 (1968).
Believing the remedy provided by the Board was well within its powers, we reverse the judgment of the Court of Appeals. Section 10 (c) of the Act empowers the Board when it adjudicates an unfair labor practice to issue “an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” 61 Stat. 147, 29 U. S. C. § 160 (c). This grant of remedial power is a broad one. It does not authorize punitive measures, but “[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941). Back pay is one of the simpler and more explicitly authorized remedies utilized to attain this end.
Here the unfair labor practice was the failure of the employer to sign and acknowledge the existence of a collective bargaining agreement which had been negotiated and concluded on his behalf. There is no dispute that respondent withdrew from the Roofing Contractors Association too late to escape the binding force of the agreement it had negotiated for him, supplanting previous agreements which had been negotiated in the same way. Nor, in light of the obligation of an employer bargaining in good faith to sign a contract reducing agreed terms to writing, H. J. Heinz Co. v. NLRB, 311 U. S. 514, 524-526 (1941), is it argued that respondent’s failure to sign the agreement was not an unfair labor practice. The judgment of the Board in these respects is not now challenged. The remedy ordered by the Board included a direction to pay the fringe benefits which would have been paid had the employer signed the agreement and thereby recognized his legal obligations which had matured during the collective bargaining process. This is no more than the Act and cases like Phelps Dodge plainly authorize.
The challenge of the employer, in brief, is that ordering the payment of fringe benefits reserved in the contract inserts the Board into the enforcement of the collective bargaining agreement, contrary to the policy and scheme of the statute. Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not “affected by any other means of adjustment or prevention that has been or may be established by. agreement, law, or otherwise . . . .” § 10 (a), 61 Stat. 146, 29 U. S. C. § 160 (a). Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967); Carey v. Westinghouse Electric Corp., 375 U. S. 261, 268 (1964); Smith v. Evening News Assn., 371 U. S. 195, 197-198 (1962); Teamsters Local 174 v. Lucas Flour Co., 369 U. S. 95, 101, n. 9 (1962). Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. Smith v. Evening News Assn., 371 U. S. 195, 197-198 (1962). It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967).
Bearing more precisely on this case, the Board is expressly invited by the Act to determine whether an employer has refused to bargain in good faith and thereby violated § 8 (a) (5) by resisting “the execution of a written contract incorporating any agreement reached if requested by either party . . . .” § 8 (d), 61 Stat. 142, 29 U. S. C. § 158 (d); H. J. Heinz Co. v. NLRB, 311 U. S. 514, 524-526 (1941). The Board is not trespassing on forbidden territory when it inquires whether negotiations have produced a bargain which the employer has refused to sign and honor, particularly when the employer has refused to recognize the very existence of the contract providing for the arbitration on which he now insists. To this extent the collective contract is the Board’s affair, and an effective remedy for refusal to sign is its proper business.
Firing an employee for union membership may be a breach of contract open to arbitration, but whether it is or not, it is also an unfair labor practice which may be remedied by reinstatement with back pay under § 10 (c) even though the Board's order mandates the very compensation reserved by the contract. Cf. NLRB v. Great Dane Trailers, Inc., 388 U. S. 26 (1967); Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956); Wallace Corp. v. NLRB, 323 U. S. 248 (1944).
The case before us is little, if any, different. The act of refusing to sign the collective bargaining agreement may not have been a breach of contract, but it was an unfair practice. Once adjudicated, it could be remedied by a Board order requiring payment of those fringe benefits which would have been paid had the employer signed and acknowledged the contract which had been duly negotiated on his behalf. The judgment of the Court of Appeals is reversed.
It is so ordered.
Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association.
See generally Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); Note, A Survey of Labor Remedies, 54 Va. L. Rev. 38, 41-95 (1968).
Respondent is a past president of the Association, and thus was familiar with its bylaw that a “labor contract negotiated by the Committee shall be binding upon the Regular Members of this Association separately and collectively ...”
The fact that the payments in question here did not constitute direct pay to the employees is irrelevant in our view of this case. Whether the payments were made to the employees, who then contributed them to union trust funds in the form of higher union dues, or whether as here they passed straight from the employer to the trust funds, the final result is the same. And it is just as much in the interest of “effectuat[ing] the policies of this Act,” and of making the employees whole, to require the payments in either case.
Steelworkers Trilogy, 363 U. S. 564, 574, 593 (1960). Congress established the judicial remedy of § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, in lieu of a proposal to make breach of a collective bargaining agreement itself an unfair labor practice. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41-42. The House Conference Report asserts that “[o]nce parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board,” id., at 42. See Textile Workers v. Lincoln Mills, 353 U. S. 448, 452 (1957). Cf. LMRA § 201, 61 Stat. 152, 29 TJ. S. C. § 171.
|
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",
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"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",
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"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
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"Railroad Retirement Board",
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"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Department or Secretary of the Treasury",
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"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
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"Unidentifiable",
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] |
[
81
] |
CIVIL AERONAUTICS BOARD v. DELTA AIR LINES, INC.
No. 492.
Argued April 27, 1961.
Decided June 12, 1961.
John F. Davis argued the cause for petitioner in No. 492. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Loevinger, Assistant Attorney General Bicks, Richard A. Solomon, Irwin A. Seibel, O. D. Ozment and Franklin M. Stone.
Albert F. Grisard argued the cause and filed a brief for petitioner in No. 493.
R. S. Maurer argued the cause for respondent. With him on the briefs were James W. Callison and Robert Reed Gray.
Together with No. 493, Lake Central Airlines, Inc., v. Delta Air Lines, Inc., also on certiorari to the same Court.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under § 401 (f) of the Federal Aviation Act of 1958. 72 Stat. 731, 755, 49 U. S. C. § 1371 (f). The administrative proceedings from which the present dispute arises date back to May 1955, and involve consideration by the Board of a number of applications for new service between cities located in an area extending from the Great Lakes to Florida. The Board divided the proceedings into two general categories, consolidating the applications for long-haul service in the Great Lakes-Southeast Service Case and those for short-haul flights in the Great Lakes Local Service Investigation Case. In order to protect fully the interests of local service carriers, the Board allowed these carriers, including petitioner Lake Central Airlines, to intervene in the hearings on the long-haul applications.
At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called “turn-around” service already provided by existing local carriers. One such restriction was applied to Delta’s run between Detroit and various locations in Ohio but, by and large, Delta’s award was free of protective, limitations.
The Board’s order issued on September 30, 1958, and it specified that Delta’s certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter,within time limits set by the Board, numerous petitions for reconsideration were filed, including one by Lake Central protesting the breadth of Delta’s certificate. Lake Central requested that, if the Board should be unable to decide its petition for reconsideration before November 29, the effective date of the certificate be put off. On November 28, one day before Delta’s certificate was to become effective, the Board issued a lengthy memorandum and order, which stated in substance that the requests for stays, with one immaterial exception, were denied, but that judgment on the merits of the petitions for reconsideration would be reserved. The Board explained that the parties had not made a sufficient showing of error to justify postponements and that, in view of the advent of the peak winter season, further delay would be particularly inappropriate; the Board then said:
“To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.”
For reasons not presently pertinent, Delta’s certificate became effective on December 5, rather than November 29, 1958, and Delta commenced its newly authorized operations shortly thereafter. On May 7, 1959, the Board issued a new order disposing of the still-pending petitions for reconsideration. By this order, the Board amended Delta’s certificate in response to the restrictions proposed by Lake Central. Specifically, the Board barred Delta’s operations between ten pairs of intermediate cities unless the flights initiated at Atlanta or points farther south; the effect of this order was to bar certain •flights Delta was then operating. Even then, the Board’s action was not final; the Board reserved the power to lift these restrictions pending the outcome of the Great Lakes Local Service Case. , The Board’s disposition of the petitions was taken summarily, without formal notice to the parties or the opportunity for a hearing prior to decision.
Delta sought review of this order before the Board, challenging the Board’s power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta’s objection, stating that: “[W]e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.” On review in the Court of Appeals for the Second Circuit, however, the Board’s order was overturned, the court reasoning that Congress had made notice and hearing a prerequisite to the exercise of the Board’s power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F. 2d 43.
The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative.
Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other. Since these policies are in tension, it is necessary to reach a compromise in each case and petitioners have argued at length that the Board’s present procedure is a happy resolution of conflicting interests. However, the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do but what Congress has said it can do. See United States v. Seatrain Lines, 329 U. S. 424, 433. Cf. Delta Air Lines v. Summerfield, 347 U. S. 74, 79-80. This proposition becomes clear beyond question when it is noted that Congress has been anything but inattentive to this issue in the acts governing the various administrative agencies. A review of these statutes reveals a wide variety of detailed provisions concerning reconsideration, each one enacted in an attempt to tailor the agency’s discretion to the particular problems in the area. In this respect, the Federal Aviation Act is no exception since, in § 401 (f) and (g) of the Act, Congress has stated the limits of the Board’s power to reconsider in unequivocal terms. Section 401 (f) provides that “Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided.” The phrase “as hereinafter provided” refers to § 401(g), which states:
“Authority to Modify, Suspend, or Revoke
“(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: Provided, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.” (Emphasis added.)
This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board’s duty is to follow these instructions, particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative history directly on point, the background of the Aviation Act strongly supports what we believe to be the plain meaning of § 401 (f) and (g). It is clear from the statements of the supporters of the predecessor of the Aviation Act — the Civil Aeronautics Act of 1938 — that Congress was vitally concerned with what has been called “security of route” — i. e., providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible. And there is no other explanation but that Congress delimited the Board’s power to reconsider its awards with precisely this factor in mind; hence the language that a certificate “shall he effective . . . until suspended or revoked as hereinafter provided” (emphasis supplied), language which is absent from several of the Acts to which reference has been made. Thus, the structure of the statute, when considered in light of the factor persuading Congress, indicates to us that the critical date in the mind of Congress was the date on which the carrier commenced operations, with the concomitant investment in facilities and personnel, not the date that abstract legal analysis might indicate as the “final” date. In other words, it seems clear to us that Congress was relatively indifferent to the fluctuations an award might undergo prior to the time it affected practical relationships, but that Congress was vitally concerned with its security after the wheels had been set in motion. In light of this, we think the result we reach follows naturally: to the extent there are uncertainties over the Board’s power to alter effective certificates, there is an identifiable congressional intent that these uncertainties be resolved in favor of the certificated carrier and that the specific instructions set out in the statute should not be modified by resort to such generalities as “administrative flexibility” and “implied powers.” We do not quarrel with those who would grant the Board great discretion to conjure with certificates prior to effectuation. But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously.
However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration filed before the certificate’s effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain petitions for reconsideration even prior to the effective date of the certificate, but they assert, and we assume arguendo they are correct, that the Board has implied power to accept such petitions. This being the case, petitioners claim that the existence of an outstanding petition for reconsideration gives a double meaning to the term "effective” as used in the Act: certificates are "effective” on the date specified therein for the purpose of allowing the certificated carrier to commence operations, but they are not “effective” as the term is used in § 401 (f) so as to preclude modification outside the procedures specified in § 401 (g).
The appeal of this argument comes, in the main, from the general notion that an administrative order is not “final,” for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e. g., Outland v. Civil Aeronautics Board, 109 U. S. App. D. C. 90, 284 F. 2d 224; Braniff Airways, Inc., v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152. Once it is established that the certificate is not “final” for one purpose, the argument runs, then it is logical to assume that the certificate lacks “finality” for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for reconsideration; the question whether the Board’s action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners’ argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal. In point of fact, this assertion is not only unsupported but erroneous. The pertinent statutory language is not similar in the two instances. and the other points under analysis are different. Thus, a court considering the timeliness of a litigant's appeal is concerned with the wisdom of exercising its own power to act, and the result depends on such factors as fairness to the appellant and the intent of Congress in passing a general statute — § 10 (c) of the Administrative Procedure Act— which applies equally to almost all administrative agencies. There is no call, as Outland, and similar cases illustrate by their omissions, for considering either the sections of a particular act which are not concerned with appellate review or the problem — which at that point is of historical interest only — whether the petition for reconsideration should have been decided summarily or after notice and hearing. One might argue, of course, that the question is similar in both instances because, if the Board’s action on the petition for reconsideration is too late, then an appeal which is timely only from the Board’s action on reconsideration is also too late. However, this line of reasoning overlooks the confines of the result we are reaching in this case. We are not saying that the Board cannot entertain petitions for reconsideration after effective certification, nor are we holding that such petitions cannot be denied summarily; all we hold is that the petitions cannot be granted and the certificated carrier’s operations curtailed without notice or hearing. Therefore, since the cases such as Outland concerned the denial of a petition for reconsideration, there is no conflict, express or implied, between those decisions and this one. In this connection, the statement of a leading commentator seems particularly pertinent:
. “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, The Logical and Legal Bases of the Conflict of Laws, 159.
Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for “nullify [ing] an express provision of the Act.” Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 122 F. 2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U. S. 424, while overruling the Interstate Commerce Commission’s contention that it had inherent power to reconsider effective certificates, paid no attention to the fact that the Commission had made the original certificate effective, subject “to such terms, conditions, and limitations as are now, or may hereafter be, attached to the exercise of such authority by this Commission.”
Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners’ vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may postpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board -prescribes for re-examination. Indeed, with all these weapons at its command, it is difficult to follow the argument that the Board should be allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility.
Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is not clear what comfort respondent could take from such notice; respondent could not hedge, since § 401 (f) of the Act provides that a certificated carrier may lose the right to conduct any service it does not initiate within 90 days of certification. Concededly, the fact of notice gives considerable surface appeal to petitioners’ assertions; they can and do argue that respondent knew what it was getting into and should not be heard to complain when the gamble turns out unfavorably. However, it must be remembered that the problem is not presented to us in the abstract; we are dealing with it in the context of this particular statute. And, as stated above, a major purpose behind the enactment of the Aviation Act was to eliminate the element of risk from a carrier’s operations. With Congress on record as affirmatively desiring to eliminate the necessity of gambling, we do not feel that the “assumption of the risk” argument carries much weight. The Board also argues that respondent “in substance” enjoyed the hearing contemplated by § 401 (g) because the matters impelling the Board to change its mind were matters that had been thrashed out during the hearings on the original certificate. However, this contention assumes a fact that we do not have before us — that a hearing would not have disclosed any further evidence or, perhaps more importantly, any post-certification events weighty enough to alter the Board’s thinking.
In short, our conclusion is that Congress wanted certificated carriers to enjoy “security of route” so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask that the Board furnish these minimum protections as a matter of course, whether or not the Board in a given case might think them meaningless. It might be added that some authorities have felt strongly enough about the practical significance of these protections to suggest that their presence may be required by the Fifth Amendment. See Seatrain Lines v. United States, 64 F. Supp. 156, 161; Handlon v. Town of Belleville, 4 N. J. 99, 71 A. 2d 624; see also 63 Harv. L. Rev. 1437, 1439.
Petitioners’ final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had “grave doubts” about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C. A. B. 401; cf. Smith Bros., Revocation of Certificate, 33 M. C. C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808, but the dispute here involved was not raised in that case. The closest analogy in Frontier is to the argument put forward by a party whose petition for reconsideration had been denied; and the Court of Appeals reported this argument and the reasons for overruling it as follows:
“[T]he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points.
“We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.”
Perhaps more favorable to petitioners is this Court’s decision in United States v. Rock Island Motor Transport Co., 340 U. S. 419, where it was held that the Interstate Commerce Commission could modify a motor carrier’s effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification, 49 U. S. C. § 308, and (2) the Court in Rock Island was very careful to limit its holding to the particular modification made in that case. Finally, the decision which is analytically most relevant to this case, United States v. Seatrain Lines, supra, furnishes support for respondent, rather than petitioners. While Seatrain may be distinguishable on its facts, the Court spoke in general terms of the rule that supervising agencies desiring to change existing certificates must follow the procedures “specifically authorized” by Congress and cannot rely on their own notions of implied powers in the enabling act. In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute. Therefore, since the language and background of the statute are against, rather than for, the Board, the judgment of the Court of Appeals must be
Affirmed.
This section provides:
“Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided, or until the Board shall certify that operation thereunder has ceased, or, if issued for a limited period of time under subsection (d) (2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased: Provided, That if any service authorized by a certificate is not inaugurated within such period, not less than ninety days, after the date of the authorization as shall be fixed by the Board, or if, for a period of ninety days or such other period as may be designated by the Board any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service.”
The Board’s regulations concerning petitions for reconsideration, 14 CFR § 302.37, provide in part that:
“Petition for reconsideration — (a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.”
A temporary stay was granted from November 29 to December 5 to enable the Court of Appeals to consider a request by Eastern Air Lines for a judicial stay of certain awards made in the original proceeding. Eastern did not get its stay nor was its challenge on the merits upheld. Eastern Air Lines v. Civil Aeronautics Board, 271 F. 2d 752.
We are informed that this case has now been completed but no further action has been taken on Delta’s restrictions.
See Tobias, Administrative Reconsideration: Some Recent Developments in New York, 28 N. Y. U. L. Rev. 1262, where the author observed:
“Re-examination and reconsideration are among the normal processes of intelligent living. Admittedly no warranty of correctness or fitness attaches to a decision or an action simply because it is a thing of the past. Every-day experience teaches the contrary: while the choice first made may well remain the course ultimately followed, often enough it is found on further consideration to require revision. On the other hand, constant re-examination and endless vacillation may become ludicrous, self-defeating, and even oppressive. Whether for better or for worse so far as the merits of the chosen course are concerned, a point may be reached at which the die needs to be cast with some 'finality.' An opposition may thus develop between the right result and the final one.”
See also the statement of the Board in its original opinion in this ease, denying a motion to reopen the record:
“Our general policy with respect to motions to reopen the record for receipt of data on the most recent operating experience has consistently reflected the requirement of the public interest that the record in major route cases be brought to a close as expeditiously as possible, consistent with the requirements of full hearings; so that final decision may be rendered promptly. Institution of needed new services could be endlessly delayed were we to permit the record to be reopened in the final procedural stages of a case for the submission of more recent operating data (and the attendant cross-examination and exchange of rebuttal-evidence). Only in the cases where the situation under consideration has changed radically would such a course of action be justified.”
Generally speaking, the less interested Congress has been in what has been called “security of certificate,” the wider the scope of reconsideration Congress has allowed to the supervising agency. See generally Davis, Res Judicata in Administrative Law, 25 Texas L. Rev. 199. It cannot be doubted that Congress was powerfully interested in “security of certificate” when it passed the Aviation Act. See 83 Cong. Rec. 6407.
No one contends that the changes made upon reconsideration constituted the correction of inadvertent errors. See American Trucking Assns., Inc., v. Frisco Transportation Co., 358 U. S. 133.
Speaking on behalf of the bill which became the predecessor of the Federal Aviation Act — the Civil Aeronautics Act of 1938— Congressman Lea, Chairman of the Committee on Interstate and Foreign Commerce which reported the bill, said:
“One hundred and twenty million dollars has already been invested in commercial aviation in the United States. It is the information of the committee that $60,000,000 of this sum has been wiped out. The fact that so much money has been put into commercial aviation shows the faith, the genius, and the courage of the American people in that they are willing to invest as they have in aviation up to this date. However, in the absence of legislation such as we have now before us these lines are going to find it very difficult if not impossible to finance their operations because of the lack of stability and assurance in their operations. You would not want to invest $200 or $2,000 a mile in a line that has no assurance of security of its route and no protection against cutthroat competition.
“Part of the proposal here is that the regulatory body created by the bill will have authority to issue certificates of convenience and necessity to the operators. This will give assurance of security of route. The authority will also exejcise rate control, requiring that rates be reasonable and giving power to protect against cutthroat competition. In my judgment, those two things are the fundamental and essential needs of aviation at this time, security and stability in the route and protection against cutthroat competition.
“These are the two economic fundamentals presented and it is this necessity that the bill seeks to meet. We want to give financial stability to these companies so they can finance their operations and finance them to advantage.” 83 Cong. Rec. 6406-6407.
The “finality” of an order for purposes of judicial review depends on § 10 (c) of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009 (c). See 6 Stan. L. Rev. 531.
In addition to the reasons mentioned in the text, those cases involving orders, rather than certificates—see Western Air Lines v. Civil Aeronautics Board, 194 F. 2d 211—are distinguishable for the reasons stated in Seatrain, supra, at 432. Similarly, the cases involving certificates under the Federal Communications Act are distinguishable for the reasons stated by Commissioner Ryan. See Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384-385.
See also Hancock, Fallacy of the Transplanted Category, 37 Can. B. Rev. 535. One might argue, of course, that judicial review and administrative reconsideration are the same since both threaten a reversal of the prior award. However, Congress has shown no intent to preclude reconsideration, either judicial or administrative, after notice and hearing.
Although the Board did not purport to issue a temporary certificate as prescribed in §401 (d)(2), petitioners now argue that the Board’s action was “equivalent” to a temporary certification. However, we do not find this proposition persuasive. As stated in the text, supra, we think that the Board must bow to the statutory procedure and cannot take short cuts. See note 15, infra. Moreover, the most natural reading of § 401 (d) (2) — which says that temporary certificates may be issued for “limited periods” — is that Congress was authorizing the Board to issue certificates running until a specified date. One reason for this construction is obvious; if a temporary certificate had unlimited duration, only subject to immediate revocation when the Board got around to considering various objections, it might play havoc with the ability of the carrier to accept advance reservations. Just such a contention was made by Delta before the Board in its petition for a stay of the Board’s May 7, 1959, order on reconsideration. Delta pointed out:
“It is a fact that schedules for May and June, and timetables showing this early morning Chicago-Indianapolis-Evansville and Evansville-Indianapolis-Chicago service, have been released to the public and many reservations have been booked for these months. Furthermore, pilot bidding procedures and problems involving equipment rotation prohibit the immediate cancellation of this flight on short notice.”
It appears clear, and the Board does not disagree, that the “hearing” specified in § 401 (g) means a “hearing” prior to decision. And, the Board does not contend that this requirement could have been satisfied by the allowance of a hearing after the decision on reconsideration was handed down. This course of action seems wise since (1) it is generally accepted on both principle and authority that a hearing after decision, although permissible in special circumstances, is not the equivalent of a predetermination hearing, see, e. g., Gelhorn and Byse, Administrative Law, 774; (2) it is not entirely clear that Delta could have procured a hearing after the Board’s decision. Delta sought a stay of the Board’s May 7 order until after the Great Lakes Local Service Investigation Case was decided, presumably with a view to introducing further evidence on the present point in that ease; the request for a stay was denied.
Since Kansas City, the Board has reconsidered an effective award on three occasions. United Western, Acquisition of Air Carrier Property, 11 C. A. B. 701; Service to Phoenix Case, Order E-12039 (1957); South Central Area Local Service Case, Order E-14219 (1959). United Western did not involve a certificate of public convenience and necessity and, thus, has no relevance. See note 10, supra. Service to Phoenix involved a denial of reconsideration except on one point, which might arguably be termed the correction of inadvertent error. See note 7, supra. South Central did involve the alteration of a certificated carrier’s rights. As stated, the present point was not raised in any of these three cases.
The potentially distinguishing feature about Seatrain is that the Court’s holding may rest on an alternate ground — viz.: that the Commission had no power to impose the conditions it did in the first instance. However, Seatrain cannot be distinguished on the grounds that the Court said “the certificate, when finally granted and the time fixed for rehearing has passed, is not subject to revocation in whole or in part except as specifically authorized . . . The point is that, under the Water Carrier Act, the Commission had express authority to entertain petitions for reconsideration at any time. See 49 U. S. C. § 916 (a), incorporating 49 U. S. C. § 17 (6) and (7). Therefore, it is clear that the Commission in Seatrain could have reached with impunity the result it wanted to reach by following the procedures set out by Congress. The force of the Seatrain decision is, then, that the commissions and boards must follow scrupulously the statutory procedures before they can alter existing operations and that arguments to the effect that “this is just another way of doing it” will not prevail.
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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",
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"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
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"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",
"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"
] |
[
11
] |
CORNELIUS, ACTING DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT v. NUTT et al.
No. 83-1673.
Argued January 7, 1985
Decided June 24, 1985
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, Stevens, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 666. Powell, J., took no part in the decision of the case.
Charles A. Rothfeld argued the cause pro hac vice for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, David M. Cohen, and George M. Beasley III.
Charles A. Hobble argued the cause for respondents. With him on the brief was Mark D. Roth.
Lois G. Williams filed a brief for the National Treasury Employees Union et al. as amici curiae urging affirmance.
Justice Blackmun
delivered the opinion of the Court.
Under the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111, a federal employee may challenge agency disciplinary action by appealing the agency’s decision to the Merit Systems Protection Board (Board). If, however, the employee is a member of a collective-bargaining unit of federal employees, he, in the alternative, may challenge the disciplinary action by pursuing any grievance and arbitration procedure provided by the collective-bargaining agreement. Neither the Board nor the arbitrator may sustain the agency’s decision if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” 5 U. S. C. § 7701(c)(2)(A). The Board has interpreted this statute to require the employee to show error that causes substantial prejudice to his individual rights by possibly affecting the agency’s decision. This case presents the issue whether a different “harmful-error” interpretation should apply in an arbitration, or, to phrase it another way, whether the arbitrator may overturn agency disciplinary action on the basis of a significant violation of the collective-bargaining agreement that is harmful only to the union.
I
The 1978 Act is “a comprehensive revision of the laws governing the rights and obligations of civil servants, [and] contains the first statutory scheme governing labor relations between federal agencies and their employees.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91 (1983). Among the major purposes of the Act were the “preservation of] the ability of federal managers to maintain ‘an effective and efficient Government,’” ibid., quoting 5 U. S. C. § 7101(b), and the “strengthening of] the position of federal unions and [making] the collective-bargaining process a more effective instrument of the public interest,” 464 U. S., at 107.
To promote the first of these purposes, the Act provides that a federal employee may be removed or otherwise disciplined for unacceptable performance or for misconduct. Specifically, §4303 establishes procedures by which an agency may remove or demote an employee whose performance is unacceptable. In addition, §7512 provides that an agency may take adverse action against an employee, including removal, suspension for more than 14 days, reduction in grade or pay, or a furlough of 30 days or less, for, as § 7513 states, “such cause as will promote the efficiency of the service,” including misconduct. A federal employee subjected to agency disciplinary action taken pursuant to § 4303 or § 7512 may appeal the agency’s decision to the Board. §§ 4303(e), 7513(d), and 7701. The Board must sustain the agency’s decision if it is supported by appropriate evidence. § 7701(c)(1). The agency’s decision may not be sustained, however, if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” § 7701(c)(2)(A).
To promote the second of these purposes of the Act — “to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest” — the Act requires federal agencies and unions representing agency employees to “negotiate over terms and conditions of employment, unless a bagaining proposal is inconsistent with existing federal law, rule, or regulation.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 92. Even matters reserved to agency-management discretion, such as discipline, are subject to negotiation concerning the procedures that management officials will observe in exercising their authority. § 7106(b)(2).
The Act also requires any collective-bargaining agreement between a federal agency and a union to provide for a grievance procedure and binding arbitration for the resolution of disputes arising under the agreement. §§ 7121(a) and (b). An employee in a bargaining unit having a negotiated grievance procedure that covers agency disciplinary action taken pursuant to §4303 or §7512 thus may elect to challenge such action by filing a grievance rather than appealing to the Board. § 7121(e)(1). If the employee elects so to proceed, and the union or the agency invokes binding arbitration, see § 7121(b)(3)(C), the arbitrator is to apply the same substantive standards that the Board would apply if the matter had been appealed. See S. Rep. No. 95-969, p. Ill (1978); H. R. Conf. Rep. No. 95-1717, p. 157 (1978). In particular, the Act provides: “In matters covered under sections 4303 and 7512 . . . which have been raised under the negotiated grievance procedure ... , an arbitrator shall be governed by section 7701(c)(1) . . . .” § 7121(e)(2). Section 7701(c)(1) incorporates by reference the provisions of subsection (c)(2), including the harmful-error rule. Thus, the statutory scheme mandates that the harmful-error rule is to apply whether the employee challenges the agency action through the Board or through binding arbitration.
f — 1 H-1
Thomas Rogers and Robert Wilson,-Jr. (grievants), were employed by General Services Administration (GSA) as Federal Protective Service (FPS) officers at the Federal Center in Denver, Colo. Rogers patrolled property owned or leased by the Federal Government at various locations in the Denver metropolitan area while maintaining contact either by radio or by telephone with the Command Center. Wilson worked as a dispatcher at the Center. Everything spoken over the radio and telephone lines of the Command Center is recorded on tape. This tape constitutes the record of activity at the Center.
On January 7, 1982, Rogers was on patrol in an official Government car. At the request of his shift supervisor, he drove to his home in a nearby suburb, picked up several cans of beer, and delivered the beer to the supervisor at the Center. The supervisor later drank the beer and left the empty cans at the Center when he went off duty. The following day, the supervisor, while off duty, became concerned that the unexplained presence of empty beer cans might lead to the discovery of his drinking beer while on duty. He therefore telephoned Wilson, at the Command Center, and instructed him to alter the tape for the previous day to include a false explanation for the presence of the beer cans. Wilson complied with this request.
Subsequently, an FPS official monitoring the tapes for an unrelated reason noted irregularities in them and concluded that they had been edited. GSA’s Inspector General initiated an investigation. Two special agents went to Rogers’ home and asked him to accompany them to the local police station for a “noncustodial” interrogation. The agents made detailed notes of the interview. Wilson was interviewed in the same manner. Neither was advised that he was entitled to have a union representative present at the interview, and neither requested the presence of a representative.
About a month later, the agents again interviewed the two men separately and asked them to sign affidavits prepared from the agents’ notes of the earlier interviews. The griev-ants made corrections in the proposed affidavits and then, under oath, signed them. In the affidavits, the grievants admitted their participation in the above-described incidents of wrongdoing. As before, the grievants were not advised that they were entitled to have a union representative present, and they did not request representation.
On April 2, 1982, almost three months after the incidents, GSA formally advised, the grievants that it proposed to remove them from federal service. Upon receiving written responses to the charges, GSA informed Wilson that he would be removed on grounds of falsification of records and of attempting to conceal activities of record. Similarly, GSA informed Rogers that he would be removed on grounds of falsification of records, failure to report irregularities, and use of a Government vehicle for a nonofficial purpose.
Both grievants elected to challenge their removal under the grievance and arbitration procedures established by the collective-bargaining agreement between GSA and their union, respondent American Federation of Government Employees. The union then invoked binding arbitration pursuant to § 7121(b)(3)(C). The arbitrator, respondent Nutt, found that the grievants had committed the alleged acts of wrongdoing and that this misconduct normally would justify the penalty of removal from Government service. The arbitrator also found, however, that GSA on its part had committed two procedural errors in violation of provisions of the collective-bargaining agreement. First, GSA had failed to give the grievants an opportunity to have a union representative present during interrogation. Second, GSA had permitted an unreasonable period of time to elapse between the date it first learned of the misconduct and the date it issued the notices of proposed removal. The arbitrator concluded that there was no prejudice to the grievants themselves due either to the failure to have a union representative present or to the delay in the issuance of the notices. He found, nevertheless, that the removals were not for just cause “[sjolely because of the Agency’s pervasive failure to comply with the due process requirements of the [collective-bargaining] agreement.” App. to Pet. for Cert. 38a. He therefore reduced the penalties imposed on the grievants from removal to not less than two weeks’ disciplinary suspension without pay. Id., at 39a. In addition, he required that Wilson be placed in a position in which the agency would be protected from his “demonstrated proclivity to tamper with the tape recording system.” Id., at 38a.
Pursuant to §§ 7703(d) and 7121(f), the Director of the Office of Personnel Management sought review of the arbitrator’s decision by the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295(a)(9). The Director contended that the arbitrator had not properly applied the Act’s harmful-error rule. The Court of Appeals granted the petition for review, and it was heard by a 5-judge panel. The court affirmed the arbitrator’s decision in substantial part. 718 F. 2d 1048 (1983). It held that an arbitrator must apply the harmful-error standard of § 7701(c)(2)(A) in determining whether a grievant is personally prejudiced. The court noted that, in the present case, the arbitrator found that the grievants had not been personally prejudiced. Nevertheless, following whatxit deemed to be the lead of the decision in Devine v. White, 225 U. S. App. D. C. 179, 697 F. 2d 421 (1983), the Court of Appeals went on to hold that even though the particular grievants may not themselves have been adversely affected, the arbitrator, in making the ultimate award, could take into account significant violations of the collective-bargaining agreement that were important to the union. The court reasoned: “The union is a major (if not the major) party to the arbitration and its proper interests are to be protected, even though the interests of the particular grievants may not, alone, call for protection” (emphasis in original). 718 F. 2d, at 1054. Here, the union and the agency agreed to procedural safeguards concerning representation and notice, and these procedures effectively became union rights. Thus, “[violations of explicit and important procedural rights contained in a contract, such as these, could fairly be said to be tantamount to ‘harmful error’ to the union within the scope of 5 U. S. C. § 7701(c)(2)(A) (1982) for the purposes of collective bargaining arbitration in which the union is a proper party.” Id., at 1055. The court concluded that the arbitrator’s reduction of the griev-ants’ penalties was a proper means of “penalizing the agency” for disregarding the procedural protections of the collective-bargaining agreement. Ibid.
Because of the importance of the issue, we granted certio-rari. 469 U. S. 814 (1984).
M HH l — l
A
The harmful-error rule of 5 U. S. C. § 7701(c)(2)(A) provides that an agency’s decision that is appealable to the Board may not be sustained if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” Petitioner argues that “harmful error” is error that causes substantial prejudice to the rights of the individual employee by possibly affecting the agency’s decision.
The Act does not define the term “harmful error,” and the legislative history of § 7701(c)(2)(A) is inconclusive. The Act provides, however, that the Board “may prescribe regulations to carry out the purpose of [§ 7701],” the provision in which the harmful-error rule appears. See § 7701(j). Pursuant to this authority, the Board has promulgated a definition of “harmful error”:
“Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i. e., caused substantial harm or prejudice to his/her rights.” 5 CFR § 1201.56(c)(3) (1985).
The agency’s “procedures” considered by the Board in applying § 7701(c)(2)(A) include not only procedures required by statute, rule, or regulation, but also procedures required by a collective-bargaining agreement between the agency and a union. Thus, in an appeal of an agency disciplinary decision to the Board, the agency’s failure to follow bargained-for procedures may result in its action’s being overturned, but only if the failure might have affected the result of the agency’s decision to take the disciplinary action against the individual employee. At least insofar as it applies to proceedings before the Board, this interpretation of the harmful-error rule is entitled to substantial deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).
Respondents do not dispute the correctness of the Board’s definition of harmful error insofar as it applies to proceedings before the Board. Respondents argue, however, that an arbitral proceeding differs significantly from a Board proceeding, and that a different definition of harmful error should apply in the arbitral context. Respondents point out that an appeal to the Board is taken solely by the employee or applicant for employment, see 5 U. S. C. § 7701(a), and that the union has no statutory role in a Board proceeding. In contrast, according to respondents, the union should be considered to be a major party in an arbitration. The union and the agency negotiate the grievance procedures and the terms of the collective-bargaining agreement establishing the extent of the arbitrator’s authority. The union and the agency possess the exclusive power to invoke the arbitral process, and these parties jointly select an acceptable arbitrator. Thus, according to respondents, while the Board must focus exclusively on the rights of the individual employee, the arbitrator should take a broader view and consider the rights of the union as well. Respondents contend that the Court of Appeals therefore correctly held that “the arbitrator can take account of significant violations of the collective bargaining agreement, important to the union, even though the particular grievants may not have been themselves adversely affected.” 718 F. 2d, at 1054.
We are not persuaded by respondents’ arguments. Congress clearly intended that an arbitrator would apply the same substantive rules as the Board does in reviewing an agency disciplinary decision. Section 7121(e)(2) provides that in matters involving agency discipline “which have been raised under the negotiated grievance procedure ... , an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable.” Section 7701(c)(1) incorporates by reference the harmful-error rule of § 7701(c)(2)(A). The Senate Report explains that, under this provision, “if an employee exercises the option to pursue a matter [involving agency discipline] through the negotiated grievance procedure an arbitrator must apply the same standards in deciding the case as would be applied by an administrative law judge or an appeals officer if the case had been appealed through the appellate procedures of 5 U. S. C. section 7701.” S. Rep. No. 95-969, p. 111 (1978). The version of the bill passed by the House did not contain a similar provision. The Conference Committee noted that, under the Senate provision, “when considering a grievance involving an adverse action otherwise appealable to the [Board] . . . the arbitrator must follow the same rules governing burden of proof and standard of proof that govern adverse actions before the Board.” H. R. Conf. Rep. No. 95-1717, p. 157 (1978). The Conference Committee “adopted the Senate provision in order to promote consistency in the resolution of these issues, and to avoid forum shopping.” Ibid.
Adoption of respondents’ interpretation of the harmful-error rule in the context of an arbitral proceeding would directly contravene this clear congressional intent. An employee who elects to appeal an agency disciplinary decision to the Board must prove that any procedural errors substantially prejudiced his rights by possibly affecting the agency’s decision. Under respondents’ interpretation, however, an employee who elects to use the grievance and arbitration procedures may obtain reversal merely by showing that significant violations of the collective-bargaining agreement, harmful to the union, occurred. In the present case, if the disciplined employees had elected to appeal to the Board, their discharges would have been sustained by the Board under its interpretation of the harmful-error rule. Because, however, they pursued the negotiated grievance and arbitration procedures, they benefited from the different interpretation of the harmful-error rule advocated by respondents and applied by the arbitrator and the Court of Appeals, and their discharges were replaced with brief suspensions. If respondents’ interpretation of the harmful-error rule as applied in the arbitral context were to be sustained, an employee with a claim that the agency violated procedures guaranteed by the collective-bargaining agreement would tend to select the forum — the grievance and arbitration procedures — that treats his claim more favorably. The result would be the very inconsistency and forum shopping that Congress sought to avoid.
B
We, however, do not rest our decision solely on deference to the Board’s interpretation of the harmful-error rule and on the clear congressional intent that an arbitrator apply the same substantive standards as does the Board. Rather, we rest our decision ultimately on the conclusion that we must interpret the harmful-error rule as does the Board if we are “‘to remain faithful to the central congressional purposes underlying the enactment of the CSRA.’” Lindahl v. Office of Personnel Management, 470 U. S. 768, 794 (1985), quoting Devine v. White, 225 U. S. App. D. C., at 183, 697 F. 2d, at 425. As noted above, one of the major purposes of the Act was to “preserv[e] the ability of federal managers to maintain ‘an effective and efficient Government.’” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 92, quoting 5 U. S. C. § 7101(b). In order to achieve this purpose, one of the “central tasks” of the Act was to “[a]llow civil servants to be able to be hired and fired more easily, but for the right reasons.” S. Rep. No. 95-969, p. 4 (1978). In particular, the provisions of § 7701 of the Act, including the harmful-error rule, were intended “to give agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable.” Id., at 51. In the present case, the grievants concededly committed improper acts that justified their removal from the federal service. Although the agency committed procedural errors, those errors do not cast doubt upon the reliability of the agency’s factfinding or decision. We do not believe that Congress intended to force the Government to retain these erring employees solely in order to “penalize the agency” for nonprejudicial procedural mistakes it committed while attempting to carry out the congressional purpose of maintaining an effective and efficient Government.
Respondents argue, however, that penalizing the Government in this manner is necessary in order to enforce the procedures arrived at through collective bargaining, and thus to promote a second major purpose of the Civil Service Reform Act — “to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 107. Respondents contend that if harmful error must be shown in the sense that an employee’s own case is prejudiced, then the procedures arrived at through collective bargaining really become meaningless. We find this concern overstated. Under any interpretation of the harmful-error rule, unions are free to bargain for procedures to govern agency action, see §§ 7106 (b)(2) and (3), and agencies are obligated to follow the agreed-upon procedures. If the agency violates those procedures with prejudice to the individual employee’s rights, any resulting agency disciplinary decision will be reversed by the Board or by an arbitrator.
Even if the violation is not prejudicial to the individual employee, the union is not without remedy. The Act permit.fi the union to file a grievance on its own behalf. § 7121 (b)(3)(A). The Act broadly defines “grievance” to include “any complaint... by any employee labor organization . . . concerning . . . the effect or interpretation, or a claim of breach, of a collective bargaining agreement.” § 7103(a)(9) (C)(i). This statutory authorization clearly permits the union to file a grievance alleging a violation of the procedural requirements established in the collective-bargaining agreement. The arbitrator can remedy such violation by ordering the agency to “cease and desist” from any further such violation. In addition, if the violation constitutes “a clear and patent breach of the terms of the agreement,” Iowa National Guard and National Guard Bureau, 8 F. L. R. A. 500, 510 (1982), the union may file an unfair labor practice charge with the Federal Labor Relations Authority. See §§7116 and 7118. Our holding today therefore does not prevent the union from obtaining a binding interpretation of a disputed provision of the collective-bargaining agreement or from enforcing agency compliance with that provision. We hold only that the means of compelling compliance do not include forcing the agency to retain an employee who is reliably determined to be unfit for federal service.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Powell took no part in the decision of this case.
Section 7701(c)(1) reads:
“Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency’s decision—
“(A) in the ease of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or
“(B) in any other case, is supported by a preponderance of the evidence.”
Section 7701(c)(2) reads:
“Notwithstanding paragraph (1), the agency’s decision may not be sustained under subsection (b) of this section if the employee or applicant for employment—
“(A) shows harmful error in the application of the agency’s procedures in arriving at such decision;
“(B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or
“(C) shows that the decision was not in accordance with law.”
Although § 7121(e)(2) explicitly refers only to § 7701(c)(1), it is clear from the language of the statute and the legislative history, discussed below, that the harmful-error rule of § 7701(c)(2)(A) is incorporated by § 7121(e)(2). See Devine v. White, 225 U. S. App. D. C. 179, 199, 697 F. 2d 421, 441 (1983). See also Devine v. Brisco, 733 F. 2d 867, 872 (CA Fed. 1984). Respondents concede that the harmful-error rule applies to an arbitration as well as to a proceeding before the Board, but they contend that the rule should be interpreted differently in the two contexts.
The supervisor involved in the incident also was discharged. His discharge was upheld by the Board.
Article XXVII, §2, of the collective-bargaining agreement between GSA and the union provides:
“The Employer agrees that during formal discussion where interrogation or written or sworn statements are taken from an employee, in connection with a charge that may result in disciplinary action against him, he will have the opportunity to have a representative present. It should be understood that counseling sessions are not formal discussions.” App. to Pet. for Cert. 22a.
The arbitrator interpreted this provision to require that the employee be advised of the right to representation before being investigated.
Article XXVII, §3, of the collective-bargaining agreement, as supplemented, provides in pertinent part:
“PROPOSED NOTICE: In the event an employee is issued a notice of proposed disciplinary or adverse action, that employee must be afforded and made aware of all his/her rights. These proposed notices shall be served on the employee(s) within a reasonable period of time (normally 40 calendar days) after the occurrence of the alleged offense or when the alleged offense becomes known to management.” App. to Pet. for Cert. 23a.
In Devine v. White, the United States Court of Appeals for the District of Columbia Circuit held that some bargained-for procedural rights are, by definition, substantial rights of an employee, and that an agency’s violation of those rights constitutes harmful error requiring reversal of the agency’s decision even absent a showing that the violation might have affected the outcome of the decision. See 225 U. S. App. D. C., at 201, 697 F. 2d, at 443. The Court of Appeals in Devine v. White therefore did not interpret the harmful-error rule to protect the rights of the union, as did the Court of Appeals for the Federal Circuit in the present case. The decision in Devine v. White, however, is inconsistent with our decision today insofar as it dispenses with the requirement that harmful error have some likelihood of affecting the outcome of the agency’s decision.
The Court of Appeals, however, did not approve the arbitrator’s reduction of Rogers’ penalty to two weeks’ suspension, since there is a statutorily imposed minimum of one month’s suspension for the unauthorized operation of a Government vehicle. See 31 U. S. C. § 1349(b). It therefore ordered the imposition of a one month’s suspension for Rogers. 718 F. 2d, at 1055-1056.
It would be natural, however, to assume that Congress intended the term “harmful error” in § 7701(c)(2)(A) to have the same meaning that it has in the judicial context, that is, error that has some likelihood of affecting the result of the proceeding. See, e. g., United States v. Hasting, 461 U. S. 499, 507-509 (1983); Kotteakos v. United States, 328 U. S. 750, 760-762 (1946).
The original Senate version of the bill that became the Civil Service Reform Act of 1978 provided that “agency action shall be upheld by the Board, the administrative law judge, or the appeals officer unless — (A) the agency’s procedures contained error that substantially impaired the rights of the employee.” See S. Rep. No. 95-969, p. 224 (1978); see also id., at 179. The Senate Report explains: “Henceforth, the Board and the courts should only reverse agency actions under the new procedures where the employee’s rights under this title have been substantially prejudiced.” Id., at 51. See also id., at 54, 64. The Senate Report does not refer directly to the application of the harmful-error rule in an arbitration. The Report, however, does state that in “the negotiated grievance procedure an arbitrator must apply the same standards in deciding the case as would be applied ... if the case had been appealed through the appellate procedures of 5 U. S. C. section 7701.” Id., at 111. Thus, it is clear that the Senate version of the harmful-error rule focused on the rights of the employee and did not suggest affirmatively that the Board or an arbitrator could take into account the rights of the union.
The Conference Committee did not adopt the Senate version. Petitioner points out that the Joint Explanatory Statement of the Committee on Conference, which explained “the effect of the major actions agreed upon by the managers” of the two bodies, H. R. Conf. Rep. No. 95-1717, p. 127 (1978), did not note that any substantive change in meaning was intended by the change in language. We decline, however, to infer congressional intent to adopt the substance of the Senate version solely on the basis of this legislative silence.
Similarly, in Parker v. Defense Logistics Agency, 1 M. S. P. B. 489, 493 (1980), the Board explained:
“Unless it is likely that an alleged error affected the result, its occurrence cannot have been prejudicial .... Stated another way, the question is whether it was within the range of appreciable probability that the error had a harmful effect upon the outcome before the agency.”
See also, e. g., Davies v. Department of the Navy, 4 M. S. P. B. 83, 85 (1980); Fuiava v. Department of Justice, 3 M. S. P. B. 217, 218 (1980).
See, e. g., Parker v. Defense Logistics Agency, 1 M. S. P. B., at 492-496.
See, e. g., Stalkfleet v. United States Postal Service, 6 M. S. P. B. 536, 537 (1981); Battaglia v. Department of Health and Human Services, 5 M. S. P. B. 212 (1981); Giesler v. Department of Transportation, 3 M. S. P. B. 367, 368-369 (1980), aff’d, 686 F. 2d 844 (CA10 1982).
The United States Court of Appeals for the Federal Circuit has approved the Board’s construction of the harmful-error rule as applied in proceedings before the Board. See, e. g., Miguel v. Department of the Army, 727 F. 2d 1081, 1084-1086 (1984); Cheney v. Department of Justice, 720 F. 2d 1280, 1285 (1983); Shaw v. United States Postal Service, 697 F. 2d 1078, 1080-1081 (1983).
On the other hand, it is the employee who makes the initial election whether to use the negotiated grievance procedure at all, see 5 U. S. C. § 7121(e)(1), and who elects whether to seek judicial review of the arbitrator’s decision, see §§ 7121(f), 7703(a)(1). Also, by the plain terms of § 7701(c)(2)(A), it is the employee who bears the burden of showing harmful error.
In addition, Congress made arbitral decisions subject to judicial review “in the same' manner and under the same conditions as if the matter had been decided by the Board,” 6 U. S. C. § 7121(f), expressly “to assure conformity between the decisions of arbitrators with those of the Merit Systems Protection Board.” S. Rep. No. 95-969, p. 111 (1978).
See also S. Rep. No. 95-969, p. 52 (1978) (provisions of § 7701 intended “to eliminate unwarranted reversals of agency actions”); id,., at 54 (provisions of § 7701 intended to “avoid unnecessary reversal of agency actions because of technical procedural oversights”).
Respondents argue that requiring the union separately to file a grievance and invoke arbitration in order to enforce its own rights would result in duplicative proceedings. There is, however, no reason why, if the union’s institutional grievance and the employee’s individual grievance arise from the same factual situation, the two grievances cannot be consolidated by the arbitrator. The only constraint is that, under the harmful-error rule, the arbitrator may not give the employee a windfall by reversing the agency’s decision to discipline the employee in order to penalize the agency for violating rights of the union, whenever the violation had no effect on the agency’s decision.
In the present case, the union did file an unfair labor practice charge with the Authority. It alleged that “on February 4, 1982, agents of the General Services Administration (GSA) patently breached the applicable collective bargaining agreement by failing to advise unit employees during an interrogation of their right to have a Union representative/present.” App. to Reply Memorandum for Petitioner 4a. The Acting Regional Director found that it was not clear whether the collective-bargaining agreement required the agency to advise unit employees being interrogated of their right to union representation. She therefore concluded that “the dispute in this case involves differing and arguable interpretations of the contracts’ intent and meanings, and should therefore appropriately be resolved through the parties’ negotiated grievance/arbitration procedures, rather than in the unfair labor practice forum.” Id., at 6a. In a case such as this where the meaning of the contract is unclear, the union need only obtain a favorable construction of the contract and an- appropriate cease- and-desist order by filing a grievance and invoking arbitration. Any subr sequent violation by the agency would then provide a basis for an unfair labor practice charge.
Respondents suggest that § 7116(d) precludes the union from filing an unfair labor practice charge when, as in the present case, an employee initiates a grievance procedure or appeal to the Board based on the same factual situation. Section 7116(d) states:
“Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.”
This section provides only that the same aggrieved party cannot raise identical issues under an appeal or grievance procedure and also as an unfair labor practice. It does not preclude a union in its institutional capacity as an aggrieved party from filing an unfair labor practice charge to enforce its own independent rights merely because an employee has initiated an appeal or grievance procedure, based on the same factual situation, to enforce his individual rights. See Internal Revenue Service, Western Region, 9 F. L. R. A. 480, 480-481, n. 2 (1982); United States Air Force, 4 F. L. R. A. 512, 527 (1980).
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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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[
73
] |
PLIVA, INC., et al. v. MENSING
No. 09-993.
Argued March 30, 2011
Decided June 23, 2011
Jay P. Lefkowitz argued the cause for petitioners in all eases. With him on the briefs for petitioners in No. 09-993 were Michael D. Shwmsky, Philippa Scarlett, Joseph P. Thomas, Linda E. Maichl, Richard A. Oetheimer, Jonathan L Price, and William F. Sheehan. William B. Schultz, Irene C. Keyse-Walker, and Richard A. Dean filed briefs for petitioners in Nos. 09-1039 and 09-1501.
Louis M. Bograd argued the cause for respondents in all cases. With him on the brief were Lucia J. W. McLaren, Daniel J. Me,Glynn, Claire, Preste,l, Richard A. Tonry 11, Brian L. Glorioso, and Kristine K. Sims.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of respondents. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General West, Benjamin J. Har-wich, Douglas N Letter, Sharon Swingle, Ralph S. Tyler, and Eric M. Blumberg.
Together with No. 09-1039, Actavis Elizabeth, LLC v. Mensing, also on certiorari to the same court, and No. 09 1601, Actavis, Inc. v. Demaky, on certiorari to the United States Court of Appeals for the Fifth Circuit.
Briofo of amici cwriao urging reversal in all eases were filod for Apo tex, Inc., by Roy T. Englert, Jr., Alan Untcrcincr, Charles A Fitzpatrick III, Arthur B. Keppel, and Shashank Upadhye; for the Generic Pharmaceutical Association by Earl B. Austin, Melissa Armstrong, and Evan A Young; and for Morton Grove Pharmaceuticals, Inc., et al. by Steffen N. Johnson, James F. Hurst, and William P. Ferranti.
Briefs of amici mriao urging affirmance in all casco wore filed for the State of Minnesota et al. by Lori Swanson, Attorney General of Minnesota, Alan I. Gilbert, Solicitor General, and John S. Garry, Assistant Attorney General, by Irvin B. Nathan, Acting Attorney General of the District of Columbia, and William H. Ryan, Jr., Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective States as fcllows: Luther Strange of Alabama, John J. Burns of Alaska, Thomas 0. Horno of Arizona, Dustin McDaniol of Arkansas, Kamala D. Ha/rrio of California, John W. Suthers of Colorado, George Jepsen of Connecticut, Joseph R. Bidón III of Delaware, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Gregory F. Zoeller of Indiana, Tom Miller of Iowa, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, William J. Schneider of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Jim Hood of Mississippi, Chris Kootor of Missouri, Stovo Bulloch of Montana, Jon Bruning of Nebraska, Catherine Cortes Masto of Nevada, Michael A. Delaney of New Hampshire, Carry K. King of New Mexico, Erie T. Sehneiderman of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Michael DeWine of Ohio, E. Scott Pruitt of Oklahoma, Peter F. Kilmartin of Rhode Island, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtlejf of Utah, William H. Sorroll of Vermont, 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 Administrative Law and Civil Procedure Scholars by Alexander A Reinert, Joseph F. Rice, and Fred Thompson III; for the American Association for Justice by Mindy Mi chaels Roth; for the Constitutional Account ability Center by Douglas T. Kendall and Elizabeth B. Wyd/ra; for the National Conference of State Legislators by Sean H. Donahue, David T. Goldberg, Andy Birchfield, Bdnnnrd Blizzard, and J Scott Habers; for Public Citizen et at. by Adino. H. Rosenbaum, Allison M. Ziovo, and Bruce Vignory; for Mary J. Davis et al. by Michael F. Sturley; for Christy Graves by Erik S. Jaffe, John Eddie Williams, Jr., and John T. Boundas; for Jerome P. Kassirer et al. by Collyn A Peddie, Ellen Relkin, Mark P. Robinson, Jr., and Karen Barth Menzies; for Mare T. Law et al. by Thomas M. Sobol and Lauren G. Barnes; and for Rep. Henry A. Waxman by Jonathan S. Massey and Willard J. Moody, Jr.
Briefs of amici curiae were filed in all cases for the American Medical Association et al. by Jay Henderson, R. Brent Cooper, Diana L. Faust, and Donald P. Wilcox; and for the National Coalition Against Censorship by Erwin Chemerinsky, Bijan Esfandiari, Sharon J. Arkin, and Joan E. Berlin.
Justice Thomas
delivered the opinion of the Court, except as to Part III-B-2.
These consolidated lawsuits involve state tort-law claims based on certain drug manufacturers’ alleged failure to provide adequate warning labels for generic metoelopramide. The question presented is whether federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus pre-empt, these state-law claims. We hold that they do.
I
Metoelopramide is a drug designed to speed the movement of food through the digestive system. The Food and Drug Administration (FDA) first approved metoelopramide tablets, under the brand name Reglan, in 1980. Five years later, generic manufacturers also began producing meto-clopramide. The drug is commonly used to treat digestive tract problems such as diabetic gastroparesis and gastro-esophageal reflux disorder.
Evidence has accumulated that long-term metoelopramide use can cause tardive dyskinesia, a severe neurological disorder. Studies have shown that up to 29% of patients who take metoelopramide for several years develop this condition. McNeil v. Wyeth, 462 F. 3d 364, 370, n. 5 (CA5 2006); see also Shaffer, Butterfield, Pamer, & Mackey, Tardive Dyskinesia Risks and Metoelopramide Use Before and After U. S. Market Withdrawal of Cisapride, 44 J. Am. Pharmacists Assn. 661, 663 (2004) (noting 87 cases of metoclopramide-related tardive dyskinesia reported to the FDA’s adverse event reporting system by mid-2003).
Accordingly, warning labels for the drug have been strengthened and clarified several times. In 1985, the label was modified to warn that “[tjardive dyskinesia . . . may develop in patients treated with metoelopramide,” and the drug’s package insert added that “[tjherapy longer than 12 weeks has not been evaluated and cannot be recommended.” Physician’s Desk Reference 1635-1636 (41st ed. 1987); see also Brief for Petitioner PLIVA et al. 21-22 (hereinafter PLIVA Brief). In 2004, the brand-name Reglan manufacturer requested, and the FDA approved, a label change to add that “[t]herapy should not exceed 12 weeks in duration.” Brief for United States as Amicus Curiae 8 (hereinafter U. S. Brief). And in 2009, the FDA ordered a black box warning — its strongest — which states: “Treatment with met-oclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible. . .. Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases.” See Physician’s Desk Reference 2902 (65th ed. 2011) (Warning Box).
Gladys Mensing and Julie Demahy, the plaintiffs in these consolidated cases, were prescribed Reglan in 2001 and 2002, respectively. Both received generic metoclopramide from their pharmacists. After taking the drug as prescribed for several years, both women developed tardive dyskinesia.
In separate suits, Mensing and Demahy sued the generic drug manufacturers that produced the metoclopramide they took (Manufacturers). Each alleged, as relevant here, that long-term metoclopramide use caused her tardive dyskinesia and that the Manufacturers were liable under state tort law (specifically, that of Minnesota and Louisiana) for failing to provide adequate warning labels. They claimed that “despite mounting evidence that long term metoclopramide use carries a risk of tardive dyskinesia far greater than that indicated on the label,” none of the Manufacturers had changed their labels to adequately warn of that danger. Mensing v. Wyeth, Inc., 588 F. 3d 603, 605 (CA8 2009); see also Demahy v. Actavis, Inc., 593 F. 3d 428, 430 (CA5 2010).
In both suits, the Manufacturers urged that federal law pre-empted the state tort claims. According to the Manufacturers, federal statutes and FDA regulations required them to use the same safety and efficacy labeling as their brand-name counterparts. This means, they argued, that it was impossible to simultaneously comply with both federal law and any state tort-law duty that required them to use a different label.
The Courts of Appeals for the Fifth and Eighth Circuits rejected the Manufacturers’ arguments and held that Men-sing and Demahy’s claims were not pre-empted. See 588 F. 3d, at 614; 593 F. 3d, at 449. We granted certiorari, 562 U. S. 1104 (2010), consolidated the cases, and now reverse each.
II
Pre-emption analysis requires us to compare federal and state law. We therefore begin by identifying the state tort duties and federal labeling requirements applicable to the Manufacturers.
A
It is undisputed that Minnesota and Louisiana tort law require a drug manufacturer that is or should be aware of its product's danger to label that product in a way that renders it reasonably safe. Under Minnesota law, which applies to Mensing’s lawsuit, “where the manufacturer ... of a product has actual or constructive knowledge of danger to users, the . . . manufacturer has a duty to give warning of such dangers.” Frey v. Montgomery Ward & Co., 258 N. W. 2d 782, 788 (Minn. 1977). Similarly, under Louisiana law applicable to Demahy's lawsuit, “a manufacturer's duty to warn includes a duty to provide adequate instructions for safe use of a product.” Stahl v. Novartis Pharmaceuticals Corp., 283 F. 3d 254, 269-270 (CA5 2002); see also La. Rev. Stat. Ann. § 9:2800.57 (West 2009). In both States, a duty to warn falls specifically on the manufacturer. See Marks v. OHMEDA, Inc., 2003-1446, pp. 8-9 (La. App. 3 Cir. 3/31/04), 871 So. 2d 1148, 1155; Gray v. Badger Min. Corp., 676 N. W. 2d 268, 274 (Minn. 2004).
Mensing and Demahy have pleaded that the Manufacturers knew or should have known of the high risk of tardive dyskinesia inherent in the long-term use of their product. They have also pleaded that the Manufacturers knew or should have known that their labels did not adequately warn of that risk. App. 437-438, 67-69, 94-96. The parties do not dispute that, if these allegations are true, state law required the Manufacturers to use a different, safer label.
B
Federal law imposes far more complex drug labeling requirements. We begin with what is not in dispute. Under the 1962 Drug Amendments to the Federal Food, Drug, and Cosmetic Act, 76 Stat. 780, 21 U. S. C. § 301 et seq., a manufacturer seeking federal approval to market a new drug must prove that it is safe and effective and that the proposed label is accurate and adequate. See, e. g., 21 U. S. C. §§ 355(b)(1), (d); Wyeth v. Levine, 555 U. S. 555, 567 (2009). Meeting those requirements involves costly and lengthy clinical testing. §§ 355(b)(1)(A), (d); see also D. Beers, Generic and Innovator Drugs: A Guide to FDA Approval Requirements § 2.02[A] (7th ed. 2008).
Originally, the same rules applied to all drugs. In 1984, however, Congress passed the Drug Price Competition and Patent Term Restoration Act, 98 Stat. 1585, commonly called the Hatch-Waxman Amendments. Under this law, “generic drugs” can gain FDA approval simply by showing equivalence to a reference listed drug that has already been approved by the FDA. 21 U. S. C. § 355(j)(2)(A). This allows manufacturers to develop generic drugs inexpensively, without duplicating the clinical trials already performed on the equivalent brand-name drug. A generic drug application must also “show that the [safety and efficacy] labeling proposed ... is the same as the labeling approved for the [brand-name] drug.” §355(j)(2)(A)(v); see also § 355(j)(4)(G); Beers, supra, §§ 3.01, 3.03[A].
As a result, brand-name and generic drug manufacturers have different federal drug labeling duties. A brand-name manufacturer seeking new drug approval is responsible for the accuracy and adequacy of its label. See, e. g., 21 U. S. C. §§ 355(b)(1), (d); Wyeth, supra, at 570-571. A manufacturer seeking generic drug approval, on the other hand, is responsible for ensuring that its warning label is the same as the brand name’s. See, e.g., § 355(j)(2)(A)(v); § 355(j)(4)(G); 21 CFR §§ 314.94(a)(8), 314.127(a)(7).
The parties do not disagree. What is in dispute is whether, and to what extent, generic manufacturers may change their labels after initial FDA approval. Mensing and Demahy contend that federal law provided several avenues through which the Manufacturers could have altered their metoclopramide labels in time to prevent the injuries here. The FDA, however, tells us that it interprets its regulations to require that the warning labels of a brand-name drug and its generic copy must always be the same — thus, generic drug manufacturers have an ongoing federal duty of "sameness.” U. S. Brief 16; see also 57 Fed. Reg. 17961 (1992) (“[T]he [generic drug’s] labeling must be the same as the listed drug product’s labeling because the listed drug product is the basis for [generic drug] approval”). The FDA’s views are “controlling unless plainly erroneous or inconsistent, with the regulation^]” or there is any other reason to doubt that they reflect the FDA’s fair and considered judgment. Auer v. Robbins, 519 U. S. 452, 461, 462 (1997) (internal quotation marks omitted).
1
First, Mensing and Demahy urge that the FDA’s “changes-being-effected” (CBE) process allowed the Manufacturers to change their labels when necessary. See Brief for Respondents 33-35; see also 593 F. 3d, at 439-444; Gaeta v. Perrigo Pharmaceuticals Co., 630 F. 3d 1225, 1231 (CA9 2011); Foster v. American Home Prods. Corp., 29 F. 3d 165, 170 (CA4 1994). The CBE process permits drug manufacturers to “add or strengthen a contraindication, warning, [or] precaution,” 21 CFR § 314.70(c)(6)(iii)(A) (2006), or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug produet,” § 314.70(c)(6)(iii)(C). When making labeling changes using the CBE process, drug manufacturers need not wait for preapproval by the FDA, which ordinarily is necessary to change a label. Wyeth, supra, at 568. They need only simultaneously file a supplemental application with the FDA. 21 CFR § 314.70(c)(6).
The FDA denies that the Manufacturers could have used the CBE process to unilaterally strengthen their warning labels. The agency interprets the CBE regulation to allow changes to generic drug labels only when a generic drug manufacturer changes its label to match an updated brand-name label or to follow the FDA’s instructions. U. S. Brief 15, 16, n. 7 (interpreting 21 CFR § 314.94(a)(8)(iv)); U. S. Brief 16, n. 8. The FDA argues that CBE changes unilaterally made to strengthen a generic drug’s warning label would violate the statutes and regulations requiring a generic drug’s label to match its brand-name counterpart’s. Id., at 15-16; see also 21 U. S. C. § 355(j)(4)(G); 21 CFR §§314.94(a)(8)(iii), 314.150(b)(10) (approval may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name]”).
We defer to the FDA’s interpretation of its CBE and generic labeling regulations. Although Mensing and Demahy offer other ways to interpret the regulations, see Brief for Respondents 33-35, we do not find the agency’s interpretation “plainly erroneous or inconsistent with the regulation,” Auer, supra, at 461 (internal quotation marks omitted). Nor do Mensing and Demahy suggest there is any other reason to doubt the agency’s reading. We therefore conclude that the CBE process was not open to the Manufacturers for the sort of change required by state law.
2
Next, Mensing and Demahy contend that the Manufacturers could have used “Dear Doctor” letters to send additional warnings to prescribing physicians and other healthcare professionals. See Brief for Respondents 36; 21 CFR §200.5. Again, the FDA disagrees, and we defer to the agency’s views.
The FDA argues that Dear Doctor letters qualify as “labeling.” U. S. Brief 18; see also 21 U. S. C. § 321(m); 21 CFR §202.1(0(2). Thus, any such letters must be “consistent with and not contrary to [the drug’s] approved ... labeling.” 21 CFR § 201.100(d)(1). A Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling. Moreover, if generic drug manufacturers, but not the brand-name manufacturer, sent such letters, that would inaccurately imply a therapeutic difference between the brand and generic drugs and thus could be impermissibly “misleading.” U. S. Brief 19; see 21 CFR § 314.150(b)(3) (FDA may withdraw approval of a generic drug if “the labeling of the drug ... is false or misleading in any particular”).
As with the CBE regulation, we defer to the FDA. Men-sing and Demahy offer no argument that the FDA’s interpretation is plainly erroneous. See Auer, supra, at 461. Accordingly, we conclude that federal law did not permit the Manufacturers to issue additional warnings through Dear Doctor letters.
3
Though the FDA denies that the Manufacturers could have used the CBE process or Dear Doctor letters to strengthen their warning labels, the agency asserts that a different avenue existed for changing generic drug labels. According to the FDA, the Manufacturers could have proposed — indeed, were required to propose — stronger warning labels to the agency if they believed such warnings were needed. U. S. Brief 20; 57 Fed. Reg. 17961. If the FDA had agreed that a label change was necessary, it would have worked with the brand-name manufacturer to create a new label for both the brand-name and generic drug. Ibid.
The agency traces this duty to 21 U. S. C. § 352(f)(2), which provides that a drug is “misbranded . . . [u]nless its labeling bears . . . adequate warnings against . . . unsafe dosage or methods or duration of administration or application, in such maimer and form, as are necessary for the protection of users.” See U. S. Brief 12. By regulation, the FDA has interpreted that statute to require that “labeling shall be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug.” 21 CFR § 201.57(e).
According to the FDA, these requirements apply to generic drugs. As it explains, a “ 'central premise of federal drug regulation [is] that the manufacturer bears responsibility for the content of its label at all times.’” U. S. Brief 12-13 (quoting Wyeth, 555 U. S., at 570-571). The FDA reconciles this duty to have adequate and accurate labeling with the duty of sameness in the following way: Generic drug manufacturers that become aware of safety problems must ask the agency to work toward strengthening the label that applies to both the generic and brand-name equivalent drug. U. S. Brief 20.
The Manufacturers and the FDA disagree over whether this alleged duty to request a strengthened label actually existed. The FDA argues that it explained this duty in the preamble to its 1992 regulations implementing the Hatch-Waxman Amendments. Ibid.; see 57 Fed. Reg. 17961 (“If a [generic drug manufacturer] believes new safety information should be added to a product’s labeling, it should contact FDA, and FDA will determine whether the labeling for the generic and listed drugs should be revised”). The Manufacturers claim that the FDA’s 19-year-old statement did not create a duty, and that there is no evidence of any generic drug manufacturer ever acting pursuant to any such duty. See Tr. of Oral Arg. 19-24; Reply Brief for Petitioner PLIVA et al. 18-22. Because we ultimately find pre-emption even assuming such a duty existed, we do not resolve the matter.
C
To summarize, the relevant state and federal requirements are these: State tort law places a duty directly on all drug manufacturers to adequately and safely label their products. Taking Mensing and Demahy’s allegations as true, this duty required the Manufacturers to use a different, stronger label than the label they actually used. Federal drug regulations, as interpreted by the FDA, prevented the Manufacturers from independently changing their generic drugs’ safety labels. But, we assume, federal law also required the Manufacturers to ask for FDA assistance in convincing the brand-name manufacturer to adopt a stronger label, so that all corresponding generic drug manufacturers could do so as well. We turn now to the question of pre-emption.
III
The Supremacy Clause establishes that federal law shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2. Where state and federal law “directly conflict,” state law must give way. Wyeth, supra, at 583 (Thomas, J., concurring in judgment); see also Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000) (“[S]tate law is naturally preempted to the extent of any conflict with a federal statute”). We have held that state and federal law conflict where it is “impossible for a private party to comply with both state and federal requirements.” Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995) (internal quotation marks omitted).
A
We find impossibility here. It was not lawful under federal law for the Manufacturers to do what state law required of them. And even if they had fulfilled their federal duty to ask for FDA assistance, they would not have satisfied the requirements of state law.
If the Manufacturers had independently changed their labels to satisfy their state-law duty, they would have violated federal law. Taking Mensing and Demahy’s allegations as true, state law imposed on the Manufacturers a duty to attach a safer label to their generic metoclopramide. Federal law, however, demanded that, generic drug labels be the same at all times as the corresponding brand-name drug labels. See, e. g., 21 CFR §314.150(b)(10). Thus, it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal-law duty to keep the label the same.
Mensing and Demahy contend that, while their state-law claims do not turn on whether the Manufacturers ashed the FDA. for assistance in changing their labels, the Manufacturers’ federal affirmative defense of pre-emption does. Men-sing and Demahy argue that if the Manufacturers had asked the FDA. for help in changing the corresponding brand-name label, they might eventually have been able to accomplish under federal law what state law requires. That is true enough. The Manufacturers “freely concede” that they could have asked the FDA for help. PLIVA Brief 48. If they had done so, and if the FDA decided there was sufficient supporting information, and if the FDA undertook negotiations with the brand-name manufacturer, and if adequate label changes were decided on and implemented, then the Manufacturers would have started a Mouse Trap game that eventually led to a better label on generic metoclopramide.
The federal duty to ask the FDA for help in strengthening the corresponding brand-name label, assuming such a duty exists, does not change this analysis. Although requesting FDA assistance would have satisfied the Manufacturers’ federal duty, it would not have satisfied their state tort-law duty to provide adequate labeling. State law demanded a safer label; it did not instruct the Manufacturers to communicate with the FDA about the possibility of a safer label. Indeed, Mensing and Demahy deny that their state tort claims are based on the Manufacturers’ alleged failure to ask the FDA for assistance in changing the labels. Brief for Respondents 53-54; cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001) (holding that federal drug and medical device laws pre-empted a state tort-law claim based on failure to properly communicate with the FDA).
B
1
This raises the novel question whether conflict preemption should take into account these possible actions by the FDA and the brand-name manufacturer. Here, what federal law permitted the Manufacturers to do could have changed, even absent a change in the law itself, depending on the actions of the FDA and the brand-name manufacturer. Federal law does not dictate the text of each generic drug’s label, but rather ties those labels to their brand-name counterparts. Thus, federal law would permit the Manufacturers to comply with the state labeling requirements if, and only if, the FDA and the brand-name manufacturer changed the brand-name label to do so.
Mensing and Demahy assert that when a private party’s ability to comply with state law depends on approval and assistance from the FDA, proving pre-emption requires that party to demonstrate that the FDA would not have allowed compliance with state law. Here, they argue, the Manufacturers cannot bear their burden of proving impossibility because they did not even try to start the process that might ultimately have allowed them to use a safer label. Brief for Respondents 47. This is a fair argument, but we reject it.
The question for “impossibility” is whether the private party could independently do under federal law what state law requires of it. See Wyeth, 555 U. S., at 573 (finding no pre-emption where the defendant could “unilaterally” do what state law required). Accepting Mensing and Demahy’s argument would render conflict pre-emption largely meaningless because it would make most conflicts between state and federal law illusory. We can often imagine that a third party or the Federal Government might do something that makes it lawful for a private party to accomplish under federal law what state law requires of it. In these cases, it is certainly possible that, had the Manufacturers asked the FDA for help, they might have eventually been able to strengthen their warning label. Of course, it is also possible that the Manufacturers could have convinced the FDA to reinterpret its regulations in a manner that would have opened the CBE process to them. Following Mensing and Demahy’s argument to its logical conclusion, it is also possible that, by asking, the Manufacturers could have persuaded' the FDA to rewrite its generic drug regulations entirely or talked Congress into amending the Hateh-Waxman Amendments.
If these conjectures suffice to prevent federal and state law from conflicting for Supremacy Clause purposes, it is unclear when, outside of express pre-emption, the Supremacy Clause would have any force. We do not read the Supremacy Clause to permit an approach to pre-emption that renders conflict pre-emption all but meaningless. The Supremacy Clause, on its face, makes federal law “the supreme Law of the Land” even absent an express statement by Congress. U. S. Const., Art. VI, cl. 2.
2
Moreover, the text of the Clause — that federal law shall be supreme, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” — plainly contemplates conflict pre-emption by describing federal law as effectively repealing contrary state law. Ibid.; see Nelson, Preemption, 86 Va. L. Rev. 225, 234 (2000); id., at 252-253 (describing discussion of the Supremacy Clause in state ratification debates as concerning whether federal law could repeal state law, or vice versa). The phrase “any [state law] to the Contrary notwithstanding” is a non obstante provision. Id., at 238-240, nn. 43-45. Eighteenth-century legislatures used non obstante provisions to specify the degree to which a new statute was meant to repeal older, potentially conflicting statutes in the same field. Id., at 238-240 (citing dozens of statutes from the 1770’s and 1780’s with similar provisions). A non obstante provision “in [a] new statute acknowledged that the statute might contradict prior law and instructed courts not to apply the general presumption against implied repeals.” Id., at 241-242; 4 M. Bacon, A New Abridgment of the Law ¶ 19, p. 639 (4th ed. 1778) (“Although two Acts of Parliament are seemingly repugnant, yet if there be no Clause of non Obstante in the latter, they shall if possible have such Construction, that the latter may not be a Repeal of the former by Implication”). The non obstante provision in the Supremacy Clause therefore suggests that federal law should be understood to impliedly repeal conflicting state law.
Further, the provision suggests that courts should not strain to find ways to reconcile federal law with seemingly conflicting state law. Traditionally, courts went to great lengths attempting to harmonize conflicting statutes, in order to avoid implied repeals. Warder v. Arell, 2 Va. 282, 296 (1796) (opinion of Roane, J.) (“[W]e ought to seek for such a construction as will reconcile [the statutes] together”); Ludlow’s Heirs v. Johnson, 3 Ohio 553, 564 (1828) (“[I]f by any fair course of reasoning the two [statutes] can be reconciled, both shall stand”); Doolittle v. Bryan, 14 How. 563, 566 (1853) (requiring “the repugnance be quite plain” before finding implied repeal). A non obstante provision thus was a useful way for legislatures to specify that they did not want courts distorting the new law to accommodate the old. Nelson, supra, at 240-242; see also J. Sutherland, Statutes and Statutory Construction § 147, p. 199 (1891) (“[W]hen there is inserted in a statute a provision [of non obstante] . . . [i]t is to be supposed that courts will be less inclined against recognizing repugnancy in applying such statutes”); Weston’s Case, 3 Dyer 347a, 347b, 73 Eng. Rep. 780, 781 (K. B. 1575) (“[W]hen there are two statutes, the one in appearance crossing the other, and no clause of non obstante is contained in the second statute ... the exposition ought to be that both should stand in force”); G. Jacob, A New Law Dictionary (J. Morgan ed., 10th ed. 1782) (definition of “statute,” ¶ 6: “[W]hen there is a seeming variance between two statutes, and no clause of non obstante in the latter, such construction shall be made that both may stand”). The non obstante provision of the Supremacy Clause indicates that a court need look no further than “the ordinary meanin[g]” of federal law, and should not distort federal law to accommodate conflicting state law. Wyeth, 555 U. S., at 588 (Thomas, J., concurring in judgment) (internal quotation marks omitted).
To consider in our pre-emption analysis the contingencies inherent in these cases — in which the Manufacturers’ ability to comply with state law depended on uncertain federal agency and third-party decisions — would be inconsistent with the non obstante provision of the Supremacy Clause. The Manufacturers would be required continually to prove the counterfactual conduct of the FDA and brand-name manufacturer in order to establish the supremacy of federal law. We do not think the Supremacy Clause contemplates that sort of contingent supremacy. The non obstante provision suggests that pre-emption analysis should not involve speculation about ways in which federal agency and third-party actions could potentially reconcile federal duties with conflicting state duties. When the “ordinary meaning” of federal law blocks a private party from independently accomplishing what state law requires, that party has established pre-emption.
3
To be sure, whether a private party can act sufficiently independently under federal law to do what state law requires may sometimes be difficult to determine. But this is not such a case. Before the Manufacturers could satisfy state law, the FDA — a federal agency — had to -undertake special effort permitting them to do so. To decide these cases, it is enough to hold that when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes.
Here, state law imposed a duty on the Manufacturers to take a certain action, and federal law barred them from taking that action. The only action the Manufacturers could independently take — asking for the FDA’s help — is not a matter of state-law concern. Mensing and Demahy’s tort claims are pre-empted.
C
Wyeth is not to the contrary. In that ease, as here, the plaintiff contended that a drug manufacturer had breached a state tort-law duty to provide an adequate warning label. Id., at 559-560. The Court held that the lawsuit was not pre-empted because it was possible for Wyeth, a brand-name drug manufacturer, to comply with both state and federal law. Id., at 572-573. Specifically, the CBE regulation, 21 CFR § 314.70(c)(6)(iii), permitted a brand-name drug manufacturer like Wyeth “to unilaterally strengthen its warning” without prior FDA approval. 555 U. S., at 573; cf. supra, at 614-615. Thus, the federal regulations applicable to Wyeth allowed the company, of its own volition, to strengthen its label in compliance with its state tort duty.
We recognize that from the perspective of Mensing and Demahy, finding pre-emption here but not in Wyeth makes little sense. Had Mensing and Demahy taken Reglan, the brand-name drug prescribed by their doctors, Wyeth would control and their lawsuits would not be pre-empted. But because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits. See, e. g., Minn. Stat. § 151.21 (2010) (describing when pharmacists may substitute generic drugs); La. Rev. Stat. Ann. §37:1241(A)(17) (West 2007) (same). We acknowledge the unfortunate hand that federal drug regulation has dealt Mensing, Demahy, and others similarly situated.
But “it is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even bizarre.” Cuomo v. Clearing House Assn., L. L. C, 557 U. S. 519, 556 (2009) (Thomas, J., concurring in part and dissenting in part) (internal quotation marks and brackets omitted). It is beyond dispute that the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers. Indeed, it is the special, and different, regulation of generic drugs that allowed the generic drug market to expand, bringing more drugs more quickly and cheaply to the public. But different federal statutes and regulations may, as here, lead to different pre-emption results. We will not distort the Supremacy Clause in order to create similar pre-emption across a dissimilar statutory scheme. As always, Congress and the PDA retain the authority to change the law and regulations if they so desire.
# * *
The judgments of the Fifth and Eighth Circuits are reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Justxce Kennedy joins all but Part III-B-2 of this opinion.
All relevant events in these cases predate the Food and Drug Administration Amendments Act of 2007,121 Stat. 823. We therefore refer exclusively to the prc-2007 statutes and regulations and cjcpress no view on the impact of the 2007 Act.
As we use it here, “generic drug” refers to a drug designed to be a copy of a reference listed drug (typically a brand name drug), and thus identical in aetive ingredients, safety, and efficacy. See, e.g., United States v. Generix Drug Corp., 460 U. S. 453, 454-455 (1983); 21 CFR, § 314.3(b) (2006) (defining “reference listed drug”).
The brief filed by the United States represents the views of the FDA. Cf. Talk America, Inc. v. Michigan Bell Telephone Co., ante, at 53, n. 1. Although we defer to the agency’s interpretation of its regulations, we do not defer to an ageney’o ultimate concluoion about whether otate law should be pre-empted. Wyeth v. Levine, 555 U. S. 555, 576 (2009).
Wo do not address whether etate and federal law “directly conflict” in circumstances boyond “impossibility.” See Wyeth, 555 U. S., at 683, 690-591 (Thomas, J., concurring in judgment) (suggesting that they might).
The Hatch-Waxman Amendments contain no provision expressly preempting state tort claims. See post, at 633-634 (Sotomayor, J., dissenting). Nor do they contain any saving clause to expressly preserve state tort claims. Cf. Williamson v. Mazda Motor of America, Inc., 662 U. S. 323,339 (2011) (Thomas, J., concurring in judgment) (discussing the saving clause in the National Traffic and Motor Vehicle Safety Act of 1960, 49 U. S. C. § 30103(e)). Although an express statement on pre-emption is always preferable, the lack of such a statement does not end our inquiry. Contrary to the dissent's suggestion, the absence of express pre-emption is not a reason to find no conflict pro omption. See post, at 643.
The dissent asserts that we are forgetting “purposes-and-objectives” pre-emption. Post, at 640. But as the dissent acknowledges, purposes- and-objeetives pre-emption is a form of conflict pre-emption. Post, at 634, 640. If conflict pre-emption analysis must take into account hypothetical federal action, including possible changes in Acts of Congress, then there is little reason to think that pre-emption based on the purposes and objectives of Congress would survive either.
Wyeth also urged that state tort law “creat[ed] an unacceptable ‘obstacle to the accompliohmcnt and execution of the full purpooco and objectives of Congress.’ ” 555 U. S., at 563-564 (quoting Hines v. Davidowitz, 312. U. S. 52, 67 (1941)). The Court rejected that argument, and that type of pre-emption is not argued here. Cf. post, at 640, n. 13 (opinion of Sotomayor, J.).
The FDA, however, retained the authority to eventually rescind Wyeth’s unilateral CBE changes. Accordingly, the Court noted that Wyeth could have attempted to show, by “dear evidence,” that the FDA would have rescinded any change in the label and thereby demonstrate that it would in fact have been impossible to do under federal law what state law required. Wyeth, supra, at 571. Wyeth offered no such evidence.
That analysis is consistent with our holding today. The Court in Wyeth ached what the drug manufacturer could independently do under fodoral law, and in the absence of clear evidence that Wyeth could not have accomplished what state law required of it, found no pre-emption. The Wyeth Court held that, bccauoe fodcral law accommodated state-law duties, “tho mere possibility of impossibility” was “not enough.” Post, at 635; see also Rice v. Norman Williams Co., 458 U. S. 654, 659 (1982) (rejecting “hypothetical” impossibility). But here, “existing” federal law directly conflicts with State law. Post, at 639 (“Conflict analysis necessarily turns on exist ing law”). The question in these cases io not whethor tho possibility of impossibility establishes pre-emption, but rather whether tho possibility of possibility defeats pre-emption. Post, at 634-635.
That said, the dissent overstates what it characterizes as the “many absurd consequences” of our holding. Post, at 643. First, the FDA informs us that “[a]s a practical matter, genuinely now information about drugs in long use (as generic drugs typically are) appears infrequently.” U. S. Brief 34 35. That is because patent protections ordinarily prevent generic drugs from arriving on the market for a number of years after tho brand-name drug appears. Indeed, situations like the one alleged here are apparently so rare that the FDA has no “formal regulation” establishing generic drug manufacturers’ duty to initiate a label change, nor docs it have any regulation setting out that label change process. Id., at 20 -21. Second, the dissent admits that, even under its approach, goncric drug manufacturers could establish pre-emption in a number of scenarios. Post, at 637.
|
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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] |
[
39
] |
NATIONAL LABOR RELATIONS BOARD v. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO
No. 40.
Argued November 18, 1970 —
Decided January 12, 1971
Mabsháll, J., delivered the opinion of the Court, in which Burger, C. j., and Black, Harlan, Brennan, White, and Black-mun, JJ., joined. Douglas, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 306.
. Arnold Ordmah argued the cause for the National Labor Relations Board, petitioner in No. 40 and respondent in No. 42. With him on the brief were. Solicitor General Griswold, Peter L. Strauss, Dominick L. Manoli, and Norton J. Come. Vincent J. Apruzzese argued the cause for petitioners in No. 42. With him on the brief were Francis A. Mastro and Merritt T. Viscardi.
Earl S. Aronson argued the cause for. respondent Local 825, International Union of Operating Engineers, in both cases. With him on the brief was Thomas E. Durkin, Jr.
Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance in both cases. With him on the brief were J. Albert Woll and Thomas E. Harris.
Briefs of amici curiae urging reversal in both cases were filed by William B. Barton and Harry J. Lambeth, for Associated Builders & Contractors, Inc., and by Winthrop A. Johns and Lawrence T. Zimmerman for the Associated General Contractors of America et al.
Together with No. 42, Burns & Roe, Inc., et al. v. Local 825, International Union of Operating Engineers, AFL-CIO, et al.
Mr. Justice Marshall
delivered the opinion of the Court.
In this cause we are asked to determine whether strikes by Operating Engineers at the site, of the construction of a nuclear power generator plant at Oyster Creek, New Jersey, violated § 8 (b) (4) (B) of the National Labor Relations Act. Although the National Labor Relations Board, found the strikes to be in violation of this section, the Court of Appeals refused to enforce the Board’s order. We believe the Court of Appeals construed the Act too narrowly. Accordingly, we reverse and remand the case for consideration of the propriety of the Board’s order.
The general contractor for the project, Burns & Roe, Inc., subcontracted all of the construction work to three companies — White Construction Co., Chicago Bridge & Iron Co., and Poirier & McLane Corp. All three employed operating engineers who were members of Local 825, International Union of Operating Engineers. But White, unlike Chicago Bridge and Poirier, did not have a collective-bargaining agreement with Local 825.
In the latter part of September 1965, White installed an electric welding machine and assigned the job of pushing the buttons that operated the machine to members of the Ironworkers Union, who were to perform the actual welding. Upon learning of this work assignment, Local 825’s job steward and its lead engineer threatened White with a strike if operating engineers were not given the work. White, however, refused to meet the demand. On September 29, 1965, the job steward and lead engineer met with the construction manager for Burns, the general contractor. They informed him that the members of Local 825 working at the jobsite had voted to strike unless Burns signed a contract, which would be binding on all three subcontractors as well as Burns, giving Local 825 jurisdiction over all power equipment, including electric welding machines, operated on the job-site. On October 1, after White and Burns refused to accede to the demands, the operating engineers employed by Chicago Bridge and Poirier as well as those employed by White walked off the job. They stayed out from 8 a. m, to 1 p. m., returning to work when negotiations over their demands started.
On October 6, Burns submitted the work assignment dispute to the National Joint Board for the Settlement of Jurisdictional Disputes for the Construction Industry. The shme day, Local 825 threatened Burns and all the subcontractors with another work stoppage unless the contracts were signed and the work transferred to the operating engineers. The employers again refused, and the operating engineers walked off the project. This stride lasted from October 7 to October 11.
On October 20, the Joint Board notified the parties • that there was no reason to change the assignment of the. disputed, work. Local 825 did not accept this resolution; and when the welding machine was started on "November 4, the operating engineers surrounded the machine and physically prevented its operation. On November 8, the NLRB Regional Director obtained from the United States District Court a temporary injunction under § 10 (l) of the Act restraining the union from coercing a cessation of business on the project or to compel White to change the work assignment.
An unfair labor practice proceeding against Local 825 subsequently ensued. The Board found.that the union had violated §8 (b)(4)(D) of the Act by inducing employees of White, Chicago Bridge, and Poirier to strike to force White to take the disputed work away from the Ironworkers and assign it to the Operating Engineers. The Court of Appeals’ approval of this finding is not questioned here. But the Board’s finding that Local 825’s encouragement of the Chicago Bridge and Poirier employees to strike and the union’s coercion of Burns violated § 8 (b) (4) (B) of the Act. was not approved by the Court of Appeals and is in issue here.
I
Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8 (b) (4)(B). This concern was focused on the “secondary boycott,” which was conceived of as pressure brought to bear, not “upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it” with the objective of forcing the third party to bring pressure on the employer to agree to the union’s demands.
Section 8 (b) (4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations’ right to exert legitimate pressure aimed at the employer with whom there is a primary dispute. This primary activity is protected even though it may seriously affect neutral third parties. Steelworkers (Carrier Corp.) v. NLRB, 376 U. S. 492, 502 (1964); Electrical Workers (General Electric) v. NLRB, 366 U. S. 667, 673 (1961).
Thus there are two threads to § 8 (b) (4) (B) that require disputed conduct to be classified as either “primary” or “secondary.” And the tapestry that has been woven in classifying such conduct is among the labor law’s most intricate. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). But here the normally difficult task of classifying union conduct is easy. As the Court of Appeals said, the “record amply justifies the conclusion that [Burns and the neutral subcontractors] were subjected to coercion in the form of threats or walkouts, or both.” 410 F. 2d, at 9. And, as the Board said, it is clear that this coercion was designed “to achieve the assignment of [the] disputed work” to operating engineers. 162 N. L. R. B. 1617, 1621.
