TXITFJ) STATES REPORTS
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CASKS \n.n IH;KI>
THE SUPREME COURT
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WARRKN K. BI'R<;KR, CHIKK JCSTICK.
WILLIAM .1. BRKNNAN, JR.. ASSOCIATK JrsTicK,
I'.YKdN K. WHITK, ASSOCIATK JTSTICK.
THCRCOOD MAilSHAL!,, ASSIMIATK ,]\ -STICK.
HARRY A. BLACKMCN, ASSJWIATF. .FfSTicK.
I.KWIS F. I'OWKLL.JR., AssiKTATK.Irs'ncK.
WILLIAM H. KKHNgl'IST. AssociATH .IrsTicK.
JOHN I'AI'L STKVKNS. ASSOCIATK JrsTK'K.
SAN1)RA DAY O'CONNOR. ASSOCIATK . I rsTtct-:.
'l'TKR STKWART, ASSOCIATK JfSTici-;.
OKKH'KHS OK THK COfHT
WILLIAM KRKN("H SMITH, ArroHNKY <;KNKUAI,
iiKX I1',. LKM. Soj.K'JToH JjKNKHAI,.
ALKXANI)KR !.. STKVAS, Cr.KUK.
HKNliY c. LIND, iir.roKTKH OK DECISIONS.
ALFRl-.n WtiNU, MAHSH.V:,,
U(K;KK !•'. JAi 'oHS. LIDUAHIAN.
II!
SUPREME COURT OF THF 1 MFH>
r 0* ll sfU *<"»
It 16 ordered that the following allot mt*nl In mud* <»f thi * hn t
Justice and Associate Justices of thm ( nurt among th* i in mf H pur
suant to Title 28, United States { ode !M < turn U and th it sm It d
lotment be entered of record tffutiu uun< ;*M* fuw fMnlnr 1
1981 t m
For the District of ( ohamhia ( mutt \\ AHH^ \ t Hi ut** u < hu f
Justice
For the First Circuit VviniAM I BR>NNAS IH \HHIHM!»
Justice
For the Second Circuit, Tm R<»ix>n MAKSUAH
Justice
For the Third Circuit, Wn MAM J B»>NNAN IK
Justice
For the Fourth Circuit, %AEHI\ K BtKt»tKt (1m f
For the Fifth Circuit, B^KON H Mritir>
For the Sixth Circuit, SANDRA DA^ o
Justice
For the Seventh Circuit* JOHN PAU SI>\>NS
Justice
For the Eighth Circuit, HAHHit A B! At HVtt s
Justice
For the Ninth Circuit, WIUIAM H E
Justice
For the Tenth Circuit, Bit EON R WHIT*
For the Eleventh Circuit, LEWIS F Ptmutt, JR
Justice
October 5, 1981
Pursuant to the provisions of Title 28, United Sutri* ( mlt
tion 42, /f ta ordered that the CHIEF Jtwit * bt*. an«J hi» hi n
assigned to the Federal Circuit an Circuit Jy^tict* i*ITi*rtj%i
ber 1, 1982
October 12, 1982
(For next previous allotment, ste 423 U S . p \n
IV
TVBLK OF (' \SKS REPORTED
\1I unti* HJ^JJ tti <! it ft H nt * s h* i* in to !h* I mtt <1 N iff ^ ( *H!I an
to th« 1W» « thtion
^ *st * n purtHl b* fon pa# llui tu *hos* tit tuit ti \uth opinion* of thi
( uutt oi til unions jn i t in inw i tM s it JHU tul on jmg* 11U1 ff *?u/ ir<
thnn* nt \\hu h unlu H \\« j* uttim!
\<t iw*i M* imonjt* I^ii fif MiHsitins ^ 7*H
Ad HUH ? ( *kl*iliotn i il io
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Aguilni » I mti*J M iif i H IH7
\kioni \KI«»H < i ntir f(»r h« j*n«lutfiM Hialth Im Jth
Akron Akmn < * nti r fur Utj*nw!u*M\» Hmlth In« » lib
Akron < i nti r f«*r U« piintuifui Hi alth !m » Akron iltt
Akron t i nt« i for H* {trMu* fn* H* with hit Akron » IP*
» 1117
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Al«%m>f)ir » I mini suu n HUH
AJlt n l*allinm » HJ»
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Allm I'ark * ^mriw I'»»ilui»tjn A)«t«m«nt I*rw?i \n 2 till
All sumu } j »«» iia' H*>ft|uUji f^n«nii II i4
Alohn Airhni » In* lhr«< t*»r ^f Inmijnn if
ruin* f *« n**i A»»n t \!%*r»
\«i»»n* Im Int«r»tnti f ornm* m tommut Hit)
v H*!I
n V^i»iit<n M*l iM***?)Unn i {HI
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And if » Ih ^ MuiiMrh It
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FAB! !•<>!•< \>f ^ Rh PuK I f*
Antomlh i I nitui Mat*
Apellani
Ardt i United statin »
Arizona / < aliform t
Arizona /arago/a *
Ashcroft i Plamudl'annthtH*! Wn «tf K tuna* t t % M !•»« * '
Aahcroft Planned Pan nth****! \HHH nfkannisMt M In* * •
Associated Press j Buftthno U* *
Astemborski
Atkins i Indiana
Atlantic Bt a< h
Attomi*\ (Hmral s<alist t HI
Attorne\ (»t m*ral <»f Mi* » PI writ tl Pin n*h -•*! \HM ^K i i?
Attornc v (*tniral of MM PlannuJ Pan nfh»H«l IM^I^ ^ K < i*
Attorney <** m ral nf N M U ir«»» » H "
Bacchus Imports ! td t I-n lU* ! 1 i41
Baker\ Salesmen in ( <mtim nial KakmK < « ' H J *
Baltimore Gan & t h ctnt < «* t Nalurm! Ki ^njn n» I N ft n^» * un ^
Rambrough, Nfeuft Id i H 1*
Banco Para el ( omerao I* xlc rmr d« t uhn f ir»»l N»t * «u flunk ' * 1 1
BankAmenea C orp i rnii*ti st*ti H IJ1*
Bank of No\a Scotia » t muni stuii ^ 1 11*
Barrett, C'attell t
Baakm i Mamhail
Beaver t Gngga
Behrens, In rr
Behnng Internationa^ Inc Natuimtl I al^jr tit lution* li*l
Bell t; United SUUfn U
Beltran, Rank i I
Berger v United States
Betka t Smith I j&
Biggs z* Terminal Rmlmad Aann of St I^riui* I u
Bildisco & Bildisco, NationiiJ I*ibor RcUtirinn lid t IT*
Bllottt v United States t U
Bio/Basics International C orp 4 Clrtho Phiurtn»c<*utirfti t «rp |tr
Bishop,
Blackstone Co i National I*abor Relation* Bd Hi
BlackBtone Co , National I>abor Relationt 84 i
Blankenahip, Kibert i
Blaaer Corp r Ne\% Jem*> Sporti* and Fx|*cNiiijon Authortt> III*
Block, Hettleman v
Board of Medical Examiner* for N J BmJtf i i»?
Board of Trustees of Carpenters Penaton Trvnt t and t Kr>
Bolandert^ Florida
vm TABLE OF CASES REPORTED
Page
Chancy v. Oklahoma
Chappell v Wallace
Chardon v Fumero Soto 650
Chastain, Litton Systems, Inc v 1106
Cher, Forum International, Ltd v 1120
Cher v News Group Publications, Inc 1120
Chesapeake & Potomac Tel Co , Norfolk Redev &Hous Auth v 1115,1128
Chicago, Rasky v HI9
Chico v United States 1123
Chin v St Luke's Hospital Center 1146
Chratmo v United States 1102
City See name of city
Clarke v South Carolina 1106
Cleland, Littlejohn v 1122
CoahomaBankv Willey 1123
Coffin v Ohio 1135
Colavito, Williams v 1109
Colhs t? United States 1119
Colokathis v Wentworth-Douglass Hospital 1146
Commissioner; Brountas v 1106
Commissioner; Ceppi v 1120
Commissioner, CRC Corp v 1106
Commissioner, Dickman v 1116
Commissioner, Levine v 1132
Commissioner; T-1740 Trusts, Mercantile Bank & Trust Co v 1133
Commissioner of Internal Revenue See Commissioner
Commissioner of Revenue of Ala , Exchange Oil & Gas Corp v 176
Commissioner of Revenue of Ala , Exxon Corp v 176
Commonwealth See name of Commonwealth
Commonwealth Edison Co v Natural Resources Defense Council 87
Connolly, In re 1103
Consolidated Rail Corporation v Darrone 1115
Consolidated Rail Corporation, Monroe County v 1120
Consumers Union of United States, Inc , Supreme Court of Va v 1137
Consumers Union of United States, Inc , Virginia State Bar v 1137
Continental Grain Co , Miller u 1136
Conway u Anderson 1121
Cook v Jones 1137
Cook u United States 1122
Copeland v South Carolina 1124
Copperweld Corp v Independence Tube Corp 1131
County See name of county
Coctrt of Common Pleas of Delaware County, Taylor v 1123
Cox u United States 1110
TABLE OF CASES REPORTED ix
Page
Crane, In re 1114
CRC Corp v Commissioner 1106
Cromc, United States v 1128
Crown, Cork & Seal Co v Parker 345
Cyntje, In re 1130
Cyntje v Government of Virgin Islands 1124
Daggett, Karcher v 725
Dairymen, Inc v Federal Trade Comm'n 1106
Dallas County v Williams 1133
Damiano, In re 1130
Darrone, Consolidated Rail Corporation v K15
DelCostello v Teamsters 151
Del Prado v Indiana 1121
Denbyt; Texas 1110
Department of Army, Stern v 1122
Department of Rev of Mont v First Fed S &L Assn ofMissoula 1144
Desris v Kenosha 1120
Diaz-Salazar v Immigration and Naturalization Service 1132
Dickman v Commissioner 1116
Director, OWCP, Duncanson-Harrelson Co v 1101
Director, OWCP, Tisdale v 1106
Director of penal or correctional institution See name or title of
director
Director of Taxation of Haw , Aloha Airlines, Inc v 1115
Director of Taxation of Haw , Hawaiian Airlines, Inc v 1115
District Judge See U S District Judge
Dodson, Grimsley v 1134
Doe, Marshall v 1119
Dolenz v All Saints Episcopal Hospital 1134
Donnelly, Lynch v 1104
Donovan, Kalaris v 1119
Donovan v Lone Steer, Inc 1105
Drolet v Van Lmdt 1107
Duncanson-Harrelson Co v Director, OWCP 1101
Duvallon v Florida 1109
Eagerton, Exchange Oil & Gas Corp v 176
Eagerton, Exxon Corp v 176
Eastman Kodak Co , Hustler Magazine, Inc v 1108
Ecorse Pollution Abatement Drain No 2, Allen Park v 1111
Eddyu Hess 1118
Edwards, Teamsters v 1127
Eide v Segum 1101
Electrical Workers v National Constructors Assn 1129
Ellis v Georgia 1119
TABLE OF CASES REPORTED
Ellison v Kane County Sheriff's Office Merit Comm'n 1118
EEOC, Newport News Shipbuilding & Dry Dock Co v 669
Ernesto Zaragoza Y v United States 1105
Erzmgerv Regents of Umv ofCal 1133
Escofil v Pennsylvania 1117
Estelle, Celestme v 1122
Estelle, Marks v 1121
Evans v Alabama 1110
Evans, Hill v 1122
Evans v Oregon 1017
Exchange Oil & Gas Corp v Eagerton 176
Exxon Corp v Eagerton 176
Fakter v United States 1134
Federal Trade Comm'n, Dairymen, Inc v 1106
Federal Trade Comm'n v Groher Inc 19
Fen Chin v St Luke's Hospital Center 1146
Fields D Summit Engineering 1146
Fierros v United States 1120
Firefighters v Stotts 1105
First Federal S & L Assn of Missoula, Dept of Rev of Mont v 1144
First Nat City Bank v Banco Para el Comercio Exterior de Cuba 611
Florida, Bolander v 1146
Florida v Casal 637
Florida, Duvallon v 1109
Florida, Smith v 1145
Florida, Stewart v 1124
Flowers, Steelworkers v 151
Foley, Grossman v 1107
Ford v Kentucky 1110
Ford v O'Brien 1122
Forney, In re 1130
Forum International, Ltd v Cher 1120
Franklin Mint Corp v Trans World Airlines, Inc 1118
Franklin Mint Corp , Trans World Airlines, Inc v 1118
Freeman v United States 1124
Freitas, Bacchus Imports, Ltd v 1130
Friedland, In re 1102
Frost v United States 1112
Fueyo-Fanjul v Immigration and Naturalization Service 1135
Fulford, Maggio v 111
Fuller t; United States 1123
Fulton v Plumbers 1104
Fumero Soto, Chardon v 650
Garaa u New Mexico 1112
TABLE OF CASES REPORTED xi
Page
Garcia v United States 1116
Garcia, United States v 1127
Garland, Brown v 1136
Garrison, Powell v 1136
Gary Aircraft Corp , General Dynamics Corp v 1131
Gass v United States 1137
Gates, Illinois v 213
Gelb, In re 1103
General Dynamics Corp v Gary Aircraft Corp 1131
Georgia, Burden v 1112
Georgia, Ellis v 1119
Georgia, Rasnake v 1132
Georgia, Rickman v 1113
Georgia, Williams v 1124
Georgia-Pacific Corp v Lyman Lamb Co 1125
Gifford, In re 1130
Gigkotti, In re 1128
Goldstein v United States 1132
Gordon, In re 1103
Gordon, Rokowsky v 1120
Government of Virgin Islands, Cyntje v 1124
Governor of Idaho v Oregon 1017
Governor of Neb v Women's Services, P C 1126
Gray v Lucas 1124
Green, In re 1117
Greene White 1111
Greene, In re 1103
Greenwood, McDonough Power Equipment, Inc v 1130
Grenada Bank v Willey 1123
Griffin, Bucci v 1120
Griggs, Beaver v 1107
Grimsley v Dodson 1134
Groher Inc , Federal Trade Comm'n v 19
Grossman v Foley 1107
Groves & Sons Co v Illinois 1126
Gulf & Southern Terminal Corp v SS President Roxas 1133
Gullo v McGill 1101
Hahn, Oregon Physicians' Service v 1133
Hamilton v Stover 1126
Harding v United States 1110
Hardman v United States 1122
Haring v Prosise 306
Harthun, In re 1103
Hawaiian Airlines, Inc v Director of Taxation of Haw 1115
xn TABLE OF CASES REPORTED
Page
Hawkins v United States U34
Hayes t? Supreme Court Justices of Nev 1113
Head v United States 1132
Heartland Food Warehouse, National Labor Relations Bd v 1127
Heckler, Bormey v 1121
Heckler; Purtill v 1131
Henderson v United States 1134
Hereford v Brittain 1113
Hernandez v Texas 1144
Hertz Corp , Budget Rent-A-Car of Washington-Oregon, Inc v 1133
Hess, Bntton v 1118
Hen, Eddy v 1118
Hetttemanw Block 1105
Hill v Evans 1122
Hinton v United States 1121
Hishon v King & Spaldmg 1116,1129
Hoff, In re 1102
Hospital Building Co v Trustees of Rex Hospital 1129
Hospital Building Co , Trustees of Rex Hospital v 1129
Huertas v Apellams 1137
Hustler Magazine, Inc v Eastman Kodak Co 1108
Hyde, Jefferson Parish Hospital Dist No 2 v 1116
Idaho ex rel Evans v Oregon 1017
Illinois u Gates 213
Illinois u Lafeyette 640
Illinois, Ruiz t? 1112
IDinois, S J Groves & Sons Co v 1126
Immigration and Naturalization Service v Chadha 919
Immigration and Naturalization Service, Diaz-Salazar u 1132
Immigration and Naturalization Service, Fueyo-Fanjul v, 1135
Immigration and Naturalization Service, Marcello v 1132
Immigration and Naturalization Service, U S House of Reps tt 919
Immigration and Naturalization Service, U S Senate n 919
Improto t; United States 11D8
Independence Tube Corp , Copperweld Corp v
Independent School Dist No 710, Scharnhorst v
Indiana, Atkins v
Indiana, Del Prado v
In&redient Technology Corp v United States
In re See name of party
International For labor union, see name of trade
Iiaterstate Commerce Comm'n v American Trucking Assn&.> IBC.
ITT Ckmtmeaital Baking Co u Bakery Salesmen
Parish Ho^ntal Daat No 2 t> Hytle 1116
TABLE OF CASES REPORTED xm
Page
Johnson v Texas 1113
Johnson v United States 1121
Jones, Cook v 1137
Jones, National Enquirer, Inc v 1144
Jones v United States 1106,1110
Jones & Laughlm Steel Corp v Pfeifer 523
Judge, Circuit Court, Carter County, Lmdsey v 1109
Judge, Circuit Court of St Louis, Wassail v 1102
Kageler, In re 1117
Kalaris v Donovan 1119
Kane County Sheriff's Office Merit Comm'n, Ellison v 1118
Kansas, Boos v 1136
Karcher v Daggett 725
Kenosha, Desris v 1120
Kent v United States 1119
Kent Nowlm Construction Co , Sardoz v 1126
Kentucky, Ford v 1110
Kentucky Comm'n of Human Rights, Kerns Bakery, Inc v 1133
Kerns Bakery, Inc v Kentucky Comm'n of Human Rights 1133
Kerrey v Women's Services, P C 1126
Kibert v Blankenship 1109
King & Spalding, Hishon v 1116,1129
Kinney, Cele v 1124
Knapp, New York v 1106
Knight, Minnesota Community College Faculty Assn v 1104
Knight, Minnesota State Bd for Community Colleges v 1104
Kops, In re 1102
Kourkene v Tavhan 1109
Labor Union See name of trade
Lafayette, Illinois v 640
Lancaster v Rodriguez 1136
Larson v Washington 1109
Lee v United States 1121,1122
Leeke, Plyler v 1146
Lehman, Trout v 1112
LeResche, South-Central Timber Development, Inc v 1116
Lesane v United States 1123
Levme v Commissioner 1132
Lifetime Communities, Inc v Administrative Office of U S Courts 1106
Lm v New York City Dept of Cultural Affairs 1109
Lmdsey v Buford 1109
Lmg, Synesael v 1121
Littlejohn v Cleland 1122
Little Rock, Cash v 1111
TABLE OF CASES REPORTED
Page
Litton Systems, Inc v Chastam 1106
Local For labor union, see name of trade
Lombard v United States HI8
Ixme Steer, Inc , Donovan v 1105
L&rtzv California H26
Louisiana, Mooney v IWS
Louisiana, Tonubbee v 1146
Lucas, Bush v 367,1114
Lucas, Gray v H24
Lybrand, McCain v 1130
Lyman Lamb Co , Georgia-Pacific Corp v 1125
Lyman Lamb Co , Weyerhaeuser Co v 1125
Lynch v Donnelly 1104
Mack Trucks, Inc , McClain v 1137
Maddicks t; New York 1108
Maggio v Fulford 111
Hagwood v Alabama 1124
Maho v United States 1109
Maine v Thornton 1128
Maislm Transport of Delaware, Inc , Stevens v 1132
Marcello v Immigration and Naturalization Service 1132
Marks u Estelle 1121
Marsh, Miami Conservancy Dist v 1123
Marshall, Baskm v 1135
Marshall t; Doe 1119
Mason u Panama Canal Co 1112
Massachusetts, Wagshal v 1107
Matanky t? United States 1118
Maynard t; McGuiness 1126
Mayor & Council of Camden, United Bldg & Constr Trades v 1115
Mayor of Pawtucket v Donnelly 1104
McAfee t; California 1109
McCain v. Lybrand 1130
McClain v Mack Trucks, Inc 1137
McClain v Orr 1136
MeClellan u McClellan 1135
MeComb, In re 1104
McDcmough Power Equipment, Inc v Greenwood 1130
McGill, GuEo tt HOI
lieGmiBs, Meadows u 1136
IfcGumess, Maynard u 1126
McKay n United States 1118
u Pennsylvania 1106
Trucking Co , Chambers u 1133
TABLE OF CASES REPORTED XVn
Page
Oregon Physicians' Service v Hahn 1133
Orndorf, Phillips v 1122
Orr, McClam v 1136
Ortho Pharmaceutical Corp , Bio/Basics International Corp v 1107
Panama Canal Co , Mason v 1112
Parker, Crown, Cork & Seal Co v 345
Payton v U S Patent and Trademark Office 1110
Pecora v United States 1119
Pennsylvania, Bonaccurso v 1120
Pennsylvania, Escofil v 1117
Pennsylvania, McKendrick v 1106
Penthouse International, Ltd , Pnng v 1132
Perez v United States 1108
Perry v United States 1134
Pfeifer, Jones & Laughhn Steel Corp v 523
Philko Aviation, Inc v Shacket 406
Phillips v Orndorf 1122
Phoenix Baptist Hospital & Medical Center v SHS Hospital Corp 1123
Pickett v Brown 1
Pitehess, Mintz v 1109
Place, United States v 696
Planned Parenthood Assn of Kansas City, Mo , Inc v Ashcroft 476
Planned Parenthood Assn of Kansas City, Mo , Inc , Ashcroft v 476
Plumbers, Fulton v 1104
Plyler v Leeke 1146
Potamkm Cadillac Corp v United States 1144
Powell v Garrison 1136
Prmg v Penthouse International, Ltd 1132
Prosise, Harmg t? 306
Ptasynski, United States v 74
Public Service Comm'ri of D C v Washington Gas Light Co 1107
Pulley, Wasko v 1110
Pulham v Allen 1129
Purtill v Heckler 1131
Pyramid Lake Paiute Tribe v Truckee-Carson Irrigation Dist 1104
Rank v Beltran 1134
Rapaport v United States 1131
Rasky v Chicago 1119
Rasnake v Georgia 1132
Regan, South Carolina v 1114
Regan v Wright 1130
Regents of Umv of Cal t Erainger v 1133
Regents of Univ of Neb Lincoln, Tatum v 1117
Renn, Angel v 1113
xvin TABLE OF CASES REPORTED
Ruveil, Woolndge v 1107
ReviBe, Wolkenstem v 1105
Reyes, Board of Trustees of Carpenters Pension Trust Fund v 1120
Riekman v Georgia 1H3
Ridley, Spellman v 1110
Ritteri; Ritter 1121
Robinson v Alabama 1137
Rockwell Hfg Co , Schulz v 1113
Rodriguez, Lancaster v 1136
Rokowsky v Gordon 1120
Rosenberg, In re 1102
Ruiz v Illinois 1112
Rush, In re 1117
Rush v United States 1120
Ryan, Wassail v 1102
Ryiander; United States v 1112
St Luke's Hospital Center, Shao Fen Chin v 1146
Samudio, Texas v 1132
Sardoz v Kent Nowkn Construction Co 1126
Saunders v Veterans Administration 1121
Scabse v Attorney General 1121
Seharnhorst t? Independent School Dist No 710 1109
Schulz u Rockwell Mfg Co 1113
Schwimmer v Sony Corp of America 1113
Sea-Land Services, Inc , Simmons v 1114
Secretary of Agriculture, Hettleman v 1105
Secretary of Army; Miami Conservancy Dist v 1123
Secretary of Health and Human Services, Bormey v 1121
Secretary of Health and Human Services, Purtill v 1131
Secretary of Interior v Western Nuclear, Inc 36
Secretary of Labor; Kalans v 1119
Secretary of Labor v Lone Steer, Inc 1105
Secretary of Navy, Trout v 1112
Secretary of State of Wyo , Brown v 835
Secretary of Treasury, South Carolina v 1114
Secretary of Treasury v Wright 1130
Seguin, Eide u 1101
Selden «, New Castle County Bd of Ed 1136
Siaeket, Ptnlko Aviation, Inc t; 406
Siao Fen Chan t? St Luke's Hospital Center 1146
Sheehan, In re 1103
Sbena&n, Jn re 1102
« Uxufced States 1134
TABLE OF CASES REPORTED xix
SHS Hospital Corp , Phoenix Baptist Hospital & Medical Centers 1123
Shuman v United States 1108
Silano v United States 1134
Silcox v United States 1135
Simmons v Sea-Land Services, Inc 1114
Simopolous v Virginia 506
Simpson v United States 1108
S J Groves & Sons Co v Illinois 1126
Smith, Betka v 1125
Smith v Bordenkircher 1124
Smiths Florida 1145
Smith v United States 1121
Sony Corp of America, Schwimmer v 1113
Sony Corp of America, Supersonic Electronics Co v 1113
South Carolina, Clarke v 1106
South Carolina, Copeland v 1124
South Carolina v Regan 1114
South Carolina, Yates v 1124
South-Central Timber Development, Inc v LeResche 1116
Southeastern Pa Transportation Authority, Woodard v 1135
Speaker, N J Assembly v Daggett 725
Spellman v Ridley 1110
Sperling v United States 1131
Spray-Rite Service Corp , Monsanto Co v 1116
SPS Technologies, Inc , USM Corp v 1107
SS President Roxas, Gulf & Southern Terminal Corp v 1133
Stanley v Zimmerman 1137
State See name of State
State Lands Comm'n, Summa Corp v 1128
Steelworkers v Flowers 151
Stephens, Zant v 862
Sterna Department of Army 1122
Stevens v Maislm Transport of Delaware, Inc 1132
Stevenson v Oklahoma 1134
Stewarts Florida 1124
Stewart v Oklahoma 1135
Stotts, Firefighters v 1105
Stotts, Memphis Fire Dept v 1105
Stover, Hamilton v 1126
Strand v United States 1122
Strickland v Washington 1105
SuCrest Corp v United States 1131
Summa Corp v California ex rel State Lands Comm'n 1128
Summit Engineering, Fields v 1146
XX TABLE OF CASES REPORTED
Page
Superintendent of penal or correctional institution See name or
title of superintendent
Superior Court of Cal , Los Angeles Cty , National Enquirer, Inc v 1144
Supersonic Electronics Co v Sony Corp of America 1113
Supreme Court Justices of Nev , Hayes v 1113
Supreme Court of Va v Consumers Union of United States, Inc 1137
Susmarski, Astemborski v 1127
Synesael v Ling 1121
Tabenken, In re 1114
Tatum v Regents of Umv of Neb -Lincoln 1117
Tavhan, Kourkene v 1109
Taylor v Court of Common Pleas of Delaware County 1123
Teamsters, DelCostello v 151
Teamsters v Edwards 1127
Teamsters v National Labor Relations Bd 1115
Terminal Railroad Assn of St Louis, Biggs v 1133
Territory See name of Territory
Texas, Denby v 1110
Texas, Hernandez v 1144
Texas, Johnson v 1113
Texas, Menda v 1133
Texas v New Mexico 554
Texas v Samudio 1132
Texas, Williams v 1108
Thomas v United States 1108
Thompson v Medical Officer at Hamilton County Jail 1124
Thompson v Woods 1113
Thomson, Brown v 835
Thornton, Maine v 1128
Tlnney, Wilhams-El v 1135
Tlppms v United States 1123
Tisdale t* Director, Office of Workers7 Compensation Programs 1106
Toaubbee v Louisiana 1146
Town See name of town
Transportation Management Corp , National Labor Relations Bd v 393
Trans World Airlines, Inc v Franklin Mint Corp 1118
Trans World Airlines, Inc , Franklin Mint Corp v 1118
Trait t? Lehman 1112
Tracks-Carson Irrigation Dist , Pyramid Lake Paiute Tribe v 1104
Traekee-Carson Irrigation Dist v United States 1104
Trast Company Bank Long-Term Disability Benefit Plan, Myron v 1119
IVustees of Rex Hospital t; Hospital Building Co 1129
Tfcwtees of Rex Hospital, Hospital Building Co v 1129
T-1740 Trusts, Mercantile Bank & Trust Co v Commissioner 1133
TABLE OF CASES REPORTED xxi
Page
Turner v Moms 1112
Union For labor union, see name of trade
United For labor union, see name of trade
United Bldg & Constr Trades Council v Mayor & Council 1115
United Parcel Service of America, Inc v U S Postal Service 810
United States See name of other party
U S District Judge, Grossman v 1107
U S House of Representatives v INS 919
U S Patent and Trademark Office, Payton v 1110
U S Postal Service, National Assn of Greeting Card Publishers v 810
U S Postal Service, United Parcel Service of America, Inc v 810
U S Senate v Immigration and Naturalization Service 919
USM Corp v SPS Technologies, Inc 1107
UTC/Hamilton Standard Division, Velilla v 1113
Valente v United States 1121
Van Lmdt, Drolet v 1107
Van Poyck v Wamwright 1136
Velilla v UTC/Hamilton Standard Division 1113
Veterans Administration, Saunders v 1121
Veth v Ohio 1135
Villamonte-Marquez, United States v 579
Virginia v Nyberg 1125
Virginia, Simopolous v 506
Virginia State Bar v Consumers Union of United States, Inc 1137
Virgin Islands, Cynfye v 1124
Vogel v Alabama 1107
Von Neumann, United States v 1101
Wade v United States 1113
Wagshal v Massachusetts 1107
Wamwright, Adams v 1108
Wamwright, Van Poyck v 1136
Waiters v United States 1122
Walker County Hospital Dist , Brooks v 1105
Wallace, Chappell v 296
Wallace v Zant 1146
Ward v Ward 1107
Warden See also name of warden
Warden, Md Penitentiary v Anderson 1111
Wargo v Attorney General of N M 1136
Washington, Larson v 1109
Washington, Strickland v 1106
Washington Gas Light Co , Public Service Comm'n of D C v 1107
Waskov Pulley 1110
Wassail v Ryan 1102
TABLE OF CASES REPORTED
Watt u Western Nuclear, Inc 36
Weigang, In re J J"
Wells v United States n^
Wentworth Douglass Hospital, Colokathis v 1146
Western Coal Traffic League v United States 1110
Western Nuclear, Inc , Watt v 36
Weyerhaeuser Co v Lyman Lamb Co 1125
Wham u United States 1113
White, Green t> UH
Whiting Pools, Inc , United States v 198
WiBey, Coahoma Bank v 1123
Wffley, Grenada Bank v 1123
Wilhams v Colavito 1109
Williams, Dallas County v 1133
Wilhams v Georgia 1124
Wilhams, Nix v 1129
Wilhams v Texas 1108
Wllhains v United States 1106,1135
Wilhams-Elt; Tmney 1135
Wolkenstem v Reville 1105
Women's Services, P C , Kerrey v 1126
Woodard v Southeastern Pa Transportation Authority 1135
Woods, Thompson v 1113
Woodyardt; Alabama 1136
Woolndget? Revell 1107
Wnght, In re 1105
Wright, Allen u 1130
Wnght, Regan v 1130
Wynck, Cavallaro v 1135
Wynck, Mitchell v 1135
Y u United States 1105
Yates t? South Carolina 1124
YeBowman u United States 1109
Young u Atlantic Beach UOi
Zant » Stephens gg2
Zant, Wallace t; 1146
Zar^osa u Arizona 1124
Zimmerman, Brantner v U2i
Zimmerman, Stanley v * joy
Iiwkstraes, Inc u National Labor Relations Bd 1131
TABLE OF CASES CITED
Page
Abate v Mundt, 403 U S
182 749, 843, 844, 854
Abrams v United States, 250
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Adams v Williams, 407 U S
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Aetna Casualty & Surety Co v
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Aetna Casualty & Surety Co v
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Page
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Auto Workers v Hoosier Car-
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xxm
xxrv
TABLE OF CASES CITED
Page
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Baker v Carr, 369 U S
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Banco Nacional de Cuba v
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Bank of Mann v England, 385
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Bank of United States v Plant-
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Barwise v Sheppard, 299 U S
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Bates v City of Little Rock, 361
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625 884
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Beedier v Alabama, 389 U S
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International, Inc v
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Page
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Blackburn v Blackburn, 526
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Blackledge v Perry, 417 U S
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Blair v United States, 665 F 2d
500 608
Block v Commissioners, 99
US 686 315
Blonder-Tongue Laboratories,
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Blue v Western R of Ala , 469
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Board of Comm'rs v United
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Board of County Comm'rs v
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656-658, 661, 662, 666
Bob Jones Umv v United
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975, 998
TABLE OF CASES CITED
xxv
Page
Bollenbach v United States,
326 U S 607 915
Bourget v Government Em-
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Bowen v USPS, 459 U S
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Bowman Transportation, Inc
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US 824 149
Boydv United States, 116U S
616 586
Boykin v Alabama, 395 U S
238 319
Braden v Yoder, 592 S W 2d
896 15
Bradley v Fisher, 13 Wall
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Brady v United States, 397
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Branti v Finkel, 445 U S 507 500
Brewer v Williams, 430 U S
387 224
Bridger v State, 503 S W 2d
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Brmegar v United States, 338
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238, 239, 241, 274, 290
Brooks v Brooks, 166 Tenn
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Brown v Felsen, 442 U S
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Brown v Glines, 444 U S 348 304
Brown v Illinois, 422 U S
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Brown v Texas, 443 U S 47 244
Brown v Thomas, 221 Tenn
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Brown v United States, 411
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Bryant v Zimmerman. 278
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Page
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Burns v Richardson, 384
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Burns v Wilson, 346 U S
137 300, 304
Burton v Burton, 379 So 2d
617 181
Bush v Lucas, 462 U S 367 298,
304
Butz v Economou, 438 U S
478 391
Cady v Dombrowski, 413 U S
433 588, 592, 647
Cafeteria & Restaurant Work-
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886 802
Caldwell v United States, 250
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Cahfano v Goldfarb, 430 U S
199 682
Cahfano v Yamasaki, 442 U S
682 803
California v Minjares, 443 U S
916 253
Camara v Municipal Court, 387
U S 523 588, 712
Cameron v United States, 252
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Campbell v Haverhill, 155 U S
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Cannon v University of Chi-
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Cardmale v Louisiana. 394
U S 437 221, 222, 247, 248
Carey v Population Services
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Carlson v Green, 446 U S
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Carr v Zaja, 283 U S 52 681
Carrier's Case, The, Y B
Pasch 13 Edw IV 359
Carroll v United States, 267
U S 132 592, 598, 600
Carstens v Lamm, 543 F
Supp 68 734, 785, 787
XXVI
TABLE OF CASES CITED
Page
Carter v Carter Coal Co , 298
U S 238 472, 1013, 1014
C CzarmkowLtd v Rohmpex,
[1979] A C 351 627
Central Machinery Co v Ari-
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160 333, 336, 343
Chambers v Maroney, 399 U S
42 294, 716
Champhn Refining Co v Cor
poration Comm'n of Okla ,
286 U S 210 932, 934, 979, 1013
Chandler v Roudebush, 425
US 840 392
Chapman v Meier, 420 U S
1 844
Chardon v Fernandez, 454
US 6 653
Charlestone Stone Products Co
v Andrus, 533 F 2d 1209 57
Chattanooga Foundry v At-
lanta, 203 US 390 160
Cheng Fan Kwok v INS, 392
U S 206 937, 938, 940
Chesapeake & Ohio R Co v
Kelfy, 241 U S 485 537
Chevron Oil Co v Huson, 404
U S 97 160, 175
Chimel v California, 395 U S
752 644, 649
Chitty v State Farm Mut
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F R D 37 24
Chrisman v Miller, 197 U S
313 58
Citizens to Preserve Overton
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402 98, 106
City See name of aty
Claassen v United States, 142
U S 140 883, 891, 892, 901-903
Clayton v Automobile Work-
ers, 451 U S 679 163, 169
dear Gravel Enterprises, Inc
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Cohens v Virginia, 6 Wheat
264 322 944
Coker v Georgia, 433 U S '
584
Colauto v Franklin, 439 U S
427, 443, 447, 450, 45l!
454, 457, 473, 482,
Page
Cole v Arkansas, 333 U S
196 915
Colegrove v Green, 328 U S
549 747, 751
Coleman v Alabama, 399 U S
1 265
Colorado v Bannister, 449 U S
1 716
Colorado v New Mexico, 459
U S 176 1025-1027, 1033, 1036
Colorado Interstate Co v
PFC, 324 U S 581 825, 826
Columbia Broadcasting Sys-
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National Committee, 412
US 94 465
Commissioner v Estate of
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Commissioner of Internal Rev-
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Commonwealth See name of
Commonwealth
Congreso del Partido, I, [1983]
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Connecticut v Massachusetts,
282 US 660 1025,
1027, 1033, 1036, 1037
Connecticut v Memllo, 423
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Connor v Finch, 431 U S
407 740, 775,
842, 845, 850, 852-854
Consumer Energy Council of
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Consumer Product Safety
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Consumers Union v Ameri-
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PP
,,
Cookson v Knowles, [1979]
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c°ohdge v New Hampshire,
403 US 443 224
289, 290, 293, 701
Cooper v California, 386 U S
58 (544
Cort v Ash, 422 U S 66 621
County See name of county
Cousins v City Council of Chi-
cago, 466 F 2d 830 744, 750
TABLE OF CASES CITED
xxvn
Page
Covey v Town of Somers, 351
U S 141 797, 799, 805
Cramer v United States, 325
U S 1 881, 897
Crews v Houston County Dept
of Pensions & Security, 358
So 2d451 181
Cross Electric Co v United
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Crowell v Randell, 10 Pet
368 218
Crown, Cork & Seal Co v
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Culver v Slater Boat Co , 688
F 2d280 544
Currin v Wallace, 306 U S
1 987
Cuyler v Adams, 449 U S
433 564
Czarmkow Ltd v Rohmpex,
[1979] A C 351 627
Czosek v O'Mara, 397 U S
25 164, 168
Dastmalchi v INS, 660 F 2d
880 938
David v Cahill, 342 F Supp
463 735, 742
Davis v Passman, 442 U S
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Deffeback v Hawke, 115 U S
392 48
Delaware v Prouse, 440 U S
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599, 601, 603-608, 644
Delaware State College v
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Delgado v Connecticut, 408
US 940 912
Dennis v Sparks, 449 U S
24 1142
Deposit Guaranty National
Bank v Roper, 445 U S
326 930
Desist v United States, 394
US 244 257
Dewey v Des Moones, 173 U S
193 219, 220, 223, 248, 249
Diamond Coal & Coke Co v
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Page
Dickerson v New Banner Insti-
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Dilhngham v McLaughlm, 264
U S 370 191
Dinsman v Wilkes, 12 How
390 305
Director, OWCP v Perini
North River Associates, 459
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District of Columbia v Bar-
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Doca v Marina Mercante Ni-
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Doe v Bolton, 410 U S
179 427, 431, 433,
434, 438, 441, 448, 449,
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Doe v Renfrew, 451 U S
1022 720
Donnelly v Meskill, 345 F
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Doulm v White, 528 F Supp
1323 742
Doulm v White, 535 F Supp
450 768
Downes v Bidwell, 182 U S
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Drake v Zant, 449 U S 999 916
Draper v United States, 358
ITS 307 242-244,269-271,
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Drope v Missouri, 420 U S
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Duke Power Co v Carolina
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JLXVili
TABLE OF CASES CITED
Page
Dyer v Sims, 341 U S 22 567
Eagle, Star & Bntish Domin-
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Eason v Eason, 204 Va 347 315
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Edwards v Arizona, 451 U S
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Eisen v Carlisle & Jacquehn,
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w 688
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Page
Evans v Oregon, 444 U S
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Federal Radio Comm'n v Nel-
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Fehciano v Puerto Rico
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F err ell v Oklahoma ex rel
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Fidelity Federal Savings &
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Fmfer v Caphn, 344 F 2d 38 391
TABLE OF CASES CITED
XXIX
Page
First Savings & Loan Assn of
Central Indiana v Furnish,
174 Ind App 265 793
First Wisconsin Mortgage
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Fisher v District Court, 424
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Fleming v State, 240 Ga 142 872
Fletcher v Peck, 6 Cranch 87 967
Florida v Mellon, 273 U S 12 83
Florida v Royer, 460 U S
491 292,
609, 704-706, 709, 711,
712, 714, 715, 721, 722
Florida Dept of Health v Flor
ida Nursing Home Assn , 450
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Flowers v Local 2602, United
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622 F 2d573 157
Fong Yue Ting v United
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Ford Motor Co v Huffman, 345
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Fortson v Dorsey, 379 U S
433 749
Foster v Seaton, 106 U S App
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Foti v INS, 375 U S 217 957,
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Franklin v State, 245 Ga 141 887
Franks v Delaware, 438 U S
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Freeport Sulphur Co v S/S
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Frontiero v Richardson, 411
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Frost v Corporation Comm'n of
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Fuller v Oregon, 417 U S 40 181
Furman v Georgia, 408 U S
238 873-377, 894, 895,
905, 907, 908, 910, 911
Gaffney v Cummmgs, 412 U S
735 749,
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780-784, 788, 842, 846
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Page
Gary Aircraft Corp , In re, 681
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Gary-Northwest Indiana Wom-
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484 676, 677, 685, 686
General Electric Co v Gilbert,
429 U S 125 149, 676-679, 681,
682, 684-686, 693-695
Giacomazzi v State, 633 P 2d
218 1047
Gibson v Florida Legislative
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372 U S^ 539 462
Gideon v Wamwright, 372 U S
335 903
Gilhgan v Morgan, 413 U S
1 301, 302
Giordenello v United States,
357 U S 480 276-278, 287, 293
Glasser v United States, 315
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GhddenCo v Zdanok,370U S
530 458
Glona v American Guarantee &
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G M Leasing Corp v United
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Godfrey v Georgia, 446 U S
420 867, 878, 909
Goldlawr, Inc v Heiman, 369
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Gomez v Perez, 409 U S 535 7-9
Gomilhon v Lightfoot, 364 U S
339 740, 748, 749, 761, 762, 783
Gooding v Wilson, 405 U S
518 502
Gore v United States, 357 U S
386 901, 902
Gowdy v United States, 271
F Supp 733 545
Grace & Co v Rubber Work-
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Graham v Richardson, 403
US 365 195
Grand Jury Proceedings, In re,
604 F 2d798 26
Granms v Ordean, 234 U S
385 798
Graves v Barnes, 343 F Supp
704 742
TABLE OF CASES CITED
Green v Biddle, 8 Wheat 1
Greene v Lmdsey, 456 U S
Page
567,
570
444
797, 799, 801, 803
Gregg v Georgia, 428 U S
1ST 870,874,
875, 877-879, 884, 886,
890, 894, 895, 900, 904,
905, 907-910, 912, 913,
1112, 1124, 1144, 1145
Grieg v United States, 226 Ct
Cl 258 303
Griffin v Griffin, 327 U S
220 800
Griffith v Wheeling Pittsburgh
Steel Corp , 521 F 2d 31 527
Griffiths v Commissioner, 308
US 355 56
Gnmley, In re, 137 U S 147 300
Gnswold v Connecticut, 381
U S 479 427, 463
Grunenthal v Long Island
R Co, 393 US 156 535
Guaranty Trust Co v York,
326 US 99 160
Guste v MTV Testbank, 524
F Supp 1170 1030
Haig v Agee, 453 U S 280 975
Halloran v New England Tele
phone & Telegraph Co , 95
Vt 273 528
Halpenn v Kissinger, 196 U S
App D C 285 390
Hamilton v Brown, 161 U S
256 796, 797
Hampton & Co v United
States, 276 U S 394 951,
962, 984, 985, 999
Hanger v Abbott, 6 Wall 532 667
Hanover Shoe, Inc v United
Shoe Machinery Corp , 207
F Supp 407 24
Harisiades v Shauerhnessv, 342
US 580 1002
Hariow v Fitzgerald, 457 U S
800 266
Harper v ViramaBd ofElec-
fooos, 383 US 663 498
Harris v McRae, 448 U S
297 420, 444, 453,
462, 464, 465, 467, 474
Page
Harris v New York, 401 U S
222 257
Harrison v NAACP, 360 U S
167 440, 469, 470
Hawes v State, 240 Ga 327 872
Haynes v General Electric
Credit Corp , 582 F 2d 869 412
Head Money Cases, 112 U S
580 79, 82-84
Heirs of Gorbea v Portilla, 46
P R R 279 655
Helvermg v New York Trust
Co , 292 U S 455 46
Henderson v Kibbe, 431 U S
145 888
Henderson Co v Thompson,
300 U S 258 192
Hensley v Eckerhart, 461 U S
424 494, 505
Hercules, Inc v Exxon Corp ,
434 F Supp 136 27
Herndon v Lowry, 301 U S
242 885
Herring v State, 238 Ga 288 887
Hess v Pawloski, 274 U S
352 796
Hickman v Taylor, 329 U S
495 24, 29, 31
Higgmbotham v Mobil Oil
Corp , 545 F 2d 422 540, 546
Highway Comm'n v Trujillo, 82
N M 694 42, 70
Hill v California, 401 U S
797 219, 248
Hilton v Guyot, 159 U S 113 626
Hines v Anchor Motor Freight,
Inc, 424 US 554 154,
158, 163-166
Hines v Davidowitz, 312 U S
52 334, 336, 341
H L v Matheson, 450 U S
398 420, 428, 440, 441, 443,
454, 464, 466, 469, 471,
473, 485, 490-492, 499
Hoag v New Jersey, 356 U S
464 322
Hollmgs worth v Virginia, 3
Ball 378 * 955, 956
Holmberg v Armbrecht, 327
U S 392 159-162, 169 174 667
TABLE OF CASES CITED
XXXI
Page
Home Bldg & Loan Assn v
Blaisdell, 290 U S 398 190r 191
Honeywell, Inc v Piper Air-
craft Corp , 50 F R D 117 24
Hopkinson v State, 632 P 2d
79 874
Huddell v Levin, 537 F 2d
726 543
Hudson Co v McCarter, 209
U S 349 190
Hughes v Oklahoma, 441 U S
322 1025, 1028
Humphrey v Moore, 375 U S
335 164, 170, 172
Humphrey's Executor v
United States, 295 U S 602 953
Hylton v United States, 3 Dall
171 80
Idaho ex rel Evans v Oregon,
444 U S 380 1038
Illinois v Milwaukee, 406 U S
91 571
Illinois State Bd of Elections
v Socialist Workers Party,
440 U S 173 433
INS v Jong Ha Wang, 450 U S
139 1001
Industrial Union Dept v
American Petroleum Insti-
tute, 448 U S 607 103
In re See name of party
Insurance Co of North America
v Union Carbide Corp , 35
F R D 520 24
International Systems & Con-
trols Corp Securities Litiga-
tion, In re, 91 F K D 552 26
ICC v Clyde S S Co , 181 U S
29 825
Iowa v Illinois, 147 U S 1 566
Irvine v California, 347 U S
128 260
Jaben v United States, 381
U S 214 231, 286
Jackson v Lykes Brothers S S
Co , 386 U S 731 531
Jacobelhs v Ohio, 378 U S
184 755
Jacobs v United States, 290
US 13 374
Page
Jerome v United States, 318
U S 101 362, 363, 365, 366
Jimenez v Weinberger, 417
U S 628 7
Johnson v Penrod Drilling Co ,
510 F 2d 234 540, 543
Johnson v Railway Express
Agency, Inc , 421 U S 454 161,
352, 656, 657, 665
Johnson v United States, 333
U S 10 240, 275, 291, 719
Johnson v Zerbst, 304 U S
458 1046, 1048-1050, 1055
Johnston v Moorman, 80 Va
131 1141
Jones v Black, 539 S W 2d 123 15
Jones v Rath Packing Co , 430
U S 519 410
Jones v United States, 362
U S 257 232, 236, 238, 239,
241, 242, 244, 245, 273,
275, 277, 284, 286, 293
Jurek v Texas, 428 U S
262 876, 895, 908
J W Hampton & Co v United
States, 276 U S 394 951.
962, 984, 985, 999
Kaczkowski v Bolubasz, 491
Pa 561 527, 528, 546, 551
Kansas v Colorado, 185 U S
125 567, 569
Kansas v Colorado, 206 U S
46 1024, 1031, 1036
Kansas v Colorado, 320 U S
383 1032, 1033
Karcher v Daggett, 462 U S
725 848, 849, 851
Katz v United States, 389 U S
347 720
Keifer & Keifer v Reconstruc-
tion Finance Corp , 306 U S
1 623
Kelly v Bumpers, 340 F Supp
568 742
Kemp v Miller, 166 Va 661 315
Kennerly v District Court of
Mont , 400 U S 423 333
Kent Corp v NLRB, 530 F 2d
612 26
Ker v California, 374 U S
23 232, 244, 286
Kibert v Commonwealth, 216
Va 660 316
XXXII
TABLE OF CASES CITED
Page
KJbourn v Thompson, 103 U S
168
Kilgarhn v Hill, 386 U S
li) 844, 852, 854
King v Bazeley, 2 Leach 835 359
King v Pear, 1 Leach 212 359
Kminan v United States, 139
F Supp 925 667
Kirkland v Morton Salt Co , 46
F R D 28 24
Kirkpatrick v Preisler, 394
U S 526 727, 72&-T35, 738,
739, 741, 742, 744, 758,
760, 761, 766-768, 772,
774-780, 782-786, 851
Kfeindienst v Handel, 408 U S
753 1000
Kleppe v Sierra Club, 427 U S
390 97, 107
Knowlton v Moore, 178 U S
41 81-84
Kolender v Lawson, 461 U S
352 290, 711, 715
Kotch v Board of River Pilot
Comm'rs, 330 U S 552 196
Kremer v Chemical Construe
tKmCorp, 456 US 461 322
LaBeBe Iron Works v United
States, 256 US 377 83
Lam v Lalh, 439 U S 259 7, 8
LaRocca v State Farm Mut
Automobile Ins Co , 47
F R D 278 24
Lawson v Suwannee Fruit &
S.S Co , 336 U S 198 412
Lawson v Truck Drivers,
Chauffeurs & Helpers, 698
F 2d250 175
Law Students Civil Rights
Research Council. Inc v
Wadmond, 299 F Supp
117 1142
Lefkowrtz v Newsome, 420
U S 283 319, 320
Lehnhausen v Lake Shore
Auto Parts Co , 410 U S
356 196
Leigh v Green, 193 U S 79 806
LeMasters v United States,
378 F 2d 262 858, 366
Page
Leo Sheep Co v United States,
440 U S 668 70, 72
Leuschner v State, 49 Md
App 490 1047
Levy v Louisiana, 391 U S 68 7
Lillington Stone Co v Max-
well, 203 N C 151 43
Lmkletter v Walker, 381 U S
618 257
Little v Streater, 452 U S
1 17
Locke v United States, 7
Cranch 339 235
Lockett v Ohio, 438 U S
586 879, 884, 888, 900, 904
Lombard v Board of Ed of City
ofN Y, 502 F 2d631 311
Loney v Scott, 57 Ore 378 45
Longyear v Toolan, 209 U S
414 804
Lorillard v Pons, 434 U S 575 67
Los Angeles v Lyons, 461 U S
95 266
Los Angeles Dept of Water &
Power v Manhart, 435 U S
702 683, 685
Louis v Supreme Court of
Nev , 490 F Supp 1174 1142
Louisiana ex rel Guste v
M/V Testbank, 524 F Supp
1170 1030
Loving v Virginia, 388 U S
1 427
LTV Securities Litigation, In
re, 89 F R D 595 26
Lucas v Colorado General As-
sembly, 377 U S 713 858, 859
Ludecke v Watkins, 335 U S
160 1002
Luke Construction Co v
Simpkins, 223 Va 387 315
Machinists v NLRB, 362 U S
411 169
Magillv Westinghouse Electric
Corp , 464 F 2d 294 543
Mahan v Howell, 410 U S
315 733, 742,
759, 779, 781, 782, 785,
843-845, 850-852, 854
Maher v Roe, 432 U S 464 420,
444, 453, 461, 464, 465
TABLE OF CASES CITED
XXXIII
Page
Mahler v Eby, 264 U S 32 988
Mallett v McMonagle, [1970]
A C 166 541
Mancusi v Stubbs, 408 U S
204 581, 595, 596
Mamgault v Springs, 199 U S
473 191
Mapp v Ohio, 367 U S 643 224,
251, 253
Marbury v Madison. 1 Cranch
137 373, 942, 943, 986
Margaret S v Edwards, 488
F Supp 181 435
Marriage of Heddy, In re, 535
S WP2d276 492
Marron v United States, 275
US 192 701
Marsh v Chambers, 463 U S
783 600
Marshall v Barlow's, Inc , 436
U S 307 606
Marshall v Lonberger, 459
U S 422 113, 118
Marvel v Merritt, 116 U S
11 70
Mary, The, 9 Cranch 126 807
Maryland v Louisiana, 451
U S 725 184, 185
Maryland v Virginia, 451 U S
725 570
Maryland Committee for Fair
Representation v Tawes, 377
U S 656 857, 859
Massachusetts v Missouri, 308
US 1 571
Massachusetts v Pamten, 389
US 560 266
Mastro Plastics Corp v
NLRB, 350 U S 270 56
Mathews v Eldridge, 424 U S
319 802, 803
Mathews v Lucas, 427 U S
495 7, 8
Matthews v Rodgers, 284 U S
521 470
Maul v United States, 274 U S
501 585, 586, 600, 608
McAllister v Magnolia Petro-
leum Co , 357 U S 221 159.
162, 169
McClaane v Rankm, 197 U S
154 173
Page
McClanahan v Arizona State
Tax Comm'n, 411 U S 164 332,
334, 340
McClellan v Garland, 217 U S
268 322
McCray v Illinois, 386 U S
300 268, 283
McCree v Housewright, 689
F 2d 797 1054
McCulloch v Maryland, 4
Wheat 316 941, 984
McDonald v Santa Fe Trail
Transp Co , 427 U S 273 680
McElroy v United States, 455
U S 642 363
McGoldrick v Compagnie Gen-
erale Transatlantique, 309
U S 430 218, 221, 250
McGrath v Kristensen, 340
U S 162 996
McLaughlin v Florida, 379
U S 184 195
McNeal v Dombaugh, 20 Ohio
St 167 1016
McWeeney v New York, N H
& H R Co , 282 F 2d 34 528
Melluzzo v Morton, 534 F 2d
860 57
Memphis Light, Gas & Water
Div v Craft, 436 U S 1 797,
799
Menezes v INS, 601 F 2d
1028 937
Menna v New York, 423 U S
61 319-321
Menominee Tribe v United
States, 391 U S 404 337
Merrill Lynch, Pierce, Fenner
& Smith, Inc v Curran, 456
US 353 975
Merrion v Jicarilla Apache
Tribe, 455 U S 130 333, 335
Mescalero Apache Tribe v
Jones, 411 US 145 331,
332, 335
Metropolitan Edison Co v Peo-
ple Against Nuclear Energy,
460 US 766 107
Metros v U S District Court
for that of Colo , 441 F 2d
313 311
XXXIV
TABLE OF CASES CITED
Page
Meyer v Nebraska, 262 US
390 427
Michigan v De Filhppo, 443
US 31 256
Michigan v Mosley, 423 U S
96
v Tucker, 417 U
Midland R Co v Checkley,
L R 4Eq 19 44
Midland Realty Co v Kansas
City Power & Light Co , 300
US 109 193
Miller v Florida, 373 So 2d
882 885
Mills v Habluetzel, 456 U S
91 5, 7-14, 16, 17
Milton v Wainwright, 407 U S
371 265
Minnesota v Clover Leaf
Creamery Co , 449 U S 456 196
Minnesota v NRC, 195 U S
App D C 234 102
Minnesota v Wisconsin, 252
US 273 575
Minmck v California Dept of
Corrections, 452 U S 105 253
Miranda v Arizona, 384 U S
436 237, 1041, 1042, 1049.
1051, 1052, 1054, 1056
Missouri v Holland, 252 U S
416 1030, 1031
Missouri v Illinois, 200 U S
496 571
Mitchell v Trawler Racer, Inc ,
362 U S 539 531
Mitchell v United Parcel Serv-
ice, Inc , 624 F 2d 394 157
Mitchum v Foster, 407 U S
225 323
Mobile v Bolden, 446 U S
55 744, 750, 753, 754, 761
Moe v Sahsh & Kootenai
Tribes, 425 US 463 331
333, 336, 343
Mohasco Corp v Silver, 447
U 8 807 J29, 349
Mood v New York City Dept
of Social Services, 436 U S
658 266
912
434
222
335
149
Page
Monroe v Pape, 366 U S 167 323,
656
Montana v United States, 440
U S 147 313, 318
Montana v United States, 450
U S 544 330-333, 335, 337, 338
Moore v Illinois, 408 U S
786
Morey v Doud, 354 U S 457
Morrison v Watson, 154 U S
111
Morton v Mancari, 417 U S
535
Morton v Ruiz, 415 U S 199
Mt Healthy City Bd of Ed v
Doyle, 429 U S 274 403, 404
Mui v Esperdy, 371 F 2d
772 939
Mullane v Central Hanover
Bank & Trust Co , 339 U S
306 795-799, 801-807, 809
Mullaney v Wilbur, 421 U S
684 510
Murphy, In re, 560 F 2d 326 26.
31
Murphy v Hunt, 455 U S 478 820
Myers v Irwin, 2 Serg & Rawle
368 191
Myers v United States, 272
U S 52 942, 948, 963, 999, 1001
Nathan v Louisiana, 8 How
73 146
Nathanson v United States,
290 U S 41 227, 289,
264, 273, 276, 277, 287
National City Bank v Republic
of China, 348 U S 356 620,
630, 63^
NLRB v Deena Artware, Inc ,
361 U S 398 629
NLRB v Erie Resistor Corp ,
373 US 221 408
NLRB v Fruit & Vegetable
Packers, 377 U S 58 189, 145
NLRB v Hearst Publications,
Inc , 322 U S 111 986
NLRB v Hendricks County
Rural Electric Membership
Corp , 454 U S 170 986
NLRB v J Weingarten, Inc ,
420 U S 251 149, 408
TABLE OF CASES CITED
xxxv
Page
NLRB v Nevis Industries,
Inc , 647 F 2d 905 397
NLRBv New York Umv Med-
ical Center, 702 F 2d 284 397
NLRB v Pipefitters, 429 U S
507 825
NLRB v Remington Rand,
Inc , 94 F 2d 862 399, 403
NLRB v Sears, Roebuck &
Co , 421 U S 132 23,
26, 28, 32, 34, 35
NLRB v Senf tner Volkswagen
Corp , 681 F 2d 557 397
NLRB v Seven-Up Bottling
Co , 344 U S 344 149
NLRB v Stackpole Carbon
Co , 105 F 2d 167 399
NLRB v Wright Line, 662
F 2d899 397
National Lead Co v United
States, 252 U S 140 67
National League of Cities v
Usery, 426 U S 833 942
Natural Resources Defense
Council, Inc v NRC, 178
US App D C 336 92
Nebraska v Wyoming, 325
U S 589 1025,
1027, 1032, 1036-1038
Nelson v New York City, 352
US 103 799
Newark v Blumenthal, 457
F Supp 30 738
New England Power Co v
New Hampshire, 455 U S
331 1025
New Jersey v New York, 283
U S 336 1027, 1030
New Jersey v New York, 347
US 995 566
New Jersey Ed Assn v
Burke, 579 F 2d 764 311
New Jersey Welfare Rights
Org v Cahill, 411 U S 619 7
Newman v Piggie Park Enter-
prises, Inc , §90 U S 400 1140
New York v Belton, 453 U S
454 648
New York v New Jersey, 256
US 296 575
New York v United States, 326
US 572 633
New York Central R Co v
White, 243 U S 188 191
New York Central Securities
Corp v United States, 287
US 12 985
New York City v New York,
NH&HRCo,344US
293 797, 799, 800
New York ex rel Bryant v
Zimmerman, 278 U S 63 247
Nicol v Ames, 173 U S 509 82
Nixon v Administrator of Gen-
eral Services, 433 U S 425 963,
1000
Norfolk & Western R Co v
Bailey Lumber Co , 221 Va
638 317
Norfolk & Western R Co v
Liepelt, 444 U S 490 534, 537
North Carolina v Alford, 400
U S 25 316
North Carolina v Butler, 441
U S 369 1046
North Dakota v Minnesota, 263
U S 365 571, 1031
North Dakota v United States,
460 US 300 823
Northern Illinois Corp v
Bishop Distributing Co , 284
F Supp 121 412
Northern Metal Co v United
States, 350 F 2d 833 667
Northern Pacific R Co v Sod-
erberg, 188 U S 526 43-46,
53, 59, 67
Northern Pipeline Construction
Co v Marathon Pipe Line
Co , 458 U S 50 206
North Laramie Land Co v
Hoffman, 268 U S 276 804, 807
Occidental Life Ins Co v
EEOC, 432 US 355 161.
162, 169, 170
Oceanic Steam Navigation Co
v Stranahan, 214 U S 320 1000
O'Connor v Donaldson, 422
US 563 265
Ogden v Saunders, 12 Wheat
213 191
XXXVI
TABLE OF CASES CITED
Page
Ohio v Wyandotte Chemicals
Corp , 401 U S 493 570
Ohio-Sealy Mattress Mfg Co v
Sealy, Inc , 90 F R D 45 27
Ohphant v Suquamish Indian
Tribe, 435 US 191 331
Oneida Indian Nation v County
of Oneida, 414 U S 661 331
Oregon v Hass, 420 U S
714 251, 257
Orloff v WiHoughby, 345 U S
83 300, 301
O'Shea v Riverway Towing
Co , 677 F 2d 1194 540,
542, 544, 550
O'Sulhvan v Brier, 540 F
Supp 1200 735, 786
Ott v Frank, 202 Neb 820 543
Owen v City of Independence,
445 US 622 266
Owings v Norwood's Lessee, 5
Cranch 344 218
Ozark Chemical Co v Jones,
125F 2d 1 43
Pacific Gas & Electric Co v
State Energy Resources Con
servation & Development
Comm'n, 461 U S 190 181, 410
Panama Refining Co v Ryan,
293 U S 388 985
Panter v Marshall Field & Co ,
80 F R D 718 27
Paquete Habana, The, 175 U S
677 623
Parham v J R , 442 U S 584 460
Parker v Levy, 417 U S 733 299,
300, 304, 929
Parklane Hosiery Co v Shore,
439 US 322 317
Parlato v Howe, 470 F Supp
996 15
Parr v United States, 351 U S
513 581
Pate v Robinson, 383 U S
375 116, 119, 120
Patsy v Florida Bd of Regents,
457 U S 496 322, 323
Patterson v New York, 432
U S 197 510, 519
Paul v Virginia, 8 Wall 168 146
Pavlak v Church, 681 F 2d
617 349
Page
Payne v State, 424 So 2d
722 1054
Pavton v New York, 445 U S
573 294, 701, 716
PeaveyCo v NLRB, 648 F 2d
460 397
Pehgone v Hodges, 116 U S
App D C 32 391
Pendleton v Crown, Cork &
Seal Co , Civ No M-78-1734
(Md ) 347, 348, 353-355
Pennant Hills Restaurants Pty
Ltd v Barrell Insurances
Pty Ltd , 55 A L J R
258 541, 542, 549
Pennoyer v Neff, 95 U S 714 796
Pennsylvania v Mimms, 434
U S 106 581, 714
Pennsylvania v Wheeling &
Belmont Bridge Co , 13 How
518 564
People v Brethauer, 174 Colo
29 234
People v Brocamp, 307 111
448 222
People v Palanza, 55 111 App
3d 1028 234, 273
People v Thomas, 98 111 App
3d 852 1054
Pepper v Litton, 308 U S
295 629
Petrus v Robbins, 196 Va
322 315
Phelps v United States, 421
U S 330 206, 210
Philadelphia v New Jersey, 437
US 617 1025
Phillips Petroleum Co v Wis-
consin, 347 U S 672 184
Pickering v Board of Ed , 391
US 563 371
Pierce v New York Central
R Co , 304 F Supp 44 546
Pierce v Society of Sisters, 268
US 510 427
Pierson v Post, 2 Am Dec
264 1030
Pierson v Ray, 386 U S
547 H41, 1142
Pinkerton v United States, 328
U S 640 883, 891, 901
TABLE OF CASES CITED
XXXVII
Page
Planned Parenthood Assn v
Fitzpatrick, 401 F Supp
554 451 474
Planned Parenthood Assn of
Kansas City, Mo , Inc v
Ashcroft, 462 U S 476 419,
465, 474, 508, 511, 516,
518, 519
Planned Parenthood Assn of
Kansas City, Mo , Inc v
Ashcroft, 655 F 2d 848 426
Planned Parenthood Assn of
Kansas City, Mo , Inc v
Ashcroft, 664 F 2d 687 435, 437
Planned Parenthood of Central
Mo v Danforth, 428 U S
52 420, 428-431, 438, 439,
441-443, 445, 446, 448,
449, 456, 458, 460, 462,
464, 465, 471, 474, 488,
490, 492, 498, 503, 504
Plyler v Doe, 457 U S 202 453
Pocket Veto Case, 279 U S
655 948
Poe v Ullman, 367 U S 497 427
Pollock v Farmers7 Loan &
Trust Co 157 U S 429 733
Pope & Talbot, Inc v Hawn,
346 U S 406 547
Porter & Dietsche, Inc v FTC,
605 F 2d294 313
Powell v McCormack, 395 U S
486 982
Preisler v Secretary of State of
Mo , 341 F Supp 1158 768
Presnell v Georgia, 439 U S
14 887, 915
Procumer v Navarette, 434
U S 555 265
Producers Transportation Co
v Railroad ComnVn of Gal ,
251 U S 228 193, 194
Proffitt v Florida, 428 U S
242 878, 879, 908
Propper v Clark, 337 U S
472T 655
Purity Extract and Tonic Co v
Lynch, 226 U S 192 459
Puyallup Tribe v Washington
Game Dept , 433 U S 1§5 332.
336, 342
Railroad Trainmen v Balti-
more & Ohio R Co , 331 U S
519 350
Page
Railway Labor Executives'
Assn v Gibbons, 455 U S
457 85
Rakas v Illinois, 439 U S
128 249, 255
Ramah Navajo School Bd , Inc
v Bureau of Revenue of
N M , 458 U S 832 333,
334, 336, 341-343
Reconstruction Finance Corp
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Reed v The Yaka, 373 U S
410 531
Reeves, Inc v Stake, 447 U S
429 820
Regan v Taxation with Repre
sentation of Washington, 461
U S 540 196
Regional Rail Reorganization
Act Cases, 419 U S 102 83, 84
Renegotiation Bd v Grumman
Aircraft Engineering Corp ,
421 U S 168 27, 32, 34, 35
Republic Gear Co v Borg-
Warner Corp , 381 F 2d 551 24
Republic Steel Corp v Mad-
dox, 379 U S 650 163
Resner v Northern Pacific
R Co , 161 Mont 177 543
Reynolds v Sims, 377 U S
533 741, 742,
747, 748, 751, 752, 756,
758, 760, 76^-767, 775,
782, 787, 788, 842, 843,
845, 851, 852, 854-856
Rice v Wolff, 513 F 2d 1280 293
Richards v United States, 369
US 1 663
Richardson v State, 274 Ark
473 1047
Rizzo v Goode. 423 U S 362 266
Robbins v California, 453 U S
420 224, 253, 1050
Roberts (Harry) v Louisiana,
431 US 633 877,879
Robertson v Wegmann, 436
U S 584 656, 657, 662
Rochm v California, 342 U S
165 259
Roe v Wade, 410 U S 113 419-
421, 426-437, 444, 447,
452-455, 457-461, 463-
468, 482, 495, 499, 505,
511, 519-521
xxxvni
TABLE OF CASES CITED
Rogr. v Lodge, 458 U
Page
855
Rose Funeral Home, Inc v
Julian, 176 Term 534 3, 14
Ross v State, 233 Ga 361 880
Rostker v Goldberg, 453 U S
57 301
Rugendorf v United States,
3tf6 U S 528 232, 286
Runyon v McCrary, 427 U S
160 159
Ryan Stevedoring Co v Pan
Atlantic S S Corp , 350 U S
124 531
Salinger v United States, 272
U S 542 582, 597, 598
Sampson v Murray, 415 U S
61 391
San Antonio Independent
School Dist v Rodriguez,
411 US 1 462
Sanders v M D Aircraft Sales,
Inc , 575 F 2d 1086 412
Sanders v United States, 219
a Cl 285 303
Santa Clara Pueblo v Martinez,
436 US 49 335
Schaefer v Thomson, 240 F
Supp 247 837, 838, 845
Schechter Poultry Corp v
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Schlesinger v Councilman, 420
U S 738 300
Schmitt v Jenkins Truck Lines,
Inc , 170 N W 2d 632 543
Schnebly v Baker, 217 N W
2d708 546
Schroeder v New York City,
371 U S 208 797, 800, 801, 805
Schweiker v Gray Panthers,
458 U S 34 986
SCM Corp v Xerox Corp , 70
F R D 508 27
Scolen v Pennsylvania, 408
U S 934 ' 912
Seott v United States, 436 U S
266, 584
Co v Sierada,
Page
SEC v C M Joiner Leasing
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Segal v American Tel & Tel
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Segum v Akron Center for Re-
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U S 989 426
Sendak v Arnold, 429 U S
968 459
Sewell v St Tammany Parish
Police Jury, 338 F Supp
252 742
Shadwickv City of Tampa, 407
U S 345 235, 263, 264
Shaffer v Heitner, 433 U S
186 796, 797
Shapiro v Thompson, 394 U S
618 195
Shaw v Kellogg, 170 U S 312 48
Shayer v Kirkpatrick, 541 F
Supp 922 734
Shiver v United States, 159
US 491 54
Sibbach v Wilson & Co , 312
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TABLE OF CASES CITED
XXXIX
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TABLE OF CASES CITED
XLI
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TABLE OF CASES CITED
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TABLE OF CASES CITED
XLIII
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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1982
PICKETT ET AL v BROWN ET AL
APPEAL FROM THE SUPREME COURT OF TENNESSEE
No 82-5576 Argued April 27, 1983— Decided June 6, 1983
Under Tennessee law the father of an illegitimate child is responsible for
the child's support Enforcement of this obligation depends on the
establishment of paternity A Tennessee statute provides that a pater-
nity and support action must be filed within two years of the child's birth
unless the father has provided support or has acknowledged his pater-
nity in writing, or unless the child is, or is liable to become, a public
charge, in which case the State or any person can bring suit at any time
prior to the child's 18th birthday In May 1978, appellant mother of an
illegitimate child born in November 1968 brought a paternity and sup-
port action in the Tennessee Juvenile Court against appellee Brown, who
moved to dismiss the action on the ground that it was barred by the
2-year limitations period The court held that the limitations period vio-
lated, inter aim, the Equal Protection Clause of the Fourteenth Amend-
ment, because it imposed a restriction on the support rights of some
illegitimate children that was not imposed on the identical rights of
legitimate children The Tennessee Supreme Court reversed and up-
held the constitutionality of the 2 year limitations period
Held The 2-year limitations period in question denies certain illegitimate
children the equal protection of the law guaranteed by the Fourteenth
Amendment Pp 7-18
(a) Restrictions on support suits by illegitimate children "will survive
equal protection scrutiny to the extent they are substantially related to a
legitimate state interest " Mills v Habluetzel, 456 U S 91, 99 The
period for obtaining paternal support has to be long enough to provide a
1
2 OCTOBER TERM, 1982
Syllabus 462 U S
reasonable opportunity for those with an interest in illegitimate children
to bring suit on their behalf, and any time limit on that opportunity has
to be substantially related to the State's interest in preventing the htiga
tion of stale or fraudulent claims Id , at 99-100 Pp 7-11
(b) Here, the 2-year limitations period does not provide an illegitimate
child who is not covered by one of the exceptions in the statute with an
adequate opportunity to obtain support The mother's financial difficul-
ties caused by the child's birth, the loss of income attributable to the
need to care for the child, continuing affection for the child's father, a
desire to avoid family and community disapproval, and emotional strain
and confusion that often attend the birth of an illegitimate child, all may
inhibit a mother from filing a paternity suit within two years after the
child's birth Pp 12-13
(c) Nor is the 2 year limitations period substantially related to the
legitimate state interest in preventing the litigation of stale or fraudu-
lent claims It amounts to a restriction effectively extinguishing the
support rights of illegitimate children that cannot be justified by the
problems of proof surrounding paternity actions The State's argument
that the different treatment accorded legitimate and illegitimate children
is substantially related to the above legitimate state interest is seriously
undermined by the exception for illegitimate children who are, or are likely
to become, public charges, since claims filed on behalf of these children
when they are more than two years old would be just as stale or as vul-
nerable to fraud as claims filed on behalf of illegitimate children who are
not public charges at the same age Moreover, the fact that Tennessee
tolls most actions during a child's minority, when considered in combina-
tion with the above factors, leads one to question whether the burden
placed on illegitimate children is designed to advance permissible statfe
interests And the advances in blood testing render more attenuated
the relationship between a statute of limitations and the State's interest
m preventing the litigation of stale or fraudulent claims Pp 13-18
638 S W 2d 369, reversed and remanded
BBENNAN, J , delivered the opinion for a unanimous Court
Harold W Home, by appointment of the Court, 459 U S
1100, argued the cause and filed a brief for appellants
Susan Short Kelly, Assistant Attorney General of Tennes-
see, argued the cause for appellees With her on the brief
were WtUwm M Leech, Jr , Attorney General, and Robert
B Ltttleton *
v Wedl,MarwnWrwhtEdelman,*ndJudithL Lichtman filed a
fenef ior the Children's Defense Fund et al as amici curwe urging reversal
PICKETS BROWN 3
1 Opinion of the Court
JUSTICE BRENNAN delivered the opinion of the Court
This case requires us to decide the constitutionality of a
provision of a Tennessee statute l that imposes a 2-year limi-
tations period on paternity and child support actions brought
on behalf of certain illegitimate children
Under Tennessee law both fathers and mothers are respon-
sible for the support of their minor children See Tenn
Code Ann §34-101 (1977), Rose Funeral Home, Inc v
Julian, 176 Tenn 534, 539, 144 S W 2d 755, 757 (1940),
Brooks v Brooks, 166 Tenn 255, 257, 61 S W 2d 654 (1933)
This duty of support is enforceable throughout the child's mi-
nority See Blackburn v Blackburn, 526 S W 2d 463, 466
(Tenn 1975), Whitt v Whitt, 490 S W 2d 159, 160 (Tenn
1973) See also Tenn Code Ann §§36-820, 36-828 (1977)
Tennessee law also makes the father of a child born out of
wedlock responsible for "the necessary support and education
of the child " §36-223 See also Brown v Thomas, 221
Tenn 319, 323, 426 S W 2d 496, 498 (1968) Enforcement
of this obligation depends on the establishment of paternity
Tennessee Code Ann § 36-224(1) (1977) 2 provides for the fil-
1 Tennessee Code Ann § 36-224(2) (1977) reads as follows
"(2) Proceedings to establish the paternity of the child and to compel the
father to furnish support and education for the child may be instituted dur-
ing the pregnancy of the mother or after the birth of the child, but shall not
be brought after the lapse of more than two (2) years from the birth of the
child, unless paternity has been acknowledged by the father in writing or
by the furnishing of support Provided, however, that the department of
human services or any person shall be empowered to bring a suit in behalf
of any child under the age of eighteen (18) who is, or is liable to become a
public charge "
2 Tennessee Code Ann §36-224(1) (1977) reads as follows
"(1) A petition to establish paternity of a child, to change the name of
the child if it is desired, and to compel the father to furnish support and
education for the child in accordance with this chapter may be filed by the
mother, or her personal representative, or, if the child is likely to become a
public charge by the state department of human services or by any person
Said petition may be filed in the county where the mother or child resides
4 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ing of a petition which can lead both to the establishment of
paternity and to enforcement of the father's duty of support
With a few exceptions, however, the petition must be filed
within two years of the child's birth See § 36-224(2), n 1,
supra
In May 1978, Frances Annette Pickett filed an action pur-
suant to §36-224(1) seeking to establish that Braxton Brown
was the father of her son, Jeffrey Lee Pickett, who was born
on November 1, 1968 App 3 Frances Pickett also sought
an order from the court requiring Brown to contribute to the
support and maintenance of the child Ibid Brown denied
that he was the father of the child Id , at 13 It is uncon-
tested that he had never acknowledged the child as his own
or contributed to the child's support Id , at 5-6, 13-14,
Brief for Appellants 5 Brown moved to dismiss the suit on
the ground that it was barred by the 2-year limitations period
established by § 36-224(2) Frances Pickett responded with
a motion challenging the constitutionality of the limitations
period App 5-7, 13 s
The Juvenile Court held that the 2-year limitations period
violated the Equal Protection Clause of the Fourteenth
or is found or in the county where the putative father resides or is found
The fact that the child was born outside this state shall not be a bar to filing
a petition against the putative father After the death of the mother or in
case of her disability said petition may be filed by the child acting through a
guardian or next friend "
•Frances Pickett challenged the statute on equal protection and due
process grounds under both the Federal and State Constitutions App
6-7 She also alleged that the statute amounted to cruel and unusual
punishment under both the Federal and State Constitutions Ibid The
Juvenile Court did not address this daim The Tennessee Supreme Court
later noted that she did not seriously press it before that court 638 S W
2d 369, 371 (1982) She also does not advance it before this Court
Pickett also sought permission to amend her compjaint to bring the
paternity suit in the name of her child App 6
After Piekett filed her motion challenging the constitutionality of the
statate t&e State Attorney General was notified and he intervened to
defend the statute, See td , at 13, 638 S W 2d, at 371
PICKETT v BROWN 5
1 Opinion of the Court
Amendment of the Federal Constitution and certain provi-
sions of the Tennessee Constitution Id , at 14 The court-
based its conclusion on the fact that the limitations period
governing paternity actions imposed a restriction on the sup-
port rights of some illegitimate children that was not imposed
on the identical rights of legitimate children Ibid With-
out articulating any clear standard of review, the court re-
jected the State's argument that the 2-year limitations period
was justified by the State's interest in preventing the litiga-
tion of "stale or spurious" claims Id , at 15 In the court's
view, this argument was undermined by the exception to the
limitations period established for illegitimate children who
are, or are likely to become, public charges, for "the possi-
bilities of fraud, perjury, or litigation of stale claims [are]
no more inherent in a case brought [for] a child who is not
receiving public assistance than [in] a case brought for a child
who is a public charge " Ibid 4
On appeal,6 the Tennessee Supreme Court reversed the
judgment of the Juvenile Court and upheld the constitutional-
ity of the 2-year limitations period 638 S W 2d 369 (1982)
In addressing Frances Pickett's equal protection and due
process challenges to the statute, the court first reviewed our
decision in Mills v Habluetzel, 456 U S 91 (1982), and sev-
eral decisions from other state courts Based on this review,
the court stated that the inquiry with respect to both claims
was "essentially the same whether the state's policy as
4 The court also found that the statute discriminated between "children
born out of wedlock who are receiving public assistance and such children
whose mothers are not receiving public assistance " App 15-16 In this
regard, the court pointed out that a mother's fulfillment of her obligation
to support her child does not relieve the father of his duty of support Id ,
at 16
The court granted Pickett permission to amend her complaint to bring
the suit in the name of her child Ibid
5 The Juvenile Court "allowed an interlocutory appeal by certifying that
the constitutionality of [Tenn Code Ann ] § 36-224(2) was the sole determi-
native question of law in the proceedings " 638 S W 2d, at 371
6 OCTOBER TERM, 1982
Opinion of the Court 462 U S
reflected in the statute affords a fair and reasonable opportu-
nity for the mother to decide m a rational way whether or not
the child's best interest would be served by her bringing a
paternity suit " 638 S W 2d, at 376 The court concluded
that "[t]he Legislature could rationally determine that two
years is long enough for most women to have recovered phys-
ically and emotionally, and to be able to assess their and their
children's situations logically and realistically " Id , at 379
The court also found that the 2-year statute of limitations
was substantially related to the State's valid interest m pre-
venting the litigation of stale or fraudulent claims Id , at
380 The court justified the longer limitations period for
illegitimates who are, or are likely to become, public charges,
on the ground that "[t]he state's countervailing interest in
doing justice and reducing the number of people on welfare is
served by allowing the state a longer time during which to
sue " Ibid The court also suggested that "the Tennessee
statute is 'carefully tuned' to avoid hardship in predictable
groups of cases, since it contains an exception for actions
against men who have acknowledged their children in writing
or by supporting them, and it has been held that regular
or substantial payments are not required in order to consti-
tute 'support '" Id9 at 379 (footnote omitted) Finally, the
court found that the uniqueness of the limitations period in
not being tolled during the plaintiff's minority did not "alone
requnfe] a holding of unconstitutionally of a two-year pe-
riod, as opposed to any other period which can end during the
plaintiff's minority " Id , at 380 6
6 The court also rejected the due process challenge to the statute Id ,
at376,380
In addition, the court found that the Juvenile Court had committed a
harmless error, from which Brown and the State did not appeal, in allowing
Pidcett "to amend her complaint to add the name of the child, by the
mother as next friend, as a plaintiff " Id , at 380 The court stated that
§ 36-224(1) "does not permit an action to be brought by the child except in
case of death or disability of the mother " Ibid
PICKETTT; BROWN 7
1 Opinion of the Court
We noted probable jurisdiction 459 U S 1068 (1982)
We reverse
II
We have considered on several occasions during the past 15
years the constitutional validity of statutory classifications
based on illegitimacy See, e g , Mills v Habluetzel,
supra, United States v Clark, 445 U S 23 (1980), Lalli v
Lalh, 439 U S 259 (1978), Trimble v Gordon, 430 U S 762
(1977), Mathews v Lucas, 427 U S 495 (1976), Jimenez v
Weinberger, 417 U S 628 (1974), New Jersey Welfare Rights
Org v Cahill, 411 U S 619 (1973), Gomez v Perez, 409
U S 535 (1973), Weber v Aetna Casualty & Surety Co , 406
U S 164 (1972), Glona v American Guarantee & Liability
Insurance Co , 391 U S 73 (1968), Levy v Louisiana, 391
U S 68 (1968) In several of these cases, we have held
the classifications invalid See, e g , Mills v Habluetzel,
supra, Trimble v Gordon, supra, Jimenez v Weinberger,
supra, New Jersey Welfare Rights Org v Cahill, supra,
Gomez v Perez, supra, Weber v Aetna Casualty & Surety
Co , supra, Glona v American Guarantee & Liability Insur-
ance Co , supra, Levy v Louisiana, supra Our consider-
ation of these cases has been animated by a special con-
cern for discrimination against illegitimate children As the
Court stated in Weber
"The status of illegitimacy has expressed through the
ages society's condemnation of irresponsible liaisons
beyond the bonds of marriage But visiting this con-
demnation on the head of an infant is illogical and unjust
Moreover, imposing disabilities on the illegitimate child
is contrary to the basic concept of our system that legal
burdens should bear some relationship to individual
responsibility or wrongdoing Obviously, no child is
responsible for his birth and penalizing the illegitimate
child is an ineffectual — as well as an unjust — way of de-
terring the parent Courts are powerless to prevent the
8 OCTOBER TERM, 1982
Opinion of the Court 462 U S
social opprobrium suffered by these hapless children, but
the Equal Protection Clause does enable us to strike
down discriminatory laws relating to status of birth
where as in this case — the classification is justified by
no legitimate state interest, compelling or otherwise "
406 U S , at 175-176 (footnotes omitted)
In view of the history of treating illegitimate children less
favorably than legitimate ones, we have subjected statutory
classifications based on illegitimacy to a heightened level of
scrutiny Although we have held that classifications based
on illegitimacy are not "suspect," or subject to "our most
exacting scrutiny," Trimble v Gordon, supra, at 767,
Mathews v Lucas, 427 U S , at 506, the scrutiny applied to
them "is not a toothless one " Id , at 510 In United
States v Clark, supra, we stated that "a classification based
on illegitimacy is unconstitutional unless it bears 'an evident
mid substantial relation to the particular interests [the]
statute is designed to serve ' " 445 U S , at 27 See also
Lalh v Lalli, supra, at 265 (plurality opinion) ("classifica-
tions based on illegitimacy are invalid under the Four-
teenth Amendment if they are not substantially related to
permissible state interests") We applied a similar standard
of review to a classification based on illegitimacy last Term in
Mills v Habluetzel, 456 U S 91 (1982) We stated that
restrictions on support suits by illegitimate children "will
survive equal protection scrutiny to the extent they are sub-
stantially related to a legitimate state interest " Id , at 99
Our decisions in Gomez and Mills are particularly relevant
to a determination of the validity of the limitations period at
issue in this case In Gomez we considered "whether the
laws of Texas may constitutionally grant legitimate children
a judicially enforceable right to support from their natural
fathers and at the same time deny that right to illegitimate
children " 409 U S , at 535 We stated that "a State may
not invidiously discriminate against illegitimate children by de-
nying them substantial benefits accorded children generally,"
PICKETT v BROWN 9
I Opinion of the Court
id , at 538, and held that "once a State posits a judicially en-
forceable right on behalf of children to needed support from
their natural fathers there is no constitutionally sufficient
justification for denying such an essential right to a child sim-
ply because its natural father has not married its mother "
Ibid The Court acknowledged the "lurking problems with
respect to proof of paternity," ibid , and suggested that they
could not "be lightly brushed aside " Ibid But those prob-
lems could not be used to form "an impenetrable barrier that
works to shield otherwise invidious discrimination " Ibid
In Mills we considered the sufficiency of Texas' response
to our decision in Gomez In particular, we considered the
constitutionality of a 1-year statute of limitations governing
suits to identify the natural fathers of illegitimate children
456 U S , at 92 The equal protection analysis focused on
two related requirements the period for obtaining paternal
support has to be long enough to provide a reasonable oppor-
tunity for those with an interest in illegitimate children to
bring suit on their behalf, and any time limit on that opportu-
nity has to be substantially related to the State's interest in
preventing the litigation of stale or fraudulent claims Id ,
at 99-100
The Texas statute failed to satisfy either requirement
The 1-year period for bringing a paternity suit did not pro-
vide illegitimate children with an adequate opportunity to
obtain paternal support Id , at 100 The Court cited a
variety of factors that make it unreasonable to require that a
paternity suit be brought within a year of a child's birth
Ibid 7 In addition, the Court found that the 1-year kmita-
7 The Court suggested that "[financial difficulties caused by childbirth
expenses or a birth-related loss of income, continuing affection for the
child's father, a desire to avoid disapproval of family and community, or the
emotional strain and confusion that often attend the birth of an illegitimate
child all encumber a mother's filing of a paternity suit within 12 months of
birth " 456 U S , at 100 The Court also pointed out that u[e]ven if the
10 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tions period was not "substantially related to the State's
interest in avoiding the prosecution of stale or fraudulent
claims " Id , at 101 The problems of proof surrounding
paternity suits do not "justify a period of limitation which so
restricts [support rights] as effectively to extinguish them "
Ibid The Court could "conceive of no evidence essential to
paternity suits that invariably will be lost in only one year,
nor is it evident that the passage of 12 months will apprecia-
bly increase the likelihood of fraudulent claims " Ibid (foot-
note omitted) 8
In a concurring opinion, JUSTICE O'CONNOR, joined by four
other Members of the Court,9 suggested that longer limita-
tions periods also might be unconstitutional Id , at 106 10
JUSTICE O'CONNOR pointed out that the strength of the
State's interest in preventing the prosecution of stale or
fraudulent claims was "undercut by the countervailing state
interest in ensuring that genuine claims for child support are
satisfied " Id , at 103 This interest "stems not only from a
desire to see that 'justice is done,' but also from a desire to
reduce the number of individuals forced to enter the welfare
rolls " Ibid (footnote omitted) JUSTICE O'CONNOR also
mother seeks public financial assistance and assigns the child's support
daim to the State, it is not improbable that 12 months would elapse with-
out the filing of a claim " Ibid In this regard, the Court noted that
"[s]everal months could pass before a mother finds the need to seek such
assistance, takes steps to obtain it, and is willing to join the State in litiga-
tion against the natural father " Ibid (footnote omitted)
8 The Court found no need to reach a due process challenge to the statute
Id , at 97
9 THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE BLACKMUN
jomed JUSTICE O'CONNOR'S concurring opinion Id , at 102 JUSTICE
POWELL joined Part I of JUSTICE O'CONNOR'S concurring opinion, but did
not join the Court's opinion Id , at 106 (POWELL, J , concurring in
judgment)
* JUSTICE O'CONNOR wrote separately because she feared that the
Cwrtfs opinion might "be misinterpreted as approving the 4 year statute
of farotatoa now used in Texas " Id , at 102
PICKETTv BROWN 11
1 Opinion of the Court
suggested that the State's concern about stale or fraudulent
claims "is substantially alleviated by recent scientific devel-
opments in blood testing dramatically reducing the possibility
that a defendant will be falsely accused of being the illegiti-
mate child's father " Id , at 104, n 2 Moreover, JUSTICE
O'CONNOR found it significant that a paternity suit was "one
of the few Texas causes of action not tolled during the minor-
ity of the plaintiff " Id , at 104 (footnote omitted) She
stated
"Of all the difficult proof problems that may arise in civil
actions generally, paternity, an issue unique to illegiti-
mate children, is singled out for special treatment
When this observation is coupled with the Texas Legisla-
ture's efforts to deny illegitimate children any significant
opportunity to prove paternity and thus obtain child sup-
port, it is fair to question whether the burden placed on
illegitimates is designed to advance permissible state
interests " Id , at 104-105
Finally, JUSTICE O'CONNOR suggested that "practical obsta-
cles to filing suit within one year of birth could as easily exist
several years after the birth of the illegitimate child " Id ,
at 105 In view of all these factors, JUSTICE O'CONNOR con-
cluded that there was "nothing special about the first year
following birth" that compelled the decision in the case Id ,
at 106
Against this background, we turn to an assessment of the
constitutionality of the 2-year statute of limitations at issue
here
III
Much of what was said m the opinions in Mills is relevant
here, and the principles discussed in Mills require us to in-
validate this limitations period on equal protection grounds u
11 In this light, we need not reach Piekett's due process challenge to the
statute
!2 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Although Tennessee grants illegitimate children a right to
paternal support, Tenn Code Ann §36-223 (1977), and pro-
vides a mechanism for enforcing that right, §36-224(1), the
imposition of a 2-year period within which a paternity suit
must be brought, §36-224(2), restricts the right of certain
illegitimate children to paternal support in a way that the
identical right of legitimate children is not restricted In this
respect, some illegitimate children in Tennessee are treated
differently from, and less favorably than, legitimate children
Under Mills, the first question is whether the 2-year limi-
tations period is sufficiently long to provide a reasonable
opportunity to those with an interest in illegitimate children
to bring suit on their behalf 456 U S , at 99 In this re-
gard, it is noteworthy that § 36-224(2) addresses some of the
practical obstacles to bringing suit within a short time after
the child's birth that were described in the opinions in Mills
See 456 U S , at 100, id , at 105-106 (O'CONNOR, J , concur-
ring) The statute creates exceptions to the limitations pe-
riod if the father has provided support for the child or has ac-
knowledged his paternity in writing The statute also allows
suit to be brought by the State or by any person at any time
prior to a child's 18th birthday if the child is, or is liable to
become, a public charge See n 1, supra This addresses
JUSTICE O'CONNOR'S point in Mills that a State has a strong
interest in preventing increases in its welfare rolls 456
U S , at 103-104 (concurring opinion) For the illegitimate
child whose claim is not covered by one of the exceptions in
the statute, however, the 2-year limitations period severely
restricts his right to paternal support The obstacles to fil-
ing a paternity and child support suit within a year after the
child's birth, which the Court discussed in Mills, see id , at
100; TL 7, supra, are likely to persist during the child's second
year as well The mother may experience financial difficul-
ties caused not only by the child's birth, but also by a loss of
income attributable to the need to care for the child More-
over, "continuing affection for the child's father, a desire to
PICKETTv BROWN 13
1 Opinion of the Court
avoid disapproval of family and community, or the emotional
strain and confusion that often attend the birth of an illegiti-
mate child/' 456 U S , at 100, may inhibit a mother from
filing a paternity suit on behalf of the child within two years
after the child's birth JUSTICE O'CONNOR suggested in
Mills that the emotional strain experienced by a mother and
her desire to avoid family or community disapproval "may
continue years after the child is born " Id , at 105, n 4 (con-
curring opinion) 12 These considerations compel a conclusion
that the 2-year limitations period does not provide illegiti-
mate children with "an adequate opportunity to obtain sup-
port " Id , at 100
The second inquiry under Mills is whether the time limita-
tion placed on an illegitimate child's right to obtain support is
substantially related to the State's interest in avoiding the
litigation of stale or fraudulent claims Id , at 99-100 In
this case, it is clear that the 2-year limitations period govern-
ing paternity and support suits brought on behalf of certain
illegitimate children does not satisfy this test
First, a 2-year limitations period is only a small improve-
ment in degree over the 1-year period at issue in Mills It,
too, amounts to a restriction effectively extinguishing the
support rights of illegitimate children that cannot be justified
by the problems of proof surrounding paternity actions As
was the case in Mills f "[w]e can conceive of no evidence
essential to paternity suits that invariably will be lost in only
12 Problems stemming from a mother's emotional well-being are of par-
ticular concern in assessing the validity of Tennessee's limitations period
because §36-224(1), see n 2, supra, permits suit to be filed only by the
mother or by her personal representative if the child is not likely to become
a public charge As the Tennessee Supreme Court stated, §36-224(1)
"does not permit an action to be brought by the child except in case of
death or disability of the mother " 638 S W 2d, at 880 The Texas stat-
ute involved in Af ills permitted suit to be brought by " 'any person with an
interest in the child* " 456 U S , at 100 See also Tr of Oral Arg
31-33
14 OCTOBER TERM, 1982
Opinion of the Court 462 U S
[two years], nor is it evident that the passage of [24] months
will appreciably increase the likelihood of fraudulent claims "
Id , at 101 (footnote omitted)
Second, the provisions of § 36-224(2) undermine the State's
argument that the limitations period is substantially related
to its interest in avoiding the litigation of stale or fraudulent
claims As noted, see supra, at 6, §36-224(2) establishes
an exception to the statute of limitations for illegitimate chil-
dren who are, or are likely to become, public charges Pa-
ternity and support suits may be brought on behalf of these
children by the State or by any person at any tune prior to
the child's 18th birthday The State argues that this distinc-
tion between illegitimate children receiving public assistance
and those who are not is justified by the State's interest in
protecting public revenue See Brief for Appellee Leech
26-30 Putting aside the question of whether this interest
can justify such radically different treatment of two groups of
illegitimate children,13 the State's argument does not address
the different treatment accorded illegitimate children who
are not receiving public assistance and legitimate children
This difference in treatment is allegedly justified by the
* The State unquestionably has a legitimate interest in protecting public
revenue As JUSTICE O'CONNOR pointed out in Mills, however, the State
also has an interest in seeing that " justice is done' " by "ensuring that gen-
uine claims for child support are satisfied " 456 U S , at 103 (concurring
opinion) Moreover, an illegitimate child has an interest not only m
obtaining paternal support, but also in establishing a relationship to his
father As the Juvenile Court suggested in this case, these interests are
not satisfied merely because the mother is providing the child with suffi-
cient support to keep the child off the welfare rolls App 16 Seen 4
The father's duty of support persists even under these circum-
, ^ A6, o ^ ab0 Ro8e Funeral H°™, J«c v Julmn, 176
757 (1940)' Brooks v B™ks' 166
w » < , ' ' '
25MS7, 61 S W 2d 654 (1933) In any event, we need not resolve this
«"»nin this case As we discuss vnfra, the State's interest in protecting
r ^ mSke Patermty dauns ^ more or te« stale or
PICKETTz; BROWN 15
I Opinion of the Court
State's interest in preventing the litigation of stale or fraud-
ulent claims But as the exception for children receiving
public assistance demonstrates, the State perceives no pro-
hibitive problem in litigating paternity claims throughout a
child's minority There is no apparent reason why claims
filed on behalf of illegitimate children who are receiving pub-
lic assistance when they are more than two years old would
not be just as stale, or as vulnerable to fraud, as claims filed
on behalf of illegitimate children who are not public charges
at the same age The exception in the statute, therefore,
seriously undermines the State's argument that the different
treatment accorded legitimate and illegitimate children is
substantially related to the legitimate state interest in pre-
venting the prosecution of stale or fraudulent claims and
compels a conclusion that the 2-year limitations period is not
substantially related to a legitimate state interest
Third, Tennessee tolls most actions during a child's minor-
ity SeeTenn Code Ann §28-1-106 (1980) M InParlatov
Howe, 470 F Supp 996 (ED Tenn 1979), the court stated
that "[t]he legal disability statute represents a long-standing
policy of the State of Tennessee to protect potential causes of
actions by minors during the period of their minority " Id ,
at 998-999 In view of this policy, the court held that a
statute imposing a limitations period on medical malpractice
actions "was not intended to interfere with the operation of
the legal disability statute " Id , at 998 Accord, Braden v
Yoder, 592 S W 2d 896 (Tenn App 1979) But see Jones
v Black, 539 S W 2d 123 (Tenn 1976) (1-year limitations
14 Tennessee Code Ann §28-1-106 (1980) reads as follows
"If the person entitled to commence an action is, at the time the cause of
action accrued, either within the age of eighteen (18) years, or of unsound
mind, such person, or his representatives and privies, as the case may be,
may commence the action, after the removal of such disability, within the
time of limitation for the particular cause of action, unless it exceed [sic]
three (3) years, and m that case within three (3) years from the removal of
such disability "
16 OCTOBER TERM, 1982
Opinion of the Court 462 U S
period governing wrongful-death actions applies "regardless
of the minority or other disability of any beneficiary of the
action7') Many civil actions are fraught with problems of
proof, but Tennessee has chosen to overlook these problems
m most instances in favor of protecting the interests of
minors In paternity and child support actions brought on
behalf of certain illegitimate children, however, the State
instead has chosen to focus on the problems of proof and to
impose on these suits a short limitations period Although
the Tennessee Supreme Court stated that the inapplicability
of the tolling provision to paternity actions did not "alone" re-
quire invalidation of the limitations period, 638 S W 2d, at
380, it is clear that this factor, when considered in combina-
tion with others already discussed, may lead one "to question
whether the burden placed on illegitimates is designed to ad-
vance permissible state interests " Mills v Habluetzel, 456
U S , at 105 (O'CONNOR, J , concurring) See also id , at
106 (POWELL, J , concurring in judgment) 15
* There is some confusion about the relationship between § 28-1-106 and
§ 36-224 Compare Brief for Appellants 18, Tr of Oral Arg 10, 13, with
Brief for Appellee Leech 13-14, 18, Tr of Oral Arg 30-31, 37-38 Even
assuming that the limitations period in § 36-224(2) is tolled during the
mother's minority, the important point is that it is not tolled during the
minority of the child As noted, see supra, at 15, and n 14, statutes of
limitations generally are tolled during a child's minority This certainly
undermines the State's argument that the different treatment accorded
legitimate and illegitimate children is justified by its interest in preventing
the litigation of stale or fraudulent claims
It is not critical to this argument that the right to file a paternity action
generally is given to the mother It is the child's interests that are at
stake The fether's duty of support is owed to the child, not to the
mother See Tenn Code Ann § 36-223 (1977) Moreover, it is the child
who has an interest in establishing a relationship to his father This real-
ity is reflected in the provision of § 36-224(1) that allows the child to bring
smt if the mother is dead or disabled Cf S Rep No 93-1356 p 52
(1974) (TOe interest primarily at stake in [a] paternity action [is] that of
t&e etulcD Restrictive periods of limitation, therefore, necessarily affect
the interests of the child and their validity must be assessed in that light
PICKETS BROWN 17
1 Opinion of the Court
Finally, the relationship between a statute of limitations
and the State's interest in preventing the litigation of stale or
fraudulent paternity claims has become more attenuated as
scientific advances in blood testing have alleviated the prob-
lems of proof surrounding paternity actions As JUSTICE
O'CONNOR pointed out in Mills, these advances have "dra-
matically reduc[ed] the possibility that a defendant will be
falsely accused of being the illegitimate child's father " Id ,
at 104, n 2 (concurring opinion) See supra, at 10-11 See
also Little v Streater, 452 U S 1, 6-8, 12, 14 (1981) Al-
though Tennessee permits the introduction of blood test
results only in cases "where definite exclusion [of paternity]
is established," Tenn Code Ann §36-228 (1977), see also
§24-7-112 (1980), it is noteworthy that blood tests currently
can achieve a "mean probability of exclusion [of] at least
90 percent " Miale, Jennings, Rettberg, Sell, &
Krause, Joint AMA-AB A Guidelines Present Status of Sero-
logic Testing in Problems of Disputed Parentage, 10 Family
L Q 247, 256 (1976) 16 In Mills, the Court rejected the
argument that recent advances in blood testing negated the
State's interest in avoiding the prosecution of stale or fraudu-
lent claims 456 U S , at 98, n 4 It is not inconsistent
with this view, however, to suggest that advances m blood
testing render more attenuated the relationship between a
statute of limitations and the State's interest in preventing
the prosecution of stale or fraudulent paternity claims This
is an appropriate consideration m determining whether a
16 See also Stroud, Bundrant, & Galindo, Paternity Testing A Current
Approach, 16 Trial 46 (Sept 1980) ("Recent advances in scientific tech-
niques now enable the properly equipped laboratory to routinely provide
attorneys and their clients with a 95-98 percent probability of excluding a
man falsely accused of paternity"), Terasala, Resolution By HLA Testing
of 1000 Paternity Cases Not Excluded By ABO Testing, 16 J Family L
543 (1978) See generally Ellman & Kaye, Probabilities and Proof Can
HLA and Blood Group Testing Prove Paternity?, 54 N Y U L Rev
1131 (1979)
18 OCTOBER TERM, 1982
Opinion of the Court 462 U. S.
period of limitations governing paternity actions brought on
behalf of illegitimate children is substantially related to a
legitimate state interest.
IV
The 2-year limitations period established by Tenn. Code
Ann. §36-224(2) (1977) does not provide certain illegitimate
children with an adequate opportunity to obtain support and
is not substantially related to the legitimate state interest in
preventing the litigation of stale or fraudulent claims. It
therefore denies certain illegitimate children the equal pro-
tection of the laws guaranteed by the Fourteenth Amend-
ment. Accordingly, the judgment of the Tennessee Supreme
Court is reversed, and the case is remanded for proceedings
not inconsistent with this opinion.
It is so ordered.
FTC v GROLIER INC 19
Syllabus
FEDERAL TRADE COMMISSION ET AL v
GROLIER INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No 82-372 Argued March 29, 1983— Decided June 6, 1983
Exemption 5 of the Freedom of Information Act (FOIA) exempts from dis-
closure under the Act "inter-agency or mtra-agency memorandums or
letters which would not be available by law to a party m litigation
with the agency " Petitioner Federal Trade Commission (FTC) con-
ducted an investigation of a subsidiary of respondent in connection with a
civil penalty action against the subsidiary in Federal District Court filed
by the Department of Justice The action was later dismissed with prej-
udice when the Government declined to comply with a discovery order
Thereafter, respondent filed a request with the FTC for disclosure of
certain documents concerning the investigation of the subsidiary, but the
FTC denied the request on the ground that the documents were exempt
from disclosure under Exemption 5 Respondent then brought suit m
Federal District Court to compel release of the documents The Dis-
trict Court held that the documents were exempt from disclosure under
Exemption 5 as, inter alia, attorney work product The Court of Ap-
peals held that the documents generated during the action against the
subsidiary could not be withheld on the basis of the work-product rule
unless the FTC could show that "litigation related to the terminated
action exists or potentially exists " The court reasoned that the work-
product rule encompassed by Exemption 5 was coextensive with the
work-product privilege under the Federal Rules of Civil Procedure, and
that a requirement that documents must be disclosed m the absence of
the existence or potential existence of related litigation best comported
with the fact that the work-product privilege is a qualified one
Held Under Exemption 5, attorney work product is exempt from manda-
tory disclosure without regard to the status of the litigation for which it
was prepared By its own terms, Exemption 5 requires reference to
whether discovery would normally be required during litigation with the
agency Under a literal reading of Federal Rule of Civil Procedure
26(b)(3), the work product of agency attorneys would not be subject to
discovery in subsequent litigation unless there was a showing of need
and thus would fall within the scope of Exemption 5 But regardless of
how Rule 26(b)(3) is construed, the Court of Appeals erred m construing
Exemption 5 to protect work-product material only if related litigation
20 OCTOBER TERM, 1982
Opinion of the Court 462 U S
exists or potentially exists The test under Exemption 5 is whether the
documents would be "routinely" or "normally" disclosed upon a showing
of relevance The Court of Appeals* determination that its rule concern-
ing related litigation best comported with the qualified nature of the
work product rule is irrelevant in the FOIA context Whether its im-
munity from discovery is absolute or qualified, a protected document
cannot be said to be subject to "routine" disclosure Work product ma-
terials are immune from discovery unless the one seeking discovery can
show substantial need in connection with subsequent litigation Such
materials are thus not "routinely" or "normally" available to parties in
litigation and hence are exempt under Exemption 5 This result, by
establishing a discrete category of exempt information, implements the
FOIA's purpose to provide "workable" rules Pp 23-28
217 U S App D C 47, 671 F 2d 553, reversed
WHITE, J , delivered the opinion of the Court, in which BUKGER, C J ,
and MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ ,
joined BRENNAN, J , filed an opinion concurring in part and concurring
in the judgment, in which BLACKMUN, J , joined, post, p 28
Deputy Solicitor General Getter argued the cause for peti-
tioners With him on the briefs were Solicitor General Lee,
Assistant Attorney General McGrath, Samuel A Alito, Jr ,
and Leonard Schaitman
Daniel S Mason argued the cause for respondent With
him on the brief were Frederick P Furth, Michael P
Lehmann, and Richard M Clark
JUSTICE WHITE delivered the opinion of the Court
The Freedom of Information Act (FOIA), 5 U S C § 552,
mandates that the Government make its records available to
the public Section 552(b)(5) exempts from disclosure "inter-
agency or intra-agency memorandums or letters which would
not be available by law to a party in litigation with the
agency " It is well established that this exemption was in-
tended to encompass the attorney work-product rule The
question presented in this case is the extent, if any, to which
the work-product component of Exemption 5 applies when
the litigation for which the requested documents were gener-
ated has been terminated
FTC v GROLIER INC 21
19 Opinion of the Court
In 1972, the Federal Trade Commission undertook an in-
vestigation of Americana Corp , a subsidiary of respondent
Groher Inc The investigation was conducted in connection
with a civil penalty action filed by the Department of Justice l
In 1976, the suit against Americana was dismissed with
prejudice when the Government declined to comply with a
District Court discovery order In 1978, respondent filed a
request with the Commission for disclosure of documents
concerning the investigation of Americana 2 The Commis-
sion initially denied the entire request, stating that it did not
have any information responsive to some of the items and
that the remaining portion of the request was not specific
enough to permit the Commission to locate the information
without searching millions of documents contained in in-
vestigatory files The Commission refused to release the
few items that were responsive to the request on the basis
1 United States v Americana Corp , Civ No 388-72 (NJ) Americana
was charged with violation of a 1948 cease-and-desist order in making mis-
representations regarding its encyclopedia advertisements and door-to-
door sales
2 By letter to the Commission, respondent requested the following
"1) All records and documents which refer or relate to a covert investi-
gation of Americana Corporation and/or Groher Incorporated, which was
made in or about April 1973, by a Federal Trade Commission consumer
protection specialist named Wendell A Reid, and
"2) All records and documents which refer or relate to any covert inves-
tigation, made by any employee of the Federal Trade Commission, of any
of the following companies [listing 14 companies, including respondent and
Americana Corporation]
"3) All records and documents which refer or relate to any covert inves-
tigation, made by any employee of the Federal Trade Commission, of any
person, company or other entity " App 15-16
"Covert investigation" was defined by respondent to be "any investigation
of which the subject entity was not notified in advance and prior to acts
taken pursuant to such investigation " Id , at 16 Respondent later
abandoned its requests for any documents other than those related to the
Americana investigation, defined in the first category of its request
22 OCTOBER TERM, 1982
Opinion of the Court 462 U S
that they were exempt from mandatory disclosure under
§552(b)(5)3
Pursuant to the Commission's Rules, respondent appealed
to the agency's General Counsel Following review of re-
spondent's request, and after a considerable process of give
and take, the dispute finally centered on seven documents 4
Following in camera inspection, the District Court deter-
mined that all the requested documents were exempt from
disclosure under § 552(b)(5), either as attorney work product,
as confidential attorney-client communications, or as internal
predecisional agency material On appeal, the Court of Ap-
peals held that four documents generated during the Amer-
icana litigation could not be withheld on the basis of the
work-product rule unless the Commission could show that
"litigation related to the terminated action exists or po-
tentially exists " 6 217 U S App D C 47, 50, 671 F 2d
553, 556 (1982)
The Court of Appeals reasoned that the work-product rule
encompassed by § 552(b)(5) was coextensive with the work-
product privilege under the Federal Rules of Civil Proce-
8 The requested documents are subject to mandatory disclosure as "iden-
tifiable records" under §552(a)(3), unless covered by a specific exemp-
tion In this case, the Commission claims exemption only under § 552
(bX5), which provides
"This section does not apply to matters that are —
"(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 "
4 The Commission released a number of documents after respondent filed
this suit Respondent abandoned its claim for many others See
IL 2, supra
5 Respondent withdrew its claim for disclosure of one of the seven docu-
ments. The Court of Appeals affirmed the District Court's judgment that
another was exempt as an attorney-client communication, 217 U S App
D C , at 48, n 3, 671 F 2d, at 554, n 3, and held that still another was
clearly a predectsional document not subject to disclosure under Exemp-
tion 5, uL, at 51, 671 F 2d, at 557 These rulings are not at issue here
FTC v GROLIER INC 23
19 Opinion of the Court
dure A requirement that documents must be disclosed in
the absence of the existence or potential existence of related
litigation, in the Court of Appeals' view, best comported with
the fact that the work-product privilege is a qualified one
We granted the Commission's petition for certiorari, 459
U S 986 (1982) Because we find that the Court of Ap-
peals erred m its construction of Exemption 5, we reverse
Section 552(b) lists nine exemptions from the mandatory
disclosure requirements that "represen[t] the congressional
determination of the types of information that the Executive
Branch must have the option to keep confidential, if it so
chooses " EPA v Mink, 410 U S 73, 80 (1973) The
primary purpose of one of these, Exemption 5, was to enable
the Government to benefit from "frank discussion of legal or
policy matters " S Rep No 813, 89th Cong , 1st Sess ,
9 (1965) See H R Rep No 1497, 89th Cong , 2d Sess ,
10 (1966) In keeping with the Act's policy of "the fullest
responsible disclosure," S Rep No 813, at 3, Congress
intended Exemption 5 to be "as narro[w] as [is] consistent
with efficient Government operation " Id , at 9 See H R
Rep No 1497, at 10
Both the District Court and the Court of Appeals found
that the documents at issue were properly classified as "work
product" materials, and there is no serious argument about
the correctness of this classification 6 "It is equally clear
that Congress had the attorney's work-product privilege spe-
cifically in mind when it adopted Exemption 5," the privilege
being that enjoyed in the context of discovery in civil litiga-
tion NLRB v Sears, Roebuck & Co , 421 U S 132, 154-
155 (1975), H R Rep No 1497, at 10, S Rep No 813, at 2
6 Respondent makes some assertions concerning the ethical conduct of
the Commission in continuing its investigations after the Americana suit
had been instituted and claims that the work-product rule would not apply
to documents containing evidence of unethical conduct Respondent did
not raise this issue before the District Court or the Court of Appeals and
we decline to address it
24 OCTOBER TERM, 1982
Opinion of the Court 462 U S
InHickman v Taylor, 329 U S 495, 510 (1947), the Court
recognized a quahfied immunity from discovery for the "work
product of the lawyer", such material could only be discov-
ered upon a substantial showing of "necessity or justifica-
tion " An exemption from discovery was necessary because,
as the Hickman Court stated
such materials open to opposing counsel on mere
demand, much of what is now put down in writing would
remain unwritten An attorney's thoughts, heretofore
inviolate, would not be his own Inefficiency, unfair-
ness and sharp practices would inevitably develop in the
giving of legal advice and in the preparation of cases for
trial The effect on the legal profession would be de-
moralizing And the interests of the clients and the
cause of justice would be poorly served " Id , at 511
The attorney's work-product immunity is a basic rule in the
litigation context, but like many other rules, it is not self-
defining and has been the subject of extensive litigation
Prior to 1970, few District Courts had addressed the ques-
tion whether the work-product immunity extended beyond
the litigation for which the documents at issue were pre-
pared Those courts considering the issue reached varying
results 7 By 1970, only one Court of Appeals had addressed
the issue In Republic Gear Co v Borg- Warner Corp , 381
F 2d 551, 557 (CA2 1967), the Court of Appeals held that
documents prepared in connection with litigation that was on
7 See Honeywell, Inc v Piper Aircraft Corp , 50 F R D 117 (MD Pa
1970), Bourget v Government Employees Ins Co , 48 F R D 29 (Conn
1969), Stix Products, Inc v United Merchants & Mfrs , Inc , 47 F R D
334 (SDNY 1969), LaRocca v State Farm Mutual Automobile Ins Co , 47
F R D 278 (WD Pa 1969), Kirkland v Morton Salt Co , 46 F R D 28
(ND Ga. 1968), Chitty v State Farm Mutual Automobile Ins Co , 36
F R D 37 (EDSC 1964), Insurance Co of North America v Union Car
bide Corp , 35 F R D 520 (Colo 1964), Hanover Shoe, Inc v United
Shoe Machinery Corp , 207 F Supp 407 (MD Pa 1962), Thompson v
tfotfema, 19 F R D 112 (NJ 1956), Tobacco and Allied Stocks, Inc v
Transamerica Corp , 16 F R D 534 (Del 1954)
FTC v GROLIER INC 25
19 Opinion of the Court
appeal were not subject to discovery in a related case The
court also noted that there was potential for further related
litigation Thus, at the time FOIA was enacted in 1966,
other than the general understanding that work-product
materials were subject to discovery only upon a showing of
need, no consensus one way or the other had developed with
respect to the temporal scope of the work-product privilege
In 1970, the Federal Rules of Civil Procedure were
amended to clarify the extent to which trial preparation
materials are discoverable in federal courts Rule 26(b)(3)
provides, in pertinent part
"[A] party may obtain discovery of documents and tangi-
ble things prepared in anticipation of litigation or for
trial by or for another party or by or for that other
party's representative only upon a showing that the
party seeking discovery has substantial need of the ma-
terials m the preparation of his case and that he is unable
without undue hardship to obtain the substantial equiva-
lent of the materials by other means In ordering dis-
covery of such materials when the required showing has
been made, the court shall protect against disclosure of
the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party
concerning the litigation "
Rule 26(b)(3) does not m so many words address the temporal
scope of the work-product immunity, and a review of the Ad-
visory Committee's comments reveals no express concern for
that issue Notes of Advisory Committee on 1970 Amend-
ments, 28 U S C App , pp 441-442 But the literal
language of the Rule protects materials prepared for any
litigation or trial as long as they were prepared by or for
a party to the subsequent litigation See 8 C Wright &
A Miller, Federal Practice and Procedure § 2024, p 201 (1970)
Whatever problems such a construction of Rule 26(b)(3) may
engender m the civil discovery area, see id , at 201-202, it
provides a satisfactory resolution to the question whether
26 OCTOBER TERM, 1982
Opinion of the Court 462 U S
work-product documents are exempt under the FOIA By
its own terms, Exemption 5 requires reference to whether
discovery would normally be required during litigation with
the agency Under a literal reading of Rule 26(b)(3), the
work product of agency attorneys would not be subject to dis-
covery in subsequent litigation unless there was a showing of
need and would thus fall within the scope of Exemption 5
We need not rely exclusively on any particular construction
of Rule 26(b)(3), however, because we find independently
that the Court of Appeals erred in construing Exemption 5
to protect work-product materials only if related litigation
exists or potentially exists The test under Exemption 5 is
whether the documents would be "routinely" or "normally"
disclosed upon a showing of relevance NLRB v Sears,
Roebuck & Co 421 U S , at 148-149 At the time this case
came to the Court of Appeals, all of the Courts of Appeals
that had decided the issue under Rule 26(b)(3) had deter-
mined that work-product materials retained their immunity
from discovery after termination of the litigation for which
the documents were prepared, without regard to whether
other related litigation is pending or is contemplated 8 In
addition, an overwhelming majority of the Federal District
Courts reporting decisions on the issue under Rule 26(b)(3)
were in accord with that view 9 "Exemption 5 incorporates
8 See In re Murphy, 560 P 2d 326, 334 (CAS 1977), United States v Leg
gett & Platt, Inc , 542 F 2d 655 (CA6 1976), cert denied, 430 U S 945
(1977), Duplan Corp v Mouhnage et Retordene de Chavanoz, 487 F 2d
480, 483-384 (CA4 1973) See also In re Grand Jury Proceedings, 604
F 2d 798, 803 (CA3 1979) (work-product privilege continues at least when
subsequent litigation is related) Cf Kent Corp v NLRB, 530 F 2d 612
(CAS) (work-product privilege does not turn on whether litigation actually
ensued), cert denied, 429 U S 920 (1976)
'See In re Federal Copper of Tennessee, Inc , 19 B R 177 (Bkrtcy MD
Tenn, 1982), In re International Systems & Controls Corp Securities Liti
^wm> 91 F R D 552 (SD Tex 1981), United States v Capitol Service,
Inc 89 F R D 578 (ED Wis 1981), In re LTV Securities Litigation, 89
* K D 595 (ND Tex 1981), First Wisconsin Mortgage Trust v First
FTC v GROLIER INC 27
19 Opinion of the Court
the privileges which the Government enjoys under the rele-
vant statutory and case law in the pretrial discovery con-
text " Renegotiation Board v Grumman Aircraft Engi-
neering Corp , 421 U S 168, 184 (1975) (emphasis added)
Under this state of the work-product rule it cannot fairly be
said that work-product materials are "routinely" available in
subsequent litigation
The Court of Appeals' determination that a related-litiga-
tion test best comported with the qualified nature of the
work-product rule in civil discovery — a proposition with
which we do not necessarily agree — is irrelevant in the FOIA
context It makes little difference whether a privilege is
absolute or qualified in determining how it translates into a
discrete category of documents that Congress intended to
exempt from disclosure under Exemption 5 Whether its
immunity from discovery is absolute or qualified, a protected
document cannot be said to be subject to "routine" disclosure
Under the current state of the law relating to the privilege,
work-product materials are immune from discovery unless
the one seeking discovery can show substantial need in con-
nection with subsequent litigation Such materials are thus
not "routinely" or "normally" available to parties in litigation
and hence are exempt under Exemption 5 This result, by
establishing a discrete category of exempt information, im-
plements the congressional intent to provide "workable"
rules See S Rep No 813, at 5, H R Rep No 1497, at 2
Respondent urges that the meaning of the statutory lan-
guage is "plain" and that, at least in this case, the requested
Wisconsin Corp , 86 F R D 160 (ED Wis 1980), Panter v Marshall
Field & Co , 80 F R D 718 (ND 111 1978), United States v O K Tire &
Rubber Co , 71 F R D 465 (Idaho 1976), SCM Corp v Xerox Corp , 70
F R D 508 (Conn ), appeal dism'd, 534 F 2d 1031 (1976), Burlington In-
dustries v Exxon Corp , 65 F R D 26 (Md 1974) See also Hercules,
Inc v Exxon Corp , 434 F Supp 136 (Del 1977) (protected when cases
are closely related in parties or subject matter), Ohio Sealy Mattress Mfg
Co v Sealy, Inc , 90 F R D 45 (ND 111 1981) (protected in later related
litigation)
28 OCTOBER TERM, 1982
Opinion of BRENNAN, J 462 U S
documents must be disclosed because the same documents
were ordered disclosed during discovery in previous liti-
gation It does not follow, however, from an ordered dis-
closure based on a showing of need that such documents
are routinely available to litigants The logical result of
respondent's position is that whenever work-product docu-
ments would be discoverable in any particular litigation, they
must be disclosed to anyone under the FOIA We have
previously rejected that line of analysis In NLRB v Sears,
Roebuck & Co , supra, we construed Exemption 5 to "ex-
empt those documents, and only those documents, normally
privileged in the civil discovery context " 421 U S , at 149
(Emphasis added ) It is not difficult to imagine litigation m
which one party's need for otherwise privileged documents
would be sufficient to override the privilege but that does not
remove the documents from the category of the normally
privileged See id , at 149, n 16
Accordingly, we hold that under Exemption 5, attorney
work product is exempt from mandatory disclosure without
regard to the status of the litigation for which it was pre-
pared Only by construing the Exemption to provide a cate-
gorical rule can the Act's purpose of expediting disclosure by
means of workable rules be furthered The judgment of the
Court of Appeals is reversed
It is so ordered
JUSTICE BRENNAN, with whom JUSTICE BLACKMUN joins,
concurring in part and concurring in the judgment
The Court rests its judgment on two alternative holdings
one a construction of Federal Rule of Civil Procedure
26(b)(3), ante, at 26, the other a more limited holding under
Exemption 5 of the Freedom of Information Act (FOIA), 5
USC §552(b)(5), ante, at 26 I find the latter holding
unpersuasive and accordingly would rest exclusively on the
former
FTC v GROLIER INC 29
!9 Opinion of BRENNAN, J
I
I agree wholeheartedly with the Court that Rule 26(b)(3)
itself does not incorporate any requirement that there be
actual or potential related litigation before the protection of
the work-product doctrine applies As the Court notes, "the
literal language of the Rule protects materials prepared for
any litigation or trial as long as they were prepared by or
for a party to the subsequent litigation " Ante, at 25 A
contrary interpretation such as that adopted by the Court
of Appeals would work substantial harm to the policies that
the doctrine is designed to serve and protect We described
the reasons for protecting work product from discovery in
Hickman v Taylor, 329 U S 495 (1947)
"In performing his various duties, it is essential that
a lawyer work with a certain degree of privacy, free
from unnecessary intrusion by opposing parties and their
counsel Proper preparation of a client's case demands
that he assemble information, sift what he considers
to be the relevant from the irrelevant facts, prepare
his legal theories and plan his strategy without undue
and needless interference This work is reflected,
of course, in interviews, statements, memoranda, cor-
respondence, briefs, mental impressions, personal be-
liefs, and countless other tangible and intangible ways —
aptly though roughly termed the 'work product of
the lawyer ' Were such materials open to opposing
counsel on mere demand, much of what is now put down
in writing would remain unwritten An attorney's
thoughts, heretofore inviolate, would not be his own
Inefficiency, unfairness and sharp practices would inev-
itably develop in the giving of legal advice and in the
preparation of cases for trial The effect on the legal
profession would be demoralizing And the interests of
the clients and the cause of justice would be poorly
served " Id , at 510-511
30 OCTOBER TERM, 1982
Opinion of BRENNAN, J 462 U S
The Court of Appeals is doubtless correct in its view that
the need to protect attorney work product is at its greatest
when the litigation with regard to which the work product
was prepared is still in progress, but it does not follow that
the need for protection disappears once that litigation (and
any "related" litigation) is over The invasion of "[a]n attor-
ney's thoughts, heretofore inviolate," and the resulting de-
moralizing effect on the profession, are as great when the
invasion takes place later rather than sooner More con-
cretely, disclosure of work product connected to prior litiga-
tion can cause real harm to the interests of the attorney and
his client even after the controversy in the prior litigation is
resolved Many Government agencies, for example, deal
with hundreds or thousands of essentially similar cases in
which they must decide whether and how to conduct enforce-
ment litigation Few of these cases will be "related" to each
other in the sense of involving the same private parties or
arising out of the same set of historical facts, yet large classes
of them may present recurring, parallel factual settings and
identical legal and policy considerations l It would be of
substantial benefit to an opposing party (and of correspond-
ing detriment to an agency) if the party could obtain work
product generated by the agency in connection with earlier,
similar litigation against other persons He would get the
benefit of the agency's legal and factual research and reason-
ing, enabling him to litigate "on wits borrowed from the ad-
1 It is possible, I suppose, that such suits might be considered "related"
in a very broad reading of the Court of Appeals' "related litigation" test,
the courts adopting the test have not had occasion to explore its outer
boundaries But this possibility merely reveals a dilemma If the test is
read so broadly as to classify similar but factually unrelated suits as "re-
lated," it is virtually no limitation on the work-product doctrine at all, since
almost any work product document otherwise discoverable under Rule
26(b)(l) wffl have originated in "related" litigation But to the extent that
the "related" test is read any more narrowly than that, it threatens to
cause the harm discussed in text Hence, the test is either harmful or
toothless
FTC v GROLIER INC 31
!9 Opinion of BRENNAN, J
versary " Id , at 516 (Jackson, J , concurring) Worse yet,
he could gain insight into the agency's general strategic and
tactical approach to deciding when suits are brought, how
they are conducted, and on what terms they may be settled
Nor is the problem limited to Government agencies Any
litigants who face litigation of a commonly recurring type —
liability insurers, manufacturers of consumer products or ma-
chinery, large-scale employers, securities brokers, regulated
industries, civil rights or civil liberties organizations, and so
on — have an acute interest in keeping private the manner in
which they conduct and settle their recurring legal disputes
Counsel for such a client would naturally feel some inhibition
in creating and retaining written work product that could
later be used by an "unrelated" opponent against him and his
client Counsel for less litigious clients as well might have
cause for concern in particular cases, fear of even one future
"unrelated" but similar suit might instill an undesirable cau-
tion, and neither client nor counsel can always be entirely
sure what might lie over the horizon This is precisely the
danger of "[inefficiency, unfairness [,] sharp practices"
and demoralization that Hickman warned against 2
2 See generally, e g , In re Murphy, 560 F 2d 326, 333-335 (CAS 1977),
United States v Leggett & Plait, Inc , 542 F 2d 655, 659-660 (CA6 1976),
Duplan Corp v Mouhnage et Retordene de Chavanoz, 509 F 2d 730 (CA4
1974), Duplan Corp v Mouhnage et Retordene de Chavanoz, 487 F 2d
480 (CA4 1973)
The Court of Appeals reasoned that "[e]xtendmg the work-product pro
tection only to subsequent related cases best comports with the fact that
the privilege is qualified, not absolute " 217 U S App D C 47, 50, 671
F 2d 553, 556 (1982) (footnote omitted) In my view, this mistakes by 180
degrees the significance of the qualified nature of the privilege As an-
other Court of Appeals has explained
"Were the work product doctrine an unpenetrable protection against dis
covery, we would be less willing to apply it to work produced in anticipa-
tion of other litigation But the work product doctrine provides only a
qualified protection against discovery " Leggett & Plait, supra, at 660
Indeed, to the extent that the need for protection of work product does
decrease after the end of a suit, that fact might in some cases lower the
32 OCTOBER TERM, 1982
Opinion of BRENNAN, J 462 U S
I do not understand the Court's holding on this point to be
limited to the FOIA context The Court itself quite accu-
rately characterizes its first holding as a "particular construc-
tion of Rule 26(b)(3) " Ante, at 26 Indeed, it could hardly
do otherwise, since the plain meaning of Exemption 5 is that
the scope of the Exemption is coextensive with the scope of
the discovery privileges it incorporates "Exemption 5
exempt[s] those documents, and only those documents, nor-
mally privileged in the civil discovery context " NLRB v
Sears, Roebuck & Co , 421 U S 132, 149 (1975) (footnote
omitted) See also id , at 154-155, Federal Open Market
Committee v Merrill, 443 U S 340, 353 (1979), Renegotia-
tion Board v Grumman Aircraft Corp , 421 U S 168, 184
(1975), EPA v Mink, 410 U S 73, 85-86, 91 (1973) 3 Thus,
nothing in either FOIA or our decisions construing it author-
izes us to define the coverage of the work-product doctrine
under Exemption 5 differently from the definition of its cov-
erage that would obtain under Rule 26(b)(3) in an ordinary
lawsuit If a document is work product under the Rule, and
if it is an "inter-agency or mtra-agency memorandu[m] or
lette[r]" under the Exemption, it is absolutely exempt 4
threshold for overcoming the work product barrier A party seeking dis-
covery of work product must show that "he is unable without undue hard-
ship to obtain the substantial equivalent of the materials by other means,"
Rule 26(b)(3) What hardship is "undue" depends on both the alternative
means available and the need for continuing protection from discovery
See 8 C Wright & A Miller, Federal Practice and Procedure § 2024, p 202
(1970)
3But see Federal Open Market Committee v Merrill, 443 U S , at 354
"[I]t is not clear that Exemption 5 was intended to incorporate every privi-
lege known to civil discovery " Of course, it is settled that the Exemption
does incorporate the work-product doctrine NLRB v Sears, Roebuck &
Co , 421 U S , at 154-155
4 We held in Sears that Exemption 5 does not apply to "final opinions"
explaining agency actions already taken or agency decisions already made
Id , a£ 150-154 The gist of our holding was that such documents are not
mtfam any privilege incorporated into Exemption 5— specifically, that they
FTC v GROLIER INC 33
19 Opinion of BRENNAN, J
II
Since the Court rejects the "related litigation" test under
Rule 26(b)(3), and since that holding necessarily governs the
application of the work-product doctrine under Exemption 5,
it need go no further The Court proceeds, however, to put
forward a second holding directly under FOIA It reasons
that work product generated in connection with a prior, unre-
lated litigation would not be " 'routinely' available in subse-
quent litigation/' ante, at 27, because at the time of the Court
of Appeals' decision in this case a majority of federal courts
that had decided the issue had rejected the "related litiga-
tion" test Ante, at 26-27 This holding apparently would
preclude disclosure under FOIA even in a district or circuit
where the precedents under Rule 26(b)(3) do incorporate the
"related litigation" test, since the "majority view" does not
depend on the location of the library in which one reads the
cases 5 I grant that uniformity of statutory interpretation is
a good thing as a general matter, but I cannot see taking it
this far
I confess that the source from which the Court draws its
reasoning is a mystery to me I know of no other statutory
context in which the test of discoverability (or anything else)
is not what the correct view of the law is, but what the cur-
are not covered by the Government's executive privilege Ibid The
same would be true of the work product doctrine, it is difficult to imagine
how a final decision could be "prepared in anticipation of litigation or for
trial," Rule 26(b)(3) It is also questionable whether such decisions would
constitute "inter-agency or intra-agency memorandums or letters," 5
USC §552(b)(5)
5 Presumably, this principle would work in reverse as well That is, if
the settled law of a particular district under Rule 26(b)(3) were that a par-
ticular type of document (some sort of investigative report, say) is within
the work-product doctrine, but a majority of other courts disagreed, the
district court entertaining a FOIA suit would be obliged to follow the ma-
jority view and grant disclosure, even though the same document would
not be "routinely" disclosed in an ordinary lawsuit in that district
34 OCTOBER TERM, 1982
Opinion of BRENNAN, J 462 U S
rent majority view is 6 Certainly the plain language of the
statute is to the contrary, it directs a court to exempt mate-
rial "which would not be available by law to a party in
litigation with the agency " 5U S C § 552(b)(5) (emphasis
added) "By law" presumably means "by the law as cor-
rectly construed by the court deciding the case at hand/' not
"by the law as construed (whether correctly or incorrectly)
by a majority of other federal courts " The Court draws
the words "routinely" and "normally" from Sears, supra, at
149, and n 16 But as a quick perusal of that case reveals,
all we were saying there was that once a privilege is held to
apply under Exemption 5, it applies absolutely, without
regard to whether a party in ordinary discovery might
be able to overcome the privilege by some showing of need
(an understanding the Court itself embraces, ante, at 28)
Alternatively, the Court cites our statement in Grumman
Aircraft, supra, at 184, that "Exemption 5 incorporates the
privileges which the Government enjoys under the relevant
statutory and case law in the pretnal discovery context "
Ante, at 26-27 (emphasis by the Court) Again, however,
the context of the quoted passage makes clear that it refers
simply to the extent to which the correct state of the law with
regard to a privilege may be embodied in cases interpreting a
statute or erecting a nonstatutory privilege The scope of
the work-product doctrine on a particular disputed point, for
example, may be laid out in some binding precedent of the
district court entertaining a given FOIA suit, of the court of
appeals for that circuit, or of this Court Absent a control-
6 One might posit a different sort of incorporation of case law — one in
which the relevant law was that in existence in 1966, when FOIA was en-
acted The Court wisely declines to adopt this reading There is nothing
in FOIA that indicates that it intended to "freeze" the law that existed m
1966, the phrase "available by law" certainly seems to refer to the law at
any given tame Indeed, this reading would preclude recognition of subse-
quent changes in statutory law, such as the adoption of Rule 26(b)(3) m
197®
FTC u GROLIER INC. 35
19 Opinion of BRENNAN, J.
ling precedent, of course, the district court would ordinarily
look to the decisions of other courts to inform its own con-
struction of Rule 26(b)(3). But nothing in Exemption 5,
Sears, Grumman Aircraft, or anything else of which I am
aware authorizes or directs that district court to do anything
other than to determine what the legally correct interpreta-
tion of the doctrine is, and then to apply it — even if the inter-
pretation it reaches is contrary to that of a majority of other
courts. Under the Court's reading of the word "routinely/7
however, it appears that the district court would be obliged
to adhere to the majority view even if there were unmistak-
able precedent in its circuit construing Rule 26(b)(3) to the
contrary. I see no warrant for this astonishing principle.
Hence, although I agree with the Court's construction of
Rule 26(b)(3), I join only its judgment.