Local 825’s coercive activity was aimed directly at Burns and the subcontractors that were not involved in the dispute. The union engaged in a strike against these neutral employers for the specific, overt purpose of forcing them to put pressure on White to assign the job of operating the welding machine to operating engineers. Local 825 was not attempting to apply the full force of primary action by directing its efforts at all phases of Burns’ normal operation as was the case in Steelworkers (Carrier) v. NLRB, 376 U. S. 492 (1964), and Electrical Workers (General Electric) v. NLRB, 366 U. S. 667 (1961). It was instead using a sort of pressure that was unmistakably and flagrantly secondary. NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951).
The more difficult task is to determine whether one of Local 825’s objectives was to force Burns and the other neutrals to “cease doing business” with White as § 8 (b)(4)(B) requires. The Court of Appeals concluded that the union’s objective was to force Burns “to use its influence with the subcontractor to change the subcontractor’s conduct, not to terminate their relationship” and. that this was not enough. 410 F. 2d, at 10. That court read the statute as requiring that the union demand nothing short of a complete termination of the business relationship between the neutral and the primary employer. Such a reading is too narrow.
Some disruption of business relationships is the necessary consequence of the purest form of primary activity. These foreseeable disruptions are, however, clearly protected. Steelworkers (Carrier), 376 U. S., at 496; Electrical Workers (General Electric), 366 U. S., at 682. Likewise, secondary activity could have such a limited goal and the foreseeable result of the conduct could be, while disruptive, so slight that the “cease doing business” requirement is not met.
Local 825’s goal was not so limited nor were the foreseeable Consequences of its secondary pressure slight. The operating engineers sought to force Burns to bind all the subcontractors on the project to a particular form of job assignments. The clear implication of the demands was that Burns would be required either to force a change in White’s policy or to terminate White’s contract. The strikes shut down the whole project. If Burns was unable to obtain White’s consent, Local 825 was apparently willing to continue disruptive conduct that would bring all the employers to their knees.
Certainly, the union would have preferred to have the employers capitulate to its demands; it wanted to take the job of operating the welding machines away from the Ironworkers. It was willing, however, to try to obtain this capitulation by forcing neutrals to compel White to meet union demands, To hold that this flagrant secondary conduct with these most serious disruptive effects was not prohibited by § 8 (b) (4) (B) would be largely to ignore the original congressional concern. NLRB v. Carpenters Dist. Council, 407 F. 2d 804, 806 (CA5 1969).
II
In addition to its argument that § 8 (b) (4) (B) does not cover its conduct, Local 825 argues that § 8. (b)(4)(D) provides’the exclusive remedy. Clearly, § 8 (b) (4) (D) is, as the Board and Court of Appeals held, applicable. But that section is aimed at protecting “the employer trapped between the ¡ . . claims” of rival unions. National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 625 (1967). Although § 8(b)(4) (D) also applies to neutrals, the basic purpose is different from that of §8 (b)(4)(B). The practices her'e were, unfair under both sections and there is no inaication that Congress intended either section to have exclusive application.
III
Since the Court of Appeals did not believe that § 8 (b) (4) (B) was applicable, it did not consider the propriety of the portion of the Board’s order relating to that section. But the order was not narrowly confined to the conduct;involved here; so we must remand these cases for the Court of Appeals to. consider whether the order is necessary to further the. goals of the Act. See Communications Workers v. NLRB, 362 U. S. 479 (1960); NLRB v. Express Publishing Co., 312 U. S. 426 (1941).
Reversed and remanded.
See. 8 (b) “It shall be an unfair labor practice for a labor organization or its agents—
“(4)(i) to engage in, or to induce or encourage, any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (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, or forcing or requiring any other employer to-recognize or bargain with a labor organization as the representative of his employees unless such. labor, organization has been certified as the representative. of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . 61 Stat. 141, as amended, 73 Stat. 542, 29 17. S. C. § 158 (b) (4) (B).
410 F. 2d 5.
The proposed contract provided in part:’
“This Agreement shall bind all sub-contractors while working for an Employer who is a party to this Agreement. Any Employer who sublets any of his work must sublet the same subject to all •the terms and conditions of this Agreement.
“The Employer. agrees that he will not subcontract any of his work, which is covered by the terms of this Collective Bargaining Agreement, to any subcontractor, unless said subcontractor agrees in writing to perform said work subject to all terms and conditions of this Agreement between the Employer and the Union, including an agreement to submit work jurisdictional disputes for determination as provided below.”
A private organization that arbitrates jurisdictional disputes in the construction industry.
29 U. S. C. § 160 (l).
The Operating Engineer’s activity did not stop with the issuance of the injunction. White’s engineers struck again on November 17, this time ostensibly over a dispute concerning the number of employees assigned to operate a recently installed electrical pump. Local 825 representatives in a discussion with White said; however, that this walkout was more or less because of the electric welding machine being in operation.” The strike lasted until December 21. Of course the activity like that on November" 4 did not involve § 8 (b) (4) (B) violations since only the engineers working for White were involved."
Sec. 8 (b)’ “It shall be an unfair labor practice for a labor organization or its agents—
“(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any. services; or (ii) .to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
“(D) -forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing, to conform to an order or certification of the Board determining the bargaining representative for employees performing such work . . . .” 29 U. S. C. § 158 (b)(4)(D).
See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 386-390 (1969); National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 624 (1967).
Electrical Workers, Local 501 v. NLRB, 181 F. 2d 34, 37 (CA2 1950), aff’d, 341 U. S. 694 (1951).
The House Conference Report explained this idea:
“Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for á unión to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 43 (1947).
The section contains a specific proviso, which was added by the 1959 amendment to the Act, that protects a “primary strike or primary picketing”- that is “not otherwise unlawful.” See n. 1, 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?
|
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] |
[
81
] |
UNITED STATES v. CONSOLIDATED EDISON CO. OF NEW YORK, INC.
No. 357.
Argued April 24, 1961.
Decided May 22, 1961.
John B. Jones, Jr. argued the cause for the United States. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Rice, Acting Assistant Attorney General Sellers, Ralph S. Spritzer, Harry Baum and Grant W. Wiprud.
James K. Polk argued the cause for respondent. With him on the briefs were Richard Joyce Smith, Julius M. Jacobs and Harold F. Noneman.
Mr. Justice Whittaker
delivered the opinion of the Court.
Respondent brought this action in the United States District Court for the Southern District of New York to recover a claimed overpayment of federal income taxes for the year 1951. It keeps its books and files its returns on a calendar-year accrual basis. The case turns on the correct determination of the proper year of accrual and deduction of certain contested real estate taxes. Specifically, the question is whether the contested part of a real estate tax accrued (1) in the year it was assessed and, for the purpose — and as the only mode recognized by the local law — of avoiding seizure and sale of the property for the contested tax while the contest was pending, was “paid” by the taxpayer, or (2), in the year the contest was finally determined.
The District Court, following the holding of the Court of Claims in Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 135 F. Supp. 881, that such a “payment” of the tax “accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment,” 133 Ct. Cl., at 383-384, 135 F. Supp., at 885, held, without opinion, that the contested part of the tax accrued in the year of the “payment.” On appeal, the Court of Appeals, by a divided court, held that the contested part of the tax accrued in the year the contest was finally determined, and reversed the judgment. 279 F. 2d 152. It reasoned that inasmuch as respondent was “keeping its books on the accrual basis,” the contested part of the tax accrued “only when all events [had] occurred which determine [d] the fact and amount of the tax liability.” Id., at 155. To resolve the conflict between the decision below and Consolidated Edison Co. v. United States, supra, we granted certiorari. 364 U. S. 890.
During the years involved — 1946 through 1950— respondent owned numerous tracts of real estate in New York City which were subject to annual local property taxes. Under the' New York law, the City Council annually fixes the tax rate, and the City Tax Commission annually fixes the property valuations. Thus the amount of the tax on each tract is determined by multiplying the valuation by the tax rate. The tax rate is not contestable, but a timely application (commonly called a “protest”) may be made to the City Tax Commission to correct an erroneous valuation. Among other things, the protest must state the amount which the taxpayer “consider [s] was the full value of the property on January 25 [of the current] year” thus to establish the amount of the tax that is not contested. Upon exhaustion of this administrative procedure, a review of the Commission’s determination may be had by a judicial proceeding, commonly called a certiorari proceeding, in the State Supreme Court, which is the taxpayer’s sole and exclusive remedy. But the institution of such a suit does not stay or suspend the maturity of the tax bill, the accrual of 7% interest on it, nor the seizure and sale of the property to satisfy the tax lien. Thus, to obtain review, the taxpayer must either “pay” the tax or suffer the interest penalty and run the risk of seizure and sale of its property.
Though taxes for each of five years on hundreds of tracts are involved and the aggregate amount is very substantial, the parties very commendably stipulated in the District Court that the facts are sufficiently reflected, for the purposes of this suit, in the following simplified example:
In each of the years 1946 through 1950, respondent was notified of a tentative valuation which, at the established tax rate, would produce a tax of $100. Respondent then timely filed a bona fide protest (in respect of many, but not nearly all, of its tracts) stating a valuation which, at the established tax rate, would produce a tax of $85, and asking that the balance of the proposed valuation be stricken as excessive. After hearing, the Commission rejected the protest, and an assessment in the amount of $100 was made. Thereupon respondent, under protest and for the honestly stated purpose of avoiding the interest penalty and the seizure and sale of its property while it was contesting the Commission’s valuation by certiorari proceedings in the state court, remitted to the city cash in an amount equal to the tax of $100, and immediately thereafter commenced a certiorari proceeding in the proper court, in which it again admitted liability for a tax in the amount of $85, but denied all liability for any tax in excess of that amount. In December 1951, the court, upon the consent of the parties to the action, entered its order in (each of) the certiorari proceedings fixing respondent’s tax liability at $95, and thereupon the city forthwith returned $5 to respondent.
Although it was then engaged in a contest with the Commissioner in the Court of Claims over an identical question, namely, the proper income tax treatment to be accorded the $15 for each of the years 1938, 1939 and 1941 — which issue was decided by the Court of Claims in December 1955 in favor of the Government, Consolidated Edison Co. v. United States, supra—respondent, in terms of the illustrative example, accrued on its books and deducted on its federal income tax returns, for each of the years 1946 through 1950, the full $100; and in its return for the year 1951 — in which year the real estate tax liability was determined to be $95 — respondent failed to deduct the $10 from, and included the $5 in, its gross income for that year.
Believing that this treatment of the $15 in 1951 was erroneous and resulted in its paying a lesser amount of federal income taxes in each of the years 1946 through 1950, and more in the year 1951, than it should have paid, respondent filed in February 1955 its claim for refund of so much of its 1951 income taxes as resulted (1) from its failure to deduct the $10 of real estate tax that was determined, in that year, to be valid, and (2) from its inclusion in gross income of the $5 returned to it in that year. Upon rejection of that claim, respondent timely brought this action in the District Court to recover the refund claimed, and obtained the result already stated.
It is settled that each “taxable year” must be treated as a separate unit, and all items of gross income and deduction must be reflected in terms of their posture at the close of such year. Burnet v. Sanford & Brooks Co., 282 U. S. 359; Heiner v. Mellon, 304 U. S. 271; Guaranty Trust Co. v. Commissioner, 303 U. S. 493; Security Mills Co. v. Commissioner, 321 U. S. 281. And the parties agree that, under the applicable federal statutes, neither the Government nor an accrual-basis taxpayer may cause an item to be deducted in a year other than the one in which it accrued. United States v. Anderson, 269 U. S. 422; Security Mills Co. v. Commissioner, supra; United States v. Olympic Radio & Television, 349 U. S. 232. They also agree that the “touchstone” for determining the year in which an item of deduction accrues is the “all events” test established by this Court in United States v. Anderson, supra, and since reaffirmed by this Court on numerous occasions, so that it is now a fundamental principle of tax accounting. See, e. g., Lucas v. American Code Co., 280 U. S. 445; Brown v. Helvering, 291 U. S. 193; Dixie Pine Co. v. Commissioner, 320 U. S. 516; Security Mills Co. v. Commissioner, supra. The parties also recognize that this Court amplified, or as the Government says “added a refinement to,” the “all events” test by its holding, in Dixie Pine Co. v. Commissioner, supra, that an accrual-basis taxpayer could not, while “contesting liability in the courts,” deduct “the amount of the tax, on the theory that the state’s exaction constituted a fixed and certain liability,” but “must, in the circumstances, await the event of the state court litigation and might claim a deduction only for the taxable year in which its liability for the tax was finally adjudicated.” 320 U. S., at 519. That principle was specifically reaffirmed in Security Mills Co. v. Commissioner, supra.
That $85 of the $100 assessment was admitted to be owing and was intended to be paid and satisfied by the remittance, and thus accrued in the year - of the remittance, is not in dispute. Respondent’s good faith, in contesting $15 of the assessment, is not in dispute, for the Government expressly “disavow [s] any suggestion that the respondent . . . filed its claims against the City of New York in bad faith, . . . ealculatingly inflated those claims, or . . . failed to prosecute them with diligence.” Nor is it questioned that accrual of such taxes in the proper year accords with “good accounting” principles.
But concordance of the views of the parties ends at this point. The Government contends that the remittance by respondent to the city, in each of the years in question, of cash in an amount equal to the whole of the assessed tax admitted liability for, and was intended to and did constitute “payment” and “satisfaction” of, both the disputed and undisputed parts of the assessment; and that when “the taxpayer pays the item and thereby discharges its liability, the expense has been incurred and there is no longer any contingency which would prevent its accrual.” Respondent, on the other hand, insists that its remittance to the city was not intended to and did not admit liability for, nor constitute “payment” and “satisfaction” of, the contested $15 of the assessment, but was, in effect, a mere deposit, in the nature of a cash bond, required of respondent, in a practical sense, by the local law as the only available mode of avoiding the risk of seizure and sale of the property for the contested tax while its validity was being diligently contested in the only way allowed by the laws of the State.
Thus the very narrow issue here is whether the remittance admitted liability for, and constituted “payment” and “satisfaction” of, the contested part of the assessment and thereby rendered it accruable in the year of the remittance. Like the Court of Appeals, we think the respondent is right in its contention, and that $10 of the contested $15 of the tax accrued when liability in that amount was finally determined by the New York court in 1951, and that the $5, for which respondent was by that judgment held not liable, and which was returned to it by the city, was not income to respondent in 1951.
Although the Government attempts to distinguish the Anderson, Dixie Pine and Security Mills cases on the ground that “payment” of the contested taxes had not been made in those cases, it primarily relies on the decisions of the Court of Claims in Chestnut Securities Co. v. United States, 104 Ct. Cl. 489, 62 F. Supp. 574, and Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 135 F. Supp. 881.
The Chestnut Securities case turned on the question whether certain judicially contested state income taxes (for the years 1936-1938) accrued when they were paid in 1940, as claimed by the accrual-basis taxpayer, or when the final judgment upholding their validity was rendered in 1942, as contended by the Government. Squarely contrary to its contention here, the Government, relying on Security Mills Co. v. Commissioner, supra, there contended that “since the [taxpayer’s] accounts were kept and its tax returns made on the accrual basis, it could not take its deduction for the taxes . . . paid to the State . . . until the year 1942, when its suit'for their return was finally decided adversely to it.” On the facts of that case, the Court of Claims held that “the Government [was] wrong” in that contention. Although, in full consonance with the Security Mills case, the Court of Claims said “[o]ne is not entitled to accrue a debt or other liability which is asserted against him but which he disputes and litigates, until the litigation is concluded,” it went on to say “[b]ut if a liability is asserted against him and he pays it, though under protest, and though he promptly begins litigation to get the money back, the status of the liability is that it has been discharged by payment. It is hardly conceivable that a liability asserted against him, which he has discharged by payment, has not yet ‘accrued’ within the meaning of the tax laws and the terminology of accounting. Accrual, from the debtor’s standpoint, precedes payment, and does not survive it.” 104 Ct. Cl., at 494-495, 62 F. Supp., at 576. And after pointing to this Court’s use of the phrase “and failed to pay” in its holding in the Security Mills case that “Since [the taxpayer] denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the Government’s claim as an accrued liability,” the Court of Claims concluded: “In the instant case the taxpayer denied liability, but paid. We think it thereby ‘accrued’ the taxes and interest, if accrual is requisite at all, in the case of the debtor, when actual payment has occurred.” 104 Ct. Cl., at 495, 62 F. Supp., at 576.
The Consolidated Edison case involved the same parties, facts and questions as the present case, though in respect to earlier tax years. Although recognizing that this Court’s opinions in Security Mills Co. v. Commissioner, supra, and Dixie Pine Co. v. Commissioner, supra, had “settled” the law to be “that a taxpayer may not accrue an expense when he is denying liability and refusing and contesting its payment,” the Court of Claims rejected, as “not necessarily true,” the taxpayer’s argument “that there must therefore be. an admission or absence of denial of liability before an item may be accrued and that the payment of the liability within the taxable year has no effect on its accrual since payment was made under protest and litigation was immediately started to obtain a repayment” (133 Ct. Cl., at 382, 135 F. Supp., at 884); and, purporting to follow, but seemingly departing from, its decision in the Chestnut Securities case, the Court concluded “that payment of an item which is otherwise accruable in the taxable year accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment.” 133 Ct. Cl., at 383-384, 135 F. Supp., at 885. (Emphasis added.) On that conclusion the Court rendered judgment for the Government.
Just what the Court meant by the phrase we have italicized was not explained, but it is evident that if the tax item was “otherwise accruable in the taxable year,” payment — whether of a character that would constitute an admission of the asserted liability or a mere deposit to enable contest of the liability — certainly would not render the item non-aceruable; and if, in the absence of payment, the item was “otherwise accruable in the taxable year,” payment would be immaterial, or at least unnecessary, to the question of accruability. It thus appears that the Court’s judgment was contrary to its rule in that case, for, although it regarded the remittance as “payment” of the asserted tax liability, admittedly the contested part of the tax was not “otherwise accruable in the' taxable year.”
Disagreeing with the conclusion of the Court of Claims in the Consolidated Edison case, the Court of Appeals concluded, we think correctly, that the question of accruability of the tax — apart from the issue respecting “payment” and “satisfaction” — was governed by the “all events” test established by this Court in United States v. Anderson, supra (see note 5), as amplified and affirmed in Dixie Pine Co. v. Commissioner, supra, and reaffirmed as amplified in Security Mills Co. v. Commissioner, supra. See notes 6 and 7.
As to whether respondent’s remittance of the full $100 to the city, in the circumstances of this case, constituted an admission of liability for, and a “payment” and “satisfaction” of, the contested $15 of the assessment, the Court of Appeals recognized that this Court’s opinions in the Anderson, Dixie Pine and Security Mills cases refer to the fact that “payment” of the taxes sought to be deducted in those cases had not been made by the taxpayers, but it thought, and we agree, that those references were made only for the sake of complete accuracy to an important but, so far as those cases were concerned, a collateral matter, and not to the determinative considerations of those cases, which were the “all events” test as they state it.
“Payment” is not a talismanic word. It may have many meanings depending on the sense and context in which it is used. As correctly observed by the Court of Appeals, “A payment may constitute a capital expenditure, an exchange of assets, a prepaid expense, a deposit, or a current expense,” and “[w]hen the exact nature of the payment is not immediately ascertainable because it depends on some future event, such as the outcome of litigation, its treatment for income tax purposes must await that event.” 279 F. 2d, at 156. (Emphasis added.)
Of course, an unconditional “payment” made by a taxpayer in apparent “satisfaction” of an asserted matured tax liability is, without more, plain and persuasive evidence, at least against the taxpayer, that “all the events [have] occur [red] which fix the amount of the tax and determine the liability of the taxpayer to pay it,” United States v. Anderson, supra, at 441, and that the item so paid and satisfied has accrued.
But where, as stipulated by the parties in this case, the remittance or “payment” did not admit, but specifically denied, liability for, and was not intended to satisfy, the contested $15 of the assessment, but was, in effect, a mere deposit, “in the nature of a cash bond for the payment of [so much, if any, of the contested] taxes [as might] thereafter [be] found to be due” (Rosenman v. United States, 323 U. S. 658, 662, and see Lewyt Corp. v. Commissioner, 215 F. 2d 518, 523 (C. A. 2d Cir.)), and was made for the sole purpose of staying—there being no other way to stay—an otherwise possible seizure and sale of the property for the contested tax while its validity was being honestly and diligently contested in the only way allowed by the law of the State, it will not do to say that the taxpayer has made an unconditional “payment” in apparent “satisfaction” of the contested part of an asserted matured tax liability, and thereby rendered it immediately accruable.-
We therefore conclude that $10 of the contested $15 tax liability accrued not in the year of the remittance, but in 1951 when the New York court entered its final order determining that liability; and that the $5, for which respondent was held not liable by that judgment and which was returned to it by the city, was not income to respondent in 1951.
Affirmed.
The procedures allowed by the laws of New York for the contest of real property taxes are more fully set forth in Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 378, 135 F. Supp. 881, 882.
Respondent asserts that this treatment of the $15 in its 1951 federal income tax return was made under compulsion of the Commissioner's erroneous G. C. M. 25298, issued directly to it in 1947 (1947-2 Cum. Bull. 39), saying, “a contested tax liability accrues not later than time of payment, notwithstanding continuation of contest. The accrual basis of accounting relates to the deductibility of unpaid items,” and that the Commissioner insisted upon that treatment, despite his modification thereof in Mim. 6444 (1949-2 Cum. Bull. 11), saying in pertinent part, that “payment of [a] contested tax liability as a prerequisite for appeal is not deductible under G. C. M. 25298.”
The economic consequences to the parties arise from the fact that corporate income tax rates (normal plus surtax) were increased from 38% in 1946 to 50%% in 1951, and, in.this particular instance, more revenue would be produced by taking the deduction in 1946-1950 than in 1951. The taxpayer recognizes that, if its position be sustained, the Commissioner will have one year after entry of final judgment herein to reaudit the taxpayer's 1946-1950 returns and to assess deficiencies based upon deduction of the $15 in those years, in accordance with the provisions of §§ 1311-1315 of the Internal Revenue Code of 1954.
The applicable statutes are §§23 (c), 41, 42, 43 and 48 of the Internal Revenue Code of 1939 (26 U. S. C. (1952 ed.), §§23 (c), 41, 42, 43, 48). These provisions are the same as their counterparts in prior Revenue Acts and in the Internal Revenue Code of 1954. Inasmuch as those statutes are not really in contest in this ease, it would serve no useful purpose even to abstract them here.
In the Anderson case, this Court declared the so-called “all events” test as follows: “In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given acccounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee’s books. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued.” 269 U. S., at 441.
In the Dixie Pine case, this Court reaffirmed the “all events” test as follows: “It has long been held that in order truly to reflect the income of a given year, all the events must occur in that year which fix the amount and the fact of the taxpayer’s liability for items of indebtedness deducted though not paid; and this cannot be the case where the liability is contingent apd is contested by the taxpayer.” 320 U. S., at 519.
In the Security Mills case, this Court reaffirmed that test as follows': “It is settled by many decisions that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent, and this principle is fully applicable to a tax, liability for which the taxpayer denies, and payment whereof he is contesting.” 321 U. S., at 284.
In the Security Mills case, after saying “that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent,” the Court concluded that “[s]ince [the taxpayer] denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the [tax] claim as an accrued liability.” 321 U. S., at 284.
|
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
] |
IN RE DISBARMENT OF ISSERMAN.
No. 5,
Misc.,
October Term, 1952.
Decided October 14, 1954.
Leonard, B. Boudin for Isserman, respondent.
Per Curiam.
April 6, 1953, an order was entered disbarring Isserman from the practice of law in this Court pursuant to Rule 2, par. 5, of this Court’s Rules then in effect. See In re Isserman, 345 U. S. 286. The order of disbarment is now before us on a petition for rehearing. Rule 8 of our present Rules provides that “no order of disbarment will be entered except with the concurrence of a majority of the justices participating.” The petition for rehearing is granted. A majority of the Justices participating do not find ground for disbarment of Isserman. Accordingly, the former order of disbarment is set aside and the rule against Isserman to show cause is discharged.
Mr. Justice Burton, with whom Mr. Justice Reed and Mr. Justice Minton join, dissents for the reasons stated in the opinion announced by Mr. Chief Justice Vinson, April 6, 1953, in In re Isserman, 345 U. S. 286.
Mr. Justice Reed also calls attention to his dissent in Sacher v. Association of the Bar, 347 U. S. 388, 390.
The Chief Justice and Mr. Justice Clark did not participate in the consideration or decision of this matter.
|
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"
] |
[
117
] |
ZADVYDAS v. DAVIS et al.
No. 99-7791.
Argued February 21, 2001
Decided June 28, 2001
Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 702. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which Scalia and Thomas, JJ., joined as to Part I, post, p. 705.
Jay W. Stansell argued the cause for respondent in No. 00-38. With him on the brief were Thomas W. Hillier II and Jennifer E. Wellman.
Robert F. Barnard argued the cause for petitioner in No. 99-7791. With him on the briefs was Virginia Laugh-lin Schlueter.
Deputy Solicitor General Kneedler argued the cause for respondents in No. 99-7791 and petitioners in No. 00-38. With him on the briefs were Acting Solicitor General Underwood, former Solicitor General Waxman, Assistant Attorney General Ogden, Beth S. Brinkmann, Donald Keener, and Quynh Vu
Together with No. 00-38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States Court of Appeals for .the Ninth Circuit.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance in No. 99-7791.
Briefs of amici curiae urging affirmance in No. 00-38 were filed for the Catholic Legal Immigration Network, Inc., et al. by Laurie Joyce and Josh Dratel; for the American Association of Jews from the Former USSR et al. by Nancy Morawetz; for the Lawyers Committee for Human Rights by Seth M. M. Stodder; for the American Civil Liberties Union et al. by Judy Rabinovitz, Lucas Guttentag, Steven R. Shapiro, Wanyong Lai Austin, Jayashri Srikantiah, and Aaron H. Captan; for Human Rights Watch et al. by William J. Aceves and Paul L. Hoffman; and for Carolyn Patty Blum et al. by George A. Cumming, Jr., and Charles D. Weisselberg.
Justice Breyer
delivered the opinion of the Court.
When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien’s removal during a subsequent 90-day statutory “removal period,” during which time the alien normally is held in custody.
A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says:
“An alien ordered removed [1] who is inadmissible .'.. [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision . . . .” 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V).
In these cases, we must decide whether this post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien’s removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit “reasonable time” limitation, the application of which is subject to federal-court review.
H-l
A
The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. 66 Stat. 204, as added and amended, 110 Stat. 3009-585, 8 U. S. C. §§ 1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. § 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government “may” continue to detain an alien who still remains here or release that alien under supervision. § 1231(a)(6).
Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien’s records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR §§ 241.4(c)(1), (h), (k)(l)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. § 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. §241.4(i). In making this decision, the panel will consider, for example, the alien’s disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. § 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. § 241.4(e). And the alien must demonstrate “to the satisfaction of the Attorney General” that he will pose no danger or risk of flight. § 241.4(d)(1). If the panel decides against release, it must review the matter again within a year, and can review it earlier if conditions change. §§241.4(k)(2)(iii), (v).
B
1
We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since.
Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years’ imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. § 1261(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable).
In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the .Dominican Republic (Zadvydas’ wife’s country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas’ effort to obtain Lithuanian citizenship based on his parents’ citizenship; Zadvydas’ reapplication is apparently still pending.
The INS kept Zadvydas in custody after expiration of the removal period. In September 1995, Zadvydas filed a petition for a writ of habeas eorpus under 28 U. S. C. § 2241 chai-lenging his continued detention. In October 1997, a Federal District Court granted that writ and ordered him released under supervision. Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his permanent confinement, contrary to the Constitution. Id., at 1027.
The Fifth Circuit reversed this decision. Zadvydas v. Underdown, 185 F. 3d 279 (1999). It concluded that Zadvydas’ detention did not violate the Constitution because eventual deportation was not “impossible,” good-faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. Id., at 294,297. The Fifth Circuit stayed its mandate pending potential review in this Court.
2
The second case is that of Kim Ho Ma. Ma was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months’ imprisonment. He served two years, after which he was released into INS custody.
In light of his conviction of an “aggravated felony,” Ma was ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F) (defining certain violent crimes as aggravated felonies), 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early 1999, but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was “unable to conclude that Mr. Ma would remain nonviolent and not violate the conditions of release.” App. to Pet. for Cert, in No. 00-38, p. 87a.
In 1999, Ma filed a petition for a writ of habeas corpus under 28 U. S. C. §2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma’s and about 100 similar cases together, issued a joint order holding that, the Constitution forbids post-removal-period detention unless there is “a realistic chance that [the] alien will be deported” (thereby permitting classification of the detention as “in aid of deportation”). Binh Phan v. Reno, 56 F. Supp. 2d 1149, 1156 (1999). The District Court then held an evidentiary hearing, decided that there was no “realistic chance” that Cambodia (which has no repatriation treaty with the United States) would accept Ma, and ordered Ma released. App. to Pet. for Cert, in No. 00-38, at 60a-61a.
The Ninth Circuit affirmed Ma’s release. Kim Ho Ma v. Reno, 208 F. 3d 815 (2000). It concluded, based in part on constitutional concerns, that the statute did not authorize detention for more than a “reasonable time” beyond the 90-day period authorized for removal. Id., at 818. And, given the lack of a repatriation agreement with Cambodia, that time had expired upon passage of the 90 days. Id., at 830-831.
3
Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma’s continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac Ho v. Greene, 204 F. 3d 1045, 1060 (CA10 2000) (upholding Attorney General’s statutory and constitutional authority to detain alien indefinitely). We consolidated the two cases for argument; and we now decide them together.
i — t
We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. §2241, confers jurisdiction upon the federal courts to hear these cases. See § 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held “in custody in violation of the Constitution or laws i . . of the United States”). Before 1952, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Heikkila v. Barber, 345 U. S. 229, 230, 235-236 (1953). Beginning in 1952, an alternative method for review of deportation orders, namely, actions brought in federal district court under the. Administrative Procedure Act (APA), became available. See Shaughnessy v. Pedreiro, 349 U. S. 48, 51-52 (1955). And in 1961 Congress replaced district court APA review with initial deportation order review in courts of appeals. See Act of Sept. 26, 1961, § 5, 75 Stat. 651 (formerly codified at 8 U. S. C. § 1105a(a)) (repealed 1996). The 1961 Act specified that federal habeas courts were also available to hear statutory and constitutional challenges to deportation (and exclusion) orders. See 8 U. S. C. §§ 1105a(a)(10), (b) (repealed 1996). These statutory changes left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final. See Cheng Fan Kwok v. INS, 392 U. S. 206, 212, 215-216 (1968) (holding that § 1105a(a) applied only to challenges to determinations made during deportation proceedings and motions to reopen those proceedings).
More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V), simply forbids courts to construe that section “to create any . . . procedural right or benefit that is legally enforceable”; it does not deprive an alien of the right to rely on 28 U. S. C. § 2241 to challenge detention that is without statutory authority.
Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that “no court shall.' have jurisdiction to review” decisions “specified ... to be in the discretion of the Attorney General.” The aliens here, however, do not seek review of the Attorney General’s exercise of discretion; rather, they challenge the extent of the Attorney General’s authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e.g., § 1226(e) (applicable to certain detention-related decisions in period preceding entry of final removal order); § 1231(a)(4)(D) (applicable to assertion of causes or claims under §1231(a)(4), which is not at issue here); §§ 1252(a)(1), (a)(2)(C) (applicable to judicial review of “final order[s] of removal”); § 1252(g) (applicable to decisions “to commence proceedings, adjudicate cases, or execute removal orders”).
We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges. to post-removal-period detention. And we turn to the merits of the aliens’ claims.
H-1 H-l
The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien “who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V); see also 8 CFR § 241.4(a) (2001). It says that an alien who falls into one of these categories “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V).
The Government argues that the statute means what it literally says. It sets no “limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained.” Brief for Petitioners in No. 00-38, p. 22. Hence, “whether to continue to detain such an alien and, if so, in what circumstances and for how long” is up to the Attorney General, not up tó the courts. Ibid.
“[I]t is a cardinal principle” of statutory interpretation, however, that when an Act of Congress raises “a serious doubt” as to its constitutionality, “this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932); see also United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916); cf. Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998) (construction of statute that avoids invalidation best reflects congressional will). We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United States v. Witkovich, 353 U. S. 194, 195, 202 (1957) (construing a grant of authority to the Attorney General to ask aliens whatever questions he “deem[s] fit and proper” as limited to questions “reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue”). For similar reasons, we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States. It does not permit indefinite detention.
A
A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to “de-priv[e]” any "person ... of... liberty ... without due process of law.” Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U. S. 71, 80 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U. S. 739, 746 (1987), or, in certain special and “narrow” nonpunitive “circumstances,” Foucha, supra, at 80, where a special justification, such as harm-threatening mental illness, outweighs the “individual’s constitutionally protected interest in avoiding physical restraint.” Kansas v. Hendricks, 521 U. S. 346, 356 (1997).
The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detention — at least as administered under this statute. The statute, says the Government, has two regulatory goals: “ensuring the appearance of aliens at future immigration proceedings” and “[preventing danger to the community.” Brief for Respondents in No. 99-7791, p. 24. But by definition the first justification — preventing flight — is weak or nonexistent where removal seems a remote possibility at best. As this Court said in Jackson v. Indiana, 406 U. S. 715 (1972), where detention’s goal is no longer practically attainable, detention no longer “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” Id., at 738.
The second justification — protecting the community — does not necessarily diminish in force over time. But we have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections. Compare Hendricks, swpm, at 368 (upholding scheme that imposes detention upon “a small segment of particularly dangerous individuals” and provides “strict procedural safeguards”), and Salerno, supra, at 747, 750-752 (in upholding pretrial detention, stressing “stringent time limitations,” the fact that detention is reserved for the “most serious of crimes,” the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards), with Foucha, supra, at 81-83 (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness). In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. See Hendricks, supra, at 358, 368.
The civil confinement here at issue is not limited, but potentially permanent. Cf. Salerno, supra, at 747 (noting that “maximum length of pretrial detention is limited” by “stringent” requirements); Carlson v. Landon, 342 U. S. 524, 545-546 (1952) (upholding temporary detention of alien during deportation proceeding while noting that “problem of . . . unusual delay” was not present). The provision authorizing detention does not apply narrowly to “a small segment of particularly dangerous individuals,” Hendricks, supra, at 368, say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations. See 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V) (referencing § 1227(a)(1)(C)); cf. Hendricks, 521 U. S., at 357-358 (only individuals with “past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future” may be detained). And, once the flight risk justification evaporates, the only special circumstance present is the alien’s removable status itself, which bears no relation to a detainee’s dangerousness. Cf. id., at 358; Foucha, supra, at 82.
Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government’s view) significant later judicial review. Compare 8 CFR § 241.4(d)(1) (2001) (imposing burden of proving nondangerousness upon alien) with Foucha, supra, at 82 (striking down insanity-related detention for that very reason). This Court has suggested, however, that the Constitution may well preclude granting “an administrative body the unreviewable authority to make determinations implicating fundamental rights.” Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 450 (1985) (O’Connor, J.); see also Crowell, 285 U. S., at 87 (Brandeis, J., dissenting) (“[U]nder certain circumstances, the constitutional requirement of due process is a requirement of judicial process”). The Constitution demands greater procedural protection even for property. See South Carolina v. Regan, 465 U. S. 367, 393 (1984) (O’CONNOR, J., concurring in judgment); Phillips v. Commissioner, 283 U. S. 589, 595-597 (1931) (Brandeis, J.). The serious constitutional problem arising out of a statute that, in these circum: stances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.
The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), as support. That case involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that Mezei’s detention did not violate the Constitution. Id., at 215-216.
Although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien’s extended departure from the United States required him to seek entry into this country once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was “treated,” for constitutional purposes, “as if stopped at the border.” Id., at 213, 215. And that made all the difference.
The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod, 267 U. S. 228, 230 (1925) (despite nine years’ presence in the United States, an “excluded” alien “was still in theory of law at the boundary line and had gained no foothold in the United States”); Leng May Ma v. Barber, 357 U. S. 185, 188-190 (1958) (alien “paroled” into the United States pending admissibility had not effected an “entry”). It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. Verdugo-Urquidez, 494 U. S. 259, 269 (1990) (Fifth Amendment’s protections do not extend to aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950) (same). But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U. S. 202, 210 (1982); Mathews v. Diaz, 426 U. S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U. S. 590, 596-598, and n. 5 (1953); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886); cf. Mezei, supra, at 212 (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”). Indeed, this Court has held that the Due Process Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U. S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U. S. 21, 32-34 (1982); Johnson, supra, at 770.
In Wong Wing, supra, the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (Scalia, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because “all persons within the territory of the United States are entitled to the protection” of the Constitution. 163 U. S., at 238 (citing Yick Wo, supra, at 369 (holding that equal protection guarantee applies to Chinese aliens)); see also Witkovich, 353 U. S., at 199, 201 (construing statute which applied to aliens ordered deported in order to avoid substantive constitutional problems). And contrary to Justice Scalia’s characterization, see post, at 703-705, in Mezei itself, both this Court’s rejection of Mezei’s challenge to the procedures by which he was deemed excludable and its rejection of his challenge to continued detention rested upon a basic territorial distinction. See Mezei, supra, at 215 (holding that Mezei’s presence bn Ellis Island was not “considered a landing” and did “not affecft]” his legal or constitutional status (internal quotation marks omitted)).
In light of this critical distinction between Mezei and the present cases, Mezei does not offer the Government significant support, and we need not consider the aliens’ claim that subsequent developments have undermined Mezei’s, legal authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers’ Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy’s limitation of due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 717-722 (dissenting opinion).
The Government also looks for support to cases holding that Congress has “plenary power” to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-7791, at 17, 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952)). But that power is subject to important constitutional limitations. See INS v. Chadha, 462 U. S. 919, 941-942 (1983) (Congress must choose “a epnstitutionally permissible means of implementing” that power); The Chinese Exclusion Case, 130 U. S. 581, 604 (1889) (congressional authority limited “by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations”). In these cases, we focus upon those limitations. In doing so, we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions. See 8 U. S. C. § 1231(a)(3) (1994 ed., Supp. V) (granting authority to Attorney General to prescribe regulations governing supervision of aliens not removed within 90 days); § 1253 (imposing penalties for failure to comply with release conditions). The question before us is not one of “ ‘conferring] on those admitted the right to remain against the national will’” or ‘“sufferance of aliens’” who should be removed. Post, at 703 (Scalia, J., dissenting) (emphasis deleted) (quoting Mezei, 345 U. S., at 222-223 (Jackson, J., dissenting)). Rather, the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States.
Nor do the cases before us require us to consider the political branches’ authority to control entry into the United States. Hence we leave no “unprotected spot in the Nation’s armor.” Kwong Hai Chew, 344 U. S., at 602. Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with “sensitive” repatriation negotiations. Brief for Respondents in No. 99-7791, at 21. But neither the Government nor the dissents explain how a habeas court’s efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect. See infra, at 699-700.
Finally, the Government argues that, whatever liberty interest the aliens possess, it is “greatly diminished” by their lack of a legal right to “liv[e] at large in this country.” Brief for Respondents in No. 99-7791, at 47; see also post, at 703 (Scalia, J., dissenting) (characterizing right at issue as “right to release into this country”). The choice, however, is not between imprisonment and the alien “living at large.” Brief for Respondents in No. 99-7791, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR §241.5 (2001) (establishing conditions of release after removal period). And, for the reasons we have set forth, we believe that an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (Kennedy, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent.
B
Despite this constitutional problem, if “Congress has made its intent” in the statute “clear, 'we must give effect to that intent.’ ” Miller v. French, 530 U. S. 327, 336 (2000) (quoting Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962)). We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed. And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708-709 (Kennedy, J., dissenting). After all, the provision is part of . a statute that has as its basic purpose effectuating an alien’s removal. Why should we assume that Congress saw the alien’s dangerousness as unrelated to this purpose?
The Government points to the statute’s word “may.” But while “may” suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word “may” is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C) (1994 ed., Supp. V) (“If no country is willing to receive” a terrorist alien ordered removed, “the Attorney General may, notwithstanding any other provision of law, retain the alien in custody” and must review the detention determination every six months).
The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see supra, at 691; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point.
The Government also points to the statute’s history. That history catalogs a series of changes, from an initial period (before 1952) when lower courts had interpreted statutory silence, Immigration Act of 1917, ch. 29, §§ 19, 20, 39 Stat. 889, 890, to mean that deportation-related detention must end within a reasonable time, Spector v. Landon, 209 F. 2d 481, 482 (CA9 1954) (collecting cases); United States ex rel. Doukas v. Wiley, 160 F. 2d 92, 95 (CA7 1947); United States ex rel. Ross v. Wallis, 279 F. 401, 403-404 (CA2 1922), to a period (from the early 1950’s through the late 1980’s) when the statutes permitted, but did not require, post-deportation-order detention for up to six months, Immigration and Nationality Act of 1952, § 242(c), 66 Stat. 210, 8 U. S. C. §§ 1252(c), (d) (1982 ed.); Witkovich, 353 U. S., at 198, to more recent statutes that have at times mandated and at other times permitted the post-deportation-order detention of aliens falling into certain categories such as aggravated felons, Anti-Drug Abuse Act of 1988, § 7343(a), 102 Stat. 4470, 8 U. S. C. § 1252(a)(2) (mandating detention); Immigration Act of 1990, § 504(a), 104 Stat. 5049-5050, 8 U.S.C. §§ 1252(a)(2)(A), (B) (permitting release under certain circumstances); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), 105 Stat. 1751, 8 U. S. C. § 1252(a)(2)(B) (same).
In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, § 439(c), 110 Stat. 1277. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§303, 305,110 Stat. 3009-585, 3009-598 to 3009-599; 8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V).
We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. See 1 E. Coke, Institutes *70b (“Cessante ra-tione legis cessat ipse lex”) (the rationale of a legal rule no longer being applicable, that rule itself no longer applies).
> — *
The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government’s view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. § 2241(c)(3) (granting courts authority to determine whether detention is “in violation of the .. . laws ... of the United States”). In doing so the courts carry out what this Court has described as the “historic purpose of the writ,” namely, “to relieve detention by executive authorities without judicial trial,” Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result).
In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute’s basic purpose, namely, assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien’s release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those, conditions. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR § 241.5 (2001)). And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien’s committing further crimes as a factor potentially justifying confinement within that reasonable removal period. See supra, at 690-692.
We recognize, as the Government points out, that review must take appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation’s need to “speak with one voice” in immigration matters. Brief for Respondents in No. 99-7791, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.
Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 651-652 (1990). They recognize Executive Branch primacy in foreign policy matters. See Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159,196 (1983). And they consequently require courts to listen with care when the Government’s foreign policy judgments, including, for example, the status of repatriation negotiations, are at issue, and to grant the Government appropriate leeway when its judgments rest upon foreign policy expertise.
We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit the occasions when courts will need to make them, we think it practically necessary to recognize some presumptively reasonable period of detention. We have adopted similar presumptions in other contexts to guide lower court determinations. See Cheff v. Schnackenberg, 384 U. S. 373, 379-380 (1966) (plurality opinion) (adopting rule, based on definition of “petty offense” in United States Code, that right to jury trial extends to all cases in which sentence of six months or greater is imposed); County of Riverside v. McLaughlin, 500 U. S. 44, 56-58 (1991) (O’Connor, J.) (adopting presumption, based on lower court estimate of time needed to process ar-restee, that 48-hour delay in probable-cause hearing after arrest is reasonable, hence constitutionally permissible).
While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United States v. Wiikovich, O. T. 1956, No. 295, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the “reasonably foreseeable future” conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.
V
The Fifth Circuit held Zadvydas’ continued detention lawful as long as “good faith efforts to effectuate... deportation continue” and Zadvydas failed to show that deportation will prove “impossible.” 185 F. 3d, at 294, 297. But this standard would seem to require an alien seeking release to show the absence of any prospect of removal — no matter how unlikely or unforeseeable — which demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. 208 F. 3d, at 831. But its conclusion may have rested solely upon the “absence” of an “extant or pending” repatriation agreement without giving due weight to the likelihood of successful future negotiations. See id., at 831, and n. 30. Consequently, we vacate the judgments below and remand both cases for further proceedings consistent with this opinion.
It is so ordered.
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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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"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"
] |
[
67
] |
ARNETT, DIRECTOR, OFFICE OF ECONOMIC OPPORTUNITY, et al. v. KENNEDY et al.
No. 72-1118.
Argued November 7, 1973
Decided April 16, 1974
Rehnquist, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and Stewart, J., joined. Powell, J., filed an opinion concurring in part and concurring in the result in part, in which Blackmun, J., joined, post, p. 164. White, J., filed an opinion concurring in part and dissenting in part, post, p. 171. ■ Douglas, J., filed a dissenting opinion, post, p. 203. Marshall, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 206.
Daniel M. Friedman argued the cause for appellants. On the brief were Solicitor General Bork, Assistant Attorney General Wood; Keith A. Jones,, Walter H. Fleischer, and William Kanter.
Charles Barnhill, Jr:, argued the cause for appellee». With him on the brief were Judson H. Miner and Leo Pellerzi.
Mozart G. R'atner end Jerry D. Anker filed'a brief for the Na- . tional Association of Letter Carriers, AFL-CIO, et al. as amici curiae urging affirmance.
Mr. Justice Rehnquist
announced the judgment of the Court in an opinion in which TiiE Chief Justice and Mr. Justice Stewart join.
Prior to the events leading to his discharge, appellee Wayne Kennedy was a nonprobationary federal employee in the competitive Civil Service. He was a field representative in the Chicago Regional Office of the Office of Economic Opportunity (OEO). In March 1972, he was removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act, 5 U. S. C. § 7501, after Wendell Verduin, the Regional Director of the OEO, upheld written administrative charges made in the form of a “Notification, of Proposed Adverse Action” against appellee. The chárges listed five events occurring in November and December 1971; the most serious of the charges was that appellee “without any proof whatsoever and in reckless disregard of the actual facts” known to him or reasonably discoverable by him had publicly stated that Verduin and his administrative assistant had attempted to bribe a representative of a community action organization with which the OEO had dealings. The alleged bribe consisted of an offer of a $100,000 grant of OEO funds if the representative would sign a statement against appellee and another OEO employee.
Appellee was advised of his right under regulations promulgated by the Civil Service Commission and the OEO to reply to the charges orally and in writing, and to submit affidavits to Verduin. He was also advised that the material on which the notice was based was available for his inspection in the Regional Office, and that a copy of the material was attached to the notice of proposed adverse action.
Appellee did not respond to the substance of the charges against him, but instead asserted that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment, and because state-merits made by him were protected by the First Amendment to the United States Constitution.. On March 20, 1972, Verduin notified appellee in writing that he would be removed from his position at the close of business on March 27, 1972. Appellee was' also notified of his right to appeal Verduin’s decision either to the OEO or to the Civil Service Commission.
Appellee then instituted this suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated, seeking both injunctive and declaratory relief. In his amended complaint, appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary employees from the federal service unwarrantedly interfere with those employees’ freedom of expression and deny them procedural due process of law.. The three-judge District Court, convened pursuant to 28 U. S. C. §§ 2282 and 2284, granted summary judgment for appellee. 349 F. Supp. 863. The cohrt held that the discharge procedures authorized by the Act and attendant Civil Service Commission and OEO regulations denied appellee due process of law because they failed to provide for a trial-type hearing before an impartial agency official prior to removal;.the court also held the Act and implementing, regulations unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech may be made the basis of a removal action. The court ordered that appellee be reinstated in his former position with backpay, and that he be accorded a hearing . prior to removal in any futüre removal proceedings. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing rules, as .“construed to regulate the speech of competitive service employees.”
I
The numerous affidavits . submitted tb the District Court by both parties not unexpectedly portray two widely differing versions of the:facts which jgave rise to this lawsuit. Since the District Court granted sum-' mary judgment to appellee, it was required to resolve all genuine disputes as. to any material facts in favpr- of. appellants, and we therefore take as true for purposes of this opinion the material particulars of appellee’s conduct which were set forth in the notification of proposed adverse action dated February 18, 1972. The District Court’s holding necessarily embodies the legal conclusions that, even though all of these factual statements were true, the procedure which the Government proposed to follow in this case was constitutionally insufficient to accomplish appellee’s discharge, and the standard by which his conduct was to be judged in the course of those procedures infringed his right of free speech protected by the First Amendment.
The statutory provisions which the District Court held invalid are found in 5 U. S. C. § 7501. Subsection (a) of that section provides that “[a]n individual in the competitive service may be removed or suspended without pay only for such'cause as will promote the efficiency of the service.”
Subsection (b) establishes the administrative procedures by which an employee’s rights under subsection (a) are to be determined, providing:
“(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—
“(1) notice of the action sought and of any charges preferred against him;
“(2) a copy of the charges;
“(3) a reasonable time for filing a written answer to the charges, with affidavits; and “(4) a written decision on the answer at the earliest practicable date.
“Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.”
This codification of the Lloyd-La Foflette Act is now supplemented by the regulations of the Civil Service Commission, and, with respect to the .OEO, by the regulations and. instructions of that agency. Both the Commission and the OEO have by regulation given further specific content to the general removal standard in subsection (a) of the Act. The regulations of the Commission and the OEO, in nearly identical language, require that employees “avoid any action ... . which might result in, or create the appearance of . . . [a]ffecting adversely the confidence of the public in the integrity of [OEO and] the Government,” and that employees not “engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government.” The OEO further provides by regulation that"its Office of General Counsel is available to supply counseling on the interpretation of the-laws and regulations relevant to, the conduct of OEO employees.
Both the. Commission and the OEO also follow regulations enlarging the procedural protections accorded by the Act itself. The Commission’s regulations provide, inter alia, that the employing- agency must give 30 days’ advance written notice to the employee prior to removal, and make available to him the material on which the notice is based. They also provide that the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges against'him, that the employee must receive notice of an adverse decision on or before its effective date, and that the employee may appeal from an adverse decision. This appeal may be either to a reviewing authority within the employing agency, or directly to the Commission, and the employee is entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding. The only trial-type hearing available within the OEO is, by virtue of its regulations and practice, typically held after actual removal; but if the employee is reinstated on appeal, he receives full backpay, less any amounts earned by him through other employment during that period.
We must first decide whether these procedures established for the purpose of determining whether there is “cause” under the Lloyd-La Follette Act for the dismissal of a federal employee comport- with procedural due process, and then decide whether that standard of “cause” for federal employee dismissals was within the constitutional power of Congress to adopt.
II
For almost the first century of our national existence, federal employment was regarded as an item of patronage, which could be granted, withheld, or withdrawn for whatever reasons might appeal to the responsible executive hiring officer. Following the Civil War, grass-roots sentiment for “Civil Service reform” began to grow, and it was apparently brought to a head by the assassination of President James A. Garfield on July 2, 1881. Garfield, having then held office only four months, was accosted in Washington’s Union Station and shot by a ^dissatisfied office seeker who believed that the President had been instrumental in refusing his request for appointment as United States Consul in Paris. During the summer, while President Garfield lingered prior to his death in September, delegates from 13 Civil Service reform associations met and formed the National Civil Service Reform League. Responding to public demand' for reform led by this organization, Congress in January 1883 enacted the Pendleton Act.
While the Pendleton Act is regarded as the keystone in the present arch of Civil Service legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into the federal service, and hardly at all with tenure, promotion, removal, veterans’ preference, pensions, and other subjects addressed by subsequent Civil Service legislation. The Pendleton' Act provided for the creation of a classified Civil Service, and required competitive examination for. entry into that service. Its only provision with respect to separation was to prohibit removal for' the failure of an employee in the classified service to con-, tribute to a political fund. or to render any political service.
For 16 years following the effective date of the Pendleton Act, this last-mentioned provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to discharge classified employees. In 1897, President William McKinley promulgated Civil Service Rule 11, which provided that removal from the competitive classified service should not be made except for just cause and for reasons given in writing. While job tenure was thereby accprded protection, there were no administrative appeal rights for action .taken in violation of this rule, and the courts declined to judicially enforce it. Thus matters stood with respect to governmental authority to remóvé federal employees until the enactment of the Lloyd-La Follette Act.
The Lloyd-La Follette Act was enacted as one section of the Post Office Department appropriation bill for the fiscal year 1913. That Act guaranteed the right of federal employees to communicate with members of Con*gress, and to join employee organizations. It also, substantially enacted and enlarged upon Civil Service Rule II. in the following language:
“[N]o person in "the classified civil service of the United States shall be removed therefrom except' for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of. the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or gompensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the same. . . .”.
That Act, as now codified, . 5 IT., S. C. § 7501, together with the administrative regulations issued by the. Civil Service Commission and the OEO, provided the statutory, and administrative framework which the Government contends controlled the proceedings against appellee. The District Court, in its ruling on appellee’s procedural contentions, in effect held that the Fifth Amendment to the United States Constitution prohibited Congress, in the Lloyd-La Follette Act, from; granting protection against removal without cause and at the same time — indeed, in the same sentence — specifying, that the determination-of cause should be without the full panoply of rights which attend a trial-type adversary hearing. We do not believe that the Constitution so limits Congress in the manner in which benefits may be extended to federal employees.
Appellee recognizes that our recent decisions in Board of Regents v. Roth, 408 U. S. 564 (1972), and Perry v. Sindermann, 408 U. S. 593 (1972), are those most closely in point with respect to the procedural rights, constitutionally guaranteed public employees in connection with their dismissal from employment. Appellee contends that he had a property interest or an expectancy of employment which could not be divested without first affording him a full adversary hearing.
In Board of Regents V: Roth, we said:
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U. S., at 577.
Here appellee did have a statutory expectancy that he not be removed other than for “such cause as will promote the efficiency of [the] service.” But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which “cause” was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U. S. 886, 896-897 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act máy be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.
The Court has previously viewed skeptically the action of a litigant in challenging the constitutionality of portions of a statute under which it has simultaneously claimed benefits. In Fahey v. Mallonee, 332 U. S. 245 (1947), it was observed:
“In the name and right of the Association it is now being asked that the Act under which it has’ its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. ... It would be intolerable that the Congress should endow an association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.” Id., at 255-256.
“It is an elementary rule of constitutional law that, one may not ‘retain the benefits of an Act while attacking. the constitutionality of one of its important conditions.’ United States v. San Francisco, 310 U. S. 16, 29. As formulated by Mr, Justice Brandéis, concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348, ‘The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.’ ” Id., at 255. .
This doctrine has unquestionably been applied un-. evenly in the past, and observed as often as not in the breach. We believe that at the very least it gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that’ right, a litigant in the position of appellee, must take the bitter with the sweet.
To conclude otherwise would! require us to hold that -although. Congress chose-to enact what was essentially a legislative compromise,, and with unmistakable clarity granted governmental employees security against being dismissed without “cause,” but refused to accord .them a full adversary hearing for the determination of “cause,” it was constitutionally disabled from making such a choice. We would be holding that federal employees had been granted, as a result of the enactment of the Lloyd-La Follette- Act, not merely that which Congress had giyen them; in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence. Neither the language of the Due Process Clause of the Fifth Amendment nor our cases construing it. require any such hobbling restrictions on legislative authority in this area.
Appellees urge that the judgment of<the District Court must be sustained on tjie authority of cases such as Goldberg v. Kelly, 397 U. S. 254 (1970), Fuentes v. Shevin, 407 U. S. 67 (1972), Bell v. Burson, 402 U. S. 535 (1971), and Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). Goldberg held that welfare recipients are. entitled under the Due Process Clause of the Fifth and Fourteenth Amendments to an, adversary hearing before their benefits aré terminated. Fuentes v. Shevin held that a hearing was generally required before one could, have his property seized under a writ-of replevin.- In Bell v. Burson the- Court held that due process required a procedure for determining whether there- was a reasonable possibility of a judgment against a driver as a result of an accident before his license and vehicle registration could be suspended for failure to post security under Georgia’s uninsured motorist statute. And in Sniadach v. Family Finance Corp. 'a Wisconsin statute providing fór pre judgment garnishment without notice to the debtor or prior hearing was struck down as violative of the principles of due process. These cases deal with areas of the law dissimilar to one another and dissimilar to the area of governmental employer-employee relationships with which we deal here. • The types of “liberty” and “property” protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required'in dealing with another set of.interests.
“The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S., at 895.
Here the property interest which appellee had in his employment' was itself conditioned by the procedural limitations which had accompanied the grant .of that interest. The Government might, then, under our holdings dealing with Government employees in Roth, supra, and Sindermann, supra, constitutionally deal with appellee’s claims as it proposed to do here.
Appellee also contends in this Court that because of the nature of the charges on which his dismissal was based, he was in effect accused of dishonesty, and that therefore a hearing was required before he could be deprived of this element of his “liberty” protected by the Fifth Amendment against deprivation without due process.- In Board of Regents v. Roth, 408 U. S., at 573, we said:
“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. . In such a case, due process would accord an opportunity to refute the charge before university officials.”
The liberty here implicated by appellants’ action is not the elemental freedom from external restraint such as was involved in Morrissey v. Brewer, 408 U. S. 471 (1972), but is instead a subspecies of the right of the individual “to enjoy those privileges long recognized ... as essential to the orderly.pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390,399 (1923). But that liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of'an employee. Since the purpose of the hearing in such a case is to provide the person “an opportunity to clear his name,” a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause. Here appellee chose" not to rely on his administrative appeal, which, if his factual contentions are correct, might well have vindicated his reputation and removed any wrongful stigma from his reputation.
Appellee urges that the delays in processing agency and Civil Service Commission appeals, amounting to more than three months in over 50% of agency appeals, mean that the available administrative appeals do not suffice to protect his liberty- interest recognized in Roth. During the pendency of his administrative appeals, appellee asserts, a discharged employee suffers from both the stigma and the consequent disadvantage in obtaining a comparable job that result from' dismissal for cause from Government employment. We assume that some delay attends vindication of an employee’s reputation ' throughout the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail any separate deprivation-of a liberty interest recognized in Roth.
Ill
Appellee also contends that the provisions of 5 U. S. C. § 7501 (a), authorizing removal or suspension without pay “for such .cause as will promote the efficiency of the service,” are vagúe and overbroad. The District Court accepted this contention:
“Because employees faced with the standard of 'such cause as will promote the efficiency of the service’ can only guess as to what utterances may cost them their jqbs, ‘there can be little question that they will be deterred from exercising their First Amendment rights to The fullest extent.” 349 F. Supp., at 866.
A certain .anomaly attends appellee’s substantive constitutional attack on Che Lloyd-La Follette Act just as it does his attack on its procedural provisions. Prior to the enactment of this language in 1912, there was no such statutory inhibition on the authority of the Government to discharge a federal employee, and an employee could be discharged with or without causé for conduct which was not protected under the First Amendment. Yet under the District Court’s holding, a federal employee after the enactment of the Lloyd-La Follette Act may not even he discharged for conduct which constitutes “cause” for discharge and which is not protected by" the First Amendment, because the guarantee of job security which Congress chose to accord employees is “vague” and “overbroad.”
We hold the standard of “cause” set forth in the Lloyd-La Follette Act as a limitation on the Government’s authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness. In CSC v. Letter Carriers, 413 U. S. 548, 578-579 (1973), we said:
“[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us. that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out' in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. ‘[T]he general class of offense to which . . . [the provisions are] directed is plainly within [their] terms . . . , [and they] will not be struck down as vague, even though marginal cases could be put where doubts might arise.’ United States v. Harriss, 347 U. S. 612, 618 (1954).”
Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. As we said in Cotten v. Kentucky, 407 U. S. 104 (1972):
“The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed, to convert into a constitutional dilemma the practical.difficulties in drawing criminal statutes both general enough-to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Id., at 110.
Here the language “such cause as will promote the efficiency of the service” was not written upon a clean slate in .1912, and it does not appear on a clean slate now. The Civil Service Commission has indicated that what might be said to be longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the language used by Congress. Moreover, the OEO has provided by regulation that its Office of General Counsel is available to counsel employees who seek advice on the interpretation of the Act and its regulations. We found the similar procedure offered by the Civil Service Commission important in rejecting the respondents’ vagueness contentions in CSC v. Letter Carriers, 413 U. S., at 580.
. The phrase “such cause as will promote the efficiency of the service” as a standard of employee job protection is without doubt intended to authorize dismissal for speech as- well as other conduct. Pickering v. Board of Education, 391 U. S. 563, 568 (1968), makes it clear that in certain situations- the discharge of a Government employee may be based on his speech without offending guarantees .of"the First Amendment:
‘iAt the- same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of" the public services it performs through its employees.”
Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for “cause,” we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. The essential fairness of this broad and general removal standard, and the impracticability of greater specificity, were recognized by Judge Leventhal, writing, for a panel of the United States Court of Appeals for the District of Columbia Circuit in Meehan v. Macy, 129 U. S. App. D. C. 217, 230, 392 F. 2d 822, 835 (1968), modified, 138 U. S. App. D. C. 38, 425 F. 2d 469, aff’d en banc, 138 U. S. App. D. C. 41, 425 F. 2d 472 (1969):
“[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees include ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’ We think it is inherent in the employment relationship as a matter of common sense if not [of] common law that [a Government] employee . . . cannot reasonably assért a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons]. . . . [Dismissal in such circumstances neither] comes as an unfair surprise [nor] is so unexpected as to chill . . . freedom to engage in appropriate speech.”
Since Congress when it enacted the Lloyd-La Toilette Act did so with the intention' of conferring job protection-rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act’s removal standard for speech which is constitutionally protected. The Act proscribes only that , public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than,are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language “such cause as will promote the efficiency of the service” in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad. Colten v. Kentucky, 407 U. S., at 11L. We have observed previously that the Court has a duty to construe a .federal statute to avoid constitutional questions where such a construction is reasonably possible. United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (1973); United States v. Thirtyseven Photographs, 402 U. S. 363, 368-369 (1971).
We have no hesitation, as did the-District Court, in saying that on the facts alleged in the administrative charges against appellee, the appropriate iribu'nal wo "Id infringe no constitutional right of appellee in concluding that there was “cause” for his discharge. Pickering v. Board of Education, 391 U. S., at 569. Nor have we any doubt that satisfactory proof of these allegations could constitute “such cause as will promote the tfficiency of the service” within.the terms of 5 U. S. C. §7501 (a). Appellee’s contention then boils down to the assertion that although no constitutionally protected conduct of his own was the basis for his discharge on' the Government’s version of the fácts, the statutory language in question must be declared inoperative, and a set of more particularized regulations substituted for it, because the generality of its language might result in marginal situations in which other persons seeking to engage in constitutionally protected conduct would be deterred from doing so. But we have held that Congress in establishing a standard of “cause” for discharge did not intend to include within that term' any coi stitutionally protected conduct. We think that our statement in Colten v. Kentucky, is a complete answer to appellee’s contention:
“As we understand this case, appellant’s own conduct was not immune under the First. Amendment and neither is his ' conviction vulnerable on the ground that the statute threatens constitutionally' protected conduct of others.” 407 .U. S., at 111.
In sum, we hold that the ■ Lloyd-La Follette Act, in at once conferring upon nonprobationary federal employees the right not to be discharged except for “cause” and prescribing the procedural means by which that right was to be protected, did not create an expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded here by the statute and related agency regulations. We also conclude that the post-termination hearing procedures provided by the Civil Service Commission and the OEO adequately protect .those federal employees’ liberty interest, recognized in Roth,-supra, in not being wrongfully stigmatized by untrue and -unsupported administrative charges. Finally, we hold that the standard of employment protection imposed by Congress in .the Lloyd-La Follette Act, is not impermissibly vague or overbroad in its regulation of the speech of federal employees and therefore unconstitutional on its face. Accordingly, we reverse the decision of the District Court on both grounds on which it granted summary judgment and remand for further proceedings not. inconsistent .with this opinion. .
Reversed and remanded.
“Appellee” refers to appellee Wayne Kennedy, the named plaintiff in the original complaint. The participation .of the 18 other named plaintiffs, who were added in the amended complaint, see n. 3, infra, appears to have been little more than nominal. The' amended complaint .alleged that the added named plaintiffs’ exercise of their rights of free speech were chilled-because they feared that any off-duty public comments made by them would constitute -t.sgrounds for discharge or punishment under the Lloyd-La Follette 80 4sfeaoT.wo conclusory affidavits supporting that bare allegation (one ..gjjSignqcj, byiypne of the added named plaintiffs, the other by the remaining 17) were filed 'in connection with plaintiffs’ motion for summary judgment or temporary injunctive relief.
Appellee’s response to the “Notification of Proposed Adverse Action,” made through counsel, set forth briefly his position that the charges against hiip were unlawful under the Fifth and First Amendments. One of the three sentences devoted to his First Amendment .claim noted parenthetically that the “conversations . . . with union members and the public” for which he was being punished were “inaccurately set forth in the adverse action.” Appellee's response did not explain in what respects the charges against him were inaccurate, nor did it offer any alternative version of the events described in the charges.
Appellee’s original complaint, filed March 27, 1972, contained two counts. In the first count appellee'sought,' on behalf of himself and others similarly situated, to enjoin his removal pending a full, trial-type .hearing before an impartial hearing officer. In the second count appellee sought to enjoin his removal for the exercise of his rights of free speech. The single-judge court referred the constitutional question presented in the first count to a three-judge court, and dismissed the second count pending appellee’s exhaustion of .available administrative remedies before the Civil Service Commission. Appellee then amended the second count of his complaint to allege, on behalf of himself, 18 added named plaintiffs, see n. 1, supra, and others similarly situated, that the Lloyd-La Follette Act’s removal standard was unconstitutionally vague and' overbroad and violated the plaintiffs' First Amendment rights.
The court ordered Appellee’s reinstatement but deferred determination whether1 the suit was maintainable as a class action. Appellee’s appeal to the Civil Service Commission was first delayed' as a result, of’the pendency, of this suit,.then “terminated” because of appellee’s reinstatement following the decision of the District Court.
5 CFR §§ 735.201a, 735.209. Section 735.201a provides:
“An employee shall avoid any action, ■ whether or not specifically prohibited by this subpart, which might, result in, or create the appearance of:
“(a) Using public office for private gain:
“ (b) Giving preferential treatment to any person;
“(c) Impeding Government efficiency or economy;
“(d) Losing complete independence or impartiality;
“(e) Making a Government decision outside official channels; or “(f) Affecting adversely the confidence of the public in the integrity of the Government.”
Section 735.209 provides:
“An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conc.uct prejudicial to the Government.”
45 CFR §§ 1015.735-1,1015.735-24. Section 1015.735-:. provides:
“The purpose of this part is to guide OEO employees toward maintaining the high standard of integrity expected of sll Government employees. It is intended to require that employees avoid any action which might result in, or create the appearance of:
“ (a) Using public office for private gain;
“(b) Giving preferential treatment to any organization or person; “(c) Impeding Government efficiency or economy;
“.(d) Making a Government decision outside official channels; “(e) Losing complete independence or impartiality of action; or
“(f) Affecting adversely the confidence of the public in the integrity of OEO and the Government.”
Section 1015.735-24 provides:
“No employee shall engage in criminal, infamous; dishonest, immoral, or notoriously disgraceful conduct or other conduct prejudicial to the Government.”
45 CFR §1015.735-4. Section 1015.735-4 provides:
“The Office of General Counsel of OEO is' available to advise on the interpretation of the provisions of this part and the other laws and regulations relevant to the conduct of OEO employees. The , General Counsel is designated as OEO counselor for this purpose."
The Civil Service Commission regulations governing procedures for adverse actions implement, in addition to the Lloyd-La Follette Act, the Veterans’ Preference Act of 1944 and Executive Order No. 11491. The Veterans^ Preference Act, Act of June 27, 1944, c. 287, 58 Stat. 387, imposed procedural requirements for processing adverse actions in addition to those imposed by the Lloyd-La Follette Act. Those additional requirements include an opportunity for the employee to respond orally or in writing to the charges on which his dismissal is based; the Veterans’ Preference Act also authorizes Civil Service Commission appeals from adverse agency decisions. See 5 U.. S. C. § 7701. The Act itself applies only to veterans'óf military service, 5 IT. S. C. §§2108, 7511, but Executive Order No. 11491, printed in note following 5 IT. S. C. § 7301, extends the Act’s protections to all nonpreference eligible employees in the classified service.
5 CFR §752.202 (a). Section 752.202 (a) provides:
“(a)'Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee' against whom adverse action is sought is entitled to at least 30 full days’ advance written notice stating any and all reasons, specifically and in detail, for the proposed action.
“(2) Subject to the provisions of -subparagraph ..(3) of this paragraph, the material on which the notice is based arid which is relied' on to support the reasons in that 'notice, including statements of •witnesses, documents, and investigative reports or extracts there-. from, shall be assembled and made available to the employee for ‘his review. . The notice shall inform the employee where he may ■review that material.
“1(3) Material which cannot be disclosed to the employee, or to his rdesignated physician under § 294.401 ,of this chapter, may not be used by an agency to support the reasons in the notice.”
.5 CFR § 752.202/(b). Section 752.202 (b) provides:
“(b) Employee’s answer. Except as provided in paragraph (c) of this section, an employee is entitled to a reasonable time for answering a notice of proposed adverse action and for furnishing affidavits in support of his .answer. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the agency to support the reasons in the notice and to prepare an answer and secure affidavits. The agency shall provide the employee a reasonable amount of official time for these purposes if he is otherwise in an active duty status, ff the employee answers, the agency shall consider his answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both personally .and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend'what final decision should be made.”
5 CFR § 752.202 (f). Section 752.202 (f) provides:
“(f) Notice of adverse decision. The employee is entitled to notice of the agency’s decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, be dated, and inform the employee:
“(1) Which of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained;
"(2) Of his right, of appeal to the appropriate office of the Commission;
“(3) Of any right of appeal to the agency under Subpart B of Part 771 of this chapter, including the person with whom, or the office with which, such an appeal shall be filed;
“(4) Of the time limit for appealing as provided in §752.204;
"(5) Of the restrictions on the use of appeal rights as provided in §752.205; and
“(6) 'Where he may obtain information on how to pursue an appeal.”
5 CFR §§771.205, 771.208. Section 771.205 provides:
“An employee is entitled to appeal under the agency appeals system from the original decision. The agency shall accept and process a properly filed appeal in accordance with its appeals system.”
Section 771.208 provides:
“ (a) Entitlement. Except as provided in' paragraph (b) of this section, an employee is entitled to a hearing on his appeal before an examiner. The employee is entitled' to appear at the hearing personally or through or accompanied by his representative. The hearing may precede either the original decision or the' appellate ■decision, at the agency’s option. Only one hearing shall be held unless the agency determines that unusual circumstances require a second hearing.
“(b) Denial of hearing. The agency may deny an employee a hearing on his appeal only (1) when a hearing is impracticable by reason of unusual location or other extraordinary circumstance, or (2) when the employee failed to request a hearing offered before the original decisipn.
“(c) Notice. The agency shall notify an employee in writing before the.original decision or before the appellate decision of (1) his right to a hearing, or (2) the reasons for the denial of a hearing.”
5 CFR § 752.203. Section 752.203 provides:
“An employee is entitled to appeal to the Commission from an adverse action covered by this' subpart. The appeal shall be in writing and shall set forth the employee’s reasons for contesting the adverse action, with such offer of proof and pertinent documents as he is able to submit.”
Appeals to both the discharging agency and the Commission from an original adverse action will not be processed concurrently, 5 CFR §752.205 (a), and a direct appeal to the Commission from an initial removal decision constitutes a waiver of appeal rights within the employing agency. 5 CFR § 752.205 (b). However, if the employee first appeals within the employing agency, he is entitled, if necessary, to an appeal to the Commission. 5 CFR §752.205 (c).
5 CFR §§771.208, 771.210-771.212, 772.305 (c). Sections 771.210-771.212 govern the conduct of hearings by the discharging agency. Those sections provide:
Ҥ 771.210 Conduct of hearing.
“(a) The hearing is not open to the public or the press. Except as provided in paragraph (h) of this section, attendance at a hearing is limited to persons determined by the examiner to have a direct connection with the appeal.
“(b) The- hearing is conducted so as to -bring out pertinent facts, including the production of pertinent records.
“(c) Rules of evidence are not applied strictly, but the examiner shall 'exclude irrelevant or unduly repetitious testimony.
“(d) Decisions on the admissibility of evidence or testimony are made by the examiner.
“(e) Testimony is under oath or affirmation.
“(f) The examiner shall give the parties opportunity to cross-examine witnesses Who appear and testify.
“(g) Th3 examiner may exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing.
“(h) An agency may provide through a negotiated agreement with a labor organization holding exclusive recognition for the attendance at hearings-under this subpart of an observer from that organization. When attendance is provided for, the agreement shall further ^provide that When ,the employee who requested the hearing objects :to the attendance of an observer on grounds of privacy, the examiner .shall determine the validity of the objection and make the decision on the question of attendance.
Ҥ 771.211 Witnesses.
“(a) Both parties are entitled to produce witnesses.
“(b) The agency shall make its employees available as witnesses before an examiner when requested by the éxaminer after consideration of a request by the employee or the agency.
“(c) If the agency determines • that it is not administratively practicable to comply with the request of the examiner, it shall notify him in writing of the reasons for that determination. If, in the examiner’s judgment, compliance with his request is essential to a full and fair hearing, he may postpone' the hearing until such time as the agency complies with his request.
“(d) Employees of the agency are in a duty status during the time they are made available as witnesses.
. “(e) The agency shall assure witnesses freedom from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.
Ҥ 771.212 Record of hearing.
“(a) The hearing shall be recorded and transcribed verbatim. All documents submitted to and accepted by the examiner at the hearing shall be made a part of the record of the hearing. If the agency submits a document that is accepted, it shall furnish a copy of the document to the employee. If the employee submits a document that is accepted, he shall make the document available to the agency representative for reproduction.
“(b) The employee is entitled to be furnished a copy of the hearing record at or before the time he is furnished a copy of the report of the examiner.”
Section' 772.305 (c) . governs the conduct' of hearings before the Civil Service Commission. It provides:
“(c) Hearing procedures. (1) An appellant is entitled to appear at the hearing on his appeal personally pr through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses. The Commission is not authorized to subpoena witnesses.
“ (2) An agency shall make its employees available ab witnesses at the hearing, when (i) requested by the Commission after consideration of a request by the appellant or the agency and (ii) it is administratively- practicable to comply with the request of the' Commission. If the agency determines that it is not administratively practicable to comply with the request of the .Commission, it shall submit to the Commission its written reasons for the declination. Employees of the agency shall be in a duty status during the time they are made available as witnesses. Employees of the- agency shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.
“(3) Hearings are not open-to the public or the press. Attendance at hearings is limited to persons determined by the Commission to have a direct connection with the appeal.
“(4) A representative of the Commission shall conduct the hearing and shall afford the parties opportunity to introduce evidence (including testimony. and statements by the appellant, his representative, representatives,-of the agency,’ and witnesses), and to cross-examine witnesses. Testimony is under oath or affirmation. Rules of evidence are not'applied strictly, but the representative of the Commission shall exclude irrelevant or unduly repetitious testimony.
“(5) The office of the Commission having initial jurisdiction of the appeal shall determine how the hearing will be reported. When, the hearing is reported verbatim, that office shaE make the transcript a part of the record -of the proceedings' and shall furnish a copy of the transcript to each party. When the hearing is not reported verbatim, the representative of the Commission who. conducts the hearing shall make a suitable summary of the pertinent portions of the testimony. When agreed to in writing by the párties, the summary constitutes the report of the hearing and is. made a part of the record of the proceedings. Each party is entitled to be furnished a copy of the report of the hearing. -' If the representative of the Commission and the parties fail to agree on the summary, the parties are entitled to submit written exceptions to any parts of the summary which are made a part of the record of the proceedings for consideration in deciding the appeal.”
OEO Staff Instruction No. 771-2 (1971).
5 U. S. C. § 5596.
Act of Jan. 16, 1883, c. 27, 22 Stat. 403.
Id., §2.
Fifteenth Report of the Civil Service Commission 70 (1897-1898). Rule II, § 8, provided: “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.”
Act of Aug. 24, 1912, c. 389, § 6,37 Stat. 555.
Our Brother White would hold that Verduin himself might not make the initial decision as to removal on behalf of the agency, because he was the victim of the alleged slander which was one of the bases for appellee’s removal. Because of our holding with respect /t<3 appellee’s property-type expectations under Roth and Sindermann, we do not reach this' question in its constitutional dimension. But since our Brother White suggests that he reaches that conclusion as a matter of statutory construction, albeit because of constitutional emanations, we state our reasons for disagreeing with his conclusion. We, of course, find no constitutional overtones lurking in the statutory .issue, because of our holding as to the nature of appellee’s property interest in his - employment. The reference In the Lloyd-La.Follette Act itself to the discretion “of the officer making the removal” suggests rather strongly that he is likewise the officer who will have brought the charges, and there is no indication that during the 60 years’ practice under the Act it has ever been administratively construed to require the initial hearing on the discharge to be before any official other than the one making the charges. And while our .Brother White’s statement of his conclusion suggests. that it may be limited to facts similar to those presented here, post, at 199, we doubt that in practice it could be so confined. The decision of an employee’s supervisor to dismiss an employee “for such cause as will promote the efficiency of the service” will all but invariably involve a somewhat subjective judgment on the part of the supervisor that the employee’s-performance is not “up to snuff.” Employet-employee disputes of this sort can scarcely avoid involving clashes of personalities, and while a charge that an employee has defamed a supervisor may generate a maximum of personal involvement on the part of the latter, a statement,of more typical.charges. will necessarily engender some degree of personal involvement on the part of the supervisor.
Additional difficulties in applying our Brother White’s standard would surely be found if the official bringing the charges were himself the head of a department or an agency, for in that event none of his subordinates .could be-assumed to have a reasonable degree of detached neutrality, and the initial hearing would presumably have to be.conducted by someone wholly Outside of the department or- agency: We do not believe that Congress, clearly indicating as it did in the Lloyd-LaFollette Act its preference for relatively simple procedures, contemplated or required the complexities which would be injected into the Act by our Brother White.
The Court’s footnote there stated:
■. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name.. Once a person has cleared his name at a hearing, his employer, of course, may remain free .to deny hint future employment for other reasons.” 408 U. S., at 573 n. 12.
See Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va. L. Rev. 196,206 (1973).
The Federal Personnel Manual, Subchapter S3-1. a., states: “Basically a, ‘cause’ for disciplinary adverse action is a recognizable offense against the employer-employee relationship. Causes for adverse action run the entire gamut of offenses against the employer-employee relationship, including inadequate performance of duties and improper conduct on or off the job. . . .” Supp. 752-1, Adverse Action by Agencies, Feb. 1972.
See n. 7, supra.
As the Court stated in Boddie v. Connecticut, 401 U. S. 371, 378 (1971), “The formality and procedural requisites for [a due process] hearing can vary, depending upon the'imp anee of the interests involved and the nature of the subsequent proceedings.” In this case, we are concerned with an administrative hearing in the context of appellee’s discharge from public employment.
|
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",
"Bonneville Power Administration",
"Benefits Review Board",
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"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",
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"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",
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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",
"Indian Claims Commission",
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"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",
"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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"NO Admin Action",
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] |
[
86
] |
UNITED AIR LINES, INC. v. MAHIN, DIRECTOR OF DEPARTMENT OF REVENUE, et al.
No. 71-862.
Argued November 8, 1972
Decided March 5, 1973
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNán, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Stewart and White, JJ., joined, post, p. 632. White, J., filed a dissenting opinion, post, p. 639.
Mark H. Berens argued the cause for appellant. With him on the briefs were H. Templeton Brown, Robert L. Stern and William Bruce Hoff, Jr.
Robert J. O’Rourke argued the cause for appellees. With him on the brief were William J. Scott, Attorney-General of Illinois, and Warren K. Smoot and Calvin C. Campbell, Assistant Attorneys General.
James A. Velde filed a brief for American Airlines, Inc., et al. as amici curiae urging reversal.
Mr. Justice Blackmun
delivered the opinion of the Court.
United Air Lines, Inc., challenged the constitutionality of the Illinois general revenue use tax as applied to aviation fuel stored in Illinois and then loaded aboard aircraft there and consumed in interstate flights. The Supreme Court of Illinois upheld the state tax as currently applied, concluding that it did not impose an unconstitutional burden on interstate commerce. 49 Ill. 2d 45, 273 N. E. 2d 585 (1971). We noted probable jurisdiction. 405 U. S. 986 (1972). We now affirm that holding, but we vacate the judgment and remand the case for consideration of an issue under state law.
Since 1953, United has purchased aviation fuel from a supplier for delivery from the supplier’s Indiana facilities. This fuel is utilized by United in its extensive operations out of O’Hare and Midway airports in the Chicago area of Illinois. Although the method of delivery varies for different types of fuel and for the two airports, all fuel is delivered by common carrier and is held for periods ranging from two to 12 days in ground storage facilities maintained in Illinois by United. Fuel for both interstate and intrastate operations is delivered in the same manner. United voluntarily has paid the tax on fuel consumed in purely intrastate operations. Only the tax as applied to fuel used in interstate flights is in issue.
In 1955, Illinois enacted a general tax on the “privilege of using” tangible personal property in the State. Ill. Rev. Stat., c. 120, § 439.3 (1971). “Use” was defined to include the “exercise ... of any right or power over tangible personal property incident to the ownership of that property.” § 439.2. Some exceptions from this inclusive definition were made. One of these exceptions, which the statute recites, § 439.3, is “[t]o prevent actual or likely multistate taxation,” is the temporary-storage provision. This denies application of the tax to property brought from another State and stored temporarily in Illinois before use solely outside the State.
Since this general use tax, apart from its exceptions, reached all tangible personal property, it applied by its terms to fuel stored for use in vehicles. From 1955 to 1963, the Illinois Department of Revenue allowed interstate common carriers to benefit from the temporary-storage provision to the extent that fuel, although loaded aboard in Illinois, was not consumed by the vehicle in that State. The amount of aviation fuel used over Illinois could be calculated because scheduled airline routes are precise and the rate of consumption by each type of aircraft is known. This “burn off” interpretation was changed in 1963, however, when the Department announced by bulletin that it was reinterpreting the temporary-storage provision to mean that “temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck.” Thus, as the Illinois court described it, “all fuel loaded on United’s planes at the two airports was deemed to measure the tax.” 49 Ill. 2d, at 49, 273 N. E. 2d, at 587.
United’s suit attacked the new interpretation on both state and federal grounds. All justices of the Supreme Court of Illinois agreed that the new interpretation did not run afoul of the Federal Constitution, but the justices disagreed over the applicability and validity of the “burn off” alternative discussed in the several opinions. 49 Ill. 2d, at 50-53, 56, 57-59, 273 N. E. 2d, at 587-589, 591-592.
I
Two decisions of this Court were relied upon by the Illinois court in reaching its conclusion that the present application of the state tax was not offensive to the Federal Constitution. The cases are Edelman v. Boeing Air Transport, 289 U. S. 249 (1933), and Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U. S. 249 (1933). We agree that these cases support the application of the Illinois tax to all fuel stored in Illinois and loaded aboard United’s aircraft for in-flight consumption.
In Edelman, this Court upheld a state gasoline use tax, even when imposed on gasoline imported from outside the State, stored in tanks at an airport, and loaded aboard planes departing on interstate flights. The decision in Edelman followed the holding in Nashville that oil purchased by a railroad outside Tennessee but stored in Tennessee solely for the purpose of providing motive power for the railroad’s interstate and intrastate operations could be subjected constitutionally to a Tennessee privilege tax. In Nashville, as in this case, none of the fuel stored was held as inventory for sale, and the tax was not one for the use of special services furnished by the State to the taxpayer railroad.
In Edelman, the Court accepted the State’s determination that the taxable event was withdrawal from storage rather than consumption. 289 U. S., at 251. The airline in Edelman contended, id., at 252, that the state tax was invalid under Helson v. Kentucky, 279 U. S. 245 (1929). In Helson, the Court held that a Kentucky tax on the use of gasoline within the State fell too directly on interstate commerce when it was imposed on fuel loaded in Illinois but consumed in the course of an interstate ferry’s trip through Kentucky. In Edelman, the Court distinguished Helson because storage, rather than consumption, was the taxable event. See Southern Pacific Co. v. Gallagher, 306 U. S. 167 (1939).
The Supreme Court of Illinois characterized the taxable “use” under the Illinois statute as either storage or withdrawal from storage. United argued in the state court that the temporary-storage provision constituted a legislative waiver of the right to tax storage prior to loading. The Illinois court rejected this contention, noting that United stored fuel at the airport for general use. On these facts, the Supreme Court of Illinois concluded that the Illinois use tax applied to storage by United before loading and that this application was constitutional:
“Under the circumstances, the 'storage’ becomes something more than a 'temporary storage’ for safekeeping prior to its use solely outside of Illinois. Such storage, under the plain words of the statute, does not qualify under the temporary storage exemption and, as the authorities already discussed reveal, either the storage itself or the withdrawal therefrom are uses which may be taxed without offending the commerce clause of the Federal constitution.” 49 Ill. 2d, at 55-56, 273 N. E. 2d, at 590 (emphasis added).
The Illinois dissenters, too, treated the taxable event as storage or withdrawal. 49 Ill. 2d, at 57, 273 N. E. 2d, at 591.
This Court usually has deferred to the interpretation placed on a state tax statute by the highest court of the State. Scripto, Inc. v. Carson, 362 U. S. 207, 210 (1960); General Trading Co. v. State Tax Comm’n, 322 U. S. 335, 337 (1944). See Evco v. Jones, 409 U. S. 91 (1972). As in Edelman, we see no reason to ignore, or to disagree with, the state court’s determination that the taxable event is storage rather than consumption.
We hold that Edelman and Nashville support the conclusion of the Supreme Court of Illinois that this tax, as applied to all fuel withdrawn from storage for consumption in an interstate vehicle, does not place an unconstitutional burden on interstate commerce. Further, we decline to hold that Edelman has outlived its usefulness. We must concede that for a long time this area of state tax law has been cloudy and complicated, primarily because the varied nature of interstate activities makes line drawing difficult. This Court has established some precedents, however, and Edelman and Nashville remain useful guidelines.
The line drawn between an impermissible tax on mere consumption of fuel, as in Helson, and a permissible tax on storage of fuel before loading, as in Edelman and Nashville, continues to serve rational purposes. Retaining the line at this point minimizes the danger of double taxation and yet provides a source of revenue having a relation to the event taxed. Double taxation is minimized because the fuel cannot be taxed by States through which it is transported, under Michigan-Wiscousin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954), nor by the State in which it is merely consumed, under Helson. A fair result is achieved because a State in which preload-ing storage facilities are maintained is likely to provide substantial services to those facilities, including police protection and the maintenance of public access roads.
Since no persuasive reason has been advanced for changing the established rule, we reaffirm Edelman and Nashville as precedents.
II
United contended in state court that the Illinois temporary-storage exemption should be interpreted, as a matter of state law, to encompass the “burn off” rule which, as noted above, had received administrative sanction for eight years. 49 Ill. 2d, at 49, 273 N. E. 2d, at 587. Two justices of the Illinois court deemed themselves bound under Helson to regard the “burn off” rule as invalid under the Federal Constitution. 49 Ill. 2d, at 50, 273 N. E. 2d, at 587. This basis for construing a state statute creates a federal question. Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 120 (1924). The possibility that the state court might have reached the same conclusion if it had decided the question purely as a matter of state law does not create an adequate and independent state ground that relieves this Court of the necessity of considering the federal question. Beecher v. Alabama, 389 U. S. 35, 37 n. 3 (1967); see C. Wright, Federal Courts § 107, p. 488 (2d ed. 1970). Since the other justices of the Illinois court divided three to two on the state law issue, the votes of the two who felt bound by Helson could be determinative of the state issue. Under these circumstances, we proceed to consider the validity of the “burn off” rule in the light of Helson, as United has urged us to do. See Perkins v. Benguet Mining Co., 342 U. S. 437, 441-443 (1952).
The facts in Helson are different from the facts here. In Helson, the operators of the interstate ferry boat purchased and took delivery of fuel in Illinois. The office, the place of business, and the situs of all the taxpayer’s property were in Illinois. The boat crossed the Ohio River into Kentucky on regular runs, and Kentucky sought to impose a tax on the use of gasoline consumed in Kentucky. The Court invalidated the tax “computed and imposed upon the use of the gasoline thus consumed.” 279 U. S., at 248.
In the present case, Illinois is the State of storage of United’s fuel before loading. If Illinois imposed a tax on the basis of that storage but measured the tax only by the fuel consumed over Illinois, a lower tax would result. The dangers of multiple taxation and possible tax windfalls, already suggested as justifying the Helson decision, would not be present if the tax were imposed on storage prior to loading but were measured by consumption. Multiple taxation and tax windfalls are avoided because only one State — the State of storage before loading — has a local event upon which a tax is imposed. Under Helson, States over which the planes fly will be unable to impose a tax on mere consumption.
The use of a method of tax measurement that is intimately related to interstate commerce is not automatically unconstitutional. Tolls on the use of facilities that aid interstate commerce have been upheld even when measured by passengers or by mileage traveled on the highways of a State. Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405 U. S. 707 (1972); Interstate Busses Corp. v. Blodgett, 276 U. S. 245 (1928). Upon the facts before us, we see no constitutional barrier to the use of the “burn off” rule by Illinois to measure the tax imposed for storage before loading.
Since we now determine that the federal compulsion felt by two justices of the Illinois court is not warranted, we remand the case to avoid the risk of “an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.” Perkins v. Benguet Mining Co., 342 U. S., at 443. We, of course, express no opinion on the construction of the temporary-storage provision under state law.