36 OCTOBER TERM, 1982
Syllabus 462 U S
WATT, SECRETARY OF THE INTERIOR, ET AL v
WESTERN NUCLEAR, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No 81-1686 Argued January 17, 1983 — Decided June 6, 1983
The Stock Raising Homestead Act of 1916 (SRHA) provided for the settle-
ment of homesteads on lands the surface of which was "chiefly valuable
for grazing and raising forage crops " Section 9 of the SRHA reserved
to the United States title to "all the coal and minerals" in lands patented
under the Act When respondent mining company acquired a fee inter-
est in land covered by a patent under the Act, it proceeded to remove
gravel from a pit located on the land to use in paving streets and side-
walks in a company town where its workers lived The Bureau of Land
Management then notified respondent, and later determined, after a
hearing, that the removal of the gravel constituted a trespass in violation
of a Department of the Interior regulation for which respondent was
liable in damages to the United States The Interior Board of Land
Appeals affirmed, holding that gravel is a mineral reserved to the United
States in patents issued under the SRHA Respondent then filed suit
in Federal District Court, which affirmed, but the Court of Appeals
reversed
Held Gravel found on lands patented under the SRHA is a mineral
reserved to the United States within the meaning of § 9 of the Act
Pp 42-60
(a) For a substance to be a mineral reserved under the SRHA, it must
not only be a mineral within a famihar definition of that term, as is
gravel, but must also be the type of mineral that Congress intended to
reserve to the United States in lands patented under the Act Pp 42-46
(b) Congress' purpose in the SRHA of facilitating the concurrent de-
velopment of both surface and subsurface resources supports construing
the mineral reservation to encompass gravel While Congress expected
that homesteaders would use the surface of SRHA lands for stockraismg
and raising crops, it sought to ensure that valuable subsurface resources
would remain subject to disposition by the United States, under the gen-
eral mining laws or otherwise, to persons interested in exploiting them
Given Congress* understanding that the surface of SRHA lands would
be used for ranching and farming, the mineral reservation in the Act
is properly interpreted to include substances, such as gravel, that are
mineral in character, can be removed from the soil, and can be used for
WATT v WESTERN NUCLEAR, INC 37
3g Opinion of the Court
commercial purposes, and that there is no reason to suppose were in-
tended to be included m the surface estate Pp 46-56
(c) The conclusion that gravel is a mineral for purposes of the SRHA is
also supported by the treatment of gravel under other federal statutes
concerning minerals, and by federal administrative and judicial decisions
over the last 50 years that have consistently recognized that gravel de-
posits could be located under the general mining laws Pp 56-59
(d) Finally, this conclusion is further buttressed by the rule that land
grants are construed favorably to the Government This rule applies
here with particular force, because the legislative history of the SRHA
reveals Congress' understanding that the mineral reservation would limit
the operation of the Act strictly to the surface of the lands Pp 59-60
664 F 2d 234, reversed
MARSHALL, J , delivered the opinion of the Court in which BURGER,
C J , and BRENNAN, WHITE, and BLACKMUN, JJ joined POWELL, J ,
filed a dissenting opinion, in which RHINQI isr, STEVENS, and O'CONNOR,
JJ , joined, post, p 60 STEVENS, J , filed a dissenting opinion, pout
p 72
John H Garvey argued the cause for petitioners With
him on the briefs were Assistant Attorney General Dinkini,
Deputy Solicitor General Claiborne, and Robert L Klarqmst
Harley W Shaver argued the cause for respondent With
him on the brief was John H Licht *
JUSTICE MARSHALL delivered the opinion of the Court
The Stock-Raising Homestead Act of 1916, the last of the
great Homestead Acts, provided for the settlement of home-
steads on lands the surface of which was "chiefly valuable for
grazing and raising forage crops" and "not susceptible of irri-
gation from any known source of water supply " 43 U S C
§292 Congress reserved to the United States title to *4all
the coal and other minerals** m lands patented under the Act
43 U S C §299 The question presented by this case is
*Bnefs of amici cunae urging affirmance were filed by Glmm Parker
and Steven F Freudenthal, Attorney General of Wyoming, for the Wyo-
ming Stock Brokers Association et al ( and by Thoma* E Meachum and
Edward Gould Burton for Eklutna, Inc
38 OCTOBER TERM, 1982
Opinion of the Court 462 U S
whether gravel found on lands patented under the Act is a
mineral reserved to the United States
I
A
The Stock-Raising Homestead Act of 1916 (SRHA), 39
Stat 862, 43 U S C § 291 et seq , permitted any person
qualified to acquire land under the general homestead laws,
Act of May 20, 1862, 12 Stat 392, as amended, 43 U S C
§ 161 et seq , to make "a stock-raising homestead entry" on
"unappropriated, unreserved public lands designated by
the Secretary of the Interior as 'stock-raising lands ' " l 43
U S C § 291 The Secretary of the Interior was author-
ized to designate as stockraismg lands only
'lands the surface of which is, in his opinion, chiefly valu-
able for grazing and raising forage crops, do not contain
merchantable timber, are not susceptible of irrigation
from any known source of water supply, and are of such
character that six hundred and forty acres are reason-
ably required for the support of a family " 43 U S C
§292
To obtain a patent, an entryman was required to reside on
the land for three years, 43 U S C § 293, incorporating by
reference 37 Stat 123, ch 153, 43 U S C § 164, and "to
make permanent improvements upon the land tending to
increase the value of the [land] for stock-raising purposes of
the value of not less than $1 25 per acre " 43 U S C § 293
Section 9 of the Act, the provision at issue in this case,
stated that "[a]U entries made and patents issued shall be
1The SRHA was effectively suspended by executive action taken pursu-
ant to the Taylor Grazing Act, 48 Stat 1269, ch 865, 43 U S C § 315 et
&eq Both the SRHA and the general homestead laws were repealed by
the Federal Land Policy and Management Act of 1976, 90 Stat 2743, 43
U S C § 1701 et seq Existing patents were unaffected by the repeal
WATT v WESTERN NUCLEAR, INC 39
36 Opinion of the Court
subject to and contain a reservation to the United States of
all the coal and other minerals m the lands so entered and
patented, together with the right to prospect for, mine, and
remove the same " 39 Stat 864, as amended, 43 U S C
§ 299 Section 9 further provided that "[t]he coal and other
mineral deposits in such lands shall be subject to disposal
by the United States in accordance with the provisions of
the coal and mineral land laws in force at the time of such
disposal "
B
On February 4, 1926, the United States conveyed a tract of
land near Jeffrey City, Wyo , to respondent's predecessor-
in-mterest The land was conveyed by Patent No 974013
issued pursuant to the SRHA As required by §9 of the
Act, 43 U S C §299, the patent reserved to the United
States "all the coal and other minerals" in the land
In March 1975 respondent Western Nuclear, Inc , acquired
a fee interest in a portion of the land covered by the 1926 pat-
ent Western Nuclear is a mining company that has been in-
volved in the mining and milling of uranium ore in and around
Jeffrey City since the early 1950's In its commercial opera-
tions Western Nuclear uses gravel for such purposes as pav-
ing and surfacing roads and shoring the shaft of its uranium
mine In view of the expense of having gravel hauled in
from other towns, the company decided that it would be
economical to obtain a local source of the material, and it
acquired the land in question so that it could extract gravel
from an open pit on the premises
After acquiring the land, respondent obtained from the
Wyoming Department of Environmental Quality, a state
agency, a permit authorizing it to extract gravel from the pit
located on the land Respondent proceeded to remove some
43,000 cubic yards of gravel It used most of this gravel for
paving streets and pouring sidewalks in nearby Jeffrey City,
a company town where respondent's mill and mine workers
lived
40 OCTOBER TERM, 1982
Opinion of the Court 462 U S
On November 3, 1975, the Wyoming State Office of the Bu-
reau of Land Management (BLM) served Western Nuclear
with a notice that the extraction and removal of the gravel
constituted a trespass against the United States m violation
of 43 CFR §92390-7 (1975), current version at 43 CFR
§9239 0-7 (1982), a regulation promulgated by the Depart-
ment of the Interior under the Materials Act of 1947, 61 Stat
681, as amended by the Surface Resources Act of 1955, 69
Stat 367, 30 U S C §§601-615 The regulation provides
that "[t]he extraction, severance, injury, or removal of tim-
ber or mineral materials from public lands under the jurisdic-
tion of the Department of the Interior, except when author-
ized by law and the regulations of the Department, is an act
of trespass "
The BLM's appraisal report described the gravel deposit as
follows
"The deposit located on the property is an alluvial gravel
with 6 4 acres of the 14 acre parcel mined for gravel
There are 6-12 inches of overburden on the site It
is estimated that the deposit thickness will average 10
feet or more in thickness " 85 I D 129, 131 (1978)
In a technical analysis accompanying the appraisal report,
geologist William D Holsheimer observed that "[t]he gravel
is overlain by a soil cover of fairly well developed loamy sand,
some 12-18 inches in thickness," and that "[tjhere is a rela-
tively good vegetative cover, consisting mainly of sagebrush,
and an understory of various native grasses " Id , at 132
The appraisal report concluded that "the highest and best use
of the property is for a mineral material (gravel) site " Id ,
at 131
After a hearing, the BLM determined that Western Nu-
clear had committed an unintentional trespass Using a roy-
alty rate of 300 per cubic yard, the BLM ruled that Western
Nuclear was liable to the United States for $13,000 m dam-
ages for the gravel removed from the site On appeal to the
Interior Board of Land Appeals (IBLA), the IBLA affirmed
WATT v WESTERN NUCLEAR, INC 41
30 Opinion of the Court
the ruling that Western Nuclear had committed a trespass,
holding that "gravel in a valuable deposit is a mineral re-
served to the United States in patents issued under the
Stock-Raising Homestead Act " Id , at 139 2
Western Nuclear then filed suit in the United States Dis-
trict Court for the District of Wyoming, seeking review of
the Board's decision pursuant to the Administrative Proce-
dure Act, 5 U S C § 701 et seq The District Court af-
firmed the ruling that the mineral reservation in the SRHA
encompasses gravel Western Nuclear, Inc v Andrus, 475
F Supp 654 (1979) Recognizing that "the term 'mineral'
does not have a closed, precise meaning," id , at 662, the
District Court concluded that the Government's position is
supported by the principle that public land grants are to be
narrowly construed, ibid , and by "the legislative history,
contemporaneous definitions, and court decisions," id , at 663 3
2 The IBLA also affirmed the BLM's calculation of damages on the basis
of a royalty rate of 300 per cubic yard, rejecting Western Nuclear's claim
that the use of this rate was arbitrary, capricious, and unreasonable
85 I D , at 139 The Board adjusted the damages from the appraiser's
rounded off figure of $13,000 to $12,802 50 Id , at 140
8 Following the District Court's ruling, the Wyoming Stock Growers As-
sociation (WSGA), which had intervened in the proceedings, filed a motion
requesting that the court alter or amend its order or hold a new trial It
expressed the concern that a ruling in favor of the Government in its action
against respondent would mean ranchers could not use gravel on lands
patented under the SKHA At a hearing on the WSGA's motions, the
Government sought to lay this concern to rest
"What the United States is concerned about are commercial gravel opera-
tions The United States [does] not see how a commercial gravel opera-
tion in any way, shape or form lends itself to helping the rancher All it
does is len[d] itself to helping the mineral company or whoever happens to
have a commercial operation In fact, we would think it would take
the land out of the ranch production
"The United States also has no intention of claiming trespass for [the use
of] sand and gravel on [the rancher's] own land for purposes related to
ranching That is not the intent of the United States "
The Government, the WSGA, and two other intervenors entered into a
stipulation providing that the District Court's judgment would not bar the
42 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Respondent appealed to the Court of Appeals for the Tenth
Circuit That court reversed, holding that the gravel ex-
tracted by Western Nuclear did not constitute a mineral re-
served to the United States under the SRHA Western Nu-
clear, Inc v Andms, 664 F 2d 234 (1981) In reaching this
conclusion, the Tenth Circuit relied heavily on a ruling made
by the Secretary of the Interior prior to the enactment of the
SRHA that land containing valuable deposits of gravel did
not constitute "mineral land" beyond the reach of the home-
stead laws Id , at 240 The court also relied on an analogy
to "ordinary rocks and stones," id , at 242, which it said
cannot be reserved minerals, lest patentees be left with
"only the dirt, and little or nothing more " Ibid The court
reasoned that "if ordinary rocks are not reserved minerals, it
follows that gravel, a form of fragmented rock, also is not a
reserved mineral " Ibid
In view of the importance of the case to the administration
of the more than 33 million acres of land patented under the
SRHA,4 we granted certiorari 456 U S 988 (1982) We
now reverse
II
As this Court observed in a case decided before the SRHA
was enacted, the word "minerals" is "used in so many senses,
dependent upon the context, that the ordinary definitions of
intervenors "from raising, in the future, issues of fact and law concerning
their property rights in sand and gravel " App to Pet for Cert 44a
The stipulation was approved by the District Court and incorporated in its
judgment
4 See Dept of Interior, Report of Director of Bureau of Land Manage-
ment, 1948, Statistical Appendix, Table 17, p 22
Whether gravel is a mineral for purposes of the SRHA is an issue of first
impression in the federal courts In a state condemnation proceeding the
New Mexico Supreme Court held, with little explanation, that gravel does
ix>t constitute a mineral reserved to the United States under the Act
State ex rel Highway Comm'n v Trujillo, 82 N M 694 487 P 2d 122
(1971)
WATT v WESTERN NUCLEAR, INC 43
36 Opinion of the Court
the dictionary throw but little light upon its signification in
a given case " Northern Pacific R Co v Soderberg, 188
U S 526, 530 (1903) In the broad sense of the word, there
is no doubt that gravel is a mineral, for it is plainly not animal
or vegetable But "the scientific division of all matter into
the animal, vegetable or mineral kingdom would be absurd
as applied to a grant of lands, since all lands belong to the
mineral kingdom " Ibid While it may be necessary that
a substance be inorganic to qualify as a mineral under the
SRHA, it cannot be sufficient If all lands were considered
"minerals" under the SRHA, the owner of the surface estate
would be left with nothing
Although the word "minerals" in the SRHA therefore can-
not be understood to include all inorganic substances, gravel
would also be included under certain narrower definitions of
the word For example, if the term "minerals" were under-
stood in "its ordinary and common meaning [as] a compre-
hensive term including every description of stone and rock
deposit, whether containing metallic or non-metallic sub-
stances," Waugh v Thompson Land & Coal Co , 103 W Va
567, 571, 137 S E 895, 897 (1927), see, e g , Board of
County Comm'rs v Good, 44 N M 495, 498, 105 P 2d 470,
472 (1940), White v Miller, 200 N Y 29, 38-39, 92 N E
1065, 1068 (1910), gravel would be included If, however,
the word "minerals" were understood to include only inor-
ganic substances having a definite chemical composition, see,
e g , Ozark Chemical Co v Jones, 125 F 2d 1, 2 (CA10
1941), cert denied, 316 U S 695 (1942), Lilhngton Stone Co
v Maxwell, 203 N C 151, 152, 165 S E 351, 352 (1932),
United States v Aitken, 25 Philippine 7, 14 (1913), gravel
would not be included
The various definitions of the term "minerals" serve only to
exclude substances that are not minerals under any common
definition of that word Cf United States v Toole, 224 F
Supp 440 (Mont 1963) (deposits of peat and peat moss, sub-
stances which are high in organic content, do not constitute
44 OCTOBER TERM, 1982
Opinion of the Court 462 U S
mineral deposits for purposes of the general mining laws)
For a substance to be a mineral reserved under the SRHA, it
must be not only a mineral within one or more familiar defini-
tions of that term, as is gravel, but also the type of mineral
that Congress intended to reserve to the United States in
lands patented under the SRHA Cf Andrus v Charlestone
Stone Products Co , 436 U S 604, 611 (1978) 5
The legal understanding of the term "minerals" prevailing
in 1916 does not indicate whether Congress intended the min-
eral reservation in the SRHA to encompass gravel On the
one hand, in Northern Pacific R Co v Soderberg, supra,
this Court had quoted with approval a statement in an Eng-
lish case that " 'everything except the mere surface, which is
used for agricultural purposes, anything beyond that which
is useful for any purpose whatever, whether it is gravel, mar-
ble, fire clay, or the like, conies within the word "mineral"
when there is a reservation of the mines and minerals from
a grant of land '" 188 U S , at 536 (emphasis added), quot-
ing Midland R Co v Checkley, L R 4 Eq 19, 25 (1867)
5 The specific hsting of coal in the reservation clause of the SRHA sheds
no light on what Congress meant by the term "minerals " See Skeen v
Lynch, 48 F 2d 1044, 1046-1047 (CA10), cert denied, 284 U S 633 (1931)
There were special reasons for expressly addressing coal that negate any
inference that the phrase "and other minerals" was meant to reserve only
substances eyusdem generis The legal context in which the SRHA was
enacted suggests that Congress specifically listed coal to make clear that
coal was reserved even though existing law treated it differently from
other minerals Coal had been exempted from the application of the gen-
eral mining laws See Coal Lands Act of 1873, 17 Stat 607, current ver-
sion at 30 U S C § 71 et seq In addition, the Coal Lands Acts of 1909
and 1910 permitted the acquisition of lands containing coal under patents
reserving the coal to the United States 35 Stat 844, current version at
30 U S C § 81, 36 Stat 583, ch 318, current version at 30 U S C § 83 et
seq See also Act of Apr 30, 1912, 37 Stat 105, ch 99, 30 U S C § 90
That the express listing of coal was not intended to limit the phrase "other
minerals" is confirmed by the alternate use of the phrases "coal and other
minerals" and "all minerals" in the House Report on the bill that became
the SRHA. See H R Rep No 35, 64th Cong , 1st Sess , 18 (1916)
WATT v WESTERN NUCLEAR, INC 45
35 Opinion of the Court
Soderberg concerned the proper classification of property
chiefly valuable for granite quarries under an 1864 statute
which granted certain property to railroads but exempted
"mineral lands " The Court held that the property fell
within the exemption, concluding that "mineral lands include
not merely metalliferous lands, but all such as are chiefly
valuable for their deposits of a mineral character, which are
useful in the arts or valuable for purposes of manufacture "
188 U S , at 536-537 6
On the other hand, in 1910 the Secretary of the Interior re-
jected an attempt to cancel a homestead entry made on land
alleged to be chiefly valuable for the gravel and sand located
thereon Zimmerman v Brunson, 39 L D 310, overruled,
Layman v Elhs, 52 L D 714 (1929) Zimmerman claimed
that gravel and sand found on the property could be used
for building purposes and that the property therefore con-
stituted mineral land, not homestead land In refusing to
cancel Branson's homestead entry, the Secretary explained
that "deposits of sand and gravel occur with considerable
frequency in the public domain " 39 L D , at 312 He con-
cluded that land containing deposits of gravel and sand useful
for building purposes was not mineral land beyond the reach
of the homestead laws, except in cases in which the deposits
"possess a peculiar property or characteristic giving them a
special value " Ibid
Respondent errs in relying on Zimmerman as evidence
that Congress could not have intended the term "minerals" to
encompass gravel Although the legal understanding of a
6 Relying on Soderberg , the Supreme Court of Oregon subsequently held
that "land more valuable for the building sand it contains than for agricul-
ture is mineral within the meaning of the United States mining stat-
utes " Loney v Scott, 57 Ore 378, 385, 112 P 172, 175 (1910) See also
State ex rel Atkinson v Evans, 46 Wash 219, 223-224, 89 P 565, 567-568
(1907) (relying on Soderberg in holding that land containing valuable depos-
its of limestone, silica, sihcated rock, and clay constituted mineral land
under a state statute)
46 OCTOBER TERM, 1982
Opinion of the Court 462 U S
word prevailing at the time it is included in a statute is a
relevant factor to consider in determining the meaning that
the legislature ascribed to the word, we do not see how any
inference can be drawn that the 64th Congress understood
the term "minerals" to exclude gravel It is most unlikely
that many Members of Congress were aware of the ruling in
Zimmerman, which was never tested in the courts and was
not mentioned in the Reports or debates on the SRHA Cf
Helvenng v New York Trust Co , 292 U S 455, 468 (1934)
Even if Congress had been aware of Zimmerman, there would
be no reason to conclude that it approved of the Secretary's
ruling in that case rather than this Court's opinion in Soder-
berg, which adopted a broad definition of the term "mineral"
and quoted with approval a statement that gravel is a mineral 7
III
Although neither the dictionary nor the legal understand-
ing of the term "minerals" that prevailed in 1916 sheds much
7 Quite apart from Soderberg, even if Congress had been aware of Zim-
merman, there would be little basis for inferring that it intended to follow
the specific ruling in that case rather than the Interior Department's gen-
eral approach in classifying land as mineral land or nonmmeral land As a
leading contemporary treatise pointed out, 2 C Lindley, American Law
Relating to Mining and Mineral Lands § 424, p 996, and n 78 (3d ed 1914),
Zimmerman was inconsistent with the Department's traditional treatment
of the problem Whereas the Secretary emphasized in Zimmerman that
gravel is a common substance, other Department rulings recognized that
land containing deposits of other common substances constituted "mineral
land" if the deposits were found "in quantity and quality sufficient to
render the land more valuable on account thereof than for agricultural
purposes " Pacific Coast Marble Co v Northern Pacific R Co , 25 L D
233, 245 (1897) See Bennett v Moll, 41 L D 584 (1912) (pumice),
McGlenn v Wienbroeer, 15 L D 370 (1892) (building stone), H P Ben-
nett, Jr , 3 L D 116 (1884) (building stone), W H Hooper, 1 L D 560
(1881) (gypsum)
In 1913 the Interior Department itself listed gravel as a mineral in a
comprehensive study of the public lands Dept of Interior, United States
Geological Survey, Bulletin 537, The Classification of the Public Lands
loo — 139 (1913)
WATT v WESTERN NUCLEAR, INC 47
36 Opinion of the Court
light on the question before us, the purposes of the SRHA
strongly support the Government's contention that the min-
eral reservation in the Act includes gravel As explained
below, Congress' underlying purpose in severing the surface
estate from the mineral estate was to facilitate the concur-
rent development of both surface and subsurface resources
While Congress expected that homesteaders would use the
surface of SRHA lands for stockraismg and raising crops, it
sought to ensure that valuable subsurface resources would
remain subject to disposition by the United States, under the
general mining laws or otherwise, to persons interested in
exploiting them It did not wish to entrust the development
of subsurface resources to ranchers and farmers Since Con-
gress could not have expected that stockraismg and raising
crops would entail the extraction of gravel deposits from the
land, the congressional purpose of facilitating the concurrent
development of both surface and subsurface resources is best
served by construing the mineral reservation to encompass
gravel
A
The SRHA was the most important of several federal land-
grant statutes enacted in the early 1900's that reserved min-
erals to the United States rather than classifying lands as
mineral or nonmineral Under the old system of land classi-
fication, the disposition of land owned by the United States
depended upon whether it was classified as mineral land or
nonmineral land, and title to the entire land was disposed of
on the basis of the classification This system of land classifi-
cation encouraged particular uses of entire tracts of land de-
pending upon their classification as mineral or nonmineral
With respect to land deemed mineral in character, the mining
laws provided incentives for the discovery and exploitation of
minerals, but the land could not be disposed of under the
major land-grant statutes 8 With respect to land deemed
8 For example, mineral land was exempted from the homestead laws, Act
of June 21, 1866, §1, 14 Stat 66, ch 127, 43 U S C §201, from stat-
48 OCTOBER TERM, 1982
Opinion of the Court 462 U S
nonmineral in character, the land-grant statutes provided in-
centives for parties who wished to use the land for the pur-
poses specified in those statutes, but the land was beyond the
reach of the mining laws and the incentives for exploration
and development that they provided
For a number of reasons,9 the system of land classification
came to be viewed as a poor means of ensuring the optimal
development of the Nation's mineral resources, and after the
turn of the century a movement arose to replace it with a
system of mineral reservation In 1906 President Theodore
Roosevelt withdrew approximately 64 million acres of lands
utes granting lands to railroads, Act of July 1, 1862, § 3, 12 Stat 492,
Act of July 2, 1864, § 3, 13 Stat 367, and from a statute granting land to
States for agricultural colleges, Act of July 2, 1862, § 1, ch 130, 12 Stat
503 See generally Umted States v Sweet, 245 U S 563, 567-572 (1918),
Deffeback v Hawke, 115 U S 392, 400-401 (1885) If land was classified
as mineral land, it could not be conveyed under these statutes
9 Land was frequently misclassified as nonmineral Misclassification re-
sulted both from fraud and from the practical difficulties in telling at the
time of classification whether land was more valuable for the minerals it
contained than for agricultural purposes See Deffeback v Hawke, supra,
at 405 Classification depended largely upon affidavits of entry-men, re-
ports by surveyors, information available from field offices of the Land De-
partment, and information provided by persons with an interest in contest-
ing the classification of particular land as nonmineral Frequent errors
were inevitable See 1 American Law of Mining § 3 1 (1982), West v Ed-
ward Rutledge Timber Co , 244 U S 90, 98 (1917) If land was errone-
ously classified as nonmineral and conveyed under a land-grant statute, the
patentee received title to the entire land, including any subsequently dis-
covered minerals See Diamond Coal & Coke Co v United States, 233
U S 236, 239-240 (1914), Shaw v Kellogg, 170 U S 312, 342-343 (1898)
Absent proof of fraud, see Diamond Coal & Coke Co v United States,
supra, at 239-240, the Government had no recourse once title passed
Even with respect to land properly classified as more valuable for agri-
cultural or other purposes than for the minerals it contained, the system of
land classification provided incentives only for the use of surface resources
After land was classified as nonmineral and conveyed under a land-grant
statute, only the grantee had an incentive to discover and exploit minerals
lying beneath the land If he did not do so, they would remain undeveloped
WATT v WESTERN NUCLEAR, INC 49
36 Opinion of the Court
thought to contain coal from all forms of entry, citing the
prevalence of land fraud and the need to dispose of coal
"under conditions which would inure to the benefit of the
public as a whole " 41 Cong Rec 2615 (1907) Secretary of
the Interior Garfield reported to the President that "the best
possible method is for the Government to retain the title
to the coal/' explaining that "[s]uch a method permits the
separation of the surface from the coal and the unhampered
use of the surface for purposes to which it may be adapted "
Report of the Secretary of the Interior 15 (1907), H R Doc
No 5, 60th Cong , 1st Sess , 15 (1907) President Roosevelt
subsequently urged Congress that "[r]ights to the surface of
the public land be separated from rights to forests upon
it and to minerals beneath it, and these should be subject to
separate disposal " Special Message to Congress, Jan 22,
1909, 15 Messages and Papers of the Presidents 7266
Over the next several years Congress responded by enact-
ing statutes that reserved specifically identified minerals to
the United States,10 and in 1916 the shift from land classifi-
cation to mineral reservation culminated with the enactment
of the SRHA Unlike the preceding statutes containing
mineral reservations, the SRHA was not limited to lands clas-
sified as mineral in character, and it did not reserve only spe-
cifically identified minerals The SRHA applied to all lands
10 The Coal Lands Act of 1909 permitted settlers on lands which Presi-
dent Roosevelt had subsequently withdrawn from entry under the home-
stead laws to obtain patents which reserved the coal to the United States
35 Stat 844, current version at 30 U S C § 81 The Coal Lands Act of
1910 made withdrawn lands available for settlement and permitted settlers
to obtain patents which reserved the coal to the United States 36 Stat
583, ch 318, current version at 30 U S C § 83 et seq See also Act
of Apr 30, 1912, 37 Stat 105, ch 99, 30 U S C §90 The Agricultural
Entry Act of 1914 permitted the acquisition of lands withdrawn from entry,
or classified as valuable, because of the phosphate, nitrate, potash, oil, gas,
or asphaltic minerals they contained, but provided that patents would
reserve to the United States all such minerals 38 Stat 509, as amended,
30 U S C §121*t**9
50 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the surface of which the Secretary of the Interior deemed to
be "chiefly valuable for grazing and raising forage crops," 43
USC §292, and reserved all the minerals in those lands to
the United States
Congress' purpose in severing the surface estate from the
mineral estate was to encourage the concurrent development
of both the surface and subsurface of SRHA lands The Act
was designed to supply "a method for the joint use of the sur-
face of the land by the entryman of the surface thereof and
the person who shall acquire from the United States the right
to prospect, enter, extract and remove all minerals that may
underlie such lands " H R Rep No 35, 64th Cong , 1st
Sess , 4, 18 (1916) (emphasis added) (hereafter H R Rep
No 35) The Department of the Interior had advised Con-
gress that the law would "induce the entry of lands in those
mountainous regions where deposits of mineral are known to
exist or are likely to be found/' and that the mineral reser-
vation was necessary because the issuance of "unconditional
patents for these comparatively large entries under the
homestead laws might withdraw immense areas from pros-
pecting and mineral development " Letter from First As-
sistant Secretary of the Interior to Chairman of the House
Committee on the Public Lands, Dec 15, 1915, reprinted in
H R Rep No 35, at 5
To preserve incentives for the discovery and exploitation of
minerals in SRHA lands, Congress reserved "all the coal and
other minerals" to the United States and provided that "coal
and other mineral deposits shall be subject to disposal by
the United States in accordance with the provisions of the
coal and mineral land laws in force at the time of such dis-
posal " 43 U S C § 299 The general mining laws were
the most important of the "mineral land laws" in existence
when the SRHA was enacted Act of July 4, 1866, 14 Stat
85, Act of May 10, 1872, 17 Stat 91, current version at 30
US C §21 et seq Those laws, which have remained basi-
cally unchanged through the present day, provide an incen-
WATT v WESTERN NUCLEAR, INC 51
36 Opinion of the Court
tive for individuals to locate claims to federal land contain-
ing "valuable mineral deposits " 30 U S C §22 After
a claim has been located, the entryman obtains from the
United States the right to exclusive possession of "all the sur-
face included within the lines of [his] locatio[n]" and the right
to extract minerals lying beneath the surface 30 U S C
§26 Congress plainly contemplated that mineral deposits
on SRHA lands would be subject to location under the mining
laws,11 and the Department of the Interior has consistently
permitted prospectors to make entries under the mining laws
on SRHA lands 12
11 This is evident from the provisions in the Act prescribing standards to
govern the joint use of SRHA lands by owners of surface estates and pros-
pectors and miners Section 9 of the SRHA extended to "[a]ny person
qualified to locate and enter the coal and other mineral deposits, or having
the right to mine and remove the same under the laws of the United
States, the right at all times to enter upon the lands entered or pat-
ented [under the SRHA] for the purpose of prospecting for coal or other
mineral therein " To protect the homesteader, Congress made it a condi-
tion of the prospector's entry on the land that he "not injure, damage, or
destroy the [homesteader's] permanent improvements," and also provided
that the prospector "shall be liable for all damages to the crops on such
lands by reason of such prospecting " Any person who, after discovering
minerals, acquires from the United States "the right to mine and remove
the same" can "reenter and occupy so much of the surface thereof as may
be required for all purposes reasonably incident to the mining or removal,"
if he (1) obtains the written consent or waiver of the homesteader, (2) com-
pensates the homesteader for any damages to the "crops or other tangible
improvements" on the land, or (3) executes a bond to secure the payment of
such damages In 1949 Congress increased the patentee's protection by
expanding the liability of the prospector or miner to encompass "any dam-
age that may be caused to the value of the land for grazing " 63 Stat 215,
§5, SOU S C §54
12 See Department of the Interior, Circular No 1278, Mining Claims on
the Public Domain, 55 I D 235, 236 (1935), 43 CFR § 185 1 (1939), current
version at 43 CFR § 3811 1 (1982) By their own terms, the mining laws
apply to "all valuable mineral deposits in lands belonging to the United
States " 30 U S C § 22 Like other interests in land owned by the
Government (e g , leaseholds, easements), mineral estates reserved under
52 OCTOBER TERM, 1982
Opinion of the Court 462 U S
B
Since Congress intended to facilitate development of both
surface and subsurface resources, the determination of
whether a particular substance is included in the surface
estate or the mineral estate should be made in light of the use
of the surface estate that Congress contemplated As the
Court of Appeals for the Ninth Circuit noted in United States
v Union Oil Co of California, 549 F 2d 1271, 1274, cert
denied, 434 U S 930 (1977), "[t]he agricultural purpose indi-
cates the nature of the grant Congress intended to provide
homesteaders via the Act "13 See Pacific Power & Light
Co , 45 1 B L A 127, 134 (1980) ("When there is a dispute
as to whether a particular mineral resource is included in the
[SRHA] reservation, it is helpful to consider the manner in
which the material is extracted and used"), 1 American Law
of Mining §3 26 (1982) ("The reservation of minerals to the
United States [in the SRHA] should be construed by con-
sidering the purposes both of the grant and of the reservation
in terms of the use intended") Cf United States v Isbell
Construction Co , 78 I D 385, 390 (1971) (holding that
gravel is a mineral reserved to the United States under stat-
ute authorizing the grant to States of "grazing district land")
("The reservation of minerals to the United States should be
construed by considering the purpose of the grant in
terms of the use intended")
the SRHA constitute "lands belonging to the United States " Cf Devearl
W Diwond, 62 1 D 260, 262 (1955) (minerals reserved under the SRHA
constitute "vacant, unreserved, and undisposed of public lands" under stat-
ute adding lands to the Navajo Indian Reservation in Utah) See also Act
of Sept 19, 1964, 78 Stat 985, §10, 43 U S C §1400 (1970 ed ) (for
purposes of statute creating Public Land Law Review Commission, "the
term public lands' includes outstanding interests of the United States
in lands patented, conveyed in fee or otherwise, under the public land
laws")
* In Unwn OH the Ninth Circuit held that geothermal steam constitutes
a Drneral reserved to the United States under the SRHA
WATT v WESTERN NUCLEAR, INC 53
36 Opinion of the Court
Congress plainly expected that the surface of SRHA lands
would be used for stockraismg and raising crops This
understanding is evident from the title of the Act, from the
express provision limiting the Act to lands the surface of
which was found by the Secretary of the Interior to be "chiefly
valuable for grazing and raising forage crops" and "of such a
character that six hundred and forty acres are reasonably
required for the support of a family," 43 U S C §292, and
from numerous other provisions in the Act See, e g , 43
U S C § 293 (patent can be acquired only if the entryman
makes "permanent improvements upon the land entered
tending to increase the value of the [land] for stock-raising
purposes of the value of not less than $1 25 per acre"), 43
U S C § 299 (prospector liable to entryman or patentee for
damages to crops caused by prospecting)
Given Congress' understanding that the surface of SRHA
lands would be used for ranching and farming, we interpret
the mineral reservation in the Act to include substances that
are mineral in character (i e , that are inorganic), that can be
removed from the soil, that can be used for commercial pur-
poses, and that there is no reason to suppose were intended
to be included in the surface estate See 1 American Law of
Mining, supra, § 3 26 ("A reservation of minerals should be
considered to sever from the surface all mineral substances
which can be taken from the soil and which have a sepa-
rate value") Cf Northern Pacific R Co v Soderberg, 188
U S , at 536-537 ("mineral lands include not merely metallif-
erous lands, but all such as are chiefly valuable for their de-
posits of a mineral character, which are useful in the arts or
valuable for purposes of manufacture"), United States v
I shell Construction Co , supra, at 390 ("the reservation of
minerals should be considered to sever from the surface all
mineral substances which can be taken from the soil and have
a separate value") (emphasis m original) This interpreta-
tion of the mineral reservation best serves the congressional
purpose of encouraging the concurrent development of both
54 OCTOBER TERM, 1982
Opinion of the Court 462 U S
surface and subsurface resources, for ranching and farming
do not ordinarily entail the extraction of mineral substances
that can be taken from the soil and that have separate value 14
14 It is important to remember that, in contrast to the situation m Zim
merman v Brunson, 39 L D 310 (1910), where treating gravel as a min-
eral would have required cancellation of a homestead entry, treating a
substance as a mineral under the SRHA in no way calls into question any
homestead entries, for the SRHA was not limited to nonmineral land
The only consequence is that title to the substance rests with the United
States rather than with the owner of the surface estate, and that if the
latter wishes to extract the substance and sell it or use it for commercial
purposes, he must first acquire the right to do so from the United States
We note that this case does not raise the question whether the owner of
the surface estate may use a reserved mineral to the extent necessary to
carry out ranching and farming activities successfully Although a literal
reading of the SRHA would suggest that any use of a reserved mineral is a
trespass against the United States, one of the overriding purposes of the
Act was to permit settlers to establish and maintain successful home-
steads There is force to the argument that this purpose would be de-
feated if the owner of the surface estate were unable to use reserved min-
erals even where such use was essential for stockraismg and raising crops
An analogy may profitably be drawn to Shiver v United States, 159
U S 491 (1895), in which this Court recognized that an entryman under
the homestead laws had a right to cut timber to the extent necessary to
establish a homestead, notwithstanding a federal statute making it a crime
to cut timber upon "lands of the United States " A literal interpretation of
the two statutes would have led to the conclusion that the entryman had no
right to cut timber prior to the perfection of his entry, for the land, includ-
ing the timber, remained the property of the United States during that
penod, and the statute concerning timber contained no exception for lands
entered under the homestead laws Id , at 497 The Court rejected this
mechanical approach to the problem, emphasizing that "the privilege of
residing on the land for five years [the period then necessary to perfect a
homestead entry and thus obtain a patent] would be ineffectual if [the
homesteader] had not also the right to build himself a house, outbuildings,
and fences, and to clear the land for cultivation," and concluding that 'to
that extent the [homestead] act limits and modifies" the statute making it a
carnn^ to cut timber on public lands Ibid Cf United States v Cook, 19
WalL 591, 593 (1874) (although treaty gave Indians only the right to use
and occupy certain land, and although "timber while standing is part of the
realty, and can only be sold as the land could be," the Indians' right of
WATT v WESTERN NUCLEAR, INC 55
36 Opinion of the Court
Whatever the precise scope of the mineral reservation may
be, we are convinced that it includes gravel Like other
minerals, gravel is inorganic Moreover, as the Department
of the Interior explained in 1929 when it overruled Zimmer-
man v Brunson, 39 L D 310 (1910), and held that gravel
deposits were subject to location under the mining laws,
"[w]hile the distinguishing special characteristics of
gravel are purely physical, notably, small bulk, rounded
surfaces, hardness, these characteristics render gravel
readily distinguishable by any one from other rock and
fragments of rock and are the very characteristics or
properties that long have been recognized as imparting
to it utility and value in its natural state " Layman v
Ellis, 52 L D , at 720
Insofar as the purposes of the SRHA are concerned, it is ir-
relevant that gravel is not metalliferous and does not have a
definite chemical composition What is significant is that
gravel can be taken from the soil and used for commercial
purposes
Congress certainly could not have expected that home-
steaders whose "experience and efforts [were] in the line of
stock raising and farming," Letter from First Assistant Sec-
retary of the Interior to Chairman of the House Committee
on the Public Lands (Dec 15, 1915), reprinted in H R Rep
No 35, at 5, would have the interest in extracting deposits of
use and occupancy encompassed the right to cut timber "for use upon the
premises" or "for the improvement of the land"), Alabama Coal Lands —
Act of Apr 28, 1912, 41 L D 32, 33 (1912) ("There is at this time no law
which provides for the disposition of the coal in these lands Persons hav-
ing homestead entries obtain no right to obtain coal therefrom, except
for their own domestic use ") (emphasis added)
In this case, however, respondent cannot rely on any right it may have
to use reserved minerals to the extent necessary for ranching and farming
purposes, since it plainly did not use the gravel it extracted for any such
purpose The gravel was used for commercial operations that were in no
way connected with any ranching or farming activity
56 OCTOBER TERM, 1982
Opinion of the Court 462 U S
gravel from SRHA lands that others might have It had
been informed that "[t]he farmer-stockman is not seeking and
does not desire the minerals," ibid , and it would have had no
more reason to think that he would be interested in extract-
ing gravel than that he would be interested in extracting
coal Stockraismg and raising crops do not ordinarily in-
volve the extraction of gravel from a gravel pit
If we were to interpret the SRHA to convey gravel depos-
its to the farmers and stockmen who made entries under the
Act, we would in effect be saying that Congress intended to
make the exploitation of such deposits dependent solely upon
the initiative of persons whose interests were known to he
elsewhere In resolving the ambiguity in the language of
the SRHA, we decline to construe that language so as to
produce a result at odds with the purposes underlying the
statute Instead, we interpret the language of the statute in
a way that will further Congress' overriding objective of fa-
cilitating the concurrent development of surface and subsur-
face resources See, e g , Mastro Plastics Corp v NLRB,
350 U S 270, 285 (1956), SEC v C M Joiner Leasing
Corp , 320 U S 344, 350-351 (1943), Griffiths v Commis-
sioner, 308 U S 355, 358 (1939)
IV
Our conclusion that gravel is a mineral for purposes of the
SRHA is supported by the treatment of gravel under other
federal statutes concerning minerals Although the question
has not often arisen, gravel has been treated as a mineral
under two federal land-grant statutes that, like the SRHA,
reserve all minerals to the United States In construing a
statute which allotted certain Indian lands but reserved the
minerals therein to the Indians, the Department of the Inte-
rior has ruled that gravel is a mineral Dept of Interior, Di-
vision of Public Lands, Solicitor's Opinion, M-36379 (Oct 3,
1956) Similarly, the Interior Board of Land Appeals has
held that gravel is reserved to the United States under a
WATT v WESTERN NUCLEAR, INC 57
36 Opinion of the Court
statute authorizing grants to States of "grazing district land "
United States v Isbell Construction Co , 78 I D , at 394-396
It is also highly pertinent that federal administrative and
judicial decisions over the past half-century have consistently
recognized that gravel deposits could be located under the
general mining laws until common varieties of gravel were
prospectively removed from the purview of those laws by the
Surface Resources Act of 1955, 69 Stat 368, §3, 30 U S C
§611 1B See Edwards v Kleppe, 588 F 2d 671, 673 (CA9
1978), Charlestone Stone Products Co v Andrus, 553 F 2d
1209, 1214-1215 (CA9 1977), holding as to a separate mining
claim rev'd,16 436 U S 604 (1978), Melluzzo v Morton, 534
16 That Act provides that "[n]o deposit of common varieties of sand,
stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood
shall be deemed a valuable mineral deposit within the meaning of the min-
ing laws of the United States so as to give effective validity to any mining
claim hereafter located under such mining laws " Claims located prior to
the effective date of the Act were not affected by its enactment With re-
spect to deposits of the substances listed in the Act that were not located
prior to the effective date of the Act and that are owned by the United
States, disposal is permissible only under the Materials Act of 1947, 61
Stat 681, § 1, as amended, 30 U S C §601, which provides in pertinent
part that "[t]he Secretary [of the Interior], under such rules and regula-
tions as he may prescribe, may dispose of mineral materials (including but
not limited to common varieties of the following sand, stone, gravel, pum-
ice, pumicite, cinders, and clay) "
The Surface Resources Act is by its terms limited to the locatabihty of
claims under the mining laws and does not limit the scope of the mineral
reservation in the SRHA See Dept of Interior, Division of Public Lands,
Solicitor's Opinion, M-36417 (Feb 15, 1957)
16 Charlestone Stone Products Co involved several different mining
claims In the part of its decision that is pertinent for present purposes,
the Ninth Circuit upheld the validity of claims to commercially exploitable
deposits of sand and gravel The Secretary of the Interior did not seek
certiorari with respect to this portion of the Ninth Circuit's decision, limit-
ing his petition for certiorari to that part of the Ninth Circuit's decision
which upheld the validity of a claim to subsurface water See 436 U S , at
610 ("The single question presented m the petition is *[w]hether water is a
beatable mineral under the mining law of 1872' ")
58 OCTOBER TERM, 1982
Opinion of the Court 462 U S
F 2d 860, 862-865 (CA9 1976), Clear Gravel Enterprises,
Inc v Keil, 505 F 2d 180, 181 (CA9 1974) (per cumam),
Verrue v Umted States, 457 F 2d 1202, 1203-1204 (CA9
1972), Barrows v Hickel, 447 F 2d 80, 82-83 (CA9 1971),
Umted States v Schaub, 163 F Supp 875, 877-878 (Alaska
1958), Taking of Sand and Gravel from Public Lands for
Federal Aid Highways, 54 1 D 294, 295-296 (1933), Layman
v Ellis, 52 L D , at 718-721, overruling Zimmerman v
Branson, 39 L D 310 (1910) 17 Cf United States v Bam-
grover, 57 I D 533 (1942) (clay and silt deposits), Stephen E
Day, Jr , 50 L D 489 (1924) (trap rock) While this Court
has never had occasion to decide the appropriate treatment of
gravel under the mining laws, the Court did note in United
States v Coleman, 390 U S 599, 604 (1968), that gravel
deposits had "served as a basis for claims to land patents"
under the mining laws prior to the enactment of the Surface
Resources Act of 1955 18
17 The only decision to the contrary, Anchorage Sand & Gravel Co v
Schubert, 114 F Supp 436, 438 (Alaska 1953), afT d on other grounds, 224
F 2d 623 (CA9 1955), was never followed in either the District in which it
was decided or elsewhere in the Ninth Circuit
18 The treatment of valuable deposits of gravel as mineral deposits locat-
able under the mining laws reflects an application of the "prudent-man
test" which the Secretary of the Interior has used to interpret the mining
laws since 1894 Under this test, which has been repeatedly approved by
this Court, United States v Coleman, 390 U S , at 602, Best v Humboldt
Placer Mining Co , 371 U S 334, 335-336 (1963), Cameron v Umted
States, 252 U S 450, 459 (1920), Chrisman v Miller, 197 U S 313, 322
(1905), a deposit is locatable if it is "of such a 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 455, 457 (1894) In the case of "pre-
cious metals which are in small supply and for which there is a great de-
mand," there is ordinarily "little room for doubt that they can be extracted
and marketed at a profit " United States v Coleman, supra, at 603 In
the case of nonmetaHiferous substances such as gravel, the Secretary has
required proof that "by reason of accessibility, bona fides in development,
WATT v WESTERN NUCLEAR, INC 59
36 Opinion of the Court
The treatment of gravel as a mineral under the general
mining laws suggests that gravel should be similarly treated
under the SRHA, for Congress clearly contemplated that
mineral deposits in SRHA lands would be subject to location
under the mining laws, and the applicable regulations have
consistently permitted such location Supra, at 51 Simply
as a matter of consistent interpretation of statutes concern-
ing the same subject matter, if gravel deposits constituted
"mineral deposits" that could be located under the mining
laws, then presumptively gravel should constitute a "min-
eral" reserved to the United States under the SRHA If
gravel were deemed to be part of the surface estate of lands
patented under the SRHA, gravel deposits on SRHA lands
obviously would not have been locatable, whereas gravel
deposits on other lands would have been locatable There i§
no indication that Congress intended the mineral reservation
in the SRHA to be narrower in scope than the mining laws
V
Finally, the conclusion that gravel is a mineral reserved to
the United States m lands patented under the SRHA is but-
tressed by "the established rule that land grants are con-
strued favorably to the Government, that nothing passes ex-
cept what is conveyed m clear language, and that if there are
doubts they are resolved for the Government, not against it "
United States v Union Pacific R Co , 353 U S 112, 116
(1957) See Andrus v Charlestone Stone Products Co , 436
U S , at 617, Caldwell v United States, 250 U S 14, 20-21
(1919), Northern Pacific R Co v Soderberg, 188 U S , at
534 In the present case this principle applies with particu-
proximity to market, existence of present demand, and other factors, the
deposit is of such value that it can be mined, removed and disposed of at a
profit " Taking of Sand and Gravel from Public Lands for Federal Aid
Highways, 541 D 294,296(1933) Bee Foster v Season, 106 U S App
D C 253, 255, 271 F 2d 836, 838 (1959)
60 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
lar force, because the legislative history of the SRHA reveals
Congress' understanding that the mineral reservation would
"limit the operation of this bill strictly to the surface of
the lands " H R Rep No 35, at 18 (emphasis added)
See also 53 Cong Rec 1171 (1916) (the mineral reservation
"would cover every kind of mineral", "[a]ll kinds of minerals
are reserved") (Rep Ferns) In view of the purposes of the
SRHA and the treatment of gravel under other federal stat-
utes concerning minerals, we would have to turn the princi-
ple of construction in favor of the sovereign on its head to
conclude that gravel is not a mineral within the meaning of
the Act
VI
For the foregoing reasons, we hold that gravel is a min-
eral reserved to the United States in lands patented under
the SRHA Accordingly, the judgment of the Court of
Appeals is
Reversed
JUSTICE POWELL, with whom JUSTICE REHNQUIST, JUS-
TICE STEVENS, and JUSTICE O'CONNOR join, dissenting
The Court's opinion may have a far-reaching effect on
patentees of, and particularly successors in title to, the 33
million acres of land patented under the Stock-Raising
Homestead Act of 1916 (SRHA) The Act provides, with
respect to land patented, that the United States reserves
title to "all the coal and other minerals " 43 U S C § 299
At issue here is whether gravel is a mineral within the mean-
ing of the Act To decide this question, the Court adopts a
new definition of the statutory term "[T]he Act [includes]
substances that are mineral in character (i e , that are in-
organic), that can be removed from the soil, that can be used
for commercial purposes, and that there is no reason to sup-
pose were intended to be included in the surface estate "
Ante, at 53
WATT v WESTERN NUCLEAR, INC 61
36 POWELL, J , dissenting
This definition compounds, rather than clarifies, the ambi-
guity inherent in the term "minerals " l It raises more ques-
tions than it answers Under the Court's definition, it is
arguable that all gravel falls within the mineral reservation
Ante, at 53-55, and n 14, 59 This goes beyond the Govern-
ment's position that gravel deposits become reserved only
when susceptible to commercial exploitation See Tr of
Oral Arg 18-20 2 And what about sand, clay, and peat73
'To interpret the mineral reservation "to include substances that are
mineral in character and that there is no reason to suppose were in-
tended to be included in the surface estate" is tautological, and to include
all substances "that can be used for commercial purposes" is to ignore the
prerequisites to commercial value of quantity and quality The only factor
that can be said to provide any guidance is that the substance must be one
"that can be removed from the soil " Moreover, the Department of the
Interior has operated under a common definition of the statutory term
"mineral" in the general mining laws for quite some time, and I therefore
am puzzled why the Court creates a new one today See 43 CFR § 3812 1
(1982) ("Whatever is recognized as a mineral by the standard authorities,
whether metallic or other substance, when found m public lands in quantity
and quality sufficient to render the lands valuable on account thereof, is
treated as coming within the purview of the mining laws"), see n 4, infra
2 The Government's claim is less inclusive because all parties agree that
to hold that the homesteader has no right to use sand, gravel, and other
common substances for his own purposes would pose a considerable imped-
iment to the task of establishing a home and raising stock, undoubtedly the
most important policies underlying the SRHA and the other Homestead
Acts See infra, at 71 The Court's solution to the rancher's problem is
to allow the owner of the surface estate to use reserved minerals where
such use is essential for stockraismg and raising crops See ante, at 54-55,
n 14 Thus, the Court apparently would give ranchers this free use of all
reserved minerals, including "coal," which is specifically mentioned in 43
U S C § 299 I am not sure this Court should so lightly suggest such a
broad exception to the mineral rights reserved by Congress Moreover,
such a free use exception only invites litigation over what is a domestic
use, who is a rancher, what is a ranch, what rights successors m-interest
have, and what rights a developer may have to halt such free use of "its"
minerals
8 My list is not exclusive "Landowners have sold 'moss rock,' common
rock on which moss has grown, to contractors to decorate fireplaces and
62 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
As I read the Court's opinion it could leave Western home-
steaders with the dubious assurance that only the dirt itself
could not be claimed by the Government It is not easy to
believe that Congress intended this result
I
In construing a congressional Act, the relevant intent of
Congress is that existing at the time the statute was enacted
See Andrus v Charlestone Stone Products Co , 436 U S
604, 611, and n 8 (1978), Winona & St Peter R Co v
Barney, 113 U S 618, 625 (1885) The Court avoids this
rule of construction by largely ignoring the stated position of
the Department of the Interior before 1916 that gravel —
like sand and clay — was not a mineral
In 1916, when the SRHA was enacted, the Department of
the Interior's rule for what it considered to be a "valuable
mineral deposit" as those terms are used under the general
mining laws4 was clear "[W]hatever is recognized as a min-
eral by the standard authorities on the subject, whether of
metallic or other substances, when the same is found in the
public lands in quantity and quality sufficient to render the
homes The rock has become Valuable,' but it is absurd to think that this
common rock should now be included in a mineral reservation to the gov-
ernment " Case Note, 18 Land & Water L Rev 201, 216 (1983)
4 By the phrase "general mining laws,*' I refer primarily to the Mining
Act of 1872, as amended, 30 U S C §21 et seq , which declares that "all
valuable mineral deposits in lands belonging to the United States shall
be free and open to exploration and purchase " § 22 See generally
ante, at 50-51 As the Court notes, ante, at 39, mineral exploitation of
SRHA lands was made subject to the same restrictions that characterize
development of lands under the general mining laws, and thus the interpre-
tation of those laws is directly pertinent to determining congressional
intent in 1916 It should be noted, however, that since 1955 it has been
clear that a gravel deposit could not be "a valuable mineral deposit" under
the general mining laws See 30 U S C § 611 The issue in this case is
thus limited to the right of the Government to claim gravel found on SRHA
lands, patented to private owners, even though the general mining laws
still apply as to most minerals, but not to gravel
WATT v WESTERN NUCLEAR, INC 63
36 POWELL, J , dissenting
land more valuable on account thereof than for agricultural
purposes, should be treated as coming within the purview of
the mining laws " Pacific Coast Marble Co v Northern
Pacific R Co , 25 L D 233, 244-245 (1897) See Letter
from Commissioner Drummond to Surveyors-General, Regis-
ters, and Receivers (July 15, 1873) (reprinted in H Copp,
Mineral Lands 61, 62 (1881)) It is important to note that
the Department's test had two parts First, before a sub-
stance would cause the Department to characterize land as
mineral, it had to be recognized as a mineral by the standard
authorities on the subject See n 1, supra Second, the
mineral had to appear in sufficient quantity and quality to be
commercially exploitable 5
Under the Department of the Interior's earliest decisions,
certain commonplace substances were classified as minerals
See W H Hooper, 1 L D 560, 561 (1881) (gypsum), H P
Bennet, Jr , 3 L D 116, 117 (1884) (permitting placer claims
for building stone) But the Department soon began to rec-
ognize a small group of substances, that were valuable for
certain purposes, as not being "minerals" "under all authori-
ties " In Dunluce Placer Mine, 6 L D 761, 762 (1888), the
Secretary held that a deposit of "brick clay" would not war-
rant classification as a valuable mineral deposit The Secre-
tary so held despite a finding that the land on which the
deposit was found was "undoubtedly more valuable as a 'clay
placer' than for any other purpose " Id , at 761
The Department followed Dunluce in a number of subse-
quent cases 6 An important case under the general mining
5 Cf 1 C Lmdley, American Law Relating to Mines and Mineral Lands
§ 98, pp 174-175 (3d ed 1914) The test whether a claimant has located a
"valuable mineral deposit" under the general mining laws remains for the
most part the same See ante, at 44 As JUSTICE MARSHALL concluded
for a unanimous Court m Andrus v Charlestone Stone Products Co , 436
U S 604, 610 (1978), mineral land must contain a deposit that both is a
"mineral" and is "valuable "
8 See, e g , King v Bradford, 31 L D 108, 109-111 (1901) (brick clay),
Bettancourt v Fitzgerald, 40 L D 620, 621-622 (1912) (clay useful for
64 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
laws for our purposes is Zimmerman v Branson, 39 L D
310 (1910) It involved sand and gravel, and was decided
four years before Congress began consideration of the
SRHA After quoting the rule in Pacific Coast Marble, the
Secretary stated
"A search of the standard American authorities has
failed to disclose a single one which classifies a deposit
such as claimed in this case as mineral, nor is the Depart-
ment aware of any application to purchase such a deposit
under the mining laws This, taken into consideration
with the further fact that deposits of sand and gravel
occur with considerable frequency in the public domain,
points rather to a general understanding that such
deposits, unless they possess a peculiar property or char-
acteristic giving them a special value, were not to be
regarded as mineral " 39 L D , at 312
The Secretary then reviewed the Department's cases on clay
and stone,7 concluding
cement manufacturing), Holman v Utah, 41 L D 314, 315 (1912) (clay
and limestone), Victor Portland Cement Co v Southern Pacific R Co , 43
L D 325, 326 (1914) (limestone shale), Mrs A T Van Dolah, Solicitor's
Opinion A-26443 (Oct 14, 1952) (clay) See also Gray Trust Co , 47 L D
18, 20 (1919) (limestone useful in cement and road surfacing found not to
qualify land as mineral land), Union Oil Co , 23 L D 222, 229 (1896)
(petroleum) (overruled by Congress in Act of Feb 11, 1897, ch 216, 29
Stat 526), Jordan v Idaho Aluminum Mm & Mfg Co , 20 L D 500,501
(1895) (alumina) (but see Downey v Rogers, 2 L D 707, 709 (1883) (per-
mitting entry for alum), Tucker v Florida R & Navigation Co , 19 L D
414 (1894) (phosphate) (overruled in Pacific Coast Marble Co v Northern
Pacific R Co , 25 L D 233, 246-247 (1897)) Cf Southwestern Mining
Co , 14 L D 597, 602 (1892) (salt) (relying on consistent legislative pokey
to reserve saline lands from all land Acts)
7 Stone useful for building purposes was not classified as a mineral — at
least for a time See Conhn v Kelly, 12 L D 1, 2-3 (1891) (declining to
follow H P Bennet, Jr , 3 L D 116, 117 (1884)), Clark v Errnn, 16 L D
122, 124 (1893), Hayden v Jamison, 16 L D 537, 539 (1893), Florence
D Delaiwy, 17 L D 120, 121 (1893) (glass sand and building stone),
Act of Aug 4, 1892, 27 Stat 348, 30 U S C § 161 (making building
WATT v WESTERN NUCLEAR, INC 65
36 POWELL, J , dissenting
"From the above resume it follows that the Depart-
ment, in the absence of specific legislation by Congress,
will refuse to classify as mineral land containing a de-
posit of material not recognized by standard authorities
as such, whose sole use is for general building purposes,
and whose chief value is its proximity to a town or city,
in contradistinction to numerous other like deposits of
the same character m the public domain Id , at 313
The Secretary concluded that gravel was such a material, and
this clearly remained the Department's position until 1929
The Zimmerman decision was recognized by Department
officials m Litch v Scott, 40 L D 467, 469 (1912), as foreclos-
ing "the question as to the mineral character of the land,"
even though "it [did] not appear that the [claimant's] removal
of the sand or gravel had any connection with the cultivation
of the land and it was removed solely for the purpose of sale "
And in Hughes v Florida, 42 L D 401 (1913), First Assist-
ant Secretary Andrems A Jones wrote "The Department
does not concur with the contention that this deposit [of shell
rock] is a mineral within the meaning of the general mining
laws It presents features greatly similar to the deposits of
sand and gravel considered in the case of Zimmerman v
Brunson " Id , at 403-404
Thus, it was beyond question, when the SRHA was
adopted in 1916, that the Department had ruled consistently
that gravel was not a mineral under the general mining
laws 8 The legislative history is silent on exactly how Con-
stone a locatable mineral) Cf Stanislaus Electric Power Co , 41 L D
655, 658-661 (1912) (§ 161 does not apply to common, low-grade rock having
no special value for building purposes) The Department, however, later
recognized claims founded on stone deposits that could be used for special
purposes, such as monuments and ornamentation See McGlenn v
Wienbroeer, 15 L D 370, 374 (1892)
8 In United States v Aitken, 25 Philippine 7 (1913), the court held that
commercial gravel was not a mineral Relying on the Department's ad-
ministrative decisions, the court defined "mineral" as " *[w]hatever is rec
ogmzed as a mineral by the standard authorities on the subject ' " Id , at
66 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
gress defined "mineral/' but it is equally clear that the De-
partment participated actively in drafting the SRHA and in
advising Congress 9 In light of this record, one must con-
clude that Congress intended the term "minerals" in the new
statute to have the meaning so recently and consistently
given it by the Department in construing and applying the
general mining laws 10 As it was the agency authorized to
15 (quoting Letter from Commissioner Drummond to Surveyors-General,
Registers, and Receivers (July 15, 1873)) The court found that if "an
examination be made of the individual adjudicated cases and the decisions
of the United States Land Department, upon which these general defini
tions of the term 'mineral' are based, it will be found that commercial
gravel was not a factor in forming them, and that it has never been consid
ered as a mineral " Id , at 16 See D Barrmger & J Adams, Law of
Mines and Mining cxxv (1900) (list of 46 nonmetalhc minerals that possess
commercial value, but not listing gravel), D Barrmger, Minerals of Com
meraal Value (1897) (listing over 350 substances, including clay, petro
leum, phosphate, salt, but not listing sand or gravel), 2 C Lindley, supra
n 5, § 424, at 996-997 (recognizing Department's policy for "commonplace
substances such as ordinary clay, sand and gravel"), 1 W Snyder, Mines
and Mining § 144, p 117 (1902) (discussing Department's policy not to treat
clay as a mineral)
9 In 1914, a bill to permit homesteadmg on unappropriated public lands in
the West was referred by the House Committee on Public Lands to the
Department of the Interior for comment First Assistant Secretary
Jones, six months after deciding Hughes v Florida, 42 L D 401 (1913),
submitted the Department's report on the bill and at the same time sub
nutted the Department's draft of a substitute Stock Raising Homestead
Bill After Committee hearings on the bills, Jones issued a second report
to the Committee SeeH R Rep No 626, 63d Cong ,2dSess , 1-9(1914)
The House passed the Department's bill, but the full Senate failed to act on
it In the next Congress, the Department's bill was reintroduced m the
House Again the Public Lands Committtee sought the advice of the De-
partment See H R Rep No 35, 64th Cong , 1st Sess , 4-8, 13 (1916)
In the floor debates, Members made frequent reference to the fact that the
Department had drafted the bill See, e g , 53 Cong Rec 1127 (1916)
(statement of Congressman Taylor) (describing Department's report as
"one of the best reports we have ever had on any bill since I have been m
Congress''), id , at 1130-1131
16 He Court concludes that "[i]t is most unlikely that many Members of
Congress were aware of the ruling in Zimmerman, which was never tested
WATT v WESTERN NUCLEAR, INC 67
36 POWELL, J , dissenting
implement the SRHA, its contemporaneous construction
should be persuasive as to congressional intention This
Court previously had accorded this respect to the Depart-
ment of the Interior See, e g , Burke v Southern Pacific
R Co , 234 U S 669, 677-678 (1914), Northern Pacific R
Co v Soderberg, 188 U S 526, 534 (1903)
II
Despite the absence of "specific legislation by Congress,"
the Department in Layman v Ellis, 52 L D 714 (1929),
which did not involve SRHA lands, overruled Zimmerman
13 years after the enactment of the SRHA u See 52 L D , at
in the courts and was not mentioned in the Reports or debates on the
SRHA " Ante, at 46 The Court generally does not attribute such igno
ranee of the law to Congress See, e g , Lorillard v Pons, 434 U S 575,
581 (1978), National Lead Co v United States, 252 U S 140, 147 (1920)
And assuming ignorance seems especially inappropriate m this case, where
during floor debates Congressmen referred to the Department's adminis-
trative decisions and its interpretations of prior Homestead Acts See 53
Cong Rec 1174 (1916) See also n 9, supra
Alternatively, the Court states that, "[e]ven if Congress had been aware
of Zimmerman, there would be no reason to conclude that it approved of
the Secretary's ruling m that case rather than this Court's opinion in
[Northern Pacific R Co v} Soderberg, [188 U S 526, 530 (1903)], which
quoted with approval a statement that gravel is a mineral " Ante, at
46 I do not believe that the Soderberg Court's one quotation from an
English case is of greater relevance than the established views of the De
partment that is entrusted with the administration of the Federal Govern
ment's public lands and that drafted the very Act before us now Cer-
tainly the Soderberg Court did not think so, for in searching for a definition
of the word "mineral/1 it first examined "[t]he rulings of the Land Depart-
ment, to which we are to look for the contemporaneous construction of
these statutes " 188 U S , at 534 And the holding of Soderberg as to
the classification of granite was not at all inconsistent with Department
policy See n 7, supra
11 Layman v Ellis has been reaffirmed in subsequent opinions of the De-
partment, but most of them provide the Court with none of the support it
seeks m them The Court also looks to two federal land-grant statutes
that, like the SRHA, reserve all minerals to the United States Ante, at
56-57 See United States v Isbell Construction Co , 78 I D 385, 391,
68 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
721 As a result, individuals began staking mining claims on
public land containing gravel deposits to obtain land patents,
not for "mineral" value, but for such purposes as fishing
camps and cabin sites See H R Rep No 730, 84th Cong ,
1st Sess , 5-6 (1955) Legislation in 1955 clarified the confu-
sion that the Department's decisions had created 12 Ulti-
394-396 (1971), Dept of Interior, Division of Public Lands, Solicitor's
Opinion, M-36379 (Oct 3, 1956) Relying on a prior opinion of the Depart-
ment's Solicitor, the Secretary in Isbell reversed the decision of the Direc-
tor of the Bureau of Land Management holding that gravel was included in
the patent Moreover, the statute at issue in Isbell was passed after the
Department's decision in Layman, and differed m purpose and history
from the SRHA As the Department itself noted in this case, the statute
there also differed from the SRHA as written in 1916 in that it originally
provided from the date of its enactment for compensation for damages to
the lands as well as to improvements See 85 I D 129, 132, n 2 (1978)
The 1956 Solicitor's Opinion simply relied on Layman Interestingly, it
took a much narrower view of what was included in the mineral reservation
at issue there than the Court has with respect to the SRHA reservation
"[D]eposits of sand and gravel in lands patented under the act which
can be shown as of the date of patent to have a definite economic value
by reason of the existence and nearness of a market in which they can be
sold at a profit are reserved " Solicitor's Opinion M-36379, supra, at
4 (emphasis added)
12 In a series of Acts culminating in the Surface Resources Act of 1955, 30
U S C § 611, Congress removed such commonplace "materials" as gravel
completely from the purview of the general mining laws It is arguable,
from this fact alone, that Congress never intended gravel to be a mineral
under any of the mining laws See United States v Coleman, 390 U S
599, 604 (1968) ("'[Bland, stone, [and] gravel are really building ma
tenals, and are not the type of material contemplated to be handled under
the mining laws '") (quoting 101 Cong Rec 8743 (1955)) (emphasis
added by Court) Indeed, some officials m the Department initially con-
cluded that under the Surface Resources Act "sand and gravel have been
declared to be nonimneral substances and should therefore no longer be
considered as being reserved to the United States under the mineral res-
ervation in the [SRHA] " Dept of Interior, Division of Public Lands, So-
licitor's Opinion, M-36417, p 1 (Feb 15, 1957) Assuming, however, that
the Department eventually may have concluded properly that the Act did
not quitclaim common materials to SRHA patentees, see id , at 2, it is nev-
ertheless difficult for the Department to contend that the Act is irrelevant
WATT v WESTERN NUCLEAR, INC 69
36 POWELL, J , dissenting
mately, sand and gravel were once again removed from the
coverage of the general mining laws, 13 Congress reaffirmed
the Zimmerman rule that common gravel is not a mineral
under the general mining laws, 14 and Layman was legisla-
tively overruled 15
to the inquiry whether the Government had title to the gravel m the first
instance Interestingly, the Act specifically permits continued location on
public lands of gravel with "distinct and special value," § 611, the same test
set forth in Zimmerman for determining when a deposit of gravel would be
considered a "valuable mineral deposit " See United States v Kaycee
Bentonite Corp , 89 I D 262, 274 (1982) (1955 congressional test "echoes"
Zimmerman test)
18 While the Department's authority to dispose of gravel on "public lands"
is clear, see n 4, supra, it is not at all clear with respect to gravel on
SRHA lands The Court assumes without discussion agency jurisdiction
to bring a trespass action on SRHA lands under regulations that authorize
such actions for trespass on "public lands " Yet there at least is doubt
that SRHA lands are "public lands" as that term has been interpreted by
this Court See, e g , Bardon v Northern Pacific R Co , 145 U S 535,
538 (1892), Mall, Federal Mineral Reservations, 20 Rocky Mt Mm L Inst
399, 443-449 (1975) Furthermore, even if SRHA lands are public lands
and gravel is reserved, the Department's regulations apparently fail to
permit disposal of minerals for these lands See 30 U S C §601,43CFR
§ 3601 1 (1982) (stating that "mineral material disposals" may not be made
from "public lands" on which there are "valid, existing claims to the land by
reason of settlement, entry, or similar rights obtained under the public
land laws") Thus, the Court's extended discussion of the policy of encour-
aging mineral development on SRHA lands has little relevance with re-
spect to gravel and other commonplace substances Indeed, if this case is
any indication, it rather appears that the Government wants to prevent
development of such materials
14 The anomalous status of Layman and common varieties of gravel has
not escaped the notice of the Department, which has commented that "the
arguments advanced by the Department for overruling Zimmerman are
difficult to distinguish from rationales that would support making common
clay locatable " Kaycee Bentonite, supra, at 274, n 9
16 See n 12, supra The Court relies on a dozen federal administrative
and judicial cases since Layman but involving pre-1955 locations for the
proposition that gravel deposits could be located under the general mining
laws See ante, at 57-58 But none of these cases involves SRHA land,
they were concerned primarily with the application of the marketability
70 OCTOBER TERM, 1982
POWELL, J , dissenting 462 U S
It is clear then that Congress never has, as the Court
holds, considered all gravel to be a valuable mineral 16 And I
see no basis for inferring congressional intent to classify
gravel, contrary to all lay understanding, as mineral 17
test, and none questioned whether gravel was a mineral The issue here,
however, is whether gravel should ever be considered a "mineral" under
the SRHA, and the cases are at the most evidence of how gravel should be
treated on "public lands" under the mining laws after Layman and before
Congress in 1955 removed all gravel from the purview of the mining laws
See n 13, supra The only prior case addressing the precise issue before
the Court held that ordinary sand and gravel were not reserved to the
United States within the meaning of the mineral reservation contained m
SRHA patents See State ex rel Highway Comm'n v Trujillo, 82 N M
694, 487 P 2d 122 (1971) Similar cases also suggest that gravel is not
a reserved mineral Cf United States v Union Oil Co of California,
549 F 2d 1271, 1279 (CA9) (SRHA reserved "unrelated subsurface re-
sources"), cert denied, 434 U S 930 (1977), Bumpus v United States,
325 F 2d 264 (CA10 1963) (finding a mineral reservation following con-
demnation not to include gravel)
16 Not even the Department has gone as far as the Court apparently
would Although Layman made common varieties of gravel locatable,
gravel that "is principally valuable for use as fill, sub-base, ballast, riprap
or barrow was never [a valuable mineral deposit]," despite the fact that it
"might be marketable at a profit " United States v Verdugo & Miller,
Inc, 371 B L A 277, 279 (1978) (emphasis in original) SeeTr of Oral
Arg 50
17 The Court relies heavily on the rule that land grants are construed fa-