The judgment of the Supreme Court of Illinois is vacated and the case is remanded to that court for further proceedings.
T. ■ , , It is so ordered.
Turbine (jet) fuel for use at O’Hare is shipped by common carrier pipeline from the supplier’s Indiana terminals to a 15-million-gallon storage facility at Des Plaines, Illinois. App. 168-169. Normally, three deliveries are made each month to this facility. App. 129. Smaller quantities of fuel are transferred by pipeline to facilities maintained by United at O’Hare.
Turbine fuel for use at Midway and aviation gasoline for both airports is transported from Indiana by common carrier tank truck to airport storage facilities. App. 159.
The parties have stipulated that the period of storage ranges from two to 12 days. App. 38. The Des Plaines storage facilities are not owned by United; it and another airline jointly lease the facilities. United shares in the cost of repairs, the risk of loss, and the employment of a managing agent. App. 132, 168.
App. 173-174. United uses fuel from the storage facilities for its intrastate training flights and for the intrastate leg of flights that stop at both Chicago and Moline, Illinois. 49 Ill. 2d 45, 47-48, 273 N. E. 2d 585, 586. United also engages in interstate charter flights. App. 37 n. 6.
The temporary-storage provision excepts
“(d) the temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or physically attached to or incorporated into other tangible personal property that is used solely outside this State.” § 439.3.
The Illinois court’s interpretation of the temporary-storage provision makes it clear that loading into the tanks of the airplane is a relevant event but is not the taxable event. The court indicated that the temporary storage exemption suspended the effect of otherwise taxable events:
“To put it another way, the legislature has stated that the temporary storage and the withdrawal therefrom are not taxable uses, if the property in question is to be used solely outside the State. It is clear that if United was to withdraw its fuel from storage at Des Plaines and the airports and transport it outside the State for use elsewhere, as for example at an airport in nearby Wisconsin, the exemption would apply and neither the storage, nor the withdrawal, nor the transportation of the fuel outside the State would be uses subject to the tax.” 49 Ill. 2d, at 55, 273 N. E. 2d, at 590.
Under this view, all the fuel is “used” and subject to Illinois tax when it is temporarily stored or withdrawn from storage. The taxable event is nullified, however, if the fuel is transported from the State for consumption elsewhere.
Although this use of a subsequent event to define the effect of a prior event may appear somewhat unusual, the result may be said to be compelled since fuel in transit may not be constitutionally taxed. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954). A similar exemption for gasoline “exported or sold for exportation from the State” was present in the Wyoming statute challenged in Edelman v. Boeing Air Transport, 289 U. S. 249, 250 (1933).
Amici have urged reconsideration of Edelman, arguing that it represents “a high-water mark in the Court’s search in the early thirties for formulas that would assist states in finding additional sources of revenue.” Brief for American Airlines et al. 13.
Although this is a general state tax, rather than a toll on commerce, this Court has recognized that interstate commerce can be “required to pay a nondiscriminatory share of the tax burden.” Braniff Airways v. Nebraska State Board of Equalization, 347 U. S. 590, 598 (1954). In Helson v. Kentucky, 279 U. S. 245 (1929), in contrast, the ferry boat was asked to bear more than its “nondiscriminatory share” when it was taxed only for passing through Kentucky waters.
Those justices of the Illinois court who relied on Helson did not consider, apparently, any interpretation of Helson that would prevent multistate taxation. They suggested that an adoption of the “burn off” rule would allow taxation by every State over which United’s planes fly. 49 Ill. 2d, at 51, 273 N. E. 2d, at 588.
United successfully calculated and paid the state tax under the “bum off” interpretation for eight years. App. 41. No suggestion has been made that the recordkeeping procedures were an intolerable burden on commerce or that special equipment must be installed to measure fuel consumption.
Ill. Rev. Stat., c. 120, § 439.1 et seq.
|
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
] |
COMMISSIONER OF INTERNAL REVENUE v. CULBERTSON et ux.
No. 313.
Argued February 7, 1949.
Decided June 27, 1949.
Arnold Raum argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Harry Baum.
Benjamin L. Bird argued the cause and filed a brief for respondents.
William A. Sutherland and Arthur H. Kent filed a brief, as amici curiae-, supporting respondents.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
This case requires our further consideration of the family partnership problem. The Commissioner of Internal Revenue ruled that the entire income from-a partnership allegedly entered into by respondent and his four sons must be taxed to respondent, and the Tax Court sustained that determination. The Court of Appeals for the Fifth Circuit reversed. 168 F. 2d 979. We granted certiorari, 335 U. S. 883, to consider the Commissioner’s claim that thq. principles of Commissioner v. Tower, 327 U. S. 280 (1946), and Lusthaus v. Commissioner, 327 U. S. 293 (1946), have been departed from in this and other courts of appeals decisions.
Respondent taxpayer is a rancher. From 1915 until October 1939, he had operated a cattle business in partnership with R. S. Coon. Coon, who had numerous business interests in the Southwest and had largely financed the partnership, was 79 years old in 1939 and desired to dissolve the partnership because of ill health. To that end, the bulk of the partnership herd was sold until, in October of that year, only about 1,500 head remained. These cattle were all registered Herefords, the brood or foundation herd. Culbertson wished to keep these cattle and approached Coon with an. ffer of $65 a head. Coon agreed to sell at that price, Dut only upon condition that Culbertson would sell an undivided one-half interest in the herd to his four sons at the same price. His reasons for imposing this condition were his intense interest in maintaining the Hereford strain which he and Culbertson had developed, his conviction that Culbertson was too old to carry on the work alone, and his personal interest in the Culbertson boys. Culbertson’s sons were enthusiastic about the proposition, so respondent thereupon bought the remaining cattle from the Coon and Culbertson partnership for $99,440. Two days later. Culbertson sold an undivided one-half interest to the four boys, and the following day they gave their father a note for $49,720 at 4 per cent interest due one year from date. Several months later a new note for $57,674 was executed by the boys to replace the earlier note. The increase in amount covered the purchase by Culbertson and his sons of other properties formerly owned by Coon and Culbertson. This note was paid by the boys in the following manner:
Credit for overcharge................. $5,930
Gifts from respondent................ 21,744
One-half of a loan procured by Culbertson & Sons partnership...........:.. 30,000
The loan was repaid from the proceeds from operation of the ranch.
The partnership agreement between taxpayer ánd his sons was oral. The local paper announced ,the dissolution of the Coon and Culbertson partnership and the continuation of the business by respondent and his boys under the name of Culbertson &.Sons. A bank.account was opened in this name, upon which taxpayer, his four sons and a bookkeeper could check. At the time of formation of the new partnérship, Culbertson’s oldest son was 24 years old, married, and living on the ranch, of which he had for two years been foreman under the Coon and Culbertson partnership. He was a college graduate and received $100 a month plus board and lodging for himself and his wife both before and after formation-of Culbertson & Sons and until entering the Army. The second son was 22 years old, was married and finished college in 1940, the first year'during which the new part-, nership operated. He went directly into the Army following graduation and rendered no services to the partnership. The two younger sons, who were 18 and Í6 years old respectively in 1940, went to school during the winter and worked on the ranch during the summer.
The tax years here involved are 1940 and 1941. A partnership return was filed for both years indicating a division of income approximating the capital attributed to each partner. It is the disallowance of this division of the income from the ranch that brings this case into the courts.
First. The Tax Court read our decisions in Commissioner v. Tower, supra, and Lusthaus v. Commissioner, supra, as setting out two essential tests of partnership for income-tax purposes: that each partner contribute to the partnership either vital services or capital originating with him. Its decision was based upon a finding that none of respondent’s sons had satisfied those requirements during the tax years in question. Sanction for the use of these “tests” of partnership is sought in this paragraph from our opinion in the Tower case:
“There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with hér or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181, 182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her husband. But when she does not share in the management and control of the business, contributes no vital additional service,, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning of the federal revenue laws.” 327 U. S. at 290.
It is the Commissioner’s contention that the Tax Court’s decision can and should be reinstated upon the mere reaffirmation of the quoted paragraph.
The Court of Appeals; on the other hand, was of the opinion that a family partnership entered into without thought of tax avoidance should be given recognition tax-wise whether or not it ¿was intended that some of the partners contribute either capital or services during the tax year and whether or not they actually made such-contributions, since, it was formed “with the full expectation and purpose that the boys would, in the future, contribute their , time and services to the partnership.” We must consider, therefore, whether an intention to contribute capital or services sometime in the future is sufficient to satisfy ordinary concepts of partnership, as required by the Tower case. The sections of the Internal Revenue Code involved are §§ 181 and 182, which set out the method of taxing partnership income, and §§11 and 22 (a), which relate to the taxation of individual incomes.
In the Tower case we held that, despite the claimed partnership, the evidence fully justified the Tax Court’s holding that the husband, through his ownership of the capital and his management of the business, actually created the right to receive and enjoy the benefit of the income and was thus taxable upon that entire income under §§ 11 and 22 (a). In such case, other members of the partnership cannot be considered “Individuals carrying on business in partnership” and thus “liable for income tax ... in their individual capacity” within the meaning of § 181. If it is conceded that some of the partners contributed neither capital nor services to the partnership during the tax years in question, as the Court of Appeals was apparently willing to do in the present case, it can hardly be contended that they are in any way responsible for the production of income during those years. - The partnership sections of the Code are, of course, geared to the sections relating to taxation of individual income, since no tax is imposed upon partnership income as such. To hold that “Individuals carrying on business in partnership” includes persons who contribute nothing during the tax period would viola té the first principle of income taxation: that income must be taxed to him who earns it. Lucas v. Earl, 281 U. S. 111 (1930); Helvering v. Clifford, 309 U. S. 331 (1940); National Carbide Corp. v. Commissioner, 336 U. S. 422 (1949).
Furthermore, our decision in Commissioner v. Tower, supra, clearly indicates the importance of participation in the business by the partners during the tax year. We there said that a partnership is created “when persons join together their money, goods, labor, or skill for the purpose of carrying oñ a trade, profession, or business and when there is community of interest in the' profits and-losses.” Id. at 286. This is, after all, but the application of an often iterated definition of income — the gain derived from capital, from labor, or from both combined — to a particular form of business organization. A partnership is, in other words, an organization for the production of income to which each partner contributes one or both of the ingredients of income — capital or services. Ward v. Thompson, 22 How. 330, 334 (1859). The intent to provide money, goods, labor, or skill sometime in the future- cannot meet the demands of §§11 and 22 (a) of the Code that he who- presently earns the income through his own labor and skill and the utilization of his own capital, be taxed therefor. The vagaries of human experience preclude reliance upon even good faith intent as to future conduct as a basis for the present taxation of income.
Second. We turn next to a consideration of the Tax Court’s approach to the family partnership problem. It treated as essential to membership in a family partnership for tax purposes the contribution of either “vital services” or “original capital.” Use of these “tests” of partnership indicates, at best, an error in emphasis. It ignores what we said is the ultimate question for decision, namely ^“whether the partnership is real within the meaning of the federal revenue laws” and makes decisive what we described as “circumstances [to be taken] into consideration” in making that determination.
The Tower case thus provides no support for such an approach. We there said that the question whether the family partnership is real for income-tax purposes depends upon
“whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ Drennen v. London Assurance Co., 113 U. S. 51, 56; Cox v. Hickman, 8 H. L. Cas. 268. We see no reason why this general rule should not apply in tax cases where the Government challenges the existence of a partnership for tax purposes.” 327 U. S. at 287.
The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower, case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a person acted. The Tax Court, for example, must make such a determination in every estate tax case in which it is contended that a transfer was made in contemplation of death, for “The question, necessarily, is as to the state of mind of the donor.” United States v. Wells, 283 U. S. 102, 117 (1931). See Allen v. Trust Co. of Georgia, 326 U. S. 630 (1946). Whether the parties really intended to carry on business as partners is not, we' think, any more difficult of determination or the manifestations of such intent any less perceptible than is ordinarily true of inquiries into the subjective.
But the Tax Court did not view the question as one concerning the-bona fide intent of the parties to join together as partners. Not once in its opinion is there even an oblique reference to any lack of intent on the part of respondent and his sons to combine their capital and services “for the purpose of .arrying on the business.” Instead, the court, focusing entirely upon concepts of “vital services” and “original capital,” simply decided that the alleged partners had not satisfied those tests when the facts were compared with those in the Tower case. The court’s opinion is replete with such statements as “we discern nothing constituting what we think is a requisite contribution to a real partnership,” “we find no son adding ‘vital additional service’ which would take the place of capital contributed because of formation of a partnership,” and “the sons made no capital contribution, within the sense of the Tower case.” 6 CCH TCM 698, 699.
• Unquestionably a court’s determination that the services cpntribiited by a partner are not “vital” and that he has not participated in “managemént and control of the business” or contributed “original capital” has the effect of placing a heavy burden on the taxpayer to show the bona fide intent of the parties to join together as partners. But such a determination is not conclusive, and that is the vice in the “tests” adopted by the Tax Court. It assumes that there is no room for an honest difference of opinion as to whether the services or capital furnished by the alleged partner are of sufficient importance to justify his inclusion in the partnership. If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to. be contributed presently by each is of such value to the partnership that the contributor should participate in the distribution of profits, that is sufficient. The Tower case did not purport to authorize the Tax Court to substitute its judgment for that of the parties; it simply furnished some guides to the determination of their true intent. Even though it was admitted in the Tower case that the wife contributed no original capital, management of the business, or other vital services, this Court did not say as a matter of law that there was no valid partnership. We said, instead, that “There was, thus, more than ample evidence to support the Tax Court’s finding that no genuine union for partnership business purposes was ever intended and that the husband earned the income.” 327 U. S. at 292. (Italics added.)
Third. The Tax Court’s isolation op “original capital” as an essential of membership in- a family partnership also indicates an erroneous reading of the Tower opinion. We did not say that the donee of an intra-family gift could never become a partner through investment of the capital in the family partnership, any more than we said that all family trusts are invalid for tax purposes in Helvering v. Clifford, supra. The facts may indicate, on the contrary, that the amount thus contributed and the income therefrom should be considered the property of the donee for tax, as well as general law, purposes/' In the Tower and Lusthaus cases this Court, applying the principles of Lucas v. Earl, supra; Helvering v. Clifford, supra; and Helvering v. Horst, 311 U. S. 112, found that the purported gift, whether or not technically complete, had made no substantial change in the economic relation of members of the family to' the income. In'each case the husband continued to manage and control the business as before, and income from the property given to the wife and invested by her in the. partnership continued to be used in the. business or expended for family purposes. . We characterized the results of the transactions entered into between Jiusband and wife as “a mere paper reallocation of income among the family members,” noting that “The actualities of their relation to the income did not change.” 327 U. S. at 292. This, we thought, provided' ample grounds for the finding that no true partnership was intended; that the husband was still the true earner of the income
But application of the Clifford-Horst principle does not follow automatically upon a gift to a member of one’s family, followed by its investment in the family partnership. If it did, it would be necessary to define “family” and to set precise limits of membership therein. We have not done so for the obvious reason thát existence' of the family relationship does not create a status which itself determines tax questions, but is simply a warning that things may not be what they seem. It is frequently stated that transactions between members of a family will be carefully scrutinized. But, more particularly, the family relationship often makes it possible for one to shift tax incidence by surface changes of ownership without disturbing in the least his dominion and control over the subject of the gift or the purposes for which the income from the property is used. He is able, in other words, to retain “the substance of full enjoyment of all the rights which previously he had in the property.” Helvering v. Clifford, supra, at 336.
The fact that transfers to members of the family group may be mere camouflage does not, however, mean that they invariably are. The Tower case recognized that one’s participation in control and management of, the business is a circumstance indicating an intent to be a bona fide partner despite the fact that the capital contributed originated elsewhere in the family. If the donee of property who then invests it in the family partnership exercises dominion and control over that property — and through that control influences the conduct of the partnership and the disposition of its' income— he may well be a true partner. Whether he is free to, and does, enjoy the fruits of the partnership is strongly indicative of the reality of his participation in the enterprise. In the Tower and Lusthaus cases we distinguished between active participation in the affairs of "the business by a donee of a share in the partnership on the one hand, attd his passive acquiescence to the will of the donor on the other. This distinction is of obvious importance to a determination of the true intent of the parties. It is meaningless if “original capital” is an essential test of membership in a ■family partnership.
The cause must therefore be remanded to the Tax Court for a decision as to which,' if any, of respondent’s sons were partners with him in the operation of the ranch during 1940 and 1941. As to which of them, in other words, was there a bona fide intent that they be partners in the conduct of the cattle business, either because of services to be performed during those years, or because' of contributions of capital of which they were the true owners, as we have defined that term in the Clifford, Horst, and Tower cases? No question as to the allocation of income between capital and services is presented in this case, and we intimate no opinion on that subject.
The decision of the Court of Appeals is revt.sed with directions to remand the cause' to the Tax Court for further proceedings in conformity with this opinion.
Reversed and remanded.
Mr. Justice Black and Mr. Justice Rutledge think that the Tax Court properly applied the principles of the Tower and LiCsthaus decisions. (327 U. S. 280, id., 293) in this case. However, they consider it of paramount importance in this case to have a court interpretation of the applicable taxing statute, for guidance in its application. Accordingly, they acquiesce in the Court’s opinion and judgment.
Gladys Culbertson, the wife of W. 0. Culbertson, Sr., is joined as a party because of her community of interest in the property án4 income of her husband under Texas law.
A daughter was also made a member of the partnership some time after its formation upon the gift by respondent of one-quarter of his one-half interest in the partnership. Respondent did not contend before the Tax Court that she was a partner for tax purposes.
168 F. 2d 979 at 982. The court further said: “Neither statute, common sensé, nor impelling precedent requires the holding, that a partner must contribute capital or render services to the partnership prior to the time that he is taken into it. These tests are equally effective whether the capital and the services are presently contributed and'rendered or are later to be contributed or to be rendered.” Id. at 983. See Note, 47 Mich. L. Rev. 595.
26 U. S. C. §§181, 182.
26 U. S. C. §§11, 22 (a).
Of course one who has been a bona fide partner does not lose that status when he is called into military or government service, and the Commissioner has not so contended. On the other hand, one hardly becomes a partner1"in the conventional sense merely because he might have, done so had- ne not been called.
Eisner v. Macomber, 252 U. S. 189, 207 (1920); Merchants Loan & Trust Co. v. Smietanka, 255 U. S. 509, 519 (1921). See Treas. Reg.. 101, Art. 22 (a)-1. See 1 Mertens, Law of Federal Income Taxation, 159 et seq.
The reductio ad absurdum of -the theory that children may be-partners With their parents before they are capable of being entrusted with the disposition of partnership funds or of contributing súbstantial services occurred in Tinkoff v. Commissioner, 120 F. 2d 564, where a taxpayer made his son a partner in his accounting firm the. day the son was born.
While the Tax Court went on to consider other factors, it is clear from its opinion that a contribution of either “vital services” or “original capital” was considered essential to membership in the partnership. After finding that none of respondent’s sons had, in the court’s opinion, contributed either, the court continued: “In addition to the above inquiry as to the presence of those elements deemed by the Tower case essential to partnerships recognizable for Federal tax purposes, . . . .” 6 CCH TCM 692, 699. Again, the court commented:
“Though the petitioner urges that many cattle businesses are composed of fathers and sons, and that the nature of the industry so requires, we think the sarnie is probably equally true of other industries where men wish to take children, into business with them. Nevertheless, we think that fact does not override the many decisions to the general effect that partners must contribute capital originating with them, or vital services.” Id. at 700.
See Mannheimer and Mook, A Taxwise Evaluation of Family Partnerships, 32 Iowa L. Rev. 436,447-48.
This is not, as we understand it, contrary to the approach taken by the Bureau of Internal Revenue in its most recent statement of policy. I. T. 3845,1947 Cum. Bull. 66, states at p. 67 :•
“Where persons who are closely related by blood or marriage enter into an agreement purporting to create a so-called family partnership or other arrangement with respect to the operation of a business or income-producing venture, under which agreement all of the parties are accorded substantially the same treatment and consideration with respect to their designated interests and prescribed responsibilities in the business as if they were strangers dealing at arm’s length; where the actions of the parties as legally responsible persons evidence an intent to carry on a business in a partnership relation; and where the terms of such agreement are substantially followed in the operation of’'the business or venture, as well as in the dealings of the partners or. members with each other, it is the policy of the Bureau to disregard the close family relationship existing between the parties and to recognize, for Federal income tax purposes, the division of profits as prescribed by such agreement. However, where the instrument purporting to create the family partnership expressly .provides that the wife or child or other member of the family shall not be required, to participate in the management of the business, or is merely silent on that point, the- extent and nature of the services of such individual in the actual conduct of the business will be given appropriate evidentiary weight as to the question of intent to carry on the business as partners.”
Nearly three-quarters of a century ago, Bowen, L. J., made the classic statement that “the state of a man’s mind is as much a fact. as the state of his digestion.” Edgington v. Fitzmaurice, 29 L. R. Ch. Div. 459, 483. State of mind has always been determinative 'of the question whether a partnership has been formed as between' the parties. See, e. g., Drennen v. London Assurance Co., 113 U. S. 51, 56 (1885); Meehan v. Valentine, 145 U. S. 611, 621 (1892); Barker v. Kraft, 259 Mich. 70, 242 N. W. 841 (1932); Zuback v. Bakmaz, 346 Pa. 279, 29 A. 2d 473 (1943); Kennedy v. Mullins, 155 Va. 166, 154 S. E. 568 (1930).
In the Tower case the taxpayer argued that he had a right to reduce his taxes by any legal means, to which this Court agreed. We said, however, that existence of a tax avoidance motive gives some indication that there was no bona fide intent to carry on business as a partnership. If Tower had set ud objective requirements of membership in, a family partnership, such as “vital services” and “original .caffital,” the motives behind adoption of the partnership form would have been irrelevant.
Although “management and control of the business” was one of the circumstances emphasized by the Tower case, along with “vital services” and “original capital,” the- Tax Court did not consider it an alternative “test” of partnership. See discussion, infra, at part Third, and note 17.
Except, of course, when Congress defines “family” and attaches tax consequences thereto. See, e. g. 26 U. S. C. §503 (a) (2).
It is not enough to say in this case, as we did in the Clifford case, that “If is hard to imagine that respondent felt himself the poorer after this [partnership agreement]- had been executed or, if he did, that it had any rational foundation in fact.” 309 U. S. at 336. Culbertson’s interest in his partnership with Coon was worth about $50,000 immediately prior to dissolution of the partnership. In order to sustain the Tax Court, we would have to conclude that he felt himself worth approximately twice that much upon his purchase of Coon’s interest, even though he had agreed to sell that interest to his sons at the same price.
As noted above (note 13), participation in control and management of the business, although given equal prominence with contributions of “vital services” and “original capital” as circumstances indicating an intent to enter into a partnership relation, .was discarded by the Tax Court as a “test” of partnership. This indicates a basic and erroneous assumption that one can never make a gift to a member of one’s family without retaining the essentials of ownership, if the gift is then invested in a family partnership.- We included participation in management and control of the business as a circumstance indicative of intent to carry on business' as a partner to cover the situation in which active dominion and control of the subject of the gift had actually passed to the donee. It is a circumstance of prime importance.'
There is testimony in the record as to the participation by respondent’s sons in the management of the ranch. ■ Since such evidence did not fall within either of th$ “tests” adopted by the Tax Court, it failed to consider this testimony. Without intimating any opinion as to its probative value, we think that it is clearly relevant evidence of the intent to carry on business as partners.
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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
] |
FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT et al.
No. 02-42.
Argued February 24, 2008
Decided April 23, 2003
O’Connor, J., delivered the opinion for a unanimous Court.
Felix E. Leatherwood, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor, David S. Chaney, Senior Assistant Attorney General, and William Dean Freeman, Lead Supervising Deputy Attorney General.
H. Bartow Farr III argued the cause for respondents. With him on the brief were Peter C. Bernhard and Donald J. Kula.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Dornan, Attorney General of Florida, Jonathan A Glogau, Barbara J. Ritchie, Acting Attorney General of Alaska, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Steve Carter of Indiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, Anabelle Rodriguez of Puerto Rico, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for the Multistate Tax Commission by Frank D. Katz; and for the National Governors Association et al. by Richard Ruda and James I. Crowley.
Sharon L. Browne filed a brief for the Pacific Legal Foundation as ami-cus curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court.
We granted certiorari to resolve whether the Nevada Supreme Court’s refusal to extend full faith and credit to California’s statute immunizing its tax collection agency from suit violates Article IV, §1, of the Constitution. We conclude it does not, and we therefore affirm the judgment of the Nevada Supreme Court.
I
Respondent Gilbert P. Hyatt (hereinafter respondent) filed a “part-year” resident income tax return in California for 1991. App. to Pet. for Cert. 54. In the return, respondent represented that as of October 1, 1991, he had ceased to be a California resident and had become a resident of Nevada. In 1993, petitioner California Franchise Tax Board (CFTB) commenced an audit to determine whether respondent had underpaid state income taxes. Ibid. The audit focused on respondent’s claim that he had changed residency shortly before receiving substantial licensing fees for certain patented inventions related to computer technology.
At the conclusion of its audit, CFTB determined that respondent was a California resident until April 3, 1992, and accordingly issued notices of proposed assessments for income taxes for 1991 and 1992 and imposed substantial civil fraud penalties. Id., at 56-57, 58-59. Respondent protested the proposed assessments and penalties in California through CFTB’s administrative process. See Cal. Rev. & Tax. Code Ann. §§ 19041, 19044-19046 (West 1994).
On January 6, 1998, with the administrative protest ongoing in California, respondent filed a lawsuit against CFTB in Nevada in Clark County District Court. Respondent alleges that CFTB directed “numerous and continuous contacts ... at Nevada” and committed several torts during the course of the audit, including invasion of privacy, outrageous conduct, abuse of process, fraud, and negligent misrepresentation. App. to Pet. for Cert. 51-52, 54. Respondent seeks punitive and compensatory damages. Id., at 51-52. He also sought a declaratory judgment “eonfirm[ing] [his] status as a Nevada resident effective as of September 26, 1991,” id., at 51, but the District Court dismissed the claim for lack of subject matter jurisdiction on April 16,1999, App. 93-95.
During the discovery phase of the Nevada lawsuit, CFTB filed a petition in the Nevada Supreme Court for a writ of mandamus, or in the alternative, for a writ of prohibition, challenging certain of the District Court’s discovery orders. While that petition was pending, CFTB filed a motion in the District Court for summary judgment or, in the alternative, for dismissal for lack of jurisdiction. CFTB argued that the District Court lacked subject matter jurisdiction because principles of sovereign immunity, full faith and credit, choice of law, comity, and administrative exhaustion all required that the District Court apply California law, under which:
“Neither a public entity nor a public employee is liable for an injury caused by:
“(a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax [or]
“(b) An act or omission in the interpretation or application of any law relating to a tax.” Cal. Govt. Code Ann. §860.2 (West 1995).
The District Court denied CFTB’s motion for summary judgment or dismissal, prompting CFTB to file a second petition in the Nevada Supreme Court. This petition sought a writ of mandamus ordering the dismissal of the case, or in the alternative, a writ of prohibition and mandamus limiting the scope of the suit to claims arising out of conduct that occurred in Nevada.
On June 13, 2001, the Nevada Supreme Court granted CFTB’s second petition, dismissed the first petition as moot, and ordered the District Court to enter summary judgment in favor of CFTB. App. to Pet. for Cert. 38-43. On April 4, 2002, however, the court granted respondent’s petition for rehearing, vacated its prior ruling, granted CFTB’s second petition in part, and denied it in part. Id., at 5-18. The court held that the District Court “should have declined to exercise its jurisdiction over the underlying negligence claim under comity principles” but that the intentional tort claims could proceed to trial. Id., at 7.
The Nevada Supreme Court noted that both Nevada and California have generally waived their sovereign immunity from suit in state court and “have extended the waivers to their state agencies or public employees except when state statutes expressly provide immunity.” Id., at 9-10 (citing Nev. Rev. Stat. §41.031 (1996); Cal. Const., Art. 3, §5; and Cal. Govt. Code Ann. §820 (West 1995)). Whereas Nevada has not conferred immunity on its state agencies for intentional torts committed within the course and scope of employment, the court acknowledged that “California has expressly provided [CFTB] with complete immunity.” App. to Pet. for Cert. 10 (citing Cal. Govt. Code Ann. §860.2 (West 1995) and Mitchell v. Franchise Tax Board, 183 Cal. App. 3d 1133, 228 Cal. Rptr. 750 (1986)). To determine which State’s law should apply, the court applied principles of comity.
Though the Nevada Supreme Court recognized the doctrine of comity as “an accommodation policy, under which the courts of one state voluntarily give effect to the laws and judicial decisions of another state out of deference and respect, to promote harmonious interstate relations,” the court also recognized its duty to determine whether the application of California law “would contravene Nevada’s policies or interests,” giving “due regard to the duties, obligations, rights and convenience of Nevada’s citizens.” App. to Pet. for Cert. 11. “An investigation is generally considered to be a discretionary function,” the court observed, “and Nevada provides its [own] agencies with immunity for the performance of a discretionary function even if the discretion is abused.” Id., at 12. “[AJffording [CFTB] statutory immunity for negligent acts,” the court therefore concluded, “does not contravene any Nevada interest in this case.” Ibid. The court accordingly held that “the district court should have declined to exercise its jurisdiction” over respondent’s negligence claim under principles of comity. Id., at 7. With respect to the intentional torts, however, the court held that “affording [CFTB] statutory immunity . . . does contravene Nevada’s policies and interests in this case.” Id., at 12. Because Nevada “does not allow its agencies to claim immunity for discretionary acts taken in bad faith, or for intentional torts committed in the course and scope of employment,” the court held that “Nevada’s interest in protecting its citizens from injurious intentional torts and bad faith acts committed by sister states’ government employees” should be accorded greater weight “than California’s policy favoring complete immunity for its taxation agency.” Id., at 12-13.
We granted certiorari to resolve whether Article IV, § 1, of the Constitution requires Nevada to give full faith and credit to California’s statute providing its tax agency with immunity from suit, 537 U. S. 946 (2002), and we now affirm.
II
The Constitution’s Full Faith and Credit Clause provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1. As we have explained, “[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.” Baker v. General Motors Corp., 522 U. S. 222, 232 (1998). Whereas the full faith and credit command “is exacting” with respect to “[a] final judgment . . . rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment,” id., at 233, it is less demanding with respect to choice of laws. We have held that the Full Faith and Credit Clause does not compel “ ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’” Sun Oil Co. v. Wortman, 486 U. S. 717, 722 (1988) (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 501 (1939)).
The State of Nevada is undoubtedly “competent to legislate” with respect to the subject matter of the alleged intentional torts here, which, it is claimed, have injured one of its citizens within its borders. “‘[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U. S. 802, 312-313 (1981) (plurality opinion)); see 472 U. S., at 822-823. Such contacts are manifest in this case: the plaintiff claims to have suffered injury in Nevada while a resident there; and it is undisputed that at least some of the conduct alleged to be tortious occurred in Nevada, Brief for Petitioner 33-34, n. 16. See, e. g., Carroll v. Lanza, 349 U. S. 408, 413 (1955) (“The State where the tort occurs certainly has a concern in the problems following in the wake of the injury”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 503 (“Few matters could be deemed more appropriately the concern of the state in which [an] injury occurs or more completely within its power”).
CFTB does not contend otherwise. Instead, CFTB urges this Court to adopt a “new rule” mandating that a state court extend full faith and credit to a sister State’s statutorily recaptured sovereign immunity from suit when a refusal to do so would “interfer[e] with a State’s capacity to fulfill its own sovereign responsibilities.” Brief for Petitioner 13 (internal quotation marks omitted).
We have, in the past, appraised and balanced state interests when invoking the Full Faith and Credit Clause to resolve conflicts between overlapping laws of coordinate States. See Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932) (holding that the Constitution required a federal •court sitting in New Hampshire to apply a Vermont workers’ compensation statute in a tort suit brought by the administrator of a Vermont worker killed in New Hampshire). This balancing approach quickly proved unsatisfactory. Compare Alaska Packers Assn. v. Industrial Accident Comm’n of Cal., 294 U. S. 532, 550 (1935) (holding that a forum State, which was the place of hiring but not of a claimant’s domicile, could apply its own law to compensate for an accident in another State, because “[njo persuasive reason” was shown for requiring application of the law of the State where the accident occurred), with Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 504-505 (holding that the State where an accident occurred could apply its own workers’ compensation law and need not give hill faith and credit to that of the State of hiring and domicile of the employer and employee). As Justice Robert H. Jackson, recounting these cases, aptly observed, “it [is] difficult to point to any field in which the Court has more completely demonstrated or more candidly confessed the lack of guiding standards of a legal character than in trying to determine what choice of law is required by the Constitution.” Full Faith and Credit — The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 16 (1945).
In light of this experience, we abandoned the balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause. Allstate Ins. Co. v. Hague, 449 U. S., at 308, n. 10 (plurality opinion); id., at 322, n. 6 (Stevens, J., concurring in judgment); id., at 339, n. 6 (Powell, J., dissenting). We have recognized, instead, that “it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another.” Sun Oil Co. v. Wortman, supra, at 727. We thus have held that a State need not “substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 501; see Baker v. General Motors Corp., supra, at 232; Sun Oil Co. v. Wortman, supra, at 722; Phillips Petroleum Co. v. Shutts, supra, at 818-819. Acknowledging this shift, CFTB contends that this case demonstrates the need for a new rule under the Full Faith and Credit Clause that will protect “core sovereignty” interests as expressed in state statutes delineating the contours of the State’s immunity from suit. Brief for Petitioner 13.
We disagree. We have confronted the question whether the Full Faith and Credit Clause requires a forum State to recognize a sister State’s legislatively recaptured immunity once before. In Nevada v. Hall, 440 U. S. 410 (1979), an employee of the University of Nevada was involved in an automobile accident with California residents, who filed suit in California and named Nevada as a defendant. The California courts refused to apply a Nevada statute that capped damages in tort suits against the State on the ground that “to surrender jurisdiction or to limit respondents’ recovery to the $25,000 maximum of the Nevada statute would be obnoxious to its statutorily based policies of jurisdiction over nonresident motorists and full recovery.” Id., at 424.
We affirmed, holding, first, that the Constitution does not confer sovereign immunity on States in the courts of sister States. Id., at 414-421. Petitioner does not ask us to reexamine that ruling, and we therefore decline the invitation of petitioner’s amici States, see Brief for State of Florida et al. as Amici Curiae 2, to do so. See this Court’s Rule 14.1(a); Mazer v. Stein, 347 U. S. 201, 206, n. 5 (1954) (‘We do not reach for constitutional questions not raised by the parties”).
The question presented here instead implicates Hall’s second holding: that the Full Faith and Credit Clause did not require California to apply Nevada’s sovereign immunity statutes where such application would violate California’s own legitimate public policy. 440 U. S., at 424. The Court observed in a footnote:
“California’s exercise of jurisdiction in this case poses no substantial threat to our constitutional system of cooperative federalism. Suits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada’s capacity to fulfill its own sovereign responsibilities. We have no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result.” Id., at 424, n. 24.
CFTB asserts that an analysis of this lawsuit’s effects should lead to a different result: that the Full Faith and Credit Clause requires Nevada to apply California’s immunity statute to avoid interference with California’s “sovereign responsibility” of enforcing its income tax laws. Brief for Petitioner 13.
Our past experience with appraising and balancing state interests under the Full Faith and Credit Clause counsels against adopting CFTB’s proposed new rule. Having recognized, in Hall, that a suit against a State in a sister State’s court “necessarily implicates the power and authority” of both sovereigns, 440 U. S., at 416, the question of which sovereign interest should be deemed more weighty is not one that can be easily answered. Yet petitioner’s rule would elevate California’s sovereignty interests above those of Nevada, were we to deem this lawsuit an interference with California’s “core sovereign responsibilities.” We rejected as “unsound in principle and unworkable in practice” a rule of state immunity from federal regulation under the Tenth Amendment that turned on whether a particular state government function was “integral” or “traditional.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546-547 (1985). CFTB has convinced us of neither the relative soundness nor the relative practicality of adopting a similar distinction here.
Even were we inclined to embark on a course of balancing States’ competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause, this case would not present the occasion to do so. There is no principled distinction between Nevada’s interests in tort claims arising out of its university employee’s automobile accident, at issue in Hall, and California’s interests in the tort claims here arising out of its'tax collection agency’s residency audit. To be sure, the power to promulgate and enforce income tax laws is an essential attribute of sovereignty. See Franchise Tax Bd. of Cal. v. Postal Service, 467 U. S. 512, 523 (1984) (“ ‘[Tjaxes are the life-blood of government’ ” (quoting Bull v. United States, 295 U. S. 247, 259-260 (1935))). But the university employee’s educational mission in Hall might also be so described. Cf. Brown v. Board of Education, 347 U. S. 483, 493 (1954) (“[Ejducation is perhaps the most important function of state and local governments”).
If we were to compare the degree to which the allegedly tortious acts here and in Hall are related to a core sovereign function, we would be left to ponder the relationship between an automobile accident and educating, on one hand, and the intrusions alleged here and collecting taxes, on the other. We discern no constitutionally significant distinction between these relationships. To the extent CFTB complains of the burdens and expense of out-of-state litigation, and the diversion of state resources away from the performance of important state functions, those burdens do not distinguish this case from any other out-of-state lawsuit against California or one of its agencies.
States’ sovereignty interests are not foreign to the full faith and credit command. But we are not presented here with a case in which a State has exhibited a “policy of hostility to the public Acts” of a sister State. Carroll v. Lanza, 349 U. S., at 413. The Nevada Supreme Court sensitively applied principles of comity with a healthy regard for California’s sovereign status, relying on the contours of Nevada’s own sovereign immunity from suit as a benchmark for its analysis. See App. to Pet. for Cert. 10-13.
In short, we heed the lessons learned as a result of Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932), and its progeny. Without a rudder to steer us, we decline to embark on the constitutional course of balancing coordinate States’ competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause.
The judgment of the Nevada Supreme Court is affirmed.
It is so ordered.
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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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MOBIL OIL EXPLORATION & PRODUCING SOUTHEAST, INC. v. UNITED STATES
No. 99-244.
Argued March 22, 2000 —
Decided June 26, 2000
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 624.
Carter G. Phillips argued the cause for petitioners in both eases. With him on the briefs for petitioner Marathon Oil Co. were Richard D. Bernstein, Griffith L. Green, Michael S. Lee, and Richard L. Horstman. E. Edward Bruce and Steven J. Rosenbaum filed briefs for petitioner Mobil Oil Exploration & Producing Southeast, Inc.
Kent L. Jones argued the cause for the United States in both eases. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Dep uty Solicitor General Wallace, David M. Cohen, Douglas N. Letter, Thomas M. Bandy, and Mark A. Melnick.
Together with No. 99-253, Marathon Oil Co. v. United States, also on certiorari to the same court.
J. Berry St. John, Craig Wyman, G. William Frick, David T Deal, and Douglas Morris filed a brief for the American Petroleum Institute as amicus curiae urging reversal.
A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, Rickard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and John A Saurenman, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Michael F. Easley of North Carolina, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Charlie Condon of South Carolina, and Christine O. Gregoire of Washington.
Justice Breyer
delivered the opinion of the Court.
Two oil companies, petitioners here, seek restitution of $156 million they paid the Government in return for lease contracts giving them rights to explore for and develop oil off the North Carolina coast. The rights were not absolute, but were conditioned on the companies’ obtaining a set of further governmental permissions. The companies claim that the Government repudiated the contracts when it denied them certain elements of the permission-seeking opportunities that the contracts had promised. We agree that the Government broke its promise; it repudiated the contracts; and it must give the companies their money back.
> — i
A
A description at the outset of the few basic contract law principles applicable to this action will help the reader understand the significance of the complex factual circumstances that follow. “When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.” United States v. Winstar Corp., 518 U. S. 889, 895 (1996) (plurality opinion) (internal quotation marks omitted). The Restatement of Contracts reflects many of the principles of contract law that are applicable to this action. As set forth in the Restatement of Contracts, the relevant principles specify that, when one party to a contract repudiates that contract, the other party “is entitled to restitution for any benefit that he has conferred on” the repudiating party “by way of part performance or reliance.” Restatement (Second) of Contracts §378 (1979) (hereinafter Restatement). The Restatement explains that “repudiation” is a “statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach.” Id.-, §250. And “total breach” is a breach that “so substantially impairs the value of the contract to the injured party at the time of the breach that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance.” Id., §248.
As applied to this action, these principles amount to the following; If the Government said it would break, or did break, an important contractual promise, thereby “substantially impairing] the value of the contract^]” to the companies, ibid., then (unless the companies waived their rights to restitution) the Government must give the companies their money back. And it must do so whether the contracts would, or would not, ultimately have proved financially beneficial to the companies. The Restatement illustrates this point as follows:
“A contracts to sell a tract of land to B for $100,000. After B has made a part payment of $20,000, A wrongfully refuses to transfer title. B can recover the $20,000 in restitution. The result is the same even if the market price of the land is only $70,000, so that performance would have been disadvantageous to B.” Id., §378, Comment a, Illustration 1.
B
In 1981, in return for up-front “bonus” payments to the United States of about $156 million (plus annual rental payments), the companies received 10-year renewable lease contracts with the United States. In these contracts, the United States promised the companies, among other things, that they could explore for oil off the North Carolina coast and develop any oil that they found (subject to further royalty payments) provided that the companies received exploration and development permissions in accordance with various statutes and regulations to which the lease contracts were made “subject.” App. to Pet. for Cert, in No. 99-253, pp. 174a-185a.
The statutes and regulations, the terms of which in effect were incorporated into the contracts, made clear that obtaining the necessary permissions might not be an easy matter. In particular, the Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, as amended, 43 U. S. C. § 1331 et seq. (1994 ed. and Supp. Ill), and the Coastal Zone Management Act of 1972 (CZMA), 86 Stat. 1280, 16 U.S.C. §1451 et seq., specify that leaseholding companies wishing to explore and drill must successfully complete the following four procedures.
First, a company must prepare and obtain Department of the Interior approval for a Plan of Exploration (Exploration Plan or Plan). 43 U. S. C. § 1340(e). Interior must approve a submitted Exploration Plan unless it finds, after “considering] available relevant environmental information,” § 1346(d), that the proposed exploration
“would probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral ... , to the national security or defense, or to the marine, coastal, or human environment.” § 1334(a)(2)(A)(i).
Where approval is warranted, Interior must act quickly— within “thirty days” of the company’s submission of a proposed Plan. § 1340(e)(1).
Second, the company must obtain an exploratory well drilling permit. To do so, it must certify (under CZMA) that its Exploration Plan is consistent with the coastal zone management program of each affected State. 16 U. S. C. § 1456(c)(3). If a State objects, the certification fails,- unless the Secretary of Commerce overrides the State’s objection. If Commerce rules against the State, then Interior may grant the permit. § 1456(e)(3)(A).
Third, where waste discharge into ocean waters is at issue, the company must obtain a National Pollutant Discharge Elimination System permit from the Environmental Protection Agency. 33 U. S. C. §§ 1311(a), 1342(a). It can obtain this permit only if affected States agree that its Exploration Plan is consistent with the state coastal zone management programs or (as just explained) the Secretary of Commerce overrides the state objections. 16 U. S. C. § 1456.
Fourth, if exploration is successful, the company must prepare, and obtain Interior approval for, a Development and Production Plan — a Plan that describes the proposed drilling and related environmental safeguards. 43 U. S. C. §1351. Again, Interior’s approval is conditioned upon certification that the Plan is consistent with state coastal zone management plans — a certification to which States can object, subject to Commerce Department override. § 1351(a)(3).
C
The events at issue here concern the first two steps of the process just described — Interior’s consideration of a submitted Exploration Plan and the companies’ submission of the CZMA “consistency certification” necessary to obtain an exploratory well drilling permit. The relevant circumstances are the following:
1. In 1981, the companies and the Government entered into the lease contracts. The companies paid the Government $156 million in up-front cash “bonus” payments.
2. In 1989, the companies, Interior, and North Carolina entered into a memorandum of understanding. In that memorandum, the companies promised that they would submit an initial draft Exploration Plan to North Carolina before they submitted their final Exploration Plan to Interior. Interior promised that it would prepare an environmental report on the initial draft. It also agreed to suspend the companies’ annual lease payments (about $250,000 per year) while the companies prepared the initial draft and while any state objections to the companies’ CZMA consistency certifications were being worked out, with the life of each lease being extended accordingly.
3. In September 1989, the companies submitted their initial draft Exploration Plan to North Carolina. Ten months later, Interior issued the promised (“informal” pre-submission) environmental report, after a review which all parties concede was “extensive and intensive.” App. 179 (deposition of David Courtland O’Neal, former Assistant Secretary of the Interior) (agreeing that the review was “the most extensive and intensive” ever “afforded an exploration well in the outer continental shelf (OCS) program”). Interior concluded that the proposed exploration would not “significantly affee[t]” the marine environment or “the quality of the human environment.” Id., at 138-140 (U. S. Dept, of Interior Minerals Management Service, Environmental Assessment of Exploration Plan for Manteo Area Block 467 (Sept. 1990)).
4. On August 20,1990, the companies submitted both their final Exploration Plan and their CZMA “consistency certification” to Interior.
5. Just two days earlier, on August 18, 1990, a new law, the Outer Banks Protection Act (OBPA), §6003, 104 Stat. 555, had come into effect. That law prohibited the Secretary of the Interior from approving any Exploration Plan or Development and Production Plan or to award any drilling permit until (a) a new OBPA-created Environmental Sciences Review Panel had reported to the Secretary, (b) the Secretary had certified to Congress that he had sufficient information to make these OCSLA-required approval decisions, and (c) Congress had been in session an additional 45 days, but (d) in no event could he issue an approval or permit for the next 13 months (until October 1991). § 6003(c)(3). OBPA also required the Secretary, in his certification, to explain and justify in detail any differences between his own certified conclusions and the new Panel’s recommendations. § 6003(c)(3)(A)(ii)(II).
6. About five weeks later, and in light of the new statute, Interior wrote a letter to the Governor of North Carolina with a copy to petitioner Mobil. It said that the final submitted Exploration Plan “is deemed to be approvable in all respects.” It added:
“[W]e are required to approve an Exploration Plan unless it is inconsistent with applicable law or because it would result in serious harm to the environment. Because we have found that Mobil’s Plan fully complies with the law and will have only negligible effect on the environment, we are not authorized to disapprove the Plan or require its modification.” App. to Pet. for Cert, in No. 99-253, p. 194a (letter from Regional Director Bruce Weetman to the Honorable James G. Martin, Governor of North Carolina, dated Sept. 28,1996).
But, it noted, the new law, the “Outer Banks Protection Act (OBPA) of 1990... prohibits the approval of any Exploration Plan at this time.” It concluded, “because we are currently prohibited from approving it, the Plan will remain on file until the requirements of the OBPA are met.” In the meantime a “suspension has been granted to all leases offshore the State of North Carolina.” Ibid. See also App. 129-131 (letter from Lawrence H. Ake, Minerals Management Service, to William C. Whittemore, Mobil Exploration & Producing U. S. Inc., dated Sept. 21, 1990 (notice of suspension of leases, citing 30 CFR § 250.10(b)(7) (1990) as the basis for the suspensions)).
About 18 months later, the Secretary of the Interior, after receiving the new Panel’s report, certified to Congress that he had enough information to consider the companies’ Exploration Plan. He added, however, that he would not consider the Plan until he received certain further studies that the new Panel had recommended.
7. In November 1990, North Carolina objected to the companies’ CZMA consistency certification on the ground that Mobil had not provided sufficient information about possible environmental impact. A month later, the companies asked the Secretary of Commerce to override North Carolina’s objection.
8. In 1994, the Secretary of Commerce rejected the companies’ override request, relying in large part on the fact that the new Panel had found a lack of adequate information in respect to certain environmental issues.
9. In 1996, Congress repealed OBPA. §109, 110 Stat. 1321-177.
D
In October 1992, after all but the two last-mentioned events had taken place, petitioners joined a breach-of-contraet lawsuit brought in the Court of Federal Claims. On motions for summary judgment, the court found that the United States had broken its contractual promise to follow OCSLA’s provisions, in particular the provision requiring Interior to approve an Exploration Plan that satisfied OCSLA’s requirements within 30 days of its submission to Interior. The United States thereby repudiated the contracts. And that repudiation entitled the companies to restitution of the up-front cash “bonus” payments they had made. Conoco Inc. v. United States, 35 Fed. Cl. 309 (1996).
A panel of the Court of Appeals for the Federal Circuit reversed, one judge dissenting. The panel held that the Government’s refusal to consider the companies’ final Exploration Plan was not the “operative cause” of any failure to carry out the contracts’ terms because the State’s objection to the companies’ CZMA “consistency statement” would have prevented the companies from exploring regardless. 177 F. 3d 1331 (1999).
We granted certiorari to review the Federal Circuit’s decision.
II
The record makes clear (1) that OCSLA required Interior to approve “within thirty days” a submitted Exploration Plan that satisfies OCSLA’s requirements, (2) that Interior told Mobil the companies’ submitted Plan met those requirements, (3) that Interior told Mobil it would not approve the companies’ submitted Plan for at least 13 months, and likely longer, and (4) that Interior did not approve (or disapprove) the Plan, ever. The Government does not deny that the contracts, made “pursuant to” and “subject to” OCSLA, incorporated OCSLA provisions as promises. The Government fiir-ther concedes, as it must, that relevant contract law entitles a contracting party to restitution if the other party “substantially” breached a contract or communicated its intent to do so. See Restatement §373(1); 11 W. Jaeger, Williston on Contracts § 1312, p. 109 (3d ed. 1968) (hereinafter Williston); 5 A. Corbin, Contracts § 1104, p. 560 (1964); see also Ankeny v. Clark, 148 U. S. 345, 353 (1893). Yet the Government denies that it must refund the companies’ money.
This is because, in the Government’s view, it did not breach the contracts or communicate its intent to do so; any breach was not “substantial”; and the companies waived their rights to restitution regardless. We shall consider each of these arguments in turn.
A
The Government’s “no breach” arguments depend upon the contract provisions that “subject” the contracts to various statutes and regulations. Those provisions state that the contracts are “subject to” (1) OCSLA, (2) “Sections 302 and 303 of the Department of Energy Organization Act,” (3) “all regulations issued pursuant to such statutes and in existence upon the effective date of” the contracts, (4) “all regulations issued pursuant to such statutes in the future which provide for the prevention of waste and the conservation” of Outer Continental Shelf resources, and (5) “all other applicable statutes and regulations.” App. to Pet. for Cert, in No. 99-253, at 175a. The Government says that these provisions incorporate into the contracts, not only the OCSLA provisions we have mentioned, but also certain other statutory provisions and regulations that, in the Government’s view, granted Interior the legal authority to refuse to approve the submitted Exploration Plan, while suspending the leases instead.
First, the Government refers to 43 U. S. C. § 1334(a)(1)(A), an OCSLA provision that authorizes the Secretary to promulgate regulations providing for “the suspension... of any operation or activity ... at the request of a lessee, in the national interest, to facilitate proper development of a lease.” (Emphasis added.) This provision, as the emphasized terms show, requires “the request of a lessee,” i. e., the companies. The Government does not explain how this requirement was satisfied here. Hence, the Government cannot rely upon the provision.
Second, the Government refers to 30 CFE § 250.110(b)(4) (1999), formerly codified at 30 CFR § 250.10(b)(4) (1997), a regulation stating that “[t]he Regional Supervisor may . . . direct... a suspension of any operation or activity... [when the] suspension is necessary for the implementation of the requirements of the National Environmental Policy Act or to conduct an environmental analysis.” The Government says that this regulation permitted the Secretary of the Interior to suspend the companies’ leases because that suspension was “necessary ... to conduct an environmental analysis,” namely, the analysis demanded by the new statute, OBPA.
The “environmental analysis” referred to, however, is an analysis the need for which was created by OBPA, a later enacted statute. The lease contracts say that they are subject to then-existing regulations and to certain future regulations, those issued pursuant to OCSLA and §§302 and 303 of the Department of Energy Organization Act. This explicit reference to future regulations makes it clear that the catchall provision that references “all other applicable . . . •regulations,” supra, at 615, must include only statutes and regulations already existing at the time of the contract, see 35 Fed. Cl., at 322-323, a conclusion not questioned here by the Government. Hence, these provisions mean that the contracts are not subject to future regulations promulgated under other statutes, such as new statutes like OBPA. Without some such contractual provision limiting the Government’s power to impose new and different requirements, the companies would have spent $156 million to buy next to nothing. In any event, the Court of Claims so interpreted the lease; the Federal Circuit did not disagree with that interpretation; nor does the Government here dispute it.
Instead, the Government points out that the regulation in question — the regulation authorizing a governmental suspension in order to conduct “an environmental analysis”— was not itself a future regulation. Rather, a similar regulation existed at the time the parties signed the contracts, 30 CFR §250.12(a)(iv) (1981), and, in any event, it was promulgated under OCSLA, a statute exempted from the contracts’ temporal restriction. But that fact, while true, is not sufficient to produce the incorporation of future statutory requirements, which is what the Government needs to prevail. If the pre-existing regulation’s words, “an environmental analysis,” were to apply to analyses mandated by future statutes, then they would make the companies subject to the . same unknown future requirements that the contracts’ specific temporal restrictions were intended to avoid. Consequently, whatever the regulation’s words might mean in other contexts, we believe the contracts before us must be interpreted as excluding the words “environmental analysis” insofar as those words would incorporate the requirements of future statutes and future regulations excluded by the contracts’ provisions. Hence, they would not incorporate into the contracts requirements imposed by a new statute such as OBPA.
Third, the Government refers to OCSLA, 48 U. S. C. § 1334(a)(1), which, after granting Interior rulemaking authority, says that Interior’s
“regulations ... shall inelude ... provisions ... for the suspension ... of any operation . . . pursuant to any lease . . . if there is a threat of serious, irreparable, or immediate harm or damage to life ..., to property, to any mineral deposits ... , or to the marine, coastal, or human environment.” (Emphasis added.)
The Government points to the OBPA Conference Report, which says that any OBPA-caused delay is “related to . . . environmental protection” and to the need “for the collection and analysis of crucial oceanographic, ecological, and socioeconomic data,” to “prevent a publie harm.” H. R. Conf. Rep. No. 101-653, p. 163 (1990); see also Brief for United States 32. At oral argument, the Government noted that the OBPA mentions “tourism” in North Carolina as a “major industry . . . which is subject to potentially significant disruption by offshore oil or gas development.” § 6003(b)(3). From this, the Government infers that the pre-existing OCSLA provision authorized the suspension in light of a “threat of... serious harm” to a “human environment.”
The fatal flaw in this argument, however, arises out of the Interior Department’s own statement — a statement made when citing OBPA to explain its approval delay. Interior then said that the Exploration Plan “fully complies” with current legal requirements. And the OCSLA statutory provision quoted above was the most pertinent of those current requirements. Supra, at 609. The Government did not deny the accuracy of Interior’s statement, either in its brief filed here or its brief filed in the Court of Appeals. Insofar as the Government means to suggest that the new statute, OBPA, changed the relevant OCSLA standard (or that OBPA language and history somehow constitute findings Interior must incorporate by reference), it must mean that OBPA in effect created a new requirement. For the reasons set out supra, at 616, however, any such new requirement would not be incorporated into the contracts.
Finally, we note that Interior itself, when imposing the lengthy approval delay, did not rely upon any of the regulations to which the Government now refers. Rather, it relied upon, and cited, a different regulation, 30 CFR § 250.110(b)(7) (1999), which gives Interior the power to suspend leases when “necessary to comply with judicial decrees prohibiting production or any other operation or activity.” The Government concedes that no judicial decree was involved in this action and does not rely upon this regulation here.
We conclude, for these reasons, that the Government violated the contracts. Indeed, as Interior pointed out in its letter to North Carolina, the new statute, OBPA, required Interior to impose the contract-violating delay. See App. 129 (“The [OBPA] contains provisions that specifically prohibit the Minerals Management Service from approving any Exploration Plan, approving any Application for Permit to Drill, or permitting any drilling offshore the State of North Carolina until at least October 1,1991”). It therefore made clear to Interior and to the companies that the United States had to violate the contracts’ terms and would continue to do so.
Moreover, OBPA changed pre-existing contract-incorporated requirements in several ways. It delayed approval, not only of an Exploration Plan but also of Development and Production Plans; and it delayed the issuance of drilling permits as well. It created a new type of Interior Department environmental review that had not previously existed, conducted by the newly created Environmental Sciences Review Panel; and, by insisting that the Secretary explain in detail any differences between the Secretary’s findings and those of the Panel, it created a kind of presumption in favor of the new Panel’s findings.
The dissent argues that only the statements contained in the letter from Interior to the companies may constitute a repudiation because “the enactment of legislation is not typically conceived of as a ‘statement’ of anything to any one party in particular,” and a repudiation requires a “statement by the obligor to the obligee indicating that the obligor will commit a breach.” Post, at 630-631, n. 4 (opinion of Stevens, J.) (quoting Restatement §250). But if legislation passed by Congress and signed by the President is not a “statement by the obligor,” it is difficult to imagine what would constitute such a statement. In this action, it was the United States who was the “obligor” to the contract. See App. to Pet. for Cert, in No. 99-253, at 174a (lease, identifying “the United States of America” as the “Lessor”). Although the dissent points out that legislation is “addressed to the public at large,” post, at 631, n. 4, that “public” includes those to whom the United States had contractual obligations. If the dissent means to invoke a special exception such as the “sovereign acts” doctrine, which treats certain laws as if they simply created conditions of impossibility, see Winstar, 518 U. S., at 891-899 (principal opinion of Souter, J.); id., at 923-924 (Scalia, J., concurring in judgment), it cannot do so here. The Court of Federal Claims rejected the application of that doetrine to this action, see 35 Fed. CL, at 334-336, and the Government has not contested that determination here. Hence, under these circumstances, the fact that Interior’s repudiation rested upon the enactment of a new statute makes no significant difference.
We do not say that the changes made by the statute were unjustified. We say only that they were changes of a kind that the contracts did not foresee. They were changes in those approval procedures and standards that the contracts had incorporated through cross-reference. The Government has not convinced us that Interior’s actions were authorized by any other contractually cross-referenced provision. Hence, in communicating to the companies its intent to follow OBPA, the United States was communicating its intent to violate the contracts.
B
The Government next argues that any violation of the contracts’ terms was not significant; hence there was no “substantial” or “material” breach that could have amounted to a “repudiation.” In particular, it says that OCSLA’s 30-day approval period “does not function as the ‘essence’ of these agreements.” Brief for United States 37. The Court of Claims concluded, however, that timely and fair consideration of a submitted Exploration Plan was a “necessary reciprocal obligation,” indeed, that any “contrary interpretation would render the bargain illusory.” 35 Fed. CL, at 327. We agree.
We recognize that the lease contracts gave the companies more than rights to obtain approvals. They also gave the companies rights to explore for, and to develop, oil. But the need to obtain Government approvals so qualified the likely future enjoyment of the exploration and development rights that the contract, in practice, amounted primarily to an opportunity to try to obtain exploration and development rights in accordance with the procedures and under the standards specified in the cross-referenced statutes and regulations. Under these circumstances, if the companies did not at least buy a promise that the Government would not deviate significantly from those procedures and standards, then what did they buy? Cf. id., at 324 (the companies bought exclusive rights to explore and develop oil “if they met?’ OCSLA requirements (emphasis added)).
The Government’s modification of the contract-incorporated processes was not technical or insubstantial. It did not announce an (OBPA-required) approval delay of a few days or weeks, but of 13 months minimum, and likely much longer. The delay turned out to be at least four years. And lengthy delays matter, particularly where several successive agency approvals are at stake. "Whether an applicant approaches Commerce with an Interior Department approval already in hand can make a difference (as can failure to have obtained that earlier approval). Moreover, as we have pointed out, OBPA changed the contract-referenced procedures in several other ways as well. Supra, at 619.
The upshot is that, under the contracts, the incorporated procedures and standards amounted to a gateway to the companies’ enjoyment of all other rights. To significantly narrow that gateway violated material conditions in the contracts. The breach was “substantia[l],” depriving the companies of the benefit of their bargain. Restatement §243. And the Government’s communication of its intent to commit that breach amounted to a repudiation of the contracts.
C
The Government argues that the companies waived their rights to restitution. It does not deny that the United States repudiated the contracts if (as we have found) OBPA’s changes amounted to a substantial breach. The Government does not claim that the United States retracted its repudiation. Cf. id., §256 (retraction will nullify the effects of repudiation if done before the other party either changes position in reliance on the refraction or communicates that it considers the repudiation to be final). It cannot claim that the companies waived their rights simply by urging performance. Id., §257 (the injured party “does not change the effect of a repudiation by urging the repudiator to perform in spite of his repudiation”); see also 11 Williston § 1334, at 177-178. Nor has the Government convinced us that the companies’ continued actions under the contracts amount to anything more than this urging of performance. See 2 E. Farnsworth, Contracts § 8.22, p. 544 (2d ed. 1998) (citing United Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238,282-283, 681 P. 2d 390, 433-434 (App. 1983) (urging performance and making “efforts of its own to fulfill the conditions” of the contract come to the same thing)); ef. 11 Williston § 1337, at 186-187. Consequently the Government’s waiver claim must come down to a claim that the companies received at least partial performance. Indeed, acceptance of performance under a once-repudiated contract can constitute a waiver of the right to restitution that repudiation would otherwise create. Restatement § 373, Comment a; cf. Restatement of Restitution § 68, Comment b (1936).
The United States points to three events that, in its view, amount to continued performance of the contracts. But it does not persuade us. First, the oil companies submitted their Exploration Plan to Interior two days after OBPA became law. Supra, at 611. The performance question, however, is not just about what the oil companies did or requested, but also about what they actually received from the Government. And, in respect to the Exploration Plan, the companies received nothing.
Second, the companies subsequently asked the Secretary of Commerce to overturn North Carolina’s objection to the companies’ CZMA consistency certification. And, although the Secretary’s eventual response was negative, the companies did at least receive that reply. Supra, at 613. The Secretary did not base his reply, however, upon application of the contracts’ standards, but instead relied in large part on the findings of the new, OBPA-created, Environmental Sciences Review Panel. See App. 224, 227, n. 35, 232-233, 239, 244 (citing the Panel’s report). Consequently, we cannot say that the companies received from Commerce the kind of consideration for which their contracts called.
Third, the oil companies received suspensions of their leases (suspending annual rents and extending lease terms) pending the OBPA-mandated approval delays. Supra, at 612-613. However, a separate contract — the 1989 memorandum of understanding — entitled the companies to receive these suspensions. See App. to Brief for United States 2a (letter from Toni D. Hennike, Counsel, Mobil Exploration & Producing U. S. Inc., to Ralph Melancon, Regional Supervisor, U. S. Dept, of Interior Minerals Management Service, dated Feb. 21,1995 (quoting the memorandum as a basis for the requested suspensions)). And the Government has provided no convincing reason why we should consider the suspensions to amount to significant performance of the lease contracts in question.
We conclude that the companies did not receive significant postrepudiation performance. We consequently find that they did not waive their right to restitution.
D
Finally, the Government argues that repudiation could not have hurt the companies. Since the companies could not have met the CZMA consistency requirements, they could not have explored (or ultimately drilled) for oil in any event. Hence, OBPA caused them no damage. As the Government puts it, the companies have already received "such damages as were actually caused by the [Exploration Plan approval] delay,” namely, none. Brief for United States 43-44; see also 177 F. 3d, at 1340. This argument, however, misses the basic legal point. The oil companies do not seek damages for breach of contract. They seek restitution of their initial payments. Because the Government repudiated the lease contracts, the law entitles the companies to that restitution whether the contracts would, or would not, ultimately have produced a financial gain or led them to obtain a definite right to explore. See supra, at 608. If a lottery operator fails to deliver a purchased ticket, the purchaser can get his money back- — whether or not he eventually would have won the lottery. And if one party to a contract, whether oil company or ordinary citizen, advances the other party money, principles of restitution normally require the latter, upon repudiation, to refund that money. Restatement § 373.
Ill
Contract law expresses no view about the wisdom of OBPA. We have examined only that statute’s consistency with the promises that the earlier contracts contained. We find that the oil companies gave the United States $156 million in return for a contractual promise to follow the terms of pre-existing statutes and regulations. The new statute prevented the Government from keeping that promise. The breach “substantially impair[ed] the value of the contracts].” Id., §243. And therefore the Government must give the companies their money back.
For these reasons, the judgment of the Federal Circuit is reversed. We remand the cases for farther proceedings consistent with this opinion.
It is so ordered.
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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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25
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MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE UNITED STATES, INC., et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
No. 82-354.
Argued April 26, 1983 —
Decided June 24, 1983
Solicitor General Lee argued the cause for petitioners in No. 82-398. With him on the briefs were Assistant Attorney General McGrath, Deputy Solicitor General Getter, Edwin S. Kneedler, Robert E. Kopp, Michael F. Hertz, Frank Bemdt, David W. Allen, Enid Rubenstein, and Eileen T. Leahy. Lloyd N. Cutler argued the cause for petitioners in No. 82-354. With him on the briefs were John H. Pickering, William R. Perlik, Andrew B. Weissman, William R. Richardson, Jr., MiltonD. Andrews, Lance E. Tunick, William H. Crabtree, Edward P. Good, Henry R. Nolte, Jr., Otis M. Smith, Charles R. Sharp, and William L. Weber, Jr. Raymond M. Momboisse, Sam Kazman, and Ronald A. Zumbrun filed briefs for petitioners in No. 82-355.
James F. Fitzpatrick argued the cause for respondents in all cases. With him on the brief for respondents State Farm Mutual Automobile Insurance Co. et al. were Michael N. Sohn, John M. Quinn, and Merrick B. Garland. Robert Abrams, Attorney General of New York, Robert S. Hammer, Assistant Attorney General, Peter H. Schiff, Martin Minkowitz, and Milton L. Freedman filed a brief for respondent Superintendent of Insurance of the State of New York. Raymond J. Rasenberger, Lawrence C. Merthan, Jerry W. Cox, and Lowell R. Beck filed a brief for respondents National Association of Independent Insurers et al-
Together with No. 82-355, Consumer Alert et al. v. State Farm Mutual Automobile Insurance Co. et al.; and No. 82-398, United States Department of Transportation et al. v. State Farm Mutual Automobile Insurance Co. et al., also on certiorari to the same court.
Briefs of amici curiae urging affirmance were filed by Dennis J. Barbour for the American College of Preventive Medicine et al.; by Nathan Lewin for the American Insurance Association; by Philip R. Collins and Thomas C. McGrath, Jr., for the Automotive Occupant Protection Association; by Alexandra K. Finucane for the Epilepsy Foundation of America et al.; by Katherine I. Hall for the Center for Auto Safety et al.; by Simon Lazarus III for Mothers Against Drunk Drivers; and by JohnH. Quinn, Jr., and John Hardin Young for the National Association of Insurance Commissioners.
Justice White
delivered the opinion of the Court.
The development of the automobile gave Americans unprecedented freedom to travel, but exacted a high price for enhanced mobility. Since 1929, motor vehicles have been the leading cause of accidental deaths and injuries in the United States. In 1982, 46,300 Americans died in motor vehicle accidents and hundreds of thousands more were maimed and injured. While a consensus exists that the current loss of life on our highways is unacceptably high, improving safety does not admit to easy solution. In 1966, Congress decided that at least part of the answer lies in improving the design and safety features of the vehicle itself. But much of the technology for building safer cars was undeveloped or untested. Before changes in automobile design could be mandated, the effectiveness of these changes had to be studied, their costs examined, and public acceptance considered. This task called for considerable expertise and Congress responded by enacting the National Traffic and Motor Vehicle Safety Act of 1966 (Act), 80 Stat. 718, as amended, 15 U. S. C. § 1381 et seq. (1976 ed. and Supp. V). The Act, created for the purpose of “reducing] traffic accidents and deaths and injuries to persons resulting from traffic accidents,” 15 U. S. C. § 1381, directs the Secretary of Transportation or his delegate to issue motor vehicle safety standards that “shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.” 15 U. S. C. § 1392(a) (1976 ed., Supp. V). In issuing these standards, the Secretary is directed to consider “relevant available motor vehicle safety data,” whether the proposed standard “is reasonable, practicable and appropriate” for the particular type of motor vehicle, and the “extent to which such standards will contribute to carrying out the purposes” of the Act. 15 U. S. C. §§ 1392(f)(1), (3), (4).
The Act also authorizes judicial review under the provisions of the Administrative Procedure Act (APA), 5 U. S. C. §706, of all “orders establishing, amending, or revoking a Federal motor vehicle safety standard,” 15 U. S. C. § 1392(b). Under this authority, we review today whether NHTSA acted arbitrarily and capriciously in revoking the requirement in Motor Vehicle Safety Standard 208 that new motor vehicles produced after September 1982 be equipped with passive restraints to protect the safety of the occupants of the vehicle in the event of a collision. Briefly summarized, we hold that the agency failed to present an adequate basis and explanation for rescinding the passive restraint requirement and that the agency must either consider the matter further or adhere to or amend Standard 208 along lines which its analysis supports. •
I
The regulation whose rescission is at issue bears a complex and convoluted history. Over the course of approximately 60 rulemaking notices, the requirement has been imposed, amended, rescinded, reimposed, and now rescinded again.
As originally issued by the Department of Transportation in 1967, Standard 208 simply required the installation of seatbelts in all automobiles. 32 Fed. Reg. 2415. It soon became apparent that the level of seatbelt use was too low to reduce traffic injuries to an acceptable level. The Department therefore began consideration of “passive occupant restraint systems” — devices that do not depend for their effectiveness upon any action taken by the occupant except that necessary to operate the vehicle. Two types of automatic crash protection emerged: automatic seatbelts and airbags. The automatic seatbelt is a traditional safety belt, which when fastened to the interior of the door remains attached without impeding entry or exit from the vehicle, and deploys automatically without any action on the part of the passenger. The airbag is an inflatable device concealed in the dashboard and steering column. It automatically inflates when a sensor indicates that deceleration forces from an accident have exceeded a preset minimum, then rapidly deflates to dissipate those forces. The lifesaving potential of these devices was immediately recognized, and in 1977, after substantial on-the-road experience with both devices, it was estimated by NHTSA that passive restraints could prevent approximately 12,000 deaths and over 100,000 serious injuries annually. 42 Fed. Reg. 34298.
In 1969, the Department formally proposed a standard requiring the installation of passive restraints, 34 Fed. Reg. 11148, thereby commencing a lengthy series of proceedings. In 1970, the agency revised Standard 208 to include passive protection requirements, 35 Fed. Reg. 16927, and in 1972, the agency amended the Standard to require full passive protection for all front seat occupants of vehicles manufactured after August 15, 1975. 37 Fed. Reg. 3911. In the interim, vehicles built between August 1973 and August 1975 were to carry either passive restraints or lap and shoulder belts coupled with an “ignition interlock” that would prevent starting the vehicle if the belts were not connected. On review, the agency’s decision to require passive restraints was found to be supported by “substantial evidence” and upheld. Chrysler Corp. v. Department of Transportation, 472 F. 2d 659 (CA6 1972).
In preparing for the upcoming model year, most car makers chose the “ignition interlock” option, a decision which was highly unpopular, and led Congress to amend the Act to prohibit a motor vehicle safety standard from requiring or permitting compliance by means of an ignition interlock or a continuous buzzer designed to indicate that safety belts were not in use. Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub. L. 93-492, §109, 88 Stat. 1482, 15 U. S. C. § 1410b(b). The 1974 Amendments also provided that any safety standard that could be satisfied by a system other than seatbelts would have to be submitted to Congress where it could be vetoed by concurrent resolution of both Houses. 15 U. S. C. § 1410b(b)(2).
The effective date for mandatory passive restraint systems was extended for a year until August 31,1976. 40 Fed. Reg. 16217 (1975); id., at 33977. But in June 1976, Secretary of Transportation William T. Coleman, Jr., initiated a new rulemaking on the issue, 41 Fed. Reg. 24070. After hearing testimony and reviewing written comments, Coleman extended the optional alternatives indefinitely and suspended the passive restraint requirement. Although he found passive restraints technologically and economically feasible, the Secretary based his decision on the expectation that there would be widespread public resistance to the new systems. He instead proposed a demonstration project involving up to 500,000 cars installed with passive restraints, in order to smooth the way for public acceptance of mandatory passive restraints at a later date. Department of Transportation, The Secretary’s Decision Concerning Motor Vehicle Occupant Crash Protection (Dec. 6, 1976), App. 2068.
Coleman’s successor as Secretary of Transportation disagreed. Within months of assuming office, Secretary Brock Adams decided that the demonstration project was unnecessary. He issued a new mandatory passive restraint regulation, known as Modified Standard 208. 42 Fed. Reg. 34289 (1977); 49 CFR § 571.208 (1978). The Modified Standard mandated the phasing in of passive restraints beginning with large cars in model year 1982 and extending to all cars by model year 1984. The two principal systems that would satisfy the Standard were airbags and passive belts; the choice of which system to install was left to the manufacturers. In Pacific Legal Foundation v. Department of Transportation, 193 U. S. App. D. C. 184, 593 F. 2d 1338, cert. denied, 444 U. S. 830 (1979), the Court of Appeals upheld Modified Standard 208 as a rational, nonarbitrary regulation consistent with the agency’s mandate under the Act. The Standard also survived scrutiny by Congress, which did not exercise its authority under the legislative veto provision of the 1974 Amendments.
Over the next several years, the automobile industry geared up to comply with Modified Standard 208. As late as July 1980, NHTSA reported:
“On the road experience in thousands of vehicles equipped with air bags and automatic safety belts has confirmed agency estimates of the life-saving and injury-preventing benefits of such systems. When all cars are equipped with automatic crash protection systems, each year an estimated 9,000 more lives will be saved, and tens of thousands of serious injuries will be prevented.” NHTSA, Automobile Occupant Crash Protection, Progress Report No. 3, p. 4; App. in No. 81-2220 (CADC), p. 1627 (hereinafter App.).
In February 1981, however, Secretary of Transportation Andrew Lewis reopened the rulemaking due to changed economic circumstances and, in particular, the difficulties of the automobile industry. 46 Fed. Reg. 12033. Two months later, the agency ordered a one-year delay in the application of the Standard to large cars, extending the deadline to September 1982, id., at 21172, and at the same time, proposed the possible rescission of the entire Standard. Id., at 21205. After receiving written comments and holding public hearings, NHTSA issued a final rule (Notice 25) that rescinded the passive restraint requirement contained in Modified Standard 208.
II
In a statement explaining the rescission, NHTSA maintained that it was no longer able to find, as it had in 1977, that the automatic restraint requirement would produce significant safety benefits. Notice 25, id., at 53419. This judgment reflected not a change of opinion on the effectiveness of the technology, but a change in plans by the automobile industry. In 1977, the agency had assumed that airbags would be installed in 60% of all new cars and automatic seatbelts in 40%. By 1981 it became apparent that automobile manufacturers planned to install the automatic seatbelts in approximately 99% of the new cars. For this reason, the lifesaving potential of airbags would not be realized. Moreover, it now appeared that the overwhelming majority of passive belts planned to be installed by manufacturers could be detached easily and left that way permanently. Passive belts, once detached, then required “the same type of affirmative action that is the stumbling block to obtaining high usage levels of manual belts.” Id., at 53421. For this reason, the agency concluded that there was no longer a basis for reliably predicting that the Standard would lead to any significant increased usage of restraints at all.
In view of the possibly minimal safety benefits, the automatic restraint requirement no longer was reasonable or practicable in the agency’s view. The requirement would require approximately $1 billion to implement and the agency did not believe it would be reasonable to impose such substantial costs on manufacturers and consumers without more adequate assurance that sufficient safety benefits would accrue. In addition, NHTSA concluded that automatic restraints might have an adverse effect on the public’s attitude toward safety. Given the high expense and limited benefits of detachable belts, NHTSA feared that many consumers would regard the Standard as an instance of ineffective regulation, adversely affecting the public’s view of safety regulation and, in particular, “poisoning . . . popular sentiment toward efforts to improve occupant restraint systems in the future.” Id., at 53424.
State Farm Mutual Automobile Insurance Co. and the National Association of Independent Insurers filed petitions for review of NHTSA’s rescission of the passive restraint Standard. The United States Court of Appeals for the District of Columbia Circuit held that the agency’s rescission of the passive restraint requirement was arbitrary and capricious. 220 U. S. App. D. C. 170, 680 F. 2d 206 (1982). While observing that rescission is not unrelated to an agency’s refusal to take action in the first instance, the court concluded that, in this case, NHTSA’s discretion to rescind the passive restraint requirement had been restricted by various forms of congressional “reaction” to the passive restraint issue. It then proceeded to find that the rescission of Standard 208 was arbitrary and capricious for three reasons. First, the court found insufficient as a basis for rescission NHTSA’s conclusion that it could not reliably predict an increase in belt usage under the Standard. The court held that there was insufficient evidence in the record to sustain NHTSA’s position on this issue, and that, “only a well justified refusal to seek more evidence could render rescission non-arbitrary.” Id., at 196, 680 F. 2d, at 232. Second, a majority of the panel concluded that NHTSA inadequately considered the possibility of requiring manufacturers to install nondetachable rather than detachable passive belts. Third, the majority found that the agency acted arbitrarily and capriciously by failing to give any consideration whatever to requiring compliance with Modified Standard 208 by the installation of airbags.
The court allowed NHTSA 30 days in which to submit a schedule for “resolving the questions raised in th[e] opinion.” Id., at 206, 680 F. 2d, at 242. Subsequently, the agency filed a Notice of Proposed Supplemental Rulemaking setting forth a schedule for complying with the court’s mandate. On August 4, 1982, the Court of Appeals issued an order staying the compliance date for the passive restraint requirement until September 1, 1983, and requested NHTSA to inform the court whether that compliance date was achievable. NHTSA informed the court on October 1,1982, that based on representations by manufacturers, it did not appear that practicable compliance could be achieved before September 1985. On November 8, 1982, we granted certiorari, 459 U. S. 987, and on November 18, the Court of Appeals entered an order recalling its mandate.
r-H h-I
Unlike the Court of Appeals, we do not find the appropriate scope of judicial review to be the “most troublesome question” in these cases. Both the Act and the 1974 Amendments concerning occupant crash protection standards indicate that motor vehicle safety standards are to be promulgated under the informal rulemaking procedures of the Administrative Procedure Act. 5 U. S. C. § 553. The agency’s action in promulgating such standards therefore may be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 414 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281 (1974). We believe that the rescission or modification of an occupant-protection standard is subject to the same test. Section 103(b) of the Act, 15 U. S. C. § 1392(b), states that the procedural and judicial review provisions of the Administrative Procedure Act “shall apply to all orders establishing, amending, or revoking a Federal motor vehicle safety standard,” and suggests no difference in the scope of judicial review depending upon the nature of the agency’s action.
Petitioner Motor Vehicle Manufacturers Association (MVMA) disagrees, contending that the rescission of an agency rule should be judged by the same standard a court would use to judge an agency’s refusal to promulgate a rule in the first place — a standard petitioner believes considerably narrower than the traditional arbitrary-and-capricious test. We reject this view. The Act expressly equates orders “revoking” and “establishing” safety standards; neither that Act nor the APA suggests that revocations are to be treated as refusals to promulgate standards. Petitioner’s view would render meaningless Congress’ authorization for judicial review of orders revoking safety rules. Moreover, the revocation of an extant regulation is substantially different than a failure to act. Revocation constitutes a reversal of the agency’s former views as to the proper course. A “settled course of behavior embodies the agency’s informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to.” Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973). Accordingly, an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.
In so holding, we fully recognize that “[rjegulatory agencies do not establish rules of conduct to last forever,” American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397, 416 (1967), and that an agency must be given ample latitude to “adapt their rules and policies to the demands of changing circumstances.” Permian Basin Area Rate Cases, 390 U. S. 747, 784 (1968). But the forces of change do not always or necessarily point in the direction of deregulation. In the abstract, there is no more reason to presume that changing circumstances require the rescission of prior action, instead of a revision in or even the extension of current regulation. If Congress established a presumption from which judicial review should start, that presumption — contrary to petitioners’ views — is not against safety regulation, but against changes in current policy that are not justified by the rulemaking record. While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and, accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law.
The Department of Transportation accepts the applicability of the “arbitrary and capricious” standard. It argues that under this standard, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute. We do not disagree with this formulation. The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962). In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 285; Citizens to Preserve Overton Park v. Volpe, supra, at 416. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 286. See also Camp v. Pitts, 411 U. S. 138, 142-143 (1973) (per curiam). For purposes of these cases, it is also relevant that Congress required a record of the rulemaking proceedings to be compiled and submitted to a reviewing court, 15 U. S. C. § 1394, and intended that agency findings under the Act would be supported by “substantial evidence on the record considered as a whole.” S. Rep. No. 1301, 89th Cong., 2d Sess., 8 (1966); H. R. Rep. No. 1776, 89th Cong., 2d Sess., 21 (1966).
>
The Court of Appeals correctly found that the arbitrary- and-capricious test applied to rescissions of prior agency regulations, but then erred in intensifying the scope of its review based upon its reading of legislative events. It held that congressional reaction to various versions of Standard 208 “raise[d] doubts” that NHTSA’s rescission “necessarily demonstrates an effort to fulfill its statutory mandate,” and therefore the agency was obligated to provide “increasingly clear and convincing reasons” for its action. 220 U. S. App. D. C., at 186, 193, 680 F. 2d, at 222, 229. Specifically, the Court of Appeals found significance in three legislative occurrences:
“In 1974, Congress banned the ignition interlock but did not foreclose NHTSA’s pursuit of a passive restraint standard. In 1977, Congress allowed the standard to take effect when neither of the concurrent resolutions needed for disapproval was passed. In 1980, a majority of each house indicated support for the concept of mandatory passive restraints and a majority of each house supported the unprecedented attempt to require some installation of airbags.” Id., at 192, 680 F. 2d, at 228.
From these legislative acts and nonacts the Court of Appeals derived a “congressional commitment to the concept of automatic crash protection devices for vehicle occupants.” Ibid.
This path of analysis was misguided and the inferences it produced are questionable. It is noteworthy that in this Court respondent State Farm expressly agrees that the post-enactment legislative history of the Act does not heighten the standard of review of NHTSA’s actions. Brief for Respondent State Farm Mutual Automobile Insurance Co. 13. State Farm’s concession is well taken for this Court has never suggested that the standard of review is enlarged or diminished by subsequent congressional action. While an agency’s interpretation of a statute may be confirmed or ratified by subsequent congressional failure to change that interpretation, Bob Jones University v. United States, 461 U. S. 574, 599-602 (1983); Haig v. Agee, 453 U. S. 280, 291-300 (1981), in the cases before us, even an unequivocal ratification — short of statutory incorporation — of the passive restraint standard would not connote approval or disapproval of an agency’s later decision to rescind the regulation. That decision remains subject to the arbitrary-and-capricious standard.
That we should not be so quick to infer a congressional mandate for passive restraints is confirmed by examining the postenactment legislative events cited by the Court of Appeals. Even were we inclined to rely on inchoate legislative action, the inferences to be drawn fail to suggest that NHTSA acted improperly in rescinding Standard 208. First, in 1974 a mandatory passive restraint standard was technically not in effect, see n. 6, supra; Congress had no reason to foreclose that course. Moreover, one can hardly infer support for a mandatory standard from Congress’ decision to provide that such a regulation would be subject to disapproval by resolutions of disapproval in both Houses. Similarly, no mandate can be divined from the tabling of resolutions of disapproval which were introduced in 1977. The failure of Congress to exercise its veto might reflect legislative deference to the agency’s expertise and does not indicate that Congress would disapprove of the agency’s action in 1981. And even if Congress favored the Standard in 1977, it — like NHTSA — may well reach a different judgment, given changed circumstances four years later. Finally, the Court of Appeals read too much into floor action on the 1980 authorization bill, a bill which was not enacted into law. Other contemporaneous events could be read as showing equal congressional hostility to passive restraints.
V
The ultimate question before us is whether NHTSA’s rescission of the passive restraint requirement of Standard 208 was arbitrary and capricious. We conclude, as did the Court of Appeals, that it was. We also conclude, but for somewhat different reasons, that further consideration of the issue by the agency is therefore required. We deal separately with the rescission as it applies to airbags and as it applies to seatbelts.
A
The first and most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized. Standard 208 sought to achieve automatic crash protection by requiring automobile manufacturers to install either of two passive restraint devices: airbags or automatic seatbelts. There was no suggestion in the long rulemaking process that led to Standard 208 that if only one of these options were feasible, no passive restraint standard should be promulgated. Indeed, the agency’s original proposed Standard contemplated the installation of inflatable restraints in all cars. Automatic belts were added as a means of complying with the Standard because they were believed to be as effective as airbags in achieving the goal of occupant crash protection. 36 Fed. Reg. 12859 (1971). At that time, the passive belt approved by the agency could not be detached. Only later, at a manufacturer’s behest, did the agency approve of the detach-ability feature — and only after assurances that the feature would not compromise the safety benefits of the restraint. Although it was then foreseen that 60% of the new cars would contain airbags and 40% would have automatic seatbelts, the ratio between the two was not significant as long as the passive belt would also assure greater passenger safety.
The agency has now determined that the detachable automatic belts will not attain anticipated safety benefits because so many individuals will detach the mechanism. Even if this conclusion were acceptable in its entirety, see infra, at 51-54, standing alone it would not justify any more than an amendment of Standard 208 to disallow compliance by means of the one technology which will not provide effective passenger protection. It does not cast doubt on the need for a passive restraint standard or upon the efficacy of airbag technology. In its most recent rulemaking, the agency again acknowledged the lifesaving potential of the airbag:
“The agency has no basis at this time for changing its earlier conclusions in 1976 and 1977 that basic air bag technology is sound and has been sufficiently demonstrated to be effective in those vehicles in current use . . . NHTSA Final Regulatory Impact Analysis (RIA) XI-4 (Oct. 1981), App. 264.
Given the effectiveness ascribed to airbag technology by the agency, the mandate of the Act to achieve traffic safety would suggest that the logical response to the faults of detachable seatbelts would be to require the installation of airbags. At the very least this alternative way of achieving the objectives of the Act should have been addressed and adequate reasons given for its abandonment. But the agency not only did not require compliance through airbags, it also did not even consider the possibility in its 1981 rulemaking. Not one sentence of its rulemaking statement discusses the airbags-only option. Because, as the Court of Appeals stated, “NHTSA’s . . . analysis of airbags was nonexistent,” 220 U. S. App. D. C., at 200, 680 F. 2d, at 236, what we said in Burlington Truck Lines, Inc. v. United States, 371 U. S., at 167, is apropos here:
“There are no findings and no analysis here to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion. We are not prepared to and the Administrative Procedure Act will not permit us to accept such . . . practice. . . . Expert discretion is the lifeblood of the administrative process, but ‘unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.’ New York v. United States, 342 U. S. 882, 884 (dissenting opinion)” (footnote omitted).
We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner, Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S., at 806; FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 249 (1972); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443 (1965); and we reaffirm this principle again today.
The automobile industry has opted for the passive belt over the airbag, but surely it is not enough that the regulated industry has eschewed a given safety device. For nearly a decade, the automobile industry waged the regulatory equivalent of war against the airbag and lost — the inflatable restraint was proved sufficiently effective. Now the automobile industry has decided to employ a seatbelt system which will not meet the safety objectives of Standard 208. This hardly constitutes cause to revoke the Standard itself. Indeed, the Act was necessary because the industry was not sufficiently responsive to safety concerns. The Act intended that safety standards not depend on current technology and could be “technology-forcing” in the sense of inducing the development of superior safety design. See Chrysler Corp. v. Department of Transportation, 472 F. 2d, at 672-673. If, under the statute, the agency should not defer to the industry’s failure to develop safer cars, which it surely should not do, a fortiori it may not revoke a safety standard which can be satisfied by current technology simply because the industry has opted for an ineffective seatbelt design.
Although the agency did not address the mandatory airbag option and the Court of Appeals noted that “airbags seem to have none of the problems that NHTSA identified in passive seatbelts,” 220 U. S. App. D. C., at 201, 680 F. 2d, at 237, petitioners recite a number of difficulties that they believe would be posed by a mandatory airbag standard. These range from questions concerning the installation of airbags in small cars to that of adverse public reaction. But these are not the agency’s reasons for rejecting a mandatory airbag standard. Not having discussed the possibility, the agency submitted no reasons at all. The short — and sufficient — answer to petitioners’ submission is that the courts may not accept appellate counsel’s post hoc rationalizations for agency action. Burlington Truck Lines, Inc. v. United States, 371 U. S., at 168. It is well established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself. Ibid.; SEC v. Chenery Corp., 332 U. S., at 196; American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981).
Petitioners also invoke our decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), as though it were a talisman under which any agency decision is by definition unimpeachable. Specifically, it is submitted that to require an agency to consider an airbags-only alternative is, in essence, to dictate to the agency the procedures it is to follow. Petitioners both misread Vermont Yankee and misconstrue the nature of the remand that is in order. In Vermont Yankee, we held that a court may not impose additional procedural requirements upon an agency. We do not require today any specific procedures which NHTSA must follow. Nor do we broadly require an agency to consider all policy alternatives in reaching decision. It is true that rulemaking “cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man . . . regardless of how uncommon or unknown that alternative may have been . . . .” Id., at 551. But the airbag is more than a policy alternative to the passive restraint Standard; it is a technological alternative within the ambit of the existing Standard. We hold only that given the judgment made in 1977 that airbags are an effective and cost-beneficial lifesaving technology, the mandatory passive restraint rule may not be abandoned without any consideration whatsoever of an airbags-only requirement.
B
Although the issue is closer, we also find that the agency was too quick to dismiss the safety benefits of automatic seatbelts. NHTSA’s critical finding was that, in light of the industry’s plans to install readily detachable passive belts, it could not reliably predict “even a 5 percentage point increase as the minimum level of expected usage increase.” 46 Fed. Reg. 53423 (1981). The Court of Appeals rejected this finding because there is “not one iota” of evidence that Modified Standard 208 will fail to increase nationwide seatbelt use by at least 13 percentage points, the level of increased usage necessary for the Standard to justify its cost. Given the lack of probative evidence, the court held that “only a well justified refusal to seek more evidence could render rescission non-arbitrary.” 220 U. S. App. D. C., at 196, 680 F. 2d, at 232.
Petitioners object to this conclusion. In their view, “substantial uncertainty” that a regulation will accomplish its intended purpose is sufficient reason, without more, to rescind a regulation. We agree with petitioners that just as an agency reasonably may decline to issue a safety standard if it is uncertain about its efficacy, an agency may also revoke a standard on the basis of serious uncertainties if supported by the record and reasonably explained. Rescission of the passive restraint requirement would not be arbitrary and capricious simply because there was no evidence in direct support of the agency’s conclusion. It is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion. Recognizing that policymaking in a complex society must account for uncertainty, however, does not imply that it is sufficient for an agency to merely recite the terms “substantial uncertainty” as a justification for its actions. As previously noted, the agency must explain the evidence which is available, and must offer a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, supra, at 168. Generally, one aspect of that explanation would be a justification for rescinding the regulation before engaging in a search for further evidence.
In these cases, the agency’s explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking. To reach this conclusion, we do not upset the agency’s view of the facts, but we do appreciate the limitations of this record in supporting the agency’s decision. We start with the accepted ground that if used, seatbelts unquestionably would save many thousands of lives and would prevent tens of thousands of crippling injuries. Unlike recent regulatory decisions we have reviewed, Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 (1980); American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490 (1981), the safety benefits of wearing seatbelts are not in doubt, and it is not challenged that were those benefits to accrue, the monetary costs of implementing the Standard would be easily justified. We move next to the fact that there is no direct evidence in support of the agency’s finding that detachable automatic belts cannot be predicted to yield a substantial increase in usage. The empirical evidence on the record, consisting of surveys of drivers of automobiles equipped with passive belts, reveals more than a doubling of the usage rate experienced with manual belts. Much of the agency’s rulemaking statement — and much of the controversy in these cases — centers on the conclusions that should be drawn from these studies. The agency maintained that the doubling of seatbelt usage in these studies could not be extrapolated to an across-the-board mandatory standard because the passive seatbelts were guarded by ignition interlocks and purchasers of the tested cars are somewhat atypical. Respondents insist these studies demonstrate that Modified Standard 208 will substantially increase seatbelt usage. We believe that it is within the agency’s discretion to pass upon the generalizability of these field studies. This is precisely the type of issue which rests within the expertise of NHTSA, and upon which a reviewing court must be most hesitant to intrude.
But accepting the agency’s view of the field tests on passive restraints indicates only that there is no reliable real-world experience that usage rates will substantially increase. To be sure, NHTSA opines that “it cannot reliably predict even a 5 percentage point increase as the minimum level of expected increased usage.” Notice 25, 46 Fed. Reg. 53423 (1981). But this and other statements that passive belts will not yield substantial increases in seatbelt usage apparently take no account of the critical difference between detachable automatic belts and current manual belts. A detached passive belt does require an affirmative act to reconnect it, but— unlike a manual seatbelt — the passive belt, once reattached, will continue to function automatically unless again disconnected. Thus, inertia — a factor which the agency’s own studies have found significant in explaining the current low usage rates for seatbelts — works in favor of, not against, use of the protective device. Since 20% to 50% of motorists currently wear seatbelts on some occasions, there would seem to be grounds to believe that seatbelt use by occasional users will be substantially increased by the detachable passive belts. Whether this is in fact the case is a matter for the agency to decide, but it must bring its expertise to bear on the question.
The agency is correct to look at the costs as well as the benefits of Standard 208. The agency’s conclusion that the incremental costs of the requirements were no longer reasonable was predicated on its prediction that the safety benefits of the regulation might be minimal. Specifically, the agency’s fears that the public may resent paying more for the automatic belt systems is expressly dependent on the assumption that detachable automatic belts will not produce more than “negligible safety benefits.” Id., at 53424. When the agency reexamines its findings as to the likely increase in seatbelt usage, it must also reconsider its judgment of the reasonableness of the monetary and other costs associated with the Standard. In reaching its judgment, NHTSA should bear in mind that Congress intended safety to be the pre-eminent factor under the Act:
“The Committee intends that safety shall be the overriding consideration in the issuance of standards under this bill. The Committee recognizes . . . that the Secretary will necessarily consider reasonableness of cost, feasibility and adequate leadtime.” S. Rep. No. 1301, 89th Cong., 2d Sess., 6 (1966).
“In establishing standards the Secretary must conform to the requirement that the standard be practicable. This would require consideration of all relevant factors, including technological ability to achieve the goal of a particular standard as well as consideration of economic factors.
“Motor vehicle safety is the paramount purpose of this bill and each standard must be related thereto.” H. R. Rep. No. 1776, 89th Cong., 2d Sess., 16 (1966).
The agency also failed to articulate a basis for not requiring nondetachable belts under Standard 208. It is argued that the concern of the agency with the easy detachability of the currently favored design would be readily solved by a continuous passive belt, which allows the occupant to “spool out” the belt and create the necessary slack for easy extrication from the vehicle. The agency did not separately consider the continuous belt option, but treated it together with the ignition interlock device in a category it titled “Option of Adopting Use-Compelling Features.” 46 Fed. Reg. 53424 (1981). The agency was concerned that use-compelling devices would “complicate the extrication of [an] occupant from his or her car.” Ibid. “[T]o require that passive belts contain use-compelling features,” the agency observed, “could be counterproductive [, given]. . . widespread, latent and irrational fear in many members of the public that they could be trapped by the seat belt after a crash.” Ibid. In addition, based on the experience with the ignition interlock, the agency feared that use-compelling features might trigger adverse public reaction.
By failing to analyze the continuous seatbelts option in its own right, the agency has failed to offer the rational connection between facts and judgment required to pass muster under the arbitrary-and-capricious standard. We agree with the Court of Appeals that NHTSA did not suggest that the emergency release mechanisms used in nondetachable belts are any less effective for emergency egress than the buckle release system used in detachable belts. In 1978, when General Motors obtained the agency’s approval to install a continuous passive belt, it assured the agency that nondetachable belts with spool releases were as safe as detachable belts with buckle releases. 43 Fed. Reg. 21912, 21913-21914 (1978). NHTSA was satisfied that this belt design assured easy extricability: “[t]he agency does not believe that the use of [such] release mechanisms will cause serious occupant egress problems . . . .” Id., at 52493, 52494. While the agency is entitled to change its view on the acceptability of continuous passive belts, it is obligated to explain its reasons for doing so.
The agency also failed to offer any explanation why a continuous passive belt would engender the same adverse public reaction as the ignition interlock, and, as the Court of Appeals concluded, “every indication in the record points the other way.” 220 U. S. App. D. C., at 198, 680 F. 2d, at 234.
We see no basis for equating the two devices: the continous belt, unlike the ignition interlock, does not interfere with the operation of the vehicle. More importantly, it is the agency’s responsibility, not this Court’s, to explain its decision.
VI
“An agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis . ...” Greater Boston Television Corp. v. FCC, 143 U. S. App. D. C. 383, 394, 444 F. 2d 841, 852 (1970) (footnote omitted), cert. denied, 403 U. S. 923 (1971). We do not accept all of the reasoning of the Court of Appeals but we do conclude that the agency has failed to supply the requisite “reasoned analysis” in this case. Accordingly, we vacate the judgment of the Court of Appeals and remand the cases to that court with directions to remand the matter to the NHTSA for further consideration consistent with this opinion.
So ordered.
National Safety Council, 1982 Motor Vehicle Deaths By States (May 16, 1983).
The Senate Committee on Commerce reported:
“The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.” S. Rep. No. 1301, 89th Cong., 2d Sess., 4 (1966).
The Secretary’s general authority to promulgate safety standards under the Act has been delegated to the Administrator of the National Highway Traffic Safety Administration (NHTSA). 49 CFR § 1.50(a) (1982). This opinion will use the terms NHTSA and agency interchangeably when referring to the National Highway Traffic Safety Administration, the Department of Transportation, and the Secretary of Transportation.
Early in the process, it was assumed that passive occupant protection meant the installation of inflatable airbag restraint systems. See 34 Fed. Reg. 11148 (1969). In 1971, however, the agency observed that “[s]ome belt-based concepts have been advanced that appear to be capable of meeting the complete passive protection options,” leading it to add a new section to the proposed standard “[t]o deal expressly with passive belts.” 36 Fed. Reg. 12859.
The court did hold that the testing procedures required of passive belts did not satisfy the Act’s requirement that standards be “objective.” 472 F. 2d, at 675.
Because such a passive restraint standard was not technically in effect at this time due to the Sixth Circuit’s invalidation of the testing requirements, see n. 5, supra, the issue was not submitted to Congress until a passive restraint requirement was reimposed by Secretary Adams in 1977. To comply with the Amendments, NHTSA proposed new warning systems to replace the prohibited continuous buzzers. 39 Fed. Reg. 42692 (1974). More significantly, NHTSA was forced to rethink an earlier decision which contemplated use of the interlocks in tandem with detachable belts. See n. 13, infra.
No action was taken by the full House of Representatives. The Senate Committee with jurisdiction over NHTSA affirmatively endorsed the Standard, S. Rep. No. 95-481 (1977), and a resolution of disapproval was tabled by the Senate. 123 Cong. Rec. 33332 (1977).
Judge Edwards did not join the majority’s reasoning on these points.
The Department of Transportation suggests that the arbitrary-and-capricious standard requires no more than the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause. We do not view as equivalent the presumption of constitutionality afforded legislation drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory mandate.
For example, an overwhelming majority of the Members of the House of Representatives voted in favor of a proposal to bar NHTSA from spending funds to administer an occupant restraint standard unless the standard permitted the purchaser of the vehicle to select manual rather than passive restraints. 125 Cong. Rec. 36926 (1979).
While NHTSA’s 1970 passive restraint requirement permitted compliance by means other than the airbag, 35 Fed. Reg. 16927, “[t]his rule was a de facto air bag mandate since no other technologies were available to comply with the standard.” Graham & Gorham, NHTSA and Passive Restraints: A Case of Arbitrary and Capricious Deregulation, 35 Ad. L. Rev. 193, 197 (1983). See n. 4, supra.
Although the agency suggested that passive restraint systems contain an emergency release mechanism to allow easy extrication of passengers in the event of an accident, the agency cautioned that “[i]n the case of passive safety belts, it would be required that the release not cause belt separation, and that the system be self-restoring after operation of the release.” 36 Fed. Reg. 12866 (1971).
In April 1974, NHTSA adopted the suggestion of an automobile manufacturer that emergency release of passive belts be accomplished by a conventional latch — provided the restraint system was guarded by an ignition interlock and warning buzzer to encourage reattachment of the passive belt. 39 Fed. Reg. 14593. When the 1974 Amendments prohibited these devices, the agency simply eliminated the interlock and buzzer requirements, but continued to allow compliance by a detachable passive belt.
See, e. g., Comments of Chrysler Corp., Docket No. 69-07, Notice 11 (Aug. 5, 1971) (App. 2491); Chrysler Corp. Memorandum on Proposed Alternative Changes to FMVSS 208, Docket No. 44, Notice 76-8 (1976) (App. 2241); General Motors Corp. Response to the Dept. of Transportation Proposal on Occupant Crash Protection, Docket No. 74-14, Notice 08 (May 27, 1977) (App. 1745). See also Chrysler Corp. v. Department of Transportation, 472 F. 2d 659 (CA6 1972).
The Department of Transportation expresses concern that adoption of an airbags-only requirement would have required a new notice of proposed rulemaking. Even if this were so, and we need not decide the question, it would not constitute sufficient cause to rescind the passive restraint requirement. The Department also asserts that it was reasonable to withdraw the requirement as written to avoid forcing manufacturers to spend resources to comply with an ineffective safety initiative. We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement or to delay its implementation date while an airbag mandate was studied. But, as we explain in text, that option had to be considered before the passive restraint requirement could be revoked.
Between 1975 and 1980, Volkswagen sold approximately 350,000 Rabbits equipped with detachable passive seatbelts that were guarded by an ignition interlock. General Motors sold 8,000 1978 and 1979 Chevettes with a similar system, but eliminated the ignition interlock on the 13,000 Chevettes sold in 1980. NHTSA found that belt usage in the Rabbits averaged 34% for manual belts and 84% for passive belts. RIA, at IV-52, App. 108. For the 1978-1979 Chevettes, NHTSA calculated 34% usage for manual belts and 72% for passive belts. On 1980 Chevettes, the agency found these figures to be 31% for manual belts and 70% for passive belts. Ibid.
“NHTSA believes that the usage of automatic belts in Rabbits and Chevettes would have been substantially lower if the automatic belts in those cars were not equipped with a use-inducing device inhibiting detachment.” Notice 25, 46 Fed. Reg. 53422 (1981).
NHTSA commissioned a number of surveys of public attitudes in an effort to better understand why people were not using manual belts and to determine how they would react to passive restraints. The surveys reveal that while 20% to 40% of the public is opposed to wearing manual belts, the larger proportion of the population does not wear belts because they forgot or found manual belts inconvenient or bothersome. RIA, at IV-25, App. 81. In another survey, 38% of the surveyed group responded that they would welcome automatic belts, and 25% would “tolerate” them. See RIA, at IV-37, App. 93. NHTSA did not comment upon these attitude surveys in its explanation accompanying the rescission of the passive restraint requirement.
Four surveys of manual belt usage were conducted for NHTSA between 1978 and 1980, leading the agency to report that 40% to 50% of the people use their belts at least some of the time. RIA, at IV-25, App. 81.
The Court of Appeals noted previous agency statements distinguishing interlocks from passive restraints. 42 Fed. Reg. 34290 (1977); 36 Fed. Reg. 8296 (1971); RIA, at II-4, App. 30.
Petitioners construe the Court of Appeals’ order of August 4, 1982, as setting an implementation date for Standard 208, in violation of Vermont Yankee’s injunction against imposing such time constraints. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 544-545 (1978). Respondents maintain that the Court of Appeals simply stayed the effective date of Standard 208, which, not having been validly rescinded, would have required mandatory passive restraints for new cars after September 1,1982. We need not choose between these views because the agency had sufficient justification to suspend, although not to rescind, Standard 208, pending the further consideration required by the Court of Appeals, and now, by us.
|
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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[
80
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NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309 v. DEPARTMENT OF THE INTERIOR et al.
No. 97-1184.
Argued November 9, 1998
Decided March 3, 1999
Breyer, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which Scaua and Thomas, JJ., joined as to Part I, post, p. 101.
Gregory O’Duden argued the cause for petitioner in No. 97-1184. With him on the briefs was Barbara A. Atkin. David M. Smith argued the cause for petitioner in No. 97-1243. With him on the brief was James F Blandford.
Irving L. Gornstein argued the cause for the Department of the Interior in both cases. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Underwood, Jonathan E. Nuech-terlein, William Ranter, Robert M. Loeb, and Sushma Soni.
Together with No. 97-1243, Federal Labor Relations Authority v. Department of the Interior et al., also on certiorari to the same court.
Jonathan P. Hiatt, James B. Coppess, Marsha S. Berzon, Laurence Gold, Mark D. Roth, and Kevin M. Grile filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging reversal.
Justice Breyer
delivered the opinion of the Court.
The Federal Service Labor-Management Relations Statute requires federal agencies and the unions that represent their employees to “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 5 U. S. C. § 7114(a)(4). We here consider whether that duty to bargain extends to a clause proposed by a union that would bind the parties to bargain midterm — that is, while the basic comprehensive labor contract is in effect — about subjects not included in that basic contract. We vacate a lower court holding that the statutory duty to bargain does not encompass midterm bargaining (or bargaining about midterm bargaining). We conclude that the Statute delegates to the Federal Labor Relations Authority the legal power to determine whether the parties must engage in midterm bargaining (or bargaining about that matter). We remand these cases so that the Authority may exercise that power.
I
Congress enacted the Federal Service Labor-Management Relations Statute (Statute or FSLMRS) in 1978. See 5 U. S. C. §7101 et seq. Declaring that “labor organizations and collective bargaining in the civil service are in the public interest,” § 7101(a), the Statute grants federal agency employees the right to organize, provides for collective bargaining, and defines various unfair labor practices. See §§ 7114(a)(1), 7116. It creates the Federal Labor Relations Authority, which it makes responsible for implementing the Statute through the exercise of broad adjudicatory, policy-making, and rulemaking powers. §§ 7104, 7105. And it establishes within the Authority a Federal Service Impasses Panel, to which it grants the power to resolve negotiation impasses through compulsory arbitration, § 7119, hence without the strikes that the law forbids to federal employees, § 7116(b)(7).
Of particular relevanee here, the Statute requires a federal agency employer to “meet” with the employees’ collective-bargaining representative and to “negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” § 7114(a)(4). The Courts of Appeals disagree about whether, or the extent to which, this good-faith-bargaining requirement extends to midterm bargaining. Suppose, for example, that the federal agency and the union negotiate a basic 5-year contract. In the third year a matter arises that the contract does not address. If the union seeks negotiations about the matter, does the Statute require the agency to bargain then and there, or can the agency wait for basic contract renewal negotiations? Does it matter whether the basic contract itself contains a “zipper clause” expressly forbidding such bargaining? Does it matter whether the basic contract itself contains a clause expressly permitting midterm bargaining? Can the parties insist upon bargaining endterm (that is, during the negotiations over adopting or renewing a basic labor contract) about whether to include one or the other such clauses in the basic contract itself?
In 1985 the Authority began to answer some of these questions. It considered a union’s effort to force midterm negotiations about a matter the basic labor contract did not address, and it held that the Statute did not require the agency to bargain. Internal Revenue Service, 17 F. L. R. A. 731 (1985) (IRS I).
The Court of Appeals for the District of Columbia Circuit, however, set aside the Authority’s ruling. The court held that in light of the intent and purpose of the Statute, it must be read to require midterm bargaining, inasmuch as it did not create any distinction between bargaining at the end of a labor contract’s term and bargaining during that term. National Treasury Employees Union v. FLRA, 810 F. 2d 295 (1987) (NTEU). On remand the Authority reversed its earlier position. Internal Revenue Service, 29 F. L. R. A. 162, 166 (1987) (IRS II). Accepting the D. C. Circuit’s analysis, the Authority held:
“[TJhe duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the [basic] agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement." Id., at 167.
The Fourth Circuit has taken a different view of the matter. It has held that “union-initiated midterm bargaining is not required by the statute and would undermine the congressional policies underlying the statute.” Social Security Administration v. FLRA, 956 F. 2d 1280, 1281 (1992) (SSA). Nor, in its view, may the basic labor contract itself impose a midterm bargaining duty upon the parties. Department of Energy v. FLRA, 106 F. 3d 1158, 1163 (1997) (holding unlawful a midterm bargaining clause that the Federal Service Impasses Panel had imposed upon the parties’ basic labor contract).
In the present suit, the National Federation Employees, Local 1309 (Union), representing employees of the United States Geological Survey, a subagency of the Department of the Interior (Agency), proposed including in the basic labor contract a midterm bargaining provision that said:
“The Union may request and the Employer will be obliged to negotiate [midterm] on any negotiable matters not covered by the provisions of this [basic] agreement.” Department of Interior, 52 F. L. R. A. 475, 476 (1996).
The Agency, relying on the Fourth Circuit’s view that the Statute prohibits such a provision, refused to accept, or to bargain about, the proposed clause. The Authority, reiterating its own (and the D. C. Circuit’s) contrary view, held that the Agency’s refusal to bargain amounted to an unfair labor practice. Id., at 479-481. The Statute itself, said the Authority, imposes an obligation to engage in midterm bargaining — an obligation that the proposed clause only reiterates. Id., at 479-480. And even if such an obligation did not exist under the Statute, the Authority added, a proposal to create a contractual obligation to bargain midterm is a fit subject for endterm negotiation. Id., at 480-481. Consequently, the Authority ordered the Agency to bargain over the proposed clause.
The Fourth Circuit set aside the Authority’s order. 132 F. 3d 157 (1997). The court reiterated its own view that the Statute itself does not impose any midterm bargaining duty. Id., at 161-162. That being so, it concluded, the parties should not be required to bargain endterm about including a clause that would require bargaining midterm. The court reasoned that once bargaining over such a clause began, the employer would have no choice but to accept the clause. Were the employer not to do so (by bargaining to impasse over the proposed clause), the Federal Service Impasses Panel would then inevitably insert the clause over the employer’s objection, as the Impasses Panel (like the D. C. Circuit) believes that a midterm bargaining clause would merely reiterate the duty to bargain midterm that the Statute itself imposes. Ibid.
We granted certiorari to consider the conflicting views of the Circuits.
II
We shall focus primarily upon the basic question that divided the Gircuits: Does the Statute itself impose a duty to bargain during the term of an existing labor contract? The Fourth Circuit thought that the Statute did not impose a duty to bargain midterm and that the matter was sufficiently clear to warrant judicial rejection of the contrary view of the agency charged with the Statute’s administration. SSA, supra, at 1284 (stating that “ ‘Congress has directly spoken to the precise question at issue,’” and quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984)). We do not agree with the Fourth Circuit, for we find the Statute’s language sufficiently ambiguous or open on the point as to require judicial deference to reasonable interpretation or elaboration by the agency charged with its execution. See id., at 842-845; Fort Stewart Schools v. FLRA, 495 U. S. 641, 644-645 (1990).
The D. C. Circuit, all agree that the Statute itself does not expressly address union-initiated midterm bargaining. See NTEU, supra, at 298; SSA, supra, at 1284; Brief for Petitioner FLRA in No. 97-1243, p. 18. The Statute’s relevant language simply says that federal agency employer and union representative “shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 5 U. S. C. § 7114(a)(4). It defines the key term “collective bargaining agreement” as an “agreement entered into as a result of collective bargaining.” § 7103(a)(8). And it goes on to define “collective bargaining” as involving the meeting of employer and employee representatives “at reasonable times” to “consult” and to “bargain in a good-faith effort to reach agreement with respect to the conditions of employment,” incorporating “any collective bargaining agreement reached” as a result of these negotiations in “a written document.” § 7103(a)(12). This language, taken literally, may or may not include a duty to bargain collectively midterm.
The Agency, here gues that in context, this language must exclude midterm bargaining. We shall explain why we do not agree with each of the Agency’s basic arguments.
First, the Agency a As an initial matter, it emphasizes the words “arriving at” in the Statute’s general statement that the parties must bargain “for the purposes of arriving at a collective bargaining agreement.” This statement tends to exclude midterm bargaining, the Agency contends, because parties engage in midterm bargaining, not for the purpose of arriving at, but for the purpose of supplementing, their basic, comprehensive labor contract. In other words, the basic collective-bargaining agreement is the only appropriate destination at which negotiations might “arriv[e].” The Agency adds that “collective bargaining agreement” is a term of art, which only and always refers to basic labor contracts, not to midterm agreements.
Further, while the Agency acknowledges that there is a duty to bargain midterm in the private sector, see NLRB v. Jacobs Manufacturing Co., 196 F. 2d 680 (CA2 1952), it argues that this private-sector duty is based upon language in the National Labor Relations Act (NLRA) that is different in significant respects from the language in the Statute here. The Agency explains that the NLRA defines private-sector collective bargaining to include (1) negotiation “with respect to wages, hours, and other terms and conditions of employment, or [(2)] the negotiation of an agreement, or any question arising thereunder.” 29 U. S. C. § 158(d) (emphasis added). The “or,” under this view, indicates that private-sector employers have a comprehensive duty to “bargain collectively” whether or not such bargaining is part of “the negotiation of an agreement” leading to “written contract.”
arguments, while logical, make too much of too little. One can easily read “arriving at a collective bargaining agreement5” as including an agreement reached at the conclusion of midterm bargaining, particularly because the Statute itself does no more than define the relevant term “collective bargaining agreement” in a circular way — as “an agreement entered into as a result of collective bargaining.” 5 U. S. C. § 7103(a)(8). Nor have we found any statute, judicial opinion, agency document, or treatise that says whether the words “collective bargaining agreement” are words of art that must necessarily exclude midterm agreements. Finally, the linguistic differences between the NLRA and the FSLMRS tell us little, particularly given the fact that the two labor statutes, like collective bargaining itself, are not otherwise identical in the two sectors. For all these reasons, we find in the relevant statutory language ambiguity, not certainty.
Second, the Agency — like that the Statute’s policies demand a reading of the statutory language that would exclude midterm bargaining from its definition of “collective bargaining.” The availability of midterm bargaining, the Agency argues, might lead unions to withhold certain subjects from ordinary endterm negotiations and then to raise them during the term, under more favorable bargaining conditions. A union might conclude, for example, that it is more likely to get what it wants by presenting a proposal during the term (when no other issues are on the table and a compromise is less likely) and then negotiating to impasse, thus leaving the matter for the Federal Service Impasses Panel to resolve. The Agency also points out that public-sector and private-sector bargaining differ in this respect. Private-sector unions enforce their views through strikes, and because they hesitate to strike midterm, they also have no particular incentive to bargain midterm. But public-sector unions enforce their views through compulsory arbitration, not strikes. Hence, the argument goes, public-sector unions have a unique incentive to bargain midterm on a piecemeal basis, thereby threatening to undermine the basic collective-bargaining process. See, a. g., SSA, 956 F. 2d, at 1288-1289.
Other policy concerns, argue ing of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say, a health or safety hazard, that first appeared midterm? The Statute’s emphasis upon collective bargaining as “eontributEing] to the effective conduct of public business,” 5 U. S. C. § 7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such midterm problems.
The Authority would seem better suited than a court to make the workplace-related empirical judgments that would help properly balance these, and other, policy-related considerations. The Statute does not indicate that Congress itself decided to make these specific policy judgments. Hence the Agency’s policy arguments illustrate the need for the Authority’s elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to considered Authority views on the matter; and, most importantly, they do not narrow the scope of a statutory provision the language of which is consistent with a variety of interpretations.
Third, the Agency argues that the Statute’s history and prior administrative practice support its view that federal agencies have no duty to bargain midterm. The Statute grew out of an Executive Order that previously had governed federal-sector labor relations. See Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.), as amended by Exec. Order Nos. 11616, 11636, and 11838, 3 CFR 605, 634, 957 (1971-1975 Comp.). In support, the Agency cites a ease in which an Assistant Secretary of Labor, applying that Executive Order, dismissed an unfair labor practice complaint on the ground, among others, that a federal agency need not bargain over midterm union proposals. Army and Air Force Exchange Serv., Capital Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Requests for Review of Assistant Secretary of Labor for Labor-Management Relations 561-562 (1976) (not reviewed by the Federal Labor Relations Council, predecessor to the Authority); see IRS I, 17 F. L. R. A., at 786-737, n. 7 (finding, based upon this decision, that there was no obligation to bargain over midterm union proposals under the Executive Order). A single alternative ground, however — in a single, unreviewed decision from before the Statute was enacted — does not demonstrate the kind of historical practice that one might assume would be reflected in the Statute, particularly when at least one treatise suggested at the time that federal labor relations practice was to the contrary. See H. Robinson, Negotiability in the Federal Sector 10-11, and n. 9 (1981) (stating that under the Executive Order both unions and agencies had a continuing duty to bargain through the term of a basic labor contract).
The Agency also points to a Senate Report in support its interpretation of the Statute. That Report speaks of the parties’ “mutual duty to bargain” with respect to (1) “changes in established personnel policies proposed by management,” and (2) “negotiable proposals initiated by either the agency or [the union] ... in the context of negotiations leading to a basic collective bargaining agreement.” S. Rep. No. 95-969, p. 104 (1978) (emphasis added). This Report, however, concerns a bill that contains language similar to the language before us but was not enacted into law. According to the D. C. Circuit, at least, any distinction between basic and midterm bargaining that is indicated by this passage “did not survive the rejection by Congress of the Senate’s restrictive view of the rights of labor and the importance of collective bargaining.” NTEU, 810 F. 2d, at 298. In any event, the Report’s list of possible occasions for collective bargaining does not purport to be an exclusive list; it does not say that the Statute was understood to exclude midterm bargaining; and any such implication is simply too distant to control our reading of the Statute.
Fourth, the Agency the “management rights” provision of the Statute, 5 U. S. C § 7106, does authorize limited midterm bargaining in respect to certain matters (not here at 'issue), and that by negativ< implication it denies permission to bargain midterm in re spect to any others. See, e. g., SSA, supra, at 1284 (“Th inclusion of a specific duty of midterm effects bargainin;
. . . suggests the duty into the statute”). Our examination of that provisior however, finds little support for such a strong negative implication.
Subsection (a) of the management rights provision withdraws from collective bargaining certain subjects that it reserves exclusively for decision by management. It specifies, for example, that federal agency “management offieial[s]” will retain their authority to hire, fire, promote, and assign work, and also to determine the agency’s “mission, budget, organization, number of employees, and internal security practices.” § 7106(a).
Subsection (b), however, permits a certain amount of collective bargaining in respect to the very subjects that subsection (a) withdrew. Subsection (b) states:
“Nothing in this section shall preclude any agency and any labor organization from negotiating—
the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
procedures which management officials . . . will observe in exercising any authority under this section; or
“(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.” § 7106(b) (emphasis added).
The two subsections of the management rights provision, taken together, do not help the Agency. While the provision contemplates that bargaining over the impact and implementation of management changes may take place during the term of the basic labor contract, subsection (b) need not be read to actually impose a duty to bargain midterm. The italicized clause, “[njothing in this section shall preclude,” indicates only that the delegation of certain rights to management (e. g., promotions) shall not preclude negotiations about certain related matters (e. g., promotion procedures). By its terms, then, subsection (b) does nothing more than create an exception to subsection (a), preserving the duty to bargain with respect to certain matters otherwise committed to the discretion of management. Because § 7106(b) chiefly addresses the subject matter of bargaining and not the timing, one could reasonably conclude that while that subsection contemplates midterm bargaining in the circumstances there specified, the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the management rights provision seems to hurt, as much as to help, the Agency’s basic argument.
The upshot of this analysis the Fourth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute’s use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit’s absolute reading of the Statute and also with the D. C. Circuit’s similarly absolute, but opposite, reading. Compare SSA, 956 F. 2d, at 1284, with NTEU, 810 F. 2d, at 301 (rejecting the Authority’s position that there is no duty to bargain midterm on the ground that it is “contrary to the intent of the legislature and the guiding purpose of the statute”). Indeed, the D. C. Circuit’s analysis implicitly concedes the need to make at least some midterm bargaining distinctions, when it assumes that the midterm bargaining obligation does not extend to matters that are covered by the basic contract. See id., at 296.
The statutory ambiguity is perfectly consistent, with the conclusion that Congress delegated to the Authority the power to determine — within appropriate legal bounds, see, e.g., 5 U. S. C. §706 (Administrative Procedure Act); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 887 (1984) — whether, when, where, and what sort of midterm bargaining is required. The Statute’s delegation of rulemaking, adjudieatory, and policymaking powers to the Authority supports this conclusion. See 5 U. S. C. § 7105(a)(1) (“Authority shall provide leadership in establishing policies and guidance”); § 7105(a)(2)(E) (Authority “resolves issues relating to the duty to bargain in good faith”); § 7117(c) (Authority resolves disputes about whether the duty to bargain in good faith extends to a particular matter); accord, American Federation of Govt. Employees, Local 2986, AFL-CIO v. FLRA, 775 F. 2d 1022, 1027 (CA9 1985); American Federation of Govt. Employees, AFL-CIO, Council of Soc. Sec. Dist. Office Locals, San Francisco Region v. FLRA, 716 F. 2d 47, 50 (CADC 1983). This conclusion is also supported by precedent recognizing the similarity of the Authority’s public-sector and the National Labor Relations Board’s private-sector roles. As we have recognized, the Authority’s function is “to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act,” and it “is entitled to considerable deference when it exercises its ‘special function of applying the general provisions of the Act to the complexities’ of federal labor relations.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 97 (1983) (quoting NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963)).
We conclude that Congress “left” the matters of whether, when, and where midterm bargaining is required “to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Chevron, supra, at 865-866.
Ill
The specific question before us is whether an agency must bargain endterm about including in the basic labor contract a clause that would require certain forms of midterm bargaining. As is true of midterm bargaining itself, and for similar reasons, the Statute grants the Authority leeway (within ordinary legal limits) in answering that question as well.
The Authority says its own judgment, that the parties must bargain over such a provision. Our reading of its relevant administrative determinations, however, leads us to conclude that its judgment on the matter was occasioned by the D. C. Circuit’s holding that the Statute must be read to impose on agencies a duty to bargain midterm. See, e. g., Merit Systems Protection Bd. Professional Assn., 30 F. L. R. A. 852, 859-860 (1988) (midterm bargaining clause is negotiable because it “reiterates a right the Union has under the Statute”); 52 F. L. R. A., at 479 (in the instant suit, restating that same conclusion). The Authority did indicate below that even if it agreed with the Fourth Circuit’s position that the Statute does not impose a duty to bargain midterm, the outcome in this litigation would be no different, as the Authority “ ‘has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question.’ ” Id., at 480 (quoting Department of Energy, 51 F. L. R. A. 124, 127 (1995), enf. denied, Department of Energy v. FLRA, 106 F. 3d 1158 (CA4 1997)). This explanation, however, seems more an effort to respond to, and to distinguish, a contrary judicial authority, rather than an independently reasoned effort to develop complex labor policies. Regardless, the Authority’s conclusion would seem linked to the D. C. Circuit’s basic understanding about the statutory requirements.
In our resolve the question of midterm bargaining, nor the related question of bargaining about midterm bargaining, we believe the Authority should have the opportunity to consider these questions aware that the Statute permits, but does not compel, the conclusions it reached.
The judgment of the Fourth Circuit is vacated, and the cases are remanded for further proceedings consistent with this opinion.
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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[
46
] |
MACKEY, REGISTRAR OF MOTOR VEHICLES OF MASSACHUSETTS v. MONTRYM
No. 77-69.
Argued November 29, 1978
Decided June 25, 1979
Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 19.
Mitchell J. Sikora, Jr., Assistant Attorney General of Massachusetts, argued the cause for appellant. With him on the briefs were Francis X. Bellotti, Attorney General, and S. Stephen Bosenfeld and Steven A. Rusconi, Assistant Attorneys General.
Robert W. Hagopixm argued the cause and filed a brief for appellee.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The question presented by this appeal is whether a Massachusetts statute that mandates suspension of a driver’s license because of his refusal to take a breath-analysis test upon arrest for driving while under the influence of intoxicating liquor is void on its face as violative of the Due Process Clause of the Fourteenth Amendment.
Commonly known as the implied consent law, the Massachusetts statute provides:
“Whoever operates a motor vehicle upon any [public] way . . . shall be deemed to have consented to submit to a chemical test or analysis of his breath in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor. ... If the person arrested refuses to submit to such test or analysis, after having been informed that his license ... to operate motor vehicles ... in the commonwealth shall be suspended for a period of ninety days for such refusal, no such test or analysis shall be made, but the police officer before whom such refusal was made shall immediately prepare a written report of such refusal[, which] . . . shall be endorsed by a third person who shall have witnessed such refusal[,] . . . shall be sworn to under the penalties of perjury by the police officer before whom such refusal was madejj,] . . . shall set forth the grounds for the officer's belief that the person arrested had been driving a motor vehicle . . . while under the influence of intoxicating liquor, and shall state that such person had refused to submit to such chemical test or analysis when requested by such police officer to do so. Each such report shall be endorsed by the police chief . . . and shall be sent forthwith to the registrar. Upon receipt of such report, the registrar shall suspend any license or permit to operate motor vehicles issued to such person . . . for a period of ninety days.” Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (WestSupp. 1979).
I
While driving a vehicle in Acton, Mass., appellee Donald Montrym was involved in a collision about 8:15 p. m. on May 15, 1976. Upon arrival at the scene of the accident an Acton police officer observed, as he wrote in his official report, that Montrym was “glassy eyed,” unsteady on his feet, slurring his speech, and emitting a strong alcoholic odor from his person. The officer arrested Montrym at 8:30 p. m. for operating his vehicle while under the influence of intoxicating liquor, driving to endanger, and failing to produce his motor vehicle registration upon request. Montrym was then taken to the Acton police station.
There, Montrym was asked to take a breath-analysis examination at 8:45 p. m. He refused to do so. Twenty minutes after refusing to take the test and shortly after consulting his lawyer, Montrym apparently sought to retract his prior refusal by asking the police to administer a breath-analysis test. The police declined to comply with Montrym’s belated request. The statute leaves an officer no discretion once a breath-analysis test has been refused: “If the person arrested refuses to submit to such test or analysis, . . . the police officer before whom such refusal was made shall immediately prepare a written report of such refusal.” §24(l)(f) (emphasis added). The arresting officer completed a report of the events, including the refusal to take the test.
As mandated by the statute, the officer’s report recited (a) the fact of Montrym’s arrest for driving while under the influence of intoxicating liquor, (b) the grounds supporting that arrest, and (c) the fact of his refusal to take the breath-analysis examination. As required by the statute, the officer’s report was sworn to under penalties of perjury, and endorsed by the arresting officer and another officer present when Mon-trym refused to take the test; it was counter endorsed by the chief of police. The report was then sent to the Massachusetts Registrar of Motor Vehicles pursuant to the statute.
On June 2, 1976, a state court dismissed the complaint brought against Montrym for driving while under the influence of intoxicating liquor. Dismissal apparently was predicated on the refusal of the police to administer a breath-analysis test at Montrym’s request after he sought to retract his initial refusal to take the test. The dismissal order of the state court cryptically recites:
“Dismissed. Breathalyzer refused when requested within % hr of arrest at station. See affidavit & memorandum.”
According to Montrym’s affidavit incorporated by reference in the state court’s dismissal order, he was visited by an attorney at 9:05 o’clock on the night of his arrest; and, after consulting with counsel, he requested a breath-analysis test. The police, however, refused the requests made by Montrym and his counsel between 9:07 and 10:07 p. m.
Montrym’s attorney immediately advised the Registrar by letter of the dismissal of this charge and asked that the Registrar stay any suspension of Montrym’s driver’s license. Enclosed with the letter was a copy of Montrym’s affidavit attesting to the officer’s refusal to administer a breath-analysis test at his request. However, Montrym’s attorney did not enclose a certified copy of the state court’s order dismissing the charge.
The Registrar, who has no discretionary authority to stay a suspension mandated by the statute, formally suspended Montrym’s license for 90 days on June 7, 1976. The suspension notice stated that it was effective upon its issuance and directed Montrym to return his license at once. It advised Montrym of his right to appeal the suspension.
When. Montrym received the suspension notice, his attorney requested an appeal on the question of whether Montrym had in fact refused a breath-analysis test within the meaning of the statute. Montrym surrendered his license by mail on June 8; 1976.
Under the Massachusetts statute, Montrym could have obtained an immediate hearing before the Registrar at any time after he had surrendered his license; that hearing would have resolved all questions as to whether grounds existed for the suspension. For reasons not explained, but presumably on advice of counsel, Montrym failed to exercise his right to a hearing before the Registrar; instead, he took an appeal to the Board of Appeal. On June 24, 1976, the Board of Appeal advised Montrym by letter that a hearing of his appeal would be held on July 6, 1976.
Four days later, Montrym’s counsel made demand upon the Registrar by letter for the return of his driver’s license. The letter reiterated Montrym’s acquittal of the driving-under-the-influence charge, asserted that the state court’s finding that the officer had refused to administer a breath-analysis test was binding on the Registrar, and declared that suspension of Montrym’s license without first holding a hearing violated his right to due process. The letter did not contain a copy of the state court’s dismissal order, but did threaten the Registrar with suit if the license were not returned immediately. Had Montrym’s counsel enclosed a copy of the order dismissing the drunken-driving charge, the entire matter might well have been disposed of at that stage without more.
Thereafter, forgoing his administrative appeal scheduled for hearing on July 6, Montrym brought this action asking the convening of a three-judge United States District Court. The complaint alleges that § 24 (1) (f) is unconstitutional on its face and as applied in that it authorized the suspension of Montrym’s driver’s license without affording him an opportunity for a presuspension hearing. Montrym sought a temporary restraining order enjoining the suspension of his license, compensatory and punitive damages, and declaratory and injunctive relief on behalf of all persons whose licenses had been suspended pursuant to the statute without a prior hearing.
On July 9, 1976, a single District Judge issued the temporary restraining order sought by Montrym and directed the Registrar to return Montrym’s license pending further order of the court. Subsequently, a three-judge District Court was convened pursuant to 28 U. S. C. §§ 2281 (1970 ed.), 2284, and Montrym moved for partial summary judgment on stipulated facts.
With one judge dissenting, the three-judge District Court granted Montrym’s motion. Relying principally on this Court’s decision in Bell v. Burson, 402 U. S. 535 (1971), the District Court concluded that Montrym was entitled as a matter of due process to some sort of a presuspension hearing before the Registrar to contest the allegation of his refusal to take the test. In a partial summary judgment order issued on April 4, and a final judgment order issued on April 12, the District Court certified the suit under Fed. Rule Civ. Proc. 23 (b) (2) as a class action on behalf of all persons whose licenses to operate a motor vehicle had been suspended pursuant to Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979). The court then declared the statute unconstitutional on its face as violative of the Due Process Clause, permanently enjoined the Registrar from further enforcing the statute, and directed him to return the driver’s licenses of the plaintiff class members. Montrym v. Panora, 429 F. Supp. 393 (Mass. 1977).
After taking timely appeals from the District Court’s judgment orders, the Registrar moved the District Court for a stay and modification of its judgment, which motions were denied. After release of our opinion in Dixon v. Love, 431 U. S. 105 (1977), upholding the constitutionality of an Illinois statute authorizing the summary suspension of a driver’s license prior to any evidentiary hearing, the Registrar moved for reconsideration of his motions for a stay and modification of judgment.
In a second opinion issued October 6, 1977, the District Court reasoned that Love was distinguishable on several grounds and denied the Registrar’s motion to reconsider; the dissenting judge thought Love controlled. Montrym v. Panora, 438 F. Supp. 1157 (Mass. 1977).
We noted probable jurisdiction following the submission of supplemental briefs by the parties. Sub nom. Panora v. Montrym, 435 U. S. 967 (1978). We reverse.
II
The Registrar concedes here that suspension of a driver’s license for statutorily defined cause implicates a protectible property interest; accordingly, the only question presented by this appeal is what process is due to protect against an erroneous deprivation of that interest. Resolution of this inquiry requires consideration of a number of factors:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976).
Applying this balancing test, the District Court concluded due process required an opportunity for hearing before suspension of a license. 429 F. Supp., at 398-400. Later, the court further held that our decision in Dixon v. Love, supra, did not control. Love was thought distinguishable because the potential for irreparable personal and economic hardship was regarded as greater under the Massachusetts statutory scheme than the Illinois scheme; the risk of error was deemed more substantial as well; and requiring a hearing before suspending a driver’s license for refusing to take a breath-analysis test was believed not to offend the state interest in safe highways. 438 F. Supp., at 1159-1161.
We conclude that Love cannot be materially distinguished from the case before us. Both cases involve the constitutionality of a statutory scheme for administrative suspension of a driver’s license for statutorily defined cause without a pre-suspension hearing. In each, the sole question presented is the appropriate timing of the legal process due a licensee. And, in both cases, that question must be determined by reference to the factors set forth in Eldridge.
A
The first step in the balancing process mandated by Eldridge is identification of the nature and weight of the private interest affected by the official action challenged. Here, as in Love, the private interest affected is the granted license to operate a motor vehicle. More particularly, the driver’s interest is in continued possession and use of his license pending the outcome of the hearing due him. As we recognized in Love, that interest is a substantial one, for the Commonwealth will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures. 431 U. S., at 113.
But, however substantial Montrym’s property interest may be, it is surely no more substantial than the interest involved in Love. The private interest involved here actually is less substantial, for the Massachusetts statute authorizes suspension for a maximum of only 90 days, while the Illinois scheme permitted suspension for as long as a year and even allowed for the possibility of indefinite revocation of a license.
To be sure, as the District Court observed, the Illinois statute in Love contained provisions for hardship relief unavailable under the Massachusetts statute. Though we adverted to the existence of such provisions in Love, they were in no sense the “controlling” factor in our decision that the District Court believed them to be. 438 F. Supp., at 1159. Hardship relief was available under the Illinois scheme only after a driver had been suspended and had demonstrated his eligibility for such relief. See Dixon v. Love, 431 U. S., at 114 n. 10. The bearing such provisions had in Love stemmed from the delay involved in providing a postsuspension hearing. Here, unlike the situation in Love, a postsuspension hearing is available immediately upon a driver's suspension and may be initiated by him simply by walking into one of the Registrar’s local offices and requesting a hearing. The Love statute, in contrast, did not mandate that a date be set for a postsuspension hearing until 20 days after a written request for such a hearing was received from the affected driver. Id., at 109-110.
The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved. Fusari v. Steinberg, 419 U. S. 379, 389 (1975). The District Court’s failure to consider the relative length of the suspension periods involved in Love and the case at bar, as well as the relative timeliness of the postsuspension review available to a suspended driver, was erroneous. Neither the nature nor the weight of the private interest involved in this case compels a result contrary to that reached in Love.
B
Because a primary function of legal process is to minimize the risk of erroneous decisions, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 12-13 (1979); Addington v. Texas, 441 U. S. 418, 423 (1979), the second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used. And, although this aspect of the Eld-ridge test further requires an assessment of the relative reliability of the procedures used and the substitute procedures sought, the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible “property” or “liberty” interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations. Oreenholtz v. Nebraska Penal Inmates, supra, at 7. Thus, even though our legal tradition regards the adversary process as the best means of ascertaining truth and minimizing the risk of error, the “ordinary principle” established by our prior decisions is that “something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Dixon v. Love, supra, at 113. And, when prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be. See, e. g., Barry v. Barchi, post, at 64-65; Mathews v. Eldridge, 424 U. S., at 334.
As was the case in Love, the predicates for a driver’s suspension under the Massachusetts scheme are objective facts either within the personal knowledge of an impartial government official mr readily ascertainable by him. Cause arises for license suspension if the driver has been arrested for driving while under the influence of an intoxicant, probable cause exists for arrest, and the driver refuses to take a breath-analysis test. The facts of the arrest and the driver’s refusal will inevitably be within the personal knowledge of the reporting officer; indeed, Massachusetts requires that the driver’s refusal be witnessed by two officers. At the very least, the arresting officer ordinarily will have provided the driver with an informal opportunity to tell his side of the story and, as here, will have had the opportunity to observe the driver’s condition and behavior before effecting qny arrest.
The District Court, in holding that the Due Process Clause mandates that an opportunity for a further hearing before the Registrar precede a driver’s suspension, overstated the risk of error inherent in the statute’s initial reliance on the corroborated affidavit of a law enforcement officer. The officer whose report of refusal triggers a driver’s suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process. And, as he is personally subject to civil liability for an unlawful arrest and to criminal penalties for willful misrepresentation of the facts, he has every incentive to ascertain accurately and truthfully report the facts. The specific dictates of due process must be shaped by “the risk of error inherent in the truthfinding process as applied to the generality of cases” rather than the “rare exceptions.” Mathews v. Eldridge, supra, at 344. And, the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial.
Moreover, as this case illustrates, there will rarely be any genuine dispute as to the historical facts providing cause for a suspension. It is significant that Montrym does not dispute that he was arrested, or that probable cause existed for his arrest, or that he initially refused to take the breath-analysis test at the arresting officer’s request. The allegedly “factual” dispute that he claims a constitutional right to raise and have determined by the Registrar prior to his suspension really presents questions of law; namely, whether the state court’s subsequent finding that the police later refused to administer a breath-analysis test at Montrym’s request is binding on the Registrar as a matter of collateral estoppel; and, if so, whether that finding undermines the validity of Montrym’s suspension, which may well be justified under the statute solely on the basis of Montrym’s initial refusal to take the breath-analysis test and notwithstanding the officer’s subsequent refusal to honor Montrym’s belated request for the test. The Commonwealth must have the authority, if it is to protect people from drunken drivers, to require that the breath-analysis test record the alcoholic content of the bloodstream at the earliest possible moment.
Finally, even when disputes as to the historical facts do arise, we are not persuaded that the risk of error inherent in the statute’s initial reliance on the representations of the reporting officer is so substantial in itself as to require that the Commonwealth stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence. Cf. Barry v. Barchi, post, at 64-65. All that Montrym seeks was available to him immediately upon his suspension, and we believe that the “same day” hearing before the Registrar available under § 24 (l)(g) provides an appropriately timely opportunity for the licensee to tell his side of the story to the Registrar, to obtain correction of clerical errors, and to seek prompt resolution of any factual disputes he raises as to the accuracy of the officer’s report of refusal.
Nor would the avowedly “nonevidentiary” presuspension hearing contemplated by the District Court substantially enhance the reliability of the presuspension process. Clerical errors and deficiencies in the officer's report of refusal, of course, could be called to the Registrar’s attention if the driver were provided with an opportunity to respond to the report in writing prior to suspension. But if such errors and deficiencies are genuinely material they already will have been noted by the Registrar in the ordinary course of his review of the report. Just as the Registrar has no power to stay a suspension upon receipt of a report of refusal that complies on its face with statutory requirements, he has no power to suspend a license if the report is materially defective. Necessarily, then, the Registrar must submit the officer’s report to his independent scrutiny. This independent review of the report of refusal by a detached public officer should suffice in the ordinary case to minimize the only type of error that could be corrected by something less than an evidentiary hearing.
The only other purpose that might be served by an opportunity to respond to the report of refusal prior to a driver’s suspension would be alerting the Registrar to the existence of factual disputes between the driver and the reporting officer. This would be an exercise in futility, for the Registrar has no discretion to stay a suspension pending the outcome of an evidentiary hearing. And, it simply begs the question of a driver’s right to a presuspension evidentiary hearing to suggest, as did the District Court, that the Registrar be given such discretion. The Massachusetts Legislature has already made the discretionary determination that the District Court apparently would have the Registrar make on a case-by-case basis. It has determined that the Registrar, who is further removed in time and place from the operative facts than the reporting officer, should treat a report of refusal that complies on its face with the statutory requirements as presumptively accurate notwithstanding any factual disputes raised by a driver. Simply put, it has determined that the Registrar is not in a position to make an informed probable-cause determination or exercise of discretion prior to an evi-dentiary hearing. We cannot say the legislature’s judgment in this matter is irrational.
In summary, we conclude here, as in Love, that the risk of error inherent in the presuspension procedures chosen by the legislature is not so substantial in itself as to require us to depart from the “ordinary principle” that “something less than an evidentiary hearing is sufficient prior to adverse administrative action.” 431 U. S., at 113. We fail to see how reliability would be materially enhanced by mandating the presuspension “hearing” deemed necessary by the District Court.
C
The third leg of the Eldridge balancing test requires us to identify the governmental function involved; also, to weigh in the balance the state interests served by the summary procedures used, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.
Here, as in Love, the statute involved was enacted in aid of the Commonwealth’s police function for the purpose of protecting the safety of its people. As we observed in Love, the paramount interest the Commonwealth has in preserving the safety of its public highways, standing alone, fully distinguishes this case from Bell v. Burson, 402 U. S., at 539, on which Montrym and the District Court place principal reliance. See 431 U. S., at 114-115. We have traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety. States surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or destroying spoiled foodstuffs. E. g., Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); North American Storage Co. v. Chicago, 211 U. S. 306 (1908).
The Commonwealth’s interest in public safety is substantially served in several ways by the summary suspension of those who refuse to take a breath-analysis test upon arrest. First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.
The summary and automatic character of the suspension sanction available under the statute is critical to attainment of these objectives. A presuspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test and demand a presuspension hearing as a dilatory tactic. Moreover, the incentive to delay arising from the availability of a presuspension hearing would generate a sharp increase in the number of hearings sought and therefore impose a substantial fiscal and administrative burden on the Commonwealth. Dixon v. Love, 431 U. S., at 114.
Nor is it any answer to the Commonwealth’s interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for policy reasons of its own, elects not to summarily suspend those drivers who do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth’s strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the “drunken driving” issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an “all or nothing” approach to the acute safety hazards posed by drunken drivers.
We conclude, as we did in Love, that the compelling interest in highway safety justifies the Commonwealth in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available.
Accordingly, the judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Montrym does not deny having refused the test; he claims that he was not advised of the mandatory 90-day suspension penalty prior to his refusal, as required by the statute; however, the officer’s report of refusal asserts that Montrym was given the required prior warning.
Montrym was also acquitted on the driving-to-endanger charge but was found guilty on the registration charge and fined $15.
It provides in relevant part:
“Upon receipt of such report [of refusal], the registrar shall suspend any license . . . issued to such person ... for a period of ninety days.” Mass. Gen. Laws Ann., ch. 90, §24 (1)(f) (West Supp. 1979) (emphasis added).
Massachusetts Gen. Laws Ann., ch. 90, §28 (West 1969), provides that any person aggrieved by a ruling of the Registrar may appeal such ruling to the Board of Appeal, which may, after a hearing, order such ruling to be affirmed, modified, or annulled. However, no such appeal shall operate to stay any ruling of the Registrar. In turn, the Board’s decision is subject to judicial review. Mass. Gen. Laws Ann., ch. 30A, § 14 (West 1979).
Massachusetts Gen. Laws Ann., ch. 90, §24(l)(g) (West 1969), provides:
“Any person whose license, permit or right to operate has been suspended under paragraph (/) shall be entitled to a hearing before the registrar which shall be limited to the foEowing issues: (1) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle whEe under the influence of intoxicating liquor upon any [public] way . . . , (2) was such person placed under arrest, and (3) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shaE reinstate such license, permit or right to operate.”
As stipulated by the parties, the § 24 (1) (g) hearing is available the moment the driver surrenders his license. At the hearing, the suspended driver may be represented by counsel. Upon request, a hearing officer will examine the report of refusal and return the driver’s license immediately if the report does not comply with the requirements of § 24 (1) (f). If the report complies with those requirements, the burden is on the driver to show either that he was not arrested, that there was no probable cause for arrest, or that he did not refuse to take the breath-analysis test. The hearing may be adjourned at the request of the driver or sua sponte by the hearing officer in order to permit the attendance of witnesses or for the gathering of relevant evidence. Witnesses at the hearing are subject to cross-examination by the driver or his attorney, and he may appeal an adverse decision of the Registrar to the Board of Appeal pursuant to § 28.
The Registrar has represented to the Court that a driver can obtain a decision from the hearing officer within one or two days following the driver’s receipt of the suspension notice. Montrym asserts that greater delay will occur if the driver raises factual issues requiring the taking of evidence. But, even under his more pessimistic view, which takes into account the possibility of intervening weekends, the driver will obtain a decision from the hearing officer within 7 to 10 days.
Because the District Court held the statute unconstitutional on its face and granted classwide relief, it never reached the “as applied” challenge raised in Montrym’s complaint; nor do we. The validity of that challenge, and the resolution of any contested factual issues relevant to it, must be determined by the District Court on remand in light of our opinion.
Also, the question of whether the Commonwealth is constitutionally required to give notice of the § 24 (1) (g) hearing procedure independent of the notice given by the statute itself was neither framed by the pleadings nor decided by the District Court; it is not properly before us notwithstanding the observations of the dissenting opinion on this issue. See post, at 27-28, and n. 4.
That the Due Process Clause applies to a state's suspension or revocation of a driver’s license is clear from our decisions in Dixon v. Love, 431 U. S. 105, 112 (1977), and Bell v. Burson, 402 U. S. 535, 539 (1971).
An evidentiary hearing into the historical facts would be ill suited for resolution of such questions of law. Indeed, it is not clear whether the Registrar even has the plenary authority to resolve such questions. Ultimately, any legal questions must be resolved finally by the Massachusetts courts on judicial review of the decision of the Board of Appeal after any appeal taken from the ruling of the Registrar. See n. 4, supra.
Drunken drivers accounted for 283 of the 884 traffic fatalities in Massachusetts during 1975 alone and must have been responsible for countless other injuries to persons and property. App. 31. More people were killed in alcohol-related traffic accidents in a year in this one State than were killed in the tragic DC-10 crash at O’Hare Airport in May 1979. Traffic deaths commonly exceed 50,000 annually in the United States, and approximately one-half of these fatalities are alcohol related. See U. S. Dept. of Transportation, 1977 Highway Safety Act Report App. A-9 (Table A — 1); U. S. Dept. of Health, Education, and Welfare, Third Special Report on Alcohol and Health 61 (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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"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
] |
NIUKKANEN, alias MACKIE, v. McALEXANDER, ACTING DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 130.
Argued March 21, 1960.
Decided April 18, 1960.
Joseph Foret and Neis Peterson argued the cause for petitioner. With Mr. Peterson on the brief was Reuben Lenske.
Oscar H. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Julia Cooper.
Blanch Freedman filed a brief for the American Committee for Protection of Foreign Born, as amicus curiae, urging reversal.
Per Curiam.
The petitioner sought relief from an order directing his deportation on the ground that as an alien he had become, after entering the United States, a ihember of the Communist Party within the meaning of the Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006. The District Court, after hearing, denied the petition, 148 F. Supp. 106, and the Court of Appeals affirmed. 241 F. 2d 938. Invoking Rowoldt v. Perfetto, 355 U. S. 115, decided after the order for his deportation, petitioner sought an administrative reconsideration of his status. Upon its denial by the Board of Immigration Appeals he began the judicial proceeding immediately before us for review. After a hearing, the District Court again denied his petition for relief and the Court of Appeals affirmed the order of the District Court. 265 F. 2d .825. The ultimate question is whether petitioner is subject to deportation under Galvan v. Press, 347 U. S. 522, or is saved from it under Rowoldt v. Perfetto, supra. The determination of this issue turns on evaluation of the testimony before the District Court, in light of Galvan v. Press, supra, and Rowoldt v. Perfetto, supra. Such assessment largely depends on the credibility of the testimony on which the district judge based his judgment, particularly that of the petitioner himself, whom the judge saw and heard. An able judge found that petitioner in denying membership in the Communist Party, unlike Rowoldt who admitted membership, see 355 U. S., at 116-117, but accounted for its innocence, “perjured himself before, and I believe that he perjured himself today.” We cannot say that his findings, affirmed by the Court of Appeals, were clearly erroneous and do not support the conclusion of both the lower courts.
Judgment 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"
] |
[
6
] |
IMMIGRATION AND NATURALIZATION SERVICE v. PANGILINAN et al.
No. 86-1992.
Argued February 24, 1988
Decided June 17, 1988
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Stevens, and O’Connor, JJ., joined. Blackmun, J., concurred in the result. Kennedy, J., took no part in the consideration or decision of the cases.
Robert H. Klonoff argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and Marshall Tamor Golding.
Donald L. Ungar argued the cause for respondents. With him on the brief for respondent Pangilinan et al. were Robert A. Mautino, Bill Ong Ring, and Susan Lydon. Robert A. Mautino filed briefs for respondents Litonjua and Manzano.
Together with No. 86-2019, Immigration and Naturalization Service v. Manzano, also on certiorari to the same court.
Justice Scalia
delivered the opinion of the Court.
The respondents, 16 Filipino nationals who served with the United States Armed Forces during World War II, claim they are entitled to apply for and receive American citizenship under a special immigration statute that expired over 40 years ago, §§ 701 to 705 of the Nationality Act of 1940, Ch. 876, 54 Stat. 1137, as amended by the Second War Powers Act of 1942, § 1001, Ch. 199, 56 Stat. 182, 8 U. S. C. §§ 1001 to 1005 (1940 ed., Supp. V) (1940 Act). In the decisions below the Ninth Circuit has, for the third time, ordered naturalization under that expired provision. See Mendoza v. United States, 672 F. 2d 1320 (CA9 1982), rev’d, 464 U. S. 154 (1984); INS v. Hibi, 475 F. 2d 7 (CA9), rev’d, 414 U. S. 5 (1973). In part because the decision below was in direct conflict with the Second Circuit’s decision in Olegario v. United States, 629 F. 2d 204 (CA2 1980), cert. denied, 450 U. S. 980 (1981), we granted certiorari.
H — I
¡>
In March 1942, Congress amended the immigration laws to make American citizenship more readily available to aliens who served honorably in the United States Armed Forces during World War II. As amended at that time, § 701 of the 1940 Nationality Act exempted those aliens from such naturalization requirements as five years of residency in the United States and proficiency in the English language. ' Section 702 authorized representatives designated by the Commissioner of Immigration and Naturalization to receive petitions, conduct hearings, and grant naturalization outside the United States. And §705 authorized the Commissioner, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of §§701 and 702.
Over the next three years, approximately 7,000 Filipino soldiers were naturalized as American citizens in places outside the Philippine Islands (which were occupied during that entire period by Japan). Most of these were naturalized by courts in this country, but at least 1,000 others were naturalized by immigration officials appointed under § 702, traveling from post to post on rotation throughout England, Iceland, North Africa, and the islands of the Pacific. See Hibi, 414 U. S., at 10 (Douglas, J., dissenting). After the Philippines were liberated from Japanese occupation in August 1945, George Ennis, the American Vice Consul in Manila, was designated to naturalize aliens pursuant to the 1940 Act. Almost immediately after that, the Philippine Government began to express its concern that a mass migration of newly naturalized veterans would drain the country of essential manpower, undermining postwar reconstruction efforts in the soon-to-be independent country. Accordingly, on September 13, 1945, the Commissioner recommended to Attorney General Clark that Vice Consul Ennis’ naturalization authority be revoked. On October 26, 1945, Ennis was informed of that revocation. For the next nine months no official with § 702 authority to receive and act upon petitions for naturalization was present in the Philippines, the Immigration and Naturalization Service (INS) apparently taking the position that appointment of such an official was authorized but not mandated. Not until August 1946 did the INS designate a new § 702 official for the Philippines, who naturalized approximately 4,000 Filipinos before the December 31, 1946, expiration date of the 1940 Act.
B
Attorney General Clark’s revocation of Vice Consul Ennis’ naturalization authority during those nine months of 1945 and 1946 has led to a stream of litigation involving efforts by Filipino veterans to obtain naturalization under the expired 1940 Act. In the suits we have before us here, all of the respondents except Mario Valderrama Litonjua and Bonifacio Lorenzana Manzano filed their petitions in the United States District Court for the Northern District of California. The INS has stipulated that all of these 14 respondents (the Pangilinan respondents) were eligible for naturalization under the 1940 Act and were present in the Philippines during the period from October 1945 to August 1946, though they had not taken affirmative steps to be naturalized before the cutoff date. The naturalization examiner who handled these cases recommended against naturalization, and the District Court decided against naturalization, relying on the Second Circuit’s decision in Olegario. The naturalization petitions were consolidated for purposes of appeal to the Ninth Circuit.
Respondent Litonjua’s petition for naturalization was filed in the United States District Court for the Southern District of California. Litonjua had served as a member of the United States Navy from May 1941 to April 1946, but had made no effort to apply for naturalization while on active duty. He made preliminary efforts to obtain citizenship while working as a civilian employee of the United States Army in Seattle, Washington, after his discharge, but he did not complete the petition process before the December 31, 1946, cutoff date. The naturalization examiner recommended against naturalization, and the District Court concurred, for reasons similar to those adopted by the District Court in Pangilinan.
Respondent Manzano also petitioned for naturalization in the Southern District of California. His situation was the same as that of the Pangilinan respondents, except that he claims that in July 1946, after completing his military service, he specifically inquired at the American Embassy in the Philippines about the possibility of obtaining citizenship but was told there was no longer anyone there to assist him. The District Court, following the recommendation of the naturalization examiner, denied the petition for reasons similar to those adopted by the District Courts in Pangilinan and Litonjua.
The appeals of the Pangilinan respondents and Litonjua were filed in 1980 and 1981 and were consolidated by the Court of Appeals (No. 86-1992). Manzano’s appeal (No. 86-2019) was filed later and assigned to a different panel. The Ninth Circuit initially decided the Pangilinan-Litonjua consolidated cases by relying on the collateral-estoppel theory of its Mendoza decision, which had not yet been reversed by this Court. We vacated that judgment in light of our ruling in Mendoza. INS v. Litonjua, 465 U. S. 1001 (1984), vacating and remanding Barretto v. United States, 694 F. 2d 603 (CA9 1982). On remand, the Ninth Circuit held that the revocation of Vice Consul Ennis’ naturalization authority violated what it characterized as the mandatory language of §§702 and 705 of the 1940 Act, and that the naturalization of the respondents was an appropriate equitable remedy. Pangilinan v. INS, 796 F. 2d 1091 (CA9 1986). After this decision was announced, the panel in No. 86-2019 reversed and remanded to the District Court for reconsideration in light of the Pangilinan decision, characterizing the two cases as nearly identical. In 86-1992, the INS’ petition for rehearing with suggestion -for rehearing en banc was denied, with Judge Kozinski (writing for himself and seven others) dissenting. Pangilinan v. INS, 809 F. 2d 1449 (CA9 1987). We granted the INS’ petition for a writ of certiorari. 484 U. S. 814 (1987).
II
A
Article I, § 8, cl. 4, of the Constitution provides: “The Congress shall have Power . . . [t]o establish an uniform Rule of Naturalization . . . .” Sections 701, 702, and 705 of the amended 1940 Act, set forth in the margin above, constitute a complete description of the extent of the liberalized naturalization rights conferred under that exclusive constitutional authority in 1942. Section 701 explicitly limits the benefits to those who filed petitions no later than December 31,1946. Moreover, Congress has again exercised its exclusive constitutional power to provide that any petition for naturalization filed on or after September 26, 1961, will be heard and determined under the 1952 Nationality Act, as amended. See § 310(e), 75 Stat. 656, 8 U. S. C. § 1421(e). Respondents concede that they are not entitled to be naturalized under that law. Brief for Respondent Pangilinan in Opposition 12-13. Since all the petitions for naturalization in this case were filed after December 31, 1946, and even after September 26, 1961, it is incontestable (and uncontested) that respondents have no statutory right to citizenship.
In INS v. Hibi, 414 U. S. 5 (1973), we summarily reversed the holding of the Ninth Circuit that the same official acts alleged here gave rise to an estoppel that prevented the Government from invoking the December 31, 1946, cutoff in the 1940 Act. We said that normal estoppel rules applicable to private litigants did not apply to the INS since, “in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, [the INS] is enforcing the public policy established by Congress.” Id., at 8.
Although the Ninth Circuit’s holding in the present cases rests upon a somewhat different theory — not that estoppel eliminates the effectiveness of the December 31, 1946, cutoff, but that equitable authority to craft a remedy enables the conferral of citizenship despite that cutoff — we think our reasoning in Hibi quite clearly produces the same result. The reason we expressed why estoppel could not be applied, viz., that that doctrine could not override a “public policy established by Congress,” surely applies as well to the invocation of equitable remedies. Even assuming the truth of the Ninth Circuit’s unsupported assertion that “[i]n reviewing naturalization petitions, federal courts sit as courts of equity,” 796 F. 2d, at 1102, it is well established that “[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.” Hedges v. Dixon County, 160 U. S. 182, 192 (1893). “A Court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law . . . .” Rees v. Watertown, 19 Wall. 107, 122 (1874). See also, e. g., Thompson v. Allen County, 115 U. S. 550, 555 (1885); 1 J. Story, Equity Jurisprudence § 19 (W. Lyon ed. 1918).
More fundamentally, however, the power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers. See, e. g., 28 U. S. C. § 1361; 28 U. S. C. § 1651. Rather, it has been given them as a specific function to be performed in strict compliance with the terms of an authorizing statute which says that “[a] person may be naturalized ... in the manner and under the conditions prescribed in this subchapter, and not otherwise” 8 U. S. C. § 1421(d) (emphasis added).
“An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.” United States v. Ginsberg, 243 U. S. 472, 474 (1917).
Or as we have more recently said: “ ‘Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship.’” Fedorenko v. United States, 449 U. S. 490, 517 (1981) (citation omitted).
The congressional command here could not be more manifest. Besides the explicit cutoff date in the 1940 Act, Congress in 1948, adopted a new liberalized citizenship program that excluded Filipino servicemen, and specifically provided that even applications timely filed under the 1940 Act and still pending would be adjudged under the new provisions. Act of June 1, 1948, Ch. 360, 62 Stat. 281. These provisions were carried forward into the-1952 Nationality Act, see 66 Stat. 250, 8 U. S. C. § 1440. , (It is particularly absurd to contemplate that Filipinos who actually filed their applications before the 1946 cutoff were denied citizenship by reason of this provision, whereas the present respondents, who filed more than 30 years after the deadline, were awarded it by the Ninth Circuit.) Finally, in 1961, Congress amended the 1952 Act by adding § 310(e), 8 U. S. C. § 1421(e), which specifies that “any” petition thereafter filed will be adjudged under the requirements of the 1952 Act. Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of these limitations.
B
Respondents advance as an alternative ground for affirmance the claim that Attorney General Clark’s revocation of Vice Consul Ennis’ naturalization authority deprived them of their rights under the Due Process Clause of the Fifth Amendment and under its equal protection component. See Hampton v. Mow Sun Wong, 426 U. S. 88, 100 (1976). Assuming that these respondents can properly invoke the protections of the United States Constitution, and granting that they are members of a special class that Congress intended to favor with statutory entitlements to naturalization, they were not deprived of those entitlements without due process. First, it did not violate due process for Congress to impose a reasonable limitations period upon the filing of naturalization petitions. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 437 (1982). Second, even assuming that a reasonable opportunity to file for naturalization was required, respondents were accorded at least that. Unlike noncitizen servicemen in other parts of the world, they had the continuous presence of a §702 naturalization officer in the Philippines from August 1945 through October 1945, and from August 1946 to the end of that year. In this last period, the officer naturalized approximately 4,000 Filipinos. In addition, approximately another 7,000 Filipinos were naturalized either in this country or by naturalization officers traveling post to post around the world. We do not agree with respondents’ contention that in addition to these ample opportunities, respondents were entitled as a matter of due process to individualized notice of any statutory rights and to the continuous presence of a naturalization officer in the Philippines from October 1945 until July 1946.
We also reject the possibility of a violation of the equal protection component of the Fifth Amendment’s Due Process Clause. The approximately 7-month presence of a naturalization officer in the Philippines not only met the applicable standard of equal protection, but indeed compared favorably with the merely periodic presence of such officers elsewhere in the world. See generally Fiallo v. Bell, 430 U. S. 787, 792 (1977); Mathews v. Diaz, 426 U. S. 67, 79-83 (1976). Moreover, beyond the absence of any unequal treatment, the historical record lends no support whatever to the contention that the actions at issue here were motivated by any racial animus. Indeed, it is fair to assume that the Filipino soldiers who fought so valiantly during the early months of World War II were regarded with especial esteem when this legislation was enacted and implemented. Every court to consider this matter has observed that Attorney General Clark’s and Commissioner Carusi’s decisions were taken in response to the concerns of Philippine officials that their nation would suffer a manpower drain, and not because of hostility towards Filipinos. See n. 5, supra. Thousands of Filipinos were naturalized outside the Philippines during the period in question, and approximately 4,000 more in the Philippines after a successor to Ennis was appointed in August 1946.
C
Respondents Litonjua and Manzano argue that the Government cannot prevail in their cases even if it prevails with respect to the 14 Pangilinan respondents because it did not introduce any evidence in their cases concerning the historical events at issue. This argument fails, since “it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect,” Berenyi v. District Director, INS, 385 U. S. 630, 637 (1967). We also reject respondent Litonjua’s assertion that his claim should be treated differently because he is within that category of veterans (“Category I” as described in Matter of Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 937-940 (ND Cal. 1975)) whose petitions it has been the policy of the Government not to oppose. That category includes only veterans who had taken some affirmative steps to obtain naturalization both before the December 31, 1946, cutoff date and while they were still on active duty. Ibid. Litonjua made his first efforts after he was no longer on active duty with the Armed Forces.
We have considered Litonjua’s and Manzano’s other separate claims and have found none that is meritorious.
* * *
For the reasons stated, the judgments of the Court of Appeals are reversed.
It is so ordered.
Justice Blackmun concurs in the result.
Justice Kennedy took no part in the consideration or decision of these cases.
The two cases actually involve three lawsuits: two appeals (both part of No. 86-1992) that were consolidated in the Court of Appeals (Pangilinan v. INS and Litonjua v. INS) and a third (INS v. Manzano, No. 86-2019) that was consolidated by this Court with No. 86-1992.
Section 701 provided in pertinent part:
“[A]ny person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who, having been lawfully admitted to the United States, including its Territories and possessions, shall have been at the time of his enlistment or induction a resident thereof, may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign his petition in his own handwriting, or meet any educational test; and (4) no fee shall be charged or collected for making, filing, or docketing the petition for naturalization, or for the final hearing thereon, or for the certification of naturalization, if issued: Provided, however, That. . . the petition shall be filed no later than [December 31, 1946]. . . .”
Section 702 provided in pertinent part:
“During the present war, any person entitled to naturalization under section [701] of this [Act], who while serving honorably in the military . . . forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship . . . .”
Section 705 provided in pertinent part:
“The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations, as may be necessary to carry into effeet the provisions of this Act.”
The Commissioner’s memorandum to Attorney General Clark read in pertinent part:
“The Philippine Government again has expressed to the Department of State its concern because Filipino members of the armed forces of the United States are being naturalized even though they have always been domiciled in the Philippine Islands. Since the Islands are not embraced within the domain of any naturalization court, naturalization therein may be awarded only by an administrative official designated by me under the authorization of Section 702 of the Nationality Act, 8 U. S. C. § 1002. Mr. George H. Ennis, Vice Consul of the United States at Manila, has been designated to grant naturalizations under Section 702, but I do not believe he has as yet exercised his authority.
“In view of the concern expressed by the Philippine Government, it is my belief that that situation might best be handled by revoking the authority previously granted to Mr. Ennis and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. This course would eliminate a source of possible embarrassment in our dealings with the Philippine people, who probably will be awarded independence in the near future.” Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945, quoted in Matter of Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 936, n. 5 (ND Cal. 1975).
|
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",
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"Multistate Tax Commission",
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"National Credit Union Administration",
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"National Enforcement Commission",
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"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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] |
[
67
] |
COMMISSIONER OF INTERNAL REVENUE v. ESTATE OF CHURCH.
No. 5.
Argued October 24, 1947.
Reargued October 12, 1948.
Decided January 17, 1949.
Arnold Raum argued the cause for petitioner. With him on the briefs were Solicitor General Perlman, Assistant Attorney General Caudle, Lee A. Jackson and L. W. Post. Ellis N. Slack was also on the brief on the reargument.
William W. Owens argued the cause for respondent. With him on the briefs was Loren C. Berry. Frederick W. P. Lorenzen was also on the brief on the reargument.
Briefs of amici curiae in support of respondent were filed by Hugh Satterlee, Rollin Browne and Thorpe Nes-bit, for the Estate of Roberts; and Leland K. Neeves for the Estate of Lloyd.
Mr. Justice Black
delivered the opinion of the Court.
This case raises questions concerning the interpretation of that part of § 811 (c) of the Internal Revenue Code which for estate tax purposes requires including in a decedent’s gross estate the value of all the property the decedent had transferred by trust or otherwise before his death which was “intended to take effect in possession or enjoyment at or after his death . . . .” Estate of Spiegel v. Commissioner, post, p. 701, involves questions which also depend upon interpretation of that provision of § 811 (c). After argument and consideration of the cases at the October 1947 Term, an order was entered restoring them to the docket and requesting counsel upon reargument particularly to discuss certain questions broader in scope than those originally presented and argued. Journal Supreme Court, June 21, 1948, 296-298. Those additional questions have now been fully treated in briefs and oral arguments.
This case involves a trust executed in 1924 by Francois Church, then twenty-one years of age, unmarried and childless. He executed the trust in New York in accordance with state law. Church and two brothers were named co-trustees. Certain corporate stocks were transferred to the trust with grant of power to the trustees to hold and sell the stocks and to reinvest the proceeds. Church reserved no power to alter, amend, or revoke, but required the trustees to pay him the income for life. This reservation of life income is the decisive factor here.
At Church’s death (which occurred in 1939) the trust was to terminate and the trust agreement contained some directions for distribution of the trust assets when he died. These directions as to final distribution did not, however, provide for all possible contingencies. If Church died without children and without any of his brothers or sisters, or their children, surviving him, the trust instrument made no provision for disposal of the trust assets. Had this unlikely possibility come to pass (at his death there were living, five brothers, one sister, and ten of their children) the distribution of the trust assets would have been controlled by New York law. It has been the Government’s contention that under New York law had there been no such surviving trust beneficiaries the corpus would have reverted to the decedent’s estate. This possibility of reverter plus the retention by the settlor of the trust income for life, the Government has argued, requires inclusion of the value of the trust property in the decedent’s gross estate under our holding in Helvering v. Hallock, 309 U. S. 106.
The Hallock case held that where a person while living makes a transfer of property which provides for a reversion of the corpus to the donor upon a contingency terminable at death, the value of the corpus should be included in the decedent’s gross estate under the “possession or enjoyment” provision of § 811 (c) of the Internal Revenue Code. In this case, the Tax Court, relying upon its former holdings declared that “The mere possibility of reverter by operation of law upon a failure of the trust, due to the death of all the remaindermen prior to the death of decedent, is not such a possibility as to come within the Hallock case.” This holding made it unnecessary for the Tax Court to decide the disputed question as to whether New York law operated to create such a reversionary interest. The United States Court of Appeals for the Third Circuit, one judge dissenting, affirmed on the ground that it could not identify a clear-cut mistake of law in the Tax Court’s decision. 161 F. 2d 11. The United States Court of Appeals for the Seventh Circuit in the Spiegel case found that under Illinois law there was a possibility of reverter and reversed the Tax Court, holding that possible reversion by operation of law required inclusion of a trust corpus in a decedent’s estate. Commissioner v. Spiegel’s Estate, 159 F. 2d 257. Other United States courts of appeal have held the same. Because of this conflict we granted certiorari in this and the Spiegel case.
Counsel for the two estates have strongly contended in both arguments of these cases that the law of neither New York nor Illinois provides for a possibility of reverter under the circumstances presented. They argue further that even if under the law of those states a possibility of reverter did exist, it would be an unjustifiable extension of the Hallock rule to hold that such a possibility requires inclusion of the value of a trust corpus in a decedent’s estate. The respondent in this case pointed out the extreme improbability that the decedent would have outlived all his brothers, his sister, and their ten children. He argues that the happening of such a contingency was so remote, the money value of such a reversionary interest was so infinitesimal, that it would be entirely unreasonable to hold that the Hallock rule requires an estate tax because of such a contingency. But see Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U. S. 108, 112.
Arguments and consideration of this and the Spiegel case brought prominently into focus sharp divisions among courts, judges and legal commentators, as to the intended scope and effect of our Hallock decision, particularly whether our holding and opinion in that case are so incompatible with the holding and opinion in May v. Heiner, 281 U. S. 238, that the latter can no longer be accepted as a controlling interpretation of the “possession or enjoyment” provision of §811 (c). May v. Heiner held that the corpus of a trust transfer need not be included in a settlor’s estate, even though the settlor had retained for himself a life income from the corpus. We have concluded that confusion and doubt as to the effect of our Hallock case on May v. Heiner should be set at rest in the interest of sound tax and judicial administration. Furthermore, if May v. Heiner is no longer controlling, the value of the Church trust corpus was properly included in the gross estate, without regard to the much discussed state law question, since Church reserved a life estate for himself. For reasons which follow, we conclude that the Hallock and May v. Heiner holdings and opinions are irreconcilable. Since we adhere to Hal-lock, the May v. Heiner interpretation of the “possession or enjoyment” provisions of § 811 (c) can no longer be accepted as correct.
The “possession or enjoyment” provision appearing in § 811 (c) seems to have originated in a Pennsylvania inheritance tax law in 1826. As early as 1884 the Supreme Court of Pennsylvania held that where a legal transfer of property was made which carried with it a right of possession with a reservation by the grantor of income and profits from the property for his life, the transfer was not intended to take effect in enjoyment until the grantor’s death: “One certainly cannot be considered, as in the actual enjoyment of an estate, who has no right to the profits or incomes arising or accruing therefrom.” Reish, Adm’r v. Commonwealth, 106 Pa. 621, 526. That court further held that the “possession or enjoyment” clause did not involve a mere technical question of title, but that the law imposed the death tax unless one had parted during his life with his possession and his title and his enjoyment. It was further held in that case that the test of “intended” was not a subjective one, that the question was not what the parties intended to do, but what the transaction actually effected as to title, possession and enjoyment.
Most of the states have included the Pennsylvania-originated “possession or enjoyment” clause in death tax statutes, and with what appears to be complete unanimity, they have up to this day, despite May v. Heiner, substantially agreed with this 1884 Pennsylvania Supreme Court interpretation. Congress used the “possession or enjoyment” clause in‘death tax legislation in 1862, 1864, and 1898. 12 Stat. 432, 485; 13 Stat. 223, 285; 30 Stat. 448, 464. In referring to the provision in the 1898 Act, this Court said that it made “the liability for taxation depend, not upon the mere vesting in a technical sense of title to the gift, but upon the actual possession or enjoyment thereof.” Vanderbilt v. Eidman, 196 U. S. 480, 493. And five years before the 1916 estate tax statute incorporated the “possession or enjoyment” clause to frustrate estate tax evasions, 39 Stat. 756, 780, this Court had affirmed a judgment of the New York Court of Appeals sustaining the constitutionality of its state inheritance tax in an opinion which said: “It is true that an ingenious mind may devise other means of avoiding an inheritance tax, but the one commonly used is a transfer with reservation of a life estate.” Matter of Keeney, 194 N. Y. 281, 287, 87 N. E. 428, 429; Keeney v. New York, 222 U. S. 525. And see Helvering v. Bullard, 303 U. S. 297, 302, where the foregoing quotation was repeated with seeming approval.
From the first estate tax law in 1916 until May v. Heiner, supra, was decided in 1930, trust transfers which were designed to distribute the corpus at the settlor’s death and which reserved a life income to the settlor had always been treated by the Treasury Department as transfers “intended to take effect in possession or enjoyment at . . . his death.” The regulations had so provided and millions of dollars had been collected from taxpayers on this basis. See e. g., T. D. 2910, 21 Treas. Dec. 771 (1919); and see 74 Cong. Rec. 7078, 7198-7199 (March 3, 1931). This principle of estate tax law was so well settled in 1928, that the United States Court of Appeals decided May v. Heiner in favor of the Government in a one-sentence per curiam opinion. 32 F. 2d 1017. Nevertheless, March 2, 1931, this Court followed May v. Heiner in three cases in per curiam opinions, thus upsetting the century-old historic meaning and the long standing Treasury interpretation of the “possession or enjoyment” clause. Burnet v. Northern Trust Co., 283 U. S. 782; Morsman v. Burnet, 283 U. S. 783; McCormick v. Burnet, 283 U.S. 784.
March 3, 1931, the next day after the three per curiam opinions were rendered, Acting Secretary of the Treasury Ogden Mills wrote a letter to the Speaker of the House explaining the holdings in May v. Heiner and the three cases decided the day before. He pointed out the disastrous effects they would have on the estate tax law and urged that Congress “in order to prevent tax evasion,” immediately “correct this situation” brought about by May v. Heiner and the other cases. 74 Cong. Rec. 7198, 7199 (1931). He expressed fear that without such action the Government would suffer “a loss in excess of one-third of the revenue derived from the Federal estate tax, with anticipated refunds of in excess of $25,000,000.” The Secretary's surprise at the decisions and his apprehensions as to their tax evasion consequences were repeated on the floor of the House and Senate. 74 Cong. Rec. supra. Senator Smoot, Chairman of the Senate Finance Committee, said on the floor of the Senate that this judicial interpretation of the statute “came almost like a bombshell, because nobody ever anticipated such a decision.” 74 Cong. Rec. 7078. Both houses of Congress unanimously passed and the President signed the requested resolution that same day.
February 28, 1938, this Court held that neither passage of the resolution nor its later inclusion in the 1932 Revenue Act was intended to apply to trusts created before its passage. Hassett v. Welch, Helvering v. Marshall, 303 U. S. 303. Accordingly, if the corpus of the Church trust executed in 1924 is to be included in the settlor’s estate without this Court’s involvement in the intricacies of state property law, it must be done by virtue of the possession and enjoyment section as it stood without the language added by the joint resolution.
Crucial to the Court’s holding in May v. Heiner was its finding that no interest in the corpus passed at the settlor’s death because legal title had passed from the settlor irrevocably when the trust was executed; for this reason the grantor’s reservation of the trust income for his life— one of the chief bundle-of-ownership interests — -was held not to bring the transfer within the category of transfers “intended to take effect in . . . enjoyment at . . . his death.” This Court had never before so limited the possession or enjoyment section. Thus was formal legal title rather than the substance of a transaction made the sole test of taxability under §811 (c). For from the viewpoint of the grantor the significant effect of this transaction was his continued enjoyment and retention of the income until his death; the important consequence to the remaindermen was the postponement of their right to this enjoyment of the income until the grantor’s death.
The effect of the Court’s interpretation of this estate tax section was to permit a person to relieve his estate from the tax by conveying its legal title to trustees whom he selected, with an agreement that they manage the estate during his life, pay to him all income and profits from the property during his life, and deliver it to his chosen beneficiaries at death. Preparation of papers to defeat an estate tax thus became an easy chore for one skilled in the “various niceties of the art of conveyancing.” Klein v. United States, 283 U. S. 231, 234. And by this simple method one could, despite the “possession or enjoyment” clause, retain and enjoy all the fruits of his property during life and direct its distribution at death, free from taxes that others less skilled in tax technique would have to pay. Regardless of these facts May v. Heiner held that such an instrument preserving the beneficial use of one’s property during life and providing for its distribution and delivery at death was “not testamentary in character.” May v. Heiner, supra at 243. Cf. Keeney v. New York, supra at 535, 536.
One year after May v. Heiner, this Court decided Klein v. United States, supra. There the grantor made a deed conveying property to his wife for her life with provisions that if she survived him she should “by virtue of this conveyance take, have, and hold the said lands in fee simple,” but the fee was to “remain vested in” him should his wife die first. This Court pointed out that in general and under the law of Illinois where the deed was made, vesting of title in the grantee “depended upon the condition precedent that the death of the grantor happen before that of the grantee.” Thus, since it was found that under Illinois law -legal title to the land had been retained by the husband, it was held that the value of the land should be included in his gross estate under the “possession or enjoyment” section. The Court did not cite May v. Heiner.
In 1935, this Court decided Helvering v. St. Louis Trust Co., 296 U. S. 39, and Becker v. St. Louis Trust Co., 296 U. S. 48. In each of these cases the Court again, as in May v. Heiner, delved into the question of legal title under rather subtle property law concepts and decided that the legal title of the trust properties there, unlike the situation in the Klein transfer, had passed irrevocably from the grantor. This passage of bare legal title was held to be enough to render the possession or enjoyment section inapplicable. These cases were expressly overruled by Helvering v. Hallock.
Helvering v. Hallock was decided in 1940. Three separate trusts were considered in the Hallock case. These three trusts as those considered in the St. Louis Trust and Becker cases, had been executed with provisions for reversion of the trust properties to the grantors should the grantors outlive the beneficiaries. The trusts had been executed in 1917, 1919, and 1925. In the Hallock case this Court was again asked to limit the effect of § 811 (c) by emphasis upon the formal passage of legal title. By such concentration on elusive legal title, the Court was invited to lose sight of the plain fact that complete enjoyment had been postponed. We declined to limit the effectiveness of the possession or enjoyment provision of § 811 (c) by attempting to define the nature of the interest which the decedent retained after his inter vivos transfer. We called attention to the snares which inevitably await an attempt to restrict estate tax liability on the “niceties of the art of conveyancing” at p. 117. We declared that the statute now under consideration “taxes not merely those interests which are deemed to pass at death according to refined technicalities of the law of property. It also taxes inter vivos transfers that are too much akin to testamentary dispositions not to be subjected to the same excise,” p. 112, and inter vivos gifts “resorted to, as a substitute for a will, in making dispositions of property operative at death,” p. 114.
As pointed out by the dissent in Hallock, we there directly and unequivocally rejected the only support that could possibly suffice for the holdings in May v. Heiner. That support was the Court’s conclusion in May v. Heiner that retention of possession or enjoyment of his property was not enough to require inclusion of its value in the gross estate if a trust grantor had succeeded in passing bare legal title out of himself before death. In Hallock we emphasized our removal of that support by declaring that § 811 (c) “deals with property not technically passing at death but with interests theretofore created. The taxable event is a transfer inter vivos. But the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment,” pp. 110-111.