vorably to the Government See ante, at 59-60 The Court fails to note,
however, that we recently made clear that, notwithstanding this rule, pub-
he grants are " 'not to be so construed as to defeat the intent of the legisla-
ture, or to withhold what is given either expressly or by necessary or fair
implication'" Leo Sheep Co v United States, 440 U S 668, 682-683
(1979) (quoting United States v Denver & Rio Grande R Co , 150 U S 1,
14 (1893)) See Burke v Southern Pacific R Co , 234 U S 669, 679
(1914) (Congress intended "mineral lands" to be applied "in their ordinary
and papular sense"), id , at 676 ("doubtless the ordinary or popular signifi-
cation of that term was intended"), Marvel v Memtt, 116 U S 11, 12
(1885) (statutory terms "mineral substances" have no "scientific mean-
ing different from their popular meaning") A good indicator of the "ordi-
nary and popular sense" of a word is the common law's use of it The
Court ignores this See Reeves, The Meaning of the Word "Minerals," 54
WATT v WESTERN NUCLEAR, INC 71
36 POWELL, J , dissenting
III
Congressional interest m stockraising and mineral develop-
ment was subordinate to the ultimate congressional purpose
of settling the West See H R Rep No 35, 64th Cong ,
1st Sess , 14 (1916), H R Rep No 626, 63d Cong , 2d Sess ,
10-11 (1914), n 2, supra More than cattle and more than
minerals, it was the belief of Congress that
"the Nation as a unit needs more States like, for in-
stance, Kansas and Iowa, where each citizen is the sover-
eign of a portion of the soil, the owner of his home and
not tenant of some (perhaps) distant landlord, a builder
of schools and churches, a voluntary payer of taxes
for the support of his local government " H R Rep
No 626, supra, at 11 (emphasis added)
In recommending "citizen sovereignty" of the soil,18 Congress
surely did not intend to destroy that sovereignty by reserv-
N D L Rev 419, 472 (1978) ("As a general rule sand and gravel are
usually held not to be a mineral in private grants or reservations of miner-
als"), id , at 431, Brief for United States in Bumpus v United States, 325
F 2d 264 (CA10 1973), pp 7-14 (construing declaration of taking's mineral
reservation as not reserving gravel to former landowners)
18 Quite apart from the clear evidence of congressional intent at the time
the SRHA was enacted in 1916, see Part I, supra, it is unreasonable to
suppose that Congress ever intended — when it was enacting legislation to
encourage settlement of the West — to reserve to the Federal Government
the commonplace inorganic substances that actually constituted the soil of
the patented land The incentive to move to the West and settle on its
semiarid land would have been diminished significantly if it had been un-
derstood that only limited rights in what most persons consider a part of
the soil itself were being granted Indeed, the legislative history is clear
that, rather than intending to provide rights analogous to grazing leases
upon the unappropriated public domain, Congress intended to promote
permanent settlement See 53 Cong Rec 1233-1234 (1916) (statement of
Congressman Mondell) ("I wish [the Congressman] would not call the laws
he refers to surface-entry laws, for they are not They convey fee titles
They give the owner much more than the surface, they give him all except
the body of the reserved mineral")
72 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 U S
ing the commonplace substances that actually constitute
much of that soil 19
The first attempt by the Department of the Interior to ac-
quire ownership of gravel on SRHA lands did not occur until
this case began in 1975 One would think it is now too late,
after a half-century of inaction, for the Department to take
action that raises serious questions as to the nature and ex-
tent of titles to lands granted under the SRHA 20 Owners of
patented land are entitled to expect fairer treatment from
their Government In my view, the Department should be
required to adhere to the clear intent of Congress at the time
this legislation was adopted I would affirm the judgment of
the Court of Appeals
JUSTICE STEVENS, dissenting
Whether gravel is a mineral within the meaning of the
Stock-Raising Homestead Act of 1916 may be a matter of
19 Cf H R Rep No 626, supra n 9, at 3 (surface owners' activities "can
be carried on without being materially interfered with by the reservation
of minerals and the prospecting for a removal of same from the land")
Based on similar concerns, the Department on occasion has limited the
breadth of mineral reservations because of the obvious congressional in-
tent See Solicitor's Opinion M-36379, supra n 11, at 4
20 The Department is in no position to adopt a new policy for land patents
long granted See Andrus v Shell Oil Co , 446 U S 657 (1980) Its
prior actions have caused the population generally, including respondent,
to understand that gravel was not a reserved mineral Cf Western Nu
clear, Inc v Andrus, 475 F Supp 654, 660 (Wyo 1979) ("Until [1975], it
was the practice of the Wyoming Highway Department, construction com-
panies, and the ranchers owning the surface estate to treat the gravel as
part of the surface estate, the gravel being sold or used by the rancher with
the approval of the [Bureau of Land Management]") As JUSTICE REHN-
QUIST stated for the Court in Leo Sheep Co , supra
"Generations of land patents have issued without any express reservation
of the right now claimed by the Government Nor has a similar right been
asserted before This Court has traditionally recognized the special
need for certainty and predictability where land titles are concerned, and
we are unwilling to upset settled expectations " 440 U S , at 687
(footnotes omitted)
WATT v WESTERN NUCLEAR, INC 73
36 STEVENS, J , dissenting
considerable importance m the semiand lands of the West,
but it is of much less importance to the rest of the Nation
For that reason, as well as those set forth at some length in
my concurring opinion in Watt v Alaska, 451 U S 259, 273
(1981), I believe the Court of Appeals should have been per-
mitted to make the final decision upon the unique question of
statutory construction presented by this case * Accord-
ingly, while I join JUSTICE POWELL'S opinion explaining why
the judgment of the Court of Appeals should be affirmed, I
believe an even better disposition would have been simply to
deny certioran
*What I said two years ago remains true today
"The federal judicial system is undergoing profound changes Among
the most significant is the increase in the importance of our courts of ap-
peals Today they are in truth the courts of last resort for almost all fed-
eral litigation Like other courts of last resort — including this one — they
occasionally render decisions that will not withstand the test of time No
judicial system is perfect and no appellate structure can entirely eliminate
judicial error Most certainly, this Court does not sit primarily to correct
what we perceive to be mistakes committed by other tribunals Although
our work is often accorded special respect because of its finality, we pos
sess no judicial monopoly on either finality or respect The quality of the
work done by the courts of appeals merits the esteem of the entire Nation,
but, unfortunately, is not nearly as well or as widely recognized as it should
be Indeed, I believe that if we accorded those dedicated appellate judges
the deference that their work merits, we would be better able to resist the
temptation to grant certioran for no reason other than a tentative predic-
tion that our review of a case may produce an answer different from theirs
In my opinion, that is not a sufficient reason for granting certiorari " 451
U S , at 275 (footnote omitted)
74 OCTOBER TERM, 1982
Syllabus 462 U S
UNITED STATES v PTASYNSKI ET AL
APPEAL FROM DISTRICT COURT OF WYOMING
No 82-1066 Argued April 27, 1983 — Decided June 6, 1983
The Crude Oil Windfall Profit Tax Act of 1980 exempts from the tax im-
posed by the Act domestic crude oil defined as oil produced from wells
located north of the Arctic Circle or on the northerly side of the divide of
the Alaska- Aleutian Range and at least 75 miles from the nearest point
on the Trans-Alaska Pipeline system
Held This exemption does not violate the Uniformity Clause's require-
ment that taxes be "uniform throughout the United States " Pp 80-86
(a) The Uniformity Clause does not require Congress to devise a tax
that falls equally or proportionately on each State nor does the Clause
prevent Congress from defining the subject of a tax by drawing distinc-
tions between similar classes Pp 80-82
(b) Identifying "exempt Alaskan oil" in terms of its geographic bound-
aries does not render the exemption invalid Neither the language of
the Uniformity Clause nor this Court's decisions prohibit all geographi-
cally defined classifications That Clause gives Congress wide latitude
in deciding what to tax and does not prohibit it from considering geo-
graphically isolated problems Here, Congress cannot be faulted for
determining, based on neutral factors, that "exempt Alaskan oil" re-
quired separate favorable treatment Such determination reflects Con-
gress' considered judgment that unique climatic and geographic condi-
tions required that oil produced from the defined region be exempted
from the windfall profit tax, which was devised to tax "windfalls" that
some oil producers would receive as the result of the deregulation of do-
mestic oil prices that was part of the Government's program to encour-
age the exploration for and production of oil Pp 84-86
560 F Supp 549, reversed
POWELL, J , delivered the opinion for a unanimous Court
Acting Solicitor General Wallace argued the cause for the
United States With him on the briefs were Acting Assist-
ant Attorney General Murray, Stuart A Smith, Gary R
Allemy and Knstina E Hamgan
Stephen F Williams argued the cause for appellees
With him on the brief for appellees Ptasynski et al were Wil-
liam H Brown, Michael J Sullivan, Robert F Nagel, and
Mwhael Boudin Harold B Scoggins, Jr , and Gary C
UNITED STATES v PTASYNSKI 75
74 Opinion of the Court
Randall filed a brief for appellees Independent Petroleum
Association et al Jim Mattox, Attorney General, David
R Richards, Executive Assistant Attorney General, and
Cynthia Marshall Sullivan, Walter Davis, and James R
Meyers, Assistant Attorneys General, filed a brief for appel-
lee State of Texas Gene W Lqfitte, George J Domas, Deb-
orah Bahn Price, David B Kennedy, William H Mellor III,
and Gale A Norton filed a brief for appellee State of
Louisiana *
JUSTICE POWELL delivered the opinion of the Court
The issue is whether excluding a geographically defined
class of oil from the coverage of the Crude Oil Windfall Profit
Tax Act violates the Uniformity Clause
During the 1970's the Executive Branch regulated the
price of domestic crude oil See H R Rep No 96-304,
pp 4-5 (1979) Depending on its vintage and type, oil was
divided into differing classes or tiers and assigned a cor-
responding ceiling price Initially, there were only two
tiers, a lower tier for "old oil" and an upper tier for new
production As the regulatory framework developed, new
classes of oil were recognized 1
*Bnefs of amici cunae urging reversal were filed by Matthew J Zinn
for Atlantic Richfield Co , by Jerry N Gauche and Terrence G Perns for
Standard Oil Co , by Norman C Gorsuch, Attorney General, and Deborah
Vogt, Assistant Attorney General, for the State of Alaska, and by Repre
sentative Silvio 0 Conte, pro se
Briefs of amici cunae urging affirmance were filed by John J Rode
macher for the American Farm Bureau Federation et al , by Wilkes C
Robinson for the Gulf & Great Flames Legal Foundation of America et al ,
by David Crump for the Legal Foundation of America et al , and by Daniel
J Popeo for Senator Don Nickles et al
1 In addition to lower- and upper-tier oil, the Federal Energy Adminis-
tration recognized essentially four other classes of crude oil stripper
oil, Alaska North Slope oil, oil produced on the Naval Petroleum Reserve,
76 OCTOBER TERM, 1982
Opinion of the Court 462 U S
In 1979, President Carter announced a program to remove
price controls from domestic oil by September 30, 1981 See
id , at 5 By eliminating price controls, the President
sought to encourage exploration for new oil and to increase
production of old oil from marginally economic operations
SeeH R Doc No 96-107, p 2(1979) He recognized, how-
ever, that deregulating oil prices would produce substantial
gains (referred to as "windfalls") for some producers The
price of oil on the world market had risen markedly, and it
was anticipated that deregulating the price of oil already in
production would allow domestic producers to receive prices
far in excess of their initial estimates See ibid Accord-
ingly, the President proposed that Congress place an excise
tax on the additional revenue resulting from decontrol
Congress responded by enacting the Crude Oil Windfall
Profit Tax Act of 1980, 94 Stat 229, 26 U S C § 4986 et seq
(1976 ed , Supp V) The Act divides domestic crude oil into
three tiers2 and establishes an adjusted base price and a tax
rate for each tier See §§4986, 4989, and 4991 The base
prices generally reflect the selling price of particular catego-
ries of oil under price controls, and the tax rates vary accord-
ing to the vintages and types of oil included within each tier 3
and incremental tertiary oil See H R Rep No 96-304, p 12 (1979)
Alaska North Slope oil was considered a separate class of oil because its
disproportionately high transportation costs forced producers to keep the
wellhead price well below the ceiling price See 42 Fed Reg 41566-41568
(1977)
2 These tiers incorporate to a large extent the categories of oil developed
imder the Federal Energy Administration's crude-oil pricing regulations
Tier two, for example, includes stripper-well oil and oil from a national
petroleum reserve held by the United States See 26 U S C § 4991(d)
(1976 ed 9 Supp V)
* Generally, the windfall profit is the difference between the current well-
head price of the oil and the sum of the adjusted base price See 26
USC S4988(a) (1976 ed , Supp V) The amount of the tax is calculated
by multiplying the resulting difference by the applicable rate § 4987(a)
The tax cm each barrel of oil thus varies according to the adjusted base
pnce and rate, both of which are established by the tier into which the oil is
placed,
UNITED STATES v PTASYNSKI 77
74 Opinion of the Court
See Joint Committee on Taxation, General Explanation of the
Crude Oil Windfall Profit Tax Act of 1980, 96th Cong , 26-36
(Comm Print 1981) The House Report explained that the
Act is "designed to impose relatively high tax rates where
production cannot be expected to respond very much to fur-
ther increases in price and relatively low tax rates on oil
whose production is likely to be responsive to price " H R
Rep No 96-304, at 7, see S Rep No 96-394, p 6 (1979)
The Act exempts certain classes of oil from the tax,4 26
USC §4991(b) (1976 ed , Supp V), one of which is
"exempt Alaskan oil," §4991(b)(3) It is defined as
"any crude oil (other than Sadlerochit oil) which is pro-
duced—
"(1) from a reservoir from which oil has been produced
in commercial quantities through a well located north of
the Arctic Circle, or
"(2) from a well located on the northerly side of the
divide of the Alaska- Aleutian Range and at least 75 miles
from the nearest point on the Trans-Alaska Pipeline
System" §4994(e)
Although the Act refers to this class of oil as "exempt Alas-
kan oil," the reference is not entirely accurate The Act ex-
empts only certain oil produced in Alaska from the windfall
profit tax Indeed, less than 20% of current Alaskan pro-
duction is exempt 6 Nor is the exemption limited to the
4 These classes are defined both by the identity of the producer and the
nature of the oil Section 4991(b)(l), for example, exempts oil produced
"from a qualified governmental interest or a qualified charitable interest "
Congress determined that because the revenues from this oil would be
used by nonprofit entities, it was appropriate to exempt them from the tax
See S Rep No 96-394, pp 60-61 (1979) The Act also exempts types of
oil, such as front-end oil §4991(b)(4) Subject to certain conditions,
front-end oil is oil that is sold to finance tertiary recovery projects See
§4994(c)
6 Of the total amount of oil currently produced in Alaska, 82 6% is subject
to the windfall profit tax, 12 4% is exempt from the tax because it is
produced from a "qualified governmental interest," see n 4, supra, and
78 OCTOBER TERM, 1982
Opinion of the Court 462 U S
State of Alaska Oil produced m certain offshore territorial
waters — beyond the limits of any State — is included within
the exemption
The exemption thus is not drawn on state political lines
Rather it reflects Congress' considered judgment that unique
climatic and geographic conditions require that oil produced
from this exempt area be treated as a separate class of oil
See H R Conf Rep No 96-817, p 103 (1980) As Senator
Gravel explained, the development and production of oil in
arctic and subarctic regions is hampered by "severe weather
conditions, remoteness, sensitive environmental and geologi-
cal characteristics, and a lack of normal social and industrial
infrastructure "6 125 Cong Rec 31733 (1979) These fac-
tors combine to make the average cost of drilling a well in
Alaska as much as 15 times greater than that of drilling a well
elsewhere in the United States See 126 Cong Rec 5846
(1980) (remarks of Sen Gravel) 7 Accordingly, Congress
5 1% is exempt because it is "exempt Alaskan oil " Brief for State of
Alaska as Amicus Curme 7
6 A particular problem results from the presence of permafrost, which
exists throughout the exempt area Permafrost is ground that remains
frozen continuously, but which will thaw and subside if the surface vegeta-
tion insulating it is disturbed See University of Alaska, Alaska Regional
Profiles, Yukon Region 98-100 To protect the surface vegetation, the
Alaska Department of Natural Resources limits the use of vehicles and ma-
chinery to those months when the surface is frozen and covered with snow
Thus, construction and seismic activities are restricted primarily to periods
when the climate is at its harshest Temperatures of - 40 to - 50 degrees
Fahrenheit are not uncommon, see id , at 15-16, and what normally might
be accomplished with relative ease becomes a demanding task
7 The American Petroleum Institute reported comparative costs for drill-
ing wells in Alaska, California, Louisiana, and Texas The average cost of
an onshore Alaskan well was $3,181,000 See American Petroleum Insti-
tute, 1976 Joint Association Survey on Drilling Costs 12 (1977) The next
highest cost was $292,000 in Louisiana See id , at 28-29 See also Stand-
ard & Poor's Industry Surveys, Oil Gas Drilling and Services, Vol 150,
No 40, Sec 1 (Get 7, 1982) Although not identical to Senator Gravel's
ijgures, these sources indicate that the cost of developing oil in Alaska
to exceeds that in other parts of the country Moreover, because these
UNITED STATES v PTASYNSKI 79
74 Opinion of the Court
chose to exempt oil produced in the defined region from the
windfall profit tax It determined that imposing such a tax
"would discourage exploration and development of reservoirs
in areas of extreme climatic conditions " H R Conf Rep
No 96-817, at 103
Six months after the Act was passed, independent oil pro-
ducers and royalty owners filed suit in the District Court for
the District of Wyoming, seeking a refund for taxes paid
under the Act On motion for summary judgment, the Dis-
trict Court held that the Act violated the Uniformity Clause,
Art I, §8, cl 1 8 550 F Supp 549, 553 (1982) It recog-
nized that Congress' power to tax is virtually without limita-
tion, but noted that the Clause in question places one specific
limit on Congress' power to impose indirect taxes Such
taxes must be uniform throughout the United States, and
uniformity is achieved only when the tax " 'operates with the
same force and effect in every place where the subject of it is
found '" Ibid (quoting Head Money Cases, 112 U S 580,
594 (1884))
Because the Act exempts oil from certain areas within one
State, the court found that the Act does not apply uniformly
throughout the United States It recognized that Congress
could have "a rational justification for the exemption," but
concluded that "[distinctions based on geography are simply
not allowed " 550 F Supp , at 553 The court then found
that the unconstitutional provision exempting Alaskan oil
could not be severed from the remainder of the Act Id , at
554 It therefore held the entire windfall profit tax invalid
Id , at 555
figures represent the cost of an average Alaskan well, they reflect the
lower expenses incurred in developing oil in nonexempt areas They thus
understate the costs of drilling m the exempt region
8 Article I, §8, cl 1, provides
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States, but all Duties, Imposts and Excises
shall be uniform throughout the United States "
30 OCTOBER TERM, 1982
Opinion of the Court 462 U S
We noted probable jurisdiction, 459 U S 1199 (1983),
and now reverse
II
Appellees advance two arguments in support of the Dis-
trict Court's judgment First, they contend that the con-
stitutional requirement that taxes be "uniform throughout
the United States" prohibits Congress from exempting a
specific geographic region from taxation They concede that
Congress may take geographic considerations into account m
deciding what oil to tax Brief for Taxpayer Appellees 6-7
But they argue that the Uniformity Clause prevents Con-
gress from framing, as it did here, the resulting tax in terms
of geographic boundaries Second, they argue that the
Alaskan oil exemption was an integral part of a compromise
struck by Congress Thus, it would be inappropriate to
invalidate the exemption but leave the remainder of the tax
in effect Because we find the Alaskan exemption constitu-
tional, we do not consider whether it is severable
The Uniformity Clause conditions Congress' power to im-
pose indirect taxes 9 It provides that "all Duties, Imposts
and Excises shall be uniform throughout the United States "
Art I, §8, cl 1 The debates in the Constitutional Conven-
tion provide little evidence of the Framers' intent,10 but the
9 Article I, §9, cl 4, provides that direct taxes shall be apportioned
among the States by population Indirect taxes, however, are subject to
the rule of uniformity See Hylton v United States, 3 Dall 171, 176
(1796) (opinion of Paterson, J )
M The Clause was proposed on August 25 and adopted on August 31 with-
out discussion See 2 M Farrand, The Records of the Federal Convention
of 1787, pp 417-418, 481 (1911) When the Committee of Style reported
the final draft of the Constitution on September 12, it failed to include the
Clause Id , at 594 (Clause interlined by James Madison) This omission
was corrected two days later by appending the Clause to Art I, § 8, cl 1
Id , at 614
The origins of the Uniformity Clause are linked to those of the Port Pref-
emice Clause, Art I, §9, cl 6 The two were proposed together, id ,
UNITED STATES v PTASYNSKI 81
74 Opinion of the Court
concerns giving rise to the Clause identify its purpose more
clearly The Committee of Detail proposed as a remedy for
interstate trade barriers that the power to regulate com-
merce among the States be vested in the National Govern-
ment, and the Convention agreed See 2 M Farrand, The
Records of the Federal Convention of 1787, p 308 (1911),
C Warren, The Making of the Constitution 567-570 (1928)
Some States, however, remained apprehensive that the
regionalism that had marked the Confederation would per-
sist Id , at 586-588 There was concern that the National
Government would use its power over commerce to the dis-
advantage of particular States The Uniformity Clause was
proposed as one of several measures designed to limit the
exercise of that power See 2 M Farrand, supra, at 417-
418, Knowlton v Moore, 178 U S 41, 103-106 (1900) As
Justice Story explained
"[The purpose of the Clause] was to cut off all undue
preferences of one State over another in the regulation
of subjects affecting their common interests Unless
duties, imposts, and excises were uniform, the grossest
and most oppressive inequalities, vitally affecting the
pursuits and employments of the people of different
States, might exist The agriculture, commerce, or
manufactures of one State might be built up on the ruins
of those of another, and a combination of a few States in
Congress might secure a monopoly of certain branches of
trade and business to themselves, to the injury, if not
to the destruction, of their less favored neighbors "
1 J Story, Commentaries on the Constitution of the
United States §957 (T Cooley ed 1873)
See also 3 Annals of Cong 378-379 (1792) (remarks of Hugh
Williamson), Address of Luther Martin to the Maryland Leg-
at 417-418, and reported out of a special committee as an interrelated lim-
itation on the National Government's commerce power, see id , at 437,
Knowlton v Moore, 178 U S 41, 103-106 (1900) They were separated
without explanation on September 14 when the Convention remedied their
omission from the September 12 draft
82 OCTOBER TERM, 1982
Opinion of the Court 462 U S
islature (Nov 29, 1787), reprinted m 3 M Farrand, supra,
at 205
This general purpose, however, does not define the precise
scope of the Clause The one issue that has been raised
repeatedly is whether the requirement of uniformity encom-
passes some notion of equality It was settled fairly early
that the Clause does not require Congress to devise a tax
that falls equally or proportionately on each State Rather,
as the Court stated in the Head Money Cases, 112 U S , at
594, a "tax is uniform when it operates with the same force
and effect in every place where the subject of it is found "
Nor does the Clause prevent Congress from defining the
subject of a tax by drawing distinctions between similar
classes In the Head Money Cases, supra, the Court recog-
nized that in imposing a head tax on persons coming into this
country, Congress could choose to tax those persons who im-
migrated through the ports, but not those who immigrated at
inland cities As the Court explained, "the evil to be reme-
died by this legislation has no existence on our inland bor-
ders, and immigration in that quarter needed no such regula-
tion " Id , at 595 The tax applied to all ports alike, and the
Court concluded that "there is substantial uniformity within
the meaning and purpose of the Constitution " Ibid Sub-
sequent cases have confirmed that the Framers did not in-
tend to restrict Congress' ability to define the class of objects
to be taxed They intended only that the tax apply wher-
ever the classification is found See Knowlton v Moore,
supra, at 106, " Nicol v Ames, 173 U S 509, 521-522 (1899)
11 Knowlton v Moore represents the Court's most detailed considera-
tion of the Uniformity Clause See 178 U S , at 83-106 The issue in
KnowUon, however, only presented a variation on the question addressed
in the Head Momy Cases, 112 U S 580 (1884) Rather than distinguish-
ing between port and inland cities, the statute at issue in Knowlton im-
posed a progressive tax on legacies and varied the rate of the tax among
classes of legatees The argument was that Congress could not distin-
guish among legacies or people receiving them, it was required to tax all
UNITED STATES v PTASYNSKI 83
74 Opinion of the Court
The question that remains, however, is whether the Uni-
formity Clause prohibits Congress from defining the class of
objects to be taxed in geographic terms The Court has not
addressed this issue squarely 12 We recently held, however,
that the uniformity provision of the Bankruptcy Clause 13 did
not require invalidation of a geographically defined class of
debtors See Regional Rail Reorganization Act Cases, 419
U S 102, 161 (1974) In that litigation, creditors of bank-
rupt railroads challenged a statute that was passed to reorga-
nize eight major railroads in the northeast and midwest re-
gions of the country They argued that the statute violated
the uniformity provision of the Bankruptcy Clause because it
operated only in a single statutonly defined region The
Court found that "[t]he uniformity provision does not deny
Congress power to take into account differences that exist
between different parts of the country, and to fashion legisla-
legacies at the same rate or none See Knowlton v Moore, 178 U S , at
83-84 In rejecting this argument, the Court reaffirmed its conclusion in
the Head Money Cases that Congress may distinguish between similar
classes in selecting the subject of a tax 178 U S , at 106
Since Knowlton, the Court has not had occasion to consider the Uniform-
ity Clause in any detail See, e g , Florida v Mellon, 273 U S 12, 17
(1927), LaBelle Iron Works v United States, 256 U S 377, 392 (1921)
12 In Downes v Bidwell, 182 U S 244 (1901), the Court considered
whether Congress could place a duty on merchandise imported from
Puerto Rico The Court assumed that if Puerto Rico were part of the
United States, the duty would be unconstitutional under the Uniformity
Clause or the Port Preference Clause Id , at 249 It upheld the duty
because it found that Puerto Rico was not part of the country for the
purposes of either Clause Id , at 287
18 Article I, § 8, cl 4, provides that Congress shall have power "To estab-
lish uniform Laws on the subject of Bankruptcies throughout the
United States " Although the purposes giving rise to the Bankruptcy
Clause are not identical to those underlying the Uniformity Clause, we
have looked to the interpretation of one Clause in determining the meaning
of the other See Regional Rail Reorganization Act Cases, 419 U S 102,
160-161 (1974)
84 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tion to resolve geographically isolated problems " Id , at
159 The fact that the Act applied to a geographically de-
fined class did not render it unconstitutional We noted that
the Act in fact had operated uniformly throughout the United
States During the period in which the Act was effective, no
railroad reorganization proceeding had been pending outside
the statutorily defined region Id , at 160
In concluding that the uniformity provision had not been
violated, we relied m large part on the Head Money Cases,
supra, where the effect of the statute had been to distinguish
between geographic regions We rejected the argument
that "the Rail Act differs from the head tax statute because
by its own terms the Rail Act applies only to one designated
region The definition of the region does not obscure
the reality that the legislation applies to all railroads under
reorganization pursuant to § 77 during the time the Act ap-
plies " 419 U S , at 161 (emphasis added)
B
With these principles in mind, we now consider whether
Congress' decision to treat Alaskan oil as a separate class of
oil violates the Uniformity Clause We do not think that the
language of the Clause or this Court's decisions prohibit all
geographically defined classifications As construed in the
Head Money Cases, the Uniformity Clause requires that an
excise tax apply, at the same rate, in all portions of the
United States where the subject of the tax is found Where
Congress defines the subject of a tax in nongeographic terms,
the Uniformity Clause is satisfied See Knowlton v Moore,
178 U S , at 106 We cannot say that when Congress uses
geographic terms to identify the same subject, the classifica-
tion is invalidated The Uniformity Clause gives Congress
wide latitude in deciding what to tax and does not prohibit
it from considering geographically isolated problems See
Head Money Cases, supra, at 595 This is the substance
of our decision in the Regional Rail Reorganization Act
UNITED STATES v PTASYNSKI 85
74 Opinion of the Court
Cases, 419 U S , at 156-161 14 But where Congress does
choose to frame a tax in geographic terms, we will examine
the classification closely to see if there is actual geographic
discrimination See id , at 160-161
In this case, we hold that the classification is constitu-
tional As discussed above, Congress considered the wind-
fall profit tax a necessary component of its program to
encourage the exploration for and production of oil It per-
ceived that the decontrol legislation would result — in cer-
tain circumstances — in profits essentially unrelated to the
objective of the program, and concluded that these profits
should be taxed Accordingly, Congress divided oil into
various classes and gave more favorable treatment to those
classes that would be responsive to increased prices
Congress clearly viewed "exempt Alaskan oil" as a unique
class of oil that, consistent with the scheme of the Act, mer-
ited favorable treatment 15 It had before it ample evidence
of the disproportionate costs and difficulties — the fragile ecol-
ogy, the harsh environment, and the remote location — associ-
ated with extracting oil from this region We cannot fault its
determination, based on neutral factors, that this oil required
separate treatment Nor is there any indication that Con-
gress sought to benefit Alaska for reasons that would offend
14 Railway Labor Executives' Assn v Gibbons, 455 U S 457 (1982), is
not to the contrary There we held that a statute designed to aid one
bankrupt railroad violated the uniformity provision of the Bankruptcy
Clause We stated "The conclusion is inevitable that [the statute] is
not a response either to the particular problems of major railroad bank-
ruptcies or to any geographically isolated problem it is a response to the
problems caused by the bankruptcy of one railroad " Id , at 470 (emphasis
in original) It is clear that in this case Congress sought to deal with a
geographically isolated problem
16 Congress' view that oil from this area of Alaska merits separate treat-
ment is consistent with the actions of both the Federal Energy Administra-
tion, see n 1, supra, and the President, see H R Doc No 96-107, p 3
(1979) See also Staff of the Joint Committee on Taxation, The Design of a
Windfall Profit Tax 20-23 (Comm Print 1979)
86 OCTOBER TERM, 1982
Opinion of the Court 462 U. S.
the purpose of the Clause. Nothing in the Act's legisla-
tive history suggests that Congress intended to grant Alaska
an undue preference at the expense of other oil-producing
States. This is especially clear because the windfall profit
tax itself falls heavily on the State of Alaska. See n. 5,
supra.
Ill
Had Congress described this class of oil in nongeographic
terms, there would be no question as to the Act's constitu-
tionality. We cannot say that identifying the class in terms
of its geographic boundaries renders the exemption invalid.
Where, as here, Congress has exercised its considered judg-
ment with respect to an enormously complex problem, we are
reluctant to disturb its determination. Accordingly, the
judgment of the District Court is
Reversed.
BALTIMORE GAS & ELECTRIC CO v NRDC 87
Syllabus
BALTIMORE GAS & ELECTRIC CO ET AL v
NATURAL RESOURCES DEFENSE
COUNCIL, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No 82-524 Argued April 19, 1983— Decided June 6, 1983*
Section 102(2)(C) of the National Environmental Pokey Act (NEPA) re-
quires federal agencies to consider the environmental impact of any
major federal action The dispute in these cases concerns the adoption
by the Nuclear Regulatory Commission (NRC) of a series of generic
rules to evaluate the environmental effects of a nuclear powerplant's fuel
cycle In these rules, the NRC decided that licensing boards should
assume, for purposes of NEPA, that the permanent storage of certain
nuclear wastes would have no significant environmental impact (the so-
called "zero-release" assumption) and thus should not affect the decision
whether to license a particular nuclear powerplant At the heart of each
rule is Table S-3, a numerical compilation of the estimated resources
used and effluents released by fuel cycle activities supporting a year's
operation of a typical light-water reactor Challenges to the rules ulti-
mately resulted in a decision by the Court of Appeals, on a petition for
review of the final version of the rules, that the rules were arbitrary and
capricious and inconsistent with NEPA because the NRC had not fac-
tored the consideration of uncertainties surrounding the zero-release as-
sumption into the licensing process m such a manner that the uncertain-
ties could potentially affect the outcome of any decision to license a plant
Held The NRC complied with NEPA, and its decision is not arbitrary or
capricious within the meaning of § 10(e) of the Administrative Procedure
Act(APA) Pp 97-108
(a) The zero-release assumption, which was designed for the limited
purpose of individual licensing decisions and which is but a single figure
in Table S-3, is within the bounds of reasoned decisionmaking required
by the APA The NRC, in its statement announcing the final Table S-3
rule, summarized the major uncertainties of long-term storage of nuclear
wastes, noted that the probability of intrusion was small, and found the
evidence "tentative but favorable" that an appropriate storage site
Together with No 82-545, United States Nuclear Regulatory Com
mission et al v Natural Resources Defense Council, Inc , et al , and
No 82-551, Commonwealth Edison Co et al v Natural Resources De
fense Council, Inc , et al , also on certiorari to the same court
88 OCTOBER TERM, 1982
Syllabus 462 U S
could be found Table S-3 refers interested persons to staff studies that
discuss the uncertainties m greater detail In these circumstances, the
NRC complied with NEPA's requirements of consideration and disclo
sure of the environmental impacts of its licensing decisions It is not the
task of this Court to determine what decision it would have reached if it
had been the NRC The Court's only task is to determine whether the
NRC had considered the relevant factors and articulated a rational con
nection between the facts found and the choice made Under this stand
ard, the zero-release assumption, within the context of Table S-3 as a
whole, was not arbitrary or capricious Pp 97-106
(b) It is inappropriate to cast doubt on the licensing proceedings sim
ply because of a minor ambiguity in the language of an earlier rule as to
whether licensing boards were required to consider health effects, socio
economic effects, or cumulative impacts, where there is no evidence that
this ambiguity prevented any party from making as full a presentation as
desired or ever affected the decision to license a plant Pp 106-108
222 U S App D C 9, 685 F 2d 459, reversed
O'CONNOR, 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
David A Strauss argued the cause for petitioners m all
cases With him on the briefs for petitioners in No 82-545
were Solicitor General Lee, Assistant Attorney General
Dinkms, Deputy Solicitor General Claiborne, John H Gar
vey, Jacques B Gelin, and E Leo Slaggie Henry V Nickel,
F William Brownell, and George C Freeman, Jr , filed briefs
for petitioners m No 82-524 James P McGranery, Jr ,
and Michael I Miller filed briefs for petitioners in
No 82-551 Raymond M Momboisse, Sam Kazman, Ron-
ald A Zumbrun, and Robert K Best filed a brief for re-
spondent Pacific Legal Foundation in support of petitioners
Timothy B Atkeson argued the cause for respondents in
all cases and filed a brief for respondent Natural Resources
Defense Council, Inc Robert Abrams, Attorney General,
Ezra I Bwlik, Assistant Attorney General, and Peter H
Schijf filed a brief for respondent State of New York t
f Briefs of amicus curiae urging reversal were filed by Harold F Reis
and Ltnda L Hodge for the Atomic Industrial Forum, Inc , and by Wayne
T Ellwtt for Scientists and Engineers for Secure Energy, Inc
BALTIMORE GAS & ELECTRIC CO v NRDC 89
87 Opinion of the Court
JUSTICE O'CONNOR delivered the opinion of the Court
Section 102(2)(C) of the National Environmental Policy Act
of 1969, 83 Stat 853, 42 U S C §4332(2)(C) (NEPA), re-
quires federal agencies to consider the environmental impact
of any major federal action l As part of its generic rule-
making proceedings to evaluate the environmental effects of
the nuclear fuel cycle for nuclear powerplants, the Nuclear
Briefs of amici cunae urging affirmance were filed for the State of Min-
nesota by Hubert H Humphrey III, Attorney General, and Jocelyn Furt
wangler Olson, Special Assistant Attorney General, for the State of Wis-
consin et al by Branson C La Follette, Attorney General of Wisconsin,
and Carl A Sinderbrand, Assistant Attorney General, Robert T Stephan,
Attorney General of Kansas, and Robert Vinson Eye, Assistant Attorney
General, William J Guste, Jr , Attorney General of Louisiana, Joseph I
Lieberman, Attorney General of Connecticut, John J Easton, Jr , Attor-
ney General of Vermont, and Memdeth Wright, Assistant Attorney Gen-
eral, John Ashcroft, Attorney General of Missouri, and Robert Lindholm,
Assistant Attorney General, William M Leech, Jr , Attorney General of
Tennessee, Mark V Meierhenry, Attorney General of South Dakota, Paul
G Bardacke, Attorney General of New Mexico, Tany S Hong, Attorney
General of Hawaii, Chauncey H Browning, Jr , Attorney General of West
Virginia, and Leonard Knee, Deputy Attorney General, A G McClintock,
Attorney General of Wyoming, Jim Mattox, Attorney General of Texas,
and David Richards, Executive Assistant Attorney General, Janice E
Kerr and J Calvin Simpson, for Kansans for Sensible Energy by John M
Simpson, and for Limerick Ecology Action, Inc , et al by Charles W
Elliott
1 Section 102(2)(C) provides
"The Congress authorizes and directs that, to the fullest extent possible
(2) all agencies of the Federal Government shall —
"(c) include in every recommendation or report on proposals for legisla-
tion and other major Federal actions significantly affecting the quality of
the human environment, a detailed statement by the responsible official
on —
"(i) the environmental impact of the proposed action,
"(11) any adverse environmental effects which cannot be avoided should
the proposal be implemented, [and]
"(v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented "
90 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Regulatory Commission (Commission) 2 decided that licensing
boards should assume, for purposes of NEPA, that the
permanent storage of certain nuclear wastes would have no
significant environmental impact and thus should not affect
the decision whether to license a particular nuclear power-
plant We conclude that the Commission complied with
NEPA and that its decision is not arbitrary or capricious
within the meaning of § 10(e) of the Administrative Proce-
dure Act (APA), 5 U S C § 706 3
The environmental impact of operating a light-water nu-
clear powerplant4 includes the effects of offsite activities
necessary to provide fuel for the plant ("front end" activi-
ties), and of offsite activities necessary to dispose of the
highly toxic and long-lived nuclear wastes generated by the
plant ("back end" activities) The dispute in these cases con-
2 The original Table S-3 rule was promulgated by the Atomic Energy
Commission (AEC) Congress abolished the AEC in the Energy Reorga-
nization Act of 1974, 42 U S C § 5801 et seq , and transferred its licensing
and regulatory functions to the Nuclear Regulatory Commission (NRC)
The interim and final rules were promulgated by the NRC This opinion
will use the term "Commission" to refer to both the NRC and the predeces-
sor AEC
'Title 5 U S C § 706 states m part
"The reviewing court shall —
"(2) hold unlawful and set aside agency action, findings, and conclusions
found to be —
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law "
4 A light-water nuclear powerplant is one that uses ordinary water (H20),
as opposed to heavy water (D2O), to remove the heat generated in the
nuclear core See Van Nostrand's Scientific Encyclopedia 1998, 2008
(D Considme & G Considine eds , 6th ed 1983) The bulk of the reactors
in the United States are light-water nuclear reactors NRC Ann Rep ,
Appendix 6 (1980)
BALTIMORE GAS & ELECTRIC CO v NRDC 91
87 Opinion of the Court
cerns the Commission's adoption of a series of generic rules
to evaluate the environmental effects of a nuclear power-
plant's fuel cycle At the heart of each rule is Table S-3, a
numerical compilation of the estimated resources used and
effluents released by fuel cycle activities supporting a year's
operation of a typical light-water reactor 5 The three ver-
sions of Table S-3 contained similar numerical values, al-
though the supporting documentation has been amplified
during the course of the proceedings
The Commission first adopted Table S-3 in 1974, after
extensive informal rulemakmg proceedings 39 Fed Reg
14188 et seq (1974) This "original" rule, as it later came to
be described, declared that m environmental reports and
impact statements for individual licensing proceedings the
environmental costs of the fuel cycle "shall be as set forth"
in Table S-3 and that "[n]o further discussion of such environ-
mental effects shall be required " Id , at 14191 6 The origi-
nal Table S-3 contained no numerical entry for the long-term
5 For example, the tabulated impacts include the acres of land committed
to fuel cycle activities, the amount of water discharged by such activities,
fossil fuel consumption, and chemical and radiological effluents (measured
in curies), all normalized to the annual fuel requirement for a model 1,000
megawatt light- water reactor See Table S-3, reprinted m the Appendix,
infra
6 Under the Atomic Energy Act of 1954, 68 Stat 919, as amended, 42
U S C § 2011 et seq , a utility seeking to construct and operate a nuclear
powerplant must obtain a separate permit or license at both the construc-
tion and the operation stage of the project After the Commission's staff
has examined the application for a construction license, which includes a
review of possible environmental effects as required by NEPA, a three-
member Atomic Safety and Licensing Board conducts a public adjudicatory
hearing and reaches a decision which can be appealed to the Atomic Safety
and Licensing Appeal Board and, in the Commission's discretion, to the
Commission itself The final agency decision may be appealed to the
courts of appeals A similar procedure occurs when the utility applies for
an operating license, except that a hearing need be held only in contested
cases See Vermont Yankee Nuclear Power Corp v Natural Resources
Defense Council, Inc , 435 U S 519, 526-527 (1978)
92 OCTOBER TERM, 1982
Opinion of the Court 462 U S
environmental effects of storing solidified transuramc and
high-level wastes,7 because the Commission staff believed
that technology would be developed to isolate the wastes
from the environment The Commission and the parties
have later termed this assumption of complete repository in-
tegrity as the "zero-release" assumption the reasonableness
of this assumption is at the core of the present controversy
The Natural Resources Defense Council (NRDC), a re-
spondent in the present cases, challenged the original rule
and a license issued under the rule to the Vermont Yankee
Nuclear Power Corp The Court of Appeals for the District
of Columbia Circuit affirmed Table S-3's treatment of the
"front end" of the fuel cycle, but vacated and remanded the
portion of the rule relating to the "back end" because of per-
ceived inadequacies in the rulemaking procedures Natural
Resources Defense Council, Inc v NRC, 178 U S App
D C 336, 547 F 2d 633 (1976) Judge Tamm disagreed
that the procedures were inadequate, but concurred on the
ground that the record on waste storage was inadequate to
support the zero-release assumption Id , at 361, 547 F 2d,
at 658
In Vermont Yankee Nuclear Power Corp v Natural Re-
sources Defense Council, Inc , 435 U S 519 (1978), this
Court unanimously reversed the Court of Appeals' decision
that the Commission had used inadequate procedures, find-
ing that the Commission had done all that was required by
NEPA and the APA and determining that courts generally
lack the authority to impose "hybrid" procedures greater
than those contemplated by the governing statutes We
remanded for review of whether the original rule was ade-
quately supported by the administrative record, specifically
7 High-level wastes, which are highly radioactive, are produced in liquid
form when spent fuel is reprocessed Transuramc wastes, which are also
highly toxic, are nudides heavier than uranium that are produced m the
reactor fuel See Natural Resources Defense Council, Inc v NRC, 222
U S App D C 9, 16, n 11, 685 F 2d, 459, 466, n 11 (1982)
BALTIMORE GAS & ELECTRIC CO v NRDC 93
87 Opinion of the Court
stating that the court was free to agree or disagree with
Judge Tamm's conclusion that the rule pertaining to the
"back end" of the fuel cycle was arbitrary and capricious
within the meaning of § 10(e) of the APA, 5 U S C §706
Id , at 536, n 14
While Vermont Yankee was pending in this Court, the
Commission proposed a new "interim" rulemaking proceed-
ing to determine whether to adopt a revised Table S-3 The
proposal explicitly acknowledged that the risks from long-
term repository failure were uncertain, but suggested that
research should resolve most of those uncertainties in the
near future 41 Fed Reg 45850-45851 (1976) After fur-
ther proceedings, the Commission promulgated the interim
rule in March 1977 Table S-3 now explicitly stated that
solidified high-level and transuranic wastes would remain
buried in a federal repository and therefore would have no ef-
fect on the environment 42 Fed Reg 13807 (1977) Like
its predecessor, the interim rule stated that "[n]o further
discussion of such environmental effects shall be required "
Id , at 13806 The NRDC petitioned for review of the
interim rule, challenging the zero-release assumption and
faulting the Table S-3 rule for failing to consider the health,
cumulative, and socioeconomic effects of the fuel cycle activi-
ties The Court of Appeals stayed proceedings while await-
ing this Court's decision in Vermont Yankee In April 1978,
the Commission amended the interim rule to clarify that
health effects were not covered by Table S-3 and could be
litigated in individual licensing proceedings 43 Fed Reg
15613 etseq (1978)
In 1979, following further hearings, the Commission
adopted the "final" Table S-3 rule 44 Fed Reg 45362 et
seq (1979) Like the amended interim rule, the final rule
expressly stated that Table S-3 should be supplemented in
individual proceedings by evidence about the health, socio-
economic, and cumulative aspects of fuel cycle activities
The Commission also continued to adhere to the zero-release
94 OCTOBER TERM, 1982
Opinion of the Court 462 U S
assumption that the solidified waste would not escape and
harm the environment once the repository was sealed It
acknowledged that this assumption was uncertain because of
the remote possibility that water might enter the repository,
dissolve the radioactive materials, and transport them to the
biosphere Nevertheless, the Commission predicted that a
bedded-salt repository would maintain its integrity, and
found the evidence "tentative but favorable" that an appro-
priate site would be found Id , at 45368 The Commission
ultimately determined that any undue optimism in the as-
sumption of appropriate selection and perfect performance of
the repository is offset by the cautious assumption, reflected
in other parts of the Table, that all radioactive gases in the
spent fuel would escape during the initial 6- to 20-year period
that the repository remained open, ibid , and thus did not
significantly reduce the overall conservatism of Table S-3
Id , at 45369
The Commission rejected the option of expressing the un-
certainties in Table S-3 or permitting licensing boards, in
performing the NEPA analysis for individual nuclear plants,
to consider those uncertainties It saw no advantage in
reassessing the significance of the uncertainties in individual
licensing proceedings
"In view of the uncertainties noted regarding waste
disposal, the question then arises whether these uncer-
tainties can or should be reflected explicitly in the fuel
cycle rule The Commission has concluded that the rule
should not be so modified On the individual reactor li-
censing level, where the proceedings deal with fuel cycle
issues only peripherally, the Commission sees no advan-
tage in having licensing boards repeatedly weigh for
themselves the effect of uncertainties on the selection of
fuel cycle impacts for use in cost-benefit balancing This
is a generic question properly dealt with in the rule-
maJong as part of choosing what impact values should go
into the fuel cycle rule The Commission concludes, hav-
BALTIMORE GAS & ELECTRIC CO v NRDC 95
87 Opinion of the Court
mg noted that uncertainties exist, that for the limited pur-
pose of the fuel cycle rule it is reasonable to base im-
pacts on the assumption which the Commission believes
the probabilities favor, i e , that bedded-salt repository
sites can be found which will provide effective isolation of
radioactive waste from the biosphere " Id , at 45369
The NRDC and respondent State of New York petitioned
for review of the final rule The Court of Appeals consoli-
dated these petitions for all purposes with the pending chal-
lenges to the initial and interim rules 8 By a divided panel,9
the court concluded that the Table S-3 rules were arbitrary
and capricious and inconsistent with NEPA because the
Commission had not factored the consideration of uncer-
tainties surrounding the zero-release assumption into the
licensing process in such a manner that the uncertainties
could potentially affect the outcome of any decision to license
a particular plant Natural Resources Defense Council,
Inc v NRC, 222 U S App D C 9, 685 F 2d 459 (1982)
The court first reasoned that NEPA requires an agency to
consider all significant environmental risks from its proposed
action If the zero-release assumption is taken as a, finding
that long-term storage poses no significant environmental
8 In Vermont Yankee, we indicated that the Court of Appeals could con-
sider any additions made to the record by the Commission, and could con-
solidate review of the initial review with review of later rules 435 U S ,
at 537, n 14 Consistent with this direction, the parties stipulated that all
three versions of the rule could be reviewed on the basis of the whole
record See 222 U S App D C , at 21, n 39, 685 F 2d, at 471, n 39
9 Judge Bazelon wrote the opinion for the court Judge Wilkey joined
the section of the opinion that rejected New York's argument that the
waste-disposal technology assumed for calculation of certain effluent re-
lease values was economically infeasible That issue is not before us
Judge Wilkey filed a dissenting opinion on the issues that are under review
here Judge Edwards of the Court of Appeals for the Sixth Circuit, sit-
ting by designation, joined these sections of Judge Bazelon's opinion, and
also filed a separate opinion concurring in part and dissenting on the eco-
nomic mfeasibility issue
BALTIMORE GAS & ELECTRIC CO v NRDC 97
87 Opinion of the Court
II
We are acutely aware that the extent to which this Nation
should rely on nuclear power as a source of energy is an im-
portant and sensitive issue Much of the debate focuses on
whether development of nuclear generation facilities should
proceed in the face of uncertainties about their long-term
effects on the environment Resolution of these fundamen-
tal policy questions lies, however, with Congress and the
agencies to which Congress has delegated authority, as well
as with state legislatures and, ultimately, the populace as a
whole Congress has assigned the courts only the limited,
albeit important, task of reviewing agency action to deter-
mine whether the agency conformed with controlling stat-
utes As we emphasized in our earlier encounter with these
very proceedings, "[administrative decisions should be set
aside in this context, as in every other, only for substantial
procedural or substantive reasons as mandated by statute
, not simply because the court is unhappy with the result
reached " Vermont Yankee, 435 U S , at 558
The controlling statute at issue here is NEPA NEPA
has twin aims First, it "places upon an agency the obliga-
tion to consider every significant aspect of the environmental
impact of a proposed action " Vermont Yankee, supra, at
553 Second, it ensures that the agency will inform the pub-
lic that it has indeed considered environmental concerns in its
decisionmaking process Weinberger v Catholic Action of
Hawaii/Peace Education Project, 454 U S 139, 143 (1981)
Congress in enacting NEPA, however, did not require agen-
cies to elevate environmental concerns over other appro-
priate considerations See Stryckers' Bay Neighborhood
Council v Karlen, 444 U S 223, 227 (1980) (per cunam)
Rather, it required only that the agency take a "hard look" at
the environmental consequences before taking a major ac-
tion See Kleppe v Sierra Club, 427 U S 390, 410, n 21
(1976) The role of the courts is simply to ensure that the
98 OCTOBER TERM, 1982
Opinion of the Court 462 U S
agency has adequately considered and disclosed the envi
ronmental impact of its actions and that its decision is not
arbitrary or capricious See generally Citizens to Preserve
Overton Park, Inc v Volpe, 401 U S 402, 415-417 (1971)
In its Table S-3 rule here, the Commission has determined
that the probabilities favor the zero-release assumption, be-
cause the Nation is likely to develop methods to store the
wastes with no leakage to the environment The NRDC did
not challenge and the Court of Appeals did not decide the
reasonableness of this determination, 222 U S App D C ,
at 28, n 96, 685 F 2d, at 478, n 96, and no party seriously
challenges it here The Commission recognized, however,
that the geological, chemical, physical, and other data it
relied on in making this prediction were based, in part, on
assumptions which involve substantial uncertainties Again,
no one suggests that the uncertainties are trivial or the
potential effects insignificant if time proves the zero-release
assumption to have been seriously wrong After confronting
the issue, though, the Commission has determined that the
uncertainties concerning the development of nuclear waste
storage facilities are not sufficient to affect the outcome of
any individual licensing decision 10
It is clear that the Commission, in making this determi-
nation, has made the careful consideration and disclosure
required by NEPA The sheer volume of proceedings before
the Commission is impressive u Of far greater importance,
MAs the Court of Appeals recognized, 222 U S App D C , at 31,
TL 118, 685 F 2d, at 481, n 118, the Commission became increasingly can
did in acknowledging the uncertainties underlying permanent waste dis
posal Because all three versions of Table S~3 use the same zero release
assumption, and the parties stipulated that the entire record be used in re
viewing aH three versions, see n 8, supra, we need review only the propn
ety of the final Table S-3 rule We leave for another day any general con
cera with an agency whose initial Environmental Impact Statement (EIS)
is insufficient but who later adequately supplements its consideration and
disclosure of the environmental impact of its action
ttThe record includes more than 1,100 pages of prepared direct testi
mony, two rounds of questions by participants and several hundred pages
BALTIMORE GAS & ELECTRIC CO v NRDC 99
87 Opinion of the Court
the Commission's Statement of Consideration announcing the
final Table S-3 rule shows that it has digested this mass of
material and disclosed all substantial risks 44 Fed Reg
45367-45369 (1979) The Statement summarizes the major
uncertainty of long-term storage in bedded-salt repositories,
which is that water could infiltrate the repository as a result
of such diverse factors as geologic faulting, a meteor strike,
or accidental or deliberate intrusion by man The Commis-
sion noted that the probability of intrusion was small, and
that the plasticity of salt would tend to heal some types of
intrusions The Commission also found the evidence "tenta-
tive but favorable" that an appropriate site could be found
Table S-3 refers interested persons to staff studies that dis-
cuss the uncertainties in greater detail 12 Given this record
of responses, 1,200 pages of oral hearings, participants' rebuttal testimony,
concluding statements, the 137-page report of the hearing board, further
written statements from participants, and oral argument before the Com-
mission The Commission staff has prepared three studies of the environ-
mental effects of the fuel cycle Environmental Survey of the Uranium
Fuel Cycle, WASH-1248 (Apr 1974), Environmental Survey of the Re-
processing and Waste Management Portions of the LWR Fuel Cycle,
NUREG-0116 (Supp 1 to WASH-1248) (Oct 1976) (hereinafter cited
as NUREG-0116), and Public Comments and Task Force Responses
Regarding the Environmental Survey of the Reprocessing and Waste
Management Portions of the LWR Fuel Cycle, NUREGr-0216 (Supp 2 to
WASH-1248) (Mar 1977)
12 We are reviewing here only the Table S-3 rulemaking proceedings, and
do not have before us an individual EIS that incorporates Table S-3 It is
clear that the Statement of Consideration supporting the Table S-3 rule
adequately discloses the environmental uncertainties considered by the
Commission However, Table S-3 itself refers to other documents but
gives only brief descriptions of the environmental effects it encapsulates
There is some concern with an EIS that relies too heavily on separate docu-
ments rather than addressing the concerns directly Although we do not
decide whether they have binding effect on an independent agency such as
the Commission, it is worth noting that the guidelines from the Council on
Environmental Quality in effect during these proceedings required that
"care should be taken to ensure that the statement remains an essentially
self-contained instrument, capable of being understood by the reader with-
out the need for undue cross reference " 38 Fed Reg 20564 (1973), 40
100 OCTOBER TERM, 1982
Opinion of the Court 462 U S
and the Commission's statement, it simply cannot be said
that the Commission ignored or failed to disclose the uncer-
tainties surrounding its zero-release assumption
Congress did not enact NEPA, of course, so that an agency
would contemplate the environmental impact of an action as
an abstract exercise Rather, Congress intended that the
"hard look" be incorporated as part of the agency's process of
deciding whether to pursue a particular federal action It
was on this ground that the Court of Appeals faulted the
Commission's action, for failing to allow the uncertainties po-
tentially to "tip the balance" in a particular licensing decision
As a general proposition, we can agree with the Court of Ap-
peals' determination that an agency must allow all significant
environmental risks to be factored into the decision whether
to undertake a proposed action We think, however, that
the Court of Appeals erred in concluding that the Commis-
sion had not complied with this standard
As Vermont Yankee made clear, NEPA does not require
agencies to adopt any particular internal decisionmakmg
structure Here, the agency has chosen to evaluate generi-
CFR § 1500 8(b) (1974) The present regulations state that incorporation
by reference is permissible if it will not "imped[e] agency and public review
of the action The incorporated material shall be cited in the statement
and its content briefly described " 40 CFR § 1502 21 (1982) The Court
of Appeals noted that NEPA "requires an agency to do more than to scat-
ter its evaluation of environmental damage among various public docu-
ments," 222 U S App D C , at 34, 685 F 2d, at 484, but declined to find
that the incorporation of other documents by reference would invalidate an
EIS that used Table S-3 to describe the environmental impact of the fuel
cycle The parties here do not treat this insufficient disclosure argument
as a separate argument and, like the Court of Appeals, we decline to strike
down the rule on this ground We do not deny the value of an EIS that
can be understood without extensive cross reference The staff docu-
ments referred to in Table S-3 are public documents, however, and we
note that the Commission has proposed an explanatory narrative to accom-
pany Table S-3, which would be included in an individual EIS, that may
alleviate some of the concerns of incorporation See n 13, infra
BALTIMORE GAS & ELECTRIC CO v NRDC 101
87 Opinion of the Court
cally the environmental impact of the fuel cycle and inform
individual licensing boards, through the Table S-3 rule, of its
evaluation The generic method chosen by the agency is
clearly an appropriate method of conducting the "hard look"
required by NEPA See Vermont Yankee, 435 U S , at
535, n 13 The environmental effects of much of the fuel
cycle are not plant specific, for any plant, regardless of its
particular attributes, will create additional wastes that must
be stored in a common long-term repository Administrative
efficiency and consistency of decision are both furthered by
a generic determination of these effects without needless
repetition of the litigation in individual proceedings, which
are subject to review by the Commission m any event See
generally Ecology Action v AEC, 492 F 2d 998, 1002, n 5
(CA2 1974) (Friendly, J ) (quoting Administrative Confer-
ence Proposed Recommendation 73-6)
The Court of Appeals recognized that the Commission has
discretion to evaluate generically the environmental effects
of the fuel cycle and require that these values be "plugged
into" individual licensing decisions The court concluded
that the Commission nevertheless violated NEPA by failing
to factor the uncertainty surrounding long-term storage into
Table S-3 and precluding individual licensing decisionmakers
from considering it
The Commission's decision to affix a zero value to the envi-
ronmental impact of long-term storage would violate NEPA,
however, only if the Commission acted arbitrarily and
capriciously in deciding generically that the uncertainty was
insufficient to affect any individual licensing decision In as-
sessing whether the Commission's decision is arbitrary and
capricious, it is crucial to place the zero-release assumption in
context Three factors are particularly important First is
the Commission's repeated emphasis that the zero-release as-
sumption— and, indeed, all of the Table S-3 rule — was made
for a limited purpose The Commission expressly noted its
intention to supplement the rule with an explanatory narra-
102 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tive 13 It also emphasized that the purpose of the rule was
not to evaluate or select the most effective long-term waste
disposal technology or develop site selection criteria A sep-
arate and comprehensive series of programs has been under-
taken to serve these broader purposes 14 In the proceedings
before us, the Commission's staff did not attempt to evaluate
the environmental effects of all possible methods of dispos-
ing of waste Rather, it chose to analyze intensively the
most probable long-term waste disposal method — burial in
a bedded-salt repository several hundred meters below
ground — and then "estimate its impacts conservatively,
based on the best available information and analysis " 44
Fed Reg 45363 (1979) 15 The zero-release assumption can-
not be evaluated in isolation Rather, it must be assessed in
relation to the limited purpose for which the Commission
made the assumption
Second, the Commission emphasized that the zero-release
assumption is but a single figure m an entire Table, which the
18 In March 1981, the Commission submitted a version of the explanatory
narrative for public comment as a proposed amendment to the final fuel
cycle rule 46 Fed Reg 15154 (1981) The Commission has not yet
adopted a final narrative
14 In response to Minnesota v NRC, 195 U S App D C 234, 602 F 2d
412 (1979), the Commission has initiated a "waste confidence" proceeding
to consider the most recent evidence regarding the likelihood that nuclear
waste can be safely disposed of and when that, or some other offsite stor-
age solution, can be accomplished 44 Fed Reg 61372 et seq (1979) See
id , at 45363 The recently enacted Nuclear Waste Policy Act of 1982,
Pub L 97-425, 96 Stat 2201, 42 U S C § 10101 et seq (1982 ed ),
has set up a schedule for identifying site locations and a funding mechanism
for development of permanent waste repositories The Environmental
Protection Agency has also proposed standards for future waste reposi-
tories, 47 Fed Reg 58196 et seq (1982)
w For example, Table S-3 assumes that plutomum will not be recycled
The Commission noted that, in response to a Presidential directive, it had
terminated separate proceedings concerning the possibility of recylmg
piutomion HI mixed oxide fuel 44 Fed Reg 45369, n 28 (1979) See In
re Jtoed Oxide Fuel, 6 N R C 861 (1977), In re Mixed Oxide Fuel, 7
N R C 711 (1978)
BALTIMORE GAS & ELECTRIC CO v NRDC 103
87 Opinion of the Court
Commission expressly designed as a risk-averse estimate of
the environmental impact of the fuel cycle It noted that
Table S-3 assumed that the fuel storage canisters and the
fuel rod cladding would be corroded before a repository is
closed and that all volatile materials in the fuel would escape
to the environment 16 Given that assumption, and the im-
probability that materials would escape after sealing, the
Commission determined that the overall Table represented
a conservative (i e , inflated) statement of environmental
impacts It is not unreasonable for the Commission to coun-
teract the uncertainties in postsealing releases by balancing
them with an overestimate of presealmg releases 17 A
reviewing court should not magnify a single line item beyond
its significance as only part of a larger Table
Third, a reviewing court must remember that the Commis-
sion is making predictions, within its area of special exper-
tise, at the frontiers of science When examining this kind of
scientific determination, as opposed to simple findings of fact,
a reviewing court must generally be at its most deferential
See, e g , Industrial Union Dept v American Petroleum
Institute, 448 U S 607, 656 (1980) (plurality opinion), id , at
705-706 (MARSHALL, J , dissenting)
16 The Commission also increased the overall conservatism of the Table
by overestimating the amount of fuel consumed by a reactor, underesti
mating the amount of electricity produced, and then underestimating the
efficiency of filters and other protective devices See Conclusions and
Recommendations of the Hearing Board Regarding the Environmental
Effects of the Uranium Fuel Cycle, Docket No Rm 50-3, App to Pet
for Cert in No 82-524, pp 282a-293a Additionally, Table S-3, which
analyzes both a uranium-recycle and no-recycle system, conservatively
lists, for each effluent, the highest of the two releases that would be
expected under each cycle 41 Fed Reg 45849, 45850 (1976)
17 The Court of Appeals recognized that the Commission could weigh cer-
tain generic costs and benefits of reactors against each other to produce a
generic "net value" to be used in individual licensing proceedings 222
U S App D C , at 32, 685 F 2d, at 482 We see no reason why the
Commission does not have equal discretion to evaluate certain environmen-
tal costs together to produce a generic net cost
104 OCTOBER TERM, 1982
Opinion of the Court 462 U S
With these three guides in mind, we find the Commission's
zero-release assumption to be within the bounds of reasoned
decisionmaking required by the APA We have already
noted that the Commission's Statement of Consideration
detailed several areas of uncertainty and discussed why they
were insubstantial for purposes of an individual licensing
decision The Table S-3 rule also refers to the staff reports,
public documents that contain a more expanded discussion of
the uncertainties involved in concluding that long-term stor-
age will have no environmental effects These staff reports
recognize that rigorous verification of long-term risks for
waste repositories is not possible, but suggest that data and
extrapolation of past experience allow the Commission to
identify events that could produce repository failure, estimate
the probability of those events, and calculate the resulting
consequences NUREG-0116, at 4-86 18 The Commission
staff also modeled the consequences of repository failure by
tracing the flow of contaminated water, and found them to
be insignificant Id , at 4-89 through 4-94 Ultimately, the
staff concluded that
"[t]he radiotoxic hazard index analyses and the modeling
studies that have been done indicate that consequences
of all but the most improbable events will be small
18 For example, using this approach the staff estimated that a meteor the
size necessary to damage a repository would hit a given square kilometer of
the earth's surface only once every 50 trillion years, and that geologic fault-
ing through the Delaware Basin in southeast New Mexico (assuming that
were the site of the repository) would occur once in 25 billion years
NUREG-0116, at 4-87 The staff determined that a surface burst of a 50
megaton nuclear weapon, far larger than any currently deployed, would
not breach the repository Ibid The staff also recognized the possibility
that heat generated by the waste would damage the repository, but sug-
gested this problem could be alleviated by decreasing the density of the
stored waste In recognition that this suggestion would increase the size
of the repository, the Commission amended Table S-3 to reflect the
greater acreage required under these assumptions See 44 Fed Reg
453G9 (1979)
BALTIMORE GAS & ELECTRIC CO v NRDC 105
87 Opinion of the Court
Risks (probabilities times consequences) inherent in the
long term for geological disposal will therefore also be
small " Id , at 2-11
We also find significant the separate views of Commission-
ers Bradford and Gilmsky These Commissioners expressed
dissatisfaction with the zero-release assumption and yet
emphasized the limited purpose of the assumption and the
overall conservatism of Table S-3 Commissioner Bradford
characterized the bedded-salt repository as a responsible
working assumption for NEPA purposes and concurred in
the zero-release figure because it does not appear to affect
Table S-3's overall conservatism 44 Fed Reg 45372(1979)
Commissioner Gilmsky was more critical of the entire Table,
stating that the Commission should confront directly whether
it should license any nuclear reactors in light of the problems
of waste disposal, rather than hide an affirmative conclusion
to this issue behind a table of numbers He emphasized
that the "waste confidence proceeding/' see n 14, supra,
should provide the Commission an appropriate vehicle for a
thorough evaluation of the problems involved in the Govern-
ment's commitment to a waste disposal solution For the
limited purpose of individual licensing proceedings, however,
Commissioner Gilmsky found it "virtually inconceivable" that
the Table should affect the decision whether to license, and
characterized as "naive" the notion that the fuel cycle efflu-
ents could tip the balance in some cases and not in others
44 Fed Reg 45374(1979)
In sum, we think that the zero-release assumption — a pol-
icy judgment concerning one line in a conservative Table
designed for the limited purpose of individual licensing deci-
sions— is within the bounds of reasoned decisionmaking It
is not our task to determine what decision we, as Commis-
sioners, would have reached Our only task is to determine
whether the Commission has considered the relevant fac-
tors and articulated a rational connection between the facts
found and the choice made Bowman Transportation, Inc v
106 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Arkansas-Best Freight System, Inc , 419 U S 281, 285-
286 (1974), Citizens to Preserve Overton Park, Inc v Volpe,
401 U S 402 (1971) Under this standard, we think the
Commission's zero-release assumption, within the context of
Table S-3 as a whole, was not arbitrary and capricious
III
As we have noted, n 5, supra, Table S-3 describes ef-
fluents and other impacts in technical terms The Table
does not convert that description into tangible effects on
human health or other environmental variables The origi-
nal and interim rules declared that "the contribution of the
environmental effects of fuel cycle activities shall be
as set forth in the following Table S-3 [and] [n]o farther dis-
cussion of such environmental effects shall be required " 39
Fed Reg 14191 (1974), 42 Fed Reg 13806 (1977) Since
the Table does not specifically mention health effects, socio-
economic impacts, or cumulative impacts, this declaration
does not clearly require or preclude their discussion The
Commission later amended the interim rule to clarify that
health effects were not covered by Table S-3 and could be
litigated m individual licensing proceedings In the final
rule, the Commission expressly required licensing boards to
consider the socioeconomic and cumulative effects in addition
to the health effects of the releases projected in the Table
44 Fed Reg 45371 (1979) 19
The Court of Appeals held that the original and interim
rules violated NEPA by precluding licensing boards from
considering the health, socioeconomic, and cumulative effects
of the environmental impacts stated in technical terms As
does the Commission, we agree with the Court of Appeals
that NEPA requires an EIS to disclose the significant health,
soaoeconoimc, and cumulative consequences of the environ-
w Of course, just as the Commission has discretion to evaluate genencally
aspects of the environmental impact of the fiiel cycle, it has discretion to
have other aspects of the issue decided in individual licensing decisions
BALTIMORE GAS & ELECTRIC CO v NRDC 107
87 Opinion of the Court
mental impact of a proposed action See Metropolitan Edi-
son Co v People Against Nuclear Energy, 460 U S 766
(1983), Kleppe v Sierra Club, 427 U S , at 410, 40 CPR
§§ 1508 7, 1508 8 (1982) We find no basis, however, for the
Court of Appeals' conclusion that the Commission ever pre-
cluded a licensing board from considering these effects
It is true, as the Commission pointed out in explaining why
it modified the language in the earlier rules, that the original
Table S-3 rule "at least initially was apparently interpreted
as cutting off" discussion of the effects of effluent releases
44 Fed Reg 45364 (1979) But even the notice accompany-
ing the earlier versions stated that the Table was "to be used
as a basis for evaluating the environmental effects in a cost-
benefit analysis for a reactor," 39 Fed Reg 14190 (1974)
(emphasis added), suggesting that individual licensing boards
were to assess the consequences of effluent releases And
when, operating under the initial rule, the Atomic Safety and
Licensing Appeal Board suggested the desirability of discuss-
ing health effects for comparing nuclear with coal plants, In
re Tennessee Valley Authority (Hartsville Nuclear Plant
Units), 5 N R C 92, 103, n 52 (1977), the Commission staff
was allowed to introduce evidence of public health conse-
quences Cf In re Public Service Company of Indiana
(Marble Hill Nuclear Generating Station), 7 N R C 179,
187 (1978)
Respondents have pointed to no case where evidence con-
cerning health or other consequences of the data in Table S— 3
was excluded from licensing proceedings We think our
admonition in Vermont Yankee applies with equal force here
"[W]hile 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 in-
cumbent upon mtervenors who wish to participate to
structure their participation so that it is meaningful, so
that it alerts the agency to the mtervenors' position and
contentions " 435 U S , at 553
108 OCTOBER TERM, 1982
Opinion of the Court 462 U. S.
In short, we find it totally inappropriate to cast doubt on
licensing proceedings simply because of a minor ambiguity in
the language of the earlier rule under which the environmen-
tal impact statement was made, when there is no evidence
that this ambiguity prevented any party from making as full
a presentation as desired, or ever affected the decision to
license the plant.
IV
For the foregoing reasons, the judgment of the Court of
Appeals for the District of Columbia Circuit is
Reversed.
JUSTICE POWELL took no part in the consideration or deci-
sion of these cases.