Moreover, the Hallock case, p. 114, stands plainly for the principle that “In determining whether a taxable transfer becomes complete only at death we look to substance, not to form . . . However we label the device [if] it is but a means by which the gift is rendered incomplete until the donor’s death” the “possession or enjoyment” provision applies.
How is it possible to call this trust transfer “complete” except by invoking a fiction? Church was sole owner of the stocks before the transfer. Probably their greatest property value to Church was his continuing right to get their income. After legal title to the stocks was transferred, somebody still owned a property right in the stock income. That property right did not pass to the trust beneficiaries when the trust was executed; it remained in Church until he died. He made no “complete” gift effective before that date, unless we view the trust transfer as a “complete” gift to the trustees. But Church gave the trustees nothing, either partially or completely. He transferred no right to them to get and spend the stock income. And under the teaching of the Hallock case, quite in contrast to that of May v. Heiner, passage of the mere technical legal title to a trustee is not necessarily crucial in determining whether and when a gift becomes “complete” for estate tax purposes. Looking to substance and not merely to form, as we must unless we depart from the teaching of Hallock, the inescapable fact is that Church retained for himself until death a most valuable property right in these stocks — the right to get and to spend their income. Thus Church did far more than attach a “string” to a remotely possible reversionary interest in the property, a sufficient reservation under the Hallock rule to make the value of the corpus subject to an estate tax. Church did not even risk attaching an unbreakable cable to the most valuable property attribute of the stocks, their income. He simply retained this valuable property, the right to the income, for himself until death, when for the first time the stock with all its property attributes “passed” from Church to the trust beneficiaries. Even if the interest of Church was merely “obliterated,” in May v. Heiner language, it is beyond all doubt that simultaneously with his death, Church no longer owned the right to the income; the beneficiaries did. It had then “passed.” It never had before. For the first time, the gift had become “complete.”
Thus, what we said in Hallock was not only a repudiation of the reasoning which was advanced to support the two cases (St. Louis Trust and Becker) that Hallock overruled, but also a complete rejection of the rationale of May v. Heiner on which the two former cases had relied. Hallock thereby returned to the interpretation of the “possession or enjoyment” section under which an estate tax cannot be avoided by any trust transfer except by a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property. After such a transfer has been made, the settlor must be left with no present legal title in the property, no possible reversionary interest in that title, and no right to possess or to enjoy the property then or thereafter. In other words such a transfer must be immediate and out and out, and must be unaffected by whether the grantor lives or dies. See Shukert v. Allen, 273 U. S. 545, 547; Smith v. Shaughnessy, 318 U. S. 176. We declared this to be the effect of the Hallock case in Goldstone v. United States, 325 U. S. 687, 690, 691. There we said with reference to § 811 (c) in connection with our Hallock ruling: . . It thus sweeps into the gross estate all property the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death or thereafter. . . . Testamentary dispositions of an inter vivos nature cannot escape the force of this section by hiding behind legal niceties contained in devices and forms created by conveyancers.” And see Fidelity-Philadelphia Trust Co. v. Rothensies, supra, and Commissioner v. Estate of Field, 324 U. S. 113.
It is strongly urged that we continue to regard May v. Heiner as controlling and leave its final repudiation to Congress. Little effort is made to defend the May v. Heiner interpretation of “possession or enjoyment” on the ground that it truly reflects the congressional purpose, nor do we think it possible to attribute such a purpose to Congress. There is no persuasive argument, if any at all, that trusts reserving life estates with remainders over at grantors’ deaths are not satisfactory and effective substitutes for wills. In fact, the purpose of this settlor as expressed in his trust papers was to make “provision for any lawful issue” he might “leave at the time of his death as well as provide an income for himself for life.” This paper, labeled a trust, but providing for all the substantial purposes of a will, was intended to and did postpone until the settlor’s death the right of his relatives to possess and enjoy his property. There may be trust instruments that fall more clearly within the class intended to be treated as substitutes for wills by the “possession or enjoyment” clause, but we doubt it.
The argument for continuing the error of May v. Heiner is not on the merits but is advanced in the alleged interest of tax stability and certainty, stare decisis and a due deference to the just expectations of those who have relied on the May v. Heiner doctrine. Special stress is laid on Treasury regulations which since the Hassett v. Welch holding in 1938 have accepted the May v. Heiner doctrine and have not provided that the value of a trust corpus must be included in the decedent’s gross estate where a grantor had reserved the trust income. It is even argued that Congress in some way ratified the May v. Heiner doctrine when it passed the joint resolution and that if not, the decision in the Hassett and Marshall cases set at rest all questions as to the soundness of the May v. Heiner interpretation. We find no merit in these contentions.
What was said in the Hallock opinion on the question of stare decisis would appear to be a sufficient answer to that contention here. The Hallock opinion also answers the argument as to recent Treasury regulations, all of which were made by the Treasury under compulsion of this Court’s cases. Furthermore, the history of the struggle of the Treasury to subject such transfers as this to the estate tax law, a history shown in part in the Hassett v. Welch opinion, has served to spotlight the abiding conviction of the Treasury that the May v. Heiner statutory interpretation should be rejected. In view of the struggle of the Treasury in this tax field, the variant judicial and Tax Court opinions, our opinion in the Hallock case and others which followed, it is not easy to believe that taxpayers who executed trusts prior to the 1931 joint resolution felt secure in a belief that May v. Heiner gave them a vested interest in protection from estate taxes under trust transfers such as this one. And so far as this trust is concerned, Treasury regulations required the value of its corpus to be included in the gross estate when it was made in 1924, and most of the period from then up to the settlor’s death in 1939.
Moreover, the May v. Heiner doctrine has been repudiated by the Congress and repeatedly challenged by the Treasury. It certainly is not an overstatement to say that this Court’s Hallock opinion and holding treated May v. Heiner with scant respect. We said Congress had “displaced” the May v. Heiner construction of § 811 (c); in overruling the St. Louis Trust cases we pointed out that those cases had relied in part on the “Congressionally discarded May v. Heiner doctrine”; we thought Congress “had in principle already rejected the general attitude underlying” the May v. Heiner and St. Louis Trust cases; and finally our Hallock opinion demolished the only reasoning ever advanced to support the May v. Heiner holding. And in the Hallock case, trusts created in 1917, 1919, and 1925 were held subject to the estate tax under the provisions included in § 811 (c). What we said and did about May v. Heiner in the Hallock case took place in 1940, two years after Hassett v. Welch had held that the 1931 and 1932 amendments could not be applied to trusts created before 1931. Certainly, May v. Heiner cannot be granted the sanctuary of stare decisis on the ground that it has had a long and tranquil history free from troubles and challenges.
Nor does the joint resolution or the opinion in the Hassett v. Welch and Helvering v. Marshall cases, decided together, support an argument that the May v. Heiner doctrine be left undisturbed. It would be impossible to say that Congress in 1931 intended to accept and ratify decisions that hit the Congress like a “bombshell.” And in Hassett v. Welch the Government did not ask this Court to reexamine or overrule May v. Heiner or the three per curiam cases that relied on May v. Heiner. In fact, the government brief argued that May v. Heiner on its facts was distinguishable from Hassett v. Welch. The government brief also pointedly insisted that its position in Hassett v. Welch did “not require a reexamination of the three per curiam decisions of March 2, 1931.” It was the Government’s sole contention in the Hassett and Marshall cases that the 1932 reenactment of the joint resolution was not limited in application to trusts thereafter created, but was intended to make the new 1932 amendment applicable to past trust agreements. That contention was rejected. The holding was limited to that single question.
The plain implications of the Hallock opinion recognize that the Hassett and Marshall cases did not reaffirm the May v. Heiner doctrine. In the Marshall case the trust, created in 1920, contained a provision that should the settlor outlive the trust beneficiary, the trust corpus would revert to the settlor. That is the very type of provision which we held in Hallock would require inclusion of its value in the settlor’s estate. Since the Hallock case did not overrule the Marshall case involving a trust created in 1920, it must have accepted the Marshall and Hassett cases as deciding no more than that the value of the trust properties there could not be included in the decedent’s gross estate where the Government’s sole reliance was on a retroactive application of the 1931 and 1932 amendments to the estate tax law.
That the Hallock opinion did not treat the Hassett and Marshall cases as having reaffirmed this Court’s interpretation of the pre-1931 possession or enjoyment clause is further emphasized by the effect of the Hallock case on the type of trust in McCormick v. Burnet, 283 U. S. 784, a trust created before 1931. The United States Court of Appeals in that case had held that the trust property should be included in the decedent’s estate chiefly because of the trust provision that the corpus should revert to the settlor in the event that she outlived her three children. 43 F. 2d 277. This Court in its per curiam opinion reversed the Court of Appeals and held that the McCormick corpus need not be included in the decedent’s estate. Our Hallock case held directly the contrary, for since Hallock, the McCormick corpus would have to be taxed under the pre-1931 language of §811 (c). In so interpreting the pre-1931 language in the Hallock case, we necessarily rejected the contention made there that the Congress by passage of the resolution and this Court by the Hassett and Marshall opinions had accepted as correct the May v. Heiner restrictive interpretation of §811 (c). It is plain that this Court in the Hallock case considered that the Has-sett and Marshall cases held no more than that the 1931 and 1932 amendments were prospective, and that neither the congressional resolution nor the Hassett and Marshall cases were designed to give new life and vigor to the May v. Heiner doctrine.
The reliance of respondent here on the Hassett and Marshall cases is misplaced. We hold that this trust agreement, because it reserved a life income in the trust property, was intended to take effect in possession or enjoyment at the settlor’s death and that the Commissioner therefore properly included the value of its corpus in the estate.
Reversed.
Mr. Justice Jackson concurs in the result.
The Hallock case considered the “possession or enjoyment” language of § 811 (c) which appeared in § 302 (c) of the 1926 Revenue Act, 44 Stat. 9, 70, as amended by § 803 (a) of the Revenue Act of 1932, 47 Stat. 169, 279, 26 U. S. C. § 811 (c).
Estate of Cass, 3 T. C. 562; Commissioner v. Kellogg, 119 F. 2d 54, affirming 40 B. T. A. 916; Estate of Downe, 2 T. C. 967; Estate of Houghton, 2 T. C. 871; Estate of Goodyear, 2 T. C. 885; Estate of Delany, 1 T. C. 781.
Commissioner v. Bayne’s Estate, 155 F. 2d 475; Commissioner v. Bank of California, 155 F. 2d 1; Thomas v. Graham, 158 F. 2d 561; Beach v. Busey, 156 F. 2d 496.
Cf. Estate of Hughes, 44 B. T. A. 1196, with Estate of Bradley, 1 T. C. 518, affirmed sub nom. Helvering v. Washington Trust Co., 140 F. 2d 87. See New York Trust Co. v. United States, 100 Ct. Cl. 311, 51 F. Supp. 733. Cf. Montgomery, Federal Taxes — Estates, Trusts and Gifts, 461-462, 480-482 (1946) with Paul, Federal Estate and Gift Taxation, 1946 Supp. §§ 7.15, 7.23. See also Note, Inter Vivos Transfers and the Federal Estate Tax, 49 Yale L. J. 1118 (1940); Eisenstein, Estate Taxes and the Higher Learning of the Supreme Court, 3 Tax L. Rev. 395 (1948).
Note, Origin of the Phrase, “Intended To Take Effect in Possession or Enjoyment At or After . . . Death” (§811 (e), Internal Revenue Code), 56 Yale L. J. 176 (1946).
See cases collected in 49 A. L. R. 878-892; 67 A. L. R. 1250-1254; 100 A. L. R. 1246-1254. See also Rottschaefer, Taxation of Transfers Taking Effect in Possession at Grantor’s Death, 26 Iowa L. Rev. 514 (1941); Oliver, Property Rationalism and Tax Pragmatism, 20 Tex. L. Rev. 675, 704-709 (1942).
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under which the transferor has retained for his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons who shall possess or enjoy the property or the income therefrom . . . The italics are added to indicate the additions made by the amendments to § 302 (c) of the Revenue Act of 1926. Joint Resolution of March 3, 1931, 46 Stat. 1516-1517.
The May v. Heiner trust provided for the income to go to Barney-May during his lifetime, after his death to his wife, Pauline May, the grantor, and upon her death the corpus was to be distributed to the grantor’s four children. The Court said that the record failed clearly to disclose whether Mrs. May survived her husband, but held this was of no special importance.
The Court also quoted from and relied heavily on Reinecke v. Northern Trust Co., 278 U. S. 339, 345. This Court there held that the corpus of two trusts that reserved a life income to the grantor plus a power to revoke should have been included in the decedent’s estate. The corpus of five other trusts were held not includable. These five trusts did not reserve a power in the grantor alone to revoke, nor did they reserve a life estate to the grantor, but they provided for accumulation of that income during the settlor’s life, and at his death it was to go to the beneficiaries, subject to prior use by the beneficiaries as directed by the settlor. Thus, this case did not directly support the May v. Heiner holding. Nor is May v. Heiner supported by Shukert v. Allen, 273 U. S. 545, as shown by reference to Shukert v. Allen in the Reinecke opinion at p. 347.
A May 22, 1931, bulletin of the Treasury Department indicates a strong reason for the Treasury Department’s construction of the resolution as inapplicable to pre-1931 trust transfers. T. D. 4314, X-l, Cum. Bull. 450-451 (1931). That reason was obviously a fear that this Court might hold that the tax could not constitutionally be applied to trusts previously created under the Nichols v. Coolidge, 274 U. S. 531, line of cases. This same apprehension may well have been the underlying reason for a statement, relied on by the dissent, made on the floor of the House that the resolution was not made “retroactive for the reason that we were afraid that the Senate would not agree to it.” 74 Cong. Rec. 7199 (1931). Recent cases have indicated that the fear of such a constitutional interpretation is not a valid one. Central Hanover Bank v. Kelly, 319 U. S. 94, 97-98; Fernandez v. Wiener, 326 U. S. 340, 355.
A dissent filed in this case has an appendix citing “decisions DURING THE PAST DECADE IN WHICH LEGISLATIVE HISTORY WAS DECISIVE OP CONSTRUCTION OP A PARTICULAR STATUTORY PROVISION,” post, p. 687. Many other decisions of less recent date could also be cited to establish this well-known fact which nobody disputes. But we think here, in the language of our opinion in the Hallock case, which opinion was written by the author of today’s dissent, that the actions of Congress relied on in the dissent have not “under any rational canons of legislative significance . . . impliedly enacted into law a particular decision which, in the light of later experience, is seen to create confusion and conflict in the application of a settled principle of internal revenue legislation.” Helvering v. Hallock, 309 U. S. 106, 121, note 7. The basic “settled principle” now as when Hallock was written is that where a trust agreement reserves the settlor’s possession or enjoyment of part or all of the trust property until death, the value of the trust should be included in the settlor’s gross estate.
The arguments in dissent here based on stare decisis, legislative history, and possible consequences of this Court’s holding, are strikingly like the forceful arguments made in the Hallock dissent. But the persuasive and sound arguments advanced by the Court’s spokesman in Hallock were there considered by the majority of this Court to be a sufficient answer to what was said in the Hallock dissent. Particularly forceful was this Court’s statement in the Hallock opinion that “we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.”
|
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
] |
HEWITT et al. v. HELMS
No. 85-1630.
Argued March 4, 1987
Decided June 19, 1987
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’ConnoR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 764.
Thomas G. Saylor, Jr., First Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were LeRoy S. Zimmerman, Attorney General, Allen C. Warshaw, Executive Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Harriet S. Shapiro, and William Ranter.
Robert H. Vesely argued the cause for respondent. With him on the brief was John M. Humphrey.
Benna Ruth Solomon, Joyce Holmes Benjamin, and Peter J. Kalis filed a brief for the National Governors’ Association et al. as amici curiae urging reversal.
Justice Scalia
delivered the opinion of the Court.
This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a “prevailing party” for purposes of an award of attorney’s fees.
Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer’s report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement.
While still incarcerated, Helms brought suit under 42 U. S. C. § 1983 against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole.
Nearly six months after Helms’ release, the District Court rendered summary judgment against him on his constitutional claims without passing on the defendants’ assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that “Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of ‘risk’ warranting administrative detention,” Helms v. Hewitt, 655 F. 2d 487, 500 (1981) (Helms I), and that he “suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant.” Id., at 502. The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense.
Before the proceedings on remand could take place, we granted certiorari to determine whether Helms’ administrative segregation violated the Due Process Clause. We concluded that the prison’s informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Hewitt v. Helms, 459 U. S. 460 (1983). Certiorari was not sought on, and we did not decide, the question whether Helms’ misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. Helms v. Hewitt, 712 F. 2d 48 (1983) (Helms II).
In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982), at the time of Helms’ misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures §V(F) (1984), App. 101a-102a (Directive 801). The District Court’s decision was affirmed without opinion. Helms v. Hewitt, 745 F. 2d 46 (1984) (Helms III).
Helms then sought attorney’s fees under 42 U. S. C. §1988, which provides in relevant part: “In any action or proceeding to enforce a provision of [§ 1983], 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 District Court denied the claim on the ground that Helms was not a “prevailing party”: the defendants’ official immunity precluded a damages award, Helms’ release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a “catalyst” for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms’ constitutional rights were violated was “a form of judicial relief which serves to affirm the plaintiff’s assertion that the defendants’ actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future.” 780 F. 2d 367, 370 (1986) (Helms IV). The court also directed the District Court to reconsider whether Helms’ suit was a “catalyst” for the amendment of Directive 801. We granted certiorari. 476 U. S. 1181 (1986).
In order to be eligible for attorney’s fees under § 1988, a litigant must be a “prevailing party.” Whatever the outer boundaries of that term may be, Helms does not fit within them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, 446 U. S. 754, 757 (1980). Helms obtained no relief. Because of the defendants’ official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment — for example, through a consent decree or settlement. See Maher v. Gagne, 448 U. S. 122, 129 (1980). The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-759.
The Court of Appeals treated its 1981 holding that Helms’ misconduct conviction was unconstitutional as “a form of judicial relief” — presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court “to determine the appropriateness and availability of the requested relief,” 655 F. 2d, at 503; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms’ nonmone-tary claims were moot as a result of his release from prison. Even if that is not correct, and Helms’ interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms’ counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief.
It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a change in conduct that redresses the plaintiff’s grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See Maher, supra, at 129. The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms’ disciplinary proceeding was unconstitutional is a “vindication of . . . rights,” Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a “case or controversy” rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff The “equivalency” doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has “prevailed” in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing from the defendants. The only “relief” he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had “prevailed,” for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: “The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms’ constitutional rights were violated.” That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a “prevailing party” depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues.
Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms’ counsel, armed with the holding that his client’s constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U. S. C. § 2201 (a court “may declare the rights and other legal relations of any interested party seeking such declaration”) (emphasis added); Public Affairs Associates, Inc. v. Rickover, 369 U. S. 111, 112 (1962); Eccles v. Peoples Bank of Lakewood, 333 U. S. 426, 431 (1948). If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively “settle the controversy between the parties,” 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2759, p. 648 (2d ed. 1983), because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions — or if they do, the court’s decision is not appealable in the same manner as its entry of a declaratory judgment.
We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a “prevailing party.” Any other result strains both the statutory language and common sense.
The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms’ lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in 1984 to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this “catalyst” theory could justify a fee award under § 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State’s amendment of its regulations, and can “prevail” by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a “prevailing party” in this lawsuit, even though he was not such when the final judgment was entered.
For the reasons stated, the judgment of the court of appeals is
Reversed.
|
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
] |
DICKERSON, DIRECTOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS v. NEW BANNER INSTITUTE, INC.
No. 81-1180.
Argued November 29, 1982
Decided February 23, 1983
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Brennan, Stevens, and O’Connor, JJ., joined, post, p. 122.
Deputy Solicitor General Getter argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Samuel A. Alito, Jr., William Kanter, and Douglas Letter.
Lewis C. Lanier argued the cause for respondent. With him on the brief was Jack R. McGuinn.
David T. Hardy and Richard E. Gardiner filed a brief for the National Rifle Association of America as amicus curiae urging affirmance.
Justice Blackmun
delivered the opinion of the Court.
This case presents the issue whether firearms disabilities imposed by 18 U. S. C. §§ 922(g) and (h) apply with respect to a person who pleads guilty to a state offense punishable by imprisonment for more than one year, when the record of the proceeding subsequently is expunged under state procedure following a successfully served term of probation.
Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 226, was amended by the Gun Control Act of 1968, 82 Stat. 1214, and now appears as 18 U. S. C. §921 et seq. (1976 ed. and Supp. V). Title IV makes it unlawful for any person “who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to ship, transport, or receive any firearm or ammunition in interstate commerce. §§ 922(g) and (h). Title IV also makes it unlawful to engage in the business of importing, manufacturing, or dealing in firearms without a license from the Secretary of the Treasury. §§ 922(a) and 923(a). One ground, specified by the statute, for denial of a license is the fact that the applicant is barred by §§ 922(g) and (h) from transporting, shipping, or receiving firearms or ammunition. § 923(d)(1)(B). The same statute provides that where the applicant is a corporation, partnership, or association, a license will be denied if an individual possessing, directly or indirectly, the power to direct the management and policies of the entity is under the prohibitions imposed by §§ 922(g) and (h). Title IV also makes it a crime to violate any of its provisions or to make a willful misrepresentation with respect to information required to be furnished. § 924(a).
Although, as noted above, Title IV imposes disabilities, upon any “person who has been convicted ... of a crime punishable by imprisonment for a term exceeding one year,” it does permit certain persons in that category to apply to the Secretary for relief from those disabilities. Under § 925(c), the Secretary may grant relief “if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” When the Secretary grants relief, he must publish notice of his action promptly in the Federal Register, together with a statement of reasons. Ibid.
I — I H-I
David F. Kennison, a resident of Columbia, S. C., is a director, chairman of the board, and a shareholder of respondent New Banner Institute, Inc., a corporation. In September 1974, when Kennison was in Iowa, he was arrested and charged with kidnaping his estranged wife. After plea negotiation, see Tr. of Oral Arg. 40-41, he pleaded guilty to the state crime of carrying a concealed handgun, and the kidnap-ing charge was dismissed. The concealed weapon offense, under then Iowa law, see Iowa Code §§695.2 and .3 (1977), was punishable by a fine of not more than $1,000 or by imprisonment for not more than five years, or both. In accord with the provisions of Iowa Code §789A.l (1977), then in effect, the state court entered an order reciting that Kennison had “entered a plea of guilty to the charge of carrying a concealed weapon,” that “the defendant has consented to a deferment of sentence in this matter,” that “he has stable employment,” and that there were “unusual circumstances” in the case. The order then stated that the court “deferred” entry of a formal judgment and placed Kennison on probation.
Kennison returned to South Carolina where he completed his probation term. When that term expired in February 1976, he was discharged pursuant to Iowa Code §789A.6 (1977), then in effect, and the Iowa court’s record with reference to the deferred judgment was expunged.
In May 1976, respondent filed three applications with the Treasury Department’s Bureau of Alcohol, Tobacco and Firearms (Bureau), for licenses as a dealer in firearms and ammunition, as a manufacturer of ammunition, and as a collector of curios and relics. On the application forms, respondent listed Kennison as a “responsible person,” that is, an individual possessing direct or indirect power to control the management and policies of respondent. See 18 U. S. C. § 923(d)(1)(B). In answering an inquiry on the forms as to whether such person had been convicted of a crime punishable by a prison term exceeding one year, respondent did not disclose the Iowa events or Kennison’s plea of guilty in that State. The requested licenses were issued.
The Bureau, however, subsequently learned of the Iowa concealed weapon charge and the plea of guilty. In conformity with the provisions of §§ 923(e) and (f)(1) and of 27 CFR § 178.75 (1982), it mailed respondent Notices of Contemplated Revocation of Licenses. After an informal hearing, the Bureau’s Regional Regulatory Administrator issued the revocation notices. Respondent, pursuant to § 923(f)(2), then requested and received a formal hearing before an Administrative Law Judge. At that hearing, the Bureau contended that respondent’s licenses should be revoked because respondent had failed to reveal that Kennison had been convicted of a felony and also because respondent had not been entitled to the licenses in the first place.
The Administrative Law Judge recommended against revocation. App to Pet. for Cert. 41a. Although he concluded that Kennison’s plea of guilty “represented a conviction . . . within the meaning of Section 922(g) and (h),” id., at 47a, he also concluded that respondent’s statements in the applications did not justify revocation because its representatives had a good-faith belief that Kennison had not been convicted within the meaning of the federal statute.
On review, the Director of the Bureau, petitioner here, ruled that willful misrepresentation had not been shown; that Kennison, however, possessed the power to direct respondent’s management and policies; that Kennison had been convicted in Iowa of an offense that brought him within the prohibitions of §§ 922(g) and (h); and that the licenses should be revoked because respondent was ineligible for them under § 923(d)(1)(B). App. to Pet. for Cert. 23a. The Director ordered the issuance of Final Notices of Revocation. Id., at 40a.
Respondent then filed a timely petition for review in the United States District Court for the District of South Carolina. See § 923(f)(3). On cross-motions for summary judgment, the Director’s motion was granted. On respondent’s appeal, however, the United States Court of Appeals for the Fourth Circuit reversed. 649 F. 2d 216 (1981). It concluded, id., at 219, that although Kennison indeed had been “convicted” of an offense that triggered firearms disabilities, that fact could not serve as a predicate for a Gun Control Act violation or license revocation because the conviction had been expunged under the Iowa deferred judgment procedure. The court acknowledged, id., at 220, that other Courts of Appeals entertained contrary views. Because of the importance of the issue and the obvious need for its resolution, we granted certiorari. 455 U. S. 1015 (1982).
I — I I — I HH
This is not the first time the Court has examined firearms provisions of the Omnibus Crime Control and Safe Streets Act and of the Gun Control Act. See Lewis v. United States, 445 U. S. 55 (1980); Scarborough v. United States, 431 U. S. 563 (1977); Barrett v. United States, 423 U. S. 212 (1976); Huddleston v. United States, 415 U. S. 814 (1974); United States v. Bass, 404 U. S. 336 (1971).
Despite the fact that the slate on which we write is thus not a clean one, we state once again the obvious when we note that, in determining the scope of a statute, one is to look first at its language. Lewis v. United States, 445 U. S., at 60; United States v. Turkette, 452 U. S. 576, 580 (1981). If the language is unambiguous, ordinarily it is to be regarded as conclusive unless there is “ ‘a clearly expressed legislative intent to the contrary.”’ Ibid., quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). It would seem, therefore, from the clear words of the statute (“any person . . . who has been convicted”), that, for respondent to be deprived of its licenses, Kennison must have been “convicted” of the type of crime specified by the statute, and the Iowa deferred judgment procedure and “ex-punction” must not have operated to nullify that conviction. If Kennison was not “convicted” in the first place, or if he was and that conviction somehow was rendered a nullity, respondent should not be ineligible for licenses on the grounds asserted by the Bureau.
A
We turn first to the issue of conviction. The salient fact is Kennison’s plea of guilty to a state charge punishable by more than a year’s imprisonment. The usual entry of a formal judgment upon a jury verdict or upon a court’s specific finding of guilt after a bench trial is absent. Present, however, are (a) the charge of a crime of the disqualifying type, (b) the plea of guilty to that charge, and (c) the court’s placing Kennison upon probation.
In Lewis v. United States, supra, we had under consideration § 1202(a)(1) of Title VII of the 1968 Act, 18 U. S. C. App. § 1202(a)(1), a gun control statute similar to and partially overlapping §§ 922(g) and (h). The language of § 1202 (a)(1) that is pertinent for present purposes is familiar, for it concerns any person who “has been convicted ... of a felony.” The Court there characterized the language of the statute as “sweeping.” 445 U. S., at 60. Despite the fact that Lewis’ conviction was subject to collateral attack on constitutional grounds, the Court held that conviction to be disabling. What was important to the Court was the presence or fact of the conviction. In speaking of Title VII, we said: “No modifier is present, and nothing suggests any restriction on the scope of the term‘convicted.’” Ibid. Still further: “‘Nothing on the face of the statute suggests a congressional intent to limit its coverage . . . .’” Ibid., quoting United States v. Culbert, 435 U. S. 371, 373 (1978). And, finally: “Actually, ... we detect little significant difference between Title IV and Title VII.” 445 U. S., at 64.
Whether one has been “convicted” within the language of the gun control statutes is necessarily, as the Court of Appeals in the present case correctly recognized, 649 F. 2d, at 219, a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State. United States v. Benson, 605 F. 2d 1093, 1094 (CA9 1979). This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of “conviction.”
In Lewis, the possible, and indeed probable, vulnerability of the predicate conviction to collateral attack on constitutional grounds did not affect the disqualification. This followed from the statute’s plain language and from a legislative history that, as we have repeatedly observed, makes clear that “ ‘Congress sought to rule broadly — to keep guns out of the hands of those who have demonstrated that “they may not be trusted to possess a firearm without becoming a threat to society.’”” 445 U. S., at 63, quoting Scarborough v. United States, 431 U. S., at 572. Like considerations apply here with respect to whether Kennison was one who was “convicted” within the meaning of the federal statute. He voluntarily, in negotiation, entered a plea of guilty to a disqualifying crime. In some circumstances, we have considered a guilty plea alone enough to constitute a “conviction”: “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U. S. 220, 223 (1927). Accord, Boykin v. Alabama, 395 U. S. 238, 242 (1969).
Here, we do have more. The state judge who noted Ken-nison’s plea placed him on probation. To be sure, there was no written adjudication of guilt and there was no formal pronouncement of a sentence of imprisonment for a specified term. But that was due to special provisions of Iowa statutory law and procedure. It was plainly irrelevant to Congress whether the individual in question actually receives a prison term; the statute imposes disabilities on one convicted of “a crime punishable by imprisonment for a term exceeding one year.” § 922(g) (emphasis supplied). It is also plain that one cannot be placed on probation if the court does not deem him to be guilty of a crime — in this case a crime that Congress considered demonstrative of unreliability with firearms. Thus, for purposes of the federal gun control laws, we equate a plea of guilty and its notation by the state court, followed by a sentence of probation, with being “convicted” within the language of §§ 922(g) and (h). See United States v. Woods, 696 F. 2d 566, 570 (CA8 1982) (“once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress”).
B
That, however, is not an end to the matter. We still must determine whether Iowa’s expunction provisions, as carried out in Kennison’s case prior to respondent’s license applications, nullified his conviction for purposes of the federal statute.
We recognized in Lewis that a qualifying pardon, see 27 CFR § 178.142 (1982), or a consent from the Secretary of the Treasury would operate to relieve the disability. 445 U. S., at 60-61. So far as the face of the statute is concerned, however, expunetion under state law does not alter the historical fact of the conviction, and does not open the way to a license despite the conviction, as does positive or “affirmative action,” ibid., by way of the Secretary’s consent on the conditions specified by § 925(c). In Lewis, it is true, we recognized an obvious exception to the literal language of the statute for one whose predicate conviction had been vacated or reversed on direct appeal. 445 U. S., at 61, n. 5; see Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, n. 42 (1976). But, in contrast, expunetion does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunetion in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. Clearly, firearms disabilities may be attached constitutionally to an expunged conviction, see Lewis v. United States, 445 U. S., at 65-68, and an exception for such a conviction, unlike one reversed or vacated due to trial error, is far from obvious. In Lewis we held that the exception for convictions reversed or vacated on direct appeal did not make ambiguous the statute’s clear application to convictions arguably vulnerable to collateral attack. We perceive no more ambiguity in the statute here than we did in Lewis.
IV
Other provisions of the federal gun control laws and related federal statutes fortify our conclusion that expunetion of a state conviction was not intended by Congress automatically to remove the federal firearms disability.
1. Even conviction is not necessary for disqualification. The mere existence of an outstanding indictment is sufficient under §§ 922(g) and (h). Congress was reaching far and was doing so intentionally.
2. Sections 922(g) and (h) impose the same disabilities upon a person who “is under indictment” for certain crimes, or who “is a fugitive from justice,” or who “is” a drug addict or an unlawful user of certain drugs, or who “has been convicted in any court” of certain crimes, or who “has been adjudicated as a mental defective,” or who “has been committed to a mental institution” (emphasis supplied). This use of the respective tenses is significant and demonstrates that Congress carefully distinguished between present status and a past event. We have noted this distinction in tenses in § 922, and its significance, before:
“Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section ... , in contrast to its use of the present tense (‘who is’) in §§ 922(h)(1), (2), and (3). The statute’s pattern is consistent and no unintended misuse of language or of tense is apparent.” Barrett v. United States, 423 U. S., at 217.
And in Scarborough v. United States, 431 U. S., at 570, we observed: “It is obvious that the tenses used throughout Title IV were chosen with care.”
3. The imposition, by §§ 922(g)(4) and (h)(4), of continuing disability on a person who “has been” adjudicated a mental defective or committed to a mental institution is particularly instructive. A person adjudicated as a mental defective may later be adjudged competent, and a person committed to a mental institution later may be deemed cured and released. Yet Congress made no exception for subsequent curative events. The past adjudication or commitment disqualifies. Congress obviously felt that such a person, though unfortunate, was too much of a risk to be allowed firearms privileges. See United States v. Bass, 404 U. S., at 344-345. In the face of this fact, we cannot believe that Congress intended to have a person convicted of a firearms felony under state law become eligible for firearms automatically because of a state expunction for whatever reason.
4. Section 925(c) empowers the Secretary to grant relief from these disabilities in certain cases. The Secretary may not grant such relief, however, to one convicted of a crime involving the use of a firearm or of a federal firearms offense, and may not grant relief in any event unless specific conditions are met to his satisfaction. Again, it is highly unlikely that Congress intended to permit its own circumscription of the ability of the Secretary to grant relief to be overcome by the vagaries of state law. That would be too easy a route to follow in order to circumvent the federal statute. See S. Rep. No. 666, 89th Cong., 1st Sess., 2 (1965).
5. Provisions of Title VII, enacted simultaneously with Title IV, are helpful to our analysis. We have treated Titles VII and IV as in pari materia in construing statutory language identical to that at issue here. Lewis v. United States, 445 U. S., at 61-62. Title 18 U. S. C. App. § 1203(2) exempts from Title VII “any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm.” Thus, in that statute, even a pardon is not sufficient to remove the firearms disabilities unless there is express authorization to have the firearm. It is inconceivable that Congress could have so provided and yet have intended, as the Court of Appeals concluded, 649 F. 2d, at 220-221, to give a state expunction a contrary and unconditional effect. After all, expunction devices were not unknown or unusual when Title IV came into being in 1968. See Comment, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U. San Fran. L. Rev. 155, 161 (1977); 1909 Cal. Stats., ch. 232, §1. And the Federal Youth Corrections Act, in which Congress itself provided for expunction in certain circumstances, see 18 U. S. C. § 5021, was enacted as far back as 1950. See 64 Stat. 1089.
6. Title 21 U. S. C. § 844(b) is a federal expunction statute providing that a first offender found guilty of simple possession of a controlled substance may be placed on probation without entry of judgment, and that, upon successful completion of the probation, the court shall discharge the defendant and dismiss the proceeding against him. But Congress also specifically provided in § 844(b)(1) that such discharge or dismissal “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime ... or for any other purpose.” This provision would be superfluous if Congress had believed that expunction automatically removes the disqualification. Congress obviously knew the plain meaning of the terms it employed in statutes of this kind, and when it wished to create an exception for an expunged conviction, it did so expressly.
V
“As in all cases of statutory construction, our task is to interpret the words of [the statute] in light of the purposes Congress sought to serve.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 608 (1979). In our previous cases we have recognized and given weight to the Act’s broad prophylactic purpose:
“When Congress enacted [18 U. S. C. §921 et seq.] it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. . . . The principal purpose of federal gun control legislation, therefore, was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’” Huddleston v. United States, 415 U. S., at 824, quoting S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968).
See also Barrett v. United States, 423 U. S., at 220-221.
In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them. Such persons are also barred from obtaining licenses to deal in firearms or ammunition. This latter provision is particularly important because Title IV and federal gun laws generally funnel access to firearms almost exclusively through dealers. See Huddleston v. United States, 415 U. S., at 825. “The principal agent of federal enforcement is the dealer.” Id., at 824.
Although we have searched diligently, we have found nothing in the legislative history of Title IV or related federal firearms statutes that suggests, even remotely, that a state expunction was intended automatically to remove the disabilities imposed by §§ 922(g)(1) and (h)(1). See, e. g., S. Rep. No. 1501, 90th Cong., 2d Sess. (1968); S. Rep. No. 1097, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess. (1968); H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 488, 90th Cong., 1st Sess. (1967). This lack of evidence is significant for several reasons. First, the purpose of the statute would be frustrated by a ruling that gave effect to state expunctions; a state expunction typically does not focus upon the question with which Title IV is concerned, namely, whether the convicted person is fit to engage in the firearms business or to possess a firearm. Second, “‘[i]n the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.’” NLRB v. Natural Gas Utility Dist., 402 U. S. 600, 603 (1971), quoting NLRB v. Randolph Electric Membership Corp., 343 F. 2d 60, 62-63 (CA4 1965). This is because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control. Jerome v. United States, 318 U. S. 101, 104 (1943). The legislative history reveals that Congress believed a uniform national program was necessary to assist in curbing the illegal use of firearms. See S. Rep. No. 1097, 90th Cong., 2d Sess., 28, 76-77 (1968). Third, Title IV “is a carefully constructed package of gun control legislation. . . . ‘Congress knew the significance and meaning of the language it employed.”’ Scarborough v. United States, 431 U. S., at 570, quoting Barrett v. United States, 423 U. S., at 217. And Congress carefully crafted a procedure for removing those disabilities in appropriate cases. § 925(c).
Congress, of course, did use state convictions to trigger Title IV’s disabilities in the first instance. This, however, was not because Congress wanted to tie those disabilities to the intricacies of state law, but because such convictions provide a convenient, although somewhat inexact, way of identifying “especially risky people.” United States v. Bass, 404 U. S., at 345. There is no inconsistency in the refusal of Congress to be bound by postconviction state actions, such as expunctions, that vary widely from State to State and that provide less than positive assurance that the person in question no longer poses an unacceptable risk of dangerousness. Any potential harshness of the federal rule is alleviated by the power given the Secretary to grant relief where relief is appropriate based on uniform federal standards.
The facts of the present case are illustrative. Because Kennison had “stable employment” at home in South Carolina and no previous conviction, he was placed on probation and allowed to go home. App. to Pet. for Cert. 45a-46a. Although he had no previous conviction, Kennison did have prior arrests for “assault and battery of a high and aggravated nature” and for “child abuse.” Record, Govt. Exh. 13. According to him, his supervision during probation consisted of “occasionally reporting] that [he] had not been arrested.” App. to Brief in Opposition 157a. In short, the circumstances surrounding the expunction of his conviction provide little, if any, assurance that Kennison is a person who can be trusted with a dangerous weapon.
I — 1 >
Finally, a rule that would give effect to expunctions under varying state statutes would seriously hamper effective enforcement of Title IV. Over half the States have enacted one or more statutes that may be classified as expunction provisions that attempt to conceal prior convictions or to remove some of their collateral or residual effects. These statutes differ, however, in almost every particular. Some are applicable only to young offenders, e. g., Mich. Comp. Laws §§780.621 and .622 (1982). Some are available only to persons convicted of certain offenses, e. g., N. J. Stat. Ann. §2C:52-2(b) (West 1982); others, however, permit expunction of a conviction for any crime including murder, e. g., Mass. Gen. Laws Ann., eh. 276, §100A (West Supp. 1982-1983). Some are confined to first offenders, e. g., Okla. Stat., Tit. 22, §991c (Supp. 1982-1983). Some are discretionary, e. g., Minn. Stat. §638.02(2) (Supp. 1982), while others provide for automatic expunction under certain circumstances, e. g., Ariz. Rev. Stat. Ann. §13-912 (1978). The statutes vary in the language employed to describe what they do. Some speak of expunging the conviction, others of “sealing” the file or of causing the dismissal of the charge. The statutes also differ in their actual effect. Some are absolute; others are limited. Only a minority address questions such as whether the expunged conviction may be considered in sentencing for a subsequent offense or in setting bail on a later charge, or whether the expunged conviction may be used for impeachment purposes, or whether the convict may deny the fact of his conviction. Some statutes, too, clearly were not meant to prevent use of the conviction in a subsequent prosecution. See, e. g., Ariz. Rev. Stat. § 13-907 (1978); United States v. Herrell, 588 F. 2d 711 (CA9 1978), cert. denied, 440 U. S. 964 (1979). These and other differences provide nothing less than a national patchwork.
In this case, for example, although the Court of Appeals referred to Iowa’s deferred judgment statute as “unconditional and absolute,” 649 F. 2d, at 221, it is obvious from the face of the statute that that description is not entirely accurate. At the time of expunction, a separate record is maintained, not destroyed, by the Supreme Court administrator. Iowa Code § 907.4 (1981). See Tr. of Oral Arg. 44. In addition, all “criminal history data” may be released to “criminal justice agencies.” Iowa Code §§692.1(5) and 692.2 (1981). In short, the record of a conviction expunged under Iowa law is not expunged completely.
Under the decision below, perplexing problems would confront those required to enforce federal gun control laws as well as those bound by their provisions. Because, as we have noted, Title IV “is a carefully constructed package of gun control legislation,” Scarborough v. United States, 431 U. S., at 570, Congress, in framing it, took pains to avoid the very problems that the Court of Appeals’ decision inevitably would create, such as individualized federal treatment of every expunction law. Congress used unambiguous language in attaching gun control disabilities to any person “who has been convicted” of a qualifying offense. We give full effect to that language.
The judgment of the Court of Appeals is reversed.
It is so ordered.
The Act provides exemptions from its proscriptions for certain business and commercial crimes, such as antitrust violations, punishable by imprisonment for more than one year, and for nonfirearms and nonexplosives state offenses classified by the State as misdemeanors and punishable by imprisonment for two years or less. 18 U. S. C. § 921(a)(20). These exemptions are of no relevance here.
The court, however, in its discretion, in the case of a first offense, could reduce that punishment. See Iowa Code § 695.3 (1977). Sections 695.2 and .3 were repealed effective January 1, 1978, and are now replaced by Iowa Code §§724.4 and 903.1 (1981).
Section 789A.1 then read in pertinent part:
“The trial court may, upon a plea of guilty, verdict of guilty, or a special verdict upon which a judgment of conviction may be rendered, exercise either of the options contained in subsections 1 and 2. However, this section shall not apply to the crimes of treason, murder, or violation of [other specified statutes].
“1. With the consent of the defendant, the court may defer judgment and place the defendant on probation upon such terms and conditions as it may require. Upon fulfillment of the terms of probation the defendant shall be discharged without entry of judgment. Upon violation of the terms, the court may enter an adjudication of guilt and proceed as otherwise provided.
“However, this subsection shall not be available if any of the following is true:
“[Here are recited specific exceptions to the availability of the procedure outlined in subsection 1.]
“2. By record entry at time of or after sentencing, the court may suspend the sentence and place the defendant on probation upon such terms and conditions as it may require.
“Before exercising either of the options contained in subsections 1 and 2, the court shall first determine which of them will provide maximum opportunity for the rehabilitation of the defendant and protection of the community from further offenses by the defendant and others. In making this determination the court shall consider the age of the defendant, his prior record of convictions, if any, his employment circumstances, his family circumstances, the nature of the offense committed, whether a dangerous weapon or force was used in the commission of such offense, and such other factors as shall be appropriate. The court shall file a specific written statement of its reasons for and the facts supporting its decision to defer judgment or to suspend sentence and its decision on the length of probation.”
Section 789A.1 was enacted by 1973 Iowa Acts, ch. 295, § 1. It was repealed by 1976 Iowa Acts, ch. 1245, § 526, effective January 1, 1978. The current replacement statutes are Iowa Code §§907.3, .4, and .5 (1981).
Section 789A.6 then read in pertinent part:
“At any time that the court determines that the purposes of probation have been fulfilled, the court may order the discharge of any person from probation. ... A person who has been discharged from probation shall no. longer be held to answer for his offense. Upon discharge from probation, if judgment has been deferred under section 789A.1, the court’s criminal record with reference to the deferred judgment shall be expunged. The record maintained by the supreme court administrator required by section 789A.1 shall not be expunged. ...”
Section 789A.6 was also enacted in 1973 and was repealed, effective January 1, 1978, by the same Iowa statutes cited in the last paragraph of n. 3, supra. The current statute replacing §789A.6 is Iowa Code §907.9 (1981).
See United States v. Bergeman, 592 F. 2d 533 (CA9 1979); United States v. Mostad, 485 F. 2d 199 (CA8 1973), cert. denied, 415 U. S. 947 (1974); United States v. Lehmann, 613 F. 2d 130 (CA5 1980). See also, e. g., United States v. Padia, 584 F. 2d 85 (CA5 1978); United States v. Gray, 692 F. 2d 352 (CA5 1982); United States v. Nord, 586 F. 2d 1288 (CA8 1978); United States v. Kelly, 519 F. 2d 794 (CA8), cert. denied, 423 U. S. 926 (1975).
To be sure, the terms “convicted” or “conviction” do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered. See, e. g., 15 U. S. C. §§ 80a-2(10) and 80b-2(6). In other federal statutes, however, the term “convicted” is clearly limited to persons against whom a formal judgment has been entered. See, e. g., 18 U. S. C. § 4251(e) and 28 U. S. C. § 2901(f).
The term “convicted” in §§ 922(g) and (h) is not there defined, but we have no reason whatsoever to suppose that Congress meant that term to apply only to one against whom a formal judgment has been entered. Congress’ intent in enacting §§ 922(g) and (h) and § 1202 was to keep fire-’ arms out of the hands of presumptively risky people. See United States v. Bass, 404 U. S. 336, 345 (1971). In this connection, it is significant that §§ 922(g) and (h) apply not only to a person convicted of a disqualifying offense but also to one who is merely under indictment for such a crime.
As noted in n. 6, supra, the meaning of the terms “convicted” and “conviction” vary from statute to statute. In Lott v. United States, 367 U. S. 421 (1961), for example, the Court had under consideration Federal Rule of Criminal Procedure 34 and a plea of nolo contendere, rather than a plea of guilty. The question was whether the time within which certain motions could be made began to run at the time the nolo plea was entered or at the time judgment was pronounced and sentence imposed. The Court spoke of the possibility of the plea’s being withdrawn before sentence was imposed and therefore said that “it is the judgment of the court — not the plea — that constitutes the ‘determination of guilt.’” Id., at 427. In construing Rule 34, of course, the Court had before it no evidence of a congressional intent to rule broadly to protect the public comparable to that animating Title IV. Moreover, in Lott the Court did not deal with the situation where probation is imposed on the basis of the plea. Under the Iowa expunction statute, one who has pleaded guilty is treated identically to one who has been found guilty by a jury. See n. 3, supra. There is no suggestion in the Iowa statutes, and respondent has not suggested, that once the plea was noted and probation imposed Kennison could withdraw his plea. Indeed, it was a negotiated plea accompanied by the dismissal of the kidnaping charge.
Counsel acknowledged that during the period of Kennison’s probation, respondent was disqualified for a license. Tr. of Oral Arg. 36-37.
For purposes of Iowa’s own gun control statute, Iowa Code § 724.26 (1981), it might be argued that the conviction was nullified. See State v. Walton, 311 N. W. 2d 110, 112 (Iowa 1981). Nevertheless, the Supreme Court of Iowa has observed that the “word ‘conviction’ is of equivocal meaning, and its use in a statute presents a question of legislative intent.” State v. Hanna, 179 N. W. 2d 503, 507 (1970). Presumably, therefore, if the Supreme Court of Iowa were called upon to construe the term “convicted” in a statute like §§ 922(g) and (h), that court would look to “legislative intent.”
In any event, Iowa’s law is not federal law, and it does not control our decision here. We therefore look to federal considerations in resolving the present case.
Title VII, which we construed in Lewis, explicitly provides that pardons granted by the President of the United States or a state governor, specifying that the recipient is authorized to receive, possess, or transport firearms, lift the disabilities imposed by that Title. 18 U. S. C. App. § 1203(2). Except § 925(c), permitting the Secretary to remove the disabilities in specified circumstances, there is no comparable provision in Title IV. By regulation, the Secretary has given Presidential pardons, but not gubernatorial pardons, automatic enabling effect under Title IV. 27 CFR § 178.142 (1982).
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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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[
107
] |
ENVIRONMENTAL PROTECTION AGENCY v. NATIONAL CRUSHED STONE ASSOCIATION et al.
No. 79-770.
Argued October 7, 1980
Decided December 2, 1980
White, 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 cases.
Andrew J. Levander argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General MacBeth, and Michele B. Cdrash.
George C. Freeman, Jr., argued the cause for respondents Consolidation Coal Co. et al. Theodore L. Garrett argued the cause for respondents National Crushed Stone Association et al. With Messrs. Freeman and Garrett on the brief were Michael B. Barr, Robert F. Stauffer, Lawrence A. Demase, Frank J. Clements, and Ronald R. Janke.
Together with Costle, Administrator, Environmental Protection Agency v. Consolidation Coal Co. et al., also on certiorari to the same court (see this Court’s Rule 19.4).
J. Taylor Banks and Ronald J. Wilson filed a brief for the Natural Resources Defense Council, Inc., as amicus curiae urging reversal.
William W. Becker filed a brief for the New England Legal Foundation as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
In April and July 1977, the Environmental Protection Agency (EPA), acting under the Federal Water Pollution Control Act (Act), as amended, 86 Stat. 816, 33 U. S. C. § 1251 et seq., promulgated pollution discharge limitations for the coal mining industry and for that portion of the mineral mining and processing industry comprising the crushed-stone, construction-sand, and gravel categories. Although the Act does not expressly authorize or require variances from the 1977 limitation, each set of regulations contained a variance provision. Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause. All of the petitions for review were transferred to the Court of Appeals for the Fourth Circuit. In National Crushed Stone Assn. v. EPA, 601 F. 2d 111 (1979), and in Consolidation Coal Co. v. Costle, 604 F. 2d 239 (1979), the Court of Appeals set aside the variance provision as “unduly restrictive” and remanded the provision to EPA for reconsideration.
To obtain a variance from the 1977 uniform discharge limitations a discharger must demonstrate that the “factors relating to the equipment or facilities involved, the process applied, or other such factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines.” Although a greater than normal cost of implementation will be considered in acting on a request for a variance, economic ability to meet the costs will not be considered. A variance, therefore, will not be granted on the basis of the applicant’s economic inability to meet the costs of implementing the uniform standard.
The Court of Appeals for the Fourth Circuit rejected this position. It required EPA to “take into consideration, among other things, the statutory factors set out in § 301 (c),” which authorizes variances from the more restrictive pollution limitations to become effective in 1987 and which specifies economic capability as a major factor to be taken into account. The court held that
“ ‘if [a plant] is doing all that the maximum use of technology within its economic capability will permit and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants . . . no reason appears why [it] should not be able to secure such a variance should it comply with any other requirements of the variance.’ ” 601 F. 2d, at 124, quoting from Appalachian Power Co. v. Train, 545 F. 2d 1351, 1378 (CA4 1976).
We granted certiorari to resolve the conflict between the decisions below and Weyerhaeuser Co. v. Costle, 191 U. S. App. D. C. 309, 590 F. 2d 1011 (1978), in which the variance provision was upheld. 444 U. S. 1069.
I
We shall first briefly outline the basic structure of the Act, which translates Congress’ broad goal of eliminating “the discharge of pollutants into the navigable waters,” 33 U. S. C. §1251 (a)(1), into specific requirements that must be met by individual point sources.
Section 301 (b) of the Act, 33 U. S. C. § 1311 (b) (1976 ed. and Supp. Ill), authorizes the Administrator to set effluent limitations for categories of point sources. With respect to existing point sources, the section provides for implementation of increasingly stringent effluent limitations in two steps. The first step to be accomplished by July 1, 1977, requires all point sources to meet standards based on “the application of the best practicable control technology currently available [BPT] as defined by the Administrator . . . § 301 (b)(1) (A). The second step, to be accomplished by July 1, 1987, requires all point sources to meet standards based on application of the “best available technology economically achievable [BAT] for such category or class . ...” § 301 (b) (2) (A). Both sets of limitations — BPT’s followed within 10 years by BAT’s — are to be based upon regulatory guidelines established under § 304 (b).
Section 304 (b) of the Act,'33 U. S. C. § 1314 (b), is again divided into two sections corresponding to the two levels of technology, BPT and BAT. Under 1304 (b)(1) the Administrator is to quantify “the degree of effluent reduction attainable through the application of the best practicable control technology currently available [BPT] for classes and categories of point sources . . . .” In assessing the BPT the Administrator is to consider
“the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, . . . the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.” 33 U. S. C. §1314 (b)(1)(B).
Similar directions are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits.
Section 402 authorizes the establishment of the National Pollutant Discharge Elimination System (NPDES), under which every discharger of pollutants is required to obtain a permit. The permit requires the discharger to meet all the applicable requirements specified in the regulations issued under § 301. Permits are issued by either the Administrator or state agencies that have been approved by the Administrator. The permit “transform [s] generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger. . . .” EPA v. California ex rel. State Water Resources Control Board, 426 U. S. 200, 205 (1976).
Section 301 (c) of the Act explicitly provides for modifying the 1987 (BAT) effluent limitations with respect to individual point sources. A variance under § 301 (c) may be obtained upon a showing “that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.” Thus, the economic ability of the individual operator to meet the costs of effluent reductions may in some circumstances justify granting a variance from the 1987 limitations.
No such explicit variance provision exists with respect to BPT standards, but in E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112 (1977), we indicated that a variance provision was a necessary aspect of BPT limitations applicable by regulations to classes and categories of point sources. Id., at 128. The issue in this case is whether the BPT variance provision must allow consideration of the economic capability of an individual discharger to afford the costs of the BPT limitation. For the reasons that follow, our answer is in the negative.
II
The plain language of the statute does not support the position taken by the Court of Appeals. Section 301 (c) is limited on its face to modifications of the 1987 BAT limitations. It says nothing about relief from the 1977 BPT requirements. Nor does the language of the Act support the position that although § 301 (c) is not itself applicable to BPT standards, it requires that the affordability of the prescribed 1977 technology be considered in BPT variance decisions. This would be a logical reading of the statute only if the factors listed in § 301 (c) bore a substantial relationship to the considerations underlying the 1977 limitations as they do to those controlling the 1987 regulations. This is not the case.
The two factors listed in § 301 (c) — “maximum use of technology within the economic capability of the owner or operator” and “reasonable further progress toward the elimination of the discharge of pollutants” — parallel the general definition of BAT standards as limitations that “require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward . . . eliminating the discharge of all pollutants . . . .” §301 (b)(2). A §301 (c) variance, thus, creates for a particular point source a BAT standard that represents for it the same sort of economic and technological commitment as the general BAT standard creates for the class. As with the general BAT standard, the variance assumes that the 1977 BPT standard has been met by the point source and that the modification represents a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges. No one who can afford the best available technology can secure a variance.
There is no similar connection between § 301 (c) and the considerations underlying the establishment of the 1977 BPT limitations. First, § 301 (c)’s requirement of “reasonable further progress” must have reference to some prior standard. BPT serves as the prior standard with respect to BAT. There is, however, no comparable, prior standard with respect to BPT limitations. Second, BPT limitations do not require an industrial category to commit the maximum economic resources possible to pollution control, even if affordable. Those point sources already using a satisfactory pollution control technology need take no additional steps at all. The § 301 (c) variance factor, the “maximum use of technology within the economic capability of the owner or operator,” would therefore be inapposite in the BPT context. It would not have the same effect there that it has with respect to BAT’s, i. e., it would not apply the general requirements to an individual point source.
More importantly, to allow a variance based on the maximum technology affordable by the point source, even if that technology fails to meet BPT effluent limitations, would undercut the purpose and function of BPT limitations. Rather than the 1987 requirement of the best measures economically and technologically feasible, the statutory provisions for 1977 contemplate regulations prohibiting discharges from any point source in excess of the effluent produced by the best practicable technology currently available in the industry. The Administrator was referred to the industry and to existing practices to determine BPT. He was to categorize point sources, examine control practices in exemplary plants in each category, and, after weighing benefits and costs and considering other factors specified by § 304, determine and define the best practicable technology at a level that would effect the obvious statutory goal for 1977 of substantially reducing the total pollution produced by each category of the industry. Necessarily, if pollution is to be diminished, limitations based on BPT must forbid the level of effluent produced by the most pollution-prone segment of the industry, that segment not measuring up to “the average of the best existing performance.” So understood, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently in use in the industry.
To put the matter another way, under § 304, the Administrator is directed to consider the benefits of effluent reductions as compared to the costs of pollution control in determining BPT limitations. Thus, every BPT limitation represents a conclusion by the Administrator that the costs imposed on the industry are worth the benefits in pollution reduction that will be gained by meeting those limits. To grant a variance because a particular owner or operator cannot meet the normal costs of the technological requirements imposed on him, and not because there has been a recalculation of the benefits compared to the costs, would be inconsistent with this legislative scheme and would allow a level of pollution inconsistent with the judgment of the Administrator.
In terms of the scheme implemented by BPT limitations, the factors that the Administrator considers in granting variances do not suggest that economic capability must also be a determinant. The regulations permit a variance where “factors relating to the equipment or facilities involved, the process applied, or such other factors relating to such dis-charger are fundamentally different from the factors considered in the establishment of the guidelines.” If a point source can show that its situation, including its costs of compliance, is not within the range of circumstances considered by the Administrator, then it may receive a variance, whether or not the source could afford to comply with the minimum standard. In such situations, the variance is an acknowledgment that the uniform BPT limitation was set without reference to the full range of current practices, to which the Administrator was to refer. Insofar as a BPT limitation was determined without consideration of a current practice fundamentally different from those that were considered by the Administrator, that limitation is incomplete. A variance based on economic capability, however, would not have this character: it would allow a variance simply because the point source could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered in determining BPT. It would force a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on one particular operator, rather than on another who might be economically better off.
Because the 1977 limitations were intended to reduce the total pollution produced by an industry, requiring compliance with BPT standards necessarily imposed additional costs on the segment of the industry with the least effective technology. If the statutory goal is to be achieved, these costs must be borne or the point source eliminated. In our view, requiring variances from otherwise valid regulations where dischargers cannot afford normal costs of compliance would undermine the purpose and the intended operative effect of the 1977 regulations.
III
The Administrator’s present interpretation of the language of the statute is amply supported by the legislative history, which persuades us that Congress understood that the economic capability provision of § 301 (c) was limited to BAT variances; that Congress foresaw and accepted the economic hardship, including the closing of some plants, that effluent limitations would cause; and that Congress took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability.
There is no indication that Congress intended § 301 (c) to reach further than the limitations of its plain language. The statement of the House managers of the Act described § 301 (c) as “not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of ‘best practicable control technology.’ ” Leg. Hist. 232. The Conference Report noted that a § 301 (c) variance could only be granted after the effective date of BPT limitations and could only be applied to BAT limitations. Similarly, the Senate Report on the Conference action emphasized that one of the purposes of the BPT limitation was to avoid imposing on the “Administrator any requirement ... to determine the economic impact of controls on any individual plant in a single community.” Leg. Hist. 170.
Nor did Congress restrict the reach of § 301 (c) without understanding the economic hardships that uniform standards would impose. Prior to passage of the Act, Congress had before it a report jointly prepared by EPA, the Commerce Department, and the Council on Environmental Quality on the impact of the pollution control measures on industry. That report estimated that there would be 200 to 300 plant closings caused by the first set of pollution limitations. Comments in the Senate debate were explicit: “There is no doubt that we will suffer some disruptions in our economy because of our efforts; many marginal plants may be forced to close.” Leg. Hist. 1282 (Sen. Bentsen). The House managers explained the Conference position as follows:
“If the owner or operator of a given point source determines that he would rather go out of business than meet the 1977 requirements, the managers clearly expect that any discharge issued in the interim would reflect the fact that all discharges not in compliance with such 'best practicable technology currently available’ would cease by June 30, 1977.” Id., at 231.
Congress did not respond to this foreseen economic impact by making room for variances based on economic impact. In fact, this possibility was specifically considered and rejected:
“The alternative [to a loan program] would be waiving strict environmental standards where economic hardship could be shown. But the approach of giving variances to pollution controls based on economic grounds has long ago shown itself to be a risky course: All too often, the variances become a tool used by powerful political interests to obtain so many exemptions for pollution control standards and timetables on the flimsiest [sic] of pretenses that they become meaningless.' In short, with variances, exceptions to pollution cleanup can become the rule, meaning further tragic delay in stopping the destruction of our environment.” Id., at 1355 (Sen. Nelson).
Instead of economic variances, Congress specifically added two other provisions to address the problem of economic hardship.
First, provision was made for low-cost loans to small businesses to help them meet the cost of technological improvements. 86 Stat. 898, amending § 7 of the Small Business Act, 15 U. S. C. § 636. The Conference Report described the provision as authorizing the Small Business Administration “to make loans to assist small business concerns ... if the Administrator determines that the concern is likely to suffer substantial economic injury without such assistance.” Leg. Hist. 153. Senator Nelson, who offered the amendment providing for these loans, saw the loans as an alternative to the dangers of an economic variance provision that he felt might otherwise be necessary. Several Congressmen understood the loan program as an alternative to forced closings: “It- is the smaller business that is hit hardest by these laws and their enforcement. And it is that same class of business that has the least resources to meet the demands of this enforcement. . . . Without assistance, many of these businesses may face extinction.” Id., at 1359 (Sen. McIntyre).
Second, an employee protection provision was added, giving EPA authority to investigate any plant’s claim that it must cut back production or close down because of pollution control regulations. § 507 (e), 86 Stat. 890, 33 U. S. C. § 1367 (e). This provision had two purposes: to allow EPA constantly to monitor the economic effect on industry of pollution control rules and to undercut economic threats by industry that would create pressure to relax effluent limitation rules. Representative Fraser explained this second purpose as follows:
“[T]he purpose of the amendment is to provide for a public hearing in the case of an industry claim that enforcement of these water-control standards will force it to relocate or otherwise shut down operations. . . . I think too many companies use the excuse of compliance, or the need for compliance, to change operations that are going to change anyway. It is this kind of action that gives the whole antipollution effort a bad name and causes a great deal of stress and strain in the community.” Leg. Hist. 659.
The only protection offered by the provision, however, is the assurance that there will be a public inquiry into the facts behind such an economic threat. The section specifically concludes that “[n]othing in this subsection shall be construed to require or authorize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter.” § 507 (e), 33 U. S. C. § 1367 (e).
As we see it, Congress anticipated that the 1977 regulations would cause economic hardship and plant closings: “[T]he question ... is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations.” Du Pont, 430 U. S., at 138.
IV
It is by now a commonplace that “when faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tollman, 380 U. S. 1, 16 (1965). The statute itself does not provide for BPT variances in connection with permits for individual point sources, and we had no occasion in Du Pont to address the adequacy of the Administrator’s 1977 variance provision. In the face of § 301 (c)’s explicit limitation and in the absence of any other specific direction to provide for variances in connection with permits for individual point sources, we believe that the Administrator has adopted a reasonable construction of the statutory mandate.
In rejecting EPA’s interpretation of the BPT variance provision, the Court of Appeals relied on a mistaken conception of the relation between BPT and BAT standards. The court erroneously believed that since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability. The variances permitted by § 301 (c) from the 1987 limitations, however, can reasonably be understood to represent a cost in decreased effluent reductions that can only be afforded once the minimal standard expressed in the BPT limitation has been reached.
We conclude, therefore, that the Court of Appeals erred in not accepting EPA’s interpretation of the Act. EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT regulations.
The judgments of the Court of Appeals are
Reversed.
Justice Powell took no part in the consideration or decision of these cases.
The coal mining standards were published at 42 Fed. Reg. 21380 et seq. (1977), adopting 40 CFR Part 434. The mineral mining and processing standards were published at 42 Fed. Reg. 35843 et seq. (1977), adopting 40 CFR Part 436.
The variance provision reads as follows:
“In establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can affect the industry subcategorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence to the Regional Administrator (or to the State, if the State has the authority to issue NPDES permits) that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. Such limitation must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations, or initiate proceedings to revise these regulations.”
See 40 CFR §434.22 (1980) (coal preparation plants); §434.32 (acid mine drainage); § 434.42 (alkaline mine drainage); § 436.22 (crushed stone) and §436.32 (construction sand and gravel).
The actions were brought under §509 (b)(1)(E), which, as set forth in 33 U. S. C. § 1369 (b)(1)(E), gives the courts of appeals jurisdiction to review “the Administrator’s action ... in approving or promulgating any effluent limitation or other limitation under section 1311 ... of this title. . . .” Plaintiffs in National Crushed Stone were three producers and their trade association. Plaintiffs in Consolidation Coal were 17 coal producers, their trade association, 5 citizens’ environmental associations, and the Commonwealth of Pennsylvania.
In National Crushed Stone, the Court of Appeals also vacated and remanded the substantive regulations. That action is not before the Court. In Consolidation Coed, the substantive regulations were upheld.
EPA has explained its position as follows:
“Thus a plant may be able to secure a BPT variance by showing that the plant’s own compliance costs with the national guideline limitation would be x times greater than the compliance costs of the plants EPA considered in setting the national BPT limitation. A plant may not, however, secure a BPT variance by alleging that the plant’s own financial status is such that it cannot afford to comply with the national BPT limitation.” 43 Fed. Reg. 50042 (1978).
Section 301 (c), 86 Stat. 844, 33 U. S. C. §1311 (c), allows the Administrator to grant a variance “upon a showing by the owner or operator .. . that such modified requirements (1) wiU represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.”
A “point source” is defined as “any discernible, confined and discrete conveyance, . . . from which pollutants are or may be discharged.” § 502 (14), 33 U. S. C. § 1362 (14) (1976 ed., Supp. III).
Throughout this opinion “Administrator” refers to the Administrator of EPA. In E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112 (1977), we sustained the Administrator’s authority to issue the 1977 effluent limitations.
The Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, required that the second-stage standards be met by 1983. This deadline was extended in the Clean Water Act of 1977, 91 Stat. 1567. Depending on the nature of the pollutant, the deadline for the more stringent limitations now falls between July 1, 1984, and July 1, 1987. The 1977 Act also replaced the BAT standard with a new standard, “best conventional pollutant control technology [BCT],” for certain so-called “conventional pollutants.” 33 U. S. C. § 1311 (b)(2)(E) (1976 ed., Supp. III). The distinction between BCT and BAT is not relevant to the issue presented here.
Senator Muskie, the principal Senate sponsor of the Act, described the “limited cost-benefit analysis” employed in setting BPT standards as being intended to “limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction. . . Remarks of Senator Muskie reprinted in 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. 170 (1973) (hereafter Leg. Hist.). Section 304 (b)(2)(B) lists “cost” as a factor to consider in assessing BAT, although it does not state that costs shall be considered in relation to effluent reduction.
Establishment of state permit programs is authorized by §402 (b), 33 U. S. C. § 1342 (b) (1976 ed., Supp. III). At present, over 30 States and covered territories operate their own NPDES .programs.
In Du Pont, we held that pre-enforcement review of the BPT variance provision would be “premature,” 430 U. S., at 128, n. 19. In its petition for certiorari in this case, EPA argued that the Court of Appeals erred in reviewing the variance clause prior to application of the regulation to a particular discharger’s request for a variance. EPA has now abandoned this position. We agree with the Court of Appeals that whatever may have been true at the time of Du Pont, pre-enforcement review of the variance provisiones no longer premature since EPA has now taken the definitive position that the factors specified in § 301 (e) apply only to BAT limitations, and not to BPT limitations. See 43 Fed. Reg. 44847-44848, 50042 (1978); 44 Fed. Reg. 32893-32894 (1979). But cf. n. 25, infra. The Court of Appeals for the District of Columbia Circuit reached the same conclusion in considering the identical variance clause in the context of BPT standards for paper mills:
“In the three years that have now elapsed since du Pont was briefed and argued in the Fourth Circuit, however, enough indicia of the Agency’s attitude toward the 1977 variance provision under the Act has [sic] accumulated so that its administration is anything but ‘a matter of speculation.’ ” Weyerhaeuser Co. v. Costle, 191 U. S. App. D. C. 309; 330, 590 F. 2d 1011, 1032 (1978) (citation omitted).
This is the proper result under the twofold test articulated in Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967), for evaluating the ripeness of administrative action. First, the issue is “fit” for judicial decision, because it involves only a question of law: whether the Court of Appeals properly construed the Act to require EPA to consider § 301 (c) factors in granting BPT variances. ' Second, failure to review the variance issue now would cause “hardship” to the parties. The regulations in question affect thousands of point sources throughout the country — about 4,800 crushed-stone facilities and 6,000 coal facilities, many of them involved in this case through their trade associations. The resolution of this conflict will determine for some of these plants whether they will continue to exist or not, and for many others it will determine the level of funding they must budget for pollution controls. They should not be left to speculate on what the regulations require of them. Similarly, EPA represents to the Court that a failure to resolve the issue will cause some hardship to EPA: “a present ruling . . . would advance rather than impede the administrative enforcement of the Act.” Brief for Petitioners 21, n. 17.
Moreover, in Du Pont, supra, we held that a uniform BPT effluent regulation must contain a variance provision, if it is to be valid. EPA has definitively stated that economic capability will not be a ground for a variance. Section 509 (b)(1)(E) provides for judicial review of effluent limitations promulgated pursuant to § 301, and these actions were brought under that section. Since the variance clause is an integral part of the regulation, review of the regulation must reach the question of whether this limitation on the scope of the variance provision renders the regulation invalid under Du Pont.
Finally, the fact that the Court of Appeals for the Fourth Circuit held the variance provision to be invalid, while the Court of Appeals for the District of Columbia Circuit in Weyerhaeuser, supra, upheld the same provision provides yet another reason for this Court to settle this controversy at this time. For all of these reasons, the issue is ripe for judicial review.
It is true that in Du Pont we said there “[was no] radical difference in the mechanism used to impose limitations for the 1977 and the 198[7] deadlines” and that “there is no indication in either § 301 or § 304 that the § 304 guidelines play a different role in setting 1977 limitations.” 430 U. S., at 127. But our decision in Du Pont was that the 1977 limitations, like the 1987 limitations, could be set by regulation and for classes of point sources. It dealt with the power of the Administrator and the procedures he was to employ. There was no suggestion, nor could there have been, that the 1977 BPT and the 1987 BAT limitations were to have identical purposes or content. It follows that no proper inference could be drawn from Du Pont that the grounds for issuing variances from the 1987 limitations should also be the grounds for permitting individual point sources to depart from 1977 standards. Indeed, our opinion recognized that § 301 (c) was designed for BAT limitations, 430 U. S., at 121, 127, n. 17. Had we thought that § 301 (c) governed variances from both the BAT and BPT standards, there would have been no need to postpone to another day, as we did in 430 U. S., at 128, n. 19, the question whether the variance clause contained in the 1977 regulations had the proper scope. That scope would have been defined by § 301 (c).
Also, the ultimate goal expressed in § 301 (c), “the elimination of the discharge of pollutants,” reflects the “national goal” specified in § 301 (b) (2) (A) of “eliminating the discharge of all pollutants.” This is not the aim of a BPT limitation; its more modest purpose is to effect a first step toward this goal. Thus, while BAT limitations may be regarded as falling between a level of effluent reduction already achieved and the ultimate goal, the frame of reference within which BPT limitations are established contains neither the prior nor the subsequent measure.
EPA defines BPT as “the average of the best existing performance by plants of various sizes, ages and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants.” 39 Fed. Reg. 6580 (1974). See also EPA, Effluent Guidelines Div., Development Document for Mineral Mining and Processing Point Source Category 409 (1979) and Development Document for Coal Mining 225 (1976). Support for this definition is found in the legislative history, Leg. Hist. 169-170 (remarks of Sen. Muskie); id., at 231 (remarks of Rep. Jones).
Respondents fail to consider this tension between a general calculation of costs and benefits and a particularized consideration of costs when they argue that because EPA only has authority to promulgate industrywide BPT regulations by analogy to its authority to promulgate industrywide BAT regulations, the same kind of economic capability/effluent reduction balancing relevant to a BAT variance must apply as well to a BPT variance.
Respondents argue that precluding consideration of economic capability in determining whether to grant a variance effectively precludes consideration of the “total costs” for the individual point source. Respondents rely upon a statement by Representative Jones as to the meaning of “total cost” in § 304 (b) (1) (B):
“internal, or plant, costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation and rural area economic development sustained by the community, area, or region.” Leg. Hist. 231.
Unless economic capability is considered, it is argued, it will be impossible to consider the potential external costs of meeting a BPT limitation, caused by a plant closing. Although there is some merit to respondents’ contention, we do not believe it supports the decision of the Court of Appeals. The court did not hold that economic capability is relevant only if it discloses “fundamentally different” external costs from those considered by EPA in establishing the BPT limitation; rather, the court held that the factors included in § 301 (e) must be taken into consideration. Section 301 (c) makes economic capability, regardless of its effect on external costs, a ground for a variance. It is this position that we reject.
Since any variance provision will permit nonuniformity with the general BPT standard for a given category, we cannot attribute much weight to those passages in the legislative history, to which EPA points, that express a desire and expectation that “each polluter within a category or class of industrial sources . . . achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977.” See Leg. Hist. 162 (statement of Sen! Muskie). See also, e. g., id,, at 170; id., at 302, 309 (Conference Report); id., at 787 (Report of House Committee on Public Works). Moreover, EPA has itself stated that a variance does not represent an exception to BPT or BAT limitations, but rather sets an individualized BPT or BAT limitation for that point source: “No discharger . . . may be excused from the Act’s requirement to meet BPT [and] BAT . . . through this variance clause. A discharger may instead receive an individualized definition of such a limitation or standard where the nationally prescribed limit is shown to be more or less stringent than appropriate for the discharger under the Act.” 44 Fed. Reg. 32893 (1979). Therefore, expressions of an intent that “all” point sources meet BPT standards by 1977 do not necessarily support EPA’s argument.
U. S. Council on Environmental Quality, Dept, of Commerce, & EPA, The Economic Impact of Pollution Control (Mar. 1972). See Leg. Hist. 156, 523.
See also remarks quoted in n. 22, infra.
See quotation above.
Similar remarks were made by Representative Harrington (“No one in Congress wishes to legislate so irresponsibly that we drive out of business those who sincerely wish to abide by the new pollution laws but who, because of a bad state of the economy, will be forced to close. The $800 million authorized by this section may not be completely adequate. But it is a start,” Leg. Hist. 450).
Section 507 (e) provides in pertinent part: “The Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the issuance of any effluent limitation or order under this chapter, including, where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such limitation or order. Any employee who is discharged or laid-off, threatened with discharge or lay-off . . . because of the alleged results of any effluent limitation or order issued under this chapter . . . may request the Administrator to conduct a full investigation of the matter. . . . [T]he Administrator shall make findings of fact as to the effect of such effluent limitation or order on employment and on the alleged discharge, layoff, or discrimination and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public.” 33 U. S. C. § 1367 (e).
See Leg. Hist. 654-659. Representative Abzug emphasized the first purpose of the provision: “This amendment will allow the Congress to get a close look at the effects on employment of legislation such as this, and will thus place us in a position to consider such remedial legislation as may be necessary to ameliorate those effects.” Id., at 658. Representative Miller noted that “some economic hardship, especially in smaller communities who rely on single, older plants, may result from the requirements of the pending bill,” but opposed this provision because he thought that economic hardships caused by the Act should be addressed systematically by modifying the Economic Development Act. Ibid.
Respondents contend that deference to agency interpretation is not appropriate in this case because EPA has not consistently interpreted the BPT variance requirements. However, in only one instance has EPA stated that it would consider economic capability in relation to BPT variance applications. 43 Fed. Reg. 44846-44848 (1978). This was in response to the Court of Appeals decision in Appalachian Power Co. v. Train, 545 F. 2d 1351 (CA4 1976), and EPA specifically limited this change to steam electric power generating plants, which were the subject of the court's order.
This argument appears in Appalachian Power, supra, at 1359, which the Court of Appeals relies upon in Crushed Stone. 601 F. 2d, at 123.
The Court of Appeals also believed that because there will be situations in which the BPT and the BAT standards are identical, see Development Document for Mineral Mining, supra n. 15, at 438, it would be illogical to allow a variance based on economic capability for the latter but not for the former. The result would be to “close a plant in 1979 which would be allowed to operate under a variance in 1983.” 601 F. 2d, at 124. This assumes, however, that a variance would be available even though BPT standards had not been met, an assumption which EPA rejects, Brief for Petitioners 27, and which is questionable in light of the legislative history. Leg. Hist. 232 (“This provision [§301 (c)] is not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of ‘best practicable control technology.’ ” (Rep. Jones, chairman of the House Conferees)). The suggested contradiction is accordingly unlikely to appear. In any event, it is of minor significance in considering the facial validity of the 1977 variance provisions.
We find no support for respondents’ contention that Congress implicitly approved the Court of Appeals' reading of the variance provision, when it considered and passed the 1977 amendments to the Act. Respondents rely primarily on the discussion of Appalachian Power in a document prepared by the Library of Congress for the House Committee on Public Works and Transportation, Case Law Under the FWPCA Amendments of 1972 (Comm. Print 1977). However, that document notes that there was at that time a conflict in the United States Courts of Appeals over the validity of the variance provision and in no way indicates that the Appalachian Power decision was the correct interpretation. Id., at 28.
|
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"
] |
[
32
] |
FORD MOTOR COMPANY
v.
UNITED STATES.
No. 13-113.
Supreme Court of the United States
Dec. 2, 2013.
PER CURIAM.
When a taxpayer overpays his taxes, he is generally entitled to interest from the Government for the period between the payment and the ultimate refund. See 26 U.S.C. § 6611(a). That interest begins to run "from the date of overpayment." §§ 6611(b)(1), (b)(2). But the Code does not define "the date of overpayment."
In this case, after the Internal Revenue Service advised Ford Motor Company that it had underpaid its taxes from 1983 until 1989, Ford remitted a series of deposits to the IRS totaling $875 million. Those deposits stopped the accrual of interest that Ford would otherwise owe once the audits were completed and the amount of its underpayment was finally determined. See § 6601, Rev. Proc. 84-58, 1984-2 Cum. Bull. 501. Later, Ford requested that the IRS treat the deposits as advance payments of the additional tax that Ford owed. Eventually the parties determined that Ford had overpaid its taxes in the relevant years, thereby entitling Ford to a return of the overpayment as well as interest. But the parties disagreed about when the interest began to run under 26 U.S.C. § 6611(b)(1). Ford argued that "the date of overpayment" was the date that it first remitted the deposits to the IRS. Ibid. The Government countered that the date of overpayment was the date that Ford requested that the IRS treat the remittances as payments of tax. The difference between the parties' competing interpretations of § 6611(b) is worth some $445 million.
Ford sued the Government in Federal District Court, asserting jurisdiction under 28 U.S.C. § 1346(a)(1). The Government did not contest the court's jurisdiction. See Brief in Opposition 3, n. 3. The District Court accepted the Government's construction of § 6611(b) and granted its motion for judgment on the pleadings. A panel of the Court of Appeals for the Sixth Circuit affirmed, concluding that § 6611 is a waiver of sovereign immunity that must be construed strictly in favor of the Government. 508 Fed.Appx. 506 (2012).
Ford sought certiorari, arguing that the Sixth Circuit was wrong to give § 6611 a strict construction. In Ford's view, it is 28 U.S.C. § 1346-not § 6611-that waives the Government's immunity from this suit, and § 6611(b) is a substantive provision that should not be construed strictly. SeeGómez-Pérez v. Potter, 553 U.S. 474, 491, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008); United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-473, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003). In its response to Ford's petition for certiorari, however, the Government contended for the first time that § 1346(a)(1) does not apply at all to this suit; it argues that the only basis for jurisdiction, and "the only general waiver of sovereign immunity that encompasses [Ford's] claim," is the Tucker Act, 28 U.S.C. § 1491(a). Brief in Opposition 3, n. 3. Although the Government acquiesced in jurisdiction in the lower courts, if the Government is now correct that the Tucker Act applies to this suit, jurisdiction over this case was proper only in the United States Court of Federal Claims. See § 1491(a).
This Court "is one of final review, 'not of first view.' " FCC v. Fox Television Stations, Inc., 556 U.S. 502, 529, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)). The Sixth Circuit should have the first opportunity to consider the Government's new contention with respect to jurisdiction in this case. Depending on that court's answer, it may also consider what impact, if any, the jurisdictional determination has on the merits issues, especially whether or not § 6611 is a waiver of sovereign immunity that should be construed strictly.
The petition for certiorari is granted, the judgment of the Sixth Circuit is vacated, and the case is remanded for further proceedings.
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?
|
[
"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
] |
IMMIGRATION AND NATURALIZATION SERVICE v. YUEH-SHAIO YANG
No. 95-938.
Argued October 15, 1996
Decided November 13, 1996
Beth S. Brinkmann argued the cause for petitioner. With her on the briefs were Solicitor General Days, Acting Solicitor General Dellinger, Assistant Attorney General Hunger, and Deputy Solicitor General Kneedler.
Howard Horn argued the cause for respondent. With him on the brief were Robert L. Reeves, Franklin W. Nelson, and Bill Ong Hing
Daniel J. Popeo and David A. Price filed a brief for the Washington Legal Foundation as amicus curiae urging reversal.
Sandra E. Kupelian filed a brief for the American Immigration Lawyers Association et al. as amici curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), 95 Stat. 1616, as amended, 8 U. S. C. § 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States.
' Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People’s Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme: After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife “Mary” was a United States citizen by birth and that respondent had been lawfully admitted for permanent residence. In 1985, while respondent’s naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship).
The Immigration and Naturalization Service (INS) ultimately learned of respondent’s unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was de-portable under 8 U. S. C. § 1251(a)(1)(A), because he was ex-cludable from the United States at the time of entry under the former 8 U. S. C. §§ 1182(a)(14), (19), and (20) (1988 ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under § 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge’s denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent’s fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent’s “acts of immigration fraud before and after his 1978 entry into the United States,” App. to Pet. for Cert. 10a, including his first sham divorce to facilitate his wife’s unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name.
visa The Court of Appeals for the Ninth Circuit granted respondent’s petition for review, vacated the Board’s decision, and remanded the case for further proceedings. Yang v. INS, 58 F. 3d 452 (1995). The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent’s participation in his wife’s fraudulent entry, because those acts were “inextricably intertwined with Mr. Yang’s own efforts to secure entry into the country and must be considered part of the initial fraud.” Id., at 453. The Ninth Circuit also concluded that the Board improperly considered respondent’s fraudulent application for naturalization as an adverse factor because that application “must be considered an extension of the initial fraud.” Ibid. We granted certiorari. 516 U. S. 1110 (1996).
Section 1251(a)(1)(H) provides, in relevant part, as follows:
“The provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 1182(a)(6)(C)(i) of this title [who have obtained a visa, documentation, entry or INA benefit by fraud or misrepresentation] . . . may, in the discretion of the Attorney General, be waived for any alien ... who—
“(i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
"(ii) was possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title [relating to possession of valid labor certifications, immigrant visas and entry documents] which were a direct result of that fraud or misrepresentation.”
The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General (or her delegate, the INS, see 8 CFR §2.1 (1996)) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General’s suspension of deportation under a related and similarly phrased provision of the INA as “ ‘an act of grace’ ” which is accorded pursuant to her “unfettered discretion,” Jay v. Boyd, 351 U. S. 345, 354 (1956) (quoting Escoe v. Zerbst, 295 U. S. 490, 492 (1935)), and have quoted approvingly Judge Learned Hand’s likening of that provision to “ ‘a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict,’” 351 U. S., at 354, n. 16 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489, 491 (CA2 1950)).
Respondent contends, however, that the portion of § 1251(a)(l)(H)(ii) requiring the alien to be “otherwise admissible” — that is, not excludable on some ground other than the entry fraud — precludes the Attorney General from considering the alien’s fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-of-deportation statute at issue in INS v. Errico, 385 U. S. 214 (1966), under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under § 1251(a)(1)(H), including the requirement that the alien have been “otherwise admissible,” establishes only the alien’s eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent’s argument that all entry fraud must be excused, which is untenable.
Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See Delmundo v. INS, 43 F. 3d 436, 440 (CA9 1994). This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS’s frequent concessions in litigation that the underlying fraud for which the alien is deportable “should not be considered as an adverse factor in the balancing equation,” Liwanag v. INS, 872 F. 2d 685, 687 (CA5 1989); see also Braun v. INS, 992 F. 2d 1016, 1020 (CA9 1993); Start v. INS, 803 F. 2d 539, 542 (CA9 1986), withdrawn, 862 F. 2d 787 (1988). (Such concessions were facilitated, no doubt, by the Ninth Circuit’s frequent intimations that the statute forbade consideration of the initial fraud. See Hernandez-Robledo v. INS, 777 F. 2d 536, 541 (1985); see also Braun, supra, at 1020; Delmundo, supra, at 441.) Before us, however, the United States disclaims such a position — and even if that were the agency’s view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 229-230 (1994). But that does not render the INS’s practice irrelevant. Though the agency’s discretion is unfettered at the outset, if it announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary, capricious, [or] an abuse of discretion” within the meaning of the Administrative Procedure Act, 5 U. S. C. § 706(2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes “entry fraud” under that policy, excluding events removed in time and circumstance from respondent’s entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The “entry fraud” exception being, under the current statute, a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as “inextricably intertwined” with, or an “extension” of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an “inextricably intertwined” or “essential extension” augmentation of her “entry fraud” exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. for the Ninth
The judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
Our jurisdiction over this matter is not in question. See 5 U. S. C. § 702. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA), Div. C., Department of Defense Appropriations Act, 1997, Pub. L. 104-208,110 Stat. 3009, provides that “[notwithstanding any other provision of law, no court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General the authority for which is specified under [Title 8 U. S. C.] to be in the discretion of the Attorney General _” IIRA § 306(a). That provision does not take effect, however, until April 1,1997. See IIRA §§ 306(c)(1), 309(a) (as amended by Pub. L. 104-302, §2,110 Stat. 3656).
The last clause of the quoted provision is less than artfully drawn, since the phrase “that fraud or misrepresentation” has no apparent antecedent. The antecedent was unmistakable in the prior version of the provision, which, in its prologue, that [the aliens] 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.” 8 U. S. C. § 1251(f) (1988 ed.). In the prologue of the current provision, that explicit (but lengthy) reference to fraud or misrepresentation has been replaced by citation of § 1182(a)(6)(C)(i), which uses almost the same language to define a class of excludable aliens. We think it if not obvious, then at least inevitable, that the phrase “that fraud or misrepresentation” refers to the fraud or misrepresentation for which waiver is sought, alluded to, through citation of § 1182 (a) (6)(G)(i), in the prologue.
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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
] |
LARSON, COMMISSIONER OF SECURITIES, MINNESOTA DEPARTMENT OF COMMERCE, et al. v. VALENTE et al.
No. 80-1666.
Argued December 9, 1981
Decided April 21, 1982
Brennan, J., delivered the opinion of the Court, in which Marshall, Blackmun, Powell, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 256. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 258. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White and O’Connor, JJ., joined, post, p. 264.
Larry Salustro, Special Assistant Attorney General of Minnesota, argued the cause for appellants. With him on the briefs were Warren Spannaus, Attorney General, pro se, and William P. Marshall, Special Assistant Attorney General.
Barry A. Fisher argued the cause for appellees. With him on the brief were David Grosz and Robert C. Moest.
Briefs of amici curiae urging affirmance were filed by Charles S. Sims and Bruce J. Ennis for the American Civil Liberties Union et al; by Nathan Z. Dershowitz for the American Jewish Congress; by Lee Boothby for the Americans United for Separation of Church and State Fund, Inc.; by Robert L. Toms for the Center for Law and Religious Freedom of the Christian Legal Society; by Robert W. Nixon for the General Conference of Seventh-Day Adventists et al; and by the Greater Minneapolis Association of Evangelicals.
Justice Brennan
delivered the opinion of the Court.
The principal question presented by this appeal is whether a Minnesota statute, imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from nonmembers, discriminates against such organizations in violation of the Establishment Clause of the First Amendment.
HH
Appellants are John R. Larson, Commissioner of Securities, and Warren Spannaus, Attorney General, of the State of Minnesota. They are, by virtue of their offices, responsible for the implementation and enforcement of the Minnesota charitable solicitations Act, Minn. Stat. §§ 309.50-309.61 (1969 and Supp. 1982). This Act, in effect since 1961, provides for a system of registration and disclosure respecting charitable organizations, and is designed to protect the contributing public and charitable beneficiaries against fraudulent practices in the solicitation of contributions for purportedly charitable purposes. A charitable organization subject to the Act must register with the Minnesota Department of Commerce before it may solicit contributions within the State. § 309.52. With certain specified exceptions, all charitable organizations registering under §309.52 must file an extensive annual report with the Department, detailing, inter alia, their total receipts and income from all sources, their costs of management, fundraising, and public education, and their transfers of property or funds out of the State, along with a description of the recipients and purposes of those transfers. §309.53. The Department is authorized by the Act to deny or withdraw the registration of any charitable organization if the Department finds that it would be in “the public interest” to do so and if the organization is found to have engaged in fraudulent, deceptive, or dishonest practices. §309.532, subd. 1 (Supp. 1982). Further, a charitable organization is deemed ineligible to maintain its registration under the Act if it expends or agrees to expend an “unreasonable amount” for management, general, and fund-raising costs, with those costs being presumed unreasonable if they exceed thirty per cent of the organization’s total income and revenue. § 309.555, subd. 1a (Supp. 1982).
From 1961 until 1978, all “religious organizations” were exempted from the requirements of the Act. But effective March 29, 1978, the Minnesota Legislature amended the Act so as to include a “fifty per cent rule” in the exemption provision covering religious organizations. § 309.515, subd. 1(b). This fifty per cent rule provided that only those religious organizations that received more than half of their total contributions from members or affiliated organizations would remain exempt from the registration and reporting requirements of the Act. 1978 Minn. Laws, ch. 601, § 5.
Shortly after the enactment of § 309.515, subd. 1(b), the Department notified appellee Holy Spirit Association for the Unification of World Christianity (Unification Church) that it was required to register under the Act because of the newly enacted provision. Appellees Valente, Barber, Haft, and Korman, claiming to be followers of the tenets of the Unification Church, responded by bringing the present action in the United States District Court for the District of Minnesota. Appellees sought a declaration that the Act, on its face and as applied to them through §309.515, subd. l(b)’s fifty per cent rule, constituted an abridgment of their First Amendment rights of expression and free exercise of religion, as well as a denial of their right to equal protection of the laws, guaranteed by the Fourteenth Amendment; appellees also sought temporary and permanent injunctive relief. Appellee Unification Church was later joined as a plaintiff by stipulation of the parties, and the action was transferred to a United States Magistrate.
After obtaining a preliminary injunction, appellees moved for summary judgment. Appellees’ evidentiary support for this motion included a “declaration” of appellee Haft, which described in some detail the origin, “religious principles,” and practices of the Unification Church. App. A-7—A-14. The declaration stated that among the activities emphasized by the Church were “door-to-door and public-place proselytizing and solicitation of funds to support the Church,” id,., at A-8, and that the application of the Act to the Church through § 309.515, subd. 1(b)’s fifty per cent rule would deny its members their “religious freedom,” id., at A-14. Appellees also argued that by discriminating among religious organizations, § 309.515, subd. l(b)’s fifty per cent rule violated the Establishment Clause.
Appellants replied that the Act did not infringe appel-lees’ freedom to exercise their religious beliefs. Appellants sought to distinguish the present case from Murdock v. Pennsylvania, 319 U. S. 105 (1943), where this Court invalidated a municipal ordinance that had required the licensing of Jehovah’s Witnesses who solicited donations in exchange for religious literature, by arguing that unlike the activities of the petitioners in Murdock, appellees’ solicitations bore no substantial relationship to any religious expression, and that they were therefore outside the protection of the First Amendment. Appellants also contended that the Act did not violate the Establishment Clause. Finally, appellants argued that appellees were not entitled to challenge the Act until they had demonstrated that the Unification Church was a religion and that its fundraising activities were a religious practice.
The Magistrate determined, however, that it was not necessary for him to resolve the questions of whether the Unification Church was a religion, and whether appellees’ activities were religiously motivated, in order to reach the merits of appellees’ claims. Rather, he found that the “over-breadth” doctrine gave appellees standing to challenge the Act’s constitutionality. On the merits, the Magistrate held that the Act was facially unconstitutional with respect to religious organizations, and was therefore entirely void as to such organizations, because §309.515, subd. 1(b)’s fifty per cent rule failed the second of the three Establishment Clause “tests” set forth by this Court in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). The Magistrate also held on due process grounds that certain provisions of the Act were unconstitutional as applied to any groups or persons claiming the religious-organization exemption from the Act. The Magistrate therefore recommended, inter alia, that appel-lees be granted the declarative and permanent injunctive relief that they had sought — namely, a declaration that the Act was unconstitutional as applied to religious organizations and their members, and an injunction against enforcement of the Act as to any religious organization. Accepting these recommendations, the District Court entered summary judgment in favor of appellees on these issues.
On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. 637 F. 2d 562 (1981). On the issue of standing,. the Court of Appeals affirmed the District Court’s application of the overbreadth doctrine, citing Village of Schaumburg v. Citizens for Better Environment, 444 U. S. 620, 634 (1980), for the proposition that “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.” 637 F. 2d, at 564—565. On the merits, the Court of Appeals affirmed the District Court’s holding that the “inexplicable religious classification” embodied in the fifty per cent rule of § 309.515, subd. 1(b), violated the Establishment Clause. Id., at 565-570. Applying the Minnesota rule of severability, the Court of Appeals also held that § 309.515, subd. 1(b), as a whole should not be stricken from the Act, but rather that the fifty per cent rule should be stricken from § 309.515, subd. 1(b). Id., at 570. But the court disagreed with the District Court’s conclusion that appellees and others should enjoy the religious-organization exemption from the Act merely by claiming to be such organizations: The court held that proof of religious-organization status was required in order to gain the exemption, and left the question of appellees’ status “open . . . for further development.” Id., at 570-571. The Court of Appeals accordingly vacated the judgment of the District Court and remanded the action for entry of a modified injunction and for further appropriate proceedings. Id., at 571. We noted probable jurisdiction. 452 U. S. 904 (1981).
h-H HH
Appellants argue that appellees are not entitled to be heard on their Establishment Clause claims. Their rationale for this argument has shifted, however, as this litigation has progressed. Appellants’ position in the courts below was that the Unification Church was not a religion, and more importantly that appellees’ solicitations were not connected with any religious purpose. From these premises appellants concluded that appellees were not entitled to raise their Establishment Clause claims until they had demonstrated that their activities were within the protection of that Clause. The courts below rejected this conclusion, instead applying the overbreadth doctrine in order to allow appellees to raise their Establishment Clause claims. In this Court, appellants have taken an entirely new tack. They now argue that the Unification Church is not a “religious organization” within the meaning of Minnesota’s charitable solicitations Act, and that the Church therefore would not be entitled to an exemption under §309.515, subd. 1(b), even if the fifty per cent rule were declared unconstitutional. From this new premise appellants conclude that the courts below erred in invalidating §309.515, subd. l(b)’s fifty per cent rule without first requiring appellees to demonstrate that they would have been able to maintain their exempt status but for that rule, and thus that its adoption had caused them injury in fact. We have considered both of appellants’ rationales, and hold that neither of them has merit.
“The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’” Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59, 72 (1978), quoting Baker v. Carr, 369 U. S. 186, 204 (1962). This requirement of a “personal stake” must consist of “a ‘distinct and palpable injury . . .’to the plaintiff,” Duke Power Co., supra, at 72, quoting Warth v. Seldin, 422 U. S. 490, 501 (1975), and “a ‘fairly traceable’ causal connection between the claimed injury and the challenged conduct,” Duke Power Co., supra, at 72, quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 261 (1977). Application of these constitutional standards to the record before us and the factual findings of the District Court convince us that the Art. Ill requirements for standing are plainly met by appellees.
Appellants argue in this Court that the Unification Church is not a “religious organization” within the meaning of the Act, and therefore that appellees cannot demonstrate injury in fact. We note at the outset, however, that in the years before 1978 the Act contained a general exemption provision for all religious organizations, and that during those years the Unification Church was not required by the State to register and report under the Act. It was only in 1978, shortly after the addition of the fifty per cent rule to the religious-organization exemption, that the State first attempted to impose the requirements of the Act upon the Unification Church. And when the State made this attempt, it deliberately chose to do so in express and exclusive reliance upon the newly enacted fifty per cent rule of § 309.515, subd. 1(b). See n. 4, supra. The present suit was initiated by appel-lees in direct response to that attempt by the State to force the Church’s registration. It is thus plain that appellants’ stated rationale for the application of the Act to appellees was that § 309.515, subd. 1(b), did apply to the Unification Church. But § 309.515, subd. 1(b), by its terms applies only to religious organizations. It follows, therefore, that an essential premise of the State’s attempt to require the Unification Church to register under the Act by virtue of the fifty per cent rule in § 309.515, subd. 1(b), is that the Church is a religious organization. It is logically untenable for the State to take the position that the Church is not such an organization, because that position destroys an essential premise of the exercise of statutory authority at issue in this suit.
In the courts below, the State joined issue precisely on the premise that the fifty per cent rule of § 309.515, subd. 1(b), was sufficient authority in itself to compel appellees’ registration. The adoption of that premise precludes the position that the Church is not a religious organization. And it remains entirely clear that if we were to uphold the constitutionality of the fifty per cent rule, the State would, without more, insist upon the Church’s registration. In this Court, the State has changed its position, and purports to find independent bases for denying the Church an exemption from the Act. Considering the development of this case in the courts below, and recognizing the premise inherent in the State’s attempt to apply the fifty per cent rule to appellees, we do not think that the State’s change of position renders the controversy between these parties any less concrete. The fact that appellants chose to apply §309.515, subd. 1(b), and its fifty per cent rule as the sole statutory authority requiring the Church to register under the Act compels the conclusion that, at least for purposes of this suit challenging that State application, the Church is indeed a religious organization within the meaning of the Act.
With respect to the question of injury in fact, we again take as the starting point of our analysis the fact that the State attempted to use § 309.515, subd. 1(b)’s fifty per cent rule in order to compel the Unification Church to register and report under the Act. That attempted use of the fifty per cent rule as the State’s instrument of compulsion necessarily gives ap-pellees standing to challenge the constitutional validity of the rule. The threatened application of §309.515, subd. 1(b), and its fifty per cent rule to the Church surely amounts to a distinct and palpable injury to appellees: It disables them from soliciting contributions in the State of Minnesota unless the Church complies with registration and reporting requirements that are hardly de minimis. Just as surely, there is a fairly traceable causal connection between the claimed injury and the challenged conduct — here, between the claimed disabling and the threatened application of §309.515, subd. ■ 1(b), and its fifty per cent rule.
Of course, the Church cannot be assured of a continued religious-organization exemption even in the absence of the fifty per cent rule. See n. 30, infra. Appellees have not yet shown an entitlement to the entirety of the broad injunctive relief that they sought in the District Court — namely, a permanent injunction barring the State from subjecting the Church to the registration and reporting requirements of the Act. But that fact by no means detracts from the palpability of the particular and discrete injury caused to appellees by the State’s threatened application of §309.515, subd. 1(b)’s fifty per cent rule. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 261-262. The Church may indeed be compelled, ultimately, to register under the Act on some ground other than the fifty per cent rule, and while this fact does affect the nature of the relief that can properly be granted to appellees on the present record, it does not deprive this Court of jurisdiction to hear the present case. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 287 (1977). In sum, contrary to appellants’ suggestion, appellees have clearly demonstrated injury in fact.
Justice Rehnquist’s dissent attacks appellees’ Art. Ill standing by arguing that appellees “have failed to show that a favorable decision of this Court will redress the injuries of. which they complain.” Post, at 270. This argument follows naturally from the dissent’s premise that the only meaningful relief that can be given to appellees is a total exemption from the requirements of the Act. See post, at 264, 265, 270. But the argument, like the premise, is incorrect. This litigation began after the State attempted to compel the Church to register and report under the Act solely on the authority of §309.515, subd. 1(b)’s fifty per cent rule. If that rule is declared unconstitutional, as appellees have requested, then the Church cannot be required to register and report under the Act by virtue of that rule. Since that rule was the sole basis for the State’s attempt to compel registration that gave rise to the present suit, a discrete injury of which appellees now complain will indeed be completely redressed by a favorable decision of this Court.
Furthermore, if the fifty per cent rule of §309.515, subd. 1(b), is declared unconstitutional, then the Church cannot be compelled to register and report under the Act unless the Church is determined not to be a religious organization. And as the Court of Appeals below observed:
“[A] considerable burden is on the state, in questioning a claim of a religious nature. Strict or narrow construction of a statutory exemption for religious organizations is not favored. Washington Ethical Society v. District of Columbia, 249 F. 2d 127, 129 (D. C. Cir. 1957, Burger, J.).” 637 F. 2d, at 570.
At the very least, then, a declaration that §309.515, subd. l(b)’s fifty per cent rule is unconstitutional would put the State to the task of demonstrating that the Unification Church is not a religious organization within the meaning of the Act — and such a task is surely more burdensome than that of demonstrating that the Church’s proportion of nonmember contributions exceeds fifty per cent. Thus appel-lees will be given substantial and meaningful relief by a favorable decision of this Court.
Since we conclude that appellees have established Art. Ill standing, we turn to the merits of the case.
HH HH 1 — 1
A
The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. Before the Revolution, religious establishments of differing denominations were common throughout the Colonies. But the Revolutionary generation emphatically disclaimed that European legacy, and “applied the logic of secular liberty to the condition of religion and the churches.” If Parliament had lacked the authority to tax unrepresented colonists, then by the same token the newly independent States should be powerless to tax their citizens for the support of a denomination to which they did not belong. The force of this reasoning led to the abolition of most denominational establishments at the state level by the 1780’s, and led ultimately to the inclusion of the Establishment Clause in the First Amendment in 1791.
This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause. Madison once noted: “Security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and in the other in the multiplicity of sects.” Madison’s vision — freedom for all religion being guaranteed by free competition between religions — naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators— and voters — are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations. As Justice Jackson noted in another context, “there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112 (1949) (concurring opinion).
Since Everson v. Board of Education, 330 U. S. 1 (1947), this Court has adhered to the principle, clearly manifested in the history and logic of the Establishment Clause, that no State can “pass laws which aid one religion” or that “prefer one religion over another.” Id., at 15. This principle of denominational neutrality has been restated on many occasions. In Zorach v. Clauson, 343 U. S. 306 (1952), we said that “[t]he government must be neutral when it comes to competition between sects.” Id., at 314. In Epperson v. Arkansas, 393 U. S. 97 (1968), we stated unambiguously: “The First Amendment mandates governmental neutrality between religion and religion .... The State may not adopt programs or practices . . . which ‘aid or oppose’ any religion. . . . This prohibition is absolute.” Id., at 104, 106, citing Abington School District v. Schempp, 374 U. S. 203, 225 (1963). And Justice Goldberg cogently articulated the relationship between the Establishment Clause and the Free Exercise Clause when he said that “[t]he fullest realization of true religious liberty requires that government. . . effect no favoritism among sects . . . and that it work deterrence of no religious belief.” Abington School District, supra, at 305. In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.
B
The fifty per cent rule of §309.515, subd. 1(b), clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents. Consequently, that rule must be invalidated unless it is justified by a compelling governmental interest, cf. Widmar v. Vincent, 454 U. S. 263, 269-270 (1981), and unless it is closely fitted to further that interest, Murdock v. Pennsylvania, 319 U. S. 105, 116-117 (1943). With that standard of review in mind, we turn to an examination of the governmental interest asserted by appellants.
Appellants assert, and we acknowledge, that the State of Minnesota has a significant interest in protecting its citizens from abusive practices in the solicitation of funds for charity, and that this interest retains importance when the solicitation is conducted by a religious organization. We thus agree with the Court of Appeals, 637 F. 2d, at 567, that the Act, “viewed as a whole, has a valid secular purpose,” and we will therefore assume, arguendo, that the Act generally is addressed to a sufficiently “compelling” governmental interest. But our inquiry must focus more narrowly, upon the distinctions drawn by § 309.515, subd. 1(b), itself: Appellants must demonstrate that the challenged fifty per cent rule is closely fitted to further the interest that it assertedly serves.
Appellants argue that § 309.515, subd. 1(b)’s distinction between contributions solicited from members and from nonmembers is eminently sensible. They urge that members are reasonably assumed to have significant control over the solicitation of contributions from themselves to their organization, and over the expenditure of the funds that they contribute, as well. Further, appellants note that as a matter of Minnesota law, members of organizations have greater access than nonmembers to the financial records of the organization. Appellants conclude:
“Where the safeguards of membership funding do not exist, the need for public disclosure is obvious. . . .
“. . . As public contributions increase as a percentage of total contributions, the need for public disclosure increases. . . . The particular point at which public disclosure should be required ... is a determination for the legislature. In this case, the Act’s ‘majority’ distinction is a compelling point, since it is at this point that the organization becomes predominantly public-funded.” Brief for Appellants 29.
We reject the argument, for it wholly fails to justify the only aspect of § 309.515, subd. 1(b), under attack — the selective fifty per cent rule. Appellants’ argument is based on three distinct premises: that members of a religious organization can and will exercise supervision and control over the organization’s solicitation activities when membership contributions exceed fifty per cent; that membership control, assuming its existence, is an adequate safeguard against abusive solicitations of the public by the organization; and that the need for public disclosure rises in proportion with the percentage of nonmember contributions. Acceptance of all three of these premises is necessary to appellants’ conclusion, but we find no substantial support for any of them in the record.
Regarding the first premise, there is simply nothing suggested that would justify the assumption that a religious organization will be supervised and controlled by its members simply because they contribute more than half of the organization’s solicited income. Even were we able to accept appellants’ doubtful assumption that members will supervise their religious organization under such circumstances, the record before us is wholly barren of support for appellants’ further assumption that members will effectively control the organization if they contribute more than half of its solicited income. Appellants have offered no evidence whatever that members of religious organizations exempted by § 309.515, subd. 1(b)’s fifty per cent rule in fact control their organizations. Indeed, the legislative history of § 309.515, subd. 1(b), indicates precisely to the contrary. In short, the first premise of appellants’ argument has no merit.
Nor do appellants offer any stronger justification for their second premise — that membership control is an adequate safeguard against abusive solicitations of the public by the organization. This premise runs directly contrary to the central thesis of the entire Minnesota charitable solicitations Act — namely, that charitable organizations soliciting contributions from the public cannot be relied upon to regulate themselves, and that state regulation is accordingly necessary. Appellants offer nothing to suggest why religious organizations should be treated any differently in this respect. And even if we were to assume that the members of religious organizations have some incentive, absent in nonreligious organizations, to protect the interests of nonmembers solicited by the organization, appellants’ premise would still fail to justify the fifty per cent rule: Appellants offer no reason why the members of religious organizations exempted under §309.515, subd. 1(b)’s fifty per cent rule should have any greater incentive to protect nonmembers than the members of nonexempted religious organizations have. Thus we also reject appellants’ second premise as without merit.
Finally, we find appellants’ third premise — that the need for public disclosure rises in proportion with the percentage of nonmember contributions — also without merit. The flaw in appellants’ reasoning here may be illustrated by the following example. Church A raises $10 million, 20 per cent from nonmembers. Church B raises $50,000, 60 per cent from nonmembers. Appellants would argue that although the public contributed $2 million to Church A and only $30,000 to Church B, there is less need for public disclosure with respect to Church A than with respect to Church B. We disagree; the need for public disclosure more plausibly rises in proportion with the absolute amount, rather than with the percentage, of nonmember contributions. The State of Minnesota has itself adopted this view elsewhere in §309.515: With qualifications not relevant here, charitable organizations that receive annual nonmember contributions of less than $10,000 are exempted from the registration and reporting requirements of the Act. §309.515, subd. 1(a).
We accordingly conclude that appellants have failed to demonstrate that the fifty per cent rule in §309.515, subd. 1(b), is “closely fitted” to further a “compelling governmental interest.”
C
In Lemon v. Kurtzman, 403 U. S. 602 (1971), we announced three “tests” that a statute must pass in order to avoid the prohibition of the Establishment Clause.
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 243 (1968); finally, the statute must not foster ‘an excessive governmental entanglement with religion.’ Walz [v. Tax Comm’n, 397 U. S. 664, 674 (1970)].” Id., at 612-613.
As our citations of Board of Education v. Allen, 392 U. S. 236 (1968), and Walz v. Tax Comm’n, 397 U. S. 664 (1970), indicated, the Lemon v. Kurtzman “tests” are intended to apply to laws affording a uniform benefit to all religions, and not to provisions, like § 309.515, subd. l(b)’s fifty per cent rule, that discriminate among religions. Although application of the Lemon tests is not necessary to the disposition of the case before us, those tests do reflect the same concerns that warranted the application of strict scrutiny to § 309.515, subd. 1(b)’s fifty per cent rule. The Court of Appeals found that rule to be invalid under the first two Lemon tests. We view the third of those tests as most directly implicated in the present case. Justice Harlan well described the problems of entanglement in his separate opinion in Walz, where he observed that governmental involvement in programs concerning religion
“may be so direct or in such degree as to engender a risk of politicizing religion. . . . [RJeligious groups inevitably represent certain points of view and not infrequently assert them in the political arena, as evidenced by the continuing debate respecting birth control and abortion laws. Yet history cautions that political fragmentation on sectarian lines must be guarded against. . . . [Government participation in certain programs, whose very nature is apt to entangle the state in details of administration and planning, may escalate to the point of inviting undue fragmentation.” 397 U. S., at 695.
The Minnesota statute challenged here is illustrative of this danger. By their “very nature,” the distinctions drawn by § 309.515, subd. 1(b), and its fifty per cent rule “engender a risk of politicizing religion” — a risk, indeed, that has already been substantially realized.
It is plain that the principal effect of the fifty per cent rule in §309.515, subd. 1(b), is to impose the registration and reporting requirements of the Act on some religious organizations but not on others. It is also plain that, as the Court of Appeals noted, “[t]he benefit conferred [by exemption] constitutes a substantial advantage; the burden of compliance with the Act is certainly not de minimis” 637 F. 2d, at 568. We do not suggest that the burdens of compliance with the Act would be intrinsically impermissible if they were imposed evenhandedly. But this statute does not operate evenhandedly, nor was it designed to do so: The fifty per cent rule of § 309.515, subd. 1(b), effects the selective legislative imposition of burdens and advantages upon particular denominations. The “risk of politicizing religion” that inheres in such legislation is obvious, and indeed is confirmed by the provision’s legislative history. For the history of §309.515, subd. 1(b)’s fifty per cent rule demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others. For example, the second sentence of an early draft of § 309.515, subd. 1(b), read: “A religious society or organization which solicits from its religious affiliates who are qualified under this subdivision and who are represented in a body or convention that elects and controls the governing board of the religious society or organization is exempt from the requirements of . . . Sections 309.52 and 309.53.” Minn. H. 1246, 1977-1978 Sess., §4 (read Apr. 6, 1978). The legislative history discloses that the legislators perceived that the italicized language would bring a Roman Catholic Archdiocese within the Act, that the legislators did not want the amendment to have that effect, and that an amendment deleting the italicized clause was passed in committee for the sole purpose of exempting the Archdiocese from the provisions of the Act. Transcript of Legislative Discussions of § 309.515, subd. 1(b), as set forth in Declaration of Charles C. Hunter (on file in this Court) 8-9. On the other hand, there were certain religious organizations that the legislators did not want to exempt from the Act. One State Senator explained that the fifty per cent rule was “an attempt to deal with the religious organizations which are soliciting on the street and soliciting by direct mail, but who are not substantial religious institutions in . . . our state.” Id., at 13. Another Senator said, “what you’re trying to get at here is the people that are running around airports and running around streets and soliciting people and you’re trying to remove them from the exemption that normally applies to religious organizations.” Id., at 14. Still another Senator, who apparently had mixed feelings about the proposed provision, stated, “I’m not sure why we’re so hot to regulate the Moonies anyway.” Id., at 16.
In short, the fifty per cent rule’s capacity — indeed, its express design — to burden or favor selected religious denominations led the Minnesota Legislature to discuss the characteristics of various sects with a view towards “religious gerrymandering,” Gillette v. United States, 401 U. S. 437, 452 (1971). As The Chief Justice stated in Lemon, 403 U. S., at 620: “This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction ... of churches.”
1 — I <
In sum, we conclude that the fifty per cent rule of § 309.515, subd. 1(b), is not closely fitted to the furtherance of any compelling governmental interest asserted by appellants, and that the provision therefore violates the Establishment Clause. Indeed, we think that §309.515, subd. 1(b)’s fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade. Accordingly, we hold that appellees cannot be compelled to register and report under the Act on the strength of that provision.
The judgment of the Court of Appeals is
Affirmed.
The Clause provides that “Congress shall make no law respecting an establishment of religion . . . .” It is applied to the States by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).
Section 309.51, subd. 1(a) (1969), repealed in 1973, provided in pertinent part:
“[S]ections 309.50 to 309.61 shall not apply to any group or association serving a bona fide religious purpose when the solicitation is connected with such a religious purpose, nor shall such sections apply when the solicitation for such a purpose is conducted for the benefit of such a group or association . . .
Between 1973 and 1978, §309.515, subd. 1, provided in pertinent part:
“[SJections 309.52 and 309.53 shall not apply to ... :
“(b) Any group or association serving a bona fide religious purpose when the solicitation is connected with such a religious purpose, nor shall such sections apply when the solicitation for such a purpose is conducted for the benefit of such a group or association by any other person with the consent of such group or association. ...”
The amended exemption provision read in relevant part:
“309.515 Exemptions
“Subdivision 1. . . . [Slections 309.52 and 309.53 shall not apply to ... :
“(b) A religious society or organization which received more than half of the contributions it received in the accounting year last ended (1) from persons who are members of the organization; or (2) from a parent organization or affiliated organization; or (3) from a combination of the sources listed in clauses (1) and (2). A religious society or organization which solicits from its religious affiliates who are qualified under this subdivision and who are represented in a body or convention is exempt from the requirements of sections 309.52 and 309.53. The term ‘member’ shall not include those persons who are granted a membership upon making a contribution as a result of a solicitation.”
This notice “discussed the application of the amendments expanding the scope of the charities law to religious organizations, explained the registration procedure, enclosed the proper forms, and sought [appellees’] compliance with the law.” Affidavit of Susan E. Fortney, Legal Assistant, Staff of Attorney General of Minnesota, Nov. 2, 1978. The notice also threatened legal action against the Church if it failed to comply. The notice read in pertinent part as follows:
“During the recent Minnesota legislative session, a bill was passed which changes the registration and reporting requirements for charitable organizations which solicit funds in Minnesota. One significant change was in the religious exemption which previously exempted from registering and reporting any organization serving a bona fide religious purpose.
“Minn. Stat. § 309.515 as found in chapter 601 of the 1978 Session Laws provides that the religious exemption now applies to religious groups or societies which receive more than half of its contributions in the accounting year last ended from persons who are members of the organization or from a parent organization or affiliated organization. In other terms, a religious organization which solicits more than half its funds from non-members must register and report according to the provisions of the Minnesota Charitable Solicitation Law.
“From the nature of your solicitation it appears that Holy Spirit Association for the Unification of World Christianity must complete a Charitable Organization Registration Statement and submit it to the Minnesota Department of Commerce. The Charitable Organization Registration Statement must be accompanied with a financial statement for the fiscal year last ended.
“I am enclosing the proper forms and an information sheet for your use. Please be advised that the proper forms must be on file with the Department of Commerce by September 30, 1978, or we will consider taking legal action to ensure your compliance.” Affidavit of Susan E. Fortney, supra, Exhibit A.
Appellees’ complaint stated in pertinent part that the “application of the statutes to itinerant missionaries whose Churches are not established in Minnesota, but not to Churches with substantial local membership, constitutes an unequal application of the law.” App. A-5. The focus of this allegation was plainly the fifty per cent rule of § 309.515, subd. 1(b).
Appellants responded to appellees’ motion for a preliminary injunction with a motion to dismiss. App. to Juris. Statement A-38. They disputed appellees’ claims on the merits, and also challenged appellees’ standing to raise their Establishment Clause claims, arguing that the Unification Church was not a religion within the meaning of that Clause. Id,., at A-44—A-45. The Magistrate made findings of fact that the Unification Church was a California nonprofit religious corporation, and that it had been granted tax exempt religious organization status by the United States Internal Revenue Service and the State of Minnesota. Id., at A-37. These findings were later incorporated into the Magistrate’s report and recommendation on the motion for summary judgment. Id., at A-21. He declined, however, to rule on the issue of the religious status of the Church. Id., at A-47.
Appellants asserted that the central issue in the ease was “whether [ap-pellees’] fund raising practices constitute expression of religious beliefs within the protection of the First Amendment.” Defendants’ Objections to Report and Recommendations of Magistrate Robert Renner in No. Civ. 4-78-453 (DC Minn.), p. 2. Appellants argued that appellees’ fundraising activities were not a form of religious expression; they provided eviden-tiary support for this argument in the form of numerous affidavits of persons claiming to be former members of the Unification Church, who asserted that they had been encouraged to engage in fundraising practices that were both fraudulent and unrelated to any religious purpose.
That second test requires that the “principal or primary effect” of the challenged statute “be one that neither advances nor inhibits religion.” 403 U. S., at 612. The Magistrate found that §309.515, subd. 1(b)’s fifty per cent rule violated that requirement “in that it inhibited] religious organizations which receive[d] more than half of their contributions from nonmembers, and thereby enhance[d] religious organizations which receive[d] less than half from non-members.” App. to Juris. Statement A-24.
The District Court’s judgment provided:
“1. The Minnesota Charitable Solicitations Act, Minn. Stat. § 309.50 et seq., is unconstitutional as applied to religious organizations and members thereof;
“2. The Act is constitutional as applied to non-religious organizations and members thereof;
“3. Sections 309.534, subd. 1(a), and 309.581 of the Act is [sic] unconstitutional as applied to persons claiming to be religious organizations or members thereof;
“4. The constitutionality of the application of section 309.532 [relating to denial, suspension, and revocation of licenses issued under the Act] to [ap-pellees] and others whose claims to a religious exemption are challenged by the State is a nonjusticiable issue;
“5. [Appellant Larson] is permanently enjoined from enforcing the Act as to any and all religious organizations;
“6. [Appellant Larson] is permanently enjoined from utilizing sections 309.534, subd. 1(a), and 309.581 to enforce the Act as against [appellees] and other persons claiming to be religious organizations or members thereof.” Id., at A-18—A-19.
The Court of Appeals supported this conclusion on grounds broader than those of the District Court. Whereas the District Court had found § 309.515, subd. 1(b)’s fifty per cent rule to violate only the second of the Lemon tests, the Court of Appeals found the rule to violate the first of those tests as well. 637 F. 2d, at 567-568. The first Lemon test provides that “the statute must have a secular legislative purpose.” 403 U. S., at 612.
The Court of Appeals summarized its holdings as follows:
“[W]e agree with the district court’s holding that [appellees] have standing to challenge the classification made in the exemption section of the Act, as it pertains to religious organizations; we agree with the court’s invalidation of the classification made in that section; we agree that the exemption section should apply to all religious organizations, subject to possible legislative revision; we disagree with the conclusion that no part of the Act may be applied to religious organizations, but leave open questions of construction and validity for further development, including the application of the Act to charitable organizations; and we disagree with the conclusion that [appellees] and others claiming the religious exemption should automatically enjoy such exemption, but leave open the question of [appellees’] status for further development.” 637 F. 2d, at 571.
Justice Rehnquist’s dissent suggests, post, at 265-266, and n. 2, that our interpretation of the State’s grounds for application of the Act to appel-lees is erroneous. But the letter quoted in n. 4, supra, speaks for itself, and we reject the novel suggestion that the contents of such a notification of official enforcement action may be ignored by this Court depending upon the state official who signs the notice.
The Department’s attempt to apply the Act to appellees by means of § 309.515, subd. 1(b), was consistent with the expectation, evident in the legislative history of §309.515, subd. 1(b), that that provision’s fifty per cent rule would be applied to the Unification Church in order to deny it continued exemption from the requirements of the Act. See infra, at 253-255.
Justice Rehnquist’s dissent suggests, post, at 264, that “the Act applies to appellees not by virtue of the ‘fifty percent rule,’ but by virtue of §309.52.” This suggestion misses the point. Section 309.52 announces the Act’s general registration requirement for charitable organizations. In 1978, the State sought to compel the Church to register and report under the Act, relying upon § 309.515, subd. 1(b). The State might have chosen to rely upon some other provision, e. g., § 309.515, subd. 1(a)(1), which exempts charitable organizations receiving less than $10,000 annually from the public. Instead the State chose to rely upon § 309.515, subd. 1(b). Thus if the Act applies to appellees, it of course does so by the combined effect of §309.52 and § 309.515, subd. 1(b). In this attenuated sense the Act does apply to appellees “by virtue of § 309.52.” But nevertheless the State sought to impose the requirements of the Act upon appellees by only one means out of the several available to it, and that means was § 309.515, subd. 1(b).
See supra, at 230-231; n. 29, infra.
In reaching the conclusion that appellees’ claims would not be redressed by an affirmance of the decision below, Justice Rehnquist’s dissent reveals a draconic interpretation of the redressability requirement that is justified by neither precedent nor principle. The dissent appears to assume that in order to establish redressability, appellees must show that they are certain, ultimately, to receive a religious-organization exemption from the registration and reporting requirements of the Act — in other words, that there is no other means by which the State can compel appel-lees to register and report under the Act. We decline to impose that burden upon litigants. As this Court has recognized, “the relevant inquiry is whether. . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 38 (1976) (emphasis added); accord, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 262 (1977). In other words, a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury. Cf. University of California Regents v. Bakke, 438 U. S. 265, 280-281, n. 14 (1978) (opinion of Powell, J.)
Appellants contended below that appellees were not entitled to raise their Establishment Clause claims until they had demonstrated that their activities were within the protection of that Clause. The courts below applied the overbreadth doctrine to reject this contention, and appellants argue that those courts erred in doing so. We have no need to address these matters. Appellees have made a sufficiently strong demonstration that the Church is a religion to overcome any prudential standing obstacles to consideration of their Establishment Clause claim.
See S. Cobb, The Rise of Religious Liberty in America: A History 67-453 (1970); L. Pfeffer, Church, State, and Freedom 71-90 (rev. ed. 1967).
B. Bailyn, The Ideological Origins of the American Revolution 265 (1967).
For example, according to John Adams, colonial Massachusetts possessed “the most mild and equitable establishment of religion that was known in the world, if indeed [it] could be called an establishment.” Quoted id., at 248. But Baptists in Massachusetts chafed under any form of establishment, and Revolutionary pamphleteer John Allen expressed their views to the members of the General Court of Massachusetts in his declamation, The American Alarm, or the Bostonian Plea, for the Rights and Liberties of the People:
“You tell your [colonial] governor that the Parliament of England have no right to tax the Americans . . . because they are not the representatives of America; and will you dare to tax the Baptists for a religion they deny? Are you gentlemen their representatives before GOD, to answer for their souls and consciences any more than the representatives of England are the representatives of America? . . . [I]f it be just in the General Court to take away my sacred and spiritual rights and liberties of conscience and my property with it, then it is surely right and just in the British Parliament to take away by power and force my civil rights and property without my consent; this reasoning, gentlemen, I think is plain.” Quoted id., at 267-268.
See Pfeffer, supra, at 104-119.
Id., at 125-127.
The Federalist No. 51, p. 326 (H. Lodge ed. 1908).
Appellants urge that §309.515, subd. 1(b), does not grant such preferences, but is merely “a law based upon secular criteria which may not identically affect all religious organizations.” Brief for Appellants 20. They accordingly cite McGowan v. Maryland, 366 U. S. 420 (1961), and cases following Everson v. Board of Education, 330 U. S. 1 (1947), for the proposition that a statute’s “disparate impact among religious organizations is constitutionally permissible when such distinctions result from application of secular criteria.” Brief for Appellants 26. We reject the argument. Section 309.515, subd. 1(b), is not simply a facially neutral statute, the provisions of which happen to have a “disparate impact” upon different religious organizations. On the contrary, § 309.515, subd. 1(b), makes explicit and deliberate distinctions between different religious organizations. We agree with the Court of Appeals’ observation that the provision effectively distinguishes between “well-established churches” that have “achieved strong but not total financial support from their members,” on the one hand, and “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members,” on the other hand. 637 F. 2d, at 566. This fundamental difference between § 309.515, subd. 1(b), and the statutes involved in the “disparate impact” eases cited by appellants renders those eases wholly inapplicable here.
Appellants also argue that reversal of the Court of Appeals is required by Gillette v. United States, 401 U. S. 437 (1971). In that case we rejected an Establishment Clause attack upon § 6(j) of the Military Selective Service Act of 1967, 50 U. S. C. App. § 456(j) (1964 ed., Supp. V), which afforded “conscientious objector” status to any person who, “by reason of religious training and belief,” was “conscientiously opposed to participation in war in any form.” 401 U. S., at 441. Gillette is readily distinguishable from the present case. Section 6(j) “focused on individual conscientious belief, not on sectarian affiliation.” Id., at 454. Under §6(j), conscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic, despite the distinction drawn by the latter’s church between “just” and “unjust” wars, see St. Thomas Aquinas, Summa Theologica, Second Part, Part II, Question 40, Arts. 1, 4; St. Augustine, City of God, Book XIX, Ch. 7. As we noted in Gillette, the “critical weakness of petitioners’ establishment claim” arose “from the fact that § 6(j), on its face, simply [did] not discriminate on the basis of religious affiliation.” 401 U. S., at 450. In contrast, the statute challenged in the case before us focuses precisely and solely upon religious organizations.
In support of their assumption of such supervision, appellants cite Minn. Stat. § 317.28(2) (1969), which allows any member of a domestic nonprofit corporation to “inspect all books and records for any proper purpose at any reasonable time.” But this provision applies only to domestic nonprofit corporations; appellants have made no showing that religious organizations incorporated in other States operate under an analogous constraint. Further, in Minnesota even domestic religious organizations need not be organized as nonprofit corporations — they may also choose to organize under Minn. Stat., ch. 315, governing “Religious Associations,” which has no provision analogous to § 317.28(2). Moreover, even as to the religious organizations to which it applies, § 317.28(2) obviously does not ensure that any member of a religious organization will actually take advantage of the supervision permitted by that provision. And finally, since § 317.28(2) applies irrespective of the percentage of membership contributions, it cannot provide any justification at all for the fifty per cent rule in § 309.515, subd. 1(b). In sum, appellants’ assumption of membership supervision is purely conjectural.
An early draft of that provision allowed an exemption from the Act only for a religious organization that solicited “substantially more than half of the contributions it received . . . from persons who have a right to vote as a member of the organization.” Minn. H. 1246, 1977-1978 Sess., § 4 (read Apr. 6, 1977). The italicized language was later amended to read, “who are members.” Attachment to Minutes of Meeting of Commerce and Economic Development Committee, Jan. 24, 1978. Since §309.515, subd. 1(b), as enacted deliberately omits membership voting rights as a requirement for a religious organization’s exemption, it clearly permits religious organizations that are not subject to control by their membership to be exempted from the Act. Of course, even if § 309.515, subd. 1(b), exempted only those religious organizations with membership voting rights, the provision obviously would not ensure that the membership actually exercised its voting rights so as to control the organization in any effective manner.
This thesis is evident in the Act’s treatment of nonreligious organizations that might solicit within the State: With exceptions not relevant here, such organizations are exempted from the registration and reporting requirements of the Act only if their solicitations of the public are de minimis, §309.515, subds. 1(a)(1), (f), or if they are subject to independent state regulation, § 309.515, subd. 1(c).
We do not suggest, however, that an exemption provision based upon the absolute amount of nonmember contributions would necessarily satisfy the standard set by the Establishment Clause for laws granting denominational preferences.
Allen involved a state law requiring local public school authorities to lend textbooks free of charge to all students in grades seven through twelve, including those in parochial schools. 392 U. S., at 238. Walz examined a state law granting property tax exemptions to religious organizations for religious properties used solely for religious worship. 397 U. S., at 666. And in Lemon itself, the challenged state laws provided aid to church-related elementary and secondary schools. 403 U. S., at 606.
The registration statement required by § 309.52 calls for the provision of a substantial amount of information, much of which penetrates deeply into the internal affairs of the registering organization. The organization must disclose the “[gleneral purposes for which contributions . . . will be used,” the “[b]oard, group or individual having final discretion as to the distribution and use of contributions received,” and “[s]uch other information as the department may . . . require” — and these are only three of sixteen enumerated items of information required by the registration statement. The annual report required by § 309.53 is even more burdensome and intrusive. It must disclose “[tlotal receipts and total income from all sources,” the cost of “management,” “fund raising,” and “public education,” and a list of “[fjunds or properties transferred out of state, with explanation as to recipient and purpose,” to name only a few. Further, a religious organization that must register under the Act may have its registration withdrawn at any time if the Department or the Attorney General concludes that the religious organization is spending “an unreasonable amount” for management, general, and fund-raising costs. § 309.555.
In so holding, we by no means suggest that the State of Minnesota must in all events allow appellees to remain exempt from the provisions of the charitable solicitations Act. We agree with the Court of Appeals that appellees and others claiming the benefits of the religious-organization exemption should not automatically enjoy those benefits. 637 F. 2d, at 571. Rather, in order to receive them, appellees may be required by the State to prove that the Unification Church is a religious organization within the meaning of the Act. Nothing in our opinion suggests that appellants could not attempt to compel the Unification Church to register under the Act as a charitable organization not entitled to the religious-organization exemption, and put the Church to the proof of its bona fides as a religious organization. Further, nothing in our opinion disables the State from denying exemption from the Act, or from refusing registration and licensing under the Act, to persons or organizations proved to have engaged in frauds upon the public. See § 309.515, subd. 3. We simply hold that because the fifty per cent rule of § 309.515, subd. 1(b), violates the Establishment Clause, appellees cannot be compelled to register and report under the Act on the strength of that provision.
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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
] |
GENERAL DYNAMICS LAND SYSTEMS, INC. v. CLINE et al.
No. 02-1080.
Argued November 12, 2003
Decided February 24, 2004
Souter, J., delivered the opinion of the Court, in which Rehnquist, C- J., and Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 601. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 602.
Donald, B. Verrilli, Jr., argued the cause for petitioner. With him on the briefs were Deanne E. Maynard, William J. Kilberg, and Craig C. Martin.
Mark W. Biggerman argued the cause for respondents. With him on the brief were Erin Stottlemyer Gold, E. Bruce Hadden, and Joanne C. Brant.
Acting Solicitor General Clement argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Irving L. Gornstein, Carolyn L. Wheeler, Lorraine C. Davis, Robert J. Gregory, and Susan R. Oxford.
Briefs of amici curiae urging reversal were filed for AARP by Laurie A. McCann, Daniel B. Kohrman, and Melvin Radowitz; for the American Federation of Labor and Congress of Industrial Organizations et al. by Jonathan P. Hiatt, James B. Coppess, Daniel W. Sherrick, Michael F. Saggau, and Laurence Gold; for the Central States, Southeast and Southwest Areas Health and Welfare Fund by Thomas C. Nyhan, James P. Condon, and John J. Franczyk, Jr.; for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Daniel V Yager, Katherine Y. K. Cheung, Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant; for the ERISA Industry Committee by Caroline M. Brown and John M. Vine; and for the National Education Association by Robert H. Chanin, John M. West, and Douglas L. Greenfield.
Justice Souter
delivered the opinion of the Court.
The Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, 29 U. S. C. § 621 et seq., forbids discriminatory preference for the young over the old. The question in this case is whether it also prohibits favoring the old over the young. We hold it does not.
I
In 1997, a collective-bargaining agreement between petitioner General Dynamics and the United Auto Workers eliminated the company’s obligation to provide health benefits to subsequently retired employees, except as to then-current workers at least 50 years old. Respondents (collectively, Cline) were then at least 40 and thus protected by the Act, see 29 U. S. C. § 631(a), but under 50 and so without promise of the benefits. All of them objected to the new terms, although some had retired before the change in order to get the prior advantage, some retired afterwards with no benefit, and some worked on, knowing the new contract would give them no health coverage when they were through.
Before the Equal Employment Opportunity Commission (EEOC or Commission) they claimed that the agreement violated the ADEA, because it “discriminate^ against them]... with respect to ... compensation, terms, conditions, or privileges of employment, because of [their] age,” § 623(a)(1). The EEOC agreed, and invited General Dynamics and the union to settle informally with Cline.
When they failed, Cline brought this action against General Dynamics, combining claims under the ADEA and state law. The District Court called the federal claim one of “reverse age discrimination,” upon which, it observed, no court had ever granted relief under the ADEA. 98 F. Supp. 2d 846, 848 (ND Ohio 2000). It dismissed in reliance on the Seventh Circuit’s opinion in Hamilton v. Caterpillar Inc., 966 F. 2d 1226 (1992), that “the ADEA ‘does not protect. . . the younger against the older,’ ” id., at 1227 (quoting Karlen v. City Colleges of Chicago, 837 F. 2d 314, 318 (CA7), cert, denied sub nom. Teachers v. City Colleqes of Chicago, 486 U. S. 1044 (1988)).
A divided panel of the Sixth Circuit reversed, 296 F. 3d 466 (2002), with the majority reasoning that the prohibition of § 623(a)(1), covering discrimination against “any individual . . . because of such individual’s age,” is so clear on its face that if Congress had meant to limit its coverage to protect only the older worker against the younger, it would have said so. Id., at 472. The court acknowledged the conflict of its ruling with earlier cases, including Hamilton and Schuler v. Polaroid Corp., 848 F. 2d 276 (1988) (opinion of Breyer, J.), from the First Circuit, but it criticized the cases going the other way for paying too much attention to the “hortatory, generalized language” of the congressional findings incorporated in the ADEA. 296 F. 3d, at 470. The Sixth Circuit drew support for its view from the position taken by the EEOC in an interpretive regulation. Id., at 471.
Judge Cole, concurring, saw the issue as one of plain meaning that produced no absurd result, although he acknowledged a degree of tension with O’Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308 (1996), in which this Court spoke of age discrimination as giving better treatment to a “ ‘substantially younger’ ” worker. 296 F. 3d, at 472. Judge Williams dissented in preference for Hamilton and the consensus of the federal courts, thinking it “obvious that the older a person is, the greater his or her needs become.” 296 F. 3d, at 476.
We granted certiorari to resolve the conflict among the Circuits, 538 U. S. 976 (2003), and now reverse.
II
The common ground in this case is the generalization that the ADEA’s prohibition covers “discrimination]. . . because of [an] individual’s age,” 29 U. S. C. § 623(a)(1), that helps the younger by hurting the older. In the abstract, the phrase is open to an argument for a broader construction, since reference to “age” carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress’s interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.
Congress chose not to include age within discrimination forbidden by Title VII of the Civil Rights Act of 1964, § 715, 78 Stat. 265, being aware that there were legitimate reasons as well as invidious ones for making employment decisions on age. Instead it called for a study of the issue by the Secretary of Labor, ibid., who concluded that age discrimination was a serious problem, but one different in kind from discrimination on account of race. The Secretary spoke of disadvantage to older individuals from arbitrary and stereotypical employment distinctions (including then-common policies of age ceilings on hiring), but he examined the problem in light of rational considerations of increased pension cost and, in some cases, legitimate concerns about an older person’s ability to do the job. Wirtz Report 2. When the Secretary ultimately took the position that arbitrary discrimination against older workers was widespread and persistent enough to call for a federal legislative remedy, id., at 21-22, he placed his recommendation against the background of common experience that the potential cost of employing someone rises with age, so that the older an employee is, the greater the inducement to prefer a younger substitute. The report contains no suggestion that reactions to age level off at some point, and it was devoid of any indication that the Secretary had noticed unfair advantages accruing to older employees at the expense of their juniors.
Congress then asked for a specific proposal, Fair Labor Standards Amendments of 1966, §606, 80 Stat. 845, which the Secretary provided in January 1967, 113 Cong, Rec, 1377 (1967); see also Public Papers of the Presidents, Lyndon B. Johnson, Vol. 1, Jan. 23, 1967, p. 37 (1968) (message to Congress urging that “Opportunity ... be opened to the many Americans over 45 who are qualified and willing to work”). Extensive House and Senate hearings ensued. See Age Discrimination in Employment: Hearings on H. R. 3651 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967) (hereinafter House Hearings); Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967) (hereinafter Senate Hearings). See generally EEOC v. Wyoming, 460 U. S. 226, 229-233 (1983).
The testimony at both hearings dwelled on unjustified assumptions about the effect of age on ability to work. See, e. g., House Hearings 151 (statement of Rep. Joshua Eilberg) (“At age 40, a worker may find that age restrictions become common . . . . By age 45, his employment opportunities are likely to contract sharply; they shrink more severely at age 55 and virtually vanish by age 65”); id., at 422 (statement of Rep. Claude Pepper) (“We must provide meaningful opportunities for employment to the thousands of workers 45 and over who are well qualified but nevertheless denied jobs which they may desperately need because someone has arbitrarily decided that they are too old”); Senate Hearings 34 (statement of Sen. George Murphy) (“[A]n older worker often faces an attitude on the part of some employers that prevents him from receiving serious consideration or even an interview in his search for employment”). The hearings specif-ieally addressed higher pension and benefit costs as heavier drags on hiring workers the older they got. See, e. g., House Hearings 45 (statement of Norman Sprague) (Apart from stereotypes, “labor market conditions, seniority and promotion-from-within policies, job training costs, pension and insurance costs, and mandatory retirement policies often make employers reluctant to hire older workers”). The record thus reflects the common facts that an individual’s chances to find and keep a job get worse over time; as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype. Not surprisingly, from the voluminous records of the hearings, we have found (and Cline has cited) nothing suggesting that any workers were registering complaints about discrimination in favor of their seniors.
Nor is there any such suggestion in the introductory provisions of the ADEA, 81 Stat. 602, which begins with statements of purpose and findings that mirror the Wirtz Report and the committee transcripts. Id., § 2. The findings stress the impediments suffered by “older workers ... in their efforts to retain . . . and especially to regain employment,” id., § 2(a)(1); “the [burdens] of arbitrary age limits regardless of potential for job performance,” id., § 2(a)(2); the costs of “otherwise desirable practices [that] may work to the disadvantage of older persons,” ibid.; and “the incidence of unemployment, especially long-term unemployment^ which] is, relative to the younger ages, high among older workers,” id., § 2(a)(3). The statutory objects were “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting, problems arising from the impact of age on employment.” Id., § 2(b).
In sum, except on one point, all the findings and statements of objectives are either cast in terms of the effects of age as intensifying over time, or are couched in terms that refer to “older” workers, explicitly or implicitly relative to “younger” ones. The single subject on which the statute speaks less specifically is that of “arbitrary limits” or “arbitrary age discrimination.” But these are unmistakable references to the Wirtz Report’s finding that “[ajlmost three out of every five employers covered by [a] 1965 survey have in effect age limitations (most frequently between 45 and 55) on new hires which they apply without consideration of an applicant’s other qualifications.” Wirtz Report 6. The ADEA’s ban on “arbitrary limits” thus applies to age caps that exclude older applicants, necessarily to the advantage of younger ones.
Such is the setting of the ADEA’s core substantive provision, § 4 (as amended, 29 U. S. C. § 623), prohibiting employers and certain others from “discriminat[ionj . . . because of [an] individual’s age,” whenever (as originally enacted) the individual is “at least forty years of age but less than sixty-five years of age,” § 12, 81 Stat. 607. The prefatory provisions and their legislative history make a case that we think is beyond reasonable doubt, that the ADEA was concerned to protect a relatively old worker from discrimination that works to the advantage of the relatively young.
Nor is it remarkable that the record is devoid of any evidence that younger workers were suffering at the expense of their elders, let alone that a social problem required a federal statute to place a younger worker in parity with an • older one. Common experience is to the contrary, and the testimony, reports, and congressional findings simply confirm that Congress used the phrase “discrimination] . . . because of [an] individual’s age” the same way that ordinary people •in common usage might speak of age discrimination any day of the week. One commonplace conception of American society in recent decades is its character as a “youth culture,” and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older.
This same, idiomatic sense of the statutory phrase is confirmed by the statute’s restriction of the protected class to those 40 and above. If Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40. The youthful deficiencies of inexperience and unsteadiness invite stereotypical and discriminatory thinking .about those a lot younger than 40, and prejudice suffered by a 40-year-old is not typically owing to youth, as 40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50. See H. R. Rep. No. 805, 90th Cong., 1st Sess., 6 (1967) (“[T]estimony indicated [40] to be the age at which age discrimination in employment becomes evident”). Even so, the 40-year threshold was adopted over the objection that some discrimination against older people begins at an even younger age; female flight attendants were not fired at 32 because they were too young, ibid. See also Senate Hearings 47 (statement of Sec’y Wirtz) (lowering the minimum age limit “would change the nature of the proposal from an over-age employment discrimination measure”). Thus, the 40-year threshold makes sense as identifying a class requiring protection against preference for their juniors, not as defining a class that might be threatened by favoritism toward seniors.
The federal reports are as replete with cases taking this position as they are nearly devoid of decisions like the one reviewed here. To start closest to home, the best example is Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), in which we held there is no violation of the ADEA in firing an employee because his pension is about to vest, a basis for action that we took to be analytically distinct from age, even though it would never occur without advanced years. Id., at 611-612. We said that “the very essence of age discrimination [is] for an older employee to be fired because the employer believes that productivity and competence decline with old age,” id., at 610, whereas discrimination on the basis of pension status “would not constitute discriminatory treatment on the basis of age [because t]he prohibited stereotype [of the faltering worker] would not have figured in this decision, and the attendant stigma would not ensue,” id., at 612. And we have relied on this same reading of the statute in other cases. See, e. g., O’Connor, 517 U. S., at 313 (“Because the ADEA prohibits discrimination on the basis of age . . . the fact that a replacement is substantially younger than the plaintiff is a . . . reliable indicator of age discrimination”); Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 409 (1985) (“[T]he legislative history of the ADEA . . . repeatedly emphasize[s that] the process of psychological and physiological degeneration caused by aging varies with each individual”). While none of these cases directly addresses the question presented here, all of them show our consistent understanding that the text, structure, and history point to the ADEA as a remedy for unfair preference based on relative youth, leaving complaints of the relatively young outside the statutory concern.
The Courts of Appeals and the District Courts have read the law the same way, and prior to this case have enjoyed virtually unanimous accord in understanding the ADEA to forbid only discrimination preferring young to old. So the Seventh Circuit held in Hamilton, and the First Circuit said in Schuler, and so the District Courts have ruled in cases too numerous for citation here in the text. The very strength of this consensus is enough to rule out any serious claim of ambiguity, and congressional silence after years of judicial interpretation supports adherence to the traditional view.
III
Cline and amicus EEOC proffer three rejoinders in favor of their competing view that the prohibition works both ways. First, they say (as does Justice Thomas, post, at 602-605) that the statute’s meaning is plain when the word “age” receives its natural and ordinary meaning and the statute is read as a whole giving “age” the same meaning throughout. And even if the text does not plainly mean what they say it means, they argue that the soundness of. their version is shown by a colloquy on the floor of the Senate involving Senator Yarborough, a sponsor of the bill that became the ADEA. Finally, they fall back to the position (fortified by Justice Scalia’s dissent) that we should defer ,to the EEOC’s reading of the statute. On each point, however, we think the argument falls short of unsettling our view of the natural meaning of the phrase speaking of discrimination, read in light of the statute’s manifest purpose.
A
The first response to our reading is the dictionary argument that “age” means the length of a person’s life, with the phrase “because of such individual’s age” stating a simple test of causation: “discrimination]... because of [an] individual’s age” is treatment that would not have occurred if the individual’s span of years had been longer or shorter. The case for this reading calls attention to the other instances of “age” in the ADEA that are not limited to old age, such as 29 U. S. C. § 623(f), which gives an employer a defense to charges of age discrimination when “age is a bona fide occupational qualification.” Cline and the EEOC argue that if “age” meant old age, § 623(f) would then provide a defense (old age is a bona fide qualification) only for an employer’s action that on our reading would never clash with the statute (because preferring the older is not forbidden).
The argument rests on two mistakes. First, it assumes that the word “age” has the same meaning wherever the ADEA uses it. But this is not so, and Cline simply misemploys the “presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). Cline forgets that “the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Ibid.; see also United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001) (phrase “wages paid” has different meanings in different parts of Title 26 U. S. C.); Robinson v. Shell Oil Co., 519 U. S. 337, 343-344 (1997) (term “employee” has different meanings in different parts of Title VII). The presumption of uniform usage thus relents when a word used has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing.
“Age” is that kind of word. As Justice Thomas (posé, at 603) agrees, the word “age” standing alone can be readily understood either as pointing to any number of years lived, or as common shorthand for the longer span and concurrent aches that make youth look good. Which alternative was probably intended is a matter of context; we understand the different choices of meaning that lie behind a sentence like “Age can be shown by a driver’s license,” and the statement, “Age has left him a shut-in.” So it is easy to understand that Congress chose different meanings at different places in the ADEA, as the different settings readily show. Hence the second flaw in Cline’s argument for uniform usage: it ignores the cardinal rule that “[statutory language must be read in context [since] a phrase ‘gathers meaning from the words around it.’ ” Jones v. United States, 527 U. S. 373, 389 (1999) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). The point here is that we are not asking, an abstract question about the meaning of “age”; we are seeking the meaning of the whole phrase “discriminate . . . because of such individual’s age,” where it occurs in the ADEA, 29 U. S. C. § 623(a)(1). As we have said, social history emphatically reveals an understanding of age discrimination as aimed against the old, and the statutory reference to age discrimination in this idiomatic sense is confirmed by legislative history. For the very reason that reference to context shows that “age” means “old age” when teamed with “discrimination,” the provision of an affirmative defense when age is a bona fide occupational qualification readily shows that “age” as a qualification means comparative youth. As context tells us that “age” means one thing in § 623(a)(1) and another in § 623(f), so it also tells us that the presumption of uniformity cannot sensibly operate here.
The comparisons Justice Thomas urges, post, at 608-612, to McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976), and Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), serve to clarify our position. Both cases involved Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and its prohibition on employment discrimination “because of [an] individual’s race . . . [or] sex,” §2000e-2(a)(1) (emphasis added). The term “age” employed by the ADEA is not, however, comparable to the terms “race” or “sex” employed by Title VII. “Race” and “sex” are general terms that in every day usage require modifiers to indicate any relatively narrow application. We do not commonly understand “race” to refer only to the black race, or “sex” to refer only to the female. But the prohibition of age discrimination is readily' read more narrowly than analogous provisions dealing with race and sex. That narrower reading is the more natural one in the textual setting, and it makes perfect sense because of Congress’s demonstrated concern with distinctions that hurt older people.
B
The second objection has more substance than the first, but still not enough. The record of congressional action reports a colloquy on the Senate floor between two of the legislators most active in pushing for the ADEA, Senators Javits and Yarborough. Senator Javits began the exchange by raising a concern mentioned by Senator Dominick, that “the bill might not forbid discrimination between two persons each of whom would be between the ages of 40 and 65.” 113 Cong. Rec. 31255 (1967). Senator Javits then gave his own view that, “if two individuals ages 52 and 42 apply for the same job, and the employer selected the man aged 42 solely . . . because he is younger than the man 52, then he will have violated the act,” and asked Senator Yarborough for his opinion. Ibid. Senator Yarborough answered that “[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went.” Ibid.
Although in the past we have given weight to Senator Yarborough’s views on the construction’ of the ADEA because he was a sponsor, see, e. g., Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 179 (1989), his side of this exchange is not enough to unsettle our reading of the statute. It is not merely that the discussion was prompted by the question mentioned in O’Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308 (1996), the possibility of a 52-year-old suing over a preference for someone younger but in the over-40 protected class. What matters is that the Senator’s remark, “whichever way [the] decision went,” is the only item in all the 1967 hearings, reports, and debates going against the grain of the common understanding of age discrimination. Even from a sponsor, a single outlying statement cannot stand against a tide of context and history, not to mention 30 years of judicial interpretation producing no apparent legislative qualms. See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118 (1980) (“[Ojrdinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history”).
C
The third objection relies on a reading consistent with the Yarborough comment, adopted by the agency now charged with enforcing the statute, as set out at 29 CFR § 1625.2(a) (2003), and quoted in full, n. 1, supra. When the EEOC adopted § 1625.2(a) in 1981, shortly after assuming administrative responsibility for the ADEA, it gave no reasons for the view expressed, beyond noting that the provision was carried forward from an earlier Department of Labor regulation, see 44 Fed. Reg. 68858 (1979); 46 Fed. Reg. 47724 (1981); that earlier regulation itself gave no reasons, see 33 Fed. Reg. 9172 (1968) (reprinting 29 CFR §860.91; rescinded by 46 Fed. Reg. 47724 (1981)).
The parties contest the degree of weight owed to the EEOC’s reading, with General Dynamics urging us that Skidmore v. Swift & Co., 323 U. S. 134 (1944), sets the limit, while Cline and the EEOC say that § 1625.2(a) deserves greater deference under Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Although we have devoted a fair amount of attention lately to the varying degrees of deference deserved by agency pronouncements of different sorts, see United States v. Mead Corp., 533 U. S. 218 (2001); Christensen v. Harris County, 529 U. S. 576 (2000), the recent cases are not on poirit here. In Edelman v. Lynchburg College, 535 U. S. 106, 114 (2002), we found no need to choose between Skidmore and Chevron, or even to defer, because the EEOC was clearly right; today, we neither defer nor settle on any degree of deference because the Commission is clearly wrong.
Even for an agency able to under Chevron, deference to its statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent. INS v. Cardoza-Fonseca, 480 U. S. 421, 446-448 (1987) (citing Chevron, supra, at 843, n. 9). Here, regular interpretive method leaves no serious question, not even about purely textual ambiguity in the ADEA. The word “age” takes on a definite meaning from being in the phrase “discrimination]... because of such individual’s age,” occurring as that phrase does in a statute structured and manifestly intended to protect the older from arbitrary favor for the younger.
IV
We see the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one. The judgment of the Court of Appeals is
Reversed.
29 CFR § 1625.2(a) (2003) (“[I]f two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either one on the basis of age, but must make such decision on the basis of some other factor”). We discuss this regulation at greater length, infra, at 599-600.
That report found that “[e]mployment discrimination because of race is identified ... with . .. feelings about people entirely unrelated to their ability to do the job. There is no significant discrimination of this kind so far as older workers are concerned. The most closely related kind of discrimination in the non-employment of older workers involves their rejection because of assumptions about the effect of age on their ability to do a job when there is in fact no basis for these assumptions.” Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 2 (June 1965) (hereinafter Wirtz Report) (emphasis in original).
See also House Hearings 449 (statement of Rep. James A. Burke) (“Discrimination arises for [the older job seeker] because of assumptions that are made about the effects of age on performance”); Senate Hearings 179 (statement of Dr. Harold L. Sheppard) (“[0]ne of the underlying conditions for this upward trend in unemployment rates for a given group of so-called older workers over a period of time ... is related to the barrier of age discrimination”); id., at 215 (statement of Sen. Harrison A. Williams) (“ ‘Unfavorable beliefs and generalizations about older persons have grown up and have been translated into restrictive policies and practices in hiring new employees which bar older jobseekers from employment principally because of age’ ” (quoting earlier report of Senate Special Committee on Aging)).
In 1978, Congress changed the upper age limit to 70 years, Pub. L. 95-256, §3(a), 92 Stat. 189, and then struck it entirely in 1986, Pub. L. 99-592, § 2(c)(1), 100 Stat. 3342. The President transferred authority over the ADEA from the Department of Labor to the EEOC in 1978. Reorg. Plan No. 1 of 1978, 5 U. S. C. App. § 2, p. 206. Congress has also made other changes, including extending the ADEA to government employees (state, local, and federal), Pub. L. 93-259, 88 Stat. 74-75 (amending 29 U. S. C. § 630(b) and adding § 633a), and clarifying that it extends, with certain exceptions, to employee benefits, Pub. L. 101-433, 104 Stat. 978 (amending among other provisions 29 U. S. C. §630(i)).
Justice Thomas, post, at 606-613 (dissenting opinion), charges our holding with unnaturally limiting a comprehensive prohibition of age discrimination to “the principal evil that Congress targeted,” post, at 607, which he calls inconsistent with the method of McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976) (the Title VII prohibition of discrimination because of race protects whites), and Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998) (the Title VII prohibition of discrimination because of sex protects men from sexual harassment by other men). His objection is aimed at the wrong place. As we discuss at greater length infra, at 596-598, we are not dealing here with a prohibition expressed by the unqualified use of a term without any conventionally narrow sense (as “race” or “sex” are used in Title VII), and are not narrowing such a prohibition so that it covers only instances of the particular practice that induced Congress to enact the general prohibition. We hold that Congress expressed a prohibition by using a term in a commonly understood, narrow sense (“age” as “relatively old age”). Justice Thomas may think we are mistaken, post, at 603-606, when we infer that Congress used “age” as meaning the antithesis of youth rather than meaning any age, but we are not making the particular mistake of confining the application of terms used in a broad sense to the relatively narrow class of cases that prompted Congress- to address their subject matter.
See Lawrence v. Irondequoit, 246 F. Supp. 2d 150, 161 (WDNY 2002) (following Hamilton), Greer v. Pension Benefit Guaranty Corporation, 85 FEP Cases 416, 419 (SDNY 2001) (noting unanimity of the courts); Dittman v. General Motors Corp.-Delco Chassis Div., 941 F. Supp. 284, 286-287 (Conn. 1996) (alternative holding) (following Hamilton)', Parker v. Wakelin, 882 F. Supp. 1131, 1140 (Me. 1995) (“The ADEA has never been construed to permit younger persons to claim discrimination against them in favor of older persons”); Wehrly v. American Motors Sales Corp., 678 F. Supp. 1366, 1382 (ND Ind. 1988) (following Karlen v. City Colleges of Chicago, 837 F. 2d 314, 318 (CA7), cert. denied sub nom. Teachers v. City Colleges of Chicago, 486 U. S. 1044 (1988)). The only case we have found arguably to the contrary is Mississippi Power & Light Co. v. Local Union Nos. 605 & 985, IBEW, 945 F. Supp. 980, 985 (SD Miss. 1996), which allowed a claim objecting to a benefit given to individuals between 60 and 65 and denied to those outside that range, without discussing Hamilton or any of the other authority holding that the plaintiffs under 60 would lack a cause of action.
Congress has not been shy in revising other judicial constructions of the ADEA. See Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 167-168 (1989) (observing that the 1978 amendment to the ADEA “changed the specific result” of this Court’s earlier case of United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977)); H. R. Rep. No. 101-664, pp. 10-11, 34 (1990) (stating that Congress in 1978 had also disapproved McMann’s reasoning, and that with the 1990 amendments it meant to overrule Betts as well).
It gets too little credit for relenting, though. “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933). The passage has become a staple of our opinions. See United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001); NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 262 (1995); CAB v. Delta Air Lines, Inc., 367 U. S. 316, 328 (1961).
An even wider contextual enquiry supports our conclusion, for the uniformity Cline and the EEOC claim for the uses of “age” within the ADEA itself would introduce unwelcome discord among the federal statutes on employee benefit plans. For example, the Tax Code requires an employer to allow certain employees who reach age 55 to diversify their stock ownership plans in part, 26 U. S. C. §401(a)(28)(B); removes a penalty on early distributions from retirement plans at age 59V£, § 72(t)(2)(A)(i); requires an employer to allow many employees to receive benefits immediately upon retiring at age 65, §401(a)(14); and requires an employer to adjust upward ah employee’s pension benefits if that employee continues to work past age 70'A § 401 (a)(9)(C)(iii). The Employee Retirement Income Security Act of 1974 makes similar provisions. See, e. g., 29 U. S. C. § 1002(24) (“normal retirement age” may come at age 65, although the plan specifies later); § 1053(a) (a plan must pay full benefits to employees who retire at normal retirement age). Taken one at a time any of these statutory directives might be viewed as an exception Congress carved out of a generally recognized principle that employers may not give benefits to older employees that they withhold from younger ones. Viewed as a whole, however, they are incoherent with the alleged congressional belief that such a background principle existed.
Essentially the same answer suffices for Cline’s and the EEOC’s suggestion that our reading is at odds with the statute’s ban on employers’ “printing] . . . any notice or advertisement relating to employment . . . indicating any preference, limitation, specification, or discrimination . . . based on age.” § 623(e).
It is only fair to add, though, that Senator Dominick himself does appear to have sought clarification on the question presented, asking in a statement appended to the Committee Report whether “the prospective employer [is] open to a charge of discrimination if he hires the younger man and would ... be open to a charge of discrimination by the younger man if he hired the older one.” S. Rep. No. 723, 90th Cong., 1st Sess., 15-16 (1967); see also id., at 16 (mentioning confusion among committee counsel). Senator Dominick considered this result undesirable. See ibid. (“[M]any legal complexities surrounding this bill . . . have not been adequately dealt with by the committee”).
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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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[
31
] |
SALAZAR, SECRETARY OF THE INTERIOR, et al. v. RAMAH NAVAJO CHAPTER et al.
No. 11-551.
Argued April 18, 2012
Decided June 18, 2012
Sotomayor, J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Ginsburg, Breyer, and Alito, JJ., joined, post, p. 201.
Mark R. Freeman argued the cause for petitioners. With him on the briefs were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Knee-dler, Barbara C. Biddle, John S. Koppel, Patrice H. Kunesh, Michael J. Berrigan, Jeffrey C. Nelson, and Sabrina A. McCarthy.
Carter G. Phillips argued the 'cause for respondents. With him on the brief were Michael P. Gross, Jonathan F. Cohn, Matthew D. Krueger, C. Bryant Rogers, Lloyd B. Miller, Donald J. Simon, and Daniel H. MacMeekin.
Briefs of amici curiae urging affirmance were filed for the Arctic Slope Native Association, Ltd., by Messrs. Miller, Simon, Phillips, Cohn, and Krueger; for the Chamber of Commerce of the United States of America et al. by Herbert L. Fenster, Robin S. Conrad, Kate Comerford Todd, David A. Churchill, and Matthew S. Heilman; and for the National Congress of American Indians et al. by Edward C. DuMont and Danielle Spinelli.
Justice Sotomayor
delivered the opinion of the Court.
The Indian Self-Determination and Education Assistance Act (ISDA or Act), 25 U. S. C. § 450 et seq., directs the Secretary of the Interior to enter into contracts with willing tribes, pursuant to which those tribes will provide services such as education and law enforcement that otherwise would have been provided by the Federal Government. ISDA mandates that the Secretary shall pay the full amount of “contract support costs” incurred by tribes in performing their contracts. At issue in this case is whether the Government must pay those costs when Congress appropriates sufficient funds to pay in full any individual contractor’s contract support costs, but not enough funds to cover the aggregate amount due every contractor. Consistent with longstanding principles of Government contracting law, we hold that the Government must pay each tribe’s contract support costs in full.
I
A
Congress enacted ISDA in 1975 in order to achieve “maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.” 25 U. S. C. § 450a(a). To that end, the Act directá the Secretary of the Interior, “upon the request of any Indian tribe . . . , to enter into a self-determination contract... to plan, conduct, and administer” health, education, economic, and social programs that the Secretary otherwise would have administered. § 450f(a)(1).
As originally enacted, ISDA required the Government to provide contracting tribes with an amount of funds equivalent to those that the Secretary “would have otherwise provided for his direct operation of the programs.” § 106(h), 88 Stat. 2211. It soon became apparent that this secretarial amount failed to account for the full costs to tribes of providing services. Because of “concern with Government’s past failure adequately to reimburse tribes’ indirect administrative costs,” Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, 639 (2005), Congress amended ISDA to require the Secretary to contract to pay the “full amount” of “contract support costs” related to each self-determination contract, §§ 450j-1(a)(2), (g). The Act also provides, however, that “[Notwithstanding any other provision in [ISDA], the provision of funds under [ISDA] is subject to the availability of appropriations.” § 450j-1(b).
Congress included a model contract in ISDA and directed that each tribal self-determination contract “shall . . . contain, or incorporate [it] by reference.” § 450l(a)(1). The model contract specifies that “‘[s]ubject to the availability of appropriations, the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement’ ” between the Secretary and the tribe. § 450Z(c) (model agreement § 1(b)(4)). That amount “‘shall not be less than the applicable amount determined pursuant to [§450j-1(a)],’ ” which includes contract support costs. Ibid.; § 450j-l(a)(2). The contract indicates that “ ‘[e]ach provision of [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contractor . . . § 450Z(c) (model agreement § 1(a)(2)). Finally, the Act makes clear that if the Government fails to pay the amount contracted for, then tribal contractors are entitled to pursue “money damages” in accordance with the Contract Disputes Act. § 450m-l(a).
B
During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e. g., Department of the Interior and Belated Agencies Appropriations Act, 2000,113 Stat. 1501A-148. Of that sum, Congress provided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs” under ISDA. E. g., ibid. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. Ibid.
During each relevant FY, Congress appropriated sufficient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appropriate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FYs 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each FY was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F. 3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009).
Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U. S. C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FYs 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Circuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was therefore binding. 644 F. 3d, at 1063-1065. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U. S. 1104 (2012), and now affirm.
I—!
A
In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation, we also considered the Government’s promise to pay contract support costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.” 543 U. S., at 634-637. For each FY at issue, Congress had appropriated to the Indian Health Service (IHS) a lump sum between $1,277 and $1,419 billion, “far more than the [contract support cost] amounts” due under the Tribes’ individual contracts. Id., at 637; see id., at 636 (Cherokee Nation and Shoshone-Paiute Tribes filed claims seeking $3.4 and $3.5 million, respectively). The Government contended, however, that Congress had appropriated inadequate funds to enable the IHS to pay the Tribes’ contract support costs in full, while meeting all of the agency’s competing fiscal priorities.
As we explained, that did not excuse the Government’s responsibility to pay the Tribes. We stressed that the Government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting that ISDA “uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.” Id., at 639. As even the Government conceded, “in the case of ordinary contracts ... ‘if the amount of an unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds.’ ” Id., at 641. It followed, therefore, that absent “something special about the promises here at issue,” the Government was obligated to pay the Tribes’ contract support costs in full. Id., at 638.
We held that the mere fact that ISDA self-determination contracts are made “subject to the availability of appropriations” did not warrant a special rule. Id., at 643 (internal quotation marks omitted). That commonplace provision, we explained, is ordinarily satisfied so long as Congress appropriates adequate legally unrestricted funds to pay the contracts at issue. See ibid. Because Congress made sufficient funds legally available to the agency to pay the Tribes’ contracts, it did not matter that the BIA had allocated some of those funds to serve other purposes, such that the remainder was insufficient to pay the Tribes in full. Rather, we agreed with the Tribes that “as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue,” the Government’s promise to pay was binding. Id., at 637-638.
Our conclusion in Cherokee Nation followed directly from well-established principles of Government contracting law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that the Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible ends. See Ferris v. United States, 27 Ct. Cl. 542, 546 (1892); Dougherty v. United States, 18 Ct. Cl. 496, 503 (1883); see also 2 GAO, Principles of Federal Appropriations Law, p. 6-17 (2d ed. 1992) (hereinafter GAO Redbook). That is so “even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. In such cases, “[t]he United States are as much bound by their contracts as are individuals.” Lynch v. United States, 292 U. S. 571, 580 (1934) (internal quotation marks omitted). Although the agency itself cannot disburse funds beyond those appropriated to it, the Government’s “valid obligations will remain enforceable in the courts.” GAO Redbook, p. 6-17.
This principle safeguards both the expectations of Government contractors and the long-term fiscal interests of the United States. For contractors, the Ferris rule reflects that when “a contract is but one activity under a larger appropriation, it is not reasonable to expect the contractor to know how much of that appropriation remains available for it at any given time.” GAO Redbook, p. 6-18. Contractors are responsible for knowing the size of the pie, not how the agency elects to slice it. Thus, so long as Congress appropriates adequate funds to cover a prospective contract, contractors need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its contractual promises. Dougherty, 18 Ct. Cl., at 503. In such cases, if an agency over-commits its funds such that it cannot fulfill its contractual commitments, even the Government has acknowledged that “[t]he risk of over-obligation may be found to fall on the agency,” not the contractor. Brief for Federal Parties in Cherokee Nation v. Leavitt, O. T. 2004, No. 02-1472 etc., p. 24 (hereinafter Brief for Federal Parties).
The rule likewise furthers “the Government’s own long-run interest as a reliable contracting partner in the myriad workaday transaction of its agencies.” United States v. Winstar Corp., 518 U. S. 839, 883 (1996) (plurality opinion). If the Government could be trusted to fulfill its promise to pay only when more pressing fiscal needs did not arise, would-be contractors would bargain warily—if at all—and only at a premium large enough to account for the risk of nonpayment. See, e. g., Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Government Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996). In short, contracting would become more cumbersome and expensive for the Government, and willing partners more scarce.
B
The principles underlying Cherokee Nation and Ferris dictate the result in this case. Once “Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of ‘insufficient appropriations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637; see also id., at 638 (“[T]he Government denies none of this”).
That condition is satisfied here. In each FY between 1994 and 2001, Congress appropriated to the BIA a lump sum from which “not to exceed” between $91 and $125 million was allocated for contract support costs, an amount that exceeded the sum due any tribal contractor. Within those constraints, the ability to direct those funds was “ ‘committed to agency discretion by law.’” Lincoln v. Vigil, 508 U. S. 182, 193 (1993) (quoting 5 U. S. C. § 701(a)(2)). Nothing, for instance, prevented the BIA from paying in full respondent Ramah Navajo Chapter’s contract support costs rather than other tribes’, whether based on its greater need or simply because it sought payment first. See International Union, United Auto., Aerospace & Agricultural Implement Work ers of Am. v. Donovan, 746 F. 2d 855, 861 (CADC 1984) (Scalia, J.) (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). And if there was any doubt that that general rule applied here, ISDA’s statutory language itself makes clear that the BIA may allocate funds to one tribe at the expense of another. See § 450j-1(b) (“[T]he Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this [Act]”). The upshot is that the funds appropriated by Congress were legally available to pay any individual tribal contractor in full. See 1 GAO Redbook, p. 4-6 (3d ed. 2004).
The Government’s contractual promise to pay each tribal contractor the “full amount of funds to which the contractor [was] entitled,” § 450j-l(g), was therefore binding. We have expressly rejected the Government’s argument that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Cherokee Nation, 543 U. S., at 638. Rather, the tribal contractors were entitled to rely on the Government’s promise to pay because they were “not chargeable with knowledge” of the BIA’s administration of Congress’ appropriation, “nor [could their] legal rights be affected or impaired by its maladministration or by its diversion.” Ferris, 27 Ct. Cl., at 546.
As in Cherokee Nation, we decline the Government’s invitation to ascribe “special, rather than ordinary,” meaning to the fact that ISDA makes contracts “subject to the availability of appropriations.” 543 U. S., at 644. Under our previous interpretation of that language, that condition was satisfied here because Congress appropriated adequate funds to pay in full any individual contractor. It is important to afford that language a “uniform interpretation” in this and comparable statutes, “lest legal uncertainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services.” Ibid. It would be particularly anomalous to read the statutory language differently here. Contracts made under ISDA specify that “ ‘[e]ach provision of [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contractor . . . .’” § 450l(c) (model agreement § 1(a)(2)). The Government, in effect, must demonstrate that its reading is clearly required by the statutory language. Accordingly, the Government cannot back out of its contractual promise to pay each Tribe’s full contract support costs.
Ill
A
The Government primarily seeks to distinguish this case from Cherokee Nation and Ferris on the ground that Congress here appropriated “not to exceed” a given amount for contract support costs, thereby imposing an express cap on the total funds available. See Brief for Petitioners 26, 49. The Government argues, on this basis, that Ferris and Cherokee Nation involved “contracts made against the backdrop of unrestricted, lump-sum appropriations,” while this case does not. See Brief for Petitioners 49, 26.
That premise, however, is inaccurate. In Ferris, Congress appropriated “[f]or improving Delaware River below Bridesburg, Pennsylvania, forty-five thousand dollars.” 20 Stat. 364. As explained in the Government’s own appropriations law handbook, the “not to exceed” language at issue in this case has an identical meaning to the quoted language in Ferris. See GAO Redbook, p. 6-5 (“Words like ‘not to exceed’ are not the only way to establish a maximum limitation. If the appropriation includes a specific amount for a particular object (such as ‘For Cuban cigars, $100’), then the appropriation is a maximum which may not be exceeded”). The appropriation in Cherokee Nation took a similar form. See, e. g., 108 Stat. 2527-2528 (“For expenses necessary to carry out . . . [ISDA and certain other enumerated Acts], $1,713,052,000”). There is no basis, therefore, for distinguishing the class of appropriation in those cases from this one. In each case, the agency remained free to allocate funds among multiple contractors, so long as the contracts served the purpose Congress identified.
This result does not leave the “not to exceed” language in Congress’ appropriation without legal effect. To the contrary, it prevents the Secretary from reprogramming other funds to pay contract support costs—thereby protecting funds that Congress envisioned for other BIA programs, including tribes that choose not to enter ISDA contracts. But when an agency makes competing contractual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor.
B
The dissent attempts to distinguish this case from Cherokee Nation and Ferris on different grounds, relying on §450j-l(b)’s proviso that “the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe.” In the dissent’s view, that clause establishes that each dollar allocated by the Secretary reduces the amount of appropriations legally available to pay other contractors. In effect, the dissent understands § 450j-l(b) to make the legal availability of appropriations turn on the Secretary’s expenditures rather than the sum allocated by Congress.
That interpretation, which is inconsistent with ordinary principles of Government contracting law, is improbable. We have explained that Congress ordinarily controls the availability of appropriations; the agency controls whether to make funds from that appropriation available to pay a contractor. See Cherokee Nation, 543 U. S., at 642-643. The agency’s allocation choices do not affect the Government’s liability in the event of an underpayment. See id., at 641 (when an “‘unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose’ ”). In Cherokee Nation, we found those ordinary principles generally applicable to ISDA. See id., at 637-646. We also found no evidence that Congress intended that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Id., at 638 (citing Brief for Federal Parties 23-25). The dissent’s reading, by contrast, would impose precisely that regime. See post, at 204-206.
The better reading of §450j-l(b) accords with ordinary Government contracting principles. As we explained, supra, at 190-192, the clause underscores the Secretary’s discretion to allocate funds among tribes, but does not alter the Government’s legal obligation when the agency fails to pay. That reading gives full effect to the clause’s text, which addresses the “amount of funds provided,” and specifies that the Secretary is not required to reduce funding for one tribe to make “funds available” to another. 450j-l(b). Indeed, even the Government acknowledges the clause governs the Secretary’s discretion to distribute funds. See Brief for Petitioners 52 (pursuant to § 450j-l(b), the Secretary was not obligated to pay tribes’ “contract support costs on a first-come, first-served basis, but had the authority to distribute the available money among all tribal contractors in an equitable fashion”).
At minimum, the fact that we, the court below, the Government, and the Tribes do not share the dissent’s reading of § 450j-1(b) is strong evidence that its interpretation is not, as it claims, “unambiguous[ly]” correct. Post, at 207 (opinion of Roberts, C. J.). Because ISDA is construed in favor of tribes, that conclusion is fatal to the dissent.
C
The remaining counterarguments are unpersuasive. First, the Government suggests that today’s holding could cause the Secretary to violate the Anti-Deficiency Act, which prevents federal officers from “mak[ing] or authorizing] an expenditure or obligation exceeding an amount available in an appropriation.” 31 U. S. C. § 1341(a)(1)(A). But a predecessor version of that Act was in place when Ferris and Dou-gherty were decided, see GAO Redbook, pp. 6-9 to 6-10, and the Government did not prevail there. As Dougherty explained, the Anti-Deficiency Act’s requirements “apply to the official, but they do not affect the rights in this court of the citizen honestly contracting with the Government.” 18 Ct. Cl., at 503; see also Ferris, 27 Ct. Cl., at 546 (“An appropriation per se merely imposes limitations upon the Government’s own agents;.. . but its insufficiency does not pay the Government’s debts, nor cancel its obligations”).
Second, the Government argues that Congress could not have intended for respondents to recover from the Judgment Fund, 31 U. S. C. § 1304, because that would allow the Tribes to circumvent Congress’ intent to cap total expenditures for contract support costs. That contention is puzzling. Congress expressly provided in ISDA that tribal contractors were entitled to sue for “money damages” under the Contract Disputes Act upon the Government’s failure to pay, 25 U. S. C. §§ 450m-1(a), (d), and judgments against the Government under that Act are payable from the Judgment Fund, 41 U. S. C. § 7108(a) (2006 ed., Supp. IV). Indeed, we cited the Contract Disputes Act, Judgment Fund, and Anti-Deficiency Act in Cherokee Nation, explaining that if the Government commits its appropriations in a manner that leaves contractual obligations unfulfilled, “the contractor [is] free to pursue appropriate legal remedies arising because the Government broke its contractual promise.” 543 U. S., at 642.
Third, the Government invokes cases in which courts have rejected contractors’ attempts to recover for amounts beyond the maximum appropriated by Congress for a particular purpose. See, e. g., Sutton v. United States, 256 U. S. 575 (1921). In Sutton, for instance, Congress made a specific line-item appropriation of $23,000 for the completion of a particular project. Id., at 577. We held that the sole contractor engaged to complete that project could not recover more than that amount for his work.
The Ferris and Sutton lines of cases are distinguishable, however. GAO Redbook, p. 6-18. “[I]t is settled that contractors paid from a general appropriation are not barred from recovering for breach of contract even though the appropriation is exhausted,” but that “under a specific line-item appropriation, the answer is different.” Ibid. The different results “follo[w] logically from the old maxim that ignorance of the law is no excuse.” Ibid. “If Congress appropriates a specific dollar amount for a particular contract, that amount is specified in the appropriation act and the contractor is deemed to know it.” Ibid. This ease is far different. Hundreds of tribes entered into thousands of independent contracts, each for amounts well within the lump sum appropriated by Congress to pay contract support costs. Here, where each Tribe’s “contract is but one activity under a larger appropriation, it is not reasonable to expect [each] contractor to know how much of that appropriation remain[ed] available for it at any given time.” Ibid.; see also Ferris, 27 Ct. Cl., at 546.
Finally, the Government argues that legislative history suggests that Congress approved of the distribution of available funds on a uniform, pro rata basis. But “a fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.” Lincoln, 508 U. S., at 192 (internal quotation marks omitted). “[I]ndicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” Ibid, (internal quotation marks omitted). An agency’s discretion to spend appropriated funds is cabined only by the “text of the appropriation,” not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history. International Union, UAW, 746 F. 2d, at 860-861. That principle also reflects the same ideas underlying Ferris. If a contractor’s right to payment varied based on a future court’s uncertain interpretation of legislative history, it would increase the Government’s cost of contracting. Cf. Cherokee Nation, 543 U. S., at 644. That long-run expense would likely far exceed whatever money might be saved in any individual case.
> hH
As the Government points out, the state of affairs resulting in this case is the product of two congressional decisions which the BIA has found difficult to reconcile. On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of “full” funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The Government’s frustration is understandable, but the dilemma’s resolution is the responsibility of Congress.
Congress is not short of options. For instance, it could reduce the Government’s financial obligation by amending ISDA to remove the statutory mandate compelling the BIA to enter into self-determination contracts, or by giving the BIA flexibility to pay less than the full amount of contract support costs. It could also pass a moratorium on the formation of new self-determination contracts, as it has done before. See § 328, 112 Stat. 2681-291 to 2681-292. Or Congress could elect to make line-item appropriations, allocating funds to cover tribes’ contract support costs on a contractor-by-contractor basis. On the other hand, Congress could appropriate sufficient funds to the BIA to meet the tribes’ total contract support cost needs. Indeed, there is some evidence that Congress may do just that. See H. R. Rep. No. 112-151, p. 42 (2011) (“The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission”).
The desirability of these options is not for us to say. We make clear only that Congress has ample means at hand to resolve the situation underlying the Tribes’ suit. Any one of the options above could also promote transparency about the Government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the Government—not the Tribes—that must bear the consequences of Congress’ decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but “insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
As defined by ISDA, contract support costs “shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which . . . (A) normally are not carried on by the respective Secretary in his direct operation of the program; or (B) are provided by the Secretary in support of the contracted program from resources other than those under contract.” §450j-l(a)(2). Such costs include overhead administrative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla., 543 U. S., at 635.
Compare 644 F. 3d 1054 (case below) with Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F. 3d 1296 (CA Fed. 2010) (no liability to pay total contract support costs beyond cap in appropriations Act).
In Ferris, for instance, Congress appropriated $45,000 for the improvement of the Delaware River below Bridesburg, Pennsylvania. Act of Mar. 3, 1879, ch. 181, 20 Stat. 364. The Government contracted with Ferris for $37,000 to dredge the river. Halfway through Ferris’ performance of his contract, the United States Army Corps of Engineers ran out of money to pay Ferris, having used $17,000 of the appropriation to pay for other improvements. Nonetheless, the Court of Claims found that Ferris could recover for the balance of his contract. As the court explained, the appropriation “merely impose[d] limitations upon the Government’s own agents; ... its insufficiency [did] not pay the Government’s debts, nor cancel its obligations, nor defeat the rights of other parties.” 27 Ct. Cl., at 546; see also Dougherty, 18 Ct. Cl., at 503 (rejecting Government’s argument that a contractor could not recover upon similar facts because the “appropriation had, at the time of the purchase, been covered by other contracts”).
Indeed, the IHS once allocated its appropriations for new ISDA contracts on a first-come, first-serve basis. See Dept, of Health and Human Services, Indian Self-Determination Memorandum No. 92-2, p. 4 (Feb. 27, 1992).
The Government’s reliance on this statutory language is particularly curious because it suggests it is superfluous. See Brief for Petitioners 30-31 (it is “unnecessary” to specify that contracts are “subject to the availability of appropriations” (internal quotation marks omitted)); see also Reply Brief for Petitioners 7 (“[A]ll government contracts are contingent upon the appropriations provided by Congress”).