BALTIMORE GAS & ELECTRIC CO v NRDC
109
87 Appendix to opinion of the Court
APPENDIX TO THE OPINION OF THE COURT
Table S-3 — Table of Uramum Fu#l Cycle Environmental Data1
[Normalized to model LWR annual fuel requirement [WASH-1248]
or reference reactor year [NUREG-0116]]
Environmental considerations
Maximum effect per annual fuel
Total requirement or reference reactor
year of model 1 000 MWe LWR
NATURAL RESOURCES USE
Land (acres)
Temporarily committed 2
Undisturbed area
Disturbed area
Permanently committed
Overburden moved
(millions of MT)
Water (millions of gallons)
Discharged to air
Discharged to water bodies
Discharged to ground
Total
Fossil fuel
Electrical energy
(thousands of MW hour)
Equivalent coal
(thousands of MT)
Natural gas
(millions of scf )
EFFLUENTS — CHEMICAL (MT)
Gases (including entrapment) 8
x
NOX4
Hydrocarbons
CO
Particulates
Other gases
F
HC1
Liquids
SO 4
N048
Fluoride
Ca+ -f
Cl
Na +
NH8
Fe
100
79
22
13
28
160
11090
127
11,377
823
118
136
4400
1 190
14
296
1 154
67
014
99
258
129
54
85
121
100
4
Equivalent to a 110 MWe coal fired power
plant
Equivalent to 95 MWe coal fired power plant
= 2 percent of model 1 000 MWe LWR with
cooling tower
<4 percent of model 1 000 MWe LWR with
once through cooling
<5 percent of model 1 000 MWe LWR output
Equivalent to the consumption of a 45 MWe
coal fired power plant
<!0 4 percent of model 1 000 MWe energy
output
Equivalent to emissions from 45 MWe coal fired
plant for a year
Principally from UFg production enrichment
and reprocessing Concentration within
range of state standards — below level that
has effects on human health
From enrichment fuel fabrication and re
processing steps Components that const!
tute a potential for adverse environmental ef
feet are present in dilute concentrations and
receive additional dilution by receiving bodies
of water to levels below permissible stand
ardo The constituents that require dilution
and the flow of dilution water are
NH<r- 600 cfs
NOg— 20 cfs
Fluoride — 70 eft
Tailings solutions
(thousands of MT)
Solids
EFFLUENTS — RADIOLOGICAL
(CURIES)
Gases (including entrapment)
Rn222
240 From mills only— no significant effluents to
environments
91 000 Principally from mills — no significant effluents
to environment
Presently under reconsideration by the Com
mission
110
OCTOBER TERM, 1982
Appendix to opinion of the Court
462 U S
Environmental considerations
Maximum effect per annual fuel
Total requirement or reference reactor
year of model 1 OOP MWe LWR
EFFLUENTS— RADioLOGiCAir-~(Continued)
(CURIES)
Gases (including entrainment)
Ra226
02
Th230
02
Uranium
034
Tritium (thousands)
18 1
C 14
24
Kr-85 (thousands)
Ru 106
400
14
Principally from fuel reprocessing plants
I 129
1 3
1131
Tc99
83
Presently under consideration by the Com
mission
Fission products
and transuramcs
203
Liquids
Uranium and daughters
Ra226
Th230
Th234
Fission and
activation products
Solids (burned on site)
Other than high level
(shallow)
TRU and HLW (deep)
Effluents — Thermal (billions of
British thermal units)
Transportation (person rem)
Exposure of workers and
general pubhc
Occupational exposure
(person rem)
21
0034
0015
01
59 x 10-«
11300
1 1 x 107
4063
25
226
Principally from milling — included tailings
liquor and returned to ground — no efflu
ents therefore no effect on environ
ment
From UFe production
From fuel fabrication plants — concentration 10
percent of 10 CFR 20 for total processing 26
annual fuel requirements for model LWR
9 110 Ci comes from low level reactor wastes
and 1 500 Ci comes from reactor decon
tammation and decommissioning— buried at
land burial facilities 600 Ci comes from
mills — included in tailings returned to
ground Approximately 60 Ci comes from
conversion and spent fuel storage No sig
luftcant effluent to the environment
Buried at Federal Repository
<5 percent of model 1 000 MWe LWR
From reprocessing and waste management
1 In some cases where no entry appears it is clear from the background documents that the matter was ad
dressed and that, m effect the Table should be read as if a specific zero entry had been made However
there are other areas that are not addressed at all in the Table Table S-3 does not include health effects from
the effluents described m the Table or estimates of releases of Radon 222 from the uranium fuel cycle or esti
mates of Technetium 99 released from waste management or reprocessing activities These issues may be the
subject of btagfttion in the individual licensing proceedings
Data supporting this table are given m the Environmental Survey of the Uranium Fuel Cycle
WASH-1248, April 1974 the Environmental Survey of the Reprocessing and Waste Management Portion of
the LWR Fuel Cycle NUREG-0116 (Supp 1 to WASH-1248) the Tubuc Comments and Task Force Re-
sponses Regarding the Environmental Survey of the Reprocessing and Waste Management Portions of the
LWR Fuel Cycle NUREG-0216 (Supp 2 to WASH-1248) and in the record of the final rulemaking pertain
mg to Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste Management
Docket RM-50-3. The contributions from reprocessing waste management and transportation of wastes are
TMTrnnfaed for erther of the two fuel cycles (uranium only and no recycle) The contribution from transporta
twrn«ctod^ transportation of cotofuel to a reactor and of irradiated fuel and radioactive wastes from a reac
tor which are considered in Table S-4 of 5 51^0(g) The contributions from the other steps of the fuel cycle
are given in cotans A-E of Table S-3A of W ASH-1248
*The contributions to temporarily committed land from reprocessing are not prorated over 30 years the
complete temporary impact accrues regardless of whether the plant services one reactor for one year or 57
reactors for 30 years.
8 Estimated effluents based upon combustion of equivalent coal for power generation
* U percent from natural gas use and process.
10 CFK § 51 2<Xe) (1982)
MAGGIO v FULFORD 111
Per Curiam
MAGGIO, WARDEN v FULFORD
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No 82-1408 Decided June 6, 1983
After respondent's murder conviction was affirmed by the Louisiana Su-
preme Court, and after he had exhausted state postconviction remedies,
he was denied habeas corpus rehef in Federal District Court The
Court of Appeals reversed, apparently holding that, under 28 U S C
§2254(d)(8), the state trial court's determination that respondent was
competent to stand trial was not "fairly supported by the record " The
state court had denied respondent's motion for appointment of a compe-
tency commission, which motion was filed on the morning of trial and
was supported solely by a psychiatrist's testimony — based upon a brief
prison cell interview on the preceding day — that respondent had para-
noid delusions that rendered him incompetent to stand trial, respondent
having said that he was withholding from his counsel the names of alibi
witnesses for fear that they would be arrested and prevented from
testifying
Held The Court of Appeals erroneously substituted its own judgment as
to the credibility of witnesses for that of the Louisiana courts — a prerog-
ative which 28 U S C § 2254 does not allow it The trial judge's con-
clusion as to respondent's competency was "fairly supported by the
record," which showed that the judge based his conclusion on, inter alia,
his observation of respondent's conduct both before and during trial, his
inferences regarding the fact that respondent's alleged refusal to disclose
his alibi witnesses either never occurred or was remedied, and his con-
clusion that respondent's surprise, llth-hour motion for appointment of a
competency commission was merely a subterfuge to attempt to obtain a
severance to avoid being tried with codefendants
Certiorari granted, 692 F 2d 354, reversed
PER CURIAM
Respondent John Fulford was found guilty of murder by
a Louisiana jury in 1972 His conviction was affirmed on
appeal to the Louisiana Supreme Court, State v MX, 327
So 2d 301 (1975), and, after exhausting state postconviction
remedies, he sought federal habeas corpus rehef The
U2 OCTOBER TERM, 1982
PerCuriam 462 U S
United States District Court for the Western District of
Louisiana denied rehef, App to Pet for Cert A-21, but the
Court of Appeals for the Fifth Circuit reversed, holding that
"we cannot, with the certitude befitting a federal court,
affirm that Fulford possessed the mental competency to par-
ticipate meaningfully in his trial " 692 F 2d 354, 361 (1982)
(footnote omitted) We grant the motion of respondent for
leave to proceed in forma paupens and the petition for cer-
tiorari, and reverse the judgment of the Court of Appeals
The bone of contention in this case was respondent's com-
petency to stand trial more than 11 years ago On the morn-
ing of trial respondent's counsel moved to appoint a commis-
sion to inquire into respondent's competency to stand trial 1
At the same time counsel moved for a severance Neither
counsel nor respondent had previously broached the question
of competency, and nothing appears in the record which sug-
gests that respondent had a history of mental or emotional
difficulties 2 The sole evidence submitted in support of
respondent's motion for appointment of a competency com-
mission was the testimony of one Dr McCray, a local psy-
chiatrist Until the morning immediately preceding trial,
McCray had never seen, nor, so far as the record reveals,
1 Respondent's request was apparently submitted pursuant to La Code
Grim Proc Ann , Art 644 (West 1981), which empowers the trial court to
appoint a commission of at least two qualified physicians to "examine and
report upon the mental condition of a defendant "
Likewise, Art 643 provides that the "trial court may, in the exer-
cise of its sound discretion, order a mental examination of the defendant
when it has reasonable ground to doubt the defendant's mental capacity to
proceed "
2 In his motion for appointment of a competency commission, respond-
ent's counsel alleged "It has further been reported to counsel that the de-
fendant has been placed before a lunacy commission in the State of Florida
in 1953, and was declared a borderline case [T]he aforesaid report is of
this date unconfirmed and counsel had requested a record check in the
State of Florida to determine if such a hearing had been convened and the
result thereof " 4 Record 933 The record contains no other mention of
this incident, much less confirmation of the allegation
MAGGIOi; FULFORD 113
111 Per Curiam
heard of, respondent Based upon a prison cell interview of
approximately one hour the day before trial, McCray testi-
fied in the following fashion, as summarized by the Court of
Appeals
"Dr McCray noted that an evaluation usually requires
several sessions as well as a supporting evaluation from
a clinical psychologist Finding Fulford to be well ori-
ented to time, place and person, Dr McCray neverthe-
less testified that Fulford had paranoid delusions which
rendered him incompetent to stand trial Specifically,
Fulford had told Dr McCray that he was withholding
the names of alibi witnesses who could prove his inno-
cence for fear that they would be arrested and prevented
from testifying in his behalf " Id , at 360
While the Court of Appeals was less explicit than it might
have been on the issue, we think a fair reading of its opinion
indicates that it concluded under 28 U S C § 2254(d)(8) that
the state court's determination that respondent was compe-
tent to stand trial was not "fairly supported by the record "
See 692 F 2d, at 360-361, Sumner v Mata, 449 U S 539
(1981) We believe that, in reaching this conclusion, the
Court of Appeals erroneously substituted its own judgment
as to the credibility of witnesses for that of the Louisiana
courts — a prerogative which 28 U S C §2254 does not
allow it Marshall v Lonberger, 459 U S 422 (1983)
The Louisiana trial judge explained his refusal to order a
competency hearing in two per curiam opinions, which con-
tained the following factual findings relevant to his decision
First, the trial judge was convinced that respondent was "ori-
ented as to time, date and place and was cognizant of every-
thing around him " 692 F 2d, at 360 The judge further
noted that Fulford's conduct during and after the trial "thor-
oughly convinced" him that respondent was competent and
able to assist in his defense The trial judge did not "deem it
necessary to fill in all the other matters that appeared
throughout the trial and all of the post-trial motions that have
114 OCTOBER TERM, 1982
Per Curiam 462 U S
been filed because the record will adequately represent this
fact " 4 Record 953 As set out in the margin, there is sub-
stantial support for the trial judge's statement 3 Third, the
trial judge concluded that the only basis advanced by McCray
for his tentative conclusion that respondent suffered from
8 For example, two days after he moved for appointment of a competency
commission, respondent informed the trial judge that "I can defend myself,
and that is the point I'd like to get across " Likewise, at a sentencing
hearing in January 1974 Fulford sought permission to pursue appeal of his
conviction pro se After the presiding judge expressed reluctance at
permitting this, because of Fulford's earlier assertion of incompetence,
Fulford stated
"I gave this a great deal of thought prior to coming here I may talk
funny, think I'm from the cotton patch and perhaps I am, but as far as pro-
tecting my own appeal that is my election and I believe I can do it artfully
and I believe I will have a reversal in the Supreme Court and be awarded a
new trial And I have given this a great deal of thought and I have made
the election, it is my right, it is my future, and if I blow it [no one] has
blowed it but me, I fully understand my rights, I fully understand what I
am doing, what I am facing and the consequences of it and with that in
mind I still elect to defend my own self on appeal and I ask you to grant
that motion and grant me a constitutional right to do this " 24 Record
2793-2794
The irony of respondent's change of heart regarding his state of mind
was not lost on him In his habeas petition m District Court respondent
noted "It is awk[w]ard for petitioner to argue in this petition that he was
unable to assist in his defense during trial, as attested by Dr McCray,"
and 'then seek the right to defend pro se during the course of trial " Pet
for Habeas Corpus in No 76-748 (WD La ), p 15 The "awkwardness" of
respondent's position becomes even more apparent in light of the argu-
ments advanced in support of his claim to a right to have proceeded pro se
in trial court Respondent argued that he "was denied the right to defend
pro se with-out [sic] counsel by Judge Veron after petitioner voluntarily
and intelligently elected to do so " Id , at 16
As the pleadings and briefs filed by respondent in state and federal
courts indicate, his legal abilities are scarcely those of a mental incompe-
tent As one member of the Louisiana Supreme Court has observed, re-
spondent "has demonstrated skill and experience in criminal law in writ
applications filed in this Court " State v Fulford, 299 So 2d 789 (1974)
(Nixon, J , dissenting)
MAGGIO^ FULFORD 115
111 Per Curiam
paranoid delusions — respondent's failure to inform his law-
yers of the identities of two alibi witnesses — was unfounded
These two witnesses testified in respondent's behalf less than
a week after Fulford convinced McCray that he was with-
holding the identities of his alibi witnesses As the Louisi-
ana Supreme Court observed, "it is clear that Mr Fulford
did not withhold the names of his witnesses, and was able
to assist his counsel in the preparation and conduct of his
defense " 327 So 2d, at 324
Most importantly for our purposes, the trial judge concluded
that respondent's surprise, llth-hour motion for appointment
of a competency commission "was just a subterfuge on the part
of this defendant to attempt to keep from going to trial so that
he would be tried at a different time from the other defend-
ants " Ibid The trial judge explained
"During the course of the jury selection in this matter,
for the two days that it took to select this jury, this
Court noted that every time either counsel for defend-
ants would approach defendant Fulford to converse with
him concerning the jury selection, defendant Fulford
would turn his head in the other direction I got the
distinct impression from what was going on that Mr
Fulford was attempting to play a game with the Court
in order to try to get his case severed from the other
defendants I further gathered from the legal maneu-
verings that there was an attempt to sever Fulford from
the other two defendants so that some additional legal
maneuvering might be made at some later time I
might further add, that contrary to what the doctor tes-
tified at the hearing to determine whether Mr Fulford
was unable to assist counsel in his defense, that the
alleged eye witnesses, which Mr Fulford stated would
prove his innocence, were called and did testify as to his
alleged alibi Throughout the entire trial Mr Fulford
was accorded a complete and full defense and I saw noth-
ing from the beginning of the trial to the end that in any
116 OCTOBER TERM, 1982
Per Curiam 462 U S
way detracted from any of Mr Fulford's rights I hesi-
tate to state but I do feel that this was a plan designed
by Mr Fulford to try to disrupt his trial and to prevent
him from being tried with his co-defendants " 5 Record
1024-1025
Based upon these observations, the trial judge concluded that
there was insufficient likelihood that respondent was incom-
petent to warrant appointment of a commission
The Louisiana Supreme Court affirmed, relying on the
arguments advanced by the trial judge, and noting that his
"findings are amply supported by the record " 327 So 2d, at
324 The Supreme Court of Louisiana also observed that the
trial judge had the "ability to observe Mr Fulford at
length during the preliminary hearings and the trial of this
case " Ibid It also took note of the "limited time" that
Dr McCray spent with respondent
The Court of Appeals apparently found all of this unper-
suasive There is no dispute as to the proper legal standard
to be applied for determining the correctness of the trial
court's actions, see Pate v Robinson, 383 U S 375, 386
(1966), Drope v Missouri, 420 U S 162 (1975) Thus, the
three judges of the Court of Appeals appear to have differed
from the Louisiana trial judge, the seven Justices of the
Supreme Court of Louisiana, and the Federal District Judge,
only with respect to evaluation of the evidence before the
trial court The principal explanation offered by the Court
of Appeals for its refusal to accept the previous judicial
assessments of this testimony are contained in the following
excerpt from its opinion
"The State urges that Fulford had the capability to assist
his attorney but simply refused to do so But if this
refusal was based on his paranoid delusions, it cannot be
successfully urged that Fulford was actually capable of
assisting counsel
"A more troubling aspect of the present issue is the
trial court's finding that Fulford was trying to delay the
MAGGIOv FULFORD 117
111 Per Curiam
trial, and possibly obtain a severance Given the timing
of the motion, and a subsequent request by Fulford for
a severance, we would uphold the trial court if it had
been confronted by a barebones motion, with only the
statement of Fulford's attorney as support That is
not the present case Dr McCray's testimony was unim-
peached His qualifications as a psychiatrist were un-
challenged by the prosecution Although his examina-
tion was brief, it was precisely because of this brevity
that he suggested further evaluation was needed On
these facts, we believe that the state court committed
constitutional error in not conducting further compe-
tency proceedings " 692 F 2d, at 361
Before a federal habeas court undertakes to overturn fac-
tual conclusions made by a state court, it must determine
that these conclusions are not "fairly supported by the
record" 28 U S C §2254(d)(8) Under this standard we
have not the slightest hesitation in saying that the trial
court's conclusion as to Fulford's competency was "fairly
supported by the record " The trial judge's observation of
Fulford's conduct, both prior to and during trial, his observa-
tion of the testimony of Dr McCray and the statements of
respondent's counsel regarding his refusal to cooperate with
them, his inferences regarding the fact that Fulford's alleged
refusal to disclose his alibi witnesses either never occurred,
or was remedied, the weight he attributed to the unan-
nounced, last-minute timing of the motion for appointment of
a competency commission, and the inferences to be drawn
from the failure of the defense to pursue psychiatric examina-
tion beyond the "tentative" stage, despite ample time and
opportunity to do so, all provide ample record support for the
trial judge's conclusion that there was insufficient question
as to Fulford's competence to warrant appointment of a
commission
The Court of Appeals apparently concluded that the trial
judge was obligated to credit both the factual statements and
118 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
the ultimate conclusions of Dr McCray solely because he was
"ummpeached " 692 F 2d, at 361 This is simply not the
law
" Tace to face with living witnesses the original trier of
the facts holds a position of advantage from which appel-
late judges are excluded In doubtful cases the exercise
of his power of observation often proves the most ac-
curate method of ascertaining the truth How can
we say the judge is wrong? We never saw the wit-
nesses '" United States v Oregon Medical Society,
343 U S 326, 339 (1952), quoted in Marshall v Lon-
berger, 459 U S , at 434
We are convinced for the reasons stated above that the ques-
tion whether the trial court's conclusions as to respondent's
competency were "fairly supported by the record" must be
answered in the affirmative
The judgment of the Court of Appeals is accordingly
Reversed
JUSTICE WHITE, concurring in the judgment
The "fairly supported by the record" standard of 28
U S C § 2254(d)(8) applies only to underlying questions of
background fact Questions of law, and mixed questions
of law and fact, such as the "ultimate question as to the
constitutionality of pretnal identification procedures,"
Sumner v Mata, 455 U S 591, 597 (1982), or the question
whether a guilty plea is voluntary for purposes of the Con-
stitution, Marshall v Lonberger, 459 U S 422, 431-432
(1983), may be reviewed more independently In deciding
such questions, "the federal court may give different weight
to the facts as found by the state court and may reach a
different conclusion in light of the legal standard " Mata,
455 U S , at 597 But only the "fact[s] that underlie th[e]
ultimate conclusion" are governed by § 2254(d)(8) Ibid
Our cases have treated the ultimate question whether a
defendant is competent to stand trial as at least a mixed
MAGGIO v FULFORD 119
111 WHITE, J , concurring in judgment
question of law and fact Drope v Missouri, 420 U S 162,
174-175, 175, n 10 (1975), Pate v Robinson, 383 U S 375,
385-386 (1966) See also White v Estelle, 459 U S 1118
(1983) (MARSHALL, J , dissenting from denial of certioran)
Our precedents notwithstanding, the Court today reverses
the Court of Appeals on the strength of the conclusion that
"the trial court's conclusion as to Fulford's competency was
'fairly supported by the record '" Ante, at 117 But since
competency is not a purely factual question, § 2254(d)(8) and
its "fairly supported" standard are inapplicable The Court
offers no explanation whatsoever for the failure to follow
Drope and Pate, and it would certainly not be appropriate to
overrule these cases summarily If there is any doubt as to
the proper classification of the competency question, we
should grant certioran and set this case for oral argument
Since the Court opts in favor of summary action, however,
I cast my vote accordingly Absent plenary reconsideration
of Drope and Pate, I cannot agree with the Court that compe-
tency is a question of historical fact and is to be treated as
such by the courts of appeals in reviewing district court judg-
ments in criminal cases or by the district courts in federal
habeas corpus proceedings involving state-court convictions
However, I agree with the Court's ultimate conclusion that
the judgment of the Court of Appeals must be reversed
The Court details the undisputed background facts that
support the trial judge's conclusion that there was insuffi-
cient question as to Fulford's competence to warrant appoint-
ment of a competency commission "Fulford's conduct, both
prior to and during trial, the fact that Fulford's alleged
refusal to disclose his alibi witnesses either never occurred,
or was remedied, the unannounced, last-minute timing of
the motion for appointment of a competency commission, and
the failure of the defense to pursue psychiatric examina-
tion beyond the 'tentative' stage, despite ample time and
opportunity to do so " Ante, at 117 Dr McCray's testi-
mony, on the other hand, indicated that there was a genuine
120 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
doubt as to Fulford's competency, but, as the Court points
out, ante, at 117-118, the trial court was under no obligation
to credit this testimony, and it did not do so Hence, even
considering the ultimate competency question as a freely
reviewable pure question of law, I conclude that the trial
judge's refusal to appoint a commission did not deprive
Fulford of his federal constitutional rights, and I therefore
concur in the judgment
JUSTICE BRENNAN, with whom JUSTICE STEVENS joins,
dissenting
I agree with JUSTICE WHITE and JUSTICE MARSHALL that
§2254(d) does not apply to questions of competency I also
agree with JUSTICE MARSHALL that it is entirely inappropri-
ate to dispose of this case on nothing more than the necessar-
ily limited briefing filed by the parties to date I do not
agree, however, with JUSTICE MARSHALL'S suggestion that
we might decide the case with further briefing but not oral
argument Accepting the majority's premise that this case
merits this Court's attention at all, I would grant the petition
for certioran and set the case for argument
JUSTICE MARSHALL, dissenting
I dissent
The Court is simply wrong in assuming that 28 U S C
§ 2254(d) applies to the question whether there is "a sufficient
doubt of [the defendant's] competence to stand trial to re-
quire further inquiry on the question " Drope v Missouri,
420 U S 162, 180 (1975) Our decisions clearly establish
that whether a competence hearing should have been held
is a mixed question of law and fact which is subject to full
federal review Id , at 174-175, 179-181, Pate v Robinson,
383 U S 375, 385-386 (1966)
Even if the Court were correct in assuming that 28 U S C
§2254(d)(8) applies, there would be no justification for the
Court's summary disposition of this case This Court's Rules
MAGGIOv FULFORD 121
HI MARSHALL, J , dissenting
governing petitions for certiorari were designed to help elicit
the information necessary to decide whether review by cer-
tiorari is warranted They were not designed to permit a
decision on the merits on the basis of the certiorari papers
In particular, Rule 22 2 states that "a brief in opposition
shall be as short as possible " In compliance with this Rule
the indigent respondent filed a mimeographed brief in opposi-
tion of seven pages, a substantial portion of which is devoted
to the argument that the petition presents no question wor-
thy of review by this Court — an argument that might well
have been expected to prevail given the traditional learning
that this Court "is not, and never has been, primarily con-
cerned with the correction of errors in lower court deci-
sions " 1 Only a few paragraphs of the brief in opposition
discuss the record 2
If the Court is to decide whether the record supports the
trial court's conclusion that no competence hearing was nec-
essary, it should at least afford the parties a chance to brief
that issue This could be done by merely issuing an order (1)
noting that the case will be disposed of without oral argument
and (2) permitting both sides to file briefs on the merits I
do not think this is asking too much
1 Address by Chief Justice Vinson Before American Bar Association,
Sept 7, 1949, 69 S Ct v, vi (1949)
2 With the full resources of a sovereign State, petitioner filed a printed
petition for certiorari plus a full printed appendix Petitioner's papers
were signed by the State Attorney General, the District Attorney, and two
Assistant District Attorneys
122 OCTOBER TERM, 1982
Syllabus 462 U S
BANKAMERICA CORP ET AL v UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No 81-1487 Argued January 19, 1983— Decided June 8, 1983
The fourth paragraph of § 8 of the Clayton Act provides that "[n]o person
at the same time shall be a director in any two or more corporations, any
one of which has capital, surplus, and undivided profits aggregating
more than $1,000,000, engaged in whole or in part in commerce, other
than banks, banking associations, trust companies, and common cam
ers," if such corporations are competitors The United States brought
test cases, consolidated in Federal District Court, against petitioners,
certain banks, bank holding companies, mutual life insurance companies,
and individuals who each served on the board of directors of one of the
banks or bank holding companies and one of the insurance companies
It was stipulated that the interlocked banks and insurance companies
compete in the interstate market for mortgage and real estate loans
The Government asserted that the interlocking directorates violated
the fourth paragraph of § 8, arguing that the "other than banks" clause
simply prevented overlapping regulation of interlocks between banks,
which are separately regulated in the first three paragraphs of § 8 The
District Court entered summary judgment for petitioners, holding that
the statutory proscription applies only to two corporations, neither of
which is a bank The Court of Appeals reversed
Held The fourth paragraph of § 8 does not bar interlocking directorates
between a bank and a competing insurance company Pp 126-140
(a) The most natural reading of the language of the statute is that
the interlocked corporations must all be corporations "other than banks"
and that thus the fourth paragraph of § 8 does not by its express terms
prohibit interlocking directorates between a bank and a competing non-
banking corporation This reading of the statute is reinforced both
by the structure of the Clayton Act and by the structure of the fourth
paragraph of § 8 Pp 128-130
(b) Great weight is to be given to the contemporaneous interpretation
of a challenged statute by an agency charged with its enforcement, but
for over 60 years prior to its present interpretation of § 8 the Govern-
ment made no attempt to apply the statute to interlocks between banks
and insurance companies, even though such interlocks were widespread
and a matter of public record throughout the period Mere failure of
administrative agencies to act is in no sense a binding administrative
BANKAMERICA CORP v UNITED STATES 123
122 Opinion of the Court
interpretation that the Government lacks the authority to act, but in the
circumstances of this case, the Government's failure for over 60 years to
exercise the power it now claims strongly suggests that it did not read
§ 8 as granting such power Moreover, the business community directly
affected, the enforcing agencies, and the Congress all have read the
statute the same way for 60 years, thus strongly supporting the conclu-
sion that Congress intended § 8 to be interpreted according to its plain
meaning Pp 130-133
(c) If any doubt remains as to the meaning of the statute, that doubt is
removed by the legislative history The evolution of the bill, along with
the remarks in committee and on the floor, rebuts the Government's
claim that Congress intended to reach bank-nonbank interlocks in the
fourth paragraph of § 8 Pp 133-140
656 F 2d 428, reversed
BURGER, C J , delivered the opinion of the Court, in which BLACKMUN,
REHNQUIST, STEVENS, and O'CONNOR, JJ , joined WHITE, J , filed a
dissenting opinion, in which BRENNAN and MARSHALL, JJ , joined, post,
p 140 POWELL, J , took no part in the decision of the case
William Simon argued the cause for petitioners With
him on the briefs were John S Kingdon, J Randolph Wil-
son, William H Allen, Virginia G Watkm, Edward Wolfe,
H Helmut Lonng, Robert D Raven, William Alsup, Ira
M Millstein, and Richard E Guggenhime, Sr
Edwin S Kneedler argued the cause for the United States
With him on the brief were Solicitor General Lee, Assistant
Attorney General Baxter, Deputy Solicitor General Shapiro,
Barry Grossman, Catherine G O'Sullwan, and Geoffrey S
Stewart *
CHIEF JUSTICE BURGER delivered the opinion of the Court
The question presented is whether § 8 of the Clayton Act
bars interlocking directorates between a bank and a compet-
ing insurance company
*Briefs of amici cunae urging reversal were filed by Erwin N Gns
wold, Jack H Blame, and Allen R Caskie for the American Council of
Life Insurance, and by John L Warden for the New York Clearing House
Association et al
124 OCTOBER TERM, 1982
Opinion of the Court 462 U S
In 1975, the United States brought these companion test
cases (now consolidated) against 10 corporations and 5 indi-
viduals The corporations were three banks and their three
respective holding companies, and four mutual life insurance
companies The five individuals each served on the board of
directors of one of the banks or bank holding companies and
one of the insurance companies It was stipulated that the
interlocked banks and insurance companies compete in the
interstate market for mortgage and real estate loans
The Government asserts that interlocking directorates
between banks and insurance companies violate §8 of the
Clayton Act, 38 Stat 732, as amended, 15 U S C § 19
The fourth paragraph of § 8, on which the Government relies,
provides
"No person at the same time shall be a director in any
two or more corporations, any one of which has capital,
surplus, and undivided profits aggregating more than
$1,000,000, engaged in whole or in part in commerce,
other than banks, banking associations, trust compa-
nies, and common carriers subject to the Act to regulate
commerce, approved February fourth, eighteen hundred
and eighty-seven, if such corporations are or shall have
been theretofore, by virtue of their business and location
of operation, competitors, so that the elimination of com-
petition by agreement between them would constitute a
violation of any of the provisions of any of the antitrust
laws " (Emphasis added )
In short, this statute forbids a person to serve simulta-
neously on the boards of directors of two or more corpora-
tions that meet certain specifications, namely, that the
corporations be engaged in commerce, at least one of them
having capital, surplus, and undivided profits worth more
than $1 million, that they be competitors, and that they be
BANKAMERICA CORP v UNITED STATES 125
122 Opinion of the Court
"other than banks, banking associations, trust companies,
and common carriers "
According to the Government, the language "[n]o person at
the same time shall be a director in any two or more corpora-
tions other than banks" prohibits interlocking director-
ates between any two or more competing corporations, but
excludes from this general prohibition interlocking director-
ates between banks The Government argues that the pur-
pose of the "other than banks" clause was simply to prevent
overlapping regulation of interlocks between banks, which
are separately regulated in the first three paragraphs of § 8
Thus, it interprets the fourth paragraph of §8 to reach in-
terlocks between banks and nonbanks, which interlocks are
otherwise unregulated Petitioners respond that the "other
than banks" clause expressly excludes interlocking director-
ates involving banks from the scope of the fourth paragraph
of §8
On cross-motions for summary judgment, the United States
District Court for the Northern District of California granted
summary judgment for petitioners and dismissed the Govern-
ment's suits United States v Crocker National Corp , 422
F Supp 686 (1976) The District Court held
"[A] normal reading of the statutory language 'two
corporations other than banks' compels the conclu-
sion that the statute applies only to two corporations,
neither of which is a bank
"[A]n ordinary reading of the statutory prohibition
'[n]o person shall [serve as] a director in any two
or more corporations other than banks' means that
banks were not to be subject to this prohibition " Id ,
at 689-690
Although the District Court saw no need for further factual
inquiry in light of the "clear statutory language," id , at 690,
it observed that this interpretation of the statute was "con-
firmed by 60 years of administrative and Congressional inter-
!26 OCTOBER TERM, 1982
Opinion of the Court 462 U S
pretation, as well as by the legislative history underlying
section 8 " Id , at 703
A divided Court of Appeals reversed United States v
Crocker National Corp , 656 F 2d 428 (CA9 1981) Unlike
the District Court, the majority viewed the statutory lan-
guage as ambiguous It stated that the "other than banks"
clause could be interpreted equally plausibly to mean either
"two or more corporations [none of which are] banks," or
"two or more corporations [not all of which are] banks " Id ,
at 434 (emphasis deleted) Relying chiefly on its view of the
underlying policy of the Clayton Act, the Court of Appeals
held that the fourth paragraph of § 8 should be interpreted to
bar all interlocking directorates between banks and compet-
ing nonbanking corporations
In the view of the Court of Appeals, petitioners' position
left a "gap" in the coverage of § 8 Discerning nothing in the
legislative history directly bearing on the applicability of § 8
to interlocking directorates between banks and nonbanking
corporations, the Court of Appeals relied on the broad pur-
pose of Congress to condemn "interlocking directorates be-
tween large competing corporations," id , at 439, as support
for an interpretation of § 8 leaving no "loopholes " It thus
interpreted the "other than banks" language to refer back
to the interlocks between banks regulated in the preceding
paragraphs of § 8, this interpretation left interlocking direc-
torates between banks and nonbanks subject to the general
bar of the fourth paragraph of § 8 1
We granted certiorari, 456 U S 1005 (1982), and we
reverse
II
The Clayton Act of 1914 was passed in a period when
Congress was focusing on the perceived evils of corporate
'The Court of Appeals also rejected petitioners' claim that the inter-
locked insurance companies and bank holding companies were not "compet-
itors" within the meaning of § 8 656 F 2d, at 450-451 In light of our
disposition of the case, we need not reach this issue
BANKAMERICA CORP v UNITED STATES 127
122 Opinion of the Court
bigness and monopoly President Wilson, for example, had
made the "trusts" a core issue of his 1912 campaign, Congress
followed up with the Pujo Committee investigation into the
investment banking trust See generally Travers, Inter-
locks in Corporate Management and the Antitrust Laws, 46
Texas L Rev 819, 824-829 (1968) Interlocks between
large corporations were seen in the public debate as per se
antagonistic to the public interest, many, including President
Wilson, called for legislation that would, among other things,
ban all kinds of interlocks Interlocks were condemned
regardless of whether the relationship between the corpora-
tions was horizontal or vertical, whether it was accomplished
through the sharing of personnel, including directors and offi-
cers, or whether it was achieved through interlocking stock
holdings or other indirect forms of domination See, e g ,
S Rep No 698, 63d Cong , 2d Sess , 15 (1914), Hearings
on Trust Legislation before the House Committee on the
Judiciary, 63d Cong , 2d Sess , 816, 818-820, 823, 925
(1914) (hereafter Trust Hearings) Plainly, these were policy
matters appropriate for Congress to resolve
However, when the Clayton Act was enacted, its scope
was considerably less comprehensive than many of the pro-
posals pressed upon Congress Rather than enacting a broad
scheme to ban all interlocks between potential competitors,
Congress approached the problem of interlocks selectively,
limiting both the classes of corporations and the kinds of
interlocks subject to regulation
Three classes of business organizations are regulated by
the Clayton Act's provisions concerning corporate interlocks
and each class is subject to different restraints Clayton Act
§§8 and 10, 15 U S C §§ 19 and 20 Section 10 regulates,
but does not prohibit, certain types of interlocks between
common carriers and various other corporations with which
the carrier has a supplier or customer relationship, it does not
regulate horizontal interlocks between competing common
carriers The first three paragraphs of §8 regulate inter-
128 OCTOBER TERM, 1982
Opinion of the Court 462 U S
locks between banks and trust companies that meet certain
geographic and other requirements These provisions bar a
wide range of personnel interlocks, including common direc-
tors, officers, and employees The fourth paragraph of § 8
concerns the class of competing corporations "other than
banks, banking associations, trust companies, and common
carriers", it prohibits only shared directors between compet-
ing corporations and does not bar any other kind of personnel
interlock or any kind of vertical interlock It is against
this pattern of specific and limited regulation of corporate
interlocks that we approach the narrow statutory question
presented
The starting point, as always, is the language of the stat-
ute The narrow question here is whether the fourth para-
graph of §8 of the Clayton Act bars interlocking directorates
involving a bank and a nonbanking corporation with which it
competes The language of the statute is unambiguous in
prohibiting interlocking directorates between "two or more
corporations other than banks " The most natural read-
ing of this language is that the interlocked corporations must
all be corporations "other than banks " It is self-evident
that a bank and a nonbanking corporation are not both cor-
porations "other than banks " Thus, the fourth paragraph
of §8 by its express terms does not prohibit interlocking
directorates between a bank and a competing nonbanking
corporation This reading of the statute is reinforced both
by the structure of the Clayton Act and by the structure of
the fourth paragraph of § 8
The Clayton Act selectively regulates interlocks with re-
spect to three different classes of business organizations
those interlocks between banks are covered in the first three
paragraphs of §8 and those interlocks involving common car-
riers are covered by § 10 Viewed m this framework, the
purpose of the "other than" clause in the fourth paragraph of
§ 8 was to exclude altogether interlocking directorates involv-
ing either banks or common carriers Moreover, this inter-
BANKAMERICA CORP v UNITED STATES 129
122 Opinion of the Court
pretation is the only one consistent with the treatment of
"common carriers" in the "other than" clause
The Government does not dispute that the language "two
or more corporations other than banks [or] common car-
riers" completely excludes from the fourth paragraph any
interlocking directorates in which any of the corporations
involved is a common carrier, it should follow, logically, that
it also excludes interlocking directorates involving banks
Put another way, the language "two or more corporations
other than banks [or] common carriers" means "two or more
corporations none of which is a common carrier " To be
consistent, that language must also be interpreted to mean
"two or more corporations none of which is a bank "
In our view, it strains the meaning of ordinary words to
read "two or more corporations other than common carriers"
to mean something completely different from "two or more
corporations other than banks" as the Court of Appeals did
656 F 2d, at 442-443 In Mohasco Corp v Silver, 447
U S 807, 826 (1980), for example, we rejected as unreason-
able the claim that the word "filed" could have two different
meanings in two separate subsections of the same statute
Similarly, we reject as unreasonable the contention that Con-
gress intended the phrase "other than" to mean one thing
when applied to "banks" and another thing as applied to
"common carriers," where the phrase "other than" modifies
both words in the same clause
The language of the fourth paragraph of § 8 supports this
interpretation The fourth paragraph begins with a general
bar against interlocking directorates "No person at the same
time shall be a director in any two or more corporations "
This general bar is limited by four separate clauses, each of
which modifies the phrase "two or more corporations " That
is, the statute applies only to "two or more corporations"
which satisfy these four additional requirements Clearly,
the first clause need be satisfied by only one of the inter-
locked corporations By its own terms, it applies to "any
13o OCTOBER TERM, 1982
Opinion of the Court 462 U S
one" of the "two or more corporations " None of the other
clauses contain similar language Rather, they are all writ-
ten in general language that applies to all the interlocked
corporations Had Congress wished the "other than banks"
clause to apply to only one of the interlocked corporations,
it would not have presented any difficulty to have said so
explicitly as in the first clause
In rejecting the Government's present interpretation of
§ 8, we by no means depart from our long-held policy of giv-
ing great weight to the contemporaneous interpretation of a
challenged statute by an agency charged with its enforce-
ment, e g , Edwards9 Lessee v Darby, 12 Wheat 206, 210
(1827) But the Government does not come to this case with
a consistent history of enforcing or attempting to enforce § 8
in accord with what it urges now On the contrary, for over
60 years the Government made no attempt, either by filing
suit or by seeking voluntary resignations, to apply § 8 to in-
terlocks between banks and nonbanking corporations, even
though interlocking directorates between banks and insur-
ance companies were widespread and a matter of public
record throughout the period 2 We find it difficult to believe
that the Department of Justice and the Federal Trade Com-
mission, which share authority for enforcement of the Clay-
ton Act, and the Congress, which oversees those agencies,
would have overlooked or ignored the pervasive and open
2 The District Court found that at present "approximately 40% of the in-
surance company directors in America are also bank directors " United
States v Crocker National Corp , 422 F Supp 686, 691 (1976) Accord-
ing to the American Council of Life Insurance, 79% of its 550 members
report having directors who are also directors of banks, of that 79%, bank
directors constituted an average 33% of the insurance companies' boards
Brief for American Council of Life Insurance as Amicus Curiae 3 It is
likely that a substantial number of these interlocking directorates are be-
tween insurance companies and banks that compete in the credit markets,
and hence under the Government's interpretation violate § 8
BANKAMERICA CORP v UNITED STATES 131
122 Opinion of the Court
practice of interlocking directorates between banks and in-
surance companies had it been thought contrary to the law 3
It is true, of course, that "[authority actually granted by
Congress cannot evaporate through lack of adminis-
trative exercise/' FTC v Bunte Brothers, Inc , 312 U S
349, 352 (1941), the mere failure of administrative agencies to
act is in no sense "a binding administrative interpretation"
that the Government lacks the authority to act United
States v E I du Pont de Nemours & Co , 353 U S 586, 590
(1957) However,
"just as established practice may shed light on the extent
of power conveyed by general statutory language, so the
want of assertion of power by those who presumably
would be alert to exercise it, is equally significant in
determining whether such power was actually conferred "
FTC v Bunte Brothers , Inc , supra, at 352
Similarly, in FPC v Panhandle Eastern Pipe Line Co , 337
U S 498, 513 (1949), this Court held that "[failure to use
such an important power for so long a time indicates to us
that the Commission did not believe the power existed " In
the circumstances of this case, the Government's failure for
over 60 years to exercise the power it now claims under §8
strongly suggests that it did not read the statute as granting
such power
When a court reaches the same reading of the statute as
the practical construction given it by the enforcing agencies
8 Another indication of the Government's longstanding position is a 1950
Federal Trade Commission Report which specifically interpreted § 8 not to
apply to interlocking directorates between banks and nonbankmg corpora-
tions Federal Trade Commission, Report on Interlocking Directorates 10
(1951) The Federal Trade Commission's later decision, In re Perpetual
Federal Savings & Loan Assn , 90 F T C 608 (1977), vacated on other
grounds, 94 F T C 401 (1979), that such interlocking directorates violate
§ 5 of the Federal Trade Commission Act, 15 U S C § 45 (1976 ed and
Supp V), does not undermine the Commission's earlier analysis of § 8 of
the Clayton Act
132 OCTOBER TERM, 1982
Opinion of the Court 462 U S
over a 60-year span, that is a powerful weight supporting
such reading Here, moreover, the business community di-
rectly affected and the enforcing agencies and the Congress
have read this statute the same way for 60 years It is not
wholly without significance that Members of Congress and
their staffs who have written about this issue have stated
that §8 "does not apply to interlocks between commercial
banks and competing financial institutions, such as mutual
savings banks, insurance companies, and small loan com-
panies " Letter from Rep Wright Patman to Hon Arthur
F Burns, Chairman of the Federal Reserve Board (June 1,
1970), reprinted in The Banking Reform Act of 1971 Hear-
ings on H R 5700 before the House Committee on Banking
and Currency, 92d Cong , 1st Sess , 271 (1971) 4 While
these views are not binding on this Court, the weight of in-
formed opinion5 over the years strongly supports the District
Court holding that Congress intended the statute to be inter-
preted according to its plain meaning
It is not surprising that for more than a half century liter-
ally thousands of citizens in the business world have served
as directors of both banks and insurance companies in reh-
4 Accord, Subcommittee on Domestic Finance of the House Committee
on Banking and Currency, Control of Commercial Banks and Interlocks
Among Financial Institutions, 90th Cong , 1st Sess (Subcomm Print
1967), reprinted in 1 Subcommittee on Domestic Finance of the House
Committee on Banking and Currency, Commercial Banks and Their Trust
Activities Emerging Influence on the American Economy, 90th Cong , 2d
Sess , 881, 925-926 (Subcomm Print 1968) (the Clayton Act "does not
apply to interlocks between commercial banks and competing financial in-
stitutions, such as mutual savings banks, insurance companies, and small
loan companies"), Subcommittee on Antitrust of the House Committee on
the Judiciary, Interlocks in Corporate Management, 89th Cong , 1st Sess ,
25-26 (Comm. Print 1965) (the fourth paragraph of § 8 "does [not] apply to
interlocks with banks")
5 See also, e g , Advisory Committee on Banking to the Comptroller of
the Currency, National Banks and the Future 94 (1962), 1982 Duke L J
988, 939, 949
BANKAMEEICA CORP v UNITED STATES 133
122 Opinion of the Court
ance on what was universally perceived as plain statutory
language These citizens were reassured that the Govern-
ment's reading of that language indicated that their conduct
was lawful The Government brushes this aside, saying in
effect that it will not bring suits against those directors who
resign within a reasonable time Tr of Oral Arg 30-31
However, those who elect to resign under this "amnesty"
would nonetheless carry a stigma of sorts as violators of fed-
eral laws Equally, and perhaps more, important, such per-
sons face possible civil liability in unknown amounts, liability
against which the Government cannot, and does not purport
to, render them immune See id , at 30 While it is
arguable that wise antitrust policy counsels against permit-
ting interlocking directorates between banks and competing
insurance companies, that policy must be implemented by
Congress, and not by a crabbed interpretation of the words
of a statute which so many in authority have interpreted in
accordance with its plain meaning for so long If changes in
economic factors or considerations of public policy counsel the
extension of the Clayton Act to the categories of interlocking
directorates implicated here, it is a simple matter for Con-
gress to say so clearly
If any doubt remains as to the meaning of the statute,
that doubt is removed by the legislative history The rele-
vant provisions of the Clayton Act went through four legisla-
tive stages (1) the initial "tentative bill," (2) the House bill
introduced by Representative Clayton, (3) the Senate amend-
ments, and (4) the final bill of the Joint Conference Commit-
tee which was enacted into law as the Clayton Act The evo-
lution of the bill, along with the remarks in Committee and on
the floor, rebuts the Government's claim that Congress
intended to reach bank-nonbank interlocks in the fourth
paragraph of §8
The tentative bill proposed by Representative Clayton had
three sections dealing with director interlocks Reprinted
in Trust Hearings, at 1577-1579 Section 1 prohibited certain
134 OCTOBER TERM, 1982
Opinion of the Court 462 U S
director and officer interlocks between railroads and speci-
fied other corporations, including banks Section 2 prohib-
ited certain interlocks between banks Section 4, the pre-
cursor to the current paragraph 4 of § 8, presumed a violation
of the Sherman Act from the existence of a director interlock
It provided, in pertinent part
"That if any two or more corporations, engaged in
whole or in part in interstate or foreign commerce, have
a common director or directors, the fact of such common
director or directors shall be conclusive evidence that
there exists no real competition between such corpora-
tions, and if such corporations shall have been thereto-
fore, or are, or shall have been natural competitors,
such elimination of competition thus conclusively pre-
sumed shall constitute a combination between the said
corporations in restraint of interstate or foreign com-
merce " Id , at 1579
Extensive hearings were held on this "tentative bill "
Louis D Brandeis, then an adviser to President Wilson, tes-
tified that the tentative bill was inadequate to meet what he
saw as the need for a broad prohibition against vertical as
well as horizontal interlocks See generally id , at 681-
688 Representative Carhn objected "We attempted to do
that by section 4 of the bill Section 1 deals with the rail-
roads, section 2 with the banks, and section 4 with indus-
trials " Id , at 681 Brandeis responded that "as you have
section 4 there your clause is limited to a linking together
of two industrial corporations who are competitors "
Ibid
Brandeis also testified to the need to prohibit interlocking
directorates between all large banks Id , at 921-925 He
argued that Congress had the power to do this since "banking
is interstate commerce " Id , at 923-924 He then turned
from the banks to the "other financial concern doing business
BANKAMERICA CORP v UNITED STATES 135
122 Opinion of the Court
in the same place" with which the interlocking directorates
should be, but were not under the tentative bill, prohibited
"Mr BRANDEIS Now, what is a financial concern as
I have used that term? I should say that term 'financial
concern' includes not only a bank which is a member of a
national reserve system but any other bank
"Mr VOLSTEAD Would you include an insurance
company?
"Mr BRANDEIS And an insurance company also It
seems to me that both banks and insurance companies,
which have a usual place of business in the same place,
ought to be included in that prohibition " Id , at
925 (emphasis added)
Two facts emerge from this exchange First, the tentative
bill dealt with the different classes of corporations (banks,
railroads, and industrials) separately and in different ways
Section 2 dealt exclusively with banks and §4 exclusively
with industrial corporations Second, the tentative bill was
not understood as prohibiting interlocking directorates be-
tween banks and "other financial concern[s] doing business in
the same place" such as insurance companies
At the conclusion of the hearings, Representative Clayton
introduced H R 15657, 63d Cong , 2d Sess (May 2, 1914),
reprinted in Trust Hearings, at 1931-1952, which eventually
was enacted as the Clayton Act Section 9 of that bill gener-
ally paralleled the structure of the current §8 The third
paragraph of § 9 (which became the fourth paragraph of the
present § 8) provided in pertinent part
"[N]o person at the same time shall be a director in any
two or more corporations, either of which has capital,
surplus, and undivided profits aggregating more than
$1,000,000, engaged in whole or in part in commerce,
other than common carriers subject to [the Interstate
Commerce Act] " (Emphasis added )
136 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The Committee Report on this bill stated that "[t]his section
is divided into three paragraphs, each of which relates to the
particular class of corporations described, and the provisions
of each paragraph are limited in their application to the cor-
porations belonging to the class named herein " H R Rep
No 627, 63d Cong , 2d Sess , 18 (1914), reprinted in Trust
Hearings, at 1970 The first paragraph related solely to the
"eligibility of directors in interstate-railroad corporations,"
ibid , the second paragraph dealt with the "eligibility of direc-
tors, officers, and employees of banks, banking associations,
and trust companies," id , at 1971, and the third, "industrial
corporations" paragraph concerned "the eligibility of direc-
tors in industrial corporations engaged in commerce," ibid
Nothing in this Report suggests that the third paragraph was
intended to deal with directors in banks who also serve as
directors in industrial corporations
The House debates on § 9 of H R 15657 confirm that Con-
gress intended to deal separately with banks, railroads, and
industrial corporations, and did not intend the third para-
graph of § 9 to regulate or prohibit interlocks between these
different classes of corporations During a debate over the
banking provisions of §9, Representative Cullop explained
the relationship of the industrial corporations paragraph to
the banking paragraphs
"That [industrial corporations paragraph] refers to some
other corporation than a bank That does not apply to a
bank
"This has no reference to the banking business
"Mr CARLIN That relates to industrial commerce
"Mr CULLOP Yes That does not relate to banking
That relates to industrial and commercial corporations,
or institutions of that kind, but has no reference whatso-
ever to the banking business " 51 Cong Rec 9604
(1914) (emphasis added)
The House passed H R 15657 with changes not relevant
here and sent the bill to the Senate There, the provisions
BANKAMERICA CORP v UNITED STATES 137
122 Opinion of the Court
regulating bank interlocks met with considerable opposition
and were ultimately eliminated by the Senate Committee on
the Judiciary The Senate Report explained
"A Senate amendment to this section strikes out the
entire paragraph which relates to interlocking director-
ates of banks and trust companies [the first three para-
graphs of the current § 8] In proposing this amend-
ment a majority of the Committee believed that such
legislation as this more properly belongs to the domain of
banking rather than of commerce and such additional
regulation of bank directorates as may be wise and just
should be made by amendments to the national bank
acts, and the enforcement of it given to the Comptrol-
ler of the Currency and the Federal Reserve Board "
S Rep No 698, 63d Cong , 2d Sess , 48 (1914)
However, the Senate Committee did not change the indus-
trial corporations paragraph at all "The House provision in
this section relating to interlocking directorates of industrial
corporations is not proposed to be changed or amended m any
respect " Ibid The Senate passed the bill as reported out
by the Senate Committee
Given the Senate's expressed intent not to regulate bank
interlocks, it is not reasonable to believe that the Senate un-
derstood the third paragraph of § 9, which it left untouched,
to bar interlocking directorates involving banks When the
Conference Committee met to iron out differences between
the House and Senate bills, it restored the banking provi-
sions but added the words "other than banks, banking associ-
ations, trust companies" to the "other than common carriers"
clause in the industrial corporations paragraph (which be-
came the fourth paragraph of the current § 8) The most
reasonable explanation for this addition is that it clarified
what the Senate already understood to be the case the indus-
trial corporations paragraph did not reach interlocking direc-
torates involving banks
This interpretation is supported by the floor debate in the
House on the Conference bill Of those who spoke on the
OCTOBER TERM, 1982
Opinion of the Court 462 U S
House floor, only Representative Mann thought that the
original House version of the industrial corporations para-
graph (§ 9, paragraph 3, of H R 15657) applied to interlock-
ing directorates with banks He objected that the amend-
ment adding "banks" to the "other than common carriers"
clause therefore materially changed the meaning of the
fourth paragraph
"I know of nothing more vital which was before the
House than the power and the right to prevent interlock-
ing directorates of banks That was one of the basic
things that the committee made findings on, and when
this bill was prepared it provided a prohibition against
interlocking directorates of banks The House passed it
in that shape The Senate passed it in that shape But
the House conferees, without authority have pro-
vided that banks shall no longer be controlled by this
prohibition of interlocking directorates where banks are
in competition " 51 Cong Rec 16270 (1914)
In response, Representatives Sherley and Webb both ar-
gued that Representative Mann had misconstrued the bill as
it had originally been passed by the House Representative
Webb explained
"[T]he third paragraph of section 9 as the bill passed the
House was never intended to apply to banks, because we
had an express paragraph in section 9 which took care of
interlocking directorates in banks
" Now, it would be idiotic to say that we included
also banks and banking associations in the paragraph re-
ferring to industrial corporations, and in order to make
the paragraph perfectly plain, we inserted 'other than
banks and banks [sic] associations' and common carriers,
which had no effect upon the meaning of that section "
Id , at 16271
Representative Sherley echoed Representative Webb's argu-
ment that at no time in its evolution did the industrial cor-
BANKAMERICA CORP v UNITED STATES 139
122 Opinion of the Court
porations paragraph ever prohibit interlocking directorates
involving banks Id , at 16271-16272 He concluded
"To say that it was not within the province of the con-
ference to make it clear that only certain banks should
be within the provision touching certain interlocking
directorates, and that the provision touching industrial
corporations [the present fourth paragraph of §8] was
confined to such industrial corporations and should not
by any stretch of construction be held to include banks,
is to say what seems to be contrary to the plain com-
mon sense of the situation " Id , at 16272
In reviewing this colloquy, it should be remembered that
Representatives Webb and Sherley voted for the Clayton Act
as it originally passed the House, while Representative Mann
voted against it Id , at 9911 Thus, greater weight is to be
accorded the views of Representatives Webb and Sherley
concerning the proper interpretation of the original bill than
to the views of Representative Mann See NLRB v Frrnt &
Vegetable Packers, 377 U S 58, 66 (1964) Moreover, the
fact that the Speaker of the House overruled Representative
Mann's point of order suggests that he accepted Represent-
atives Webb's and Sherley's interpretation Finally, regard-
less of which Member correctly interpreted the original
House bill, the fact remains that they all agreed that under
the Conference bill, interlocking directorates involving banks
were not covered by the industrial corporations paragraph
The dissent argues that the "sole purpose of the ['other
than banks' amendment] was to make clear that bank-bank
interlocks would be governed exclusively by the preceding
paragraphs, rather than by the competing corporations para-
graph " Post, at 145 This interpretation ignores the fact
that the minimum size requirements in the banking and
industrial corporations provisions were not comparable As
the Clayton Act was originally enacted, the banking provi-
sions measured size on the basis of "deposits, capital, sur-
plus, and undivided profits" aggregating $5 million or more,
the industrial corporations paragraph measured size on the
140 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
basis of "capital, surplus, and undivided profits" aggregating
$1 million or more without regard to "deposits " Clayton
Antitrust Act of 1914, § 8, 38 Stat 732-733 There is no rea-
son to assume that a bank with "deposits, capital, surplus,
and undivided profits" of $5 million is comparable to a bank
with "capital, surplus, and undivided profits" of $1 million
Thus, the provisions do not dovetail in the manner suggested
by the dissent
It may well be, as the dissent speculates, post, at 146-
147, that a number of Congressmen mistakenly thought that
banking was not interstate commerce Nonetheless, Con-
gress chose to deal with the problems of industrial and finan-
cial concentration according to the class of corporations in-
volved It chose to regulate banks in what are now the first
three paragraphs of § 8, to regulate common carriers in what
is now §10, and to regulate industrial and commercial cor-
porations in the fourth paragraph of § 8 We are bound to
respect that choice, we are not to rewrite the statute based
on our notions of appropriate policy
The judgment of the Court of Appeals is
Reversed
JUSTICE POWELL took no part in the decision of this case
JUSTICE WHITE, with whom JUSTICE BRENNAN and
JUSTICE MARSHALL join, dissenting
The primary issue in this case is whether If 4 of §8 of the
Clayton Act (the "competing corporations provision"), 15
U S C §19, prohibits interlocking directorates between
banks and nonbanks The Court holds that it does not,
thereby exempting this entire species of interlocks from any
regulation whatsoever, even though such interlocks undis-
putably may have serious anticompetitive consequences di-
rectly contrary to the policies of our antitrust laws I am
quite sure that Congress intended no such result, and I
therefore dissent
BANKAMERICA CORP v UNITED STATES 141
122 WHITE, J , dissenting
I
Subject to certain other exemptions not presently rele-
vant, 1f4 of §8 prohibits interlocking directorates between
two or more corporations engaged in whole or part in com-
merce, "other than banks, banking associations, trust compa-
nies, and common carriers " The question here is
whether this "other than banks" exemption is applicable to
interlocks where any single one of the interlocked corpora-
tions is a bank, as petitioners contend, or whether it applies
only when all of the interlocked corporations are banks, as
the Government asserts Both sides argue, with straight
faces, that the plain statutory language supports their re-
spective constructions of §8 The Court, with an equally
straight face, agrees with the petitioners and solemnly pro-
claims, ante, at 128, that the self-evident, unambiguous lan-
guage of the statute requires the conclusion that § 8 does not
prohibit bank-nonbank interlocking directorates With def-
erence, I must say that it escapes me how either the Court or
the litigants can seriously maintain that the meaning of § 8 is
unambiguous, or even that one side's reading is significantly
"more natural" than the other's
In my view, the literal wording is far from conclusive and
should not be dispositive Consider the following analogy a
statute states that "no person shall own two or more automo-
biles, other than Fords " According to the Court, such a
provision plainly would not prohibit a person from owning
one Chevrolet and one Ford Although such an interpreta-
tion is possible, it is equally plausible to interpret the "other
than" clause as exempting only the ownership of two Fords
from the reach of the statute Similarly, 114 of § 8 can easily
be read as exempting only an interlock between two banks
The naked statutory wording provides insufficient guidance
as to Congress' true intent It is therefore necessary to
consider the legislative history
142 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
II
In considering the legislative materials, it is important to
keep in mind the structure of § 8 and the changes that were
made in this provision as it passed through each stage of the
enactment process The first three paragraphs of §8 pro-
scribe a wide variety of bank-bank interlocks, that is, inter-
locks between two or more banks The fourth paragraph
bans interlocks between two or more competing corporations
engaged in whole or part in commerce "other than" banks or
common carriers See 15 U S C § 19
As originally passed by the House, the competing corpora-
tions paragraph contained the "other than common carriers"
proviso, but it did not provide any exemption for banks l
After the House approved the bill, the legislation went to the
Senate, which deleted the paragraphs relating to bank-bank
interlocks, but kept the competing corporations provision in
the same form passed by the House 2 Thus, as originally
adopted by both the Senate and the House, the competing
corporations provision did not contain the "other than banks"
language upon which petitioners rely
The House was unwilling to accept the Senate's deletion of
the provisions relating to bank-bank interlocks, so the matter
went to a Conference Committee The conferees agreed to
reinclude the provisions banning bank-bank interlocks, with a
few minor modifications The conferees also inserted, for
the first time, the "other than banks" proviso into the com-
peting corporations provision 3 The Senate accepted this
change without discussion, but, in the House, there was a
1 See 2 E Kmtner, The Legislative History of the Federal Antitrust
Laws and Related Statutes 1733 (1978) (reprinting H R 15657, 63d Cong ,
2d Sess , as agreed upon in the Committee of the Whole House on June 2,
1914)
2 See 3 Kmtner, supra, at 2429 (reprinting H R 15657, 63d Cong , 2d
Sess , as amended and passed by the Senate on Sept 2, 1914)
8 See Report of the Conference Committee, H R Conf Rep No 1168,
63d Cong , 2d Sess , 4 (1914), reprinted in 3 Kmtner, supra, at 2458-
2459 ^
BANKAMERICA CORP v UNITED STATES 143
122 WHITE, J , dissenting
brief but highly significant debate upon which both sides in
the present case heavily rely
The House controversy arose when Representative Mann
raised a point of order alleging that the addition of the phrase
"other than banks" violated the rule that conferees may not
change text to which both Houses have agreed Repre-
sentative Mann argued that the addition of the new phrase
drastically limited the scope of the competing corporations
provision by excluding banks from its purview
"[W]hen this bill was prepared it provided a prohibition
against interlocking directorates of banks The House
passed it in that shape The Senate passed it in that
shape But the House conferees, without authority and
over and beyond any jurisdiction granted to them, have
provided that banks shall no longer be controlled by this
prohibition of interlocking directorates where banks are
in competition " 51 Cong Rec 16270 (1914)
Representative Webb, one of the conferees, and Repre-
sentative Sherley then took the floor to defend the con-
ference action Representative Webb asserted that the
addition of the "other than banks" language did not work
a material or substantial change in the provision, because
"without question the third paragraph of Section 9 [the
present 1f 4 of §8] as the bill passed the House was never in-
tended to apply to banks, because we had an express para-
graph in Section 9 [the present first three paragraphs of § 8]
which took care of interlocking directorates in banks " Id ,
at 16271 He described how the Senate had deleted the
House's bank-bank provisions, and how the conferees had
restored them He continued
"The conference did put in [the 'other than banks' pro-
viso] in order to make perfectly clear what in my opinion
is already clear, because in the preceding paragraph we
had passed a section with reference to interlocking direc-
torates of banks Now, it would be idiotic to say
144 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
that we included also banks and banking associations in
the paragraph referring to industrial corporations [the
present 114 of §8], and in order to make the paragraph
perfectly plain, we inserted 'other than banks and banks
[sic] associations' and common carriers, which had no
effect upon the meaning of that section " Ibid (empha-
sis added)
Representative Sherley concurred in Representative Webb's
assessment Id , at 16272 4
Representative Mann was not satisfied by this explanation
He noted that Representatives Webb and Sherley had con-
ceded that the conferees could not make substantive changes
in the provision He remarked, however, that they did not
appreciate the import of the original version of the competing