The dissent’s view notwithstanding, it is beyond question that Congress appropriated sufficient unrestricted funds to pay any contractor in full. The dissent’s real argument is that §450j-1(b) reverses the applicability of the Ferris rule to ISDA, so that the Secretary’s allocation of funds to one contractor reduces the legal availability of fends to others. See post, at 204 (opinion of Roberts, C. J.) (“[T]hat the Secretary could have allocated the fends to [a] tribe is irrelevant. What matters is what the Secretary actually does, and once he allocates the fends to one tribe, they are not ‘available’ to another”). We are not persuaded that § 450j—1(b) was intended to enact that radical departure from ordinary Government contracting principles. Indeed, Congress has spoken clearly and directly when limiting the Government’s total contractual liability to an amount appropriated in similar schemes; that it did not do so here further counsels against the dissent’s reading. See, e. g., 25 U. S. C. § 2008( j)(2) (“If the total amount of funds necessary to provide grants to tribes ... for a fiscal year exceeds the amount of fends appropriated . . . , the Secretary shall reduce the amount of each grant [pro rata]”).
We have some doubt whether a Government employee would violate the Anti-Deficiency Act by obeying an express statutory command to enter a contract, as was the case here. But we need not decide the question, for this case concerns only the contractual rights of tribal contractors, not the consequences of entering into such contracts for agency employees.
The Judgment Fund is a “permanent, indefinite appropriation” enacted by Congress to pay final judgments against the United States when, inter alia, “[pjayment may not legally be made from any other source of funds.” 31 CFR § 256.1(a)(4) (2011).
For that reason, the Government’s reliance on Office of Personnel Management v. Richmond, 496 U. S. 414 (1990), is misplaced. In Richmond, we held that the Appropriations Clause does not permit plaintiffs to recover money for Government-caused injuries for which Congress “appropriated no money.” Id., at 424. Richmond, however, indicated that the Appropriations Clause is no bar to recovery in a case like this one, in which “the express terms of a specific statute” establish “a substantive right to compensation” from the Judgment Fund. Id., at 432.
Of course, “[t]he terms ‘lump-sum’ and ‘line-item’ are relative concepts.” GAO Redbook, p. 6-165. For example, an appropriation for building two ships “could be viewed as a line-item appropriation in relation to the broader ‘Shipbuilding and Conversion’ category, but it was also a lump-sum appropriation in relation to the two specific vessels included.” Ibid. So long as a contractor does not seek payment beyond the amount Congress made legally available for a given purpose, “[t]his factual distinction does not affect the legal principle.” Ibid. See also In re Newport News Shipbuilding & Dry Dock Co., 55 Comp. Gen. 812 (1976).
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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
] |
NEGUSIE v. HOLDER, ATTORNEY GENERAL
No. 07-499.
Argued November 5, 2008
Decided March 3, 2009
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined, post, p. 525. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined, post, p. 528. Thomas, J., filed a dissenting opinion, post, p. 538.
Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld and Dan Kahan.
Assistant Attorney General Katsas argued the cause for respondent. With him on the brief were former Solicitor General Garre, then-Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Dupree, Nicole A. Saharsky, Donald E. Keener, Keith I. McManus, and Jennifer J Keeney.
Briefs of amici curiae urging reversal were filed for Advocates for Human Rights by Benjamin Casper and Heather McElroy; for the American Jewish Congress et al. by Charles G. Moerdler, Christian Fletcher, Marc D. Stern, Jeffrey P. Sinensky, and Kara H. Stein; for the Becket Fund for Religious Liberty et al. by Eric C. Rassbach; for Human Rights First et al. by Steven H. Schulman and Patricia A. Millett; for the Office of the United Nations High Commissioner for Refugees by H. Elizabeth Dallam and Pamela Goldberg; and for Scholars of International Refugee Law by Mark C. Fleming and Deborah Anker.
Justice Kennedy
delivered the opinion of the Court.
An alien who fears persecution in his homeland and seeks refugee status in this country is barred from obtaining that relief if he has persecuted others.
“The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Immigration and Nationality Act (INA), §101, 66 Stat. 166, as added by Refugee Act of 1980, § 201(a), 94 Stat. 102-103, 8 U. S. C. § 1101(a)(42).
This so-called “persecutor bar” applies to those seeking asylum, § 1158(b)(2)(A)(i), or withholding of removal, § 1231(b)(3)(B)(i). It does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U. N. T. S. 85; 8 CFR § 1208.17(a) (2008).
In this ease the Board of Immigration Appeals (BIA) determined that the persecutor bar applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.
I
Petitioner in this Court is Daniel Girmai Negusie, a dual national of Eritrea and Ethiopia, his father having been a national of the former and his mother of the latter. Born and educated in Ethiopia, he left there for Eritrea around the age of 18 to see his mother and find employment. The year was 1994. After a few months in Eritrea, state officials took custody of petitioner and others when they were attending a movie. He was forced to perform hard labor for a month and then was conscripted into the military for a time. War broke out between Ethiopia and Eritrea in 1998, and he was conscripted again.
When petitioner refused to fight against Ethiopia, his other homeland, the Eritrean Government incarcerated him. Prison guards punished petitioner by beating him with sticks and placing him in the hot sun. He was released after two years and forced to work as a prison guard, a duty he performed on a rotating basis for about four years. It is undisputed that the prisoners he guarded were being persecuted on account of a protected ground — i. e., “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. § 1101(a)(42). Petitioner testified that he carried a gun, guarded the gate to prevent escape, and kept prisoners from taking showers and obtaining fresh air. He also guarded prisoners to make sure they stayed in the sun, which he knew was a form of punishment. He saw at least one man die after being in the sun for more than two hours. Petitioner testified that he had not shot at or directly punished any prisoner and that he helped prisoners on various occasions. Petitioner escaped from the prison and hid in a container, which was loaded on board a ship heading to the United States. Once here he applied for asylum and withholding of removal.
In a careful opinion the Immigration Judge, W. Wayne Stogner, found that petitioner’s testimony, for the most part, was credible. He concluded that petitioner assisted in persecution by working as an armed guard. The judge determined that although “there’s no evidence to establish that [petitioner] is a malicious person or that he was an aggressive person who mistreated the prisoners,. . . the very fact that he helped [the government] in the prison compound where he had reason to know that they were persecuted constitutes assisting in the persecution of others and bars [petitioner] from” obtaining asylum or withholding of removal. App. to Pet. for Cert. 16a-17a (citing, inter alia, Fedorenko, supra). The judge, however, granted deferral of removal under CAT because petitioner was likely to be tortured if returned to Eritrea.
The BIA affirmed the denial of asylum and withholding. It noted petitioner’s role as an armed guard in a facility where “prisoners were tortured and left to die out in the sun ... on account of a protected ground.” App. to Pet. for Cert. 6a. The BIA held that “[t]he fact that [petitioner] was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial.” Ibid. That is because “‘an alien’s motivation and intent are irrelevant to the issue of whether he “assisted” in persecution .... [I]t is the objective effect of an alien’s actions which is controlling.’” Ibid, (quoting Matter of Fedorenko, 19 I. & N. Dec. 57,69 (BIA 1984)). The BIA also affirmed the grant of deferral of removal under CAT.
On petition for review the Court of Appeals agreed with the BIA that whether an alien is compelled to assist in persecution is immaterial for persecutor-bar purposes. Negusie v. Gonzales, 231 Fed. Appx. 325, 326 (2007) (per curiam) (citing Fedorenko, supra, at 512, n. 34). We granted certiorari. 552 U. S. 1255 (2008).
II
Consistent with the rule in Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA. The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise.
A
JHris well settled that “principles of Chevron deference áre applicable to this statutory scheme.” INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999). Congress has charged the Attorney General with administering the INA, and a “ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U. S. C. § 1103(a)(1). Judicial deference in the immigration context is of special importance, for executive officials “exercise especially sensitive political functions that implicate questions of foreign relations.” INS v. Abudu, 485 U. S. 94, 110 (1988). The Attorney General’s decision to bar an alien who has participated in persecution “may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.” Aguirre-Aguirre, 526 U. S., at 425.
The Attorney General, in turn, has delegated to the BIA the “ ‘discretion and authority conferred upon the Attorney General by law’ ” in the course of “ ‘considering and determining cases before it.’” Ibid, (quoting 8 CFR §3.1(d)(1) (1998)). As a consequence, “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.’” Aguirre-Aguirre, supra, at 425 (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 448-449 (1987)). When the BIA has not spoken on “a matter that statutes place primarily in agency hands,” our ordinary rule is to remand to “giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise.” INS v. Orlando Ventura, 537 U. S. 12, 16-17 (2002) (per curiam).
B
The parties disagree over whether coercion or duress is relevant in determining if an alien assisted or otherwise participated in persecution. As there is substance to both contentions, we conclude that the statute has an ambiguity that the agency should address in the first instance.
Petitioner argues that the statute’s plain language makes clear that involuntary acts do not implicate the persecutor bar because “‘persecution’” presumes moral blameworthiness. Brief for Petitioner 23-28. He invokes principles of criminal culpability, concepts of international law, and the rule of lenity. Id., at 28-45. Those arguments may be persuasive in determining whether a particular agency interpretation is reasonable, but they do not demonstrate that the statute is unambiguous. Petitioner all but conceded as much at argument in this Court when he indicated that the BIA has discretion to construe the duress defense in either a narrow or a broad way. Tr. of Oral Arg. 20-24.
The Government, on the other hand, asserts that the statute does not allow petitioner’s construction. “The statutory text,” the Government says, “directly answers that question: there is no exception” for conduct that is coerced because Congress did not include one. Brief for Respondent 11. We disagree. The silence is not conclusive. The question is whether the statutory text mandates that coerced actions must be deemed assistance in persecution. On that point the statute, in its precise terms, is not explicit. Nor is this a case where it is clear that Congress had an intention on the precise question at issue. Cf. Cardoza-Fonseca, supra, at 448-449.
The Government, like the BIA and the Court of Appeals, relies on Fedorenko to provide the answer. This reliance is not without some basis, as the Court there held that voluntariness was not required with respect to another persecutor bar. 449 U. S., at 512. To the extent, however, the Government deems Fedorenko to be controlling, it is in error.
In Fedorenko, the Court interpreted the Displaced Persons Act of 1948 (DPA), 62 Stat. 1009. The DPA was enacted “to enable European refugees driven from their homelands by the [second world] war to emigrate to the United States without regard to traditional immigration quotas.” 449 U. S., at 495. Section 2(b) of the DPA provides relief to “any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization” of the United Nations (IRO Constitution). 62 Stat. 1009. The IRO Constitution, as codified by Congress, excludes any individual “who can be shown: (a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Pt. II, §2, 62 Stat. 3051-3052.
The Fedorenko Court held that “an individual’s service as a concentration camp armed guard — whether voluntary or involuntary — made him ineligible for a visa” under §2(q) of the IRO Constitution. 449 U. S., at 512. That Congress did not adopt a voluntariness requirement for §2(q), the Court noted, “is plain from comparing §2(q) with § 2(5), which excludes only those individuals who ‘voluntarily assisted the enemy forces.’ ” Ibid. The Court relied on the principle of statutory construction that “the deliberate omission of the word ‘voluntary’ from §2(o) compels the conclusion that the statute made all those who assisted in persecution of civilians ineligible for visas.” Ibid.
Fedorenko does not compel the same conclusion in the case now before us. The textual structure of the statute in Fedorenko (“voluntary” is in one subsection but not the other) is not part of the statutory framework considered here. Congress did not use the word “voluntary” in any subsection of the persecutor bar, so its omission cannot carry the same significance.
The difference between the statutory scheme in Fedorenko and the one here is confirmed when we “ ‘look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.’ ” Dada v. Mukasey, 554 U. S. 1, 16 (2008) (quoting Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991)). Both statutes were enacted to reflect principles set forth in international agreements, but the principles differ in significant respects.
As discussed, Congress enacted the DPA in 1948 as part of an international effort to address individuals who were forced to leave their homelands during and after the Second World War. Fedorenko, supra, at 495. The DPA excludes those who “voluntarily assisted the enemy forces since the outbreak of the second world war,” 62 Stat. 3052, as well as all who “assisted the enemy in persecuting civil populations of countries,” id., at 3051. The latter exclusion clause makes no reference to culpability. The exclusion of even those involved in nonculpable, involuntary assistance in Nazi persecution, as an expert testified in Fedorenko, may be “‘[because the crime against humanity that is involved in the concentration camp puts it into a different category.’ ” 449 U. S., at 511, n. 32.
The persecutor bar in this case, by contrast, was enacted as part of the Refugee Act of 1980. Unlike the DPA, which was enacted to address not just the postwar refugee problem but also the Holocaust and its horror, the Refugee Act was designed to provide a general rule for the ongoing treatment of all refugees and displaced persons. As this Court has twice recognized, “‘one of Congress’ primary purposes’ in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. 6577 (1968),” as well as the “United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28,1951), reprinted in 19 U. S. T. 6259.” Aguirre-Aguirre, 526 U. S., at 427 (quoting Cardoza-Fonseca, 480 U. S., at 436-437).
These authorities illustrate why Fedorenko, which addressed a different statute enacted for a different purpose, does not control the BIA’s interpretation of this persecutor bar. Whatever weight or relevance these various authorities may have in interpreting the statute should be considered by the agency in the first instance, and by any subsequent reviewing court, after our remand.
c
The Government argues that “if there were any ambiguity in the text, the Board’s determination that the bar contains no such exception is reasonable and thus controlling.” Brief for Respondent 11. Whether such an interpretation would be reasonable, and thus owed Chevron deference, is a legitimate question; but it is not now before us. The BIA deemed its interpretation to be mandated by Fedorenko, and that error prevented it from a full consideration of the statutory question here presented.
In denying relief in this case the BIA recited a rule that has developed in its own case law in reliance on Fedorenko: “[A]n alien’s motivation and intent are irrelevant to the issue of whether he ‘assisted’ in persecution.... [I]t is the objective effect of an alien’s actions which is controlling.” App. to Pet. for Cert. 6a. The rule is based on three earlier decisions: Matter of Laipenieks, 18 I. & N. Dec. 433 (1983); Matter of Fedorenko, 19 I. & N. Dec. 57; and Matter of Rodriguez-Majano, 19 I. & N. Dec. 811 (1988).
In Matter of Laipenieks, the BIA applied the Court’s Fedorenko analysis of the DPA to a different postwar statute, which provided for the deportation of anyone associated with the Nazis who “ordered, incited, assisted, or otherwise participated” in persecution based on a protected ground. 8 U. S. C. § 1182(a)(3)(E)(i). Finding no agency or judicial decision on point, the BIA relied on Fedorenko. It recognized that the unique structure of the Fedorenko statute was not present in § 1182(a)(3)(E)(i), but the BIA nevertheless adopted wholesale the Fedorenko rule: “[A]s in Fedorenko, ... the plain language of [§ 1182(a)(3)(E)(i)] mandates a literal interpretation, and the omission of an intent element compels the conclusion that [§ 1182(a)(3)(E)(i)] makes all those who assisted in the specific persecution deportable.” 18 I. & N. Dec., at 464 (emphasis deleted). In other words, “particular motivations or intent ... is not a relevant factor.” Ibid.
The second decision, Matter of Fedorenko, also dealt with § 1182(a)(3)(E)(i), and it involved'the same alien whose citizenship was revoked by this Court’s Fedorenko decision. This time the agency sought to deport him. Fedorenko responded by requesting suspension of deportation. He argued that, unlike the DPA’s bar on any assistance — voluntary or involuntary — in persecution, see Fedorenko, supra, at 512, the text and structure of § 1182(a)(3)(E)(i) required deportation only of those who voluntarily assisted in persecuting others. The BIA rejected that distinction, noting that it was foreclosed by Matter of Laipenieks: “It may be, as [Fedorenko] argues, that his service at Treblinka was involuntary. ... We need not resolve the issue, however, because as a matter of law [Fedorenko’s] motivations for serving as a guard at Treblinka are immaterial to the question of his deportability under” § 1182(a)(3)(E)(i). 19 I. & N. Dec., at 69-70.
Later, the BIA applied this Court’s Fedorenko rule to the persecutor bar that is at issue in the present case. In Matter of Rodriguez-Majano, the BIA granted relief because the alien’s coerced conduct as a guerrilla was not persecution based on a protected ground. 19 I. & N. Dec., at 815-816. Nevertheless, in reaching its conclusion the BIA incorporated without additional analysis the Fedorenko rule as applied in Matter of Laipenieks and reiterated in Matter of Fedorenko. 19 I. & N. Dec., at 814-815. The BIA reaffirmed that “[t]he participation or assistance of an alien in persecution need not be of his own volition to bar him from relief.” Id., at 814 (citing Fedorenko, 449 U. S. 490).
Our reading of these decisions confirms that the BIA has not exercised its interpretive authority but, instead, has determined that Fedorenko controls. This mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply the Fedorenko rule that motive and intent are irrelevant to the persecutor bar at issue in this case. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency.
Ill
Having concluded that the BIA has not yet exercised its Chevron discretion to interpret the statute in question, “ ‘ “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”’” Gonzales v. Thomas, 547 U. S. 183, 186 (2006) (per curiam) (quoting Ventura, 537 U. S., at 16, in turn quoting Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985)). This remand rule exists, in part, because “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005).
Justice Stevens would have the Court provide a definite answer to the question presented and then remand for further proceedings. That approach, however, is in tension with the “ordinary ‘remand’ rule.” Ventura, supra, at 18; see also Cajun Elec. Power Cooperative, Inc. v. FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion for the court by Silberman, J., joined by R. Ginsburg and Thomas, JJ.) (“[I]f an agency erroneously contends that Congress’ intent has been clearly expressed and has rested on that ground, we remand to require the agency to consider the question afresh in light of the ambiguity we see”). Thomas is illustrative. There, the agency had not determined whether a family may constitute a social group for the purposes of refugee status. The Ninth Circuit held that the family can constitute a protected social group and that the particular family at issue did qualify. 547 U. S., at 184-185. The Solicitor General sought review in this Court on “whether the Ninth Circuit erred in holding, in the first instance and without prior resolution of the questions by the relevant administrative agency, that members of a family can and do constitute a particular social group, within the meaning of the Act.” Id., at 185 (internal quotation marks omitted). He argued that the Ninth Circuit’s decision violated the Ventura ordinary remand rule. We agreed and summarily reversed. 547 U. S., at 184-185.
Ventura and Thomas counsel a similar result here. Because of the important differences between the statute before us and the one at issue in Fedorenko, we find it appropriate to remand to the agency for its initial determination of the statutory interpretation question and its application to this case. The agency’s interpretation of the statutory meaning of “persecution” may be explained by a more comprehensive definition, one designed to elaborate on the term in anticipation of a wide range of potential conduct; and that expanded definition in turn may be influenced by how practical, or impractical, the standard would be in terms of its application to specific cases. These matters may have relevance in determining whether its statutory interpretation is a permissible one.
As the Court said in Ventura and reiterated in Thomas, “ ‘[t]he agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.’” 547 U. S., at 186-187 (quoting Ventura, supra, at 17). If the BIA decides to adopt a standard that considers voluntariness to some degree, it may be prudent and necessary for the Immigration Judge to conduct additional factfinding based on the new standard. Those determinations are for the agency to make in the first instance.
* * *
We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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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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BEGIER, TRUSTEE v. INTERNAL REVENUE SERVICE
No. 89-393.
Argued March 27, 1990
Decided June 4, 1990
Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 67.
Paul J. Winterhalter argued the cause and filed a brief for petitioner.
Brian J. Martin argued the cause for respondent. With him on the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, and Gary D. Gray.
Justice Marshall
delivered the opinion of the Court.
This case presents the question whether a trustee in bankruptcy may “avoid” (i. e., recover) from the Internal Revenue Service (IRS) payments of certain withholding and excise taxes that the debtor made before it filed for bankruptcy. We hold that the funds paid here were not the property of the debtor prior to payment; instead, they were held in trust by the debtor for the IRS. We accordingly conclude that the trustee may not recover the funds.
I
American International Airways, Inc. (AIA), was a commercial airline. As an employer, AIA was required to withhold federal income taxes and to collect Federal Insurance Contributions Act (FICA) taxes from its employees’ wages. 26 U. S. C. § 3402(a) (income taxes); § 3102(a) (FICA taxes). As an airline, it was required to collect excise taxes from its customers for payment to the IRS. § 4291. Because the amount of these taxes is “held to be a special fund in trust for the United States,” § 7501, they are often called “trust-fund taxes.” See, e. g., Slodov v. United States, 436 U. S. 238, 241 (1978). By early 1984, AIA had fallen behind in its payments of its trust-fund taxes to the Government. In February of that year, the IRS ordered AIA to deposit all trust-fund taxes it collected thereafter into a separate bank account. AIA established the account, but did not deposit funds sufficient to cover the entire amount of its trust-fund tax obligations. It nonetheless remained current on these obligations through June 1984, paying the IRS $695,000 from the separate bank account and $946,434 from its general operating funds. AIA and the IRS agreed that all of these payments would be allocated to specific trust-fund tax obligations.
On July 19, 1984, AIA petitioned for relief from its creditors under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. (1982 ed.). AIA unsuccessfully operated as a debtor in possession for three months. Accordingly, on September 19, the Bankruptcy Court appointed petitioner Harry P. Begier, Jr., trustee, and a plan of liquidation in Chapter 11 was confirmed. Among the powers of a trustee is the power under § 547(b) to avoid certain payments made by the debtor that would “enabl[e] a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate.” H. R. Rep. No. 95-595, p. 177 (1977). Seeking to exercise his avoidance power, Begier filed an adversary action against the Government to recover the entire amount that AIA had paid the IRS for trust-fund taxes during the 90 days before the bankruptcy filing.
The Bankruptcy Court found for the Government in part and for the trustee in part. In re American International Airways, Inc., 83 B. R. 324 (ED Pa. 1988). It refused to permit the trustee to recover any of the money AIA had paid out of the separate account on the theory that AIA had held that money in trust for the IRS. Id., at 327. It allowed the trustee to avoid most of the payments that AIA had made out of its general accounts, however, holding that “only where a tax trust fund is actually established by the debtor and the taxing authority is able to trace funds segregated by the debtor in a trust account established for the purpose of paying the taxes in question would we conclude that such funds are not property of the debtor’s estate.” Id., at 329. The District Court affirmed. App. to Pet. for Cert. A-22-A-26. On appeal by the Government, the Third Circuit reversed, holding that any prepetition payment of trust-fund taxes is a payment of funds that are not the debtor’s property and that such a payment is therefore not an avoidable preference. 878 F. 2d 762 (1989). We granted certiorari, 493 U. S. 1017 (1990), and we now affirm.
H
>
Equality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debt-or’s property. See, e. g., 11 U. S. C. § 726(b) (1982 ed.); H. R. Rep. No. 95-595, supra, at 177-178. Section 547(b) furthers this policy by permitting a trustee in bankruptcy to avoid certain preferential payments made before the debtor files for bankruptcy. This mechanism prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy. Of course, if the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding, the policy behind the avoidance power is not implicated. The reach of § 547(b)’s avoidance power is therefore limited to transfers of “property of the debtor.”
The Bankruptcy Code does not define “property of the debtor.” Because the purpose of the avoidance provision is to preserve the property includable within the bankruptcy estate—the property available for distribution to creditors — “property of the debtor” subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. For guidance, then, we must turn to § 541, which delineates the scope of “property of the estate” and serves as the postpetition analog to § 547(b)’s “property of the debtor.”
Section 541(a)(1) provides that the “property of the estate” includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Section 541(d) provides:
“Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest . . . becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.”
Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not “property of the estate.” Nor is such an equitable interest “property of the debtor” for purposes of § 547(b). As the parties agree, then, the issue in this case is whether the money AIA transferred from its general operating accounts to the IRS was property that AIA had held in trust for the IRS.
B
We begin with the language of 26 U. S. C. § 7501, the Internal Revenue Code’s trust-fund tax provision: “Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States.” The statutory trust extends, then, only to “the amount of tax so collected or withheld.” Begier argues that a trust-fund tax is not “collected or withheld” until specific funds are either sent to the IRS with the relevant return or placed in a segregated fund. AIA neither put the funds paid from its general operating accounts in a separate account nor paid them to the IRS before the beginning of the preference period. Begier therefore contends that no trust was ever created with respect to those funds and that the funds paid to the IRS were therefore property of the debtor.
We disagree. The Internal Revenue Code directs “every person receiving any payment for facilities or services” subject to excise taxes to “collect the amount of the tax from the person making such payment.” § 4291. It also requires that an employer “collec[t]” FICA taxes from its employees “by deducting the amount of the tax from the wages as and when paid.” § 3102(a) (emphasis added). Both provisions make clear that the act of “collecting” occurs at the time of payment—the recipient’s payment for the service in the case of excise taxes and the employer’s payment of wages in the case of FICA taxes. The mere fact that AIA neither placed the taxes it collected in a segregated fund nor paid them to the IRS does not somehow mean that AIA never collected the taxes in the first place.
The same analysis applies to taxes the Internal Revenue Code requires that employers “withhold.” Section 3402(a) (1) requires that “every employer making payment of wages shall deduct and withhold upon such wages [the employee’s federal income tax].” (Emphasis added.) Withholding thus occurs at the time of payment to the employee of his net wages. S. Rep. No. 95-1106, p. 33 (1978) (“[A]ssume that a debtor owes an employee $100 for salary on which there is required withholding of $20. If the debtor paid the employee $80, there has been $20 withheld. If, instead, the debtor paid the employee $85, there has been withholding of $15 (which is not property of the debtor’s estate in bankruptcy)”). See Slodov, 436 U. S., at 243 (stating that “[t]here is no general requirement that the withheld sums be segregated from the employer’s general funds,” and thereby necessarily implying that the sums are “withheld” whether or not segregated). The common meaning of “withholding” supports our interpretation. See Webster’s Third New International Dictionary 2627 (1981) (defining “withholding” to mean “the act or procedure of deducting a tax payment from income at the source”) (emphasis added).
Our reading of § 7501 is reinforced by § 7512, which permits the IRS, upon proper notice, to require a taxpayer who has failed timely “to collect, truthfully account for, or pay over [trust-fund taxes],” or who has failed timely “to make deposits, payments, or returns of such tax,” § 7512(a)(1), to “deposit such amount in a separate account in a bank . . . and . . . keep the amount of such taxes in such account until payment over to the United States,” § 7512(b). If we were to read § 7501 to mandate segregation as a prerequisite to the creation of the trust, § 7512’s requirement that funds be segregated in special and limited circumstances would become superfluous. Moreover, petitioner’s suggestion that we read a segregation requirement into § 7501 would mean that an employer could avoid the creation of a trust simply by refusing to segregate. Nothing in § 7501 indicates, however, that Congress wanted the IRS to be protected only insofar as dictated by the debtor’s whim. We conclude, therefore, that AIA created a trust within the meaning of § 7501 at the moment the relevant payments (from customers to AIA for excise taxes and from AIA to its employees for FICA and income taxes) were made.
C
Our holding that a trust for the benefit of the IRS existed is not alone sufficient to answer the question presented by this case: whether the particular dollars that AIA paid to the IRS from its general operating accounts were “property of the debtor.” Only if those particular funds were held in trust for the IRS do they escape characterization as “property of the debtor.” All § 7501 reveals is that AIA at one point created a trust for the IRS; that section provides no rule by which we can decide whether the assets AIA used to pay the IRS were assets belonging to that trust.
In the absence of specific statutory guidance on how we are to determine whether the assets transferred to the IRS were trust property, we might naturally begin with the common-law rules that have been created to answer such questions about other varieties of trusts. Unfortunately, such rules are of limited utility in the context of the trust created by § 7501. Under common-law principles, a trust is created in property; a trust therefore does not come into existence until the settlor identifies an ascertainable interest in property to be the trust res. G. Bogert, Law of Trusts and Trustees § 111 (rev. 2d ed. 1984); 1A W. Fratcher, Scott on Trusts § 76 (4th ed. 1987). A § 7501 trust is radically different from the common-law paradigm, however. That provision states that “the amount of [trust-fund] tax . . . collected or withheld shall be held to be a special fund in trust for the United States.” (Emphasis added.) Unlike a common-law trust, in which the settlor sets aside particular property as the trust res, § 7501 creates a trust in an abstract “amount”—a dollar figure not tied to any particular assets —rather than in the actual dollars withheld. Common-law tracing rules, designed for a system in which particular property is identified as the trust res, are thus unhelpful in this special context.
Federal law delineating the nature of the relationship between the § 7501 trust and preferential transfer rules is limited. The only case in which we have explored that topic at any length is United States v. Randall, 401 U. S. 513 (1971), a case dealing with a postpetition transfer of property to discharge trust-fund tax obligations that the debtor had accrued prepetition. There, a court had ordered a debtor in possession to maintain a separate account for its withheld federal income and FICA taxes, but the debtor did not comply. When the debtor was subsequently adjudicated a bankrupt, the United States sought to recover from the debtor’s general assets the amount of withheld taxes ahead of the expenses of the bankruptcy proceeding. The Government argued that the debtor held the amount of taxes due in trust for the IRS and that this amount could be traced to the funds the debtor had in its accounts when the bankruptcy petition was filed. The trustee maintained that no trust had been created because the debtor had not segregated the funds. The Court declined directly to address either of these contentions. Id., at 515. Rather, the Court simply refused to permit the IRS to recover the taxes ahead of administrative expenses, stating that “the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets.” Id., at 517.
In 1978, Congress fundamentally restructured bankruptcy law by passing the new Bankruptcy Code. Among the changes Congress decided to make was a modification of the rule this Court had enunciated in Randall under the old Bankruptcy Act. The Senate bill attacked Randall directly, providing in § 541 that trust-fund taxes withheld or collected prior to the filing of the bankruptcy petition were not “property of the estate.” See S. Rep. No. 95-1106, at 33. See also ibid. (“These amounts will not be property of the estate regardless of whether such amounts have been segregated from other assets of the debtor by way of a special account, fund, or otherwise, or are deemed to be a special fund in trust pursuant to provisions of applicable tax law”) (footnote omitted). The House bill did not deal explicitly with the problem of trust-fund taxes, but the House Report stated that “property of the estate” would not include property held in trust for another. See H. R. Rep. No. 95-595, at 368. Congress was unable to hold a conference, so the Senate and House floor managers met to reach compromises on the differences between the two bills. See 124 Cong. Rec. 32392 (1978) (remarks of Rep. Edwards); Klee, Legislative History of the New Bankruptcy Law, 28 DePaul L. Rev. 941, 953-954 (1979). The compromise reached with respect to the relevant portion of § 541, which applies to postpetition transfers, was embodied in the eventually enacted House amendment and explicitly provided that “in the case of property held in trust, the property of the estate includes the legal title, but not the beneficial interest in the property.” 124 Cong. Rec., at 32417 (remarks of Rep. Edwards). Cf. id., at 32363 (text of House amendment). Accordingly, the Senate language specifying that withheld or collected trust-fund taxes are not part of the bankruptcy estate was deleted as “unnecessary since property of the estate does not include the beneficial interest in property held by the debtor as a trustee. Under [§ 7051], the amounts of withheld taxes are held to be a special fund in trust for the United States.” Id., at 32417 (remarks of Rep. Edwards).
Representative Edwards discussed the effects of the House language on the rule established by Randall, indicating that the House amendment would supplant that rule:
“[A] serious problem exists where ‘trust fund taxes’ withheld from others are held to be property of the estate where the withheld amounts are commingled with other assets of the debtor. The courts should permit the use of reasonable assumptions under which the Internal Revenue Service, and other tax authorities, can demonstrate that amounts of withheld taxes are still in the possession of the debtor at the commencement of the case.” Ibid.
The context of Representative Edwards’ comment makes plain that he was discussing whether a postpetition payment of trust-fund taxes involved “property of the estate.” This focus is not surprising given that Randall, the case Congress was addressing, involved a postpetition demand for payment by the IRS. But Representative Edwards’ discussion also applies to the question whether a pre petition payment is made from “property of the debtor.” We have explained that “property of the debtor” is that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. Supra, at 58. The same “reasonable assumptions” therefore apply in both contexts.
The strict rule of Randall thus did not survive the adoption of the new Bankruptcy Code. But by requiring the IRS to “demonstrate that amounts of taxes withheld are still in the possession of the debtor at the commencement of the case [i. e., at the filing of the petition],” 124 Cong. Rec., at 32417 (remarks of Rep. Edwards), Congress expected that the IRS would have to show some connection between the § 7501 trust and the assets sought to be applied to a debtor’s trust-fund tax obligations. See United States v. Whiting Pools, Inc., 462 U. S. 198, 205, n. 10 (1983) (IRS cannot exclude funds from the estate if it cannot trace them to § 7501 trust property). The question in this case is how extensive the required nexus must be. The Bankruptcy Code provides no explicit answer, and Representative Edwards’ admonition that courts should “permit the use of reasonable assumptions” does not add much. The House Report does, however, give sufficient guidance regarding those assumptions to permit us to conclude that the nexus requirement is satisfied here. That Report states:
“A payment of withholding taxes constitutes a payment of money held in trust under Internal Revenue Code § 7501(a), and thus will not be a preference because the beneficiary of the trust, the taxing authority, is in a separate class with respect to those taxes, if they have been properly held for payment, as they will have been if the debtor is able to make the payments.” H. R. Rep. No. 95-595, supra, at 373.
Under a literal reading of the above passage, the bankruptcy trustee could not avoid any voluntary prepetition payment of trust-fund taxes, regardless of the source of the funds. As the House Report expressly states, the limitation that the funds must “have been properly held for payment” is satisfied “if the debtor is able to make the payments.” The debtor’s act of voluntarily paying its trust-fund tax obligation therefore is alone sufficient to establish the required nexus between the “amount” held in trust and the funds paid.
We adopt this literal reading. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are relegated to the legislative history. The courts are directed to apply “reasonable assumptions” to govern the tracing of funds, and the House Report identifies one such assumption to be that any voluntary prepetition payment of trust-fund taxes out of the debtor’s assets is not a transfer of the debtor’s property. Nothing in the Bankruptcy Code or its legislative history casts doubt on the reasonableness of that assumption. Other rules might be reasonable, too, but the only evidence we have suggests that Congress preferred this one. We see no reason to disregard that evidence.
III
We hold that AIA’s payments of trust-fund taxes to the IRS from its general accounts were not transfers of “property of the debtor,” but were instead transfers of property held in trust for the Government pursuant to § 7501. Such payments therefore cannot be avoided as preferences. The judgment of the Court of Appeals is
Affirmed.
This case is governed by 11 U. S. C. § 547(b) (1982 ed.), which reads:
“Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor—
“(1) to or for the benefit of a creditor;
“(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
“(3) made while the debtor was insolvent;
“(4) made—
“(A) on or within 90 days before the date of the filing of the petition; or
“(B) between 90 days and one year before the date of the filing of the petition, if such creditor, at the time of such transfer—
“(i) was an insider; and
“(ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; and
“(5) that enables such creditor to receive more than such creditor would receive if—
“(A) the case were a case under chapter 7 of this title;
“(B) the transfer had not been made; and
“(C) such creditor received payment of such debt to the extent provided by the provisions of this title.”
The statute has been amended to replace “property of the debtor” with “an interest of the debtor in property.” See n. 3, infra. The old version of § 547(b) applies to this case, however, because AIA filed its bankruptcy petition before the effective date of the amendment.
No other Court of Appeals has decided a case that presents the precise issue we decide here. The Ninth and District of Columbia Circuits have, however, resolved against the taxing authorities cases presenting related issues. See In re R & T Roofing Structures & Commercial Framing, Inc., 887 F. 2d 981, 987 (CA9 1989) (rejecting the Government’s argument that assets the IRS seized from a debtor to satisfy a trust-fund tax obligation before the debtor filed its bankruptcy petition were assets held in trust for the Government under 26 U. S. C. § 7501, and therefore deciding that the transfer effected by the seizure involved “property of the debtor” and was not exempt from avoidance); Drabkin v. District of Columbia, 263 U. S. App. D. C. 122, 125, 824 F. 2d 1102, 1105 (1987) (reaching a similar conclusion with respect to a voluntary payment of withheld District of Columbia employee income taxes in a case governed by a provision of local law that “essentially mirror[ed]” § 7501).
To the extent the 1984 amendments to § 547(b) are relevant, they confirm our view that § 541 guides our analysis of what property is “property of the debtor” for purposes of § 547(b). Among the changes was the substitution of “an interest of the debtor in property” for “property of the debtor.” 11 U. S. C. § 547(b) (1988 ed.). Section 547(b) thus now mirrors § 541's definition of “property of the estate” as certain “interests of the debtor in property.” 11 U. S. C. § 541(a)(1) (1988 ed.). The Senate Report introducing a predecessor to the bill that amended § 547(b) described the new language as a “clarifying change.” S. Rep. No. 98-65, p. 81 (1983). We therefore read both the older language (“property of the debtor”) and the current language (“an interest of the debtor in property”) as coextensive with “interests of the debtor in property” as that term is used in 11 U. S. C. § 541(a)(1) (1988 ed.).
The general common-law rule that a trust is not created absent a designation of particular property obviously does not invalidate § 7501's creation of a trust in the “amount” of withheld taxes. The common law of trusts is not binding on Congress.
Because of the absence of a conference and the key roles played by Representative Edwards and his counterpart floor manager Senator DeConcini, we have treated their floor statements on the Bankruptcy Reform Act of 1978 as persuasive evidence of congressional intent. See, e. g., Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343, 351 (1985). Cf. 124 Cong. Rec. 32391 (1978) (remarks of Rep. Rousselot) (expressing view that remarks of floor manager of the Act have “the effect of being a conference report”).
Petitioner’s claim that this legislative history is irrelevant because the House Bill was not enacted is in error. The exact language to which the quoted portion of the House Report refers was enacted into law. Compare §647(b) with H. R. 8200, 95th Cong., 1st Sess., § 547(b) (1977). The version of § 541 that was eventually enacted is different from the original House bill, but only in that it makes explicit rather than implicit that “property of the estate” does not include the beneficiary’s equitable interest in property held in trust by the debtor. Compare § 541(d) with H. R. 8200, supra, § 541(a)(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?
|
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"Unidentifiable",
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] |
[
68
] |
BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI et al. v. HOROWITZ
No. 76-695.
Argued November 7, 1977
Decided March 1, 1978
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Stevens, JJ., joined, and in Parts I, H-A, and III of which White, J., joined. Powell, J., filed a concurring opinion, post, p. 92. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 96. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 97. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan, J., joined, post, p. 108.
Marvin E. Wright argued the cause for petitioners. With him on the brief were Jackson A. Wright and Fred Wilkins.
Arthur A. Benson II argued the cause and filed a brief for respondent.
Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Me. Justice Rehnquist
delivered the opinion of the Court.
Respondent, a student at the University of Missouri-Kansas City Medical School, was dismissed by petitioner officials of the school during her final year of study for failure to- meet academic standards. Respondent sued petitioners under 42 U. S. C. § 1983 in the United States District Court for the Western District of Missouri alleging, among other constitutional violations, that petitioners had not accorded her procedural due process prior to her dismissal. The District Court, after conducting a full trial, concluded that respondent had been afforded all of the rights guaranteed her by the Fourteenth Amendment to the United States Constitution and dismissed her complaint. The Court of Appeals for the Eighth Circuit reversed, 538 F. 2d 1317 (1976), and a petition for rehearing en banc was denied by a divided court. 542 F. 2d 1335 (1976). We granted certiorari, 430 U. S. 964, to consider what procedures must be accorded to a student at a state educational institution whose dismissal may constitute a deprivation of “liberty” or “property” within the meaning of the Fourteenth Amendment. We reverse the judgment of the Court of Appeals.
I
Respondent was admitted with advanced standing to the Medical School in the fall of 1971. During the final years of a student’s education at the school, the student is required to pursue in “rotational units” academic and clinical studies pertaining to various medical disciplines such as obstetrics-gynecology, pediatrics, and surgery. Each student’s academic performance at the School is evaluated on a periodic basis by the Council on Evaluation, a body composed of both faculty and students, which can recommend various actions including probation and dismissal. The recommendations of the Council are reviewed by the Coordinating Committee, a body composed solely of faculty members, and must ultimately be approved by the Dean. Students are not typically allowed to appear before either the Council or the Coordinating Committee on the occasion of their review of the student’s academic performance.
In the spring of respondent’s first year of study, several faculty members expressed dissatisfaction with her clinical performance during a pediatrics rotation. The faculty members noted that respondent’s “performance was below that of her peers in all clinical patient-oriented settings,” that she was erratic in her attendance at clinical sessions, and that she lacked a critical concern for personal hygiene. Upon the recommendation of the Council on Evaluation, respondent was advanced to her second and final year on a probationary basis.
Faculty dissatisfaction with respondent’s clinical performance continued during the following year. For example, respondent’s docent, or faculty adviser, rated her clinical skills as “unsatisfactory.” In the middle of the year, the Council again reviewed respondent’s academic progress and concluded that respondent should not be considered for graduation in June of that year; furthermore, the Council recommended that, absent “radical improvement,” respondent be dropped from the school.
Respondent was permitted to take a set of oral and practical examinations as an “appeal” of the decision not to permit her to graduate. Pursuant to this “appeal,” respondent spent a substantial portion of time with seven practicing physicians in the area who enjoyed a good reputation among their peers. The physicians were asked to recommend whether respondent should be allowed to graduate on schedule and, if not, whether she should be dropped immediately or allowed to remain on probation. Only two of the doctors recommended that respondent be graduated on schedule. Of the other five, two recommended that she be immediately dropped from the school. The remaining three recommended that she not be allowed to graduate in June and be continued on probation pending further reports on her clinical progress. Upon receipt of these recommendations, the Council on Evaluation reaffirmed its prior position.
The Council met again in mid-May to consider whether respondent should be allowed to remain in school beyond June of that year. Noting that the report on respondent’s recent surgery rotation rated her performance as “low-satisfactory,” the Council unanimously recommended that “barring receipt of any reports that Miss Horowitz has improved radically, [she] not be allowed to re-enroll in the . . . School of Medicine.” The Council delayed making its recommendation official until receiving reports ón other rotations; when a report on respondent’s emergency rotation also turned out to be negative, the Council unanimously reaffirmed its recommendation that respondent be dropped from the school. The Coordinating Committee and the Dean approved the recommendation and notified respondent, who appealed the decision in writing to the University’s Provost for Health Sciences. The Provost sustained the school’s actions after reviewing the record compiled during the earlier proceedings.
II
A
To be entitled to the procedural protections of the Fourteenth Amendment, respondent must in a case such as this demonstrate that her dismissal from the school deprived her of either a “liberty” or a “property” interest. Respondent has never alleged that she was deprived of a property interest. Because property interests are creatures of state law, Perry v. Sindermann, 408 U. S. 593, 599-603 (1972), respondent would have been required to show at trial that her seat at the Medical School was a “property” interest recognized by Missouri state law. Instead, respondent argued that her dismissal deprived her of “liberty” by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field.
The Court of Appeals agreed, citing this Court’s opinion in Board of Regents v. Roth, 408 U. S. 564 (1972). In that case, we held that the State had not deprived a teacher of any liberty or property interest in dismissing the teacher from a nontenured position, but noted:
“[T]here is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities.” Id., at 573.
We have recently had an opportunity to elaborate upon the circumstances under which an employment termination might infringe a protected liberty interest. In Bishop v. Wood, 426 U. S. 341 (1976), we upheld the dismissal of a policeman without a hearing; we rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action, could amount to a stigma infringing one's liberty:
“In Board of Regents v. Roth, 408 U. S. 564, we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far 'to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another.’ Id., at 575. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge.
“In this case the asserted reasons for the City Manager’s decision were communicated orally to the petitioner in private and also were stated in writing in answer to- interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his 'good name, reputation, honor, or integrity’ was thereby impaired.” Id., at 348 (footnote omitted).
The opinion of the Court of Appeals, decided only five weeks after we issued our opinion in Bishop, does not discuss whether a state university infringes a liberty interest when it dismisses a student without publicizing allegations harmful to the student’s reputation. Three judges of the Court of Appeals for the Eighth Circuit dissented from the denial of rehearing en banc on the ground that “the reasons for Horowitz’s dismissal were not released to the public but were communicated to her directly by school officials.” Citing Bishop, the judges concluded that “[a]bsent such public disclosure, there is no deprivation of a liberty interest.” 542 F. 2d, at 1335. Petitioners urge us to adopt the view of these judges and hold that respondent has not been deprived of a liberty interest.
B
We need not decide, however, whether respondent’s dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent’s dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty’s dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment. We agree with the District Court that respondent
“was afforded full procedural due process by the '[school]. In fact, the Court is of the opinion, and so finds, that the school went beyond [constitutionally required] procedural due process by affording [respondent] the opportunity to be examined by seven independent physicians in order to be absolutely certain that their grading of the [respondent] in her medical skills was correct.” App. 47.
In Goss v. Lopez, 419 U. S. 565 (1975), we held that due process requires, in connection with the suspension of a student from public school for disciplinary reasons, “that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Id., at 581. The Court of Appeals apparently read Goss as requiring some type of formal hearing at which respondent could defend her academic ability and performance. All that Goss required was an “informal give-and-take” between the student and the administrative body dismissing him that would, at least, give the student “the opportunity to characterize his conduct and put it in what he deems the proper context.” Id., at 584. But we have frequently emphasized that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). The need for flexibility is well illustrated by the significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal.
Since the issue first arose 50 years ago, state and lower federal courts have recognized that there are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons which may call for hearings in connection with the former but not the latter. Thus, in Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N. E. 1095 (1913), the Supreme Judicial Court of Massachusetts rejected an argument, based on several earlier decisions requiring a hearing in disciplinary contexts, that school officials' must also grant a hearing before excluding a student on academic grounds. According to the court, disciplinary cases have
"no application. . . . Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship.” Id., at 22-23, 102 N. E., at 1097.
A similar conclusion has been reached by the other state courts to consider the issue. See, e. g., Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489, 498, cert. denied, 393 U. S. 936 (1968); cf. Foley v. Benedict, 122 Tex. 193, 55 S. W. 2d 805 (1932). Indeed, until the instant decision by the Court of Appeals for the Eighth Circuit, the Courts of Appeals were also unanimous in concluding that dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school’s decisionmaking body. See Mahavongsanan v. Hall, 529 F. 2d 448 (CA5 1976); Gaspar v. Bruton, 513 F. 2d 843 (CA10 1975). These prior decisions of state and federal courts, over a period of 60 years, unanimously holding that formal hearings before decisionmaking bodies need not be held in the case of academic dismissals, cannot be rejected lightly. Cf. Snyder v. Massachusetts, 291 U. S. 97, 118-119, 131-132 (1934); Powell v. Alabama, 287 U. S. 45, 69-71 (1932); Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922).
Reason, furthermore, clearly supports the perception of these decisions. A school is an academic institution, not a courtroom or administrative hearing room. In Goss, this Court felt that suspensions of students for disciplinary reasons have a sufficient resemblance to traditional judicial and administrative factfinding to call for a “hearing” before the relevant school authority. While recognizing that school authorities must be afforded the necessary tools to maintain discipline, the Court concluded:
“[I]t would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done.
“{It] equiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect.” 419 U. S., at 580, 583-584.
Even in the context of a school disciplinary proceeding, however, the Court stopped short of requiring a formal hearing since “further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as a part of the teaching process.” Id., at 583.
Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full-hearing requirement. In Goss, the school’s decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances “provide a meaningful hedge against erroneous action.” Ibid. The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of-judicial or administrative decisionmaking.
Under such circumstances, we decline to ignore the historic judgment of .educators and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, “one in which the teacher must occupy many roles — educator, adviser, friend, and, at times, parent-substitute.” Goss v. Lopes, 419 U. S., at 594 (Powell, J., dissenting). This is especially true as one advances through the varying regimes of the educational system, and the instruction becomes both more individualized and more specialized. In Goss, this Court concluded that the value of some form of hearing in a disciplinary context outweighs any resulting harm to the academic environment. Influencing this conclusion was clearly the belief that disciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context. We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. We recognize, as did the Massachusetts Supreme Judicial Court over 60 years ago, that a hearing may be “useless or harmful in finding out the truth as to scholarship.” Barnard v. Inhabitants of Shelburne, 216 Mass., at 23, 102 N. E., at 1097.
“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. ... By and large, public education in our Nation is committed to the control of state and local authorities.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968). We see no reason to intrude on that historic control in this case.
Ill
In reversing the District Court on procedural due process grounds, the Court of Appeals expressly failed to “reach the substantive due process ground advanced by Horowitz.” 538 F. 2d, at 1321 n. 5. Respondent urges that we remand the cause to the Court of Appeals for consideration of this additional claim. In this regard, a number of lower courts have implied in dictum that academic dismissals from state institutions can be enjoined if “shown to be clearly arbitrary or capricious.” Mahavongsanan v. Hall, 529 F. 2d, at 449. See Gaspar v. Bruton, 513 F. 2d, at 850, and citations therein. Even assuming that the courts can review under such a standard an academic decision of a public educational institution, we agree with the District Court that no showing of arbitrariness or capriciousness has been made in this case. Courts are particularly ill-equipped to evaluate academic performance. The factors discussed in Part II with respect to procedural due process speak a fortiori here and warn against any such judicial intrusion into academic decisionmaking. The judgment of the Court of Appeals is therefore
Reversed.
Respondent concedes that petitioners have not “invoke[d] any regulations to bar” her from seeking out employment in the medical field or from finishing her medical education at a different institution. Brief for Respondent 21. Cf. Board of Regents v. Roth, 408 U. S., at 573. Indeed, the Coordinating Committee in accepting the recommendation of the Council that respondent be dismissed, noted that “as with all students, should sufficient improvement take place, she could be considered for readmission to the School of Medicine.” The Court of Appeals, however, relied on the testimony of a doctor employed by the Kansas City Veterans’ Administration to the effect that respondent’s dismissal would be “a significant black mark.” On the Medical School side, it was the doctor’s view that respondent “would have great difficulty to get into another medical school, if at all.” As for employment, if two people were applying for a position with the Veterans’ Administration with “otherwise . . . equal qualifications, roughly, I would lean heavily to the other person who was not dismissed from a graduate school.” 538 F. 2d 1317, 1320-1321, n. 3 (1976).
The Court of Appeals held without elaboration that the dismissal had been “effected without the hearing required by the fourteenth amendment.” 538 F. 2d, at 1321. No express indication was given as to what the minimum requirements of such a hearing would be. One can assume, however, that the contours of the hearing would be much the same as those set forth in Greenhill v. Bailey, 519 F. 2d 5 (CA8 1975), which also involved an academic dismissal and upon, which the Court of Appeals principally relied. Greenhill held that the student must be “accorded an opportunity to appear personally to contest [the allegations of academic deficiency]. We stop short,, however, of requiring full trial-type procedures in such situations. A graduate or professional school is, after all, the best judge of its students’ academic performance and their ability to master the required curriculum. The presence of attorneys or the imposition of rigid rules of cross-examination at a hearing for a student . . . would serve no useful purpose, notwithstanding that the dismissal in question may be of permanent duration. But an ‘informal give-and-take’ between the student and the administrative body dismissing him . . . would not unduly burden the educational process and would, at least, give the student ‘the opportunity to characterize his conduct and put it in what he deems the proper context.’ ’’ Id., at 9 (footnote omitted), quoting Goss v. Lopez, 419 U. S., at 584. Respondent urges us to go even further than the Court of Appeals and require “the fundamental safeguards of representation by counsel, confrontation, and cross-examination of witnesses.” Brief for Respondent 36.
We fully recognize that the deprivation to which respondent was subjected — dismissal from a graduate medical school — was more severe than the 10-day suspension to which the high school students were subjected in Goss. And a relevant factor in determining the nature of the requisite due process is “the private interest that [was] affected by the official action.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976). But the severity of the deprivation is only one of several factors that must be weighed in deciding the exact due process owed. Ibid. We conclude that considering all relevant factors, including the evaluative nature of the inquiry and the significant and historically supported interest of the school in preserving its present framework for academic evaluations, a hearing is not required by the Due Process Clause of the Fourteenth Amendment.
“The district court’s grant of relief is based on a confusion of the court’s power to review disciplinary actions by educational institutions on the one hand, and academic decisions on the other hand. This Court has been in the vanguard of the legal development of due process protections for students ever since Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F. 2d 150, cert. denied 1961, 368 U. S. 930 .... However, the due process requirements of notice and hearing developed in the Dixon line of cases have been carefully limited to disciplinary decisions. When we explained that ‘the student at the tax supported institution cannot be arbitrarily disciplined without the benefit of the ordinary, well recognized principles of fair play’, we went on to declare that ‘[w]e know of no case which holds that colleges and universities are subject to the supervision or review of the courts in the uniform application of their academic standards. Indeed, Dixon infers to the contrary.’ Wright v. Texas Southern University, 5 Cir. 1968, 392 F. 2d 728, 729. Misconduct and failure to attain a standard of scholarship cannot be equated. A hearing may be required to determine charges of misconduct, but a hearing may be useless or harmful in finding out the truth concerning scholarship. There is a clear dichotomy between a student’s due process rights in disciplinary dismissals and in academic dismissals.” 529 F. 2d, at 449-450.
In Greenhill v. Bailey, supra, the Court of Appeals held that a hearing had been necessary where a medical school not only dismissed a student for academic reasons but also sent a letter to the Liaison Committee of the Association of the American Medical Colleges suggesting that the student either lacked “intellectual ability” or had insufficiently prepared his course work. The court specifically noted that “there has long been a distinction between cases concerning disciplinary dismissals, on the one hand, and academic dismissals, on the other” and emphasized that it did not wish to “blur that distinction.” 519 F. 2d, at 8. In the court’s opinion, the publicizing of an alleged deficiency in the student’s intellectual ability removed the case from the typical instance of academic dismissal and called for greater procedural protections. Cf. Bishop v. Wood, 426 U. S. 341 (1976).
Respondent contends in passing that she was not dismissed because of “clinical incompetence,” an academic inquiry, but for disciplinary reasons similar to those involved in Goss. Thus, as in Goss, a hearing must be conducted. In this regard, respondent notes that the school warned her that significant improvement was needed not only in the area of clinical performance but also in her personal hygiene and in keeping to her clinical schedules. The record, however, leaves no doubt that respondent was dismissed for purely academic reasons, a fact assumed without discussion by the lower courts. Personal hygiene and timeliness may be as important factors in a school’s determination of whether a student will make a good medical doctor as the student’s ability to take a case history or diagnose an illness. Questions of personal hygiene and timeliness, of course, may seem more analogous to traditional factfinding than other inquiries that a school may make in academically evaluating a student. But in so évaLuating the student, the school considers and weighs a variety of factors, not all of which, as noted earlier, are adaptable to the factfinding hearing. And the critical faculty-student relationship may still be injured if a hearing is required.
Respondent alleges that the school applied more stringent standards in evaluating her performance than that of other students because of her sex, religion, and physical appearance. The District Court, however, found: “There was no evidence that [respondent] was in any manner evaluated differently from other students because of her sex or because of her religion. With regard to [respondent’s] physical appearance, this in and of itself did not cause [her] to be evaluated any differently than any of the other students.” App. 45.
Respondent also contends that petitioners failed to follow their own rules respecting evaluation of medical students and that this failure amounted to a constitutional violation under Service v. Dulles, 354 U. S. 363 (1957). We disagree with both respondent’s factual and legal contentions. As for the facts, the record clearly shows that the school followed its established rules, except where new rules had to be designed in an effort to further protect respondent, as with the practical “appeal” that petitioners allowed respondent to take. The District Court specifically found that “the progress status of [respondent] in the medical school was evaluated in a manner similar to and consistent with the evaluation of other similarly situated students, with the exception that [respondent’s] docent . . . went to even greater lengths to assist [respondent] in an effort for her to obtain her M. D. degree, than he did for any of his other students.” App. 45. As for the legal conclusion that respondent draws, both Service and Accardi v. Shaughnessy, 347 U. S. 260 (1954), upon which Service relied, enunciate principles of federal administrative law rather than of constitutional law binding upon the States.
|
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
] |
GLICKMAN, SECRETARY OF AGRICULTURE v. WILEMAN BROTHERS & ELLIOTT, INC., et al.
No. 95-1184.
Argued December 2, 1996
Decided June 25, 1997
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, and in which Thomas, J., joined except as to Part II, ■post, p. 477. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined as to Part II, post, p. 504.
Alan Jenkins argued the cause for petitioner. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Douglas N. Letter, Irene M. Solet, and Daniel Bensing.
Thomas E. Campagne argued the cause for respondents. • With him on the brief for Wileman Bros. & Elliott, Inc., et al. was Clifford C. Kemper. Michael W. McConnell, Alan E. Untereiner, Gary A. OrsecJc, and James A. Moody filed a brief for respondents Gerawan Farming, Inc., et al
Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Daniel E. Lungren, Attorney General of California, Charles W. Getz IV, Assistant Attorney General, and Edna Walz, Deputy Attorney General, and by the Attorneys General for their respective States as .follows: Grant Woods of Arizona, Robert A. Butterworth of Florida, Frank J. Kelley of Michigan, Don Stenberg of Nebraska, Peter Vemiero of New Jersey, Dennis C Vacco oí New York, Theodore R. Kulongoski of Oregon, Jeffrey L. Amestoy of Vermont, and James S. Gilmore II of Virginia; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, Mark Schneider, and Laurence Gold; for the National Association of State Departments of Agriculture et al. by John G. Roberts, Jr., and Richard T Rossier; and for the Washington Apple Commission et al. by Robert S. Hedrick, George H. Soares, Dale A. Stern, Kendall L. Manock, Charles K. Manock, and Patrick J Kole.
Briefs of amici curiae urging affirmance were filed for the American Advertising Federation et al. by Richard E. Wiley, Daniel E. Troy, Robert L. Sherman, John F Kamp, David S. Versfelt, and Slade Metcalf; for the National Right to Work Legal Defense Foundation, Inc., by John C. Scully; for the Sun-Maid Growers of California by Catherine A. Conway and Vincent M. Waldman; for Treehouse Farms, Inc., by Timothy B. Dyk; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae were filed for the Pacific Legal Foundation by Sharon L. Browne; and for the United Sheep Producers by Brian C. Leighton.
Justice Stevens
delivered the opinion of the Court.
A number of growers, handlers, and processors of California tree fruits (respondents) brought this proceeding to challenge the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture. The orders impose assessments on respondents that cover the expenses of administering the orders, including the cost of generic advertising of California nectarines, plums, and peaches. The question presented to us is whether the requirement that respondents finance such generic advertising is a law “abridging the freedom of speech” within the meaning of the First Amendment.
I
Congress enacted the Agricultural Marketing Agreement Act of 1937 (AMAA), ch. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq., in order to establish and maintain orderly marketing conditions and fair prices for agricultural commodities. § 602(1). Marketing orders promulgated pursuant to the AMAA are a species of economic regulation that has displaced competition in a number of discrete markets; they are expressly exempted from the antitrust laws. § 608b. Collective action, rather than the aggregate consequences of independent competitive choices, characterizes these regulated markets. In order “to avoid unreasonable fluctuations in supplies and prices,” § 602(4), these orders may include mechanisms that provide a uniform price to all producers in a particular market, that limit the quality and the quantity of the commodity that may be marketed, §§ 608c(6)(A), (7), that determine the grade and size of the commodity, § 608c(6)(A), and that make an orderly disposition of any surplus that might depress market prices, ibid. Pursuant to the policy of collective, rather than competitive, marketing, the orders also authorize joint research and development projects, inspection procedures that ensure uniform quality, and even certain standardized packaging requirements. §§ 608c(6)(D), (H), (I). The expenses of administering such orders, including specific projects undertaken to serve the economic interests of the cooperating producers, are “paid from funds collected pursuant to the marketing order.” §§ 608c(6)(I), 610(b)(2)(ii).
Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at least two-thirds of the volume of the commodity. § 608c(9)(B). The AMA A restricts the marketing orders “to the smallest regional production areas . . . practicable.” § 608c(11)(b). The orders are implemented by committees composed of producers and handlers of the regulated commodity, appointed by the Secretary, who recommend rules to the Secretary governing marketing matters such as fruit size and maturity levels. 7 CFR §§ 916.23, 916.62, 917.25, 917.30 (1997). The committees also determine the annual rate of assessments to cover the expenses of administration, inspection services, research, and advertising and promotion. §§ 916.31(c), 917.35(f).
Among the collective activities that Congress authorized for certain specific commodities is “any form of marketing promotion including paid advertising.” 7 U. S. C. § 608c(6) (I). The authorized promotional activities, like the marketing orders themselves, are intended to serve the producers’ common interest in disposing of their output on favorable terms. The central message of the generic advertising at issue in this case is that “California Summer Fruits” are wholesome, delicious, and attractive to discerning shoppers. See App. 530. All of the relevant advertising, insofar as it is authorized by the statute and the Secretary’s regulations, is designed to serve the producers’ and handlers’ common interest in promoting the sale of a particular product.
II
The regulations at issue in this litigation are contained in Marketing Order 916, which regulates nectarines grown in California, and Marketing Order 917, which originally regulated peaches, pears, and plums grown in California. A 1966 amendment to the former expressly authorized generic advertising of nectarines, see 31 Fed. Reg. 8177, and a series of amendments, beginning in 1971, to the latter authorized advertising of each of the regulated commodities, see 36 Fed. Reg. 14381 (1971); 41 Fed. Reg. 14375, 17528 (1976). The advertising provisions relating to pears are not now being challenged, thus we limit our discussion to generic advertising of California nectarines, plums, and peaches.
Respondent Wileman Bros. & Elliott, Inc., is a large producer of these fruits that packs and markets its own output as well as that grown by other farmers. In 1987, after encountering problems with some fruit varieties under the maturity and minimum size standards in the orders, it refused to pay its assessments and filed a petition with the Secretary challenging those standards. In 1988, it filed a second petition challenging amendments to the maturity standards as well as the generic advertising regulations. The Administrative Law Judge (ALJ), in two separate decisions that are explained in a total of 769 pages, ruled in favor of Wileman on the Administrative Procedure Act (APA) issues, without resolving respondents’ First Amendment claims. App. to
Brief in Opposition 393a. In a comparably detailed decision, the Judicial Officer of the Department of Agriculture entirely reversed the ALJ. Wileman, along with 15 other handlers, then sought review of the Judicial Officer’s decision by filing this action in the District Court pursuant to 7 U. S. C. § 608c(15)(B). A number of enforcement actions brought by the Secretary to collect withheld assessments were consolidated with the review proceeding. Acting on cross-motions for summary judgment, the District Court upheld both marketing orders and entered judgment of $3.1 million in past due assessments against the handlers.
In the Court of Appeals the handlers challenged the generic advertising provisions of the orders as violative of both the APA and the First Amendment. The court rejected the statutory challenge, concluding that the record contained substantial evidence justifying both the original decision to engage in generic advertising and the continuation of the program. It explained:
“The Nectarine Administrative Committee and the Peach Commodity Committee engage in a careful process each year prior to and during their annual spring meetings in approving the advertising program for the upcoming season. Prior to the full committee meeting, the Subcommittee on Advertising and Promotion meets to review in detail the program developed by its staff. The staff in turn uses monthly reports on price trends, consumer interests, and general market conditions in the formation of the proposed advertising program.
“[I]t is only because the handlers themselves, through the committees, recommend a budget with a generic advertising component that the program is renewed by the Secretary every year. In fact, in most years the recommendations have been unanimous. We cannot assume that the handlers — the parties with firsthand knowledge of the state of their industry — would make recommendations that have an adverse effect on their businesses. Of course, the interests of the voting committee members may not always coincide with those of every handler in the industry. However, this court has previously noted that the Supreme Court ‘upheld the constitutionality of the system despite the fact that it may produce results with which some growers or handlers will disagree.’ Saulsbury Orchards and Almond Processing, Inc. v. Yeutter, 917 F. 2d 1190, 1197 (9th Cir. 1990) (citing United States v. Rock Royal Coop., 307 U. S. 533 ... (1939)).” Wileman Bros. & Elliott, Inc. v. Espy, 58 F. 3d 1367, 1375-1376 (CA9 1995) (footnote omitted).
The Court of Appeals concluded, however, that Government enforced contributions to pay for generic advertising violated the First Amendment rights of the handlers. Relying on an earlier Ninth Circuit decision that had cited our decision in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), see Cal-Almond, Inc. v. United States Dept. of Agriculture, 14 F. 3d 429 (CA9 1993), the court began by stating that the “First Amendment right of freedom of speech includes a right not to be compelled to render financial support for others’ speech.” 58 F. 3d, at 1377. It then reviewed the generic advertising regulations under “the test for restrictions on commercial speech set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U. S. 557, 566 ... (1980).” Id., at 1378. Although it was satisfied that the Government interest in enhancing returns to peach and nectarine growers was substantial, it was not persuaded that the generic advertising passed either the second or third “prongs” of Central Hudson. With respect to the former, even though the generic advertising “undoubtedly” has increased peach and nectarine sales, the Government failed to prove that it did so more effectively than individualized advertising. The court also concluded that the program was not “narrowly tailored” because it did not give the handlers any credit for their own advertising and because California was the only State in which such programs were in place.
The Court of Appeals’ disposition of the First Amendment claim is in conflict with a decision of the Court of Appeals for the Third Circuit that rejected a challenge to generic advertising of beef authorized by the Beef Promotion and Research Act of 1985, 7 U. S. C. §§ 2901-2911. United States v. Frame, 885 F. 2d 1119, 1136, 1137 (1989). Characterizing that statute as “legislation in furtherance of an ideologically neutral compelling state interest,” id., at 1137, and noting that the “Cattlemen’s Board is authorized only to develop a campaign to promote the product that the defendant himself has chosen to market,” id., at 1136, despite the plaintiff’s objections to the content of the advertising, the court found no violation of his First Amendment rights.
We granted the Secretary’s petition for certiorari to resolve the conflict, 517 U. S. 1232 (1996), and now reverse.
III
In challenging the constitutionality of the generic advertising program in the Court of Appeals, respondents relied, in part, on their claimed disagreement with the content of some of the generic advertising. 58 F. 3d, at 1377, n. 6. The District Court had found no merit to this aspect of their claim, and the Court of Appeals did not rely on it for its conclusion that the program was unconstitutional. Rather, the Court of Appeals invalidated the entire program on the theory that the program could not survive Central Hudson because the Government had failed to prove that generic advertising was more effective than individual advertising in increasing consumer demand for California nectarines, plums, and peaches. That holding did not depend at all on either the content of the advertising, or on the respondents’ claimed disagreement with any particular message. Although respondents have continued in this Court to argue about their disagreement with particular messages, those arguments, while perhaps calling into question the administration of portions of the program, have no bearing on the validity of the entire program.
For purposes of our analysis, we neither accept nor reject the factual assumption underlying the Court of Appeals’ invalidation of the program — namely, that generic advertising may not be the most effective method of promoting the sale of these commodities. The legal question that we address is whether being compelled to fund this advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve.
In answering that question we stress the importance of the statutory context in which it arises. California nectarines and peaches are marketed pursuant to detailed marketing orders that have displaced many aspects of independent business activity that characterize other portions of the economy in which competition is fully protected by the antitrust laws. The business entities that are compelled to fund the generic advertising at issue in this litigation do so as a part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme. It is in this context that we consider whether we should review the assessments used to fund collective advertising, together with other collective activities, under the standard appropriate for the review of economic regulation or under a heightened standard appropriate for the review of First Amendment issues.
IV
Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of Speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views. Indeed, since all of the respondents are engaged in the business of marketing California nectarines, plums, and peaches, it is fair to presume that they agree with the central message of the speech that is generated by the generic program. Thus, none of our First Amendment jurisprudence provides any support for the suggestion that the promotional regulations should be scrutinized under a different standard from that applicable to the other anticom-petitive features of the marketing orders.
Respondents advance several arguments in support of their claim that being required to fund the generic advertising program violates the First Amendment. Respondents argue that the assessments for generic advertising impinge on their First Amendment rights because they reduce the amount of money that producers have available to conduct their own advertising. This is equally true, however, of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order. The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm’s advertising budget. The fact that an economic regulation may indirectly lead to a reduction in a handler’s individual advertising budget does not itself amount to a restriction on speech.
The Court of Appeals, perhaps recognizing the expansive nature of respondents’ argument, did not rely on the claim that the assessments for generic advertising indirectly limit the extent of the handlers’ own advertising. Rather, the Court of Appeals apparently accepted respondents’ argument that the assessments infringe First Amendment rights because they constitute compelled speech. Our compelled speech case law, however, is clearly inapplicable to the regulatory scheme at issue here. The use of assessments to pay for advertising does not require respondents to repeat an objectionable message out of their own mouths, cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 632 (1943), require them to use their own property to convey an antagonistic ideological message, cf. Wooley v. Maynard, 430 U. S. 705 (1977); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 18 (1986) (plurality opinion), force them to respond to a hostile message when they “would prefer to remain silent,” see ibid., or require them to be publicly identified or associated with another’s message, cf. PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). Respondents are not required themselves to speak, but are merely required to make contributions for advertising. With trivial exceptions on which the court did not rely, none of the generic advertising conveys any message with which respondents disagree. Furthermore, the advertising is attributed not to them, but to the California Tree Fruit Agreement or “California Summer Fruits.” See, e. g., App. 530.
Although this regulatory scheme may not compel speech as recognized by our case law, it does compel financial contributions that are used to fund advertising. As the Court of Appeals read our decision in Abood, just as the First Amendment prohibits compelled speech, it prohibits — at least without sufficient justification by the government — compelling an individual to “render financial support for others’ speech.” 58 F. 3d, at 1377. However, Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one’s “freedom of belief.” 431 U. S., at 235. We considered, in Abood, whether it was constitutional for the State of Michigan to require government employees who objected to unions or union activities to contribute to an “agency shop” arrangement requiring all employees to pay union dues as a condition of employment. We held that compelled contributions to support activities related to collective bargaining were “constitutionally justified by the legislative assessment of the important contribution of the union shop” to labor relations. Id., at 222. Relying on our compelled-speech cases, however, the Court found that compelled contributions for political purposes unrelated to collective bargaining implicated First Amendment interests because they interfere with the values lying at the “heart of the First Amendment — ]the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Id., at 234-235; see also id., at 235.
Here, however, requiring respondents to pay the assessments cannot be said to engender any crisis of conscience. None of the advertising in this record promotes any particular message other than encouraging consumers to buy California tree fruit. Neither the fact that respondents may prefer to foster that message independently in order to promote and distinguish their own products, nor the fact that they think more or less money should be spent fostering it, makes this case comparable to those in which an objection rested on political or ideological disagreement with the content of the message. The mere fact that objectors believe their money is not being well spent “does not mean [that] they have a First Amendment complaint.” Ellis v. Railway Clerks, 466 U. S. 435, 456 (1984).
Moreover, rather than suggesting that mandatory funding of expressive activities always constitutes compelled speech in violation of the First Amendment, our cases provide affirmative support for the proposition that assessments to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the group. Thus, in Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), while we held that the cost of certain publications that were not germane to collective-bargaining activities could not be assessed against dissenting union members, id,., at 527-528, we squarely held that it was permissible to charge them for those portions of “the Teachers’ Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs . . . , and other miscellaneous matters.” Id., at 529. That holding was an application of the rule announced in Abood and further refined in Keller v. State Bar of Cal., 496 U. S. 1 (1990), a case involving bar association activities.
As we pointed out in Keller, “Abood held that a union could not expend a dissenting individual’s dues for ideological activities not ‘germane’ to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State’s interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” Id., at 13-14. This test is clearly satisfied in this case because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities.
We are not persuaded that any greater weight should be given to the fact that some producers do not wish to foster generic advertising than to the fact that many of them may well object to the marketing orders themselves because they might earn more money in an unregulated market. Respondents’ criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgment of anybody’s right to speak freely. Similar criticisms might be directed at other features of the regulatory orders that impose restraints on competition that arguably disadvantage particular producers for the benefit of the entire market. Although one may indeed question the wisdom of such a program, its debatable features are insufficient to warrant special First Amendment scrutiny. It was therefore error for the Court of Appeals to rely on Central Hudson for the purpose of testing the constitutionality of market order assessments for promotional advertising.
V
The Court of Appeals’ decision to apply the Central Hudson test is inconsistent with the very nature and purpose of the collective action program at issue here. The Court of Appeals concluded that the advertising program does not “directly advance” the purposes of the marketing orders because the Secretary had failed to prove that generic advertising is any more effective in stimulating consumer demand for the commodities than the advertising that might otherwise be undertaken by producers acting independently. We find this an odd burden of proof to assign to the administrator of marketing orders that reflect a policy of displacing unrestrained competition with Government supervised cooperative marketing programs. If there were no marketing orders at all to set maturity levels, size, quantity, and other features, competition might well generate greater production of nectarines, peaches, and plums. It may also be true that if there were no generic advertising, competition would generate even more advertising and an even larger consumer demand than does the cooperative program. But the potential benefits of individual advertising do not bear on the question whether generic advertising directly advances the statute’s collectivist goals. Independent advertising would be primarily motivated by the individual competitor’s interest in maximizing its own sales, rather than in increasing the overall consumption of a particular commodity. While the First Amendment unquestionably protects the individual producer’s right to advertise its own brands, the statute is designed to further the economic interests of the producers as a group. The basic policy decision that underlies the entire statute rests on an assumption that in the volatile markets for agricultural commodities the public will be best served by compelling cooperation among producers in making economic decisions that would be made independently in a free market. It is illogical, therefore, to criticize any cooperative program authorized by this statute on the ground that competition would provide greater benefits than joint action.
On occasion it is appropriate to emphasize the difference between policy judgments and constitutional adjudication. Judges who have endorsed the view that the Sherman Act is a charter of economic liberty naturally approach laws that command competitors to participate in joint ventures with a jaundiced eye. Doubts concerning the policy judgments that underlie many features of this legislation do not, however, justify reliance on the First Amendment as a basis for reviewing economic regulations. Appropriate respect for the power of Congress to regulate commerce among the States provides abundant support for the constitutionality of these marketing orders on the following reasoning.
Generic advertising is intended to stimulate consumer demand for an agricultural product in a regulated market. That purpose is legitimate and consistent with the regulatory goals of the overall statutory scheme. See § 602(1). At least a majority of the producers in each of the markets in which such advertising is authorized must be persuaded that it is effective, or presumably the programs would be discontinued. Whether the benefits from the advertising justify its cost is a question that not only might be answered differently in different markets, but also involves the exercise of policy judgments that are better made by producers and administrators than by judges.
As with other features of the marketing orders, individual producers may not share the views or the interests of others in the same market. But decisions that are made by the majority, if acceptable for other regulatory programs, should be equally so for promotional advertising. Perhaps more money may be at stake when a generic advertising program is adopted than for other features of the cooperative endeavor, but that fact does not transform this question of business judgment into a constitutional issue. In sum, what we are reviewing is a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress. The mere fact that one or more producers “do not wish to foster” generic advertising of their product is not a sufficient reason for overriding the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial.
The judgment of the Court of Appeals is reversed.
It is so ordered.
See, e. g., United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 (1939); West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 188-189 (1994).
Congress amended the AMA A in 1954 to authorize the Secretary to establish “marketing ... development projects.” See Agricultural Act of 1954, § 401(c), 68 Stat. 906.
Those regulations include provisions minimizing the risk that the generic advertising might adversely affect the interests of any individual producer. See 7 U. S. C. § 608c(16)(A)(i) (providing for termination or suspension of an order that does not “effectuate the declared policy” of the AMAA); § 608e(16)(B) (providing for termination of an order if a majority of producers does not support a regulation); § 608c(15)(A) (allowing handlers subject to a marketing order to petition for modification or exemption from an order that is inconsistent with the statute). For the purpose of this case, we assume that those regulations accomplish their goals, and that the generic advertising programs therefore further the interests of those who pay for them. We do not, however, rule out the possibility that, despite the approval of generic advertising by at least two-thirds of the handlers, individual advertising might be even more effective.
The original marketing order for California peaches and plums was first issued in 1939. See 4 Fed. Reg. 2135 (1939). The marketing order for California nectarines was issued in 1958. See 7 CFR § 937.45 (1959).
The plum portion of Order 917 was terminated in 1991 after a majority of plum producers failed to vote for its continuation, see 56 Fed. Reg. 23772, but because some of the respondents are seeking a refund of 1991 assessments for plum advertising, the validity of that portion of the program is not moot.
The ALJ indicated that if respondents “were not to succeed in their nonconstitutional arguments” she would rule in their favor on the First Amendment claim. App. to Brief in Opposition 393a.
The Court of Appeals quoted the following as a “typical excerpt”: “ ‘The record shows a wide consensus among the peach and pear industries that promotional activities have been beneficial in increasing demand and should be continued.
“ ‘Media generally is expensive but some things can be done selectively in this field that are inexpensive and yet create an impact on the buying trade as well as the consuming public. Trade paper ads, particularly at the beginning of the season, together with the editorial support'which trade papers are willing to accord an advertiser are helpful in launching a program for seasonal ñ'uits such as peaches and pears. Spot radio or TV commercials in the principal markets during peak movement periods have proved to be successful. It has been found in many fresh promotional programs that spot announcements, particularly when developed with a “dealer tag” at the end of each spot, have considerable influence in triggering retail promotions. 41 Fed. Reg. 14,375, 14,376-77 (1976).’ ” Wileman Bros. & Elliott, Inc. v. Espy, 58 F. 3d 1367, 1375 (CA9 1995).
Respondents also challenged other features of the collective program including the fruit maturity and minimum size requirements. Reviewing these aspects of the order pursuant to the deferential standard of review provided in the APA, the Court of Appeals found that they were not arbitrary and capricious. See 58 F. 3d, at 1382, 1384.
The plaintiff had claimed that he disagreed with the point of view expressed in advertising that the consumption of beef is “ ‘desirable, healthy, nutritious’”; the court concluded that his claim was not “a dispute over anything more than mere strategy.” Frame, 885 F. 2d, at 1137.
The District Court stated: “Scattered throughout plaintiffs’ briefs are additional objections which are difficult to characterize or quantify. They assert that the advertising condones ‘lying’ in that it promotes the ‘lie’ that red colored fruit is superior, that it rewards mediocrity by advertising all varieties of California fruit to be of equal quality, that it promotes sexually subliminal messages as evidenced by an ad depicting a young girl in a wet bathing suit, and that it promotes the ‘socialistic programs’ of the Secretary. It is impossible from these ‘vague claims’ to determine that plaintiffs’ first amendment rights have been significantly infringed.” Wileman Bros. & Elliott, Inc. v. Madigan, Civ. No. F-90-473-OWW (ED Cal. 1993), reprinted in App. to Pet. for Cert. 91a-92a.
Respondents argue that assessments were used to fund advertisements conveying the message that red nectarines are superior to other nectarines, Brief for Respondents Wileman Brothers et al. 33, and advertisements conveying the message that “all California fruit is the same,” ibid.; Brief for Respondents Gerawan Farming, Inc., et al. 46. They contend that they object to these messages because some of respondent companies grow varieties of nectarines that are not red, and because they seek to promote the fact that the commodities are highly varied. See Brief for Respondents Wileman Brothers et al. 33; Brief for Respondents Gerawan Farming, Inc., et al. 46. Respondents’ argument concerning promotion of red varieties appears to confuse complaints concerning maturity standards imposed on peach and nectarine growers with complaints concerning advertising. See, e. g., App. 233; id., at 692. The argument that the advertising promotes a view that all California fruit is the same is premised upon no particular advertisement, but rather upon testimony by respondents’ executives concerning their general opposition to paying for generic advertising. See, e. g., id., at 588; id., at 662-663.
Respondents also suggest that assessments were improperly used to fund materials promoting fruit varieties grown exclusively by their competitors. Brief for Respondents Wileman Brothers et al. 19-20. The claim, however, arises simply from a single reference to Red Jim nectarines, listed among 25 varieties, on a 1989 chart illustrating the availability of mid- to late-season summer tree fruits. App. 531.
These complaints, if they have any merit, are all essentially challenges to the administration of the program that are more properly addressed to the Secretary.
This fact distinguishes the limits on commercial speech at issue in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980), Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), and 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996).
This fact distinguishes the compelled speech in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), Wooley v. Maynard, 430 U. S. 705 (1977), Riley v. National Federation of Blind of N. C, Inc., 487 U. S. 781 (1988), and the compelled association in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995).
This fact distinguishes cases like Machinists v. Street, 367 U. S. 740 (1961), Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and Keller v. State Bar of Cal., 496 U. S. 1 (1990).
See n. 10, supra.
The generic advertising program at issue here is even less likely to pose a First Amendment burden than the programs upheld in Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991). Lehnert involved collective programs in the context of a union agency-shop agreement which arguably always poses some burden on First Amendment rights. See id,., at 518 (noting that agency-shop agreements inherently burden First Amendment rights); see also Abood, 431 U. S., at 222 (recognizing that all compelled contributions for collective bargaining affect First Amendment interests because an employee may have ideological, moral, or religious objections to the union’s activities). By contrast, the collective programs authorized by the marketing order do not, as a general matter, impinge on speech or association rights. Cf. Roberts v. United States Jaycees, 468 U. S. 609, 634, 635 (1984) (opinion of O’Connor, J.) (finding “only minimal constitutional protection of the freedom of commercial association” and that an association whose “activities are not predominantly of the type protected by the First Amendment” is subject to “rationally related state regulation of its membership”).
As we have already noted, n. 8, supra, respondents failed in their challenge to the other features of the programs before the District Court and the Court of Appeals.
The Court of Appeals fails to explain why the Central Hudson test, which involved a restriction on commercial speech, should govern a case involving the compelled funding of speech. Given the fact that the Court of Appeals relied on Abood for the proposition that the program implicates the First Amendment, it is difficult to understand why the Court of Appeals did not apply Abood’s “germaneness” test.
See, e. g., Appalachian Coals, Inc. v. United States, 288 U. S. 344, 359-360 (1933); Northern Pacific R. Co. v. United States, 356 U. S. 1, 4 (1958); Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623, 647 (1977) (Stevens, J., dissenting).
The Secretary must terminate an order if he determines that it does not further the policies of the AMAA, see 7 U. S. C. § 608c(16)(A)(i), or that a majority of producers does not support it, see § 608e(16)(B). The committee voted unanimously for generic advertising assessments in each of the years at issue here. See 58 F. 3d, at 1376.
|
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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[
3
] |
UNITED STATES v. KING.
No. 672.
Argued April 2, 1969.
Decided May 19, 1969.
Assistant Attorney General Ruckelshaus argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Harris Weinstein, and Morton Hollander.
Neil B. Kabatchnick argued the cause for respondent. With him on the brief was Richard H. Love.
Warner W. Gardner and Benjamin W. Boley filed a brief for the Liner Council, American Institute of Merchant Shipping, as amicus curiae.
Mr. Justice Black
delivered the opinion of the Court.
Colonel John P. King, respondent, was retired from the Army for longevity (length of service) over his objection that he should have been retired for physical disability. Had his retirement been based on disability, Colonel King would have been entitled to an exemption from income taxation allowed by § 104 (a)(4) of the Internal Revenue Code of 1954, 26 U. S. C. § 104 (a) (4). He brought this action in the Court of Claims alleging that the Secretary of the Army’s action in rejecting his disability retirement was arbitrary, capricious, not supported by evidence, and therefore unlawful, and asked for a judgment against the United States for an amount of excess taxes he had been compelled to pay because he had been retired for longevity instead of disability. The Court of Claims agreed with the United States that the claim as filed was basically one for a refund of taxes and was therefore barred by King’s failure to allege that he had filed a timely claim for refund as required by 26 U. S. C. § 7422 (a). In this situation, the court suggested to counsel that it might have jurisdiction under the Declaratory Judgment Act and requested that briefs and arguments on this point be submitted to the court. This was done. The Court of Claims, in an illuminating and interesting opinion by Judge Davis, reached the conclusion that the court could exercise jurisdiction under the Declaratory Judgment Act, 28 U. S. C. § 2201. In so holding, the court thereby rejected the Government’s contentions that the Declaratory Judgment Act does not apply to the Court of Claims and that the court’s jurisdiction is limited to actions asking for money judgments. By this ruling the court expressly declined to follow a long line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct. Cl. 655 (1935). As the opinion of Judge Davis showed, the question of whether the Court of Claims has jurisdiction to issue declaratory judgments is both substantial and important. We granted certiorari to decide that question.
The Court of Claims was established by Congress in 1855. Throughout its entire history up until the time that this case was filed, its jurisdiction has been limited to money claims against the United States Government. In 1868 this Court held that “the only judgments which the Court of Claims [is] authorized to render against the government . . . are judgments for money found due from the government to the petitioner.” United States v. Alire, 6 Wall. 573, 575. In United States v. Jones, 131 U. S. 1, this Court reaffirmed this view of the limited jurisdiction of the Court of Claims, and held that the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters. More recently, in 1962, it was said in the prevailing opinion in Glidden Co. v. Zdanok, 370 U. S. 530, 557, on a point not disputed by any of the other members of the Court that “[f]rom the beginning [the Court of Claims] has been given jurisdiction only to award damages . . . .” No amendment purporting to increase the jurisdiction of the Court of Claims has been enacted since the decision in Zdanok.
The foregoing cases decided by this Court therefore clearly show that neither the Act creating the Court of Claims nor any amendment to it grants that court jurisdiction of this present case. That is true because Colonel King’s claim is not limited to actual, presently due money damages from the United States. Before he is entitled to such a judgment he must establish in some court that his retirement by the Secretary of the Army for longevity was legally wrong and that he is entitled to a declaration of his right to have his military records changed to show that he was retired for disability. This is essentially equitable relief of a kind that the Court of Claims has held throughout its history, up to the time this present case was decided, that it does not have the power to grant.
It is argued, however, that even if the Court of Claims Act with its amendments did not grant that court the authority to issue declaratory judgments, it was given that authority by the Declaratory Judgment Act of 1934. Support for this proposition is drawn from the language in the Declaratory Judgment Act that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” The first answer to this contention is that, as we have pointed out, cases seeking relief other than money damages from the Court of Claims have never been “within its jurisdiction.” And we agree with the opinion of the Court of Claims in this case that the legislative history materials concerning the application of this Act to the Court of Claims “are, at best, ambiguous.” For the court below, it was sufficient that there was no clear indication that Congress affirmatively intended to exclude the Court of Claims from the scope of the Declaratory Judgment Act. We think that this approach runs counter to the settled propositions that the Court of Claims’ jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be unequivocally expressed. United States v. Sherwood, 312 U. S. 584. This was precisely the position taken by the Court of Claims in a line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct. Cl. 655 (1935). In that case, decided soon after the passage of the Declaratory Judgment Act, the Court of Claims held that it would require a specific and express statute of Congress to give the Court of Claims the power to issue declaratory judgments. The Court of Claims said in Twin Cities that:
“If Congress had intended to extend the scope of this court’s jurisdiction and subject the United States to the declaratory judgment act, we think express language would have been used to do so, and the court is not warranted in assuming an intention to widen its jurisdiction from the general provisions of the act which concerns a proceeding equitable in nature and foreign to any jurisdiction this court has heretofore exercised.” 81 Ct. Cl., at 658.
We think that the earlier decisions of the Court of Claims and those that have consistently followed them were correct. There is not a single indication in the Declaratory Judgment Act or its history that Congress, in passing that Act, intended to give the Court of Claims an expanded jurisdiction that had been denied to it for nearly a century. In the absence of an express grant of jurisdiction from Congress, we decline to assume that the Court of Claims has been given the authority to issue declaratory judgments.
Reversed.
|
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"
] |
[
5
] |
UNIFORMED SANITATION MEN ASSN., INC., et al. v. COMMISSIONER OF SANITATION OF THE CITY OF NEW YORK et al.
No. 823.
Argued May 1, 1968.
Decided June 10, 1968.
Leonard B. Boudin argued the cause for petitioners. With him on the briefs was Victor Rabinowitz.
Norman Redlich argued the cause for respondents. With him on the brief were /. Lee Rankin and John J. Loflin.
Mr. Justice Fortas
delivered the opinion of the Court.
The individual petitioners are 15 employees of the Department of Sanitation of New York City. Claiming they were wrongfully dismissed from employment in violation of their rights under the United States Constitution, they commenced this action for declaratory judgment and injunctive relief in the United States District Court for the Southern District of New York. That court dismissed the action and the Court of Appeals for the Second Circuit affirmed. 383 F. 2d 364 (1967). We granted certiorari. 390 U. S. 919 (1968).
Sometime in 1966, the Commissioner of Investigation of New York City began an investigation of charges that employees of the Department of Sanitation were not charging private cartmen proper fees for use of certain city facilities and were diverting to themselves the proceeds of fees that they did charge. The Commissioner obtained an order from the Supreme Court in New York County authorizing him to tap a telephone leased by the Department of Sanitation for the transaction of official business at the city facilities in question.
In November 1966 each of the petitioners was summoned before the Commissioner. Each was advised that, in accordance with § 1123 of the New York City Charter, if he refused to testify with respect to his official conduct or that of any other city employee on the grounds of self-incrimination, his employment and eligibility for other city employment would terminate.
Twelve of the petitioners, asserting the constitutional privilege against self-incrimination, refused to testify. After a disciplinary hearing held pursuant to § 75 of the New York Civil Service Law, they were dismissed by the Commissioner of Sanitation on the explicit ground provided by § 1123 of the City Charter that they had refused to testify.
Three of the petitioners answered the questions put to them, denying the charges made. They were thereafter suspended by the Commissioner of Sanitation on the basis of “information received from the Commissioner of Investigation concerning irregularities arising out of [their] employment in the Department of Sanitation.” Subsequently, they were summoned before a grand jury and asked to sign waivers of immunity. They refused. Administrative hearings were held pursuant to § 75 of the Civil Service Law, and they were dismissed from employment on the sole ground that they had violated § 1123 of the City Charter by refusing to sign waivers of immunity. We consider only the dismissal, rather than the suspension, of these petitioners.
Relying upon the decision of the New York Court of Appeals in Gardner v. Broderick, 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967) (reversed this day, ante, p. 273), the Court of Appeals for the Second Circuit held that the dismissal of petitioners did not offend the Federal Constitution. For the reasons which we elaborate in our opinion reversing the New York court’s decision in Gardner v. Broderick, supra, we hold that the Court of Appeals erred.
Petitioners were not discharged merely for refusal to account for their conduct as employees of the city. They were dismissed for invoking and refusing to waive their constitutional right against self-incrimination. They were discharged for refusal to expose themselves to criminal prosecution based on testimony which they would give under compulsion, despite their constitutional privilege. Three were asked to sign waivers of immunity before the grand jury. Twelve were told that their answers to questions put to them by the Commissioner of Investigation could be used against them in subsequent proceedings, and were discharged for refusal to answer the questions on this basis. Garrity v. New Jersey, 385 U. S. 493 (1967), in which we held that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness, had not been decided when these 12 petitioners were put to their hazardous choice. In any event, we need not decide whether these petitioners would have effectively waived this constitutional protection if they had testified following the warning that their testimony could be used against them. They were entitled to remain silent because it was clear that New York was seeking, not merely an accounting of their use or abuse of their public trust, but testimony from their own lips which, despite the constitutional prohibition, could be used to prosecute them criminally.
As we stated in Gardner v. Broderick, supra, if New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different. In such a case, the employee’s right to immunity as a result of his compelled testimony would not be at stake. But here the precise and plain impact of the proceedings against petitioners as well as of § 1123 of the New York Charter was to present them with a choice between surrendering their constitutional rights or their jobs. Petitioners as public employees are entitled, like all other persons, to the benefit of the Constitution, including the privilege against self-incrimination. Gardner v. Broderick, supra; Garrity v. New Jersey, supra. Cf. Murphy v. Waterfront Commission, 378 U. S. 52, at 79 (1964). At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.
Accordingly, the judgment is reversed.
Reversed.
Mr. Justice Black concurs in the result.
Section 803, subd. 2, of the New York City Charter provides that the Commissioner “[i]s authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency.”
This order was pursuant to § 813-a of the Code of Criminal Procedure of New York. See Berger v. New York, 388 U. S. 41 (1967).
Section 1123 of the New York City Charter provides:
“If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”
The Commissioner said:
“Mr. [name of witness], this is a private hearing being conducted by the Department of Investigation of the City of New York, pursuant to Chapter 34, of the New York City Charter. The investigation in which you are about to testify relates particularly to the affairs, functions, accounts, methods, personnel and efficiency of the Department of Sanitation of the City of New York. I wish to advise you that you have all the rights and privileges guaranteed by the laws of the State of New York and the Constitutions of this State and of the United States, including the right to remain silent and the right not to be compelled to be a witness against yourself. I wish further to advise you that anything you say can be used against you in a court of law. You have the right to have an attorney present at this hearing, if you wish, and I understand that you are represented by counsel in the person of [name of attorney], is that correct?” (Emphasis added.)
As we noted in Gardner v. Broderick, supra, at 278-279, the possible ineffectiveness of this waiver does not change the fact that the State attempted to force petitioners, upon penalty of loss of employment, to relinquish a right guaranteed them by the Constitution.
In view of our disposition of the ease, we do not reach the issues raised by petitioners with respect to the wiretap.
|
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
] |
OFFICE OF PERSONNEL MANAGEMENT v. RICHMOND
No. 88-1943.
Argued February 21, 1990
Decided June 11, 1990
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, and Scalia, JJ., joined. White, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 434. Stevens, J., filed an opinion concurring in the judgment, post, p. 435. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 437.
Solicitor General Starr argued the cause for petitioner. With him on the briefs were Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, William Kanter, and Richard Olderman.
Gill Deford argued the cause for respondent. With him on the brief were Peter Komlos-Hrobsky and Neal S. Dudovitz.
Justice Kennedy
delivered the opinion of the Court.
This case presents the question whether erroneous oral and written advice given by a Government employee to a benefits claimant may give rise to estoppel against the Government and so entitle the claimant to a monetary payment not otherwise permitted by law. We hold that payments of money from the Federal Treasury are limited to those authorized by statute, and we reverse the contrary holding of the Court of Appeals.
I
Not wishing to exceed a statutory limit on earnings that would disqualify him from a disability annuity, respondent Charles Richmond sought advice from a federal employee and received erroneous information. As a result he earned more than permitted by the eligibility requirements of the relevant statute and lost six months of benefits. Respondent now claims that the erroneous and unauthorized advice should give rise to equitable estoppel against the Government, and that we should order payment of the benefits contrary to the statutory terms. Even on the assumption that much equity subsists in respondent’s claim, we cannot agree with him or the Court of Appeals that we have authority to order the payment he seeks.
Respondent was a welder at the Navy Public Works Center in San Diego, California. He left this position in 1981 after petitioner, the Office of Personnel Management (OPM), approved his application for a disability retirement. OPM determined that respondent’s impaired eyesight prevented him from performing his job and made him eligible for a disability annuity under 5 U. S. C. § 8337(a). Section 8337(a) provides this benefit for disabled federal employees who have completed five years of service. The statute directs, however, that the entitlement to disability payments will end if the retired employee is “restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement.” § 8337(d).
The statutory rules for restoration of earning capacity are central to this case. Prior to 1982, an individual was deemed restored to earning capacity, and so rendered ineligible for a disability annuity, if
“in each of 2 succeeding calendar years the income of the annuitant from wages or self-employment. . . equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.” 5 U. S. C. § 8337(d) (1976 ed.) (emphasis added).
The provision was amended in 1982 by the Omnibus Budget Reconciliation Act, Pub. L. 97-253, 96 Stat. 792, to change the measuring period for restoration of earning capacity from two years to one:
“Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.” 5 U. S. C. § 8337(d) (emphasis added).
After taking disability retirement for his vision impairment, respondent undertook part-time employment as a schoolbus driver. From 1982 to 1985, respondent earned an average of $12,494 in this job, leaving him under the 80% limit for entitlement to continued annuity payments. In 1986, however, he had an opportunity to earn extra money by working overtime. Respondent asked an employee relations specialist at the Navy Public Works Center’s Civilian Personnel Department for information about how much he could earn without exceeding the 80% eligibility limit. Relying upon the terms of the repealed pre-1982 statute, under which respondent could retain the annuity unless his income exceeded the 80% limit in two consecutive years, the specialist gave respondent incorrect advice. The specialist also gave respondent a copy of Attachment 4 to Federal Personnel Manual Letter 831-64, published by OPM, which also stated the former 2-year eligibility rule. The OPM form was correct when written in 1981; but when given to respondent, the form was out of date and therefore inaccurate. Respondent returned to the Navy in January 1987 and again was advised in error that eligibility would be determined under the old 2-year rule.
After receiving the erroneous information, respondent concluded that he could take on the extra work as a schoolbus driver in 1986 while still receiving full disability benefits for impaired vision so long as he kept his income for the previous and following years below the statutory level. He earned $19,936 during 1986, exceeding the statutory eligibility limit. OPM discontinued respondent’s disability annuity on June 30, 1987. The annuity was restored on January 1, 1988, since respondent did not earn more than allowed by the statute in 1987. Respondent thus lost his disability payments for a 6-month period, for a total amount of $3,993.
Respondent appealed the denial of benefits to the Merit Systems Protection Board (MSPB). He argued that the erroneous advice given him by the Navy personnel should estop OPM and bar its finding him ineligible for benefits under the statute. The MSPB rejected this argument, noting that the officials who misinformed respondent were from the Navy, not OPM. The MSPB observed that, “[h]ad [respondent] directed his request for information to the OPM, presumably, he would have learned of the change in the law.” The MSPB held that “OPM cannot be estopped from enforcing a statutorily imposed requirement for retirement eligibility.” App. to Pet. for Cert. 22a. The MSPB denied respondent’s petition for review, and respondent appealed to the Court of Appeals for the Federal Circuit.
A divided panel of the Court of Appeals reversed, accepting respondent’s contention that the misinformation from Navy personnel estopped the Government, and that the es-toppel required payment of disability benefits despite the statutory provision to the contrary. The Court of Appeals acknowledged the longstanding rule that “ordinarily the government may not be estopped because of erroneous or unauthorized statements of government employees when the asserted estoppel would nullify a requirement prescribed by Congress.” 862 F. 2d 294, 296 (1988). Nonetheless, the Court of Appeals focused on this Court’s statement in an earlier case that “we are hesitant ... to say that there are no cases” where the Government might be estopped. Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 60 (1984). The Court of Appeals then discussed other Court of Appeals and District Court opinions that had applied estoppel against the Government.
The Court of Appeals majority decided that “[b]ased on the Supreme Court’s acknowledgment that the estoppel against the government is not foreclosed and based on court of appeals rulings applying estoppel against the government, our view is that estoppel is properly applied against the government in the present case.” 862 F. 2d, at 299. The Court reasoned that the provision of the out-of-date OPM form was “affirmative misconduct” that should estop the Government from denying respondent benefits in accordance with the statute. The facts of this case, it held, are “sufficiently unusual and extreme that no concern is warranted about exposing the public treasury to estoppel in broad or numerous categories of cases.” Id., at 301. Judge Mayer dissented, stating that the majority opinion made “a chasm out of the crack the Supreme Court left open in Community Health Services,” and that the award of benefits to respondent “contravenes the express mandate of Congress in 5 U. S. C. § 8337(d) . . . and Supreme Court precedent.” Id., at 301, 303.
We granted certiorari, 493 U. S. 806 (1989).
II
From our earliest cases, we have recognized that equitable estoppel will not lie against the Government as it lies against private litigants. In Lee v. Munroe & Thornton, 7 Cranch 366 (1813), we held that the Government could not be bound by the mistaken representations of an agent unless it were clear that the representations were within the scope of the agent's authority. In The Floyd Acceptances, 7 Wall. 666 (1869), we held that the Government could not be compelled to honor bills of exchange issued by the Secretary of War where there was no statutory authority for the issuance of the bills. In Utah Power & Light Co. v. United States, 243 U. S. 389, 408-409 (1917), we dismissed the argument that unauthorized representations by agents of the Government estopped the United States to prevent erection of power houses and transmission lines across a public forest in violation of a statute: “Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.”
The principles of these and many other cases were reiterated in Federal Crop Ins. Corporation v. Merrill, 332 U. S. 380 (1947), the leading case in our modern line of estoppel decisions. In Merrill, a farmer applied for insurance under the Federal Crop Insurance Act to cover his wheat farming operations. An agent of the Federal Crop Insurance Corporation advised the farmer that his entire crop qualified for insurance, and the farmer obtained insurance through the Corporation. After the crop was lost, it was discovered that the agent’s advice had been in error, and that part of the farmer’s crop was reseeded wheat, not eligible for federal insurance under the applicable regulation. While we recognized the serious hardship caused by the agent’s misinformation, we nonetheless rejected the argument that his representations estopped the Government to deny insurance benefits. We recognized that “not even the temptations of a hard case” will provide a basis for ordering recovery contrary to the terms of the regulation, for to do so would disregard “the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Id., at 385-386.
Despite the clarity of these earlier decisions, dicta in our more recent cases have suggested the possibility that there might be some situation in which estoppel against the Government could be appropriate. The genesis of this idea appears to be an observation found at the end of our opinion in Montana v. Kennedy, 366 U. S. 308 (1961). In that case, petitioner brought a declaratory judgment action seeking to establish his American citizenship. After discussing petitioner’s two statutory claims at length, we rejected the final argument that a consular official’s erroneous advice to petitioner’s mother that she could not return to the United States while pregnant prevented petitioner from having been born in the United States and thus deprived him of United States citizenship. Our discussion was limited to the observation that in light of the fact that no legal obstacle prevented petitioner’s mother from returning to the United States,
“what may have been only the consular official’s well-meant advice—'I am sorry, Mrs., you cannot [return to the United States] in that condition’—falls far short of misconduct such as might prevent the United States from relying on petitioner’s foreign birth. In this situation, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials.” Id., at 314-315.
The proposition about which we did not “stop to inquire” in Kennedy has since taken on something of a life of its own. Our own opinions have continued to mention the possibility, in the course of rejecting estoppel arguments, that some type of “affirmative misconduct” might give rise to estoppel against the Government. See INS v. Hibi, 414 U. S. 5, 8 (1973) (per curiam) (“While the issue of whether ‘affirmative misconduct’ on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U. S. 308, 314, 315 (1961), no conduct of the sort there adverted to was involved here”); Schweiker v. Hansen, 450 U. S. 785, 788 (1981) (per curiam) (denying an estoppel claim for Social Security benefits on the authority of Merrill, supra, but observing that the Court “has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits”); INS v. Miranda, 459 U. S. 14, 19 (1982) (per curiam) (“This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws”); Heckler v. Community Health Services, 467 U. S., at 60 (“We have left the issue open in the past, and do so again today”).
The language in our decisions has spawned numerous claims for equitable estoppel in the lower courts. As Justice Marshall stated in dissent in Hansen, supra, “[t]he question of when the Government may be equitably estopped has divided the distinguished panel of the Court of Appeals in this case, has received inconsistent treatment from other Courts of Appeals, and has been the subject of considerable ferment.” 450 U. S., at 791 (citing cases). Since that observation was made, federal courts have continued to accept estoppel claims under a variety of rationales and analyses. In sum, Courts of Appeals have taken our statements as an invitation to search for an appropriate case in which to apply estoppel against the Government, yet we have reversed every finding of estoppel that we have reviewed. Indeed, no less than three of our most recent decisions in this area have been summary reversals of decisions upholding estoppel claims. See Hibi, supra; Hansen, supra; Miranda, supra. Summary reversals of courts of appeals are unusual under any circumstances. The extraordinary number of such dispositions in this single area of the law provides a good indication that our approach to these cases has provided inadequate guidance for the federal courts and served only to invite and prolong needless litigation.
The Solicitor General proposes to remedy the present confusion in this area of the law with a sweeping rule. As it has in the past, the Government asks us to adopt “a flat rule that estoppel may not in any circumstances run against the Government.” Community Health Services, supra, at 60. The Government bases its broad rule first upon the doctrine of sovereign immunity. Noting that the “‘United States, as sovereign, is immune from suit save as it consents to be sued,’” United States v. Mitchell, 445 U. S. 535, 538 (1980), petitioner asserts that the courts are without jurisdiction to entertain a suit to compel the Government to act contrary to a statute, no matter what the context or circumstances. See Brief for Petitioner 12-13. Petitioner advances as a second basis for this rule the doctrine of separation of powers. Petitioner contends that to recognize estoppel based on the misrepresentations of Executive Branch officials would give those misrepresentations the force of law, and thereby invade the legislative province reserved to Congress. This rationale, too, supports the petitioner’s contention that estoppel may never justify an order requiring executive action contrary to a relevant statute, no matter what statute or what facts are involved.
We have recognized before that the “arguments the Government advances for the rule are substantial.” Community Health Services, supra, at 60. And we agree that this case should be decided under a clearer form of analysis than “we will know an estoppel when we see one.” Hansen, supra, at 792 (Marshall, J., dissenting). But it remains true that we need not embrace a rule that no estoppel will lie against the Government in any case in order to decide this case. We leave for another day whether an estoppel claim could ever succeed against the Government. A narrower ground of decision is sufficient to address the type of suit presented here, a claim for payment of money from the Public Treasury contrary to a statutory appropriation.
III
The Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, provides that: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” For the particular type of claim at issue here, a claim for money from the Federal Treasury, the Clause provides an explicit rule of decision. Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute. All parties here agree that the award respondent seeks would be in direct contravention of the federal statute upon which his ultimate claim to the funds must rest, 5 U. S. C. § 8337. The point is made clearer when the appropriation supporting the benefits sought by respondent is examined. In the same subchapter of the United States Code as the eligibility requirements, Congress established the Civil Service Retirement and Disability Fund. § 8348(a)(1)(A). That section states in pertinent part: “The Fund . . . is appropriated for the payment of . . . benefits as provided by this subchapter . . . .” (Emphasis added.) The benefits respondent claims were not “provided by” the relevant provision of the subchapter; rather, they were specifically denied. It follows that Congress has appropriated no money for the payment of the benefits respondent seeks, and the Constitution prohibits that any money “be drawn from the Treasury” to pay them. Our cases underscore the straightforward and explicit command of the Appropriations Clause. “It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Cincinnati Soap Co. v. United States, 301 U. S. 308, 321 (1937) (citing Reeside v. Walker, 11 How. 272, 291 (1851)). In Reeside, supra, we addressed a claim brought by the holder of a judgment of indebtedness against the United States that the Secretary of the Treasury of the United States should be ordered to enter the claim upon the books of the Treasury so that the debt might be paid. In rejecting petitioner’s claim for relief, we stated as an alternative ground for decision that if
“the petition in this case was allowed so far as to order the verdict against the United States to be entered on the books of the Treasury Department, the plaintiff would be as far from having a claim on the Secretary or Treasurer to pay it as now. The difficulty in the way is the want of any appropriation by Congress to pay this claim. It is a well-known constitutional provision, that no money can be taken or drawn from the Treasury except under an appropriation by Congress. See Constitution, art. 1, § 9 (1 Stat. at Large, 15).
“However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned. Any other course would give to the fiscal officers a most dangerous discretion.” Id., at 291.
The command of the Clause is not limited to the relief available in a judicial proceeding seeking payment of public funds. Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury. We have held, for example, that while the President’s pardon power may remove all disabilities from one convicted of treason, that power does not extend to an order to repay from the Treasury the proceeds derived from the sale of the convict’s forfeited property:
“So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law. However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers,—it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress.” Knote v. United States, 95 U. S. 149, 154 (1877).
Just as the pardon power cannot override the command of the Appropriations Clause, so too judicial use of the equitable doctrine of estoppel cannot grant respondent a money remedy that Congress has not authorized. See INS v. Pangilinan, 486 U. S. 875, 883 (1988) (“‘Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law’”).
We have not had occasion in past cases presenting claims of estoppel against the Government to discuss the Appropriations Clause, for reasons that are apparent. Given the strict rule against estoppel applied as early as 1813 in Lee v. Munroe & Thornton, 7 Cranch 366, claims of estoppel could be dismissed on that ground without more. In our cases following Montana v. Kennedy, 366 U. S. 308 (1961), reserving the possibility that estoppel might lie on some facts, we have held only that the particular facts presented were insufficient. As discussed supra, at 423-424, we decline today to accept the Solicitor General’s argument for an across-the-board no-estoppel rule. But this makes it all the more important to state the law and to settle the matter of estoppel as a basis for money claims against the Government.
Our decision is consistent with both the holdings and the rationale expressed in our estoppel precedents. Even our recent cases evince a most strict approach to estoppel claims involving public funds. See Community Health Services, 467 U. S., at 63 (“Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law”). The course of our jurisprudence shows why: Opinions have differed on whether this Court has ever accepted an estoppel claim in other contexts, see id., at 60 (suggesting that United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655 (1973) (PICCO), was decided on estoppel grounds); 467 U. S., at 68 (opinion of Rehnquist, J.) (PICCO not an estoppel case), but not a single case has upheld an estoppel claim against the Government for the payment of money. And our cases denying estoppel are animated by the same concerns that prompted the Framers to include the Appropriations Clause in the Constitution. As Justice Story described the Clause:
“The object is apparent upon the slightest examination. It is to secure regularity, punctuality, and fidelity, in the disbursements of the public money. As all the taxes raised from the people, as well as revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that congress should possess the power to decide how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. . . .” 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858).
The obvious practical consideration cited by Justice Story for adherence to the requirement of the Clause is the necessity, existing now as much as at the time the Constitution was ratified, of preventing fraud and corruption. We have long ago accepted this ground as a reason that claims for estoppel cannot be entertained where public money is at stake, refusing to “introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself.” Lee, supra, at 370. But the Clause has a more fundamental and comprehensive purpose, of direct relevance to the case before us. It is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents or the individual pleas of litigants.
Extended to its logical conclusion, operation of estoppel against the Government in the context of payment of money from the Treasury could in fact render the Appropriations Clause a nullity. If agents of the Executive were able, by their unauthorized oral or written statements to citizens, to obligate the Treasury for the payment of funds, the control over public funds that the Clause reposes in Congress in effect could be transferred to the Executive. If, for example, the President or Executive Branch officials were displeased with a new restriction on benefits imposed by Congress to ease burdens on the fisc (such as the restriction imposed by the statutory change in this case) and sought to evade them, agency officials could advise citizens that the restrictions were inapplicable. Estoppel would give this advice the practical force of law, in violation of the Constitution.
It may be argued that a rule against estoppel could have the opposite result, that the Executive might frustrate congressional intent to appropriate benefits by instructing its agents to give claimants erroneous advice that would deprive them of the benefits. But Congress may always exercise its power to expand recoveries for those who rely on mistaken advice should it choose to do so. In numerous other contexts where Congress has been concerned at the possibility of significant detrimental reliance on the erroneous advice of Government agents, it has provided appropriate legislative relief. See, e. g., Federal Election Campaign Act of 1971, 2 U. S. C. §§ 437f and 438(e); Federal Trade Commission Act, 15 U. S. C. § 57b—4; Securities Act of 1933, 15 U. S. C. § 77s(a); Truth in Lending Act, 15 U. S. C. § 1640(f); Portal-to-Portal Act of 1947, 29 U. S. C. § 259; Employee Retirement Income Security Act of 1974, 29 U. S. C. § 1028; Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100-647, § 8018, 102 Stat. 3794.
One example is of particular relevance. In Schweiker v. Hansen, 450 U. S. 785 (1981), we rejected an estoppel claim made by a Social Security claimant who failed to file a timely written application for benefits as required by the relevant statute. Congress then addressed such situations in the Budget Reconciliation Act of 1989 by providing that for claims to old age, survivors, and disability insurance, and for supplemental security income:
“In any case in which it is determined to the satisfaction of the Secretary that an individual failed as of any date to apply for monthly insurance benefits under this title by reason of misinformation provided to such individual by any officer or employee of the Social Security Administration relating to such individual’s eligibility for benefits under this title, such individual shall be deemed to have applied for such benefits on the later of [the date on which the misinformation was given or the date upon which the applicant became eligible for benefits apart from the application requirement].” Pub. L. 101-239, § 10302, 103 Stat. 2481.
The equities are the same whether executive officials’ erroneous advice has the effect of frustrating congressional intent to withhold funds or to pay them. In the absence of estoppel for money claims, Congress has ready means to see that payments are made to those who rely on erroneous Government advice. Judicial adoption of estoppel based on agency misinformation would, on the other hand, vest authority in these agents that Congress would be powerless to constrain.
The provisions of the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346(b), 2671 et seq., also provide a strong indication of Congress’ general approach to claims based on governmental misconduct, and suggest that it has considered and rejected the possibility of an additional exercise of its appropriation power to fund claims similar to those advanced here. The FTCA provides authorization in certain circumstances for suits by citizens against the Federal Government for torts committed by Government agents. Yet the FTCA by its terms excludes both negligent and intentional misrepresentation claims from its coverage. See § 2680(h). The claim brought by respondent is in practical effect one for misrepresentation, despite the application of the “estoppel” label. We would be most hesitant to create a judicial doctrine of estoppel that would nullify a congressional decision against authorization of the same class of claims.
Indeed, it would be most anomalous for a judicial order to require a Government official, such as the officers of OPM, to make an extrastatutory payment of federal funds. It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. See 31 U. S. C. §§ 1341, 1350. If an executive officer on his own initiative had decided that, in fairness, respondent should receive benefits despite the statutory bar, the official would risk prosecution. That respondent now seeks a court order to effect the same result serves to highlight the weakness and novelty of his claim.
The whole history and practice with respect to claims against the United States reveals the impossibility of an estoppel claim for money in violation of a statute. Congress’ early practice was to adjudicate each individual money claim against the United States, on the ground that the Appropriations Clause forbade even a delegation of individual adjudicatory functions where payment of funds from the Treasury was involved. See W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, A History, 216 Ct. Cl. 1, 5 (1978). As the business of the Federal Legislature has grown, Congress has placed the individual adjudication of claims based on the Constitution, statutes, or contracts, or on specific authorizations of suit against the Government, with the Judiciary. See, e. g., the Tucker Act, 28 U. S. C. §§ 1346, 1491. But Congress has always reserved to itself the power to address claims of the very type presented by respondent, those founded not on any statutory authority, but upon the claim that “the equities and circumstances of a case create a moral obligation on the part of the Government to extend relief to an individual.” Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, Supplemental Rules of Procedure for Private Claims Bills, 101st Cong., 1st Sess., 2 (Comm. Print 1989).
In so-called “congressional reference” cases, Congress refers proposed private bills to the United States Claims Court for an initial determination of the merits of the claim, but retains final authority over the ultimate appropriation. See 28 U. S. C. §§ 1492, 2509(c). Congress continues to employ private legislation to provide remedies in individual cases of hardship. See, e. g., Priv. L. 99-3, 100 Stat. 4314, and 131 Cong. Rec. 9675 (1985) (waiving statutory deadline under 5 U. S. C. § 8337(d) where petitioner failed to make timely application due to misinformation of Government personnel officer); Priv. L. 100-37, 102 Stat. 4860, and H. R. Rep. No. 291, 100th Cong., 1st Sess. (1987) (awarding funds lost by servicemen who joined wrong retirement plan in reliance on erroneous advice). Where sympathetic facts arise, cf. post, at 435-436 (Stevens, J., concurring in judgment), these examples show the means by which those facts can be addressed. In short, respondent asks us to create by judicial innovation an authority over funds that is assigned by the Constitution to Congress alone, and that Congress has not seen fit to delegate.
Congress has, of course, made a general appropriation of funds to pay judgments against the United States rendered under its various authorizations for suits against the Government, such as the Tucker Act and the FTCA. See 31 U. S. C. § 1304. But respondent’s claim for relief does not arise under any of these provisions. Rather, he sought and obtained an order of enrollment in the disability annuity plan, 5 U. S. C. § 8337, in direct violation of that plan’s requirements. See 862 F. 2d, at 301 (remanding respondent’s case to the MSPB “with instructions to direct the agency to issue the withheld disability benefits to Mr. Richmond”).
The general appropriation for payment of judgments, in any event, does not create an all-purpose fund for judicial disbursement. A law that identifies the source of funds is not to be confused with the conditions prescribed for their payment. Rather, funds may be paid out only on the basis of a judgment based on a substantive right to compensation based on the express terms of a specific statute. This principle is set forth in our leading case on jurisdiction over claims against the Government, United States v. Testan, 424 U. S. 392 (1976). As stated in Justice Blackmun’s opinion for the Court:
“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim—whether it be the Constitution, a statute, or a regulation—does not create a cause of action for money damages unless . . . that basis ‘in itself. . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” Id., at 401-402.
Given this rule, as well as our many precedents establishing that authorizations for suits against the Government must be strictly construed in its favor, see, e. g., Library of Congress v. Shaw, 478 U. S. 310, 318 (1986); McMahon v. United States, 342 U. S. 25, 27 (1951), we cannot accept the suggestion, post, at 438-440 (Marshall, J., dissenting), that the terms of a statute should be ignored based on the facts of individual cases. Here the relevant statute by its terms excludes respondent’s claim, and his remedy must lie with Congress.
Respondent would have us ignore these obstacles on the ground that estoppel against the Government would have beneficial effects. But we are unwilling to “tamper with these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy.” Testan, supra, at 400. And respondent’s attempts to justify estoppel on grounds of public policy are suspect on their own terms. Even short of collusion by individual officers or improper executive attempts to frustrate legislative policy, acceptance of estoppel claims for Government funds could have pernicious effects. It ignores reality to expect that the Government will be able to “secure perfect performance from its hundreds of thousands of employees scattered throughout the continent.” Hansen v. Harris, 619 F. 2d 942, 964 (CA2 1980) (Friendly, J., dissenting), rev’d sub nom. Schweiker v. Hansen, 450 U. S. 785 (1981). To open the door to estoppel claims would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc. Even if most claims were rejected in the end, the burden of defending such estoppel claims would itself be substantial.
Also questionable is the suggestion that if the Government is not bound by its agents’ statements, then citizens will not trust them and will instead seek private advice from lawyers, accountants, and others, creating wasteful expenses. Although mistakes occur, we may assume with confidence that Government agents attempt conscientious performance of their duties and in most cases provide free and valuable information to those who seek advice about Government programs. A rule of estoppel might create not more reliable advice, but less advice. See Hansen, supra, at 788-789, and n. 5. The natural consequence of a rule that made the Government liable for the statements of its agents would be a decision to cut back and impose strict controls upon Government provision of information in order to limit liability. Not only would valuable informational programs be lost to the public, but the greatest impact of this loss would fall on those of limited means, who can least afford the alternative of private advice. See Braunstein, In Defense of a Traditional Immunity—Toward an Economic Rationale for Not Estopping the Government, 14 Rutgers L. J. 1 (1982). The inevitable fact of occasional individual hardship cannot undermine the interest of the citizenry as a whole in the ready availability of Government information. The rationale of the Appropriations Clause is that if individual hardships are to be remedied by payment of Government funds, it must be at the instance of Congress.
Respondent points to no authority in precedent or history for the type of claim he advances today. Whether there are any extreme circumstances that might support estoppel in a case not involving payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that this Court has never upheld an assertion of estoppel against the Government by a claimant seeking public funds. In this context there can be no estoppel, for courts cannot estop the Constitution. The judgment of the Court of Appeals is
Reversed.
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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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"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"
] |
[
73
] |
ZAUDERER v. OFFICE OF DISCIPLINARY COUNSEL OF THE SUPREME COURT OF OHIO
No. 83-2166.
Argued January 7, 1985
Decided May 28, 1985
White, J., delivered the opinion of the Court, in which Blackmun and Stevens, JJ., joined; in Parts I, II, III, and IV of which Brennan and Marshall, JJ., joined; and in Parts I, II, V, and VI of which Burger, C. J., and Rehnquist and O’Connor, JJ., joined. Brennan J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Marshall, J., joined, post, p. 656. O’Connor, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Burger, C. J., and Rehnquist, J., joined, post, p. 673. Powell, J., took no part in the decision of the case.
Alan B. Morrison argued the cause for appellant. With him on the briefs were David C. Vladeck and David K. Frank.
H. Bartow Farr III argued the cause for appellee. On the brief were Angelo J. Gagliardo and Mark H. Aultman.
Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Bruce Campbell and Charles S. Sims; and for A. H. Robins Co. by E. Barrett Pretty man, Jr.
Justice White
delivered the opinion of the Court.
Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J., 455 U. S. 191 (1982); In re Primus, 436 U. S. 412 (1978); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978); Bates v. State Bar of Arizona, 433 U. S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements.
> — I
Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients’ “[f]ull legal fee [would be] refunded if [they were] convicted of DRUNK DRIVING.” The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad.
Appellant’s second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Daikon Shield Intrauterine Device. The advertisement featured a line drawing of the Daikon Shield accompanied by the question, “DID YOU USE THIS IUD?” The advertisement then related the following information:
“The Daikon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield’s manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients.”
The ad concluded with the name of appellant’s law firm, its address, and a phone number that the reader might call for “free information.”
The advertisement was successful in attracting clients: appellant received well over 200 inquiries regarding the advertisement, and he initiated lawsuits on behalf of 106 of the women who contacted him as a result of the advertisement. The ad, however, also aroused the interest of the Office of Disciplinary Counsel. On July 29, 1982, the Office filed a complaint against appellant charging him with a number of disciplinary violations arising out of both the drunken driving and Daikon Shield advertisements.
The complaint, as subsequently amended, alleged that the drunken driving ad violated Ohio Disciplinary Rule 2-101(A) in that it was “false, fraudulent, misleading, and deceptive to the public” because it offered representation on a contingent-fee basis in a criminal case — an offer that could not be carried out under Disciplinary Rule 2-106(C). With respect to the Daikon Shield advertisement, the complaint alleged that in running the ad and accepting employment by women responding to it, appellant had violated the following Disciplinary Rules: DR 2-101(B), which prohibits the use of illustrations in advertisements run by attorneys, requires that ads by attorneys be “dignified,” and limits the information that may be included in such ads to a list of 20 items; DR 2-103(A), which prohibits an attorney from “recommending] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer”; and DR 2-104(A), which provides (with certain exceptions not applicable here) that “[a] lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice.”
The complaint also alleged that the advertisement violated DR 2—101(B)(15), which provides that any advertisement that mentions contingent-fee rates must “disclos[e] whether percentages are computed before or after deduction of court costs and expenses,” and that the ad’s failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement “deceptive” in violation of DR 2-101(A). The complaint did not allege that the Daikon Shield advertisement was false or deceptive in any respect other than its omission of information relating to the contingent-fee arrangement; indeed, the Office of Disciplinary Counsel stipulated that the information and advice regarding Daikon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Daikon Shield.
The charges against appellant were heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. Appellant’s primary defense to the charges against him was that Ohio’s rules restricting the content of advertising by attorneys were unconstitutional under this Court’s decisions in Bates v. State Bar of Arizona, 433 U. S. 350 (1977), and In re R. M. J., 455 U. S. 191 (1982). In support of his contention that the State had not provided justification for its rules sufficient to withstand the First Amendment scrutiny called for by those decisions, appellant proffered the testimony of expert witnesses that unfettered advertising by attorneys was economically beneficial and that appellant’s advertising in particular was socially valuable in that it served to inform members of the public of their legal rights and of the potential health hazards associated with the Daikon Shield. Appellant also put on the stand two of the women who had responded to his advertisements, both of whom testified that they would not have learned of their legal claims had it not been for appellant’s advertisement.
The panel found that appellant’s use of advertising had violated a number of Disciplinary Rules. The panel accepted the contention that the drunken driving advertisement was deceptive, but its reasoning differed from that of the Office of Disciplinary Counsel: the panel concluded that because the advertisement failed to mention the common practice of plea bargaining in drunken driving cases, it might be deceptive to potential clients who would be unaware of the likelihood that they would both be found guilty (of a lesser offense) and be liable for attorney’s fees (because they had not been convicted of drunken driving). The panel also found that the use of an illustration in appellant’s Daikon Shield advertisement violated DR 2-101(B), that the ad’s failure to disclose the client’s potential liability for costs even if her suit were unsuccessful violated both DR 2-101(A) and DR 2-101 (B)(15), that the advertisement constituted self-recommendation in violation of DR 2-103(A), and that appellant’s acceptance of offers of employment resulting from the advertisement violated DR 2-104(A).
The panel rejected appellant’s arguments that Ohio’s regulations regarding the content of attorney advertising were unconstitutional as applied to him. The panel noted that neither Bates nor In re R. M. J. had forbidden all regulation of attorney advertising and that both of those cases had involved advertising regulations substantially more restrictive than Ohio’s. The panel also relied heavily on Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), in which this Court upheld Ohio’s imposition of discipline on an attorney who had engaged in in-person solicitation. The panel apparently concluded that the interests served by the application of Ohio’s rules to advertising that contained legal advice and solicited clients to pursue a particular legal claim were as substantial as the interests at stake in Ohralik. Accordingly, the panel rejected appellant’s constitutional defenses and recommended that he be publicly reprimanded for his violations. The Board of Commissioners adopted the panel’s findings in full, but recommended the sanction of indefinite suspension from the practice of law rather than the more lenient punishment proposed by the panel.
The Supreme Court of Ohio, in turn, adopted the Board’s findings that appellant’s advertisements had violated the Disciplinary Rules specified by the hearing panel. 10 Ohio St. 3d 44, 461 N. E. 2d 883 (1984). The court also agreed with the Board that the application of Ohio’s rules to appellant’s advertisements did not offend the First Amendment. The court pointed out that Bates and In re R. M. J. permitted regulations designed to prevent the use of deceptive advertising and that R. M. J. had recognized that even non-deceptive advertising might be restricted if the restriction was narrowly designed to achieve a substantial state interest. The court held that disclosure requirements applicable to advertisements mentioning contingent-fee arrangements served the permissible goal of ensuring that potential clients were not misled regarding the terms of the arrangements. In addition, the court held, it was “allowable” to prevent attorneys from claiming expertise in particular fields of law in the absence of standards by which such claims might be assessed, and it was “reasonable” to preclude the use of illustrations in advertisements and to prevent attorneys from offering legal advice in their advertisements, although the court did not specifically identify the interests served by these restrictions. Having determined that appellant’s advertisements violated Ohio’s Disciplinary Rules and that the First Amendment did not forbid the application of those rules to appellant, the court concluded that appellant’s conduct warranted a public reprimand.
Contending that Ohio’s Disciplinary Rules violate the First Amendment insofar as they authorize the State to discipline him for the content of his Daikon Shield advertisement, appellant filed this appeal. Appellant also claims that the manner in which he was disciplined for running his drunken driving advertisement violated his right to due process. We noted probable jurisdiction, 469 U. S. 813 (1984), and now affirm in part and reverse in part.
HH HH
There is no longer any room to doubt that what has come to be known as “commercial speech” is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded “noncommercial speech.” Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983); InreR. M. J455 U. S. 191 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 (1980). More subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech, but it is clear enough that the speech at issue in this case — advertising pure and simple— falls within those bounds. Our commercial speech doctrine rests heavily on “the ‘common-sense’ distinction between speech proposing a commercial transaction. . . and other varieties of speech,” Ohralik v. Ohio State Bar Assn., supra, at 455-456, and appellant’s advertisements undeniably propose a commercial transaction. Whatever else the category of commercial speech may encompass, see Central Hudson Gas & Electric Co. v. Public Service Comm’n of New York, supra, it must include appellant’s advertisements.
Our general approach to restrictions on commercial speech is also by now well settled. The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U. S. 1 (1979), or that proposes an illegal transaction, see Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376 (1973). Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Central Hudson Gas & Electric, supra, at 566. Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on price advertising by attorneys and rules preventing attorneys from using nondeceptive terminology to describe their fields of practice are impermissible, see Bates v. State Bar of Arizona, 433 U. S. 350 (1977); In re R. M. J., supra, but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible, see Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978). To resolve this appeal, we must apply the teachings of these cases to three separate forms of regulation Ohio has imposed on advertising by its attorneys: prohibitions on soliciting legal business through advertisements containing advice and information regarding specific legal problems; restrictions on the use of illustrations in advertising by lawyers; and disclosure requirements relating to the terms of contingent fees.
I — I I — I
We turn first to the Ohio Supreme Court’s finding that appellant’s Daikon Shield advertisement (and his acceptance of employment resulting from it) ran afoul of the rules against self-recommendation and accepting employment resulting from unsolicited legal advice. Because all advertising is at least implicitly a plea for its audience’s custom, a broad reading of the rules applied by the Ohio court (and particularly the rule against self-recommendation) might suggest that they forbid all advertising by attorneys — a result obviously not in keeping with our decisions in Bates and In re R. M. J. But the Ohio court did not purport to give its rules such a broad reading: it held only that the rules forbade soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem.
The interest served by the application of the Ohio self-recommendation and solicitation rules to appellant’s advertisement is not apparent from a reading of the opinions of the Ohio Supreme Court and its Board of Commissioners. The advertisement’s information and advice concerning the Daikon Shield were, as the Office of Disciplinary Counsel stipulated, neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that lawsuits alleging injuries caused by the Daikon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in other such litigation. Rather, the advertisement reported the indisputable fact that the Daikon Shield has spawned an impressive number of lawsuits and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred— advice that seems completely unobjectionable in light of the trend in many States toward a “discovery rule” for determining when a cause of action for latent injury or disease accrues. The State’s power to prohibit advertising that is “inherently misleading,” see In re R. M. J., 455 U. S., at 203, thus cannot justify Ohio’s decision to discipline appellant for running advertising geared to persons with a specific legal problem.
Because appellant’s statements regarding the Daikon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest. The extensive citations in the opinion of the Board of Commissioners to our opinion in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), suggest that the Board believed that the application of the rules to appellant’s advertising served the same interests that this Court found sufficient to justify the ban on in-person solicitation at issue in Ohralik. We cannot agree. Our decision in Ohralik was largely grounded on the substantial differences between face-to-face solicitation and the advertising we had held permissible in Bates. In-person solicitation by a lawyer, we concluded, was a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. Ohralik, 436 U. S., at 464-465. In addition, we noted that in-person solicitation presents unique regulatory difficulties because it is “not visible or otherwise open to public scrutiny.” Id., at 466. These unique features of in-person solicitation by lawyers, we held, justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain, but we were careful to point out that “in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services.” Id., at 455.
It is apparent that the concerns that moved the Court in Ohralik are not present here. Although some sensitive souls may have found appellant’s advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant’s advertisement — and print advertising generally — poses much less risk of overreaching or undue influence. Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. In addition, a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation. Thus, a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in Ohralik cannot justify the discipline imposed on appellant for the content of his advertisement.
Nor does the traditional justification for restraints on solicitation — the fear that lawyers will “stir up litigation”— justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness. “[A]s a litigant,” Judge Learned Hand once observed, “I should dread a lawsuit beyond almost anything else short of sickness and death.” L. Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in 3 Association of the Bar of the City of New York, Lectures on Legal Topics 89, 105 (1926).
But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: “we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action.” Bates v. State Bar of Arizona, 433 U. S., at 376. That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits.
The State does not, however, argue that the encouragement of litigation is inherently evil, nor does it assert an interest in discouraging the particular form of litigation that appellant’s advertising solicited. Rather, the State’s position is that although appellant’s advertising may itself have been harmless — may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware — the State’s prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants. Advertising by attorneys, the State claims, presents regulatory difficulties that are different in kind from those presented by other forms of advertising. Whereas statements about most consumer products are subject to verification, the indeterminacy of statements about law makes it impractical if not impossible to weed out accurate statements from those that are false or misleading. A prophylactic rule is therefore'essential if the State is to vindicate its substantial interest in ensuring that its citizens are not encouraged to engage in litigation by statements that are at best ambiguous and at worst outright false.
The State’s argument that it may apply a prophylactic rule to punish appellant notwithstanding that his particular advertisement has none of the vices that allegedly justify the rule is in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State’s purposes. See Central Hudson Gas & Electric, 447 U. S., at 565, 569-571. Indeed, in In re R.M. J. we went so far as to state that “the States may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” 455 U. S., at 203. The State’s argument, then, must be that this dictum is incorrect — that there are some circumstances in which a prophylactic rule is the least restrictive possible means of achieving a substantial governmental interest. Cf. Ohralik v. Ohio State Bar Assn., 436 U. S., at 467.
We need not, however, address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substantial governmental interest. The State’s contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the problems presented by advertising generally is unpersuasive.
The State’s argument proceeds from the premise that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are truthful and helpful, much more so than is the case with other goods or services. This notion is belied by the facts before us: appellant’s statements regarding Daikon Shield litigation were in fact easily verifiable and completely accurate. Nor is it true that distinguishing deceptive from nondeceptive claims in advertising involving products other than legal services is a comparatively simple and straightforward process. A brief survey of the body of case law that has developed as a result of the Federal Trade Commission’s efforts to carry out its mandate under § 5 of the Federal Trade Commission Act to eliminate “unfair or deceptive acts or practices in . . . commerce,” 15 U. S. C. § 45(a)(1), reveals that distinguishing deceptive from nondeceptive advertising in virtually any field of commerce may require resolution of exceedingly complex and technical factual issues and the consideration of nice questions of semantics. See, e. g., Warner-Lambert Co. v. FTC, 183 U. S. App. D. C. 230, 562 F. 2d 749 (1977); National Comm’n on Egg Nutrition v. FTC, 570 F. 2d 157 (CA7 1977). In short, assessment of the validity of legal advice and information contained in attorneys’ advertising is not necessarily a matter of great complexity; nor is assessing the accuracy or capacity to deceive of other forms of advertising the simple process the State makes it out to be. The qualitative distinction the State has attempted to draw eludes us.
Were we to accept the State’s argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful. The value of the information presented in appellant’s advertising is no less than that contained in other forms of advertising — indeed, insofar as appellant’s advertising tended to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it was undoubtedly more valuable than many other forms of advertising. Prophylactic restraints that would be unacceptable as applied to commercial advertising generally are therefore equally unacceptable as applied to appellant’s advertising. An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients.
> I — I
The application of DR 2-101(B)’s restriction on illustrations in advertising by lawyers to appellant’s advertisement fails for much the same reasons as does the application of the self-recommendation and solicitation rules. The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser’s message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test. Because the illustration for which appellant was disciplined is an accurate representation of the Daikon Shield and has no features that are likely to deceive, mislead, or confuse the reader, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means.
The text of DR 2-101(B) strongly suggests that the purpose of the restriction on the use of illustrations is to ensure that attorneys advertise “in a dignified manner.” There is, of course, no suggestion that the illustration actually used by appellant was undignified; thus, it is difficult to see how the application of the rule to appellant in this case directly advances the State’s interest in preserving the dignity of attorneys. More fundamentally, although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. As we held in Carey v. Population Services International, 431 U. S. 678, 701 (1977), the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity.
In its arguments before this Court, the State has asserted that the restriction on illustrations serves a somewhat different purpose, akin to that supposedly served by the prohibition on the offering of legal advice in advertising. The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, once again, the State’s argument is that its purposes can only be served through a prophylactic rule.
We are not convinced. The State’s arguments amount to little more than unsupported assertions: nowhere does the State cite any evidence or authority of any kind for its contention that the potential abuses associated with the use of illustrations in attorneys’ advertising cannot be combated by any means short of a blanket ban. Moreover, none of the State’s arguments establish that there are particular evils associated with the use of illustrations in attorneys’ advertisements. Indeed, because it is probably rare that decisions regarding consumption of legal services are based on a consumer’s assumptions about qualities of the product that can be represented visually, illustrations in lawyer’s advertisements will probably be less likely to lend themselves to material misrepresentations than illustrations in other forms of advertising.
Thus, acceptance of the State’s argument would be tantamount to adoption of the principle that a State may prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative. But as we stated above, broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burdensome that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. The experience of the FTC is, again, instructive. Although that agency has not found the elimination of deceptive uses of visual media in advertising to be a simple task, neither has it found the task an impossible one: in many instances, the agency has succeeded in identifying and suppressing visually deceptive advertising. See, e. g., FTC v. Colgate-Palmolive Co., 380 U. S. 374 (1965). See generally E. Kintner, A Primer on the Law of Deceptive Practices 158-173 (2d ed. 1978). Given the possibility of policing the use of illustrations in advertisements on a case-by-case basis, the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration.
V
Appellant contends that assessing the validity of the Ohio Supreme Court’s decision to discipline him for his failure to include in the Daikon Shield advertisement the information that clients might be liable for significant litigation costs even if their lawsuits were unsuccessful entails precisely the same inquiry as determining the validity of the restrictions on advertising content discussed above. In other words, he suggests that the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive or that the disclosure requirement serves some substantial governmental interest other than preventing deception; moreover, he contends that the State must establish that the disclosure requirement directly advances the relevant governmental interest and that it constitutes the least restrictive means of doing so. Not surprisingly, appellant claims that the State has failed to muster substantial eviden-tiary support for any of the findings required to support the restriction.
Appellant, however, overlooks material differences between disclosure requirements and outright prohibitions on speech. In requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present. We have, to be sure, held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech. See, e. g., Wooley v. Maynard, 430 U. S. 705 (1977); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Indeed, in West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), the Court went so far as to state that “involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.” Id., at 633.
But the interests at stake in this case are not of the same order as those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 319 U. S., at 642. The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), appellant’s constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, “warning[s] or disclaimer^] might be appropriately required ... in order to dissipate the possibility of consumer confusion or deception.” In re R. M. J., 455 U. S., at 201. Accord, Central Hudson Gas & Electric, 447 U. S., at 565; Bates v. State Bar of Arizona, 433 U. S., at 384; Virginia Pharmacy Bd., supra, at 772, n. 24.
We do not suggest that disclosure requirements do not implicate the advertiser’s First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.
The State’s application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant’s advertisement informed the public that “if there is no recovery, no legal fees are owed by our clients.” The advertisement makes no mention of the distinction between “legal fees” and “costs,” and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as “fees” and “costs” — terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require the State to “conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead.” FTC v. Colgate-Palmolive Co., 380 U. S., at 391-392. The State’s position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client’s liability for costs is reasonable enough to support a requirement that information regarding the client’s liability for costs be disclosed.
<1 I — I
Finally, we address appellant’s argument that he was denied procedural due process by the manner in which discipline was imposed on him in connection with his drunken driving advertisement. Appellant’s contention is that the theory relied on by the Ohio Supreme Court and its Board of Commissioners as to how the advertisement was deceptive was different from the theory asserted by the Office of Disciplinary Counsel in its complaint. We cannot agree that this discrepancy violated the constitutional guarantee of due process.
Under the law of Ohio, bar discipline is the responsibility of the Ohio Supreme Court. Ohio Const., Art. IV, § 2(B)(1)(g). The Board of Commissioners on Grievances and Discipline formally serves only as a body that recommends discipline to the Supreme Court; it has no authority to impose discipline itself. See Govt. Bar Rule V(2), (16)-(20). That the Board of Commissioners chose to make its recommendation of discipline on the basis of reasoning different from that of the Office of Disciplinary Counsel is of little moment: what is important is that the Board’s recommendations put appellant on notice of the charges he had to answer to the satisfaction of the Supreme Court of Ohio. Appellant does not contend that he was afforded no opportunity to respond to the Board’s recommendation; indeed, the Ohio rules appear to provide ample opportunity for response to Board recommendations, and it appears that appellant availed himself of that opportunity. The notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process.
VII
The Supreme Court of Ohio issued a public reprimand incorporating by reference its opinion finding that appellant had violated Disciplinary Rules 2-101(A), 2-101(B), 2-101 (B)(15), 2-103(A), and 2-104(A). That judgment is affirmed to the extent that it is based on appellant’s advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Daikon Shield advertisement. But insofar as the reprimand was based on appellant’s use of an illustration in his advertisement in violation of DR 2-101(B) and his offer of legal advice in his advertisement in violation of DR 2-103(A) and 2-104(A), the judgment is reversed.
It is so ordered.
Justice Powell took no part in the decision of this case.
The advertisement notified the potential client that “[e]xpert witness (chemist) fees must be paid.” The only other information contained in the advertisement was the name of appellant’s firm, its telephone number, and its address.
An intrauterine device (or IUD) is “a plastic or metal coil, spiral, or other shape, about 25 mm long, that is inserted into the cavity of the womb to prevent conception. Its exact mode of action is unknown but it is thought to interfere with implantation of the embryo.” Urdang Dictionary of Current Medical Terms 220 (1981). The Daikon Shield is a variety of IUD that was marketed in the early 1970’s. Because of evidence that the Shield was associated with a variety of health problems among users, the Shield was withdrawn from the market in 1974. In 1980, the manufacturer advised physicians that they should remove the Shield from any woman still using it, and in 1983, the Food and Drug Administration followed suit. In 1984, the manufacturer instituted a mass-media campaign urging women to have the device removed. See Robins Mounts Drive to Settle Daikon Suits, National Law Journal, Dec. 24, 1984, p. 1, col. 3.
DR 2-101(A) provides that “[a] lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.”
Disciplinary Rule 2-101(B), in its entirety, provides:
“In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, in print media or over radio or television. Print media includes only regularly published newspapers, magazines and other periodicals, classified telephone directories, city, county and suburban directories, law directories and law lists. The information disclosed by the lawyer in such publication or broadcast shall comply with DR 2-101(A) [see n. 3, supra] and be presented in a dignified manner without the use of drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics or the use of pictures, except for the use of pictures of the advertising lawyer, or the use of a portrayal of the scales of justice. Only the following information may be published or broadcast:
“(1) Name, including name of law firm and names of professional associates, addresses and telephone numbers;
“(2) One or more fields of law in which the lawyer or law firm is available to practice, but may not include a statement that the practice is limited to or concentrated in one or more fields of law or that the lawyer or law firm specializes in a particular field of law unless authorized under DR 2 — 105;
“(3) Age;
“(4) Date of admission to the bar of a state, or federal court or administrative board or agency;
“(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;
“(6) Public or quasi-public offices;
“(7) Military service;
“(8) Published legal authorships;
“(9) Holding scientific, technical and professional licenses, and memberships in such associations or societies;
“(10) Foreign language ability;
“(11) Whether credit cards or other credit arrangements are accepted;
“(12) Office and telephone answering service hours;
“(13) Fee for an initial consultation;
“(14) Availability upon request of a written schedule of fees or an estimate of the fee to be charged for specific services;
“(15) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of court costs and expenses;
“(16) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information;
“(17) Fixed fees for specific legal services;
“(18) Legal teaching positions, memberships, offices, committee assignments, and section memberships in bar associations;
“(19) Memberships and offices in legal fraternities and legal societies;
“(20) In law directories and law lists only, names and addresses of references, and, with their written consent, names of clients regularly represented.”
The panel did not find that the advertisement’s alleged lack of “dignity” or its inclusion of information not allowed by DR 2-101(B)(1)-(20) constituted an independent violation.
In its brief on the merits, appellee suggests that because appellant received only a public reprimand — the least severe discipline that may be imposed on an attorney who violates one of Ohio’s Disciplinary Rules — the judgment below must be affirmed if any one of the findings of a disciplinary violation is sustainable. We disagree. The reprimand imposed on appellant incorporated the opinion of the Supreme Court of Ohio as well as the report of the Board of Bar Commissioners. Thus, the reprimand constituted a public chastisement of appellant for each of the offenses specified. A reprimand that specified fewer infractions would be a different punishment and would be a lesser deterrent to future advertising.
Appellant’s advertising contains statements regarding the legal rights of persons injured by the Daikon Shield that, in another context, would be fully protected speech. That this is so does not alter the status of the advertisements as commercial speech:
“We have made clear that advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid.” Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 68 (1983) (footnote omitted).
In this ease, Ohio has placed no general restrictions on appellant’s right to publish facts or express opinions regarding Daikon Shield litigation; Ohio’s Disciplinary Rules prevent him only from conveying those facts and opinions in the form of advertisements of his services as an attorney.
In its brief on the merits, appellee Office of Disciplinary Counsel advances the surprising contention that the Court ought not permit appellant to raise his constitutional defenses to Ohio’s disciplinary proceedings. Ap-pellee’s argument apparently is that because appellant could have challenged the constitutionality of the rules in an action for a declaratory judgment in federal court, he was not entitled to violate them and raise their unconstitutionality defensively. This odd argument stands ordinary jurisprudential principles on their heads. We have often emphasized that, in our federal system, it is preferable that constitutional attacks on state statutes be raised defensively in state-court proceedings rather than in proceedings initiated in federal court. See, e. g., Younger v. Harris, 401 U. S. 37 (1971). This principle is as applicable to attorney disciplinary proceedings as it is to criminal cases. Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 (1982). Accordingly, it was perfectly appropriate for appellant to refrain from an anticipatory challenge to Ohio’s rules and to trust that any proceedings the State might initiate would provide a forum in which he could assert his First Amendment rights.
The absence from appellant’s advertising of any claims of expertise or promises relating to the quality of appellant’s services renders the Ohio Supreme Court’s statement that “an allowable restriction for lawyer advertising is that of asserted expertise” beside the point. Appellant stated only that he had represented other women in Daikon Shield litigation — a statement of fact not in itself inaccurate. Although our decisions have left open the possibility that States may prevent attorneys from making non-verifiable claims regarding the quality of their services, see Bates v. State Bar of Arizona, 438 U. S. 350; 366 (1977), they do not permit a State to prevent an attorney from making accurate statements of fact regarding the nature of his practice merely because it is possible that some readers will infer that he has some expertise in those areas. See In re R. M. J., 455 U. S. 191, 203-205 (1982).
By 1979, it was “estimated that 2500 claims [had] been made ... for injuries allegedly caused by [the Daikon Shield].” Van Dyke, The Daikon Shield: A “Primer” in IUD Liability, 6 West. St. U. L. Rev. 1, 3, n. 7 (1978). By mid-1980, the number of lawsuits had risen to 4,000. Bamford, Daikon Shield Starts Losing in Court, 2 American Lawyer 31 (July 1980). By the end of 1984 it was reported that the manufacturer had settled or satisfied judgments in 6,289 cases and that over 3,600 cases were still pending. See Robins Mounts Drive to Settle Daikon Suits, National Law Journal, Dec. 24, 1984, p. 1, col. 3. Plaintiffs have succeeded in winning favorable settlements and jury verdicts against the Shield’s manufacturer. See, e. g., Worsham v. A. H. Robins Co., 734 F. 2d 676 (CA11 1984) (affirming jury verdict); Gardiner v. A. H. Robins Co., 747 F. 2d 1180 (CA8 1984) (noting settlement of cases).
In 1983, the Ohio Supreme Court explicitly adopted the rule that “[w]hen an injury does not manifest itself immediately, the cause of action arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he has been injured, whichever comes first.” O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84, 90, 447 N. E. 2d 727, 732.
The State’s argument may also rest in part on a suggestion that even completely accurate advice regarding the legal rights of the advertiser’s audience may lead some members of the audience to initiate meritless litigation against innocent defendants. To the extent that this is the State’s contention, it is unavailing. To be sure, some citizens, accurately informed of their legal rights, may file lawsuits that ultimately turn out not to be meritorious. But the State is not entitled to prejudge the merits of its citizens’ claims by choking off access to information that may be useful to its citizens in deciding whether to press those claims in court. As we observed in Bates v. State Bar of Arizona, 433 U. S., at 375, n. 31, if the State’s concern is with abuse of process, it can best achieve its aim by enforcing sanctions against vexatious litigation. In addition, there would be no impediment to a rule forbidding attorneys to use advertisements soliciting clients for nuisance suits — meritless claims filed solely to harass a defendant or coerce a settlement. Because a client has no legal right to file such a claim knowingly, advertisements designed to stir up such litigation may be forbidden because they propose an “illegal transaction.” See Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376 (1973).
The American Bar Association evidently shares the view that weeding out false or misleading advertising by attorneys from advertising that is accurate and nonmisleading is neither impractical nor unduly burdensome: the ABA’s new Model Rules of Professional Conduct eschew all regulation of the content of advertising that is not “false or misleading.” ABA Model Rule of Professional Conduct 7.2 (1988). A recent staff report of the Federal Trade Commission has also concluded that application of a “false or deceptive” standard to attorney advertising would not pose problems distinct from those presented by the regulation of advertising generally. See Federal Trade Commission Staff Report, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising 149-155 (1984).
We reject appellant’s contention that we should subject disclosure requirements to a strict “least restrictive means” analysis under which they must be struck down if there are other means by which the State’s purposes may be served. Although we have subjected outright prohibitions on speech to such analysis, all our discussions of restraints on commercial speech have recommended disclosure requirements as one of the acceptable less restrictive alternatives to actual suppression of speech. See, e. g., Central Hudson Gas & Electric, 447 U. S., at 565. Because the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed, we do not think it appropriate to strike down such requirements merely because other possible means by which the State might achieve its purposes can be hypothesized. Similarly, we are unpersuaded by appellant’s argument that a disclosure requirement is subject to attack if it is “under-inclusive” — that is, if it does not get at all facets of the problem it is designed to ameliorate. As a general matter, governments are entitled to attack problems piecemeal, save where their policies implicate rights so fundamental that strict scrutiny must be applied. See, e. g., Zablocki v. Redhail, 434 U. S. 374, 390 (1978). The right of a commercial speaker not to divulge accurate information regarding his services is not such a fundamental right.
Appellant suggests that the disclosures required by the Ohio Supreme Court would in fact be unduly burdensome and would tend to chill advertising of contingent-fee arrangements. Evaluation of this claim is somewhat difficult in light of the Ohio court’s failure to specify precisely what disclosures were required. The gist of the report of the Board of Commissioners on this point, however, was that appellant’s advertising was potentially deceptive because it “left standing the impression that if there were no recovery, the client would owe nothing.” App. to Juris. Statement 14a. Accordingly, the report at a minimum suggests that an attorney advertising a contingent fee must disclose that a client may be liable for costs even if the lawsuit is unsuccessful. The report and the opinion of the Ohio Supreme Court also suggest that the attorney’s contingent-fee rate must be disclosed, see ibid.; 10 Ohio St. 3d 44, 48, 461 N. E. 2d 883, 886 (1984). Neither requirement seems intrinsically burdensome; and they certainly cannot be said to be unreasonable as applied to appellant, who included in his advertisement no information whatsoever regarding costs and fee rates. This case does not provide any factual basis for finding that Ohio’s disclosure requirements are unduly burdensome.
The vagueness of the Ohio Supreme Court’s opinion regarding precisely what an attorney must disclose in an advertisement mentioning a contingent fee is, however, unfortunate. It is also worth noting that DR 2-101(B)(15), the only explicit reference in the Ohio rules to a disclosure requirement involving contingent fees, does not on its face require any disclosures except when an advertisement mentions contingent-fee rates— which appellant’s advertisement did not do. Because “[a] relevant inquiry in appraising a decision to disbar is whether the attorney stricken from the rolls can be deemed to have been on notice that the courts would condemn the conduct for which he was removed,” In re Ruffalo, 390 U. S. 544, 554 (1968) (White, J., concurring in result), it may well be that for Ohio actually to disbar an attorney on the basis of its' disclosure requirements as they have been worked out to this point would raise significant due process concerns. Given the reasonableness of the decision that appellant’s omissions created the potential for deception of the public, however, we see no infirmity in a decision to issue a public reprimand on the basis of those omissions. And, of course, were Ohio to articulate its disclosure rules regarding contingent fees in such a way that they provided a sure guide to the advertising attorney, neither the Due Process Clause nor the First Amendment would preclude disbarment as a penalty for the violation of those rules.
See supra, at 634.
Appellant suggests that he was prejudiced by his inability to present evidence relating to the Board’s factual conclusion that it was a common practice for persons charged with drunken driving to plead guilty to lesser offenses. If this were in fact the case, appellant’s due process objection might be more forceful. But appellant does not — and probably cannot— seriously dispute that guilty pleas to lesser offenses are common in drunken driving eases, nor does he argue that he was precluded from arguing before the Ohio Supreme Court that it was improper for the Board of Commissioners to take judicial notice of the prevalence of such pleas. Under these circumstances, we see no violation of due process in the Ohio Supreme Court’s acceptance of the Board’s factual conclusions. See American Trucking Assns., Inc. v. Frisco Transportation Co., 358 U. S. 133, 144 (1958).
Appellant’s reliance on In re Ruffalo, 390 U. S. 544 (1968), is misplaced. Although the majority in that case did hold that a change in the charges against the petitioner during proceedings before the Ohio Board of Commissioners violated due process, the feature of that case that was particularly offensive was that the change was such that the very evidence put on by the petitioner in defense of the original charges became, under the revised charges, inculpatory. Thus, in that case, the original charges functioned as a “trap,” id., at 551, for they lulled the petitioner into presenting evidence that “irrevocably assur[ed] his disbarment under charges not yet made.” Id., at 551, n. 4. In this case, the variance between the theory of the Office of Disciplinary Counsel and the Board of Commissioners had no such prejudicial effect on appellant.
|
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
] |
KOLSTAD v. AMERICAN DENTAL ASSOCIATION
No. 98-208.
Argued March 1, 1999 —
Decided June 22, 1999
O’Connor, J., delivered the opinion of the Court, Part I of which was unanimous, Part II-A of which was joined by Stevens, Soalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., and Part II-B of which was joined by Rehnquist, C. J., and Scaiia, Kennedy, and Thomas, JJ. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 547. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 547.
Eric Schnapper argued the cause for petitioner. With him on the briefs was Joseph A. Yablonski.
Solicitor General Waxman argued the cause for the United States et al. as amici curiae in support of petitioner. With him on the brief were Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Dennis J. Dimsey, Gregory B. Friel, G. Gregory Stewart, Philip B. Sklover, and Robert J. Gregory.
Raymond C. Fay argued the cause for respondent. With him on the brief were Stephen D. Shawe, Bruce S. Harrison, and Peter M. Sfikas.
Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Jeffrey L. Needle and Mark S. Mandell; for the National Employment Lawyers Association et al. by Janice Goodman, Paula A Braniner, and Peter S. Rukin; and for the Rutherford Institute by John W. Whitehead and Steven H. Aden.
Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for the National Retail Federation by Robert P. Joy; for the Society for Human Resource Management by D. Gregory Valenza and Roger S. Kaplan; and for the Washington Legal Foundation by Michael J. Connolly, David A. Lawrence, Clifford J. Scharman, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Timothy B. Dyk, Daniel H. Bromberg, John B. Kennedy, Stephen A Bokat, and Robin S. Conrad; and for the Lawyers’ Committee for Civil Rights Under Law et al. by James M. Finberg, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A Ferrante, Dennis C. Hayes, Willie Abrams, Antonia Hernandez, Patricia Mendoza, Judith L. Lichtman, Donna R. Lenhoff, Judith C. Appelbaum, Martha F. Davis, Yolanda S. Wu, and Steven R. Shapiro.
Justice O’Connor
delivered the opinion of the Court.
Under the terms of the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071, punitive damages are available in claims under Title VII of the Civil Rights Act of 1964 (Title VII), 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (1994 ed. and Supp. III), and the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981a(b)(1). We here consider the circumstances under which punitive damages may be awarded in an action under Title VIL
I
A
In September 1992, Jack O’Donnell announced that he would be retiring as the Director of Legislation and Legislative Policy and Director of the Council on Government Affairs and Federal Dental Services for respondent, American Dental Association (respondent or Association). Petitioner, Carole Kolstad, was employed with O’Donnell in respondent’s Washington, D. C., office, where she was serving as respondent’s Director of Federal Agency Relations. When she learned of O’Donnell’s retirement, she expressed an interest in filling his position. Also interested in replacing O’Donnell was Tom Spangler, another employee in respondent’s Washington office. At this time, Spangler was serving as the Association’s Legislative Counsel, a position that involved him in respondent’s legislative lobbying efforts. Both petitioner and Spangler had worked directly with O’Donnell, and both had received “distinguished” performance ratings by the acting head of the Washington office, Leonard Wheat.
Both petitioner and Spangler formally applied for O’Donnell’s position, and Wheat requested that Dr. William Allen, then serving as respondent’s Executive Director in the Association’s Chicago office, make the ultimate promotion decision. After interviewing both petitioner and Spangler, Wheat recommended that Allen select Spangler for O’Donnell’s post. Allen notified petitioner in December 1992 that he had, in fact, selected Spangler to serve as O’Donnell’s replacement. Petitioner’s challenge to this employment decision forms the basis of the instant action.
B
After first exhausting her avenues for relief before the Equal Employment Opportunity Commission, petitioner filed suit against the Association in Federal District Court, alleging that respondent’s decision to promote Spangler was an act of employment discrimination proscribed under Title VII. In petitioner’s view, the entire selection process was a sham. Tr. 8 (Oct. 26, 1995) (closing argument for plaintiff’s counsel). Counsel for petitioner urged the jury to conclude that Allen’s stated reasons for selecting Spangler were pretext for gender discrimination, id., at 19, 24, and that Spangler had been chosen for the position before the formal selection process began, id., at 19. Among the evidence offered in support of this view, there was testimony to the effect that Allen modified the description of O’Donnell’s post to track aspects of the job description used to hire Spangler. See id., at 132-136 (Oct. 19, 1995) (testimony of Cindy Simms); id., at 48-51 (Oct. 20, 1995) (testimony of Leonard Wheat). In petitioner’s view, this “preselection” procedure suggested an intent by the Association to discriminate on the basis of sex. Id., at 24. Petitioner also introduced testimony at trial that Wheat told sexually offensive jokes and that he had referred to certain prominent professional women in derogatory terms. See id., at 120-124 (Oct. 18, 1995) (testimony of Carole Kolstad). Moreover, Wheat allegedly refused to meet with petitioner for several weeks regarding her interest in O’Donnell’s position. See id., at 112-113. Petitioner testified, in fact, that she had historically experienced difficulty gaining access to meet with Wheat. See id., at 114-115. Allen, for his part, testified that he conducted informal meetings regarding O’Donnell’s position with both petitioner and Spangler, see id., at 148 (Oct. 23, 1995), although petitioner stated that Allen did not discuss the position with her, see id., at 127-128 (Oct. 18, 1995).
The District Court denied petitioner’s request for a jury instruction on punitive damages. The jury concluded that respondent had discriminated against petitioner on the basis of sex and awarded her backpay totaling $52,718. App. 109-110. Although the District Court subsequently denied respondent’s motion for judgment as a matter of law on the issue of liability, the court made clear that it had not been persuaded that respondent had selected Spangler over petitioner on the basis of sex, and the court denied petitioner’s requests for reinstatement and for attorney’s fees. 912 F. Supp. 13, 15 (DC 1996).
Petitioner appealed from the District Court’s decisions denying; her requested jury instruction on punitive damages and her request for reinstatement and attorney’s fees. Respondent cross-appealed from the denial of its motion for judgment as a matter of law. In a split decision, a panel of the Court of Appeals for the District of Columbia reversed the District Court’s decision denying petitioner’s request for an instruction on punitive damages. 108 F. 3d 1431, 1435 (1997). In so doing, the court rejected respondent’s claim that punitive damages are available under Title VII only in “‘extraordinarily egregious cases.’” Id., at 1437. The panel reasoned that, “because ‘the state of mind necessary to trigger liability for the wrong is at least as culpable as that required to make punitive damages applicable,’ ” id., at 1438 (quoting Rowlett v. Anheuser-Busch, Inc., 832 F. 2d 194, 205 (CA1 1987)), the fact that the jury could reasonably have found intentional discrimination meant that the jury should have been permitted to consider punitive damages. The court noted, however, that not all cases involving intentional discrimination would support a punitive damages award. 108 F. 3d, at 1438. Such an award might be improper, the panel reasoned, in instances where the employer justifiably believes that intentional discrimination is permitted or where an employee engages in discrimination outside the scope of that employee’s authority. Id., at 1438-1439. Here, the court concluded, respondent “neither attempted to justify the use of sex in its promotion decision nor disavowed the actions of its agents.” Id., at 1439.
The Court of Appeals subsequently agreed to rehear the case en banc, limited to the punitive damages question. In a divided opinion, the court affirmed the decision of the District Court. 139 F. 3d 958 (1998). The en bane majority concluded that, “before the question of punitive damages can go to the jury, the evidence of the defendant’s culpability must exceed what is needed to show intentional discrimination.” Id., at 961. Based on the 1991 Act’s structure and legislative history, the court determined, specifically, that a defendant must be shown to have engaged in some “egregious” misconduct before the jury is permitted to consider a request for punitive damages. Id., at 965. Although the court declined to set out the “egregiousness” requirement in any detail, it concluded that petitioner failed to make the requisite showing in the instant case. Judge Randolph concurred, relying chiefly on § 1981a’s structure as evidence of a congressional intent to “limi[t] punitive damages to exceptional cases.” Id., at 970. Judge Tatel wrote in dissent for five judges, who agreed generally with the panel majority.
We granted certiorari, 525 U. S. 960 (1998), to resolve a conflict among the Federal Courts of Appeals concerning the circumstances under which a jury may consider a request for punitive damages under § 1981a(b)(1). Compare 139 F. 3d 958 (CADC 1998) (case below), with Luciano v. Olsten Corp., 110 F. 3d 210, 219-220 (CA2 1997) (rejecting contention that punitive damages require showing of “extraordinarily egregious” conduct).
II
A
Prior to 1991, only equitable relief, primarily backpay, was available to prevailing Title VII plaintiffs; the statute provided no authority for an award of punitive or compensatory damages. See Landgraf v. USI Film Products, 511 U. S. 244,252-253 (1994). With the passage of the 1991 Act, Congress provided for additional remedies, including punitive damages, for certain classes of Title VII and ADA violations.
The 1991 Act limits compensatory and punitive damages awards, however, to cases of "intentional discrimination”— that is, cases that do not rely on the “disparate impact” theory of discrimination. 42 U. S. C. § 1981a(a)(1). Section 1981a(b)(1) further qualifies the availability of punitive awards:
“A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” (Emphasis added.)
The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of eases involving intentional discrimination. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional discrimination, while § 1981a(b)(1) requires plaintiffs to make an additional “demonstration]” of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability — one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.
The Court of Appeals sought to give life to this two-tiered structure by limiting punitive awards to eases involving intentional discrimination of an “egregious” nature. We credit the en bane majority’s effort to effectuate congressional intent, but, in the end, we reject its conclusion that eligibility for punitive damages can only be described in terms of an employer’s “egregious” misconduct. The terms “malice” and “reckless” ultimately focus on the actor’s state of mind. See, e. g., Black’s Law Dictionary 956-957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton, Law of Torts 212-214 (5th ed. 1984) (defining “willful,” “wanton,” and “reckless”). While egregious misconduct is evidence of the requisite mental state, see infra, at 538-589; Keeton, supra, at 213-214, § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind. Nor does the statute’s structure imply an independent role for “egregiousness” in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer’s state of mind is consistent with the 1991 Act’s distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well; compensatory awards are available only where the employer has engaged in “intentional discrimination.” § 1981a(a)(1) (emphasis added).
Moreover, § 1981a’s focus on the employer’s state of mind gives some effect to Congress’ apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with “malice or with reckless indifference to the [plaintiff’sJ federally protected rights.” § 1981a(b)(1) (emphasis added). The terms “malice” or “reckless indifference” pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.
We gain an understanding of the meaning of the terms “malice” and “reckless indifference,” as used in § 1981a, from this Court’s decision in Smith v. Wade, 461 U. S. 30 (1983). The parties, as well as both the en banc majority and dissent, recognize that Congress looked to the Court’s decision in Smith in adopting this language in § 1981a. See Tr. of Oral Arg. 28-29; Brief for Petitioner 24; 139 F. 3d, at 964-965; id., at 971 (Tatel, J., dissenting). Employing language similar to what later appeared in § 1981a, the Court concluded in Smith that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” 461 U. S., at 56. While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a “subjective consciousness” of a risk of injury or illegality and a “ ‘criminal indifference to civil obligations.’ ” Id., at 37, n. 6, 41 (quoting Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 214 (1859)); see also Farmer v. Brennan, 511 U. S. 825, 837 (1994) (explaining that criminal law employs a subjective form of recklessness, requiring a finding that the defendant “disregards a risk of harm of which he is aware”); see generally 1 T. Sedgwick, Measure of Damages §§366, 368, pp. 528, 529 (8th ed. 1891) (describing “wantonness” in punitive damages context in terms of “criminal indifference” and “gross negligence” in terms of a “conscious indifference to consequences”). The Court thus compared the recklessness standard to the requirement that defendants act with “ ‘knowledge of falsity or reckless disregard for the truth’ ” before punitive awards are available in defamation actions, Smith, supra, at 50 (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974)), a subjective standard, Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 688 (1989). Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be Hable in punitive damages.
There will be circumstances where intentional discrimination does not give rise to punitive damages Hability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be eases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e. g., 42 U. S. C. §2000e-2(e)(1) (setting out Title VII defense “where religion, sex, or national origin is a bona fide occupational qualification”); see also § 12113 (setting out defenses under ADA). In Hazen Paper Co. v. Biggins, 507 U. S. 604, 616 (1993), we thus observed that, in light of statutory defenses and other exceptions permitting age-based de-cisionmaking, an employer may knowingly rely on age to make employment decisions without recklessly violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly, we determined that limiting liquidated damages under the ADEA to cases where the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute,” without an additional showing of outrageous conduct, was sufficient to give effect to the ADEA’s two-tiered liability scheme. Id., at 616, 617.
At oral argument, respondent urged that the common law tradition surrounding punitive awards includes an “egregious misconduct” requirement. See, e. g., Tr. of Oral Arg. 26-28; see also Brief for Chamber of Commerce of the United States as Amicus Curiae 8-22 (advancing this argument). We assume that Congress, in legislating on punitive awards, imported common law principles governing this form of relief. See, e. g., Molzof v. United States, 502 U. S. 301, 307 (1992). Moreover, some courts and commentators have described punitive awards as requiring both a specified state of mind and egregious or aggravated misconduct. See, e. g., 1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) (“Punitive damages are awarded when the defendant is guilty of both a bad state of mind and highly serious misconduct”).
Most often, however, eligibility for punitive awards is characterized in terms of a defendant’s motive or intent. See, e. g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, “[t]he justification of exemplary damages lies in the evil intent of the defendant.” 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages §390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of “[compensation for wrongs done with bad motive”). Accordingly, “a positive element of conscious wrongdoing is always required.” McCormick, supra, at 280.
Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as “egregious,” for example, because of the defendant’s mental state. See Restatement (Second) of Torts § 908(2) (1979) (“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others”). Respondent, in fact, appears to endorse this characterization. See, e. g., Brief for Respondent 19 (“Malicious and reckless conduct [is] by definition egregious”); see also id., at 28-29. That conduct committed with the specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, “egregious” quality before being subject to a punitive award.
To be sure, egregious or outrageous acts may serve as evidence supporting an inference of the requisite “evil motive.” “The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts” 1 Sedgwick, supra, at 529 (emphasis added); see also 2 Sutherland, supra, §394, at 1101 (“The spirit which actuated the wrong-doer may doubtless be inferred from the circumstances surrounding the parties and the transaction”); see, e. g., Chizmar v. Mackie, 896 P. 2d 196, 210 (Alaska 1995) (“[W]here there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive damages to the jury” (internal quotation marks omitted)); Horton v. Union Light, Heat & Power Co., 690 S. W. 2d 382, 389 (Ky. 1985) (observing that “malice ... may be implied from outrageous conduct”). Likewise, under § 1981a(b)(1), pointing to evidence of an employer’s egregious behavior would provide one means of satisfying the plaintiff’s burden to “demonstrate]” that the employer acted with the requisite “malice or . . . reckless indifference.” See 42 U. S. C. § 1981a(b)(1); see, e. g., 3 BNA EEOC Compliance Manual N:6085-N6084 (1992) (Enforcement Guidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of 1991) (listing “[t]he degree of egregiousness and nature of the respondent’s conduct” among evidence tending to show malice or reckless disregard). Again, however, respondent has not shown that the terms “reckless indifference” and “malice,” in the punitive damages context, have taken on a consistent definition including an independent, “egregiousness” requirement. Cf. Morissette v. United States, 342 U. S. 246, 263 (1952) (“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed”).
B
The inquiry does not end with a showing of the requisite “malice or . . . reckless indifference” on the part of certain individuals, however. 42 U. S. C. § 1981a(b)(1). The plaintiff must impute liability for punitive damages to respondent. The en bane dissent recognized that agency principles place limits on vicarious liability for punitive damages. 139 F. 3d, at 974 (Tatel, J., dissenting). Likewise, the Solicitor General as amicus acknowledged during argument that common law limitations on a principal’s liability in punitive awards for the acts of its agents apply in the Title VII context. Tr. of Oral Arg. 23.
Justice Stevens urges that we should not consider these limitations here. See post, at 552-558 (opinion concurring in part and dissenting in part). While we decline to engage in any definitive application of the agency standards to the facts of this case, see infra, at 546, it is important that we address the proper legal standards for imputing liability to an employer in the punitive damages context. This issue is intimately bound up with the preceding discussion on the evidentiary showing necessary to qualify for a punitive award, and it is easily subsumed within the question on which we granted certiorari — namely, “[i]n what circumstances may punitive damages be awarded under Title VII of the 1964 Civil Rights Act, as amended, for unlawful intentional discrimination?” Pet. for Cert, i; see also this Court’s Rule 14.1(a). “On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered ‘fairly subsumed’ by the actual questions presented.” Gilmer v. Interstatel Johnson Lane Corp., 500 U. S. 20, 37 (1991) (Stevens, J., dissenting) (citing cases). The Court has not always confined itself to the set of issues addressed by the parties. See, e. g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93-102, and n. 1 (1998); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 243-249 (1989); Continental Ill. Nat. Bank & Trust Co. v. Chicago R. I. & P. R. Co., 294 U. S. 648, 667-675 (1935). Here, moreover, limitations on the extent to which principals may be liable in punitive damages for the torts of their agents was the subject of discussion by both the en bane majority and dissent, see 139 F. 3d, at 968; id., at 974 (Tatel, J., dissenting), amicus briefing, see Brief for Chamber of Commerce of the United States as Amicus Curiae 22-27, and substantial questioning at oral argument, see Tr. of Oral Arg. 11-17, 19-24, 49-50, 54-55. Nor did respondent discount the notion that agency principles may place limits on an employer’s vicarious liability for punitive damages. See post, at 552. In fact, respondent advanced the general position “that the higher agency principles, under common law, would apply to punitive damages.” Tr. of Oral Arg. 49. Accordingly, we conclude that these potential limitations on the extent of respondent’s liability are properly considered in the instant case.
The common law has long recognized that agency principles limit vicarious liability for punitive awards. See, e. g., G. Field, Law of Damages §§85-87 (1876); 1 Sedgwick, Damages §378; McCormick, Damages §80; 2 F. Mechem, Law of Agency §§2014-2015 (2d ed. 1914). This is a principle, moreover, that this Court historically has endorsed. See, e. g., Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 114-115 (1893); The Amiable Nancy, 3 Wheat. 546, 558-559 (1818). Courts of Appeals, too, have relied on these liability limits in interpreting 42 U. S. C. § 1981a. See, e. g., Dudley v. Wal-Mart Stores, Inc., 166 F. 3d 1317, 1322-1323 (CA11 1999); Harris v. L & L Wings, Inc., 132 F. 3d 978, 983-985 (CA4 1997). See also Fitzgerald v. Mountain States Telephone & Telegraph Co., 68 F. 3d 1257, 1263-1264 (CA10 1995) (same in suit under 42 U. S. C. § 1981). But see Deffehbaugh-Williams v. Wal-Mart Stores, Inc., 156 F. 3d 581, 592-594 (CA5 1998), rehearing en banc ordered, 169 F. 3d 215 (1999).
We have observed that, “[i]n express terms, Congress has directed federal courts to interpret Title VII based on agency principles.” Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 754 (1998); see also Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 72 (1986) (noting that, in interpreting Title VII, “Congress wanted courts to look to agency principles for guidance”). Observing the limits on liability that these principles impose is especially important when interpreting the 1991 Act. In promulgating the Act, Congress conspicuously left intact the “limits of employer liability” established in Meritor. Faragher v. Boca Raton, 524 U. S. 775, 804, n. 4 (1998); see also Burlington Industries, Inc., supra, at 763-764 (“[W]e are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment”).
Although jurisdictions disagree over whether and how to limit vicarious liability for punitive damages, see, e. g., 2 J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice §24.01 (1998) (discussing disagreement); 22 Am. Jur. 2d, Damages § 788 (1988) (same), our interpretation of Title YII is informed by “the general common law of agency, rather than . . . the law of any particular State.” Burlington Industries, Inc., supra, at 754 (internal quotation marks omitted). The common law as codified in the Restatement (Second) of Agency (1957), provides a useful starting point for defining this general common law. See Burlington Industries, Inc., supra, at 755 (“[T]he Restatement... is a useful beginning point for a discussion of general agency principles”); see also Meritor, supra, at 72. The Restatement of Agency places strict limits on the extent to which an agent’s misconduct may be imputed to the principal for purposes of awarding punitive damages:
“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
“(a) the principal authorized the doing and the manner of the act, or
“(b) the agent was unfit and the principal was reckless in employing him, or
“(c) the agent was employed in a managerial capacity and was acting in the seope of employment, or
“(d) the principal or a managerial agent of the principal ratified or approved the act.” Restatement (Second) of Agency, supra, §217 C.
See also Restatement (Second) of Torts §909 (same).
The Restatement, for example, provides that the principal may be liable for punitive damages if it authorizes or ratifies the agent’s tortious act, or if it acts recklessly in employing the malfeasing agent. The Restatement also contemplates liability for punitive awards where an employee serving in a “managerial capacity” committed the wrong while “acting in the scope of employment.” Restatement (Second) of Agency, supra, §217 C; see also Restatement (Second) of Torts, supra, §909 (same). “Unfortunately, no good definition of what constitutes a ‘managerial capacity* has been found,” 2 Ghiardi, Punitive Damages, §24.05, at 14, and determining whether an employee meets this description requires a fact-intensive inquiry, id., §24.05; 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181 (3d ed. 1995). “In making this determination, the court should review the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished.” Id., § 4.4(B)(2)(a), at 181. Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be “important,” but perhaps need not be the employer’s “top management, officers, or directors,” to be acting “in a managerial capacity.” Ibid.; see also 2 Ghiardi, supra, §24.05, at 14; Restatement (Second) of Torts, supra, § 909, at 468, Comment b and Illus. 3.
Additional questions arise from the meaning of the “scope of employment” requirement. The Restatement of Agency provides that even intentional torts are within the scope of an agent’s employment if the conduct is “the kind [the employee] is employed to perform,” “occurs substantially within the authorized time and space limits,” and “is actuated, at least in part, by a purpose to serve the” employer. Restatement (Second) of Agency, § 228(1), at 504. According to the Restatement, so long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts “specifically forbidden” by the employer and uses “forbidden means of accomplishing results.” Id., §230, at 511, Comment b; see also Burlington Industries, Inc., 524 U. S., at 756; Keeton, Torts § 70. On this view, even an employer who makes every effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a “managerial capacity.”
Holding employers liable for punitive damages when they engage in good faith efforts to comply with Title VII, however, is in some tension with the very principles underlying common law limitations on vicarious liability for punitive damages — that it is “improper ordinarily to award punitive damages against one who himself is personally innocent and therefore hable only vicariously.” Restatement (Second) of Torts, supra, § 909, at 468, Comment b. Where an employer has undertaken such good faith efforts at Title VII compliance, it “demonstrates] that it never acted in reckless disregard of federally protected rights.” 139 F. 3d, at 974 (Tatel, J., dissenting); see also Harris, 132 F. 3d, at 983, 984 (observing that, “[i]n some eases, the existence of a written policy instituted in good faith has operated as a total bar to employer liability for punitive damages” and concluding that “the institution of a written sexual harassment policy goes a long way towards dispelling any claim about the employer’s ‘reckless’ or ‘malicious’ state of mind”).
Applying the Restatement of Agency’s “scope of employment” rule in the Title VII punitive damages context, moreover, would reduce the incentive for employers to implement antidiscrimination programs. In fact, such a rule would likely exacerbate concerns among employers that §1981a’s “malice” and “reckless indifference” standard penalizes those employers who educate themselves and their employees on Title VII’s prohibitions. See Brief for Equal Employment Advisory Council as Amicus Curiae 12 (“[I]f an employer has made efforts to familiarize itself with Title VII’s requirements, then any violation of those requirements by the employer can be inferred to have been committed ‘with malice or with reckless indifference’”). Dissuading employers from implementing programs or policies to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII. The statute’s “primary objective” is “a prophylactic one,” Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975); it aims, chiefly, “not to provide redress but to avoid harm,” Faragher, 524 U. S., at 806. With regard to sexual harassment, “[f]or example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms.” Burlington Industries, Inc., 524 U. S., at 764. The purposes underlying Title VII are similarly advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII’s prohibitions.
In light of the perverse incentives that the Restatement’s “scope of employment” rules create, we are compelled to modify these principles to avoid undermining the objectives underlying Title VII. See generally ibid. See also Faragher, supra, at 802, n. 3 (noting that Court must “adapt agency concepts to the practical objectives of Title VII”); Meritor Savings Bank, FSB, 477 U. S., at 72 (“[C]ommon-law principles may not be transferable in all their particulars to Title VII”). Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements’ strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith efforts to comply with Title VII.” 139 F. 3d, at 974 (Tatel, J., dissenting). As the dissent recognized, “[gjiving punitive damages protection to employers who make good-faith efforts to prevent discrimination in the workplace accomplishes” Title VIFs objective of “motivating] employers to detect and deter Title VII violations.” Ibid.
We have concluded that an employer’s conduct need not be independently “egregious” to satisfy § 1981a’s requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff’s burden of proof. We leave for remand the question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in the instant case, and the en banc majority had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite “egregious” misconduct. 189 F. 3d, at 968. Although trial testimony established that Allen made the ultimate decision to promote Spangler while serving as petitioner’s interim executive director, respondent’s highest position, Tr. 159 (Oct. 19, 1995), it remains to be seen whether petitioner can make a sufficient showing that Allen acted with malice or reckless indifference to petitioner’s Title VII rights. Even if it could be established that Wheat effectively selected O’Donnell’s replacement, moreover, several questions would remain, e. g., whether Wheat was serving in a “managerial capacity” and whether he behaved with malice or reckless indifference to petitioner’s rights. It may also be necessary to determine whether the Association had been making good faith efforts to enforce an antidiscrimination policy. We leave these issues for resolution on remand.
For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
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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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"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
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"Bureau of the Census",
"Central Intelligence Agency",
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"Department or Secretary of Commerce",
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"Civil Rights Commission",
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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",
"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
] |
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