corporations paragraph, even though "they should know
more about it than I do " Ibid Then, in the only express
discussion of bank-nonbank interlocks in all of the legislative
debates on the Clayton Act, Representative Mann indicated
that the original version would have prohibited interlocks be-
tween a bank and the "Sugar Trust" company, a bank and
United States Steel Corp , a bank and a hat company, or a
bank and any other company that competed with the bank
He implied, although he did not state directly, that the con-
ferees' version of the bill would not reach such interlocks
Ibid
Then, before Representatives Webb and Sherley had an
opportunity to respond to Representative Mann's remarks
about bank-nonbank interlocks, the Speaker overruled the
point of order and held that, although the conferees could not
"drag in new subjects of legislation/' the subject matter in
question was properly before the conferees, because the Sen-
4 Representative Sherley commented that, even without the new lan-
guage, "any court would hold that the inclusion by name of banks and trust
companies in one instance excluded them from the general provisions in the
other, and, in addition, banks and trust companies are not [competitors of]
industrial corporations " 51 Cong Rec 16272 (1914)
BANKAMERICA CORP v UNITED STATES 145
122 WHITE, J , dissenting
ate had struck out the House bill provisions regulating bank-
bank interlocks The conferees thus did not exceed their
authority, and if any Member did not like the Conference
Report, he could simply vote against it Id , at 16273
Petitioners now strenuously argue, and the Court agrees,
ante, at 137-139, that this exchange supports their interpre-
tation of §8 It shows, they say, that both Representative
Mann and the conferees agreed that, whether by material
change or by mere confirmation of what was already implicit
in the bill, the "other than banks" clause requires the con-
clusion that banks are not within the scope of the competing
corporations paragraph I am convinced, however, that this
exchange strongly supports the Government's view of §8
Although Representative Mann apparently believed that the
final version of § 8 would have to be interpreted in the man-
ner suggested by petitioners, the characterization of a bill by
one of its opponents has never been deemed persuasive evi-
dence of legislative intent NLRB v Fruit & Vegetable
Packers, 377 U S 58, 66 (1964) The critical point is that
the bill's supporters characterized the addition of the "other
than banks" proviso as making no substantive alteration in
the scope of coverage of the original version of § 8 Rather,
the sole purpose of the addition was to make clear that bank-
bank interlocks would be governed exclusively by the preced-
ing paragraphs, rather than by the competing corporations
paragraph The "other than banks" language thus appar-
ently was not intended to touch upon the question of bank-
nonbank interlocks
In light of the statements of the men most familiar with the
circumstances surrounding the addition of the "other than
banks" language, we should construe this language as not
making a substantive change from the original version of § 8
Thus, petitioners are left with the argument that, even with-
out the "other than banks" clause, the provision still does not
reach bank-nonbank interlocks Some Members of the en-
acting Congress may well have assumed such to be the case,
146 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
because it was far from clear at that time that a bank could be
a competitor of a corporation "engaged in whole or part in
commerce " For example, under the then-prevailing doc-
trine of Paul v Virginia, 8 Wall 168 (1869), insurance
companies were not considered to be engaged in interstate
commerce Furthermore, it was uncertain whether a bank
was itself a corporation engaged in commerce Cf Nathan
v Louisiana, 8 How 73, 81 (1850) (an "individual who uses
his money and credit in buying and selling bills of exchange,
and who thereby realizes a profit, is not engaged in
commerce'') 5
But this Court's more recent cases have made it clear that
both banking and insurance corporations are engaged in com-
merce, and that the antitrust laws apply to them even though
some Members of Congress may not have anticipated such a
result See United States v South-Eastern Underwriters
Assn , 322 U S 533, 556-559 (1944), United States v Phila-
delphia National Bank, 374 U S 321, 336, n 12 (1963)
Thus, because the legislative history does not show "a clear
and unequivocal desire of Congress to legislate only within
that area previously declared by this Court to be within the
federal power," South-Eastern Underwriters, supra, at 556-
557, there would be no merit to an argument that, even with-
out the "other than banks" proviso, the competing corpora-
tions provision does not prohibit bank-nonbank interlocks
The remaining bulk of the legislative history cited by both
parties and the Court is, in my opinion, of little relevance
The Government cites numerous statements by Congress-
5 The Court correctly notes, ante, at 134, that Louis Brandeis "argued"
that banking is interstate commerce Hearings on Trust Legislation
before the House Committee on the Judiciary, 63d Cong , 2d Sess , 924
(1914) However, Brandeis conceded that this was only a "possible the-
ory," one that had "not yet been sustained by the Supreme Court " Id , at
923 Representative Graham expressly disagreed with Brandeis' argu-
ment Id , at 924
BANKAMERICA CORP v UNITED STATES 147
122 WHITE, J , dissenting
men and President Wilson denouncing interlocking director-
ates in general, and interlocks between competitors in the
banking industry in particular However, all of these state-
ments are far too general to provide the Government with
any really substantial support None was made explicitly in
connection with the provision at issue
Petitioners and the Court counter with statements of wit-
nesses and Congressmen during Committee hearings and
floor debates that supposedly indicate that §8 does not in-
clude bank-nonbank interlocks 6 Although these statements
seem very helpful to petitioners, close inspection shows that
such is not the case First, all of these statements were
made prior to the addition of the "other than banks" proviso
Thus, for the reasons mentioned above, they only support the
untenable argument that even the original version of § 8 did
not cover bank-nonbank interlocks Some Congressmen and
witnesses apparently thought that only "industrial" corpora-
tions engaged "in commerce," but this fact is of no import
Second, it appears that all of these early statements cited by
petitioners are taken out of context They were made in the
context of discussions of vertical interlocks or bank-bank
interlocks 7
Accordingly, the only truly relevant legislative history
demonstrates that Congress did not intend to exempt bank-
nonbank interlocks from coverage This conclusion seems
6E g , "I think there is a grave question as to whether a director in a
great life insurance company should be a director in a bank You have
failed to cover that feature " Id , at 823 (S Untermyer) See also id , at
921-925 (L Brandeis), 51 Cong Rec 9604 (1914) (Rep Cullop) (competing
corporations provision "relates to industrial and commercial corporations,
or institutions of that kind, but has no reference whatever to the banking
business") See generally ante, at 134-137
7 The Court does not expressly indicate whether its holding would be
the same in the absence of the "other than banks" proviso, but none of the
legislative history that it cites, ante, at 133-139, advances its textual
argument in the slightest
148 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
inescapable when we add into the equation the rule that
exemptions from the antitrust laws must be construed nar-
rowly, see Union Labor Life Ins Co v Pireno, 458 U S
119, 126 (1982), FMC v Seatram Lines, Inc , 411 U S 726,
733 (1973), and the fact that bank-nonbank interlocks have
strong anticompetitive effects that run counter to at least the
spirit of the Clayton Act Indeed, neither the Court nor
petitioners have identified any logical policy reasons why
Congress would have wanted bank-nonbank interlocks, un-
like every other species of interlocks between competing cor-
porations, to be totally exempt from any form of regulation
Hence, I am convinced that the Court's holding creates "a
loophole in the statute that Congress simply did not intend
to create " United States v Naftahn, 441 U S 768, 777
(1979) 8
III
The most appealing argument in favor of the Court's hold-
ing comes not from the statutory language or the legislative
8 The Court states, ante, at 129, that the Government does not dispute
that the "other than common carriers" language of § 8 exempts carrier-
noncamer interlocks, and that, to be consistent, the "other than banks"
exemption should be interpreted m the same manner In the first place,
the Government has not in this Court taken a position one way or the other
on the question whether § 8 applies to carrier-noncarrier interlocks This
issue may be largely academic, for it is difficult to think of examples of situ-
ations in which, within the meaning of § 8, a carrier would be a "competi-
tor" of a noncarner In any event, a strong argument can be made that § 8
does apply to carrier-noncarrier interlocks On the same day the House
originally passed the Clayton Act, it also passed an amendment to the In-
terstate Commerce Act (ICA) that would have prohibited carrier-carrier
interlocks not approved by the Interstate Commerce Commission 51
Gang Rec 9881, 9910-9912 (1914) A similar bill became law in 1920
See 49 U S C §11322 (1976 ed , Supp V) Thus, just as the "other
than banks* language was added simply to make clear that the provisions
regulating bank-bank interlocks were exclusive, it would seem that the
"other than earners" language was inserted just to clarify that the ICA
amendment provided the exclusive means for regulating carrier-carrier
interlocks
BANKAMERICA CORP v UNITED STATES 149
122 WHITE, J , dissenting
history, but from the fact that, for over 60 years, the Govern-
ment took no action to apply § 8 against bank-nonbank inter-
locks The Court correctly notes, ante, at 131, that the Gov-
ernment's failure to exercise its authority for such a long time
suggests that it did not read the statute as granting such
authority However, as the Court concedes, ibid , the mere
failure of an agency to act is in no sense a binding adminis-
trative interpretation that the Government lacks power to
act And even if the Justice Department and/or the Federal
Trade Commission had in the past expressly adopted peti-
tioners' interpretation of § 8 (and in fact, neither agency ever
did so), this fact would hardly be dispositive At most, it
would mean that their present interpretation would not be
entitled to the usual degree of deference, since it was incon-
sistent with their previous view 9
There is, of course, no rule of administrative stare decisis
Agencies frequently adopt one interpretation of a statute and
then, years later, adopt a different view This and other
courts have approved such administrative "changes in
course," as long as the new interpretation is consistent with
congressional intent 10 Here, the concerned agencies until
recently never formally expressed a view one way or the
other, and the legislative history reveals that the Govern-
9 See, e g , Bowsher v Merck & Co , 460 U S 824, 838, n 13 (1983)
(WHITE, J , concurring in part and dissenting in part), General Electric Co
v Gilbert, 429 U S 125, 142-143 (1976), Morton v Ruiz, 415 U S 199,
236-237 (1974)
10 See, e g , United States v Genenx Drug Corp , 460 U S 453 (1983)
(approving new agency statutory interpretation despite many years of con-
trary interpretation), NLRB v / Weingarten, Inc , 420 U S 251 (1975)
(same), NLRB v Seven Up Bottling Co , 344 U S 344 (1953) (same),
United States v City and County of San Francisco, 310 U S 16, 31-32
(1940) (same) The rule that an agency can change the manner in which it
interprets a statute is often said to be subject to the qualification that, if
it makes a change, the reasons for doing so must be set forth so that mean-
ingful judicial review will be possible See Atchison, T & S F R Co
v Wichita Bd of Trade, 412 U S 800, 808 (1973) (plurality opinion),
4 K Davis, Administrative Law § 20 11 (2d ed 1983)
150 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
merit's present course is the correct one The Government's
past failure to adhere to the proper course should not be
used as an excuse for ignoring the true congressional in-
tent I therefore would affirm the judgment of the Court of
Appeals n
11 Under my view of § 8, it is necessary to reach petitioners' alternative
argument that the interlocked insurance companies and bank holding com-
panies are not "competitors" within the meaning of § 8 But in light of the
Court's holding, I see no point in addressing this issue at length Suffice it
to say that I am inchned to agree with the Court of Appeals that bank hold-
nig companies and their subsidiary banks are so closely related that they
should be treated as one entity for § 8 purposes See United States v
Crocker Nafamal Corp , 656 F 2d 428, 450-451 (CA9 1981)
DELCOSTELLO ?; TEAMSTERS 151
Syllabus
DELCOSTELLO v INTERNATIONAL BROTHERHOOD
OF TEAMSTERS ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No 81-2386 Argued April 25, 1983— Decided June 8, 1983*
The issue in each of these cases is what statute of limitations applies in an
employee suit against an employer and a union, alleging the employer's
breach of a collective-bargaining agreement and the union's breach of its
duty of fair representation by mishandling the ensuing grievance or
arbitration proceedings United Parcel Service, Inc v Mitchell, 451
U S 56, held in a similar suit that an employee's claim against the em-
ployer was governed by a state statute of limitations for vacation of an
arbitration award rather than by a state statute for an action for breach
of contract, but left open the issues as to what state statute should gov-
ern the employee's claim against the union or whether, instead of apply-
ing a state statute of limitations, the provisions of § 10(b) of the National
Labor Relations Act establishing a 6-month limitations period for making
charges of unfair labor practices to the National Labor Relations Board
should be borrowed In No 81-2386, respondent local union brought a
formal grievance under the collective-bargaining agreement based on pe-
titioner employee's alleged improper discharge After a hearing, a joint
union-management committee informed petitioner of its conclusion that
the grievance was without merit, and the committee's determination be-
came final on September 20, 1977 On March 16, 1978, petitioner filed
suit in Federal District Court, alleging that the employer had discharged
him in violation of the collective-bargaining agreement, and that the
union had represented him in the grievance procedure in a discrimina-
tory, arbitrary, and perfunctory manner The District Court ultimately
granted summary judgment against petitioner, concluding that Mitchell
compelled application of Maryland's 30-day statute of limitations for
actions to vacate arbitration awards to both of petitioner's claims The
Court of Appeals affirmed In No 81-2408, petitioner local union invoked
arbitration after it was unsuccessful in processing respondent employ
ees* grievances based on the employer's alleged violations of the bar-
gaining agreement arising from job-assignment practices On February
Together with No 81-2408, United Steelworkers of America, AFL-
CIO-CLC, et al v Flowers et al , on certiorari to the United States Court
of Appeals for the Second Circuit
152 OCTOBER TERM, 1982
Syllabus 462 U S
24, 1978, the arbitrator issued an award upholding the employer's job
assignments, and on January 19, 1979, respondents filed suit in Federal
District Court, alleging that the employer had violated the bargaining
agreement, and that the union had violated its duty of fair representa
tion in handling respondents' claims The District Court, applying New
York's 90 day statute of limitations for actions to vacate arbitration
awards, dismissed the complaint against both the employer and the
union Ultimately, the Court of Appeals, acting in light of the interven-
ing decision in Mitchell, rejected the contention that § 10(b) should be
applied, affirmed the dismissal as to the employer under the 90-day
arbitration statute, but reversed as to the union, concluding that New
York's 3-year statute for malpractice actions governed
Held
1 In this type of suit, the 6-month limitations period in § 10(b) gov
eras claims against both the employer and the union Pp 158-172
(a) When, as here, there is no federal statute of limitations ex-
pressly applicable to a federal cause of action, it is generally concluded
that Congress intended that the courts apply the most closely analogous
statute of limitations under state law However, when adoption of state
statutes would be at odds with the purpose or operation of federal sub-
stantive law, timeliness rules have been drawn from federal law — either
express limitations periods from related federal statutes, or such alter
natives as laches Auto Workers v Hoosier Cardinal Corp , 383 U S
696, distinguished Pp 158-163
(b) An employee's suit against both the employer and the union,
such as is involved here, has no close analogy in ordinary state law,
and the analogies suggested in Mitchell suffer from flaws of both legal
substance and practical application Typically short state limitations
periods for vacating arbitration awards fail to provide the aggrieved
employee with a satisfactory opportunity to vindicate his rights, and
analogy to an action to vacate an arbitration award is problematic at best
as applied to the employee's claim against the union While a state limi-
tations period for legal malpractice is the closest state-law analogy for
the claim against the union, application of such a limitations period would
not solve the problem caused by the too-short time in which the em-
ployee could sue the employer, and would preclude the relatively rapid
resolution of labor disputes favored by federal law In contrast,
§ 10(b)'s 6-month period for filing unfair labor practice charges is de-
signed to accommodate a balance of interests very similar to that at
stake here Both the union's breach of its duty and the employer's
breach of the bargaining agreement are often also unfair labor practices
Moreover, in §10(b) "Congress established a limitations period attuned
to what it viewed as the proper balance between the national interests in
stable bargaining relationships and finality of private settlements, and
DELCOSTELLO v TEAMSTERS 153
151 Syllabus
an employee's interest in setting aside what he views as an unjust settle-
ment under the collective-bargaining system " Mitchell, supra, at 70-
71 (Stewart, J , concurring in judgment) Pp 163-172
2 The judgment in No 81-2408 is reversed because it is conceded
that the suit was filed more than 10 months after respondents' causes of
action accrued However, in No 81-2386 the judgment is reversed but
the case is remanded since petitioner contends that certain events tolled
the running of the limitations period until about three months before he
filed suit, but the District Court, applying a 30 day limitations period,
declined to consider any tolling issue P 172
679 F 2d 879, reversed and remanded, 671 F 2d 87, reversed
BRENNAN, J , delivered the opinion of the Court, in which BURGER,
C J , and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST,
JJ , joined STEVENS, J , post, p 172, and O'CONNOR, J , post, p 174,
filed dissenting opinions
William H Zinman argued the cause for petitioner m
No 81-2386 With him on the briefs was Paul A Levy
Robert M Weinberg argued the cause for petitioners in
No 81-2408 With him on the briefs were Michael H
Gottesman, Bernard Kleiman, Carl Frankel, and Laurence
Gold
Bernard S Goldfarb argued the cause for respondents in
No 81-2386 and filed a brief for respondent Anchor Motor
Freight, Inc Isaac N Groner, by appointment of the Court,
459 U S 1143, argued the cause and filed a brief for respond-
ents m No 81-2408 CarlS Yaller and Bernard W Ruben-
stein filed a brief for respondent Local 557, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America in No 81-2386 t
^Steven C Kahn and Stephen A Bokat filed a brief for the Chamber of
Commerce of the United States as amicus cunae urging reversal in both
cases Alan B Morrison filed a brief for Teamsters for a Democratic
Union as amicus cunae urging reversal in No 81—2386
David Previant, Robert M Baptiste, and Roland P Wilder, Jr , filed a
brief for the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as amicus cunae urging affirmance in
No 81-2386
Michael L Boylan and Teddy B Gordon filed a brief for Gordon L
Higgins as amicus cunae in No 81-2408
154 OCTOBER TERM, 1982
Opinion of the Court 462 U S
JUSTICE BRENNAN delivered the opinion of the Court
Each of these cases arose as a suit by an employee or
employees against an employer and a union, alleging that the
employer had breached a provision of a collective-bargaining
agreement, and that the union had breached its duty of fair
representation by mishandling the ensuing grievance-and-
arbitration proceedings See infra, at 162, Bowen v USPS,
459 U S 212 (1983), Vaca v Sipes, 386 U S 171 (1967),
Hines v Anchor Motor Freight, Inc , 424 U S 554 (1976)
The issue presented is what statute of limitations should
apply to such suits In United Parcel Service, Inc v Mitch-
ell, 451 U S 56 (1981), we held that a similar suit was gov-
erned by a state statute of limitations for vacation of an
arbitration award, rather than by a state statute for an action
on a contract We left two points open, however First,
our holding was limited to the employee's claim against the
employer, we did not address what state statute should gov-
ern the claim against the union 1 Second, we expressly lim-
ited our consideration to a choice between two state stat-
utes of limitations, we did not address the contention that
we should instead borrow a federal statute of limitations,
namely, §10(b) of the National Labor Relations Act, 29
U S C § 160(b) 2 These cases present these two issues
1 Only the employer sought certiorari in Mitchell Hence, the case did
not present the question of what limitations period should be applied to the
employee's claim against the union See 451 U S , at 60, id , at 71-75,
and n 1 (STEVENS, J , concurring in part and dissenting in part)
2 49 Stat 453 That section provides in pertinent part
"Provided no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such
charge is made "
The petition for certiorari in Mitchell presented only the question of
which state statute of limitations should apply The parties did not con-
tend in this Court or below that a federal limitations period should be used
instead of analogous state law Only an amicus suggested that it would be
more appropriate to use § 10(b), moreover, application of § 10(b) rather
DELCOSTELLO v TEAMSTERS 155
151 Opinion of the Court
We conclude that § 10(b) should be the applicable statute of
limitations governing the suit, both against the employer and
against the union
I
A
Philip DelCostello, petitioner in No 81-2386, was em-
ployed as a driver by respondent Anchor Motor Freight,
Inc , and represented by respondent Teamsters Local 557
On June 27, 1977, he quit or was discharged 3 after refusing to
drive a tractor-trailer that he contended was unsafe He
took his complaint to the union, which made unsuccessful
informal attempts to get DelCostello reinstated and then
brought a formal grievance under the collective-bargaining
agreement A hearing was held before a regional joint
union-management committee The committee concluded
that the grievance was without merit DelCostello was
informed of that decision in a letter dated August 19, 1977,
forwarding the minutes of the hearing and stating that the
minutes would be presented for approval at the committee's
meeting on September 20 DelCostello responded in a let-
ter, but the minutes were approved without change Under
the collective-bargaining agreement, the committee's deci-
sion is final and binding on all parties
On March 16, 1978, DelCostello filed this suit in the Dis-
trict of Maryland against the employer and the union He
than the state arbitration statute of limitations would not have changed the
outcome of the case Hence, we declined to address the issue 451 U S ,
at 60, n 2
Justice Stewart, concurring in the judgment, would have reached the
issue and would have applied § 10(b) rather than any state limitations pe-
riod Id , at 65-71 See also id , at 64-65 (BLACKMUN, J , concurring),
but see id , at 75-76, and nn 8, 9 (STEVENS, J , concurring in part and
dissenting in part)
8 The employer contends that DelCostello's refusal to perform his work
assignment was a "voluntary quit", DelCostello contends that he was
wrongfully discharged The joint grievance committee upheld the em-
ployer's view
156 OCTOBER TERM, 1982
Opinion of the Court 462 U S
alleged that the employer had discharged him in violation
of the collective-bargaining agreement, and that the union
had represented him in the grievance procedure "in a dis-
criminatory, arbitrary and perfunctory manner," App m
No 81-2386, p 19, resulting m an unfavorable decision by
the joint committee Respondents asserted that the suit was
barred by Maryland's 30-day statute of limitations for actions
to vacate arbitration awards 4 The District Court disagreed,
holding that the applicable statute was the 3-year state stat-
ute for actions on contracts 5 510 F Supp 716 (1981) On
reconsideration following our decision m Mitchell, however,
the court granted summary judgment for respondents, con-
cluding that Mitchell compelled application of the 30-day
statute to both the claim against the employer and the claim
against the union 524 F Supp 721 (1981) 6 The Court of
Appeals affirmed on the basis of the District Court's order
679 F 2d 879 (CA4 1982) (mem )
B
Donald C Flowers and King E Jones, respondents in
No 81-2408, were employed as craft welders by Bethlehem
Steel Corp and represented by petitioner Steelworkers
Local 2602 7 In 1975 and 1976 respondents filed several
4Md Cts &Jud Proc Code Ann §3-224(1980)
5 § 5-101
6 Respondents argue that DelCostello did not raise the argument below
that the applicable limitations period is the 6-month period of § 10(b) He
did raise the § 10(b) point perfunctorily m opposition to respondents'
motion for reconsideration, however, App m No 81-2386, p 264, and
he briefed it more thoroughly m the Court of Appeals, ^d , at 282-290
Respondents likewise addressed the § 10(b) issue fully on the merits in
the Court of Appeals, they did not raise any contention that DelCostello
had waived the assertion Brief for Appellees m No 81-2086 (CA4),
pp 41-45
7 The other petitioner is the United Steelworkers of America, with which
the Local is affiliated The two labor organizations will be treated as one
party for purposes of this case Bethlehem Steel Corp was a defendant
below but is not before this Court in the present proceeding
DELCOSTELLO v TEAMSTERS 157
151 Opinion of the Court
grievances asserting that the employer had violated the
collective-bargaining agreement by assigning certain welding
duties to employees in other job categories and departments
of the plant, with the result that respondents were laid off or
assigned to noncraf t work The union processed the griev-
ances through the contractually established procedure and,
failing to gain satisfaction, invoked arbitration On Feb-
ruary 24, 1978, the arbitrator issued an award for the
employer, ruling that the employer's job assignments were
permitted by the collective-bargaining agreement
Respondents filed this suit in the Western District of New
York on January 9, 1979, naming both the employer and the
union as defendants The complaint alleged that the com-
pany's work assignments violated the collective-bargaining
agreement, and that the union's "preparation, investigation
and handling" of respondents' grievances were "so inept and
careless as to be arbitrary and capricious," in violation of the
union's duty of fair representation App in No 81-2408,
p 10 The District Court dismissed the complaint against
both defendants, holding that the entire suit was governed
by New York's 90-day statute of limitations for actions to va-
cate arbitration awards 8 The Court of Appeals reversed on
the basis of its prior holding in Mitchell v United Parcel
Service, Inc , 624 F 2d 394 (CA2 1980), that such actions
are governed by New York's 6-year statute for actions on
contracts 9 Flowers v Local 2602, United Steel Workers of
America, 622 F 2d 573 (CA2 1980) (mem ) We granted
certioran and vacated and remanded for reconsideration in
light of our reversal in Mitchell Steelworkers v Flowers,
451 U S 965 (1981) On remand, the Court of Appeals
rejected the argument that the 6-month period of §10(b)
applies Accordingly, following our decision in Mitchell, it
applied the 90-day arbitration statute and affirmed the dis-
missal as to the employer As to the union, however, the
8N Y Civ Prac Law § 7511(a) (McKinney 1980)
9 §213(2)
158 OCTOBER TERM, 1982
Opinion of the Court 462 U S
court reversed, concluding that the correct statute to apply
was New York's 3-year statute for malpractice actions 10 671
F 2d 87 (CA2 1982)
C
In this Court, petitioners m both cases contend that suits
under Vaca v Sipes, 386 U S 171 (1967), and Hines v
Anchor Motor Freight, Inc , 424 U S 554 (1976), should be
governed by the 6-month limitations period of § 10(b) of the
National Labor Relations Act, 29 U S C § 160(b) Alter-
natively, the Steelworkers, petitioners in No 81-2408, argue
that the state statute for vacation of arbitration awards
should apply to a claim against a union as well as to one
against an employer n We granted certioran in both cases
and consolidated them for argument 459 U S 1034 (1982)
II
A
As is often the case in federal civil law, there is no federal
statute of limitations expressly applicable to this suit In
such situations we do not ordinarily assume that Congress in-
tended that there be no time limit on actions at all, rather,
our task is to "borrow" the most suitable statute or other rule
of timeliness from some other source We have generally
concluded that Congress intended that the courts apply the
most closely analogous statute of limitations under state
law u "The implied absorption of State statutes of limitation
10 §214(6)
"DdCostdlo (petitioner in No 81-2386) also contends that, if we decide
that application of state law is appropriate, our decision in Mitchell should
not be applied retroactively We need not reach this contention
12 In some instances, of course, there may be some direct indication m the
legislative history suggesting that Congress did m fact intend that state
statutes should apply More often, however, Congress has not given any
express consideration to the problem of limitations periods In such cases,
the general preference for borrowing state limitations periods could more
aptly be called a sort of fallback rule of thumb than a matter of ascertaining
legislative intent, it rests on the assumption that, absent some sound rea-
DELCOSTELLO v TEAMSTERS 159
151 Opinion of the Court
within the interstices of the federal enactments is a phase of
fashioning remedial details where Congress has not spoken
but left matters for judicial determination within the general
framework of familiar legal principles " Holmberg v Arm-
brecht, 327 U S 392, 395 (1946) 13 See, e g , Runyon v
son to do otherwise, Congress would likely intend that the courts follow
their previous practice of borrowing state provisions See also Auto
Workers v Hoosier Cardinal Corp , 383 U S 696, 703-704 (1966)
Justice Stewart pointed out in Mitchell that this line of reasoning makes
more sense as applied to a cause of action expressly created by Congress
than as applied to one found by the courts to be implied in a general statu-
tory scheme — especially when that general statutory scheme itself con-
tains a federal statute of limitations for a related but separate form of
relief 451 U S , at 68, n 4 (opinion concurring in judgment), see also
McAllister v Magnolia Petroleum Co , 357 U S 221, 228-229 (1958)
(BRENNAN, J , concurring) The suits at issue here, of course, are amal-
gams, based on both an express statutory cause of action and an implied
one See infra, at 164-165, and n 14 We need not address whether, as
a general matter, such cases should be treated differently, even if this
action were considered as arising solely under § 301 of the Labor Manage
ment Relations Act, 29 U S C § 185, the objections to use of state law
and the availability of a well suited limitations period in § 10(b) would call
for application of the latter rule
13 Respondents in No 81-2386 argue that the Rules of Decision Act, 28
U S C § 1652, mandates application of state statutes of limitations when-
ever Congress has provided none The argument begs the question, since
the Act authorizes application of state law only when federal law does not
"otherwise require or provide " As we recognized in Hoosier, supra, at
701, the choice of a limitations period for a federal cause of action is itself a
question of federal law If the answer to that question (based on the poli-
cies and requirements of the underlying cause of action) is that a timeliness
rule drawn from elsewhere in federal law should be applied, then the Rules
of Decision Act is inapplicable by its own terms As we said in United
States v Little Lake Misere Land Co , 412 U S 580 (1973)
"There will often be no specific federal legislation governing a particular
transaction , here, for example, no provision of the Act guides us
to choose state or federal law in interpreting agreements under the
Act But silence on that score in federal legislation is no reason for
limiting the reach of federal law To the contrary, the inevitable in-
completeness presented by all legislation means that interstitial federal
lawmakmg is a basic responsibility of the federal courts 'At the very
160 OCTOBER TERM
Opinion of the C ourt 482 U S
McCrary, 427 U S 160, 180-182 (1976), Chevron Oil Co
v Huson, 404 U S 97, 101-105 (1971), Auto Workers v
Hoosier Cardinal Corp , 383 U 8 696 (1966), Chattanooga
Foundry v Atlanta, 203 U S 390 (1906), Campbell v
Haverhill, 155 U S 610 (1895)
least, effective Constitutionalism requires recognition of power m the fed
eral courts to declare, as a matter of common lau or 'judicial legislation/'
rules which may be necessary to fill in mterBtttialiv or otherwise effectuate
the statutory patterns enacted in the large by C ongreHH In other words,
it must mean recognition of federal judicial competence to declare the gov
ernmg law m an area comprising issues substantially related to an estab-
lished program of government operation Id at 5^3 quoting Mishkm,
The Vanousness of "Federal Law* Competence and Discretion m the
Choice of National and State Rules for Decision, 105 U Pa L Rev 797,
800 (1957)
See also Westen & Lehman, is There Life for fine After the Death of
Diversity"?, 78 Mich L Rev 311, 352-369, and nn 122 and 142, 368-370,
377-378, 380, n 207, 381-385 (1880), n 21, infra
Respondents m No 81-2886 rely on a few turn of the-century cases
suggesting that the Rules of Decision Act compels application of state lim-
itations periods See also post, at ITS, n 1 (STEVENS, J , dissenting)
These cases, however, predate our recognition in Bri€ R Co v Tomp
kins, 304 U S 64 (1938), that "the purpose of the section was merely to
make certain that, in all matters except those m which some federal law is
controlling, the federal courts exercising jurisdiction in diversity of citizen-
ship cases would apply as their rules of decision the law of the State,
unwritten as well as written " Jd , at 72-78 (footnote omitted), see also
Warren, New Light on the History of the Federal Judiciary Act of 1789, 87
Harv L Rev 49, 81-88 (1928) Since fine, no decision of this Court has
held or suggested that the Act requires borrowing state law to fill gaps in
federal substantive statutes Of course, we have continued since Erie to
apply state limitations periods to many federal causes of action, but we
made clear in Holmberg v Ambrecto, 827 U S 892, 894-395 (1946), that
we do so as a matter of interstitial fashioning of remedial details under the
respective substantive federal statutes, and not because the Rules of Deci-
sion Act or the Ene doctrine requires it "The considerations that urge
adjudication by the same law in all courts within a State when enforcing a
right created by that State are hardly relevant for determining the rules
which bar enforcement of [a] right created not by a State legislature
but by Congress " 327 U S , at 894, see also Guaranty Trust Co v
York, 326 U S 99, 101 (1945), Board o/Comm'ra v Untied States, 808
DELCOSTELLO v TEAMSTERS
151 Opinion of the Court
In some circumstances, however, state statutes of limita-
tions can be unsatisfactory vehicles for the enforcement of
federal law In those instances, it may be inappropriate to
conclude that Congress would choose to adopt state rules at
odds with the purpose or operation of federal substantive
law
"[T]he Court has not mechanically applied a state statute
of limitations simply because a limitations period is ab-
sent from the federal statute State legislatures do not
devise their limitations periods with national interests in
mind, and it is the duty of the federal courts to assure
that the importation of state law will not frustrate or
interfere with the implementation of national policies
'Although state law is our primary guide in this area, it is
not, to be sure, our exclusive guide '" Occidental Life
Ins Co v EEOC, 432 U S 355, 367 (1977), quoting
Johnson v Railway Express Agency, Inc , 421 U S
454, 465 (1975)
U S 343, 349-352 (1939), Hoosier, 383 U S , at 703-704, id , at 709
(WHITE, J , dissenting), Employees v Westinghouse Corp , 348 U S 437,
463 (1955) (Reed, J , concurring)
We do not suggest that the Erie doctrine is wholly irrelevant to all
federal causes of action On the contrary, where Congress directly or
imphedly directs the courts to look to state law to fill in details of federal
law, Erie will ordinarily provide the framework for doing so See, e g ,
Commissioner v Es tate of Bosch, 387 U S 456, 463-465 (1967) (applying
Erie rules as to the proper source of state law in a tax case), 1 A J Moore,
W Taggart, A Vestal, & J Wicker, Moore's Federal Practice 11 0 325 (2d
ed 1982), 19 C Wright, A Miller, & E Cooper, Federal Practice and Pro-
cedure § 4515 (1982), Westen & Lehman, supra But, as Holmberg recog-
nizes, neither Erie nor the Rules of Decision Act can now be taken as
establishing a mandatory rule that we apply state law in federal inter-
stices Indeed, the contrary view urged by respondents cannot be recon
ciled with the numerous cases that have declined to borrow state law,
see infra, at 162-163, nor with our suggestion in Hoosier that we might not
apply state limitations periods in a different case, 383 U S , at 705, n 7,
707, n 9
162 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Hence, in some cases we have declined to borrow state
statutes but have instead used timeliness rules drawn from
federal law— either express limitations periods from related
federal statutes, or such alternatives as laches In Occi-
dental, for example, we declined to apply state limitations
periods to enforcement suits brought by the Equal Employ-
ment Opportunity Commission under Title VII of the 1964
Civil Rights Act, reasoning that such application might
unduly hinder the policy of the Act by placing too great an
administrative burden on the agency In McAllister v
Magnolia Petroleum Co , 357 U S 221 (1958), we applied
the federal limitations provision of the Jones Act to a seawor-
thiness action under general admiralty law We pointed out
that the two forms of claim are almost invariably brought
together Hence, "with an eye to the practicalities of admi-
ralty personal injury litigation," id , at 224, we held inappli-
cable a shorter state statute governing personal injury suits
Again, in Holmberg, we held that state statutes of limitations
would not apply to a federal cause of action lying only in
equity, because the principles of federal equity are hostile to
the "mechanical rules" of statutes of limitations 327 U S ,
at 396
Auto Workers v Hoosier Cardinal Corp was a straight-
forward suit under §301 of the Labor Management Relations
Act, 29 U S C § 185, for breach of a collective-bargaining
agreement by an employer Unlike the present cases, boo-
ster did not involve any agreement to submit disputes to ar-
bitration, and the suit was brought by the union itself rather
than by an individual employee We held that the suit was
governed by Indiana's 6-year limitations period for actions
on uuwnttai contracts, we resisted the suggestion that we
some uniform federal period Although we recog-
Bifced that "the subject matter of §301 is 'peculiarly one that
caBs for uniform law/" 383 U S , at 701, quoting Team-
*mv. Lucas Fkur Co , 369 U S 95, 103 (1962), we rea-
soned that rational uniformity is of less importance when the
DELCOSTELLOt; TEAMSTERS 163
151 Opinion of the Court
case does not involve "those consensual processes that fed-
eral labor law is chiefly designed to promote — the formation
of the collective agreement and the private settlement of dis-
putes under it," 383 U S , at 702 We also relied heavily
on the obvious and close analogy between this variety of § 301
suit and an ordinary breach-of-contract case We expressly
reserved the question whether we would apply state law to
§ 301 actions where the analogy was less direct or the rele-
vant policy factors different
"The present suit is essentially an action for damages
caused by an alleged breach of an employer's obligation
embodied in a collective bargaining agreement Such an
action closely resembles an action for breach of contract
cognizable at common law Whether other §301 suits
different from the present one might call for the applica-
tion of other rules on timeliness, we are not required to
decide, and we indicate no view whatsoever on that
question See, e g , Holmberg v Armbrecht, 327 U S
392 " 383 U S , at 705, n 7
Justice Stewart, who wrote the Court's opinion in Hoosier,
took this caution to heart in Mitchell He concurred sepa-
rately in the judgment, arguing that the factors that com-
pelled adoption of state law in Hoosier did not apply to suits
under Vaca and Hines, and that in the latter situation we
should apply the federal limitations period of § 10(b) 451
U S , at 65-71 As we shall explain, we agree
B
It has long been established that an individual employee
may bring suit against his employer for breach of a collective-
bargaining agreement Smith v Evening News Assn , 371
U S 195 (1962) Ordinarily, however, an employee is re-
quired to attempt to exhaust any grievance or arbitration
remedies provided in the collective-bargaining agreement
Republic Steel Corp v Maddox, 379 U S 650 (1965),
cf Clayton v Automobile Workers, 451 U S 679 (1981)
164 OCTOBER TERM 1<*K2
Opinion of the C curt H>2 i T S
(exhaustion of mtraumon remedies not alv^avn required)
Subject to very limited judicial review, he will be bound by
the result according to the finality provisions of the agree-
ment SeeW R Grace & Co v Rubber Workers, 461 IT S
757, 764 (1983), Steelworkers v Enterprise Corp , 363 U S
593 (1960) In Vaca and Hines, however, we recognized
that this rule works an unacceptable injustice when the union
representing the employee m the grievance/arbitration pro-
cedure acts in such a discriminatory, dishonest, arbitrary, or
perfunctory fashion as to breach its duty of fair representa-
tion In such an instance, an employee may bring suit
against both the employer and the union, notwithstanding
the outcome or finality of the grievance or arbitration pro-
ceeding Vaca v Sipes, 386 U S 171 (1967), Htnev v
Anchor Motor Freight, Inc , 424 U S 554 (1976), United
Parcel Service, Inc v Mitchell, 451 U S 56 (1981), Bowen
v USPS, 459 U S 212 (1983), Czosek v Q'Mara, 397 U S
25 (1970) Such a suit, as a formal matter, comprises two
causes of action The suit against the employer rests on
§ 301, since the employee is alleging a breach of the collective-
bargaining agreement The suit against the union is one
for breach of the union's duty of fair representation, which
is implied under the scheme of the National Labor Rela-
tions Act 14 "Yet the two claims are inextricably mterde-
14 The duty of fair representation exists because it m the policy of the Na
tional Labor Relations Act to allow a single labor organization to represent
collectively the interests of all employees within a unit, thereby depriving
individuals in the unit of the ability to bargain individually or to select a
minority union as their representative In such a system, if individual em
ployees are not to be deprived of all effective means of protecting their own
interests, it must be the duty of the representative organisation uto serve
the interests of all members without hostility or discrimination toward any,
to exercise its discretion with complete good faith and honesty, and to
avoid arbitrary conduct " Vaca v Sipes, 386 U S 171, IT? (1967) See
generally Steele v Louisville & N R Co , 323 U S 192 (1944), Ford
Motor Co v Huffman, 345 U S 330, 337 (1953), Syres v Oil Workers,
350 U S 892 (1955), Humphrey v Moore, 375 U S 835, 842 (1964)*
DELCOSTELLO v TEAMSTERS 165
151 Opinion of the Court
pendent 'To prevail against either the company or the
Union, [employee-plaintiffs] must not only show that
their discharge was contrary to the contract but must also
carry the burden of demonstrating breach of duty by the
Union ' " Mitchell, supra, at 66-67 (Stewart, J , concurring
in judgment), quoting Hines, supra, at 570-571 The em-
ployee may, if he chooses, sue one defendant and not the
other, but the case he must prove is the same whether he
sues one, the other, or both The suit is thus not a straight-
forward breach-of-contract suit under §301, as was H cosier,
but a hybrid ^301/fair representation claim, amounting to "a
direct challenge to *the private settlement of disputes under
[the collective-bargaining agreement] ' " Mitchell, supra, at
66 (Stewart, J , concurring in judgment), quoting Hoosier,
383 U S , at 702 Also unlike the claim m Hoosier, it has no
close analogy m ordinary state law The analogies sug-
gested m Mitchell both suffer from flaws, not only of legal
substance, but more important, of practical application m
view of the policies of federal labor law and the practicalities
of hybrid ^ 301/fair representation litigation
In Mitchell, we analogized the employee's claim against the
employer to an action to vacate an arbitration award in a
commercial setting We adhere to the view that, as between
the two choices, it is more suitable to characterize the claim
that way than as a suit for breach of contract Nevertheless,
the parallel is imperfect m operation The mam difference is
that a party to commercial arbitration will ordinarily be rep-
resented by counsel or, at least, will have some experience m
matters of commercial dealings and contract negotiation
Moreover, an action to vacate a commercial arbitral award
will rarely raise any issues not already presented and con-
tested m the arbitration proceeding itself In the labor set-
R Gorman, Labor Law 896-728 (1976) The duty stands "as a bulwark to
prevent arbitrary umon conduct against individuals stripped of traditional
forms of redress by the provisions of federal labor law " Vaca, suprat
at 182
166 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ting, by contrast, the employee will often be unsophisticated
in collective-bargaining matters, and he will almost always be
represented solely by the union He is called upon, within
the limitations period, to evaluate the adequacy of the union's
representation, to retain counsel, to investigate substantial
matters that were not at issue in the arbitration proceeding,
and to frame his suit Yet state arbitration statutes typi-
cally provide very short times in which to sue for vacation of
arbitration awards l5 Concededly, the very brevity of New
York's 90-day arbitration limitations period was a major fac-
tor why, in Mitchell, we preferred it to the 6-year statute for
breach of contract, 451 U S , at 63-64, but it does not follow
that because 6 years is too long, 90 days is long enough See
also Hoosier, supra, at 707, n 9 We conclude that state
limitations periods for vacating arbitration awards fail to pro-
vide an aggrieved employee with a satisfactory opportunity
to vindicate his rights under § 301 and the fair representation
doctrine 16
Moreover, as JUSTICE STEVENS pointed out in his opinion
m Mitchell, analogy to an action to vacate an arbitration
15 The majority of States require filing withm 90 days (22 States and the
District of Columbia) or 3 months (7 States) See also 9 U S C 1 12
Only two States have longer periods — one for one year, the other for 100
days Other statutes allow 30 days (6 States), 20 days (3 States), or 10
days (2 States) The remainder of the States either impose tune limits
based on terms of court or have no statutory provision on point
16 Besides its brevity, use of an arbitration limitations period raises
knotty problems of categorization and consistency Application of an ar-
bitration statute seems straightforward enough when a grievance has run
its full course, culminating in a formal award by a neutral arbitrator But
the union's breach of duty may consist of a wrongful failure to pursue a
grievance to arbitration, as in Vaca and Bowen, or a refusal to pursue it
through even preliminary stages The parallel to vacation of an arbitral
award seems tenuous at best in these situations, it is doubtful that many
state arbitration statutes would themselves cover such a case in a commer-
cial setting Yet if it were thought necessary to apply different state rules
to these different possibilities, the result would be radical variation in the
treatment of cases that are not significantly different with regard to the
principles of Vaca, Hmes, and Mitchell Moreover, the difficulty of de~
DELCOSTELLOv TEAMSTERS 167
151 Opinion of the Court
award is problematic at best as applied to the employee's
claim against the union
"The arbitration proceeding did not, and indeed, could
not, resolve the employee's claim against the union Al-
though the union was a party to the arbitration, it acted
only as the employee's representative, the [arbitration
panel] did not address or resolve any dispute between
the employee and the union Because no arbitrator
has decided the primary issue presented by this claim,
no arbitration award need be undone, even if the em-
ployee ultimately prevails " 451 U S , at 73 (opinion
concurring in part and dissenting in part) (footnotes
omitted)
JUSTICE STEVENS suggested an alternative solution for the
claim against the union borrowing the state limitations pe-
riod for legal malpractice Id , at 72-75, see post, at 174 (STE-
VENS, J , dissenting), post, at 175 (O'CONNOR, J , dissenting)
The analogy here is to a lawyer who mishandles a commercial
arbitration Although the short limitations period for vacat-
ing the arbitral award would protect the interest in finality of
the opposing party to the arbitration, the misrepresented
party would retain his right to sue his lawyer for malpractice
under a longer limitations period Thus solution is admit-
tedly the closest state-law analogy for the claim against the
union Nevertheless, we think that it too suffers from objec-
tions peculiar to the realities of labor relations and litigation
The most serious objection is that it does not solve the
problem caused by the too-short time in which an employee
could sue his employer under borrowed state law In a com-
mercial setting, a party who sued his lawyer for bungling an
tecting and mustering evidence to show the union's breach of duty may be
even greater in these situations, and it may not be an easy task to ascertain
when the cause of action accrues-— obviously a matter of great importance
when the statute of limitations may be as short as 30 days
168 OCTOBER TERM 19H2
Opinion of the C ourt 462 U S
arbitration could ordinarily recov er his entire damages, even
if the statute of limitations foreclosed any recovery against
the opposing party to the arbitration The same is not true
in the § 301/fair representation setting, however We held in
Vaca, and reaffirmed this Term in Bowen, that the union may
be held liable only for "increases if any in [the employee's]
damages caused by the union's refusal to process the griev-
ance " 386 U S , at 197-198, 459 U S , at 223-224, see
Czosek, 397 U S , at 29 Thus, if we apply state limitations
periods, a large part of the damages will remain uncollectible
in almost every case unless the employee sues within the
time allotted for his suit against the employer 17
Further, while application of a short arbitration period
as against employers would endanger employees5 ability to
recover most of what is due them, application of a longer
malpractice statute as against unions would preclude the
relatively rapid final resolution of labor disputes favored
by federal law — a problem not present when a party to a
commercial arbitration sues his lawyer In No 81-2408, for
example, the holding of the Court of Appeals would permit a
suit as long as three years after termination of the grievance
proceeding, many States provide for periods even longer 18
What we said in Mitchell about the 6-year contracts statute
urged there can as easily be said here
"It is important to bear in mind the observations made
in the Steelworkers Trilogy that 'the grievance machin-
ery under a collective bargaining agreement is at the
very heart of the system of industrial self-government
The processing machinery is actually a vehicle
by which meaning and content are given to the collective
17 Inability to sue the employer would also foreclose use of such equitable
remedies as an order to arbitrate See Vaca, 386 U S , at 196
18 One State's limitations period for legal malpractice is 10 years Other
statutes allow six years (10 States), five years (4 States), four years (5
States), three years (10 States and the District of Columbia), two years (16
States), and one year (4 States)
DELCOSTELLO v TEAMSTERS 169
151 Opinion of the Court
bargaining agreement ' Steelworkers v Warrior &
Gulf Navigation Co , 363 U S 574, 581 (1960) Al-
though the present case involves a fairly mundane and
discrete wrongful-discharge complaint, the grievance
and arbitration procedure often processes disputes in-
volving interpretation of critical terms in the collective-
bargaining agreement affecting the entire relationship
between company and union This system, with its
heavy emphasis on grievance, arbitration, and the law of
the shop/ could easily become unworkable if a decision
which has given 'meaning and content' to the terms of an
agreement, and even affected subsequent modifications
of the agreement, could suddenly be called into question
as much as [three] years later " 451 U S , at 63-64
See also Hoosier, 383 U S , at 706-707, Machinists v
NLRB, 362 U S 411, 425 (1960) 19
These objections to the resort to state law might have to be
tolerated if state law were the only source reasonably avail-
able for borrowing, as it often is In this case, however, we
have available a federal statute of limitations actually de-
signed to accommodate a balance of interests very similar to
that at stake here — & statute that is, in fact, an analogy to the
present lawsuit more apt than any of the suggested state-law
parallels * We refer to § 10(b) of the National Labor Rela-
tions Act, which establishes a 6-month period for making
charges of unfair labor practices to the NLRB 2i
19 The solution proposed by JUSTICE STEVENS also has the unfortunate
effect of establishing different limitations periods for the two halves of a
§ 301/fair representation suit A very similar consideration led us to reject
borrowing of a state statute in McAllister v Magnolw Petroleum Co , 367
U S 221 (1958) See also Vaca, supra, at 186-188, and n 12, Clayton v
Automobile Workers, 451 U S 679, 694-695 (1981)
20 This is not to say that the sole options available are a federal statute of
limitations or a state one As Holmberg and Occidental show, see supra,
at 161, 162, we have sometimes concluded that Congress' intention can best
be carried out by imposing no predefined limitations period at all
21 JUSTICE STEVENS suggested in Mitchell that use of § l<Xb) is inappro-
priate because there is no indication in its language or history that Con-
170 (XTXm*RTfcRM 19K2
Opinion oft hf C emrt 462 U S
The NLRB has eonsistenth held that all breaches of a
union's duty of fair representation are m fact unfair labor
practices E g , Miranda Fuel Co . 140 N L R B 181
(1962), enf denied, 326 F 2d 172 CCA2 1963} We have
twice declined to decide the correctness of the Board's posi-
tion,22 and we need not addrwn that question today Even if
not all breaches of the duty are unfair labor practices, how-
ever, the family resemblance m undeniable, and indeed there
is a substantial overlap Many fair representation claims
(the one m No 81~K$86# for example) include allegations of
discrimination based on membership status or dissident
views, which would be unfair labor practices under §8(b)(l)
or (2) Aside from these clear cases, duty of fair representa-
tion claims are allegations of unfair, arbitrary, or discrimina-
tory treatment of workers by unions — as are virtually all un-
fair labor practice charges made by workers against unions
See generally R Gorman, Labor Law 698-701 (1076) Simi-
larly, it may be the case that alleged violations by an em-
ployer of a collective-bargaining agreement will also amount
to unfair labor practices See %d » at 729-734
At least as important as the similarity of the rights as-
serted m the two contexts, howeverf is the close similarity of
grass intended the section to be applied In the present context 451 U S ,
at 75-70, and nn 8f 9 (opinion concurring in part ami dissenting in part)
With all respect, we think that this observation* white undoubtedly cor-
rect, is beside the point The same could be said with equal or greater
accuracy about the intent of the New York and Maryland Legislatures
when they enacted their respective arbitration or malpractice statutes of
limitations See Qt&denM Life 1m Co v EEOC* 482 U S 855, 867
(1977), n 12, mpra In either situation we are applying a statute of limi-
tations to a different cause of action, not because the legislature enacting
that limitations provision intended that it apply elsewhere, but because it
is the most suitable source for borrowing to fill a gap in federal law See
also Mttcheli, 451 U S , at 61, n» 8, n 18f mpm
*Vaca, supra, at 186, Humphrey* 875 U S f at &44, see Mttchtll, 451
U S , at 67-68, n 8 (Stewart, J f coiKurrfaig in judgment)
DELCOSTELLO » TEAMSTERS m
151 Opinion of the Court
the considerations relevant to the choice of a limitations pe-
riod As Justice Stewart observed in Mitchell
"In § 10(b) of the NLRA, Congress established a limi-
tations period attuned to what it viewed as the proper
balance between the national interests in stable bargain-
ing relationships and finality of private settlements, and
an employee's interest in setting aside what he views
as an unjust settlement under the collective-bargaining
system That is precisely the balance at issue in this
case The employee's interest in setting aside the
'final and binding' determination of a grievance through
the method established by the collective-bargaining
agreement unquestionably implicates 'those consensual
processes that federal labor law is chiefly designed to
promote — the formation of the agreement and the
private settlement of disputes under it 9 Hoosier, 383
U S , at 702 Accordingly, *[t]he need for uniformity'
among procedures followed for similar claims, ibid , as
well as the clear congressional indication of the proper
balance between the interests at stake, counsels the
adoption of § 10(b) of the NLRA as the appropriate limi-
tations period for lawsuits such as this " 451 U S ,
at 70-71 (opinion concurring in judgment) (footnote
omitted)
We stress that our holding today should not be taken as a
departure from prior practice in borrowing limitations peri-
ods for federal causes of action, m labor law or elsewhere
We do not mean to suggest that federal courts should eschew
use of state limitations periods anytime state law fails to pro-
vide a perfect analogy See, e g , Mitchell, 451 U S , at 61,
n 3 On the contrary, as the courts have often discovered,
there is not always an obvious state-law choice for application
to a given federal cause of action, yet resort to state law re-
mains the norm for borrowing of limitations periods Never-
172 *X TOH* K TfrKM
462 U S
, when a rule from ebeuhere in federal law clearly
provides a closer analogr than available *4ate statutes, and
when the federal poheieH at stake* and the practicalities of liti-
gation make that rule a significant h more appropriate vehicle
for interstitial lav^ making ut» ha\e not hesitated to turn
away from state lau Sec* Part 1 1- A. ^upm As Justice
Goldberg cautioned "{Iln thn Court H fashioning of a federal
law of collective bargaining, it H of the utmost importance
that the lam reflect the reahttt"* of industrial life and the
nature of the collective bargaining proceettt We should
not assume that doctrine** e\ohed in other contexts will be
equally well adapted to the collective bargaining process"
Humphrey v Moore, 375 U 8 335, 368 (1964) (opinion con-
curring in result)
in
In No 81-2408, it is conceded that the suit was filed more
than 10 months after respondents1 causes of action accrued
The Court of Appeals held the suit timely under a state
3-year statute for malpractice actions Since we hold that
the suit is governed by the 6-month provision of § lOCb), we
reverse the judgment
The situation is less dear in No 81-2386 Depending on
when the joint committee's decision is thought to have been
rendered, the suit was filed some seven or eight months
afterwards Petitioner DelCostello contends, however, that
certain events operated to toll the running of the statute of
fomtations until about three months before he filed suit
Since the District Court applied a 80*day limitations period,
it expressly declined to consider any tolling issue, 524 F
Supp , at 725 Hence, the judgment is reversed , and the
case is remanded for further proceedings consistent with this
opinion
It w BO ordered
JUSTICE STEVENS, dissenting
For the past century federal judges have "borrowed" state
statutes of limitations, not because they thought it was a sen-
DELCOSTELLO v TEAMSTERS 173
151 STEVENS, J , dissenting
sible form of "interstitial law making/' but rather because
they were directed to do so by the Congress of the United
States 1
Today the Court holds that the Rules of Decision Act does
not determine the result m these cases, because it believes
that a separate federal law, growing out of "the policies and
requirements of the underlying cause of action/' ante, at 159,
n 13, "otherwise require[s] or provide[s] " The Court's
opinion sets forth a number of reasons why it may make good
sense to adopt a 6-month statute of limitations, but nothing in
that opinion persuades me that the Constitution, treaties, or
statutes of the United States "require or provide" that this
particular limitations period must be applied to this case 2
1 In 1789 the First Congress enacted the Rules of Decision Act (Act),
Rev Stat § 721, 1 Stat 92, plainly stating
"That the laws of the several states, except where the constitution, trea-
ties or statutes of the United States shall otherwise require or provide,
shall be regarded as rules of decision in trials at common law in the courts
of the United States in cases where they apply "
In 1895, construing that Act, we held that state statutes of limitations
provided the relevant rules of decision in patent infringement actions,
explaining
"That this section [Rev Stat § 721] embraces the statutes of limitations of
the several States has been decided by this court in a large number of
cases, which are collated in its opinion in Bauserman v Blunt, 147 U S
647 Indeed, to no class of state legislation has the above provision
been more steadfastly and consistently applied than to statutes prescribing
the time within which actions shall be brought within its jurisdiction "
Campbell v Haverhill, 155 U S 610, 614
Accord, McClaine v Rankin, 197 U S 154 (1905) In response to the
suggestion that the Act was not intended to govern nondiversity cases
raising federal questions — such as patent suits or suits under the National
Labor Relations Act — we bluntly observed that "[t]he section itself neither
contains nor suggests such a distinction " 155 U S , at 616
* When the Court recognized the cause of action in Vaca v Sipes, 386
U S 171 (1967), the majority explained '*We cannot believe that Con-
gress, in conferring upon employers and unions the power to establish ex-
clusive grievance procedures, intended to confer upon unions unlimited
discretion to deprive injured employees of all remedies for breach of con-
171 fMTu!^ K rUtM 1WJ
<>(<»%N()K J ihiMnntintf 162 U S
(fonj£*VHH ban given un no n*aH«m to depart from our settled
practice*, grounded in Iht Huh H of Decinion Act. of borrowing
analogous ntati* Htaluten <*f hmitnticm m taws nuch m this
For the* reason* **»l forth in m\ separate opinion in United
Parcel JSVrricr. /nr \ Mitchell 451 U S 3fof 71 (1981), I
believe that in a nuit for a breach of the dulv of fair represen-
tation, the appropriate Mlauj* of the netem! rtate*" are the
Htatuten of limitation* go\ernmg malpractice **uitB against
attorney I would apph lhont» laus to retch c* the worker-
union disputes m thene tuo caw* Ami I uoulci continue to
abide bv our holding in Mitchell m lenohmg the employee-
employer dispute prewnted iti No Hl~23Hf>
For these reatmnn, I reH|M*ctful!> diwent
JUSTICE O'CONNOR,
As the Court recognizes* **r^Hort to Htate law {ml the norm
for borrowing of limitations period** fti Ante, at 171 When
federal law is silent on the question of limitations t we borrow
state law in the belief that, given our longstanding practice
and congressional awareness of itf we can safely assume, in
the absence of strong indications to the contrary* that Con-
gress intends by its silence that we follow the usual rule *
tract ** Id * at 186 But nothing in the language, structure or legislative
history of the National Labor Relation* Act comptb the/^rtA^r conclusion
that Congress intandtd the f€derml judidajry to abandon the traditional
practice of borrowing state statutai of limitations when no federal statute
directly applies Saying that a statute imphedly create* a cause of action
is not the same thing at saying that it taplitdly commands the courts to
abaixlon the standard procedure for choosing limitations periods and in-
stead to borrow a period that Congress 0atabB$htd for a different purpose
1 1 believe, basically for the reasons given by the Court* anl^f at 1S9-481,
n 18t that our practice of borrowing state periods of limitations depends
largely on this general guide for divining congressional intent See, 0 g ,
Auto Workers v Hooswr Cardinal Corp f 888 U S 696f 704 (1966)t Holm*
berg v Armbrecht, 827 U S mi, 898 (1046) I agrae with the Court that the
Rules of Decision Act, 28 U S C §1662, only puts the question* for it simply
requires application of state law unless federal kw applies See ante* at
159-461, n 18 Therefore, I am unable to join JUSTICE STEVENS* dissent
DELCOSTELLO v TEAMSTERS 175
151 O'CONNOR, J , dissenting
In Auto Workers v Hoosier Cardinal Corp , 383 U S 696
(1966), we applied the "norm" to a suit under § 301 of the
Labor Management Relations Act, 29 U S C § 185 I see
no reason in these cases to depart from our usual practice of
borrowing state law, for we have no contrary indications
strong enough to outweigh our ordinary presumption that
Congress' silence indicates a desire that we follow the ordi-
nary rule As a result, I would look to state law for a limita-
tions period For the reasons given by JUSTICE STEVENS in
his separate opinion in United Parcel Service, Inc v Mitch-
ell, 451 U S 56, 72-74 (1981), I think that a malpractice ac-
tion against an attorney provides the closest analogy to an
employee's suit against his union for breach of the duty of fair
representation, and I would apply the State's statute of limi-
tations for such an action here In DelCostello's action
against his employer, I, like JUSTICE STEVENS, would follow
Mitchell 2
My disagreement with the Court arises because I do not think that federal
law implicitly rejects the practice of borrowing state periods of limitations
in this situation
* It is quite appropriate to apply Mitchell retroactively Mitchell did not
represent a "clear break" with past law, see Mitchell, 451 U S , at 61-62,
application of its rule in this case would further the goal of promoting early
finality for arbitral awards, id , at 63, and there is no inequity in applying
the rule here See Lawson v Truck Drivers, Chauffeurs & Helpers, 698
F 2d 250, 254 (CA6 1988), see generally Chevron Oil Co v Huson, 404
U S 97 (1971)
176 OCTOBER TERM, 1982
Syllabus 462 U S
EXXON CORP ET AL v EAGERTON, COMMISSIONER
OF REVENUE OF ALABAMA, ET AL
APPEAL FROM THE SUPREME COURT OF ALABAMA
No 81-1020 Argued February 22, 1983— Decided June 8, 1983*
An Alabama statute imposes a severance tax on oil and gas extracted from
wells located in the State In 1979, a statute (Act 79-434) was enacted
which increased the tax, exempted royalty owners from the increase,
and prohibited producers from passing on the increase to consumers
Appellant producers were parties to pre-existing contracts that provided
for allocation of severance taxes among themselves, the royalty owners,
and any nonworking interests The contracts also required the pur-
chasers to reimburse appellants for severance taxes paid After paying
the increase in the severance tax under protest, appellants and other
producers filed suit in an Alabama state court, seeking a declaratory
judgment that Act 79-434 was unconstitutional and a refund of the taxes
paid Concluding that both the royalty-owner exemption and the pass-
through prohibition violated the Equal Protection Clause of the Four-
teenth Amendment and the Contract Clause, and that the pass-through
prohibition was also pre-empted by the Natural Gas Policy Act of 1978
(NGPA), the trial court held Act 79-434 invalid in its entirety and or-
dered appellee Alabama Commissioner of Revenue to refund the taxes
The Alabama Supreme Court reversed
Held
1 The pass-through prohibition of Act 79-434 was pre-empted by
federal law insofar as it applied to sales of gas in interstate commerce,
but not insofar as it applied to sales of gas in intrastate commerce
Pp 180-187
(a) The Natural Gas Act, which was enacted in 1938, was intended
to occupy the field of wholesale sales of natural gas in interstate
commerce Alabama's pass-through prohibition trespassed upon the
authority of the Federal Energy Regulatory Commission (FERC) under
that Act to regulate the wholesale prices of natural gas sold in interstate
commerce, for the prohibition bars gas producers from increasing their
prices to pass on a particular expense — the increase in the severance
tax — to their purchasers Whether or not producers should be per-
*Together with No 81-1268, Exchange Oil & Gas Corp et al v Eager
ton, Commissioner of Revenue of Alabama, also on appeal from the same
court
EXXON CORP v EAGERTON 177
176 SyUabus
nutted to recover this expense from their purchasers is a matter within
the sphere of FERC's regulatory authority Pp 184-186
Ob) Although the NGPA extended federal authority to control natu-
ral gas prices to the intrastate market, Congress also provided that this
extension did not deprive the States of the power to estabhsh a price
ceiling for intrastate sales at a level lower than the federal ceding
Since a State may estabhsh a lower price ceiling, it may also impose a
severance tax and forbid sellers to pass it through to their customers
Pp 186-187
2 The royalty-owner exemption of Act 79-434 does not violate the
Contract Clause, since it did not nullify any contractual obligation of
which appellants were the beneficiaries The exemption provides only
that the incidence of the severance tax increase shall not fall on royalty
owners and nowhere states that producers may not shift the burden of
the increase to royalty owners Pp 187-189
3 Nor does the pass-through prohibition of Act 79-434 violate the
Contract Clause While the prohibition affected contractual obligations
of which appellants were the beneficiaries, it does not constitute a "Law
impairing the Obligations of Contracts" within the meaning of the Con-
tract Clause The prohibition imposed a generally applicable rule of
conduct, the main effect of which was to shield consumers from the bur-
den of the tax increase Its effect on existing contracts permitting pro-
ducers to pass the increase through to consumers was only incidental
Cf Producers Transportation Co v Railroad Comm'n of California,
251 U S 228 Pp 189-194
4 Neither the pass-through prohibition nor the royalty-owner exemp-
tion of Act 79-434 violates the Equal Protection Clause Both measures
pass muster under the standard of rationality applied in considering
equal protection challenges to statutes regulating economic and commer-
cial matters The pass-through prohibition plainly bore a rational re-
lationship to the State's legitimate purpose of protecting consumers from
excessive prices Similarly, the Alabama Legislature could have rea-
sonably determined that the royalty-owner exemption would encourage
investment in oil or gas production Pp 195-196
404 So 2d 1, affirmed in part, reversed in part, and remanded
MARSHALL, J , delivered the opinion for a unanimous Court
Rae M Crowe argued the cause for appellants in No 81-
1268 With him on the briefs was Euel A Screws, Jr
C B Arendall, Jr , argued the cause for appellants in
No 81-1020 With him on the briefs was Louis E Braswell
178 OCTOBER TERM, 1982
Opinion of the Court 462 U S
John J Breckenmdge, Jr , argued the cause for appellees
in both cases With him on the briefs were Charles A Grad-
dick and Herbert I Burson, Jr t
JUSTICE MARSHALL delivered the opinion of the Court
These cases concern an Alabama statute which increased
the severance tax on oil and gas extracted from Alabama
wells, exempted royalty owners from the tax increase, and
prohibited producers from passing on the increase to their
purchasers Appellants challenge the pass-through prohi-
bition and the royalty-owner exemption under the Suprem-
acy Clause, the Contract Clause, and the Equal Protection
Clause
I
Since 1945 Alabama has imposed a severance tax on oil and
gas extracted from wells located in the State Ala Code
§ 40-20-1 et seq (1975) The tax "is levied upon the produc-
ers of such oil or gas in the proportion of their ownership at
the time of severance, but shall be paid by the person in
charge of the production operations " § 40-20-3(a) x The
person in charge of production operations is "authorized,
empowered and required to deduct from any amount due to
producers of such production at the time of severance the
proportionate amount of the tax herein levied before making
payments to such producers " § 40-20-3(a) The statute
defines a "producer" as "[a]ny person engaging or continuing
in the business of oil or gas production," including
"the owning, controlling, managing, or leasing of any oil
or gas property or oil or gas well, and producing in any
-^Solicitor General Lee, Elliott Schulder, David A Engels, and Jerome
M Feri filed a brief for the United States et al as amici cunae urging
reversal
1 The amount of tax that is due and payable constitutes "a first hen upon
any of the oil or gas so produced when in the possession of the original pro-
ducer or any purchaser of such oil or gas in its unmanufactured state or
condition " § 40-20-3(a)
EXXON CORP v EAGERTON 179
176 Opinion of the Court
manner any oil or gas and receiving money or
other valuable consideration as royalty or rental for oil
or gas produced " § 40-20-1(8)
In 1979 the Alabama Legislature enacted Act 79-434,
which increased the severance tax from 4% to 6% of the gross
value of the oil and gas at the point of production Whereas
the severance tax had previously fallen on royalty owners in
proportion to their interests in the oil or gas produced, the
amendment specifically exempted royalty owners from the
tax increase
"Any person who is a royalty owner shall be exempt
from the payment of any increase in taxes herein levied
and shall not be liable therefor " 1979 Ala Acts,
No 79-434, p 687, §1, as amended, Ala Code §40-20-
2(d) (1982)
The amendment also prohibited producers from passing the
tax increase through to consumers
"The privilege tax herein levied shall be absorbed and
paid by those persons engaged in the business of produc-
ing or severing oil or gas only, and the producer shall not
pass on the costs of such tax payments, either directly or
indirectly, to the consumer, it being the express intent of
this act that the tax herein levied shall be borne exclu-
sively by the producer or severer of oil or gas " 1979
Ala Acts, No 79-434, p 687, § l(e)
The amendment became effective on September 1, 1979
The pass-through prohibition was repealed on May 28, 1980
1980 Ala Acts, No 80-708, p 1438
Appellants in both No 81-1020 and No 81-1268 have
working interests in producing oil and gas wells located in Al-
abama 2 They drill and operate the wells and are responsible
for selling the oil and gas extracted Appellants are obh-
2 Appellants in No 81-1020 are Exxon Corp , Gulf Oil Corp , and the
Louisiana Land and Exploration Co Appellants in No 81-1268 are Ex-
change Oil and Gas Corp , Getty Oil Co , and Union Oil Co of California
180 OCTOBER TERM, 1982
Opinion of the Court 462 U S
gated to pay the landowners a percentage of the sale pro-
ceeds as royalties, the percentage depending upon the provi-
sions of the applicable lease Within any given production
unit, there may be tracts of land which the owners of the land
have leased to nonworkmg interests, who are also entitled to
a share of the sale proceeds Appellants were parties to con-
tracts providing for the allocation of severance taxes among
themselves, the royalty owners, and any nonworkmg inter-
ests in proportion to each party's share of the sale proceeds
Appellants were also parties to sale contracts that required
the purchasers to reimburse them for any and all severance
taxes on the oil or gas sold
After paying the 2% increase in the severance tax under
protest, appellants and eight other oil and gas producers filed
suit in the Circuit Court of Montgomery County, Ala , seek-
ing a declaratory judgment that Act 79-434 was unconstitu-
tional and a refund of the taxes paid under protest The Cir-
cuit Court ruled in favor of appellants, concluding that both
the royalty-owner exemption and the pass-through prohibi-
tion violate the Equal Protection Clause and the Contract
Clause, and that the pass-through prohibition is also pre-
empted by the Natural Gas Policy Act of 1978 (NGPA), 15
USC §3301 et seq (1976 ed , Supp V) Although Act
79-434 contained a severabihty clause, the court held the en-
tire Act invalid and ordered appellee Commissioner of Reve-
nue of the State of Alabama to refund the taxes paid under
protest The Supreme Court of Alabama reversed, holding
Act 79-434 valid in its entirety 404 So 2d 1 (1981)
Appellants appealed to this Court under 28 U S C
§ 1257(2) We noted probable jurisdiction 456 U S 970
(1982) We now affirm in part, reverse in part, and remand
for further proceedings not inconsistent with this opinion
II
We deal first with appellants' contention that the applica-
tion of the pass-through prohibition to gas was pre-empted
EXXON CORP v EAGERTON 181
176 Opinion of the Court
by federal law 3 The applicable principles of pre-emption
were recently summarized in Pacific Gas & Electric Co
v State Energy Resources Conservation & Development
Comm'n, 461 U S 190, 203-204 (1983)
3 The Supremacy Clause of the Constitution provides that "[t]his Con-
stitution, and the Laws of the United States which shall be made in Pursu-
ance thereof shall be the supreme Law of the Land any Thing in
the Constitution or Laws of any State to the contrary notwithstanding "
Art VI, cl 2
Although appellants in No 81-1268 also contend that the application of
the pass-through prohibition to oil was pre-empted by the Emergency Pe-
troleum Allocation Act of 1973 (EPAA), 15 U S C § 751 et seq (1976 ed
and Supp V), and the regulations promulgated thereunder, we conclude
that we have no jurisdiction to consider this contention The decision
below does not discuss this issue, and when " 'the highest state court has
failed to pass upon a federal question, it will be assumed that the omission
was due to want of proper presentation in the state courts, unless the ag-
grieved party in this Court can affirmatively show the contrary ' " Fuller
v Oregon, 417 U S 40, 50, n 11 (1974), quoting Street v New York, 394
U S 576, 582 (1969) No such showing has been made here Although
appellants in No 81-1268 have represented to this Court that the trial
court held the pass-through prohibition to be pre-empted by the EPAA,
Juris Statement 3, an examination of the trial court opinion reveals that in
fact the court made no mention of the EPAA Nor does anything in the
record before us indicate that this issue was raised in the trial court Ap
pellants did address the EPAA in their brief before the Supreme Court of
Alabama, Brief for Appellees Exchange Oil and Gas Corp , Getty Oil Co ,
Placid Oil Co , Union Oil Co of California in No 79-823, pp 51-53, but
that court did not pass on the issue Under these circumstances we have
no jurisdiction to consider whether the EPAA pre-empted the application
of the pass-through prohibition to oil, for it does not affirmatively appear
that that issue was decided below Bailey v Anderson, 326 U S 203,
206-207 (1945) The general practice of the Alabama appellate courts is
not to consider issues raised for the first time on appeal See, e g , State
v Newberry, 336 So 2d 181, 182 (Ala 1976), State v Graf, 280 Ala 71, 72,
189 So 2d 912, 913 (1966), Burton v Burton, 379 So 2d 617, 618 (Civ App
1980), Crews v Houston County Dept of Pensions & Security, 358 So 2d
451, 455 (Civ App ), cert denied, 358 So 2d 456 (Ala 1978)
Appellants in No 81-1268 have also burdened this Court with a labored
argument that they were denied due process by the Supreme Court of Ala-
bama's refusal to consider the legislative history of the 1979 amendments
182 OCTOBER TERM, 1982
Opinion of the Court 462 U S
"Absent explicit pre-emptive language, Congress' intent
to supersede state law altogether may be found from a
' "scheme of federal regulation so pervasive as to
make reasonable the inference that Congress left no
room for the States to supplement it," because "the Act
of Congress may touch a field in which the federal inter-
est is so dominant that the federal system will be as-
sumed to preclude enforcement of state laws on the same
subject," or because "the object sought to be obtained by
the federal law and the character of obligations imposed
by it may reveal the same purpose " 7 Fidelity Federal
Savings & Loan Assn v De la Cuesta, 458 U S 141,
153 (1982), quoting Rice v Santa Fe Elevator Corp , 331
U S 218, 230 (1947) Even where Congress has not
entirely displaced state regulation in a specific area,
state law is pre-empted to the extent that it actually con-
flicts with federal law Such a conflict arises when 'com-
pliance with both federal and state regulations is a physi-
cal impossibility/ Florida Lime & Avocado Growers,
Inc v Paul, 373 U S 132, 142-143 (1963), or where
state law 'stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Con-
gress ' Hmes v Davidowitz, 312 U S 52, 67 (1941) "
Appellants contend that the pass-through prohibition was
in conflict with §110(a) of the NGPA, 92 Stat 3368, 15
USC §3320(a)(1976ed , Supp V), which provides in per-
tinent part as follows
"[A] price for the first sale of natural gas shall not be
considered to exceed the maximum lawful price appli-
to the state severance tax, a history which, according to appellants, shows
that those amendments were intended to apply only to certain wells located
in one county in the State and not to apply statewide Suffice it to say
that the weight to be given to the legislative history of an Alabama statute
is a matter of Alabama law to be determined by the Supreme Court of
warns*
Alabama
EXXON CORP v EAGERTON 183
176 Opinion of the Court
cable to the first sale of such natural gas under this part
if such first sale price exceeds the maximum lawful price
to the extent necessary to recover —
"(1) State severance taxes attributable to the produc-
tion of such natural gas and borne by the seller "
We agree with the Supreme Court of Alabama4 that the pass-
through prohibition did not conflict with this provision On
its face § 110(a) of the NGPA does not give any seller the af-
firmative right to include in his price an amount necessary
4 See 404 So 2d, at 6
"Nowhere in that section [§ 110(a) of the NGPA] is it stated that the oil
companies are entitled to 'pass-through' increases on state severance
taxes Rather, the Act merely provides that the lawful ceiling on the first
sale at the wellhead may be raised if a severance tax is imposed by the
states The two Acts are aimed at entirely different purposes In other
words, although it would be perfectly permissible for the oil and gas com-
panies to raise the price for the first sale of natural gas, subject to the limi-
tations of the Natural Gas Policy Act, all that Act No 79-434 requires is
that the increase in severance tax mandated by that Act be borne by the
producer or severer of the oil or gas "
Relying on this passage, appellee Commissioner of Revenue contends
that the pass-through prohibition did not bar a producer from increasing its
price by an amount equal to the increase in the severance tax, provided
that the producer did not label that increase a tax
"The Commissioner believes that the seller may include in the lawful maxi-
mum price an amount equal to Alabama's severance taxes borne by the
seller resulting from the production of natural gas The Commissioner be-
lieves that it was the intent of the Alabama Legislature in adopting the
pass-through prohibition that it did not want to be perceived as levying an
additional tax on the consumer Therefore it prohibited anyone from pass-
ing along the increase levied by Act 79-434 as a tax " Brief for Appellee
Eagerton 16-17 (emphasis in original)
We do not agree with appellee that the Supreme Court of Alabama inter-
preted the pass-through prohibition to leave sellers free to pass through
the tax increase so long as they did not tell their customers that that is
what they were doing The statute contains no language that would sug-
gest this limitation, and as we understand the opinion below, the point of
the passage relied upon by appellee was only that the pass through prohi-
bition did not conflict with federal law
184 OCTOBER TERM, 1982
Opinion of the Court 462 U S
to recover state severance taxes It simply provides that a
seller who does include such an amount in his price shall not
be deemed to have exceeded the federal price ceiling if he
would not have exceeded it had that amount not been in-
cluded Nothing in the legislative history of the NGPA has
been called to our attention to indicate that §110(a) was
intended to have a greater effect than its language would
indicate 5
Although the pass-through prohibition thus was not in con-
flict with § 110(a) of the NGPA, we nevertheless conclude
that it was pre-empted by federal law insofar as it applied to
sales of gas in interstate commerce To that extent, the
pass-through prohibition represented an attempt to legislate
m a field that Congress has chosen to occupy The Natural
Gas Act (Gas Act), 52 Stat 821, as amended, 15 U S C
§§717-717w (1976 ed and Supp V), was enacted in 1938 "to
provide the Federal Power Commission, now the FERC,
with authority to regulate the wholesale pricing of natural
gas in the flow of interstate commerce from wellhead to
delivery to consumers " Maryland v Louisiana, 451 U S
725, 748 (1981) As we have previously recognized, e g ,
Phillips Petroleum Co v Wisconsin, 347 U S 672, 682-683
(1954), id , at 685-687 (Frankfurter, J , concurring), the Gas
Act was intended to occupy the field of wholesale sales of nat-
ural gas in interstate commerce, a field which had previously
been left largely unregulated as a result of the absence of fed-
eral action and decisions of this Court striking down state
regulation of sales of natural gas in interstate commerce
The Committee Reports on the bill that became the Gas Act
clearly evidence this intent
"[S]ales for resale, or so-called wholesale sales, in inter-
state commerce (for example, sales by producing compa-
* Although the United States and the Federal Energy Regulatory Com-
mission (FERC) in their CLVMCILS brief point to the statement in the Con-
ference Report that "[a]ll ceiling prices under this Act are exclusive of
EXXON CORP v EAGERTON 185
176 Opinion of the Court
mes to distributing companies) have been considered
to be not local in character and, even in the absence of
Congressional action, not subject to State regulation
The basic purpose of the present legislation is to occupy
this field in which the Supreme Court has held that the
States may not act " H R Rep No 709, 75th Cong ,
1st Sess , 1-2 (1937), S Rep No 1162, 75th Cong , 1st
Sess , 2 (1937) (citations omitted) (emphasis added)
The Alabama pass-through prohibition trespassed upon
FERC's authority over wholesale sales of gas in interstate
commerce, for it barred gas producers from increasing then-
prices to pass on a particular expense — the increase in the
severance tax — to their purchasers Whether or not produc-
ers should be permitted to recover this expense from their
purchasers is a matter within the sphere of FERC's regula-
tory authority See FPC v United Gas Pipe Line Co , 386
U S 237, 243 (1967) (emphasis added)
"One of [the FPC's] statutory duties is to determine just
and reasonable rates which will be sufficient to permit
the company to recover its costs of service and a reason-
able return on its investment Cost of service is there-
fore a major focus of inquiry Normally included as a
cost of service is a proper allowance for taxes "
Here, as in Maryland v Louisiana, the state statute "m-
terfere[d] with the FERC's authority to regulate the deter-
mination of the proper allocation of costs associated with the
sale of natural gas to consumers " 451 U S , at 749 Just as
the statute at issue in Maryland v Louisiana was pre-
empted because it effectively "shif t[ed] the incidence of cer-
tain expenses to the ultimate consumer of the processed
gas without the prior approval of the FERC," id , at 750, Al-
abama's pass-through prohibition was pre-empted, insofar as
State severance taxes borne by the seller ," H R Conf Rep
No 95-1752, p 90 (1978), we do not see how this statement supports their
position that the pass-through prohibition was in conflict with § 110(a)
186 OCTOBER TERM, 1982
Opinion of the Court 462 U S
it applied to sales of gas in interstate commerce, because it
required that certain expenses be absorbed by producers
We reach a different conclusion with respect to the applica-
tion of the pass-through prohibition to sales of gas in mtra-
state commerce 6 Although § 105(a) of the NGPA extended
federal authority to control prices to the intrastate market,
15 U S C §3315(a)(1976ed, Supp V), Congress also pro-
vided that this extension of federal authority did not deprive
the States of the power to establish a price ceiling for intra-
state producer sales of gas at a level lower than the federal
ceiling Section 602(a) of the NGPA, 92 Stat 3411, as set
forth in 15 U S C §3432(a) (1976 ed , Supp V), states that
"Mothing m this chapter shall affect the authority of any
State to establish or enforce any maximum lawful price
for the first sale of natural gas produced in such State
which does not exceed the applicable maximum lawful
price, if any, under subchapter I of this chapter "
See Energy Reserves Group, Inc v Kansas Power & Light
Co , 459 U S 400, 420-421 (1983) (in enacting the NGPA,
"Congress explicitly envisioned that the States would regu-
late intrastate markets in accordance with the overall na-
tional policy")
Since a State may establish a lower price ceiling, we think
it may also impose a severance tax and forbid sellers to pass
it through to their purchasers For sellers charging the
6 The parties stipulated that a substantial portion of the gas extracted by
appellants was sold in interstate commerce App in No 81-1020, pp 78,
184-186 Because the trial court concluded that the pass-through prohi-
bition was in conflict with § 110(a) of the NGPA, it did not determine how
much of the taxes at issue in this case were levied on gas sold in intrastate
and interstate commerce If, on remand, when the Supreme Court of Ala-
bama mquires into the question of severability, see infra, at 196-197, that
court holds that the Alabama Legislature would have intended to impose
the tax increase on the severance of gas if and only if the increase could not
be passed throi^i to consumers when the gas is sold, such a determination
may have to be made
EXXON CORP v EAGERTON 187
176 Opinion of the Court
maximum price allowed by federal law, a state tax increase
coupled with a pass-through prohibition will not differ in
practical effect from a state tax increase coupled with the im-
position of a state price ceiling that maintains the price ceil-
ing imposed by federal law prior to the tax increase In both
cases sellers are required to absorb expenses that they might
be able to pass through to their customers absent the state
restrictions Given the absence of any express pre-emption
provision in the NGPA and Congress' express approval of
one form of state regulation, we do not think it can fairly be
inferred that Congress contemplated that the general scheme
created by the NGPA would preclude another form of state
regulation that is no more intrusive 7
We conclude that the pass-through prohibition was pre-
empted by federal law insofar as it applied to sales of gas in
interstate commerce, but not insofar as it applied to producer
sales of gas in mtrastate commerce
III
We turn next to appellants' contention that the royalty-
owner exemption and the pass-through prohibition impaired
the obligations of contracts in violation of the Contract
Clause 8
A
Appellants' Contract Clause challenge to the royalty-
owner exemption fails for the simple reason that there is
nothing to suggest that that exemption nullified any contrac-
7 We note that these cases do not involve any attempt by a State to pro-
hibit gas producers from passing through the cost of a factor of production
such as labor or machinery Such a prohibition might raise additional con-
siderations not present here because of the inducement it would create for
producers to shift away from the factor of production to which the pass-
through prohibition applied
8 The Contract Clause provides that "No State shall pass any
Law impairing the Obligation of Contracts "US Const , Art I,
§ 10, cl 1
188 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tual obligations of which appellants were the beneficiaries 9
The relevant provision of Act 79-434 states that "[a]ny per-
son who is a royalty owner shall be exempt from the payment
of any increase in taxes levied and shall not be liable there-
for " On its face this portion of the Act provides only that
the legal incidence of the tax increase does not fall on royalty
9 The contracts into which appellants had entered appear to entitle them
to reimbursement from the royalty owners for a share of any severance tax
paid by appellants in proportion to the royalty owners' interest in the oil or
gas, regardless of whether state law imposes that tax on the producer or on
the royalty owner Appellants cite the following contractual provisions as
typical of the agreements which they contend are impaired by the royalty-
owner exemption
"Lessor shall bear and pay, and there shall be deducted from the royalties
due hereunder, Lessor's proportionate royalty share of
"(a) All applicable severance, production and other such taxes levied or im-
posed upon production from the leased premises " App in No 81-1020,
pp 76-77
"LESSOR AND LESSEE shall bear in proportion to their respective par-
ticipation in the production hereunder, all taxes levied on minerals covered
hereby or any part thereof, or on the severance or production thereof, and
all increases in taxes on the lease premises or any part thereof " Id ,
at 184
These provisions would seem to entitle appellants to recover from the roy-
alty owners a portion of the tax increase in proportion to the royalty own-
ers' interests in the proceeds of the oil or gas sold by appellants, regardless
of the legal incidence of the tax increase
Even if these contractual provisions were to be interpreted to entitle ap-
pellants to reimbursement only for that portion of the severance tax which
state law itself imposes on the royalty owners, appellants would still have
no objection under the Contract Clause In that event, the increase in the
severance tax would be absorbed by appellants not because the State has
nullified any contractual obligation, but simply because the provisions as so
interpreted would impose no obligation on the royalty owners to reimburse
appellants for the tax increase
Since appellants have not shown that the royalty-owner exemption af-
fects anything other than the legal incidence of the tax increase, their con-
tention that the exemption is pre-empted by the Gas Act and the NGPA is
plainly without merit
EXXON CORP v EAGERTON 189
176 Opinion of the Court
owners, i e , the State cannot look to them for payment of
the additional taxes In contrast to the pass-through prohi-
bition, the royalty-owner exemption nowhere states that pro-
ducers may not shift the burden of the tax increase in whole
or in part to royalty owners Nor is there anything in the
opinion below to suggest that the Supreme Court of Alabama
interpreted the exemption to have this effect We will not
strain to reach a constitutional question by speculating that
the Alabama courts might in the future interpret the royalty-
owner exemption to forbid enforcement of a contractual ar-
rangement to shift the burden of the tax increase See Ash-
wander v TV A, 297 U S 288, 346-347 (1936) (Brandeis, J ,
concurring)
B
Unlike the royalty-owner exemption, the pass-through
prohibition did restrict contractual obligations of which ap-
pellants were the beneficiaries Appellants were parties to
sale contracts that permitted them to include in their prices
any increase in the severance taxes that they were required
to pay on the oil or gas being sold 10 The contracts were en-
tered into before the pass-through prohibition was enacted
and their terms extended through the period during which
the prohibition was in effect By barring appellants from
passing the tax increase through to their purchasers, the
pass-through prohibition nullified pro tanto the purchasers'
contractual obligations to reimburse appellants for any sever-
ance taxes
While the pass-through prohibition thus affects contractual
obligations of which appellants were the beneficiaries, it does
not follow that the prohibition constituted a "Law impairing
the Obligations of Contracts" within the meaning of the Con-
10 For example, appellant Union Oil Co was a party to a contract con
cermng oil under which the purchaser was required to reimburse it for "100
percent of the amount by which any severance taxes paid by seller are in
excess of the rates of such taxes levied as of April 1, 1976 " Ibid
190 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tract Clause See United States Trust Co v New Jersey,
431 U S 1, 21 (1977) "Although the language of the Con-
tract Clause is facially absolute, its prohibition must be ac-
commodated to the inherent police power of the State 'to
safeguard the vital interests of its people ' " Energy Re-
serves Group, Inc v Kansas Power & Light Co , 459 U S ,
at 410, quoting Home Bldg & Loan Assn v Blaisdell, 290
U S 398, 434 (1934) This Court has long recognized that a
statute does not violate the Contract Clause simply because
it has the effect of restricting, or even barring altogether,
the performance of duties created by contracts entered into
prior to its enactment See Allied Structural Steel Co v
Spannaus, 438 U S 234, 241-242 (1978) If the law were
otherwise, "one would be able to obtain immunity from state
regulation by making private contractual arrangements "
United States Trust Co v New Jersey, supra, at 22
The Contract Clause does not deprive the States of their
"broad power to adopt general regulatory measures without
being concerned that private contracts will be impaired, or
even destroyed, as a result " United States Trust Co v
New Jersey, supra, at 22 As Justice Holmes put it "One
whose rights, such as they are, are subject to state restric-
tion, cannot remove them from the power of the State by
making a contract about them The contract will carry with
it the infirmity of the subject matter " Hudson Co v
McCarter, 209 U S 349, 357 (1908) » Thus, a state prohi-
11 This point was aptly stated in an early decision holding that a statute
prohibiting the issuance of notes by unincorporated banking associations
did not violate the Contract Clause by preventing the performance of exist-
ing contracts entered into by members of such associations
"[I]t is said that the members had formed a contract between themselves,
which would be dissolved by the stoppage of their business And what
then? Is that such a violation of contracts as is prohibited by the constitu-
tion of the Umted States? Consider to what such a construction would
lead Let us suppose, that in one of the states there is no law against gam-
ing, code-fighting, horse-racing, or public masquerades, and that compa-
EXXON CORP v EAGERTON 191
176 Opinion of the Court
bition law may be applied to contracts for the sale of beer
that were valid when entered into, Beer Co v Massachu-
setts, 97 U S 25 (1878), a law barring lotteries may be
applied to lottery tickets that were valid when issued, Stone
v Mississippi, 101 U S 814 (1880), and a workmen's com-
pensation law may be applied to employers and employees
operating under pre-existing contracts of employment that
made no provision for work-related injuries, New York Cen-
tral R Co v White, 243 U S 188 (1917) 12
Like the laws upheld in these cases, the pass-through pro-
hibition did not prescribe a rule limited in effect to contrac-
tual obligations or remedies, but instead imposed a generally
applicable rule of conduct designed to advance "a broad soci-
etal interest," Allied Structural Steel Co , supra, at 249 pro-
tecting consumers from excessive prices The prohibition
applied to all oil and gas producers, regardless of whether
they happened to be parties to sale contracts that contained a
provision permitting them to pass tax increases through to
their purchasers The effect of the pass-through prohibition
mes should be formed for the purpose of carrying on these practices And
suppose, that the legislature of that state, being [seriously] convinced of
the pernicious effect of these institutions, should venture to interdict them
will it be seriously contended, that the constitution of the United States has
been violated?" Myers v Irwm, 2 Serg & Rawle 368, 372 (Pa 1816)
"See generally Home Bldg & LoanAssn v Blaisdell, 290 U S 398,
436-437 (1934), id , at 475-477 (Sutherland, J , dissenting), Dillingham v
McLaughhn, 264 U S 370, 374 (1924) ("The operation of reasonable laws
for the protection of the public cannot be headed off by making contracts
reaching into the future") (Holmes, J ), Manigault v Springs, 199 U S
473, 480 (1905) ("parties by entering into contracts may not estop the
legislature from enacting laws intended for the public good"), Ogden v
Saunders, 12 Wheat 213, 291 (1827) (when "laws are passed rendering
that unlawful, even incidentally, which was lawful at the time of the con-
tract[,] it is the government that puts an end to the contract, and yet no
one ever imagined that it thereby violates the obligation of a contract"),
Hale, The Supreme Court and the Contract Clause II, 57 Harv L Rev
621, 671-674 (1944)
192 OCTOBER TERM, 1982
Opinion of the Court 462 U S
on existing contracts that did contain such a provision was
incidental to its mam effect of shielding consumers from the
burden of the tax increase Cf Henderson Co v Thomp-
son, 300 U S 258, 266 (1937), Beer Co v Massachusetts,
supra, at 32
Because the pass-through prohibition imposed a generally
applicable rule of conduct, it is sharply distinguishable from
the measures struck down in United States Trust Co v New
Jersey, supra, and Allied Structural Steel Co v Spannaus,
supra United States Trust Co involved New York and
New Jersey statutes whose sole effect was to repeal a cove-
nant that the two States had entered into with the holders of
bonds issued by The Port Authority of New York and New
Jersey 1S Similarly, the statute at issue in Allied Structural
Steel Co directly " *adjust[ed] the rights and responsibilities
of contracting parties ' " 438 U S , at 244, quoting United
States Trust Co v New Jersey, supra, at 22 The statute
required a private employer that had contracted with its
employees to provide pension benefits to pay additional bene-
fits, beyond those it had agreed to provide, if it terminated
the pension plan or closed a Minnesota office Since the stat-
ute applied only to employers that had entered into pension
agreements, its sole effect was to alter contractual duties
Cf Worthen Co v Kavanaugh, 295 U S 56 (1935) (statute
which drastically limited the remedies available to mortgag-
ees held invalid under the Contract Clause)
Alabama's power to prohibit oil and gas producers from
passing the increase in the severance tax on to their purchas-
ers is confirmed by several decisions of this Court rejecting
Contract Clause challenges to state rate-setting schemes that
displaced any rates previously established by contract In
13 The statutes under review in Umted States Trust Co also implicated
the special concerns associated with a State's impairment of its own con-
tractual obligations See 431 U S , at 25-28, Energy Reserves Group, Inc
v Kansas Power & Light Co , 459 U S 400, 412-413, and n 14 (1983)
EXXON CORP v EAGERTON 193
176 Opinion of the Court
Midland Realty Co v Kansas City Power & Light Co , 300
U S 109 (1937), it was held that a party to a long-term con-
tract with a utility could not invoke the Contract Clause to
obtain immunity from a state public service commission's im-
position of a rate for steam heating that was higher than the
rate established in the contract The Court declared that
"the State has power to annul and supersede rates previously
established by contract between utilities and their custom-
ers " Id , at 113 (footnote omitted) In Union Dry Goods
Co v Georgia Public Service Corp , 248 U S 372 (1919),
the Court rejected a Contract Clause challenge to an order of
a state commission setting the rates that could be charged for
supplying electric light and power, notwithstanding the ef-
fect of the order on pre-existing contracts Accord, Stephen-
son v Binford, 287 U S 251 (1932) (upholding law which
barred private contract carriers from using the highways
unless they charged rates which might exceed those they
had contracted to charge)
Producers Transportation Co v Railroad Common of
California, 251 U S 228 (1920), is particularly instructive
for present purposes In that case the Court upheld an
order issued by a state commission under a newly enacted
statute empowering the commission to set the rates that
could be charged by individuals or corporations offering to
transport oil by pipeline The Court rejected the contention
of a pipeline owner that the statute could not override pre-
existing contracts
"That some of the contracts were entered into before
the statute was adopted or the order made is not mate-
rial A common carrier cannot by making contracts for
future transportation or by mortgaging its property or
pledging its income prevent or postpone the exertion by
the State of the power to regulate the carrier's rates and
practices Nor does the contract clause of the Constitu-
tion interpose any obstacle to the exertion of that
power " Id , at 232
194 OCTOBER TERM, 1982
Opinion of the Court 462 U S
There is no material difference between Producers Trans-
portation Co and the cases before us If a party that has
entered into a contract to transport oil is not immune from
subsequently enacted state regulation of the rates that may
be charged for such transportation, parties that have entered
into contracts to sell oil and gas likewise are not immune from
state regulation of the prices that may be charged for those
commodities And if the Contract Clause does not prevent a
State from dictating the price that sellers may charge their
customers, plainly it does not prevent a State from requiring
that sellers absorb a tax increase themselves rather than
pass it through to their customers If one form of state
regulation is permissible under the Contract Clause notwith-
standing its incidental effect on pre-existing contracts, the
other form of regulation must be permissible as well 14
14 Our conclusion is buttressed by the fact that appellants operate in in-
dustries that have been subject to heavy regulation See Energy Reserves
Group, Inc v Kansas Power & Light Co , supra, at 416 ("Price regulation
existed and was foreseeable as the type of law that would alter contract
obligations"), Veix v Sixth Ward Bldg & Loan Assn , 310 U S 32, 38
(1940) ("When he purchased into an enterprise already regulated in the
particular to which he now objects, he purchased subject to further legisla-
tion upon the same topic")
With respect to gas, see supra, at 184-186, Energy Reserves Group, Inc
v Kansas Power & Light Co , supra, at 413-416 During the time the
pass-through prohibition was in effect, the Federal Government controlled
the prices of crude oil under the EPAA, 15 U S C § 751 et seq (1976 ed
and Supp V) Regulations promulgated under the EPAA established
maximum prices for most categories of crude oil 10 CFR Part 212,
Subpart D— Producers of Crude Petroleum, § 212 71 et seq (1975)
Appellants' reliance on Barwise v Sheppard, 299 U S 33 (1936), is mis-
placed In Barwise the owners of royalty interests challenged a Texas
statute that imposed a new tax on oil production, which was to be borne
"ratably by all interested parties including royalty interests " The statute
authorized the producers to pay the tax and withhold from any royalty
owners their proportionate share of the tax The royalty owners in
Barwise were parties to contracts that entitled them to specified shares of
the oil produced by their lessee and required the lessee to deliver the oil
EXXON CORP v EAGERTON 195
176 Opinion of the Court
IV
Finally, we reject appellants' equal protection challenge to
the pass-through prohibition and the royalty-owner exemp-
tion Because neither of the challenged provisions adversely
affects a fundamental interest, see, e g , Dunn v Blum-
stem, 405 U S 330, 336-342 (1972), Shapiro v Thompson,
394 U S 618, 629-631 (1969), or contains a classification
based upon a suspect criterion, see, e g , Graham v Rich-
ardson, 403 U S 365, 372 (1971), McLaughhn v Florida,
379 U S 184, 191-192 (1964), they need only be tested under
the lenient standard of rationality that this Court has tradi-
tionally applied in considering equal protection challenges to
"free of cost " Id , at 35 They contended that the statute, by authoriz-
ing the lessee to deduct their portion of the tax from any payments due
them, impermissibly impaired the lessee's obligation to deliver the oil "free
of cost " This Court concluded that the statute did not run afoul of the
Contract Clause
"[T]he lease was made in subordination to the power of the State to tax the
production of oil and to apportion the tax between the lessors and the les-
see Plainly no stipulation in the lease can be of any avail as against the
power of the State to impose the tax, prescribe who shall be under a duty
to the State to pay it, and fix the time and mode of payment And this is
true even though it be assumed to be admissible for the lessors and lessee
to stipulate as to who, as between themselves, shall ultimately bear the
tax " Id , at 40
We reject appellants' assertion that the last sentence of this quotation
was meant to indicate that the statute would have violated the Contract
Clause if, instead of simply specifying the legal incidence of the tax, it had
nullified an agreement as to who would ultimately bear the burden of the
tax We think the thrust of the sentence was simply that even though the
law left the lessors and the lessee free to allocate the ultimate burden of the
tax as they saw fit, no agreement between them could limit the State's
power to decide who must pay the tax and to specify the time and manner
of payment
Barwise is relevant to these cases only insofar as it confirms Alabama's
power to decide that no part of the legal incidence of the increase in the
severance tax would fall on owners of royalty interests See Part III-A,
supra
196 OCTOBER TERM, 1982
Opinion of the Court 462 U S
regulation of economic and commercial matters See, e g ,
Western & Southern Life Ins Co v State Board of Equal-
ization, 451 U S 648, 668 (1981), Minnesota v Clover Leaf
Creamery Co , 449 U S 456, 461-463 (1981), Kotch v Board
of River Pilot Comm'rs, 330 U S 552, 564 (1947) Under
that standard a statute will be sustained if the legislature
could have reasonably concluded that the challenged classifi-
cation would promote a legitimate state purpose See, e g ,
Western & Southern Life Ins Co , supra, at 668, Clover Leaf
Creamery Co , supra, at 461-462, 464
We conclude that the measures at issue here pass muster
under this standard The pass-through prohibition plainly
bore a rational relationship to the State's legitimate purpose
of protecting consumers from excessive prices Similarly,
we think the Alabama Legislature could have reasonably de-
termined that the royalty-owner exemption would encourage
investment in oil or gas production Our conclusion with
respect to the royalty-owner exemption is reinforced by the
fact that that provision is solely a tax measure As we
recently stated in Regan v Taxation with Representation of
Washington, 461 U S 540, 547 (1983), "[legislatures have
especially broad latitude in creating classifications and dis-
tinctions in tax statutes " See Lehnhausen v Lake Shore
Auto Parts Co , 410 U S 356, 359 (1973), Allied Stores of
Ohio v Bowers, 358 U S 522, 526-527 (1959)
V
For the foregoing reasons, we conclude that the application
of the pass-through prohibition to sales of gas in interstate
commerce was pre-empted by federal law, but we uphold
both the pass-through prohibition and the royalty-owner ex-
emption against appellants' challenges under the Contract
Clause and the Equal Protection Clause Since the sever-
abihty of the pass-through prohibition from the remainder
EXXON CORP. v. EAGERTON 197
176 Opinion of the Court
of the 1979 amendments is a matter of state law, we remand
to the Supreme Court of Alabama for that court to determine
whether the partial invalidity of the pass-through prohibition
entitles appellants to a refund of some or all of the taxes paid
under protest. See n. 6, supra. Accordingly, the judgment
of the Supreme Court of Alabama is affirmed in part and
reversed in part, and the case is remanded for further pro-
ceedings not inconsistent with this opinion.
It is so ordered.
198 OCTOBER TERM, 1982
Syllabus 462 U S
UNITED STATES v WHITING POOLS, INC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No 82-215 Argued April 19, 1983— Decided June 8, 1983
Section 542(a) of tne Bankruptcy Reform Act of 1978 (Act) requires an en
tity, other than a custodian, in possession of property of the debtor that
the trustee in bankruptcy can use, sell, or lease under § 363 to deliver
that property to the trustee Section 543(b)(l) requires a custodian in
possession or control of any property of the debtor to deliver the prop
erty to the trustee Promptly after the Internal Revenue Service (IRS)
seized respondent swimming pool firm's tangible personal property to
satisfy a tax hen, respondent filed a petition for reorganization under the
Act The Bankruptcy Court, pursuant to § 543(b)(l), ordered the IRS
to turn the property over to respondent on the condition that respondent
provide the IRS with specified protection for its interests The District
Court reversed, holding that a turnover order against the IRS was not
authorized by either § 542(a) or § 543(b)(l) The Court of Appeals in
turn reversed the District Court, holding that a turnover order could
issue against the IRS under § 542(a)
Held
1 The reorganization estate includes property of the debtor that has
been seized by a creditor prior to the filing of a petition for reorganiza-
tion Pp 202-209
(a) Both the congressional goal of encouraging reorganization of
troubled enterprises and Congress' choice of protecting secured credi-
tors by imposing limits or conditions on the trustee's power to sell, use,
or lease property subject to a secured interest, rather than by excluding
such property from the reorganization estate, indicate that Congress in-
tended a broad range of property, including property in which a creditor
has a secured interest, to be included in the estate Pp 203-204
(b) The statutory language reflects this view of the scope of the es-
tate Section 541(a)(l) of the Act, which provides that the estate shall
include "all legal or equitable interests of the debtor in property as of the
commencement of the case," is intended to include any property made
available to the estate by other provisions of the Act such as § 542(a)
In effect, § 542(a) grants to the estate a possessory interest in certain
property of the debtor that was not held by the debtor at the commence-
ment of reorganization proceedings Pp 204-207
(c) This interpretation of §542(a) is supported by its legislative
history and is consistent with judicial precedent predating the Act
UNITED STATES v WHITING POOLS, INC 199
198 Opinion of the Court
Any other interpretation would deprive the reorganization estate of
the assets and property essential to its rehabilitation effort and thereby
would frustrate the congressional purpose behind the reorganization
provisions Pp 207-208
2 Section 542(a) authorizes the Bankruptcy Court to order the IRS to
turn over the seized property in question Pp 209-211
(a) The IRS is bound by § 542(a) to the same extent as any secured
creditor Nothing in the Act or its legislative history indicates that
Congress intended a special exception for tax collectors P 209
(b) While § 542(a) would not apply if a tax levy or seizure trans-
ferred to the IRS ownership of the property seized, the Internal Reve-
nue Code does not transfer ownership of such property until the prop-
erty is sold to a bona fide purchaser at a tax sale Pp 209-211
674 F 2d 144, affirmed
BLACKMUN, J , delivered the opinion for a unanimous Court
Stuart A Smith argued the cause for the United States
With him on the briefs were Solicitor General Lee, Assistant
Attorney General Archer, Wynette J Hewett, and George
L Hastings, Jr
Lloyd H Relin argued the cause and filed a brief for
respondent
JUSTICE BLACKMUN delivered the opinion of the Court
Promptly after the Internal Revenue Service (IRS or Serv-
ice) seized respondent's property to satisfy a tax hen,
respondent filed a petition for reorganization under the
Bankruptcy Reform Act of 1978, hereinafter referred to
as the "Bankruptcy Code " The issue before us is whether
§ 542(a) of that Code authorized the Bankruptcy Court to sub-
ject the IRS to a turnover order with respect to the seized
property
I
A
Respondent Whiting Pools, Inc , a corporation, sells, in-
stalls, and services swimming pools and related equipment
and supplies As of January 1981, Whiting owed approxi-
mately $92,000 in Federal Insurance Contribution Act taxes
and federal taxes withheld from its employees, but had failed
200 OCTOBER TERM, 1982
Opinion of the Court 462 U S
to respond to assessments and demands for payment by the
IRS As a consequence, a tax lien in that amount attached
to all of Whiting's property 1
On January 14, 1981, the Service seized Whiting's tangi-
ble personal property — equipment, vehicles, inventory, and
office supplies — pursuant to the levy and distraint provi-
sion of the Internal Revenue Code of 1954 2 According
to uncontroverted findings, the estimated liquidation value
of the property seized was, at most, $35,000, but its
estimated going-concern value in Whiting's hands was
$162,876 The very next day, January 15, Whiting filed
a petition for reorganization, under the Bankruptcy Code's
Chapter 11, 11 U S C § 1101 et seq (1976 ed , Supp V),
in the United States Bankruptcy Court for the Western
District of New York Whiting was continued as debtor-
in-possession 3
The United States, intending to proceed with a tax sale of
1 Section 6321 of the Internal Revenue Code of 1954, 26 U S C § 6321,
provides
"If any person liable to pay any tax neglects or refuses to pay the same
after demand, the amount shall be a hen in favor of the United States
upon all property and rights to property, whether real or personal, belong
ing to such person "
2 Section 6331 of that Code, 26 U S C §6331, provides
"(a) Authority of Secretary
"If any person liable to pay any tax neglects or refuses to pay the same
within 10 days after notice and demand, it shall be lawful for the Secretary
to collect such tax (and such further sum as shall be sufficient to cover the
expenses of the levy) by levy upon all property and rights to property
belonging to such person or on which there is a hen provided in this chapter
for the payment of such tax
"(b) Seizure and sale of property
"The term levy* as used in this title includes the power of distraint and
seizure by any means In any case in which the Secretary may levy
upon property or rights to property, he may seize and sell such property or
rights to property (whether real or personal, tangible or intangible) "
3 With certain exceptions not relevant here, a debtor-in-possession, such
as Whiting, performs the same functions as a trustee in a reorganization
11 U S C § 1107(a) (1976 ed , Supp V)
UNITED STATES v WHITING POOLS, INC 201
198 Opinion of the Court
the property/ moved in the Bankruptcy Court for a declara-
tion that the automatic stay provision of the Bankruptcy
Code, §362(a), is inapplicable to the IRS or, in the alterna-
tive, for relief from the stay Whiting counterclaimed for an
order requiring the Service to turn the seized property over
to the bankruptcy estate pursuant to § 542(a) of the Bank-
ruptcy Code 5 Whiting intended to use the property in its
reorganized business
B
The Bankruptcy Court determined that the IRS was bound
by the automatic stay provision In re Whiting Pools, Inc ,
10 B R 755 (1981) Because it found that the seized prop-
erty was essential to Whiting's reorganization effort, it re-
fused to lift the stay Acting under § 543(b)(l) of the Bank-
ruptcy Code,6 rather than under §542(a), the court directed
the IRS to turn the property over to Whiting on the condition
that Whiting provide the Service with specified protection for
its interests 10 B R , at 760-761 7
4 Section 6335, as amended, of the 1954 Code, 26 U S C §6335, pro-
vides for the sale of seized property after notice The taxpayer is entitled
to any surplus of the proceeds of the sale § 6342(b)
6 Section 542(a) provides in relevant part
"[A]n entity, other than a custodian, in possession, custody, or control,
during the case, of property that the trustee may use, sell, or lease under
section 363 of this title, or that the debtor may exempt under section 522 of
this title, shall deliver to the trustee, and account for, such property or the
value of such property, unless such property is of inconsequential value or
benefit to the estate " 11 U S C § 542(a) (1976 ed , Supp V)
6 Section 543(b)(l) requires a custodian to "deliver to the trustee any prop-
erty of the debtor transferred to such custodian, or proceeds of such prop-
erty, that is in such custodian's possession, custody, or control on the date
that such custodian acquires knowledge of the commencement of the case "
The Bankruptcy Court declined to base the turnover order on § 542(a)
because it felt bound by In re Avery Health Center, Inc , 8 B R 1016
(WDNY 1981) (§ 542(a) does not draw into debtor's estate property seized
by IRS prior to filing of petition)
7 Section 363(e) of the Bankruptcy Code provides
"Notwithstanding any other provision of this section, at any time, on re-
quest of an entity that has an interest in property used, sold, or leased, or
202 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The United States District Court reversed, holding that a
turnover order against the Service was not authorized by
either §542(a) or §543(b)(l) 15 B R 270 (1981) The
United States Court of Appeals for the Second Circuit, in
turn, reversed the District Court 674 F 2d 144 (1982) It
held that a turnover order could issue against the Service
under §542(a), and it remanded the case for reconsideration
of the adequacy of the Bankruptcy Court's protection condi-
tions The Court of Appeals acknowledged that its ruling
was contrary to that reached by the United States Court of
Appeals for the Fourth Circuit in Cross Electric Co v
United States, 664 F 2d 1218 (1981), and noted confusion
on the issue among bankruptcy and district courts 674 F
2d, at 145, and n 1 We granted certiorari to resolve this
conflict in an important area of the law under the new
Bankruptcy Code 459 U S 1033(1982)
II
By virtue of its tax lien, the Service holds a secured in-
terest in Whiting's property We first examine whether
§542(a) of the Bankruptcy Code generally authorizes the
turnover of a debtor's property seized by a secured creditor
prior to the commencement of reorganization proceedings
Section 542(a) requires an entity in possession of "property
that the trustee may use, sell, or lease under section 363" to
proposed to be used, sold, or leased, by the trustee, the court shall prohibit
or condition such use, sale, or lease as is necessary to provide adequate
protection of such interest In any hearing under this section, the trustee
has the burden of proof on the issue of adequate protection " 11 U S C
§363(e)(1976ed,Supp V)
Pursuant to this section, the Bankruptcy Court set the following conditions
to protect the tax lien Whiting was to pay the Service $20,000 before the
turnover occurred, Whiting also was to pay $1,000 a month until the taxes
were satisfied, the IRS was to retain its lien during this period, and if
Whiting failed to make the payments, the stay was to be hf ted 10 B R ,
at 761
UNITED STATES v WHITING POOLS, INC 203
198 Opinion of the Court
deliver that property to the trustee Subsections (b) and (c)
of § 363 authorize the trustee to use, sell, or lease any "prop-
erty of the estate," subject to certain conditions for the pro-
tection of creditors with an interest in the property Section
541(a)(l) defines the "estate" as "comprised of all the follow-
ing property, wherever located all legal or equitable in-
terests of the debtor in property as of the commencement of
the case " Although these statutes could be read to limit the
estate to those "interests of the debtor in property" at the
time of the filing of the petition, we view them as a definition
of what is included in the estate, rather than as a limitation
In proceedings under the reorganization provisions of the
Bankruptcy Code, a troubled enterprise may be restructured
to enable it to operate successfully in the future Until the
business can be reorganized pursuant to a plan under 11
U S C §§ 1121-1129 (1976 ed , Supp V), the trustee or
debtor-m-possession is authorized to manage the property of
the estate and to continue the operation of the business See
§ 1108 By permitting reorganization, Congress anticipated
that the business would continue to provide jobs, to satisfy
creditors' claims, and to produce a return for its owners
H R Rep No 95-595, p 220 (1977) Congress presumed
that the assets of the debtor would be more valuable if used
in a rehabilitated business than if "sold for scrap " Ibid
The reorganization effort would have small chance of success,
however, if property essential to running the business were
excluded from the estate See 6 J Moore & L King, Collier
on Bankruptcy 113 05, p 431 (14th ed 1978) Thus, to facili-
tate the rehabilitation of the debtor's business, all the debtor's
property must be included in the reorganization estate
This authorization extends even to property of the estate
in which a creditor has a secured interest §§ 363(b) and (c),
see H R Rep No 95-595, p 182 (1977) Although Con-
gress might have safeguarded the interests of secured credi-
204 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tors outright by excluding from the estate any property sub-
ject to a secured interest, it chose instead to include such
property m the estate and to provide secured creditors with
"adequate protection" for their interests §363(e), quoted
in n 7, supra At the secured creditor's insistence, the
bankruptcy court must place such limits or conditions on the
trustee's power to sell, use, or lease property as are neces-
sary to protect the creditor The creditor with a secured
interest in property included in the estate must look to this
provision for protection, rather than to the nonbankruptcy
remedy of possession
Both the congressional goal of encouraging reorganizations
and Congress' choice of methods to protect secured creditors
suggest that Congress intended a broad range of property to
be included in the estate
B
The statutory language reflects this view of the scope of
the estate As noted above, §541(a)(l) provides that the
"estate is comprised of all the following property, wherever
located all legal or equitable interests of the debtor in
property as of the commencement of the case " 11 U S C
§541(a)(l) (1976 ed , Supp V) 8 The House and Senate Re-
8
8 Section 541(a)(l) speaks in terms of the debtor's "interests in prop-
erty," rather than property in which the debtor has an interest, but this
choice of language was not meant to limit the expansive scope of the sec-
tion The legislative history indicates that Congress intended to exclude
from the estate property of others in which the debtor had some minor in-
terest such as a hen or bare legal title See 124 Cong Rec 32399, 32417
(1978) (remarks of Rep Edwards), id , at 33999, 34016-34017 (remarks of
Sen DeConcim), cf § 541(d) (property in which debtor holds legal but not
equitable title, such as a mortgage in which debtor retained legal title to
service or to supervise servicing of mortgage, becomes part of estate only
to extent of legal title), 124 Cong Rec 33999 (1978) (remarks of Sen De-
Concim) (§ 541(d) "reiterates the general principle that where the debtor
holds bare legal title without any equitable interest, the estate ac-
quires bare legal title without any equitable interest in the property")
Similar statements to the effect that § 541(a)(l) does not expand the rights
UNITED STATES v WHITING POOLS, INC 205
198 Opinion of the Court
ports on the Bankruptcy Code indicate that § 541(a)(l)?s scope
is broad 9 Most important, in the context of this case,
§541(a)(l) is intended to include in the estate any property
made available to the estate by other provisions of the Bank-
ruptcy Code See H R Rep No 95-595, p 367 (1977)
Several of these provisions bring into the estate property in
which the debtor did not have a possessory interest at the
time the bankruptcy proceedings commenced 10
Section 542(a) is such a provision It requires an entity
(other than a custodian) holding any property of the debtor
that the trustee can use under §363 to turn that property
over to the trustee n Given the broad scope of the reorga-
of the debtor in the hands of the estate were made m the context of describ-
ing the principle that the estate succeeds to no more or greater causes of
action against third parties than those held by the debtor See H E Rep
No 95-595, pp 367-368 (1977) These statements do not limit the ability
of a trustee to regain possession of property in which the debtor had eq-
uitable as well as legal title
9 "The scope of this paragraph [§ 541(a)(l)] is broad It includes all kinds
of property, including tangible or intangible property, causes of action (see
Bankruptcy Act § 70a(6)), and all other forms of property currently speci
fied in section 70a of the Bankruptcy Act " Id , at 367, S Rep No 95-
989, p 82 (1978)
10 See, e g , §§ 543, 547, and 548 These sections permit the trustee to
demand the turnover of property that is in the possession of others if that
possession is due to a custodial arrangement, § 543, to a preferential trans-
fer, § 547, or to a fraudulent transfer, § 548
We do not now decide the outer boundaries of the bankruptcy estate
We note only that Congress plainly excluded property of others held by
the debtor in trust at the time of the filing of the petition See § 541(b),
H R Rep No 95-595, p 368 (1977), S Rep No 95-989, p 82 (1978)
Although it may well be that funds that the IRS can demonstrate were
withheld for its benefit pursuant to 26 U S C § 7501 (employee withhold-
ing taxes), are excludable from the estate, see 124 Cong Rec 32417 (1978)
(remarks of Rep Edwards) (Service may exclude funds it can trace), the
IRS did not attempt to trace the withheld taxes in this case See Tr of
Oral Arg 18, 28-29
11 The House Report expressly includes property of the debtor recovered
under § 542(a) in the estate the estate includes "property recovered by the
trustee under section 542 , if the property recovered was merely out of
206 OCTOBER TERM, 1982
Opinion of the Court 462 U S
nization estate, property of the debtor repossessed by a
secured creditor falls within this rule, and therefore may be
drawn into the estate While there are explicit limitations
on the reach of § 542(a),12 none requires that the debtor hold a
possessory interest in the property at the commencement of
the reorganization proceedings 13
As does all bankruptcy law, § 542(a) modifies the proce-
dural rights available to creditors to protect and satisfy their
liens 14 See Wright v Union Central Life Ins Co , 311
the possession of the debtor, yet remained 'property of the debtor ' "
H R Rep No 95-595, p 367 (1977), see 4 L King, Collier on Bankruptcy
1154116, p 541-72 10 (15th ed 1982)
12 Section 542 provides that the property be usable under § 363, and that
turnover is not required in three situations when the property is of incon-
sequential value or benefit to the estate, § 542(a), when the holder of the
property has transferred it in good faith without knowledge of the petition,
§ 542(c), or when the transfer of the property is automatic to pay a life
insurance premium, § 542(d)
13 Under the old Bankruptcy Act, a bankruptcy court's summary jurisdic-
tion over a debtor's property was limited to property m the debtor's pos-
session when the liquidation petition was filed Phelps v Umted States,
421 U S 330, 335-336 (1975), Taubel-Scott Kitzmiller Co v Fox, 264
U S 426, 432-434 (1924) Phelps, which involved a liquidation under the
prior Bankruptcy Act, held that a bankruptcy court lacked jurisdiction to
direct the Service to turn over property which had been levied on and
which, at the time of the commencement of bankruptcy proceedings, was in
the possession of an assignee of the debtor's creditors
Phelps does not control this case First, the new Bankruptcy Code
abolished the distinction between summary and plenary jurisdiction, thus
expanding the jurisdiction of bankruptcy courts beyond the possession
limitation H R Rep No 95-595, pp 48-49 (1977), see Northern Pipe-
line Construction Co v Marathon Pipe Line Co , 458 U S 50, 54 (1982)
(plurality opinion) Moreover, Phelps was a liquidation situation, and is
inapplicable to reorganization proceedings such as we consider here
U0ne of the procedural rights the law of secured transactions grants a
secured creditor to enforce its hen is the right to take possession of the
secured property upon the debtor's default Uniform Commercial Code
§ 9-503, 3A U L A 211 (1981) A creditor's possessory interest resulting
from the exercise of this right is subject to certain restrictions on the credi-
tor's use of the property See § 9-504, 3A U L A , at 256-257 Here,
we address the abrogation of the Service's possessory interest obtained
UNITED STATES v WHITING POOLS, INC 207
198 Opinion of the Court
U S 273, 278-279 (1940) See generally Nowak, Turnover
Following Prepetition Levy of Distraint Under Bankruptcy
Code §542, 55 Am Bankr L J 313, 332-333 (1981) In ef-
fect, § 542(a) grants to the estate a possessory interest in cer-
tain property of the debtor that was not held by the debtor
at the commencement of reorganization proceedings 15 The
Bankruptcy Code provides secured creditors various rights,
including the right to adequate protection, and these rights
replace the protection afforded by possession
This interpretation of § 542(a) is supported by the section's
legislative history Although the legislative Reports are
silent on the precise issue before us, the House and Senate
hearings from which §542(a) emerged provide guidance
Several witnesses at those hearings noted, without contradic-
tion, the need for a provision authorizing the turnover of
property of the debtor in the possession of secured credi-
tors 16 Section 542(a) first appeared in the proposed legisla-
pursuant to its tax hen, a secured interest We do not decide whether any
property of the debtor in which a third party holds a possessory interest
independent of a creditor's remedies is subject to turnover under § 542(a)
For example, if property is pledged to the secured creditor so that the
creditor has possession prior to any default, § 542(a) may not require turn-
over See 4 L King, Collier on Bankruptcy 1541 08[9], p 541-53 (15th
ed 1982)
15 Indeed, if this were not the effect, § 542(a) would be largely superfluous
in light of § 541(a)(l) Interests in the seized property that could have
been exercised by the debtor — in this case, the rights to notice and the sur-
plus from a tax sale, see n 4, supra — are already part of the estate by vir-
tue of § 541(a)(l) No coercive power is needed for this inclusion The
fact that § 542(a) grants the trustee greater rights than those held by the
debtor prior to the filing of the petition is consistent with other provisions
of the Bankruptcy Code that address the scope of the estate See, e g ,
§ 544 (trustee has rights of hen creditor), § 545 (trustee has power to avoid
statutory hens), §549 (trustee has power to avoid certain postpetition
transactions)
16 See Hearings on H R 31 and H R 32 before the Subcommittee on
Civil and Constitutional Rights of the House Committee on the Judiciary,
208 OCTOBER TERM, 1982
Opinion of the Court 462 U S
tion shortly after these hearings See H R 6, § 542(a), 95th
Cong , 1st Sess , introduced January 4, 1977 See generally
Klee, Legislative History of the New Bankruptcy Code, 54
Am Bankr L J 275,279-281(1980) The section remained
unchanged through subsequent versions of the legislation
Moreover, this interpretation of §542 in the reorganiza-
tion context is consistent with judicial precedent predating
the Bankruptcy Code Under Chapter X, the reorganiza-
tion chapter of the Bankruptcy Act of 1878, as amended,
§§101-276, 52 Stat 883 (formerly codified as 11 U S C
§§ 501-676), the bankruptcy court could order the turnover of
collateral in the hands of a secured creditor Reconstruction
Finance Corp v Kaplan, 185 F 2d 791, 796 (CA1 1950), see
In re Third Ave Transit Corp , 198 F 2d 703, 706 (CA2
1952), 6A J Moore & L King, Collier on Bankruptcy 11 14 03,
pp 741-742 (14th ed 1977), Murphy, Use of Collateral in
Business Rehabilitations A Suggested Redrafting of Section
7-203 of the Bankruptcy Reform Act, 63 Calif L Rev 1483,
1492-1495 (1975) Nothing in the legislative history evinces
a congressional intent to depart from that practice Any
other interpretation of § 542(a) would deprive the bankruptcy
estate of the assets and property essential to its rehabilita-
tion effort and thereby would frustrate the congressional pur-
pose behind the reorganization provisions 1?
94th Cong , 1st and 2d Sess , 439 (1975-1976) (statement of Patrick A
Murphy), id , at 1023 (statement of Walter W Vaughan), id , at 1757
(statement of Robert J Grimmig), id , at 1827-1839 (remarks and state-
ment of Leon S Forman, National Bankruptcy Conference), Hearings on
S 235 and S 236 before the Subcommittee on Improvements in Judicial
Machinery of the Senate Committee on the Judiciary, 94th Cong , 1st
Sess , 125 (1975) (statement of Walter W Vaughan), id , at 464 (statement
of Robert J Grimmig) In general, we find Judge Friendly's careful anal-
ysis of this history for the Court of Appeals, 674 F 2d 144, 152-156 (1982),
to be unassailable
17 Section 542(a) also governs turnovers in liquidation and individual
adjustment of debt proceedings under Chapters 7 and 13 of the Bank-
ruptcy Code, 11 U S C §§701-766, 1301-1330 (1976 ed , Supp V) See
UNITED STATES v WHITING POOLS, INC 209
198 Opinion of the Court
We conclude that the reorganization estate includes prop-
erty of the debtor that has been seized by a creditor prior to
the filing of a petition for reorganization
III
A
We see no reason why a different result should obtain
when the IRS is the creditor The Service is bound by
§542(a) to the same extent as any other secured creditor
The Bankruptcy Code expressly states that the term "en-
tity," used in § 542(a), includes a governmental unit § 101
(14) See Tr of Oral Arg 16 Moreover, Congress care-
fully considered the effect of the new Bankruptcy Code
on tax collection, see generally S Rep No 95-1106 (1978)
(Report of Senate Finance Committee), and decided to pro-
vide protection to tax collectors, such as the IRS, through
grants of enhanced priorities for unsecured tax claims, § 507
(a)(6), and by the nondischarge of tax liabilities, § 523(a)(l)
S Rep No 95-989, pp 14-15 (1978) Tax collectors also
enjoy the generally applicable right under §363(e) to ade-
quate protection for property subject to their liens Noth-
ing m the Bankruptcy Code or its legislative history indi-
cates that Congress intended a special exception for the
tax collector in the form of an exclusion from the estate
of property seized to satisfy a tax hen
B
Of course, if a tax levy or seizure transfers to the IRS
ownership of the property seized, §542(a) may not apply
The enforcement provisions of the Internal Revenue Code of
1954, 26 U S C §§6321-6326 (1976 ed and Supp V), do
grant to the Service powers to enforce its tax liens that are
§ 103(a) Our analysis in this case depends in part on the reorganization
context in which the turnover order is sought We express no view on the
issue whether § 542(a) has the same broad effect m liquidation or adjust-
ment of debt proceedings
210 OCTOBER TERM, 1982
Opinion of the Court 462 U S
greater than those possessed by private secured creditors
under state law See United States v Rodger s, 461 U S
677, 682-683 (1983), id , at 713, 717-718, and n 7 (concurring
in part and dissenting in part), United States v Bess, 357
U S 51, 56-57 (1958) But those provisions do not transfer
ownership of the property to the IRS 18
The Service's interest in seized property is its lien on that
property The Internal Revenue Code's levy and seizure
provisions, 26 U S C §§6331 and 6332, are special proce-
18 It could be argued that dictum in Phelps v United States, 421 U S
330 (1975), suggests the contrary In that case, the IRS had levied on a
fund held by an assignee of the debtor for the benefit of the debtor's credi
tors In a liquidation proceeding under the old Bankruptcy Act, the
trustee sought an order directing the assignee to turn the funds over to the
estate The Court determined that the levy transferred constructive pos-
session of the fund to the Service, thus ousting the bankruptcy court of
jurisdiction Id , at 335-336 In rebutting the trustee's argument that
actual possession by the IRS was necessary to avoid jurisdiction, the Court
stated "The levy gave the United States full legal right to the $38,000
levied upon as against the claim of the petitioner receiver " Id , at 337
This sentence, however, is merely a restatement of the proposition that the
levy gave the Service a sufficient possessory interest to avoid the bank-
ruptcy court's summary jurisdiction The proposition is now irrelevant
because of the expanded jurisdiction of bankruptcy courts under the Bank-
ruptcy Code See n 13, supra
The Court in Phelps made a similar statement in discussing the trustee's
claim that § 70a(8) of the old Bankruptcy Act, 11 U S C § 110(a)(8)
(trustee is vested "with the title of the bankrupt as of the date of the filing
of the petition to property held by an assignee for the benefit of
creditors"), continued constructive possession of the property in the estate,
notwithstanding the prepetition levy 421 U S , at 337, n 8 The Court
rejected this claim It first cited the trustee's concession that the debtor
had surrendered title upon conveying the property to the assignee, ibid ,
and held that, because the debtor did not hold title to the property as of the
date of filing, the property was not covered by § 70a(8) The Court went
on, however, to state that "the prebankruptcy levy displaced any title of
[the debtor] and § 70a(8) is therefore inapplicable " Ibid Because the
initial conveyance of the property to the assignee was said to have extin-
guished the debtor's claim, this latter statement perhaps was unnecessary
to our decision
UNITED STATES v WHITING POOLS, INC 211
198 Opinion of the Court
dural devices available to the IRS to protect and satisfy its
hens, United States v Sullivan, 333 F 2d 100, 116 (CA3
1964), and are analogous to the remedies available to private
secured creditors See Uniform Commercial Code § 9-503,
3A U L A 211-212 (1981), n 14, supra They are provi-
sional remedies that do not determine the Service's rights to
the seized property, but merely bring the property into the
Service's legal custody See 4 B Bittker, Federal Taxation
of Income, Estates and Gifts Hill 5 5, p 111-108 (1981)
See generally Plumb, Federal Tax Collection and Lien Prob-
lems (First Installment), 13 Tax L Rev 247, 272 (1958) At
no point does the Service's interest in the property exceed
the value of the hen United States v Rodger 's, 461 U S , at
690-691, id , at 724 (concurring m part and dissenting in
part), see United States v Sullivan, 333 F 2d, at 116 ("the
Commissioner acts pursuant to the collection process in the
capacity of henor as distinguished from owner '0 The IRS is
obligated to return to the debtor any surplus from a sale 26
USC §6342(b) Ownership of the property is trans-
ferred only when the property is sold to a bona fide purchaser
at a tax sale See Bennett v Hunter, 9 Wall 326, 336 (1870),
26 U S C § 6339(a)(2), Plumb, 13 Tax L Rev , at 274-275
In fact, the tax sale provision itself refers to the debtor as
the owner of the property after the seizure but prior to the
sale 19 Until such a sale takes place, the property remains
the debtor's and thus is subject to the turnover requirement
of §542(a)
IV
When property seized prior to the filing of a petition is
drawn into the Chapter 11 reorganization estate, the Serv-
ice's tax hen is not dissolved, nor is its status as a secured
creditor destroyed The IRS, under § 363(e), remains enti-
19 See 26 U S C §6335(a) ("As soon as practicable after seizure of prop-
erty, notice in writing shall be given by the Secretary to the owner of the
property"), and § 6335(b) ("The Secretary shall as soon as practicable after
the seizure of the property give notice to the owner")
212 OCTOBER TERM, 1982
Opinion of the Court 462 U. S.
tied to adequate protection for its interests, to other rights
enjoyed by secured creditors, and to the specific privileges
accorded tax collectors. Section 542(a) simply requires the
Service to seek protection of its interest according to the con-
gressionally established bankruptcy procedures, rather than
by withholding the seized property from the debtor's efforts
to reorganize.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
ILLINOIS v GATES 213
Syllabus
ILLINOIS v GATES ET ux
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
No 81-430 Argued October 13, 1982 — Reargued March 1, 1983 —
Decided June 8, 1983
On May 3, 1978, the Police Department of Bloomingdale, 111 , received an
anonymous letter which included statements that respondents, husband
and wife, were engaged in selling drugs, that the wife would drive their
car to Florida on May 3 to be loaded with drugs, and the husband would
fly down in a few days to drive the car back, that the car's trunk would
be loaded with drugs, and that respondents presently had over $100,000
worth of drugs in then- basement Acting on the tip, a police officer de-
termined respondents' address and learned that the husband made a res-
ervation on a May 5 flight to Florida Arrangements for surveillance of
the flight were made with an agent of the Drug Enforcement Adminis-
tration (DEA), and the surveillance disclosed that the husband took the
flight, stayed overnight in a motel room registered in the wife's name,
and left the following morning with a woman in a car bearing an Illinois
license plate issued to the husband, heading north on an interstate high-
way used by travelers to the Bloomingdale area A search warrant for
respondents' residence and automobile was then obtained from an Illinois
state-court judge, based on the Bloomingdale police officer's affidavit
setting forth the foregoing facts and a copy of the anonymous letter
When respondents arrived at their home, the police were waiting and
discovered marihuana and other contraband in respondents' car trunk
and home Prior to respondents' trial on charges of violating state drug
laws, the trial court ordered suppression of all the items seized, and the
Illinois Appellate Court affirmed The Illinois Supreme Court also af-
firmed, holding that the letter and affidavit were inadequate to sustain a
determination of probable cause for issuance of the search warrant under
Agmlar v Texas, 378 U S 108, and Spinelh v United States, 393 U S
410, since they failed to satisfy the "two-pronged test" of (1) revealing
the informant's "basis of knowledge" and (2) providing sufficient facts to
establish either the informant's "veracity" or the "reliability" of the in-
formant's report
Held
1 The question — which this Court requested the parties to address —
whether the rule requiring the exclusion at a criminal trial of evidence
obtained in violation of the Fourth Amendment should be modified so as,
for example, not to require exclusion of evidence obtained in the reason-
214 OCTOBER TERM, 1982
Syllabus 462 U S
able belief that the search and seizure at issue was consistent with the
Fourth Amendment will not be decided in this case, since it was not pre
sented to or decided by the Illinois courts Although prior decisions in
terpretmg the "not pressed or passed on below" rule have not involved a
State's failure to raise a defense to a federal right or remedy asserted
below, the purposes underlying the rule are, for the most part, as appli
cable m such a case as in one where a party fails to assert a federal right
The fact that the Illinois courts affirmatively applied the federal exclu
sionary rule does not affect the application of the "not pressed or passed
on below" rule Nor does the State's repeated opposition to respond
ents' substantive Fourth Amendment claims suffice to have raised the
separate question whether the exclusionary rule should be modified
The extent of the continued vitality of the rule is an issue of unusual sig
mficance, and adhering scrupulously to the customary limitations on this
Court's discretion promotes respect for its adjudicatory process and the
stability of its decisions, and lessens the threat of untoward practical
ramifications not foreseen at the time of decision Pp 217-224
2 The rigid "two-pronged test" under Agmlar and Spinelh for deter
mining whether an informant's tip establishes probable cause for issu
ance of a warrant is abandoned, and the "totality of the circumstances"
approach that traditionally has informed probable-cause determinations
is substituted in its place The elements under the "two-pronged test"
concerning the informant's "veracity," "reliability," and "basis of knowl
edge" should be understood simply as closely intertwined issues that
may usefully illuminate the common-sense, practical question whether
there is "probable cause" to believe that contraband or evidence is lo-
cated in a particular place The task of the issuing magistrate is simply
to make a practical, common-sense decision whether, given all the cir-
cumstances set forth in the affidavit before him, there is a fair probabil-
ity that contraband or evidence of a crime will be found in a particular
place And the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause ex-
isted This flexible, easily applied standard will better achieve the ac-
commodation of public and private interests that the Fourth Amendment
requires than does the approach that has developed from Aguilar and
Spinelh Pp 230-241
3 The judge issuing the warrant had a substantial basis for conclud-
ing that probable cause to search respondents' home and car existed
Under the "totality of the circumstances" analysis, corroboration of de-
tails of an informant's tip by independent police work is of significant
value Cf Draper v United States, 358 U S 307 Here, even stand-
ing alone, the facts obtained through the independent investigation of
the Bloomingdale police officer and the DEA at least suggested that
ILLINOIS v GATES 215
213 Syllabus
respondents were involved in drug trafficking In addition, the judge
could rely on the anonymous letter, which had been corroborated in
major part by the police officer's efforts Pp 241-246
85 111 2d 376, 423 N E 2d 887, reversed
REHNQUIST, J , delivered the opinion of the Court, in which BURGER,
C J , and BLACKMUN, POWELL, and O'CONNOR, JJ , joined WHITE, J ,
filed an opinion concurring in the judgment, post, p 246 BRENNAN, J ,
filed a dissenting opinion, in which MARSHALL, J , joined, post, p 274
STEVENS, J , filed a dissenting opinion, in which BRENNAN, J , joined,
post, p 291
Paul P Biebel, Jr , First Assistant Attorney General of
Illinois, reargued the cause for petitioner With him on the
briefs on reargument were Tyrone C Fahner, former Attor-
ney General, Neil F Hartigan, Attorney General, Michael
A Ficaro and Morton E Friedman, Assistant Attorneys
General, Daniel M Hams, and James B Zagel With him
on the briefs on the original argument were Messrs Fahner
and Harris
Solicitor General Lee argued the cause on reargument for
the United States as amicus curiae urging reversal With
him on the brief on reargument were Assistant Attorney
General Jensen, Deputy Solicitor General Frey, Kathryn A
Oberly, Geoffrey S Stewart, and Robert J Enckson With
him on the brief on the original argument were Mr Jensen,
Alan I Horowitz, and David B Smith
James W Reilley reargued the cause for respondents
With him on the brief on reargument were Barry E Witlin
and Thomas Y Davies With him on the brief on the orig-
inal argument were Mr Witlin, Allan A Ackerman, and
Clyde W Woody *
*Bnefs of amici curiae urging reversal were filed by George Deukme-
jian, Attorney General, Robert H Phthbosian, Chief Assistant Attorney
General, William D Stein, Assistant Attorney General, and Clifford K
Thompson, Jr , Deputy Attorney General, for the State of California, by
Fred E Inbau, Wayne W Schmidt, James P Manak, Patrick F Healy,
William K Lambie, and James A Murphy for Americans for Effective
Law Enforcement, Inc , et al , by Robert L Toms, Evelle J Younger,
216 OCTOBER TERM, 1982
Opinion of the Court 462 U S
JUSTICE REHNQUIST delivered the opinion of the Court
Respondents Lance and Susan Gates were indicted for vi-
olation of state drug laws after police officers, executing a
search warrant, discovered marihuana and other contraband
in their automobile and home Prior to trial the Gateses
moved to suppress evidence seized during this search The
Illinois Supreme Court affirmed the decisions of lower state
courts granting the motion 85 111 2d 376, 423 N E 2d 887
(1981) It held that the affidavit submitted in support of the
State's application for a warrant to search the Gateses' prop-
G Joseph Bertain, Jr , and Lloyd F Dunn for Laws at Work et al , and
by Newman A Flanagan, Jack E Yelverton, James P Manak, Edwin
L Miller, Jr , Austin J McGuigan, and John M Massameno for the
National District Attorneys Association, Inc
Briefs of amici curiae urging affirmance were filed by Sidney Bernstein
and Howard A Specter for the Association of Trial Lawyers of America, by
John C Feirich, Melvin B Lewis, Joshua Sachs, and Michael J Costello
for the Illinois State Bar Association, by Herman Kaufman and Edward
M Chikofsky for the New York Criminal Bar Association, and by James
M Doyle for the Legal Internship Program, Georgetown University Law
Center
Briefs of amici curiae were filed by Jim Smith, Attorney General, and
Lawrence A Kaden and Raymond L Marky, Assistant Attorneys Gen
eral, for the State of Florida et al , by Gerald Baliles, Attorney General,
and Jacqueline G Epps, Senior Assistant Attorney General, for the Com-
monwealth of Virginia, by Moms Harrell, William W Greenhalgh, Wil
liam J Mertens, and Steven H Goldblatt for the American Bar Associa
tion, by Charles S Sims and Burt Neuborne for the American Civil
Liberties Union et al , by Peter L Zimroth and Barbara D Underwood for
the Committee on Criminal Law of the Association of the Bar of the City of
New York, by Marshall W Krause, Quin Denwr, Steffan B Imhoff, and
Paul Edward Bell for the National Association of Criminal Defense Law-
yers et al , by Kenneth M Mogill for the National Legal Aid and Defender
Association, by Frank G Carrmgton, Jr , Griffin B Bell, Wayne W
Schmidt, Alan Dye, Thomas Hendnckson, Courtney A Evans, Rufus
L Edmisten, Dawd S Crump, HvwardA Kramer, Ronald A Zumbrun,
John H Findley, Wayne T Elliott, G Stephen Parker, and Joseph
E Scuro for Seven Former Members of the Attorney General of the
United States' Task Force on Violent Crime (1981) et al , and by Dan
Johnston, pro se, for the County Attorney of Polk County, Iowa
ILLINOIS v GATES 217
213 Opinion of the Court
erty was inadequate under this Court's decisions in Agmlar
v Texas, 378 U S 108 (1964), and Spinelli v United States,
393 U S 410(1969)
We granted certioran to consider the application of the
Fourth Amendment to a magistrate's issuance of a search
warrant on the basis of a partially corroborated anonymous
informant's tip 454 U S 1140 (1982) After receiving
briefs and hearing oral argument on this question, however,
we requested the parties to address an additional question
"[WJhether the rule requiring the exclusion at a criminal
trial of evidence obtained in violation of the Fourth
Amendment, Mapp v Ohio, 367 U S 643 (1961), Weeks
v United States, 232 U S 383 (1914), should to any ex-
tent be modified, so as, for example, not to require the
exclusion of evidence obtained in the reasonable belief
that the search and seizure at issue was consistent with
the Fourth Amendment " 459 U S 1028 (1982)
We decide today, with apologies to all, that the issue we
framed for the parties was not presented to the Illinois courts
and, accordingly, do not address it Rather, we consider the
question originally presented in the petition for certiorari,
and conclude that the Illinois Supreme Court read the re-
quirements of our Fourth Amendment decisions too restric-
tively Initially, however, we set forth our reasons for not
addressing the question regarding modification of the exclu-
sionary rule framed in our order of November 29, 1982 Ibid
Our certiorari jurisdiction over decisions from state courts
derives from 28 U S C § 1257, which provides that "[f Jmal
judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by
the Supreme Court as follows (3) By writ of certiorari,
where any title, right, privilege or immunity is specially
set up or claimed under the Constitution, treaties or statutes
218 OCTOBER TERM, 1982
Opinion of the Court 462 U S
of the United States " The provision derives, albeit with
important alterations, see, e g , Act of Dec 23, 1914, ch 2,
38 Stat 790, Act of June 25, 1948, § 1257, 62 Stat 929, from
the Judiciary Act of 1789, §25, 1 Stat 85
Although we have spoken frequently on the meaning of
§ 1257 and its predecessors, our decisions are in some re-
spects not entirely clear We held early on that § 25 of the
Judiciary Act of 1789 furnished us with no jurisdiction unless
a federal question had been both raised and decided in the
state court below As Justice Story wrote in Crowell v
Randell, 10 Pet 368, 392 (1836) "If both of these require-
ments do not appear on the record, the appellate jurisdiction
fails " See also Owings v Norwood's Lessee, 5 Cranch 344
(1809) *
More recently, in McGoldnck v Compagme Generate
Transatlantique, 309 U S 430, 434-435 (1940), the Court
observed
"But it is also the settled practice of this Court, in the
exercise of its appellate jurisdiction, that it is only in ex-
ceptional cases, and then only in cases coming from the
federal courts, that it considers questions urged by a
petitioner or appellant not pressed or passed upon in the
courts below In cases coming here from state courts
in which a state statute is assailed as unconstitutional,
there are reasons of peculiar force which should lead
us to refrain from deciding questions not presented or
decided in the highest court of the state whose judicial
action we are called upon to review Apart from the
'The apparent rule of Crowell v Randell that a federal claim have been
both raised and addressed in state court was generally not understood in
the literal fashion in which it was phrased See R Robertson & F Kirk-
ham, Jurisdiction of the Supreme Court of the United States § 60 (1951)
Instead, the Court developed the rule that a claim would not be considered
here unless it had been either raised or squarely considered and resolved in
state court See, e g , McGoldnck v Compagnw Generate Transatlan
iique, 309 U S 430, 434-435 (1940), State Farm Mutual Ins Co v Duel,
324 U S 154, 160 (1945)
ILLINOIS v GATES 219
213 Opinion of the Court
reluctance with which every court should proceed to set
aside legislation as unconstitutional on grounds not prop-
erly presented, due regard for the appropriate relation-
ship of this Court to state courts requires us to decline to
consider and decide questions affecting the validity of
state statutes not urged or considered there It is for
these reasons that this Court, where the constitutional-
ity of a statute has been upheld m the state court, con-
sistently refuses to consider any grounds of attack not
raised or decided in that court "
Finally, the Court seemed to reaffirm the jurisdictional char-
acter of the rule against our deciding claims "not pressed nor
passed upon" in state court in State Farm Mutual Auto-
mobile Ins Co v Duel, 324 U S 154, 160 (1945), where we
explained that "[s]mce the [State] Supreme Court did not
pass on the question, we may not do so " See also Hill v
California, 401 U S 797, 805-806 (1971)
Notwithstanding these decisions, however, several of our
more recent cases have treated the so-called "not pressed or
passed upon below" rule as merely a prudential restriction
In Terminiello v Chicago, 337 U S 1 (1949), the Court re-
versed a state criminal conviction on a ground not urged in
state court, nor even in this Court Likewise, in Vachon v
New Hampshire, 414 U S 478 (1974), the Court summarily
reversed a state criminal conviction on the ground, not raised
in state court, or here, that it had been obtained in violation
of the Due Process Clause of the Fourteenth Amendment
The Court indicated in a footnote, id , at 479, n 3, that it
possessed discretion to ignore the failure to raise in state
court the question on which it decided the case
In addition to this lack of clarity as to the character of the
"not pressed or passed upon below" rule, we have recognized
that it often may be unclear whether the particular federal
question presented in this Court was raised or passed upon
below In Dewey v Des Homes, 173 U S 193, 197-198
(1899), the fullest treatment of the subject, the Court said
220 OCTOBER TERM, 1982
Opinion of the Court 462 U S
that "[i]f the question were only an enlargement of the one
mentioned in the assignment of errors, or if it were so con-
nected with it in substance as to form but another ground or
reason for alleging the invalidity of the [lower court's] judg-
ment, we should have no hesitation in holding the assignment
sufficient to permit the question to be now raised and argued
Parties are not confined here to the same arguments which
were advanced in the courts below upon a Federal question
there discussed "2 We have not attempted, and likely would
not have been able, to draw a clear-cut line between cases in-
volving only an "enlargement" of questions presented below
and those involving entirely new questions
The application of these principles in the instant case is not
entirely straightforward It is clear in this case that re-
spondents expressly raised, at every level of the Illinois judi-
cial system, the claim that the Fourth Amendment had been
violated by the actions of the Illinois police and that the evi-
dence seized by the officers should be excluded from their
trial It also is clear that the State challenged, at every level
of the Illinois court system, respondents' claim that the sub-
stantive requirements of the Fourth Amendment had been
violated The State never, however, raised or addressed
the question whether the federal exclusionary rule should
be modified in any respect, and none of the opinions of the
2 In Dewey, certain assessments had been levied against the owner of
property abutting a street paved by the city, a state trial court ordered
that the property be forfeited when the assessments were not paid, and in
addition, held the plaintiff in error personally liable for the amount by
which the assessments exceeded the value of the lots In state court the
plaintiff in error argued that the imposition of personal liability against him
violated the Due Process Clause of the Fourteenth Amendment, because
he had not received personal notice of the assessment proceedings In this
Court, he also attempted to argue that the assessment itself constituted a
taking under the Fourteenth Amendment The Court held that, beyond
arising from a single factual occurrence, the two claims "are not m anywise
necessarily connected," 173 U S , at 198 Because of this, we concluded
that the plaintiff in error's taking claim could not be considered
ILLINOIS v GATES 221
213 Opinion of the Court
Illinois courts give any indication that the question was
considered
The case, of course, is before us on the State's petition for
a writ of certioran Since the Act of Dec 23, 1914, ch 2,
38 Stat 790, jurisdiction has been vested in this Court to re-
view state-court decisions even when a claimed federal right
has been upheld Our prior decisions interpreting the "not
pressed or passed on below" rule have not, however, in-
volved a State's failure to raise a defense to a federal right or
remedy asserted below As explained below, however, we
can see no reason to treat the State's failure to have chal-
lenged an asserted federal claim differently from the failure
of the proponent of a federal claim to have raised that claim
We have identified several purposes underlying the "not
pressed or passed upon" rule for the most part, these are as
applicable to the State's failure to have opposed the assertion
of a particular federal right, as to a party's failure to have
asserted the claim First, "[q]uestions not raised below are
those on which the record is very likely to be inadequate
since it certainly was not compiled with those questions in
mind " Cardinale v Louisiana, 394 U S 437, 439 (1969)
Exactly the same difficulty exists when the State urges modi-
fication of an existing constitutional right or accompanying
remedy Here, for example, the record contains little, if
anything, regarding the subjective good faith of the police
officers that searched the Gateses' property — which might
well be an important consideration in determining whether to
fashion a good-faith exception to the exclusionary rule Our
consideration of whether to modify the exclusionary rule
plainly would benefit from a record containing such facts
Likewise, "due regard for the appropriate relationship of
this Court to state courts," McGoldnck v Compagnie
Generate Transatlantique, 309 U S , at 434-435, demands
that those courts be given an opportunity to consider the con-
stitutionality of the actions of state officials, and, equally
important, proposed changes in existing remedies for uncon-
222 OCTOBER TERM, 1982
Opinion of the Court 462 U S
stitutional actions Finally, by requiring that the State first
argue to the state courts that the federal exclusionary rule
should be modified, we permit a state court, even if it agrees
with the State as a matter of federal law, to rest its decision
on an adequate and independent state ground See Car-
dinale, supra, at 439 Illinois, for example, adopted an ex-
clusionary rule as early as 1923, see People v Brocamp, 307
111 448, 138 N E 728 (1923), and might adhere to its view
even if it thought we would conclude that the federal rule
should be modified In short, the reasons supporting our
refusal to hear federal claims not raised in state court apply
with equal force to the State's failure to challenge the avail-
ability of a well-settled federal remedy Whether the "not
pressed or passed upon below" rule is junsdictional, as our
earlier decisions indicate, see supra, at 217-219, or pruden-
tial, as several of our later decisions assume, or whether its
character might be different in cases like this from its charac-
ter elsewhere, we need not decide Whatever the character
of the rule may be, consideration of the question presented in
our order of November 29, 1982, would be contrary to the
sound justifications for the "not pressed or passed upon
below" rule, and we thus decide not to pass on the issue
The fact that the Illinois courts affirmatively applied the
federal exclusionary rule — suppressing evidence against re-
spondents—does not affect our conclusion In Morrison v
Watson 154 U S 111 (1894), the Court was asked to con-
sider whether a state statute impaired the plaintiff in error's
contract with the defendant in error It declined to hear
the case because the question presented here had not been
pressed or passed on below The Court acknowledged that
Si* C°^8 °pmion had restated the conclusion, set
tortfa in an earher decision of that court, that the state statute
^Pf™*^ impair contractual obligations None-
f at there was no Bowing that "there was
lT^at *** Stage of tms «« uP°n the point," id ,
, and that without such a contest, the routine restate-
ILLINOIS v GATES 223
213 Opinion of the Court
ment and application of settled law by an appellate court did
not satisfy the "not pressed or passed upon below" rule
Similarly, in the present case, although the Illinois courts ap-
plied the federal exclusionary rule, there was never "any real
contest" upon the point The application of the exclusionary
rule was merely a routine act, once a violation of the Fourth
Amendment had been found, and not the considered judg-
ment of the Illinois courts on the question whether applica-
tion of a modified rule would be warranted on the facts of this
case In such circumstances, absent the adversarial dispute
necessary to apprise the state court of the arguments for not
applying the exclusionary rule, we will not consider the ques-
tion whether the exclusionary rule should be modified
Likewise, we do not believe that the State's repeated oppo-
sition to respondents' substantive Fourth Amendment claims
suffices to have raised the question whether the exclusionary
rule should be modified The exclusionary rule is "a judi-
cially created remedy designed to safeguard Fourth Amend-
ment rights generally" and not "a personal constitutional
right of the party aggrieved " United States v Calandra,
414 U S 338, 348 (1974) The question whether the exclu-
sionary rule's remedy is appropriate in a particular context
has long been regarded as an issue separate from the ques-
tion whether the Fourth Amendment rights of the party
seeking to invoke the rule were violated by police conduct
See, e g , United States v Havens, 446 U S 620 (1980),
United States v Ceccolim, 435 U S 268 (1978), United
States v Calandra, supra, Stone v Powell, 428 U S 465
(1976) Because of this distinction, we cannot say that modi-
fication or abolition of the exclusionary rule is "so connected
with [the substantive Fourth Amendment right at issue] as
to form but another ground or reason for alleging the invalid-
ity" of the judgment Dewey v Des Moines, 173 U S , at
197-198 Rather, the rule's modification was, for purposes
of the "not pressed or passed upon below" rule, a separate
claim that had to be specifically presented to the state courts
224 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Finally, weighty prudential considerations militate against
our considering the question presented in our order of No-
vember 29, 1982 The extent of the continued vitality of the
rules that have developed from our decisions in Weeks v
United States, 232 U S 383 (1914), and Mapp v Ohio, 367
U S 643 (1961), is an issue of unusual significance Suffi-
cient evidence of this lies just in the comments on the issue
that Members of this Court recently have made, e g , Bwens
v Six Unknown Fed Narcotics Agents, 403 U S 388, 415
(1971) (BURGER, C J , dissenting), Coohdge v New Hamp-
shire, 403 U S 443, 490 (1971) (Harlan, J , concurring), id ,
at 502 (Black, J , dissenting), Stone v Powell, supra, at
537-539 (WHITE, J , dissenting), Brewer v Williams, 430
U S 387, 413-414 (1977) (POWELL, J , concurring), Bobbins
v California, 453 U S 420, 437, 443-444 (1981) (REHN-
QUIST, J , dissenting) Where difficult issues of great public
importance are involved, there are strong reasons to adhere
scrupulously to the customary limitations on our discretion
By doing so we "promote respect for the Court's adjudi-
catory process [and] the stability of [our] decisions " Mapp
v Ohio, 367 U S , at 677 (Harlan, J , dissenting) More-
over, fidelity to the rule guarantees that a factual record
will be available to us, thereby discouraging the framing of
broad rules, seemingly sensible on one set of facts, which
may prove iH-considered in other circumstances In Justice
Harlan's words, adherence to the rule lessens the threat
of "untoward practical ramifications/' id , at 676 (dissenting
opinion), not foreseen at the time of decision The public im-
portance of our decisions in Weeks and Mapp and the emo-
tions engendered by the debate surrounding these decisions
counsel that we meticulously observe our customary proce-
dtoral rules By following this course, we promote respect
fer the procedures by which our decisions are rendered, as
well as confidence in the stability of prior decisions A wise
exemse of the powers confided in this Court dictates that we
reserve for another day the question whether the exclusion-
ary rule should be modified
ILLINOIS v GATES 225
213 Opinion of the Court
II
We now turn to the question presented in the State's origi-
nal petition for certiorari, which requires us to decide
whether respondents' rights under the Fourth and Four-
teenth Amendments were violated by the search of their car
and house A chronological statement of events usefully in-
troduces the issues at stake Bloommgdale, 111 , is a suburb
of Chicago located m Du Page County On May 3, 1978, the
Bloommgdale Police Department received by mail an anony-
mous handwritten letter which read as follows
"This letter is to inform you that you have a couple in
your town who strictly make their living on selling
drugs They are Sue and Lance Gates, they live on
Greenway, off Bloommgdale Rd in the condominiums
Most of their buys are done in Florida Sue his wife
drives their car to Florida, where she leaves it to be
loaded up with drugs, then Lance flys down and drives it
back Sue flys back after she drops the car off in Flor-
ida May 3 she is driving down there again and Lance
will be flying down in a few days to drive it back At
the time Lance drives the car back he has the trunk
loaded with over $100,000 00 in drugs Presently they
have over $100,000 00 worth of drugs in their basement
"They brag about the fact they never have to work,
and make their entire living on pushers
"I guarantee if you watch them carefully you will make
a big catch They are friends with some big drugs
dealers, who visit their house often
"Lance & Susan Gates
"Greenway
"in Condominiums"
The letter was referred by the Chief of Police of the Bloom-
mgdale Police Department to Detective Mader, who decided
to pursue the tip Mader learned, from the office of the Illi-
nois Secretary of State, that an Illinois driver's license had
226 OCTOBER TERM, 1982
Opinion of the Court 462 U S
been issued to one Lance Gates, residing at a stated address
in Bloommgdale He contacted a confidential informant,
whose examination of certain financial records revealed a
more recent address for the Gateses, and he also learned from
a police officer assigned to O'Hare Airport that "L Gates"
had made a reservation on Eastern Airlines Flight 245 to
West Palm Beach, Fla , scheduled to depart from Chicago on
May 5 at 4 15 p m
Mader then made arrangements with an agent of the Drug
Enforcement Administration for surveillance of the May 5
Eastern Airlines flight The agent later reported to Mader
that Gates had boarded the flight, and that federal agents in
Florida had observed him arrive in West Palm Beach and
take a taxi to the nearby Hobday Inn They also reported
that Gates went to a room registered to one Susan Gates and
that, at 7 o'clock the next morning, Gates and an unidentified
woman left the motel in a Mercury bearing Illinois license
plates and drove northbound on an interstate highway fre-
quently used by travelers to the Chicago area In addition,
the DEA agent informed Mader that the license plate num-
ber on the Mercury was registered to a Hornet station wagon
owned by Gates The agent also advised Mader that the
driving time between West Palm Beach and Bloommgdale
was approximately 22 to 24 hours
Mader signed an affidavit setting forth the foregoing facts,
and submitted it to a judge of the Circuit Court of Du Page
County, together with a copy of the anonymous letter The
judge of that court thereupon issued a search warrant for the
Gateses' residence and for their automobile The judge, in
deciding to issue the warrant, could have determined that the
modus operandi of the Gateses had been substantially cor-
roborated As the anonymous letter predicted, Lance Gates
had flown from Chicago to West Palm Beach late in the after-
noon of May 5th, had checked into a hotel room registered m
the name of his wife, and, at 7 o'clock the following morning,
had headed north, accompanied by an unidentified woman,
ILLINOIS v GATES 227
213 Opinion of the Court
out of West Palm Beach on an interstate highway used by
travelers from South Florida to Chicago in an automobile
bearing a license plate issued to him
At 5 15 a m on March 7, only 36 hours after he had flown
out of Chicago, Lance Gates, and his wife, returned to their
home in Bloommgdale, driving the car in which they had left
West Palm Beach some 22 hours earlier The Bloommgdale
police were awaiting them, searched the trunk of the Mer-
cury, and uncovered approximately 350 pounds of marihuana
A search of the Gateses7 home revealed marihuana, weapons,
and other contraband The Illinois Circuit Court ordered
suppression of all these items, on the ground that the affida-
vit submitted to the Circuit Judge failed to support the nec-
essary determination of probable cause to believe that the
Gateses' automobile and home contained the contraband in
question This decision was affirmed in turn by the Illinois
Appellate Court, 82 111 App 3d 749, 403 N E 2d 77 (1980),
and by a divided vote of the Supreme Court of Illinois 85
111 2d 376, 423 N E 2d 887 (1981)
The Illinois Supreme Court concluded — and we are inclined
to agree — that, standing alone, the anonymous letter sent to
the Bloommgdale Police Department would not provide the
basis for a magistrate's determination that there was prob-
able cause to believe contraband would be found in the
Gateses' car and home The letter provides virtually noth-
ing from which one might conclude that its author is either
honest or his information reliable, likewise, the letter gives
absolutely no indication of the basis for the writer's predic-
tions regarding the Gateses' criminal activities Something
more was required, then, before a magistrate could conclude
that there was probable cause to believe that contraband
would be found in the Gateses' home and car See Agmlar
v Texas, 378 U S , at 109, n 1, Nathanson v United States,
290 U S 41 (1933)
The Illinois Supreme Court also properly recognized that
Detective Mader's affidavit might be capable of supplement-
228 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ing the anonymous letter with information sufficient to per-
mit a determination of probable cause See Whiteley v
Warden, 401 U S 560, 567 (1971) In holding that the affi-
davit in fact did not contain sufficient additional information
to sustain a determination of probable cause, the Illinois
court applied a "two-pronged test/' derived from our decision
in Spinelh v United States, 393 U S 410 (1969) 3 The Illi-
nois Supreme Court, like some others, apparently understood
Spinelh as requiring that the anonymous letter satisfy each
of two independent requirements before it could be relied
on 85 111 2d, at 383, 423 N E 2d, at 890 According
to this view, the letter, as supplemented by Mader's affida-
vit, first had to adequately reveal the "basis of knowledge" of
the letterwriter — the particular means by which he came by
the information given in his report Second, it had to pro-
8 In Spinelh, police officers observed Mr Spinelh going to and from a
particular apartment, which the telephone company said contained two
telephones with stated numbers The officers also were "informed by a
confidential reliable informant that William Spinelh [was engaging in illegal
gambling activities]" at the apartment, and that he used two phones, with
numbers corresponding to those possessed by the police 393 U S , at
414 The officers submitted an affidavit with this information to a magis-
trate and obtained a warrant to search Spmelh's apartment We held that
the magistrate could have made his determination of probable cause only
by "abdicating his constitutional function," id , at 416 The Government's
affidavit contained absolutely no information regarding the informant's
reliability Thus, it did not satisfy Agmlar^B requirement that such affi-
davits contain "some of the underlying circumstances" indicating that "the
informant was 'credible' " or that "his information [was] 'reliable ' "
Agmlar v Texas, 378 U S 108, 114 (1964) In addition, the tip failed to
satisfy Agmla^s requirement that it detail "some of the underlying circum-
stances from which the informant concluded that narcotics were where
he claimed they were " Ibid We also held that if the tip concerning
Spinelh had contained "sufficient detail" to permit the magistrate to con-
clude "that he [was] relying on something more substantial than a casual
rumor circulating in the underworld or an accusation based merely on an
individual's general reputation," 393 U S , at 416, then he properly could
have relied on it, we thought, however, that the tip lacked the requisite
detail to permit this "self-verifying detail" analysis
ILLINOIS v GATES 229
213 Opinion of the Court
vide facts sufficiently establishing either the "veracity" of the
affiant's informant, or, alternatively, the "reliability" of the
informant's report in this particular case
The Illinois court, alluding to an elaborate set of legal rules
that have developed among various lower courts to enforce
the "two-pronged test,"4 found that the test had not been sat-
isfied First, the "veracity" prong was not satisfied because,
"[t]here was simply no basis [for] concluding] that the anony-
mous person [who wrote the letter to the Bloommgdale
Police Department] was credible " Id , at 385, 423 N E 2d,
at 891 The court indicated that corroboration by police of
details contained in the letter might never satisfy the "verac-
ity" prong, and in any event, could not do so if, as in the
present case, only "innocent" details are corroborated Id ,
at 390, 423 N E 2d, at 893 In addition, the letter gave
no indication of the basis of its writer's knowledge of the
4 See, e g , Stanley v State, 19 Md App 507, 313 A 2d 847 (1974) In
summary, these rules posit that the "veracity" prong of the Spinelh test
has two "spurs" — the informant's "credibility" and the "reliability" of his
information Various interpretations are advanced for the meaning of the
"reliability" spur of the "veracity" prong Both the "basis of knowledge"
prong and the "veracity" prong are treated as entirely separate require-
ments, which must be independently satisfied in every case in order to sus-
tain a determination of probable cause See n 5, infra Some ancillary
doctrines are relied on to satisfy certain of the foregoing requirements
For example, the "self-verifying detail" of a tip may satisfy the "basis of
knowledge" requirement, although not the "credibility" spur of the "verac-
ity" prong See 85 111 2d, at 388, 423 N E 2d, at 892 Conversely,
corroboration would seem not capable of supporting the "basis of knowl-
edge" prong, but only the "veracity" prong Id , at 390, 423 N E 2d, at
893
The decision in Stanley, while expressly approving and conscientiously
attempting to apply the "two-pronged test" observes that "[t]he built-m
subtleties [of the test] are such, however, that a slipshod application calls
down upon us the fury of Murphy's Law " 19 Md App , at 528, 313 A 2d,
at 860 (footnote omitted) The decision also suggested that it is necessary
to "evolve analogous guidelines [to hearsay rules employed in trial set-
tings] for the reception of hearsay in a probable cause setting " Id , at
522, n 12, 313 A 2d, at 857, n 12
CKToHI-K II- KM ic*xj
opinion (»f th« * man 462 U S
Gate^en* activities The Ilhnoin court understood Spinelh as
permitting the detail contained in 4 tip to be used to infer
that the informant had a reliable ba*m for his statements, but
it thought that the diminvnicmH letter failed to provide suffi-
cient detail to permit such an inference Thus it concluded
that no showing of probable cau**i* had been made
We agree with the Illinois* Supreme Court that an inform-
ant's "veracity," "reliability," and "basis of knowledge" are
all highly relevant in determining the \alue of hib report
We do not agreet however, that these elements should be un-
derstood as entirely separate and independent requirements
to be rigidly exacted in every cane, uhieh the opinion of the
Supreme Court of Illinois would imply Rather, as detailed
below, they should be understood mrnply m closely inter-
twined issues that may usefully illuminate the common-
sense, practical question whether there is 4<probable cause" to
believe that contraband or evidence is located in a particular
place
II!
This totahty*of4he-<*ircumBt^nee8 approach is far more
consistent with our prior treatment of probable cause * than
"The entirely independent character that the Spintlli prongs have as
sumed is indicated both by the opinion of the Illinois Supreme Court m this
case, and by decisions of other courts One frequently cited decision,
Stanley v State, awpra, at 580, 313 A 2df at 861 (footnote omitted), re
marks that "the dual requirements represented by the two-pronged test'
are 'analytically severable' and an 'overkill* on one prong will not carry over
to make up for a deficit on the other prong lf See also n 9, irtfra
6 Our original phrasing of the so-ealled *two-pn>nged test" in Ayutlar v
Texas, supra, suggests that the two prongs were intended simply as
guides to a magistrate's determination of probable cause, not as inflexible,
independent requirements applicable in every ease In A$uilart we re-
quired only that
"the magistrate must be informed of eome of the underlying arcuntstances
from which the informant concluded that narcotics were where he
claimed they were, and some of the underlytny circumstances from which
ILLINOIS v GATES 231
213 Opinion of the Court
is any rigid demand that specific "tests" be satisfied by every
informant's tip Perhaps the central teaching of our deci-
sions bearing on the probable-cause standard is that it is
a "practical, nontechnical conception " Bnnegar v United
States, 338 U S 160, 176 (1949) "In dealing with probable
cause, as the very name implies, we deal with probabil-
ities These are not technical, they are the factual and prac-
tical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act " Id , at 175 Our
observation in United States v Cortez, 449 U S 411, 418
(1981), regarding "particularized suspicion," is also applicable
to the probable-cause standard
"The process does not deal with hard certainties, but
with probabilities Long before the law of probabilities
was articulated as such, practical people formulated cer-
tain common-sense conclusions about human behavior,
jurors as factfinders are permitted to do the same — and
the officer concluded that the informant was 'credible* or his informa-
tion 'reliable '" Id , at 114 (emphasis added)
As our language indicates, we intended neither a rigid compartmentaliza-
tion of the inquiries into an informant's "veracity/* "reliability," and "basis
of knowledge," nor that these inquiries be elaborate exegeses of an inform-
ant's tip Rather, we required only that some facts bearing on two par-
ticular issues be provided to the magistrate Our decision in Jaben v
United States, 381 U S 214 (1965), demonstrated this latter point We
held there that a criminal complaint showed probable cause to believe
the defendant had attempted to evade the payment of income taxes We
commented
"Obviously any reliance upon factual allegations necessarily entails some
degree of reliability upon the credibility of the source Nor does it indi-
cate that each factual allegation which the affiant puts forth must be inde-
pendently documented, or that each and every fact which contributed to
his conclusions be spelled out in the complaint It simply requires that
enough information be presented to the Commissioner to enable him to
make the judgment that the charges are not capricious and are sufficiently
supported to justify bringing into play the further steps of the criminal
process " Id , at 224-225 (emphasis added)
232 OCTOBER TERM, 1982
Opinion of the Court 462 U S
so are law enforcement officers Finally, the evidence
thus collected must be seen and weighed not in terms of
library analysis by scholars, but as understood by those
versed in the field of law enforcement "
As these comments illustrate, probable cause is a fluid con-
cept—turning on the assessment of probabilities m particular
factual contexts— not readily, or even usefully, reduced to a
neat set of legal rules Informants7 tips doubtless come in
many shapes and sizes from many different types of persons
As we said in Adams v Williams, 407 U S 143, 147 (1972)
"Informants' tips, like all other clues and evidence coming to
a policeman on the scene, may vary greatly m their value and
reliability " Rigid legal rules are ill-suited to an area of such
diversity "One simple rule will not cover every situation "
Ibid1
7 The diversity of informants' tips, as well as the usefulness of the total
ity of-the circumstances approach to probable cause, is reflected m our
prior decisions on the subject In Jones v United States, 362 U S 257,
271 (1960), we held that probable cause to search petitioners' apartment
was established by an affidavit based principally on an informant's tip
The unnamed informant claimed to have purchased narcotics from petition
ers at their apartment, the affiant stated that he had been given correct
information from the informant on a prior occasion This, and the fact that
petitioners had admitted to police officers on another occasion that they
were narcotics users, sufficed to support the magistrate's determination of
probable cause
Likewise, in Rugendorfv United States, 376 U S 528 (1964), the Court
upheld a magistrate's determination that there was probable cause to be
lieve that certain stolen property would be found in petitioner's apartment
The affidavit submitted to the magistrate stated that certain furs had been
stolen, and that a confidential informant, who previously had furnished
confidential information, said that he saw the furs m petitioner's home
Moreover, another confidential informant, also claimed to be reliable,
stated that one Schweihs had stolen the furs Police reports indicated that
petitioner had been seen in Schweihs' company, and a third informant
stated that petitioner was a fence for Schweihs
Finally, in Ker v California, 374 U S 23 (1963), we held that informa-
tion within the knowledge of officers who searched the Kers' apartment
provided them with probable cause to believe drugs would be found there
The officers were aware that one Murphy had previously sold marihuana
ILLINOIS v GATES 233
213 Opinion of the Court
Moreover, the "two-pronged test" directs analysis into two
largely independent channels — the informant's "veracity" or
"reliability" and his "basis of knowledge " See nn 4 and
5, supra There are persuasive arguments against accord-
ing these two elements such independent status Instead,
they are better understood as relevant considerations in the
totality-of-the-circumstances analysis that traditionally has
guided probable-cause determinations a deficiency in one
may be compensated for, in determining the overall reliabil-
ity of a tip, by a strong showing as to the other, or by some
other indicia of reliability See, e g , Adams v Williams,
supra, at 146-147, United States v Hams, 403 U S 573
(1971)
If, for example, a particular informant is known for the un-
usual reliability of his predictions of certain types of criminal
activities in a locality, his failure, in a particular case, to thor-
oughly set forth the basis of his knowledge surely should not
serve as an absolute bar to a finding of probable cause based
on his tip See United States v Sellers, 483 F 2d 37 (CAS
1973) 8 Likewise, if an unquestionably honest citizen comes
forward with a report of criminal activity — which if fabri-
cated would subject him to criminal liability — we have found
to a police officer, the transaction had occurred in an isolated area, to
which Murphy had led the police The night after this transaction, police
observed Mr Ker and Murphy meet in the same location Murphy ap-
proached Ker's car, and, although police could see nothing change hands,
Murphy's modus operandi was identical to what it had been the night be-
fore Moreover, when police followed Ker from the scene of the meeting
with Murphy he managed to lose them after performing an abrupt U-turn
Finally, the police had a statement from an informant who had provided
reliable information previously, that Ker was engaged in selling mari-
huana, and that his source was Murphy We concluded that "[t]o say that
this coincidence of information was sufficient to support a reasonable belief
of the officers that Ker was illegally in possession of maryuana is to indulge
in understatement " Id , at 36
8 Compare Stanley v State, 19 Md App , at 530, 313 A 2d, at 861, rea-
soning that "[e]ven assuming 'credibility' amounting to sainthood, the
judge still may not accept the bare conclusion of a sworn and known
and trusted police-affiant "
234 OCTOBER TERM, 1982
Opinion of the Court 462 U S
rigorous scrutiny of the basis of his knowledge unnecessary
Adams v Williams, supra Conversely, even if we enter-
tain some doubt as to an informant's motives, his explicit and
detailed description of alleged wrongdoing, along with a
statement that the event was observed firsthand, entitles his
tip to greater weight than might otherwise be the case Un-
like a totality-of-the-circumstances analysis, which permits a
balanced assessment of the relative weights of all the various
indicia of reliability (and unreliability) attending an inform-
ant's tip, the "two-pronged test" has encouraged an exces-
sively technical dissection of informants' tips,9 with undue at-
9 Some lower court decisions, brought to our attention by the State, re-
flect a rigid application of such rules In Bndger v State, 503 S W 2d 801
(Tex Cnm App 1974), the affiant had received a confession of armed rob
bery from one of two suspects m the robbery, in addition, the suspect had
given the officer $800 in cash stolen during the robbery The suspect also
told the officer that the gun used in the robbery was hidden m the other
suspect's apartment A warrant issued on the basis of this was invali-
dated on the ground that the affidavit did not satisfactorily describe how
the accomplice had obtained his information regarding the gun
Likewise, in People v Palanza, 55 111 App 3d 1028, 371 N E 2d 687
(1978), the affidavit submitted m support of an application for a search war-
rant stated that an informant of proven and uncontested reliability had
seen, in specifically described premises, "a quantity of a white crystalline
substance which was represented to the informant by a white male occu-
pant of the premises to be cocaine Informant has observed cocaine on nu-
merous occasions in the past and is thoroughly familiar with its appear-
ance The informant states that the white crystalline powder he observed
in the above described premises appeared to him to be cocaine " Id , at
1029, 371 N E 2d, at 688 The warrant issued on the basis of the affidavit
was invalidated because "[t]here is no indication as to how the informant or
for that matter any other person could tell whether a white substance was
cocaine and not some other substance such as sugar or salt " Id , at 1030,
371 N E 2d, at 689
Finally, in People v Brethauer, 174 Colo 29, 482 P 2d 369 (1971), an
informant, stated to have supplied reliable information in the past, claimed
that L S D and marihuana were located on certain premises The in-
formant supplied police with drugs, which were tested by police and con-
firmed to be illegal substances The affidavit setting forth these, and
other, facts was found defective under both prongs ofSpinelh
ILLINOIS v GATES 235
213 Opinion of the Court
tention being focused on isolated issues that cannot sensibly
be divorced from the other facts presented to the magistrate
As early as Locke v United States, 7 Cranch 339, 348
(1813), Chief Justice Marshall observed, in a closely related
context "[T]he term 'probable cause/ according to its usual
acceptation, means less than evidence which would justify
condemnation It imports a seizure made under cir-
cumstances which warrant suspicion " More recently, we
said that "the quanta of proof" appropriate in ordinary
judicial proceedings are inapplicable to the decision to issue a
warrant Bnnegar, 338 U S , at 173 Finely tuned stand-
ards such as proof beyond a reasonable doubt or by a prepon-
derance of the evidence, useful in formal trials, have no place
in the magistrate's decision While an effort to fix some gen-
eral, numerically precise degree of certainty corresponding
to "probable cause" may not be helpful, it is clear that "only
the probability, and not a prima facie showing, of criminal
activity is the standard of probable cause " Spinelli, 393
U S , at 419 See Model Code of Pre- Arraignment Proce-
dure §210 1(7) (Prop Off Draft 1972), 1 W LaFave, Search
and Seizure § 3 2(e) (1978)
We also have recognized that affidavits "are normally
drafted by nonlawyers in the midst and haste of a criminal
investigation Technical requirements of elaborate specific-
ity once exacted under common law pleadings have no proper
place in this area " United States v Ventresca, 380 U S
102, 108 (1965) Likewise, search and arrest warrants long
have been issued by persons who are neither lawyers nor
judges, and who certainly do not remain abreast of each ju-
dicial refinement of the nature of "probable cause " See
Shadwick v City of Tampa, 407 U S 345, 348-350 (1972)
The rigorous inquiry into the Spinelh prongs and the com-
plex superstructure of evidentiary and analytical rules that
some have seen implicit m our Spinelh decision, cannot be rec-
onciled with the fact that many warrants are — quite properly,
407 U S , at 348-350 — issued on the basis of nontechnical,
236 OCTOBER TERM, 1982
Opinion of the C curt 462 U S
common-sense judgments of laymen applying a standard less
demanding than those used in more formal legal proceedings
Likewise, given the informal, often hurried context in which
it must be applied, the "built-in subtleties," Stanley v State,
19 Md App 507, 528, 313 A 2d 847, 860 (1974), of the "two-
pronged test" are particularly unlikely to assist magistrates
in determining probable cause
Similarly, we have repeatedly said that af ter-the-fact scru-
tiny by courts of the sufficiency of an affidavit should not take
the form of de novo review A magistrate's "determination
of probable cause should be paid great deference by re-
viewing courts " Spinelh, supra, at 419 "A grudging or
negative attitude by reviewing courts toward warrants,"
Ventresca, 380 U S , at 108, is inconsistent with the Fourth
Amendment's strong preference for searches conducted pur-
suant to a warrant, "courts should not invalidate warrant[s]
by interpreting affidavit[s] m a hypertechmcal, rather than a
commonsense, manner " Id , at 109
If the affidavits submitted by police officers are subjected
to the type of scrutiny some courts have deemed appropriate,
police might well resort to warrantless searches, with the
hope of relying on consent or some other exception to the
Warrant Clause that might develop at the time of the search
In addition, the possession of a warrant by officers conduct-
ing an arrest or search greatly reduces the perception of un-
lawful or intrusive police conduct, by assuring "the individual
whose property is searched or seized of the lawful authority
of the executing officer, his need to search, and the limits of
his power to search " United States v Chadwick, 433 U S
1, 9 (1977) Reflecting this preference for the warrant proc-
ess, the traditional standard for review of an issuing magis-
trate's probable-cause determination has been that so long as
the magistrate had a "substantial basis for concluding]"
that a search would uncover evidence of wrongdoing, the
Fourth Amendment requires no more Jones v United
States, 362 U S 257, 271 (1960) See United States v
ILLINOIS v GATES 237
213 Opinion of the Court
Hams, 403 U S , at 577-583 10 We think reaffirmation of
this standard better serves the purpose of encouraging re-
course to the warrant procedure and is more consistent with
our traditional deference to the probable-cause determina-
tions of magistrates than is the "two-pronged test "
Finally, the direction taken by decisions following Spinelh
poorly serves "[t]he most basic function of any government"
"to provide for the security of the individual and of his
property " Miranda v Arizona, 384 U S 436, 539 (1966)
(WHITE, J , dissenting) The strictures that inevitably ac-
company the "two-pronged test" cannot avoid seriously im-
peding the task of law enforcement, see, e g , n 9, supra
If, as the Illinois Supreme Court apparently thought, that
test must be rigorously applied in every case, anonymous tips
would be of greatly diminished value in police work Ordi-
nary citizens, like ordinary witnesses, see Advisory Commit-
tee's Notes on Fed Rule Evid 701, 28 U S C App , p 570,
generally do not provide extensive recitations of the basis
of their everyday observations Likewise, as the Illinois
Supreme Court observed in this case, the veracity of persons
supplying anonymous tips is by hypothesis largely unknown,
and unknowable As a result, anonymous tips seldom could
survive a rigorous application of either of the Spinelh
prongs Yet, such tips, particularly when supplemented by
10 We also have said that "[although in a particular case it may not be
easy to determine when an affidavit demonstrates the existence of proba-
ble cause, the resolution of doubtful or marginal cases in this area should
be largely determined by the preference to be accorded to warrants,"
United States v Ventresca, 380 U S 102, 109 (1965) This reflects both a
desire to encourage use of the warrant process by police officers and a rec-
ognition that once a warrant has been obtained, intrusion upon interests
protected by the Fourth Amendment is less severe than otherwise may be
the case Even if we were to accept the premise that the accurate assess-
ment of probable cause would be furthered by the "two-pronged test,"
which we do not, these Fourth Amendment policies would require a less
rigorous standard than that which appears to have been read into Aguilar
and Spinelh
238 OCTOBER TERM 1982
Opinion of the C ourt 462 U S
independent police investigation, frequently contribute to the
solution of otherwise "perfect crimeb " While a conscien-
tious assessment of the basis for crediting such tips is re-
quired by the Fourth Amendment, a standard that leaves
virtually no place for anonymous citizen informants is not
For all these reasons, we conclude that it is wiser to aban-
don the "two-pronged test" established by our decisions in
Agmlar and Spmelh " In its place we reaffirm the totality-
of-the-circumstances analysis that traditionally has informed
probable-cause determinations See Jone^ v United States,
supra, United States v Ventreiea, 380 U S 102 (1965),
Brmegar v United States, 338 U S 160 (1949) The task of
the issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set forth
m the affidavit before him, including the "veracity" and
"basis of knowledge" of persons supplying hearsay informa-
tion, there is a fair probability that contraband or evidence of
a crime will be found m a particular place And the duty of a
reviewing court is simply to ensure that the magistrate had a
"substantial basis for concluding]" that probable cause
11 The Court's decision in Spinelh has been the subject of considerable
criticism, both by Members of this Court and others JUSTICE BLACK-
MUN, concurring in United States v Hams, 403 U S 573, 585-586 (1971),
noted his long-held view "that Spinelh was wrongly decided" by this
Court Justice Black similarly would have overruled that decision Id ,
at 585 Likewise, a noted commentator has observed that "[t]he Aguilar
Spinelh formulation has provoked apparently ceaseless litigation " 8A
J Moore, Moore's Federal Practice 141 04, p 41-43 (1982)
Whether the allegations submitted to the magistrate in Spinelh would,
under the view we now take, have supported a finding of probable cause,
we think it would not be profitable to decide There are so many variables
in the probable-cause equation that one determination will seldom be a use-
ful "precedent" for another Suffice it to say that while we m no way
abandon SpinelWs concern for the trustworthiness of informers and for the
principle that it is the magistrate who must ultimately make a finding of
probable cause, we reject the rigid categorization suggested by some of its
language
ILLINOIS v GATES 239
213 Opinion of the Court
existed Jones v United States, 362 U S , at 271 We
are convinced that this flexible, easily applied standard
will better achieve the accommodation of public and private
interests that the Fourth Amendment requires than does
the approach that has developed from Aguilar and Spinelh
Our earlier cases illustrate the limits beyond which a mag-
istrate may not venture in issuing a warrant A sworn
statement of an affiant that "he has cause to suspect and does
believe" that liquor illegally brought into the United States
is located on certain premises will not do Nathanson v
United States, 290 U S 41 (1933) An affidavit must pro-
vide the magistrate with a substantial basis for determining
the existence of probable cause, and the wholly conclusory
statement at issue in Nathanson failed to meet this require-
ment An officer's statement that "[a]ffiants have received
reliable information from a credible person and do believe"
that heroin is stored in a home, is likewise inadequate
Agmlar v Texas, 378 U S 108 (1964) As in Nathanson,
this is a mere conclusory statement that gives the magistrate
virtually no basis at all for making a judgment regarding
probable cause Sufficient information must be presented to
the magistrate to allow that official to determine probable
cause, his action cannot be a mere ratification of the bare con-
clusions of others In order to ensure that such an abdica-
tion of the magistrate's duty does not occur, courts must con-
tinue to conscientiously review the sufficiency of affidavits on
which warrants are issued But when we move beyond the
"bare bones" affidavits present in cases such as Nathanson
and Aguilar, this area simply does not lend itself to a pre-
scribed set of rules, like that which had developed from
Spinelh Instead, the flexible, common-sense standard
articulated m Jones, Ventresca, and Brinegar better serves
the purposes of the Fourth Amendment's probable-cause
requirement
JUSTICE BKENNAN'S dissent suggests in several places
that the approach we take today somehow downgrades the
240 (X TOBFR TERM
Opinion of the ( ourt 462 U S
role of the neutral magistrate, because Aquilar and Spinelh
"preserve the role of magistrates as independent arbiters of
probable cause " Post , at 287 Quite the contrary, we
believe, is the case The essential protection of the warrant
requirement of the Fourth Amendment, as stated in Johnson
v United States, 333 U S 10 (1948), is in "requiring that
[the usual inferences which reasonable men draw from evi-
dence] be drawn by a neutral and detached magistrate in-
stead of being judged by the officer engaged m the often com-
petitive enterprise of ferreting out crime " Id , at 13-14
Nothing in our opinion in any way lessens the authority of the
magistrate to draw such reasonable inferences as he will from
the material supplied to him by applicants for a warrant,
indeed, he is freer than under the regime of Agmlar and
Spinelh to draw such inferences, or to refuse to draw them if
he is so minded
The real gist of JUSTICE BRENNAN'S criticism seems to be
a second argument, somewhat at odds with the first, that
magistrates should be restricted m their authority to make
probable-cause determinations by the standards laid down m
Agmlar and Spinelh, and that such findings "should not be
authorized unless there is some assurance that the informa-
tion on which they are based has been obtained in a reliable
way by an honest or credible person " Post, at 283 How-
ever, under our opinion magistrates remain perfectly free to
exact such assurances as they deem necessary, as well as
those required by this opinion, in making probable-cause
determinations JUSTICE BRENNAN would apparently pre-
fer that magistrates be restricted m their findings of proba-
ble cause by the development of an elaborate body of case law
dealing with the "veracity" prong of the Spinelh test, which
in turn is broken down into two "spurs" — the informant's
"credibility" and the "reliability" of his information, together
with the "basis of knowledge" prong of the Spinelh test
See n 4, supra That such a labyrinthine body of judicial
refinement bears any relationship to familiar definitions of
ILLINOIS v GATES 241
213 Opinion of the Court
probable cause is hard to imagine As previously noted , prob-
able cause deals "with probabilities These are not technical,
they are the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal techni-
cians, act," Bnnegar v United States, 338 U S , at 175
JUSTICE BRENNAN'S dissent also suggests that "[w]ords
such as 'practical/ 'nontechnical/ and 'common sense/ as
used in the Court's opinion, are but code words for an overly
permissive attitude towards police practices in derogation of
the rights secured by the Fourth Amendment " Post, at
290 An easy, but not a complete, answer to this rather
florid statement would be that nothing we know about Jus-
tice Rutledge suggests that he would have used the words he
chose in Bnnegar in such a manner More fundamentally,
no one doubts that "under our Constitution only measures
consistent with the Fourth Amendment may be employed by
government to cure [the horrors of drug trafficking]/' post,
at 290, but this agreement does not advance the inquiry as to
which measures are, and which measures are not, consistent
with the Fourth Amendment "Fidelity" to the commands
of the Constitution suggests balanced judgment rather than
exhortation The highest "fidelity" is not achieved by the
judge who instinctively goes furthest in upholding even the
most bizarre claim of individual constitutional rights, any
more than it is achieved by a judge who instinctively goes
furthest in accepting the most restrictive claims of govern-
mental authorities The task of this Court, as of other
courts, is to "hold the balance true/' and we think we have
done that in this case
IV
Our decisions applying the totahty-of-the-circumstances
analysis outlined above have consistently recognized the
value of corroboration of details of an informant's tip by inde-
pendent police work In Jones v United States, 362 U S ,
at 269, we held that an affidavit relying on hearsay "is not to
<M2 txToBf* R mm
Opinion of tht Court 462 U S
be deemed inefficient on that HI ore, s*> long as a substantial
basis for crediting the hearsav H presented " We went on to
say that even in making a warrantless arrest an officer "may
rely upon information received through an informant, rather
than upon his direct observation**, HO long as the inform-
ant^ statement IB reasonably corroborated by other matters
within the officer's knowledge * Ihid Likewise, we recog
mzed the probative value of corroborative efforts of police of-
ficials in Aguilar— the source of the "tuo-pronged test" — by
observing that if the police had made some effort to corrobo-
rate the informant's report at issue t *4an entirely different
case** would have been presented Aguilar, 378 U S , at
109, n 1
Our decision m Draper v United States, 358 U S 307
(1959), however, is the classic ease on the value of corrobora-
tive efforts of police officials There, an informant named
Hereford reported that Draper would arrive in Denver on a
train from Chicago on one of two days, and that he would be
carrying a quantity of heroin The informant also supplied a
fairly detailed physical description of Draper, and predicted
that he would be wearing a light colored raincoat, brown
slacks, and black shoes, and would be walking "real fast "
Id , at 309 Hereford gave no indication of the basis for his
information *
On one of the stated dates police officers observed a man
matching this description exit a train arriving from Chicago,
his attire and luggage matched Hereford's report and he was
12 The tip in Draper might well not have survived the rigid application of
the "two-pronged test" that developed following Spinelh The only refer
ence to Hereford's reliability was that he had "been engaged as a Special
employee' of the Bureau of Narcotics at Denver for about six months, and
from time to time gave information to [the police for] small sums of money,
and that [the officer] had always found the information given by Hereford
to be accurate and reliable* 868 U S, at 809 Likewise, the tip gave no
indication of how Hereford came by his information At most, the detailed
and accurate predictions in the tip indicated that, however Hereford ob-
tained his information, it was reliable
ILLINOIS v GATES 243
213 Opinion of the Court
walking rapidly We explained in Draper that, by this point
in his investigation, the arresting officer "had personally ver-
ified every facet of the information given him by Hereford ex-
cept whether petitioner had accomplished his mission and had
the three ounces of heroin on his person or in his bag And
surely, with every other bit of Hereford's information be-
ing thus personally verified, [the officer] had 'reasonable
grounds' to believe that the remaining unverified bit of Here-
ford's information — that Draper would have the heroin with
him — was likewise true," id , at 313
The showing of probable cause in the present case was fully
as compelling as that in Draper Even standing alone, the
facts obtained through the independent investigation of
Mader and the DE A at least suggested that the Gateses were
involved in drug trafficking In addition to being a popular
vacation site, Florida is well known as a source of narcotics
and other illegal drugs See United States v Mendenhall,
446 U S 544, 562 (1980) (POWELL, J , concurring in part and
concurring in judgment), DEA, Narcotics Intelligence Esti-
mate, The Supply of Drugs to the U S Illicit Market From
Foreign and Domestic Sources in 1980, pp 8—9 Lance
Gates' flight to West Palm Beach, his brief, overnight stay in
a motel, and apparent immediate return north to Chicago m
the family car, conveniently awaiting him in West Palm
Beach, is as suggestive of a prearranged drug run, as it is of
an ordinary vacation trip
In addition, the judge could rely on the anonymous letter,
which had been corroborated in major part by Mader's ef-
forts— just as had occurred in Draper 13 The Supreme Court
13 The Illinois Supreme Court thought that the verification of details con-
tained m the anonymous letter in this case amounted only to "[t]he corrobo-
ration of innocent activity/' 85 111 2d 376, 390, 423 N E 2d 887, 893 (1981),
and that this was insufficient to support a finding of probable cause We
are inclined to agree, however, with the observation of Justice Moran m his
dissenting opinion that "[i]n this case, just as in Draper, seemingly in-
nocent activity became suspicious in light of the initial tip " Id , at 396,
244 OCTOBER TERM 1982
Opinion of the Court 462 U S
of Illinois reasoned that Draper involved an informant who
had given reliable information on previous occasions, while
the honesty and reliability of the anonymous informant in this
case were unknown to the Bloommgdale police While this
distinction might be an apt one at the time the Police De-
partment received the anonymous letter, it became far less
significant after Mader's independent investigative work
occurred The corroboration of the letter's predictions that
the Gateses' car would be in Florida, that Lance Gates would
fly to Florida in the next day or so, and that he would drive
the car north toward Bloommgdale all indicated, albeit not
with certainty, that the informant's other assertions also
were true "[B]ecause an informant is right about some
things, he is more probably right about other facts," Spinelh,
393 U S , at 427 (WHITE, J , concurring)— including the
claim regarding the Gateses' illegal activity This may well
not be the type of "reliability" or "veracity" necessary to sat-
isfy some views of the "veracity prong" of Spinelli, but we
think it suffices for the practical, common-sense judgment
called for in making a probable-cause determination It is
enough, for purposes of assessing probable cause, that "[c]or-
roboration through other sources of information reduced the
423 N E 2d, at 896 And it bears noting that all of the corroborating
detail established in Draper was of entirely innocent activity — a fact later
pointed out by the Court m both Jones v United States, 362 U S , at
269-270, and Ker v California, 374 U S , at 36
This is perfectly reasonable As discussed previously, probable cause
requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity By hypothesis, therefore, innocent be-
havior frequently will provide the basis for a showing of probable cause, to
require otherwise would be to sub silentio impose a drastically more rigor-
ous definition of probable cause than the security of our citizens' demands
We think the Illinois court attempted a too rigid classification of the types
of conduct that may be relied upon in seeking to demonstrate probable
cause See Brown v Texas, 443 U S 47, 52, n 2 (1979) In making a
determination of probable cause the relevant inquiry is not whether par
ticular conduct is "innocent" or "guilty," but the degree of suspicion that
attaches to particular types of noncrimmal acts
ILLINOIS v GATES 245
213 Opinion of the Court
chances of a reckless or prevaricating tale," thus providing "a
substantial basis for crediting the hearsay " Jones v United
States, 362 U S , at 269, 271
Finally, the anonymous letter contained a range of details
relating not just to easily obtained facts and conditions exist-
ing at the time of the tip, but to future actions of third parties
ordinarily not easily predicted The letterwriter's accurate
information as to the travel plans of each of the Gateses was
of a character likely obtained only from the Gateses them-
selves, or from someone familiar with their not entirely ordi-
nary travel plans If the informant had access to accurate
information of this type a magistrate could properly conclude
that it was not unlikely that he also had access to reliable
information of the Gateses' alleged illegal activities 14 Of
14 JUSTICE STEVENS' dissent seizes on one inaccuracy in the anonymous
informant's letter — its statement that Sue Gates would fly from Florida to
Illinois, when in fact she drove — and argues that the probative value of the
entire tip was undermined by this allegedly "material mistake " We have
never required that informants used by the police be infallible, and can see
no reason to impose such a requirement in this case Probable cause, par-
ticularly when police have obtained a warrant, simply does not require the
perfection the dissent finds necessary
Likewise, there is no force to the dissent's argument that the Gateses'
action in leaving their home unguarded undercut the informant's claim that
drugs were hidden there Indeed, the line-by-line scrutiny that the dis-
sent applies to the anonymous letter is akin to that which we find inap-
propriate in reviewing magistrates' decisions The dissent apparently
attributes to the judge who issued the warrant in this case the rather im-
plausible notion that persons dealing in drugs always stay at home, appar-
ently out of fear that to leave might risk intrusion by criminals If accu-
rate, one could not help sympathizing with the self-imposed isolation of
people so situated In reality, however, it is scarcely likely that the judge
ever thought that the anonymous tip "kept one spouse" at home, much less
that he relied on the theory advanced by the dissent The letter simply
says that Sue would fly from Florida to Illinois, without indicating whether
the Gateses made the bitter choice of leaving the drugs in their house, or
those in their car, unguarded The judge's determination that there might
be drugs or evidence of criminal activity in the Gateses' home was well sup-
ported by the less speculative theory, noted in text, that if the informant
246 OCTOBER TERM, 1982
WHITF, J , concurring m judgment 462 U S
course, the Gateses* travel plans might have been learned
from a talkative neighbor or travel agent, under the "two-
pronged test" developed from Sptnelh, the character of the
details m the anonymous letter might well not permit a suffi-
ciently clear inference regarding the letterwriter's "basis of
knowledge " But, as discussed previously, supra, at 235,
probable cause does not demand the certainty we associate
with formal trials It is enough that there was a fair prob-
ability that the writer of the anonymous letter had obtained
his entire story either from the Gateses or someone they
trusted And corroboration of major portions of the letter's
predictions provides just this probability It is apparent,
therefore, that the judge issuing the warrant had a "substan-
tial basis for concluding]" that probable cause to search
the Gateses' home and car existed The judgment of the
Supreme Court of Illinois therefore must be
Reversed
JUSTICE WHITE, concurring m the judgment
In my view, the question regarding modification of the
exclusionary rule framed in our order of November 29, 1982,
459 U S 1028 (1982), is properly before us and should be ad-
dressed I continue to believe that the exclusionary rule is
an inappropriate remedy where law enforcement officials act
in the reasonable belief that a search and seizure was consist-
ent with the Fourth Amendment — a position I set forth in
Stone v Powell, 428 U S 465, 537-539 (1976) In this case,
it was fully reasonable for the Bloommgdale, 111 , police to
believe that their search of respondents' house and automo-
bile comported with the Fourth Amendment as the search
was conducted pursuant to a judicially issued warrant The
could predict with considerable accuracy the somewhat unusual travel
plans of the Gateses, he probably also had a reliable basis for his state-
ments that the Gateses kept a large quantity of drugs in their home and
frequently were visited by other drug traffickers there
ILLINOIS v GATES 247
213 WHITE, J , concurring in judgment
exclusion of probative evidence where the constable has not
blundered not only sets the criminal free but also fails to
serve any constitutional interest in securing compliance with
the important requirements of the Fourth Amendment On
this basis, I concur in the Court's judgment that the decision
of the Illinois Supreme Court must be reversed
I
The Court declines to address the exclusionary rule ques-
tion because the Illinois courts were not invited to modify the
rule in the first instance The Court's refusal to face this
important question cannot be ascribed to jurisdictional limita-
tions I fully agree that the statute which gives us jurisdic-
tion in this cause, 28 U S C § 1257(3), prevents us from
deciding federal constitutional claims raised here for the first
time on review of state-court decisions Cardinale v Loui-
siana, 394 U S 437, 438-439 (1969) But it is equally well
established that " Tn]o particular form of words or phrases is
essential, but only that the claim of invalidity and the ground
therefor be brought to the attention of the state court with
fair precision and in due time '" Street v New York, 394
U S 576, 584 (1969) (quoting New York ex rel Bryant v
Zimmerman, 278 U S 63, 67 (1928)) Notwithstanding the
select and controversial instances in which the Court has re-
versed a state-court decision for "plain error/'1 we have con-
sistently dismissed for want of jurisdiction where the federal
claim asserted in this Court was not raised below But this
obviously is not such a case As the Court points out, "[i]t is
clear in this case that respondents expressly raised, at every
level of the Illinois judicial system, the claim that the Fourth
Amendment had been violated by the actions of the Illinois
1 See, e g , Eddings v Oklahoma, 455 U S 104 (1982), Wood v Gear
gw, 450 U S 261 (1981), Vachon v New Hampshire, 414 U S 478 (1974)
(per curiam) Of course, to the extent these cases were correctly decided,
they indicate a fortiori that the exclusionary rule issue in this case is prop-
erly before us
248 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U g
police and that the evidence seized by the officers should be
excluded from their trial " Ante, at 220 Until today, we
have not required more
We have never suggested that the jurisdictional stipula-
tions of § 1257 require that all arguments on behalf of, let
alone in opposition to, a federal claim be raised and decided
below 2 See R Stern & E Gressman, Supreme Court Prac-
tice 230 (5th ed 1978) Dewey v Des Moines, 173 U S 193
(1899), distinguished the raising of constitutional claims and
the making of arguments in support of or in opposition to
those claims
"If the question were only an enlargement of the one
mentioned in the assignment of errors, or if it were so
connected with it in substance as to form but another
ground or reason for alleging the invalidity of the per-
sonal judgment, we should have no hesitation in holding
the assignment sufficient to permit the question to be
now raised and argued
"Parties are not confined here to the same arguments
which were advanced in the courts below upon a Federal
question there discussed " Id , at 197-198 (emphasis
added) 3
2 The Court has previously relied on issues and arguments not raised in
the state court below in order to dispose of a federal question that was
properly raised In Stanley v Illinois, 405 U S 645, 658 (1972), the
Court held that unmarried fathers could not be denied a hearing on paren
tal fitness that was afforded other Illinois parents Although this issue
was not presented in the Illinois courts, the Court found that it could prop-
erly be considered "we dispose of the case on the constitutional premise
raised below, reaching the result by a method of analysis readily available
to the state court For the same reason the strictures of Cardinale v
Louisiana, 394 U S 437 (1969), and Hill v California, 401 U S 797
(1971), have been fully observed " Id , at 658, n 10 The dissent argued
that the Court was deciding a due process claim instead of an equal protec
tion one, but there was no suggestion that it mattered at all that the Court
had relied on a different type of equal protection argument
8 As the Court explains, ante, at 220, n 2, in Dewey, the plaintiff in error
argued only that the imposition of personal liability against him violated
ILLINOIS v GATES 249
213 WHITE, J , concurring in judgment
Under Dewey, which the Court hails as the "fullest treatment
of the subject," ante, at 219, the exclusionary rule issue is
but another argument pertaining to the Fourth Amendment
question squarely presented in the Illinois courts
The presentation and decision of respondents' Fourth
Amendment claim fully embraces the argument that due to
the nature of the alleged Fourth Amendment violation, the
seized evidence should not be excluded Our decisions con-
cerning the scope of the exclusionary rule cannot be divorced
from the Fourth Amendment, they rest on the relationship of
Fourth Amendment interests to the objectives of the crim-
inal justice system See, e g , Umted States v Ceccohm,
435 U S 268 (1978), Stone v Powell, 428 U S 465 (1976) 4
Similarly, the issues surrounding a proposed good-faith modi-
fication are intricately and mseverably tied to the nature of
the Fourth Amendment violation the degree of probable
cause, the presence of a warrant, and the clarity of previ-
ously announced Fourth Amendment principles all inform the
the Due Process Clause of the Fourteenth Amendment, because he had not
received personal notice of the assessment proceedings In this Court,
the plaintiff in error sought to raise a takings argument for the first time
The Court declined to pass on the issue because, although arising from a
single factual occurrence, the two claims "are not in anywise necessarily
connected " 173 U S , at 198
4 The Court relies on these cases for the surprising assertion that the
Fourth Amendment and exclusionary rule questions are "distinct " I had
understood the very essence of Rakas v Illinois, 439 U S 128 (1978), to
be that standing to seek exclusion of evidence could not be divorced from
substantive Fourth Amendment rights Past decisions finding that the
remedy of exclusion is not always appropriate upon the finding of a Fourth
Amendment violation acknowledge the close relationship of the issues
For example, in United States v Ceccolmi it was said "The constitutional
question under the Fourth Amendment was phrased in Wong Sun v
United States, 371 U S 471 (1963), as whether 'the connection between
the lawless conduct of the police and the discovery of the challenged evi-
dence has "become so attenuated as to dissipate the taint " * " 435 U S ,
at 273-274 It is also suprismg to learn that the issues in Stone v Powell
are "distinct" from the Fourth Amendment
250 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
good-faith issue The Court's own holding that the duty of a
reviewing court is simply to ensure that the magistrate had a
"substantial basis" for concluding that probable cause ex-
isted, ante, at 244-245, is itself but a variation on the good-
faith theme See Brief for Petitioner on Reargument 4-26
As a jurisdictional requirement, I have no doubt that the
exclusionary rule question is before us as an indivisible ele-
ment of the claim that the Constitution requires exclusion of
certain evidence seized in violation of the Fourth Amend-
ment As a prudential matter, I am unmoved by the Court's
lengthy discourse as to why it must avoid the question
First, the Court turns on its head the axiom that "'due
regard for the appropriate relationship of this Court to state
courts/ McGoldnck v Compagme Generate Transatlantique,
309 U S , at 434-435, demands that those courts be given an
opportunity to consider the constitutionality of the actions of
state officials," ante, at 221 This statement, written to ex-
plain why a state statute should not be struck down on fed-
eral grounds not raised in the state courts,5 hardly applies
when the question is whether a rule of federal law articulated
by this Court should now be narrowed to reduce the scope of
federal intrusion into the State's administration of criminal
justice Insofar as modifications of the federal exclusionary
5 Consider the full context of the statement in McGoldnck v Compagnie
Generate Transatlantique, 309 U S 430, 434 (1940)
"In cases coming here from state courts in which a state statute is assailed
as unconstitutional, there are reasons of peculiar force which should lead us
to refrain from deciding questions not presented or decided in the highest
court of the state whose judicial action we are called upon to review
Apart from the reluctance with which every court should proceed to set
aside legislation as unconstitutional on grounds not properly presented,
due regard for the appropriate relationship of this Court to state courts re-
quires us to decline to consider and decide questions affecting the validity
of state statutes not urged or considered there It is for these reasons
that this Court, where the constitutionality of a statute has been upheld in
the state court, consistently refuses to consider any grounds of attack not
raised or decided in that court "
ILLINOIS v GATES 251
213 WHITE, J , concurring in judgment
rule are concerned, the Illinois courts are bound by this
Court's pronouncements Cf Oregon v Hass, 420 U S
714, 719 (1975) I see little point in requiring a litigant to
request a state court to overrule or modify one of this Court's
precedents Far from encouraging the stability of our prece-
dents, the Court's proposed practice could well undercut
stare decisis Either the presentation of such issues to the
lower courts will be a completely futile gesture or the lower
courts are now invited to depart from this Court's decisions
whenever they conclude such a modification is in order 6
The Court correctly notes that Illinois may choose to pur-
sue a different course with respect to the state exclusionary
rule If this Court were to formulate a "good-faith" excep-
tion to the federal exclusionary rule, the Illinois Supreme
Court would be free to consider on remand whether the state
exclusionary rule should be modified accordingly The pos-
sibility that it might have relied upon the state exclusionary
rule had the "good-faith" question been posed does not consti-
tute independent and adequate state grounds "The pos-
sibility that the state court might have reached the same con-
clusion 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 consider-
ing the federal question " United Air Lines, Inc v Mahin,
410 U S 623, 630-631 (1973), Beecherv Alabama, 389 U S
35, 37, n 3 (1967), C Wright, The Law of Federal Courts
§107, pp 747-748 (4th ed 1983) Nor does having the state
court first decide whether the federal exclusionary rule
should be modified — and presentation of the federal question
does not insure that the equivalent state-law issue will be
6 The Court observes that "although the Illinois courts applied the federal
exclusionary rule, there was never 'any real contest' upon the point " Ante,
at 223 But the proper forum for a "real contest" on the continued vitality
of the exclusionary rule that has developed from our decisions in Weeks v
United States, 232 U S 383 (1914), and Mapp v Ohio, 367 U S 643
(1961), is this Court
252 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
raised or decided 7 — avoid the unnecessary decision of a fed-
eral question The Court still must reach a federal question
to decide the instant case Thus, in today's opinion, the
Court eschews modification of the exclusionary rule in favor
of interring the test established by Agmlar v Texas, 378
U S 108 (1964), and Spinelh v United States, 393 U S 410
(1969) Nor is the exclusionary rule question avoided — it is
simply deferred until "another day "
It also appears that the Court, in disposing of the case,
does not strictly follow its own prudential advice The Illi-
nois Supreme Court found not only a violation of the Fourth
Amendment but also of Article I, § 6, of the Illinois Constitu-
tion, which also provides assurance against unreasonable
searches and seizures Taking the Court's new prudential
standards on their own terms, the Illinois courts should
be given the opportunity to consider in the first instance
whether a "totality of the circumstances" test should replace
the more precise rules of Agmlar and Spmelli The Illinois
Supreme Court may decide to retain the established test for
purposes of the State Constitution just as easily as it could
decide to retain an unmodified exclusionary rule 8
Finally, the Court correctly notes that a fully developed
record is helpful if not indispensable for the decision of many
issues I too resist the decision of a constitutional question
7 Nor is there any reason for the Illinois courts to decide that question in
advance of this Court's decision on the federal exclusionary rule Until
the federal rule is modified, the state-law question is entirely academic
The state courts should not be expected to render such purely advisory
decisions
8 Respondents press this very argument Brief for Respondents 24-27,
Brief for Respondents on Reargument 6 Of course, under traditional
principles the possibility that the state court might reach a different con
elusion in interpreting the State Constitution does not make it improper for
us to decide the federal issue Delaware v Prouse, 440 U S 648, 651-653
(1979), Zacckim v Scripps Howard Broadcasting Co , 433 U S 562, 568
ILLINOIS v GATES 253
213 WHITE, J , concurring in judgment
when such guidance is necessary, but the question of whether
the exclusionary rule should be modified is an issue of law
which obviously goes far beyond and depends little on the
subjective good faith of the police officers that searched the
Gateses' property Moreover, the case comes here with a
fully developed record as to the actions of the Bloomingdale,
111 , police If further factual development of whether the
officers in this case acted in good faith were important, that
issue should logically be considered on remand, following this
Court's statement of the proper legal standards 9
The Court's straining to avoid coming to grips with the
exclusionary rule issue today may be hard for the country to
understand — particularly given earlier statements by some
Members of the Court 10 The question has been fully briefed
and argued by the parties and amici cunae, including the
United States u The issue is central to the enforcement of
law and the administration of justice throughout the Nation
The Court of Appeals for the second largest Federal Circuit
9 It also should be noted that the requirement that the good-faith issue be
presented to the Illinois courts has little to do with whether the record is
complete I doubt that the raising of the good-faith issue below would
have been accompanied by any different record And this Court may dis-
miss a writ of certiorari as improvidently granted when the record makes
decision of a federal question unwise See, e g , Minmck v California
Dept of Corrections, 452 U S 105 (1981)
10 In California v Mmjares, 443 U S 916, 928 (1979) (REHNQUIST, J ,
joined by BURGER, C J , dissenting from the denial of stay), the author of
today's opinion for the Court urged that the parties be directed to brief
whether the exclusionary rule should be retained In Minjares, like this
case, respondents had raised a Fourth Amendment claim but petitioners
had not attacked the validity of the exclusionary rule in the state court
See also Bobbins v California, 453 U S 420, 437 (1981) (REHNQUIST, J ,
dissenting) (advocating overruling of Mapp v Ohio, supra)
11 Ironically, in Mapp v Ohio, supra, petitioners did not ask the Court to
partially overrule Wolfv Colorado, 338 U S 25 (1949) The sole argu-
ment to apply the exclusionary rule to the States is found in a single para-
graph in an amicus brief filed by the American Civil Liberties Union
254 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
has already adopted such an exception, United States v Wil-
liams, 622 F 2d 830 (CAS 1980) (en bane), cert denied, 449
U S 1127 (1981), and the new Eleventh Circuit is presum-
ably bound by its decision Several Members of this Court
have for some time expressed the need to consider modifying
the exclusionary rule, ante, at 224, and Congress as well has
been active in exploring the question See The Exclusionary
Rule Bills, Hearings on S 101, S 751, and S 1995 before the
Subcommittee on Criminal Law of the Senate Committee on
the Judiciary, 97th Cong , 1st and 2d Sess (1981-1982) At
least one State has already enacted a good-faith exception
Colo Rev Stat § 16-3-308 (Supp 1982) Of course, if there
is a jurisdictional barrier to deciding the issue, none of these
considerations are relevant But if no such procedural ob-
stacle exists, I see it as our responsibility to end the un-
certainty and decide whether the rule will be modified The
question of whether probable cause existed for the issuance
of a warrant and whether the evidence seized must be
excluded in this case should follow our reconsideration of
the framework by which such issues, as they arise from the
Fourth Amendment, are to be handled
II
A
The exclusionary rule is a remedy adopted by this Court to
effectuate the Fourth Amendment right of citizens "to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures " Although early
opinions suggested that the Constitution required exclusion
of all illegally obtained evidence, the exclusionary rule "has
never been interpreted to proscribe the introduction of ille-
gally seized evidence in all proceedings or against all per-
sons " Stone v Powell, 428 U S , at 486 Because of the
inherent trustworthiness of seized tangible evidence and the
resulting social costs from its loss through suppression, apph-
ILLINOIS?; GATES 255
213 WHITE, J , concurring m judgment
cation of the exclusionary rule has been carefully "restricted
to those areas where its remedial objectives are thought most
efficaciously served " United States v Calandra, 414 U S
338, 348 (1974) Even at criminal trials the exclusionary rule
has not been applied indiscriminately to ban all illegally ob-
tained evidence without regard to the costs and benefits of
doing so Infra, at 256-257 These developments, born of
years of experience with the exclusionary rule in operation,
forcefully suggest that the exclusionary rule be more gener-
ally modified to permit the introduction of evidence obtained
in the reasonable good-faith belief that a search or seizure
was in accord with the Fourth Amendment
This evolvement in the understanding of the proper scope
of the exclusionary rule embraces several lines of cases
First, standing to invoke the exclusionary rule has been
limited to situations where the government seeks to use such
evidence against the victim of the unlawful search Brown
v United States, 411 U S 223 (1973), Alderman v United
States, 394 U S 165 (1969), Wong Sun v United States, 371
U S 471, 491-492 (1963), Rakas v Illinois, 439 U S 128
(1978)
Second, the rule has not been applied in proceedings other
than the trial itself In United States v Calandra, supra,
the Court refused to extend the rule to grand jury proceed-
ings "Any incremental deterrent effect which might be
achieved by extending the rule to grand jury proceedings is
uncertain at best We therefore decline to embrace a
view that would achieve a speculative and undoubtedly mini-
mal advance in the deterrence of pohce misconduct at the
expense of substantially impeding the role of the grand jury "
414 U S , at 351-352 Similarly, in United States v Jams,
428 U S 433 (1976), the exclusionary rule was not extended
to forbid the use in federal civil proceedings of evidence ille-
gally seized by state officials, since the likelihood of deterring
unlawful pohce conduct was not sufficient to outweigh the
social costs imposed by the exclusion
256 OCTOBER TERM, 1982
WHITE, J , concurring m judgment 462 U S
Third, even at a criminal trial, the same analysis has led us
to conclude that the costs of excluding probative evidence
outweighed the deterrence benefits in several circumstances
We have refused to prohibit the use of illegally seized evi-
dence for the purpose of impeaching a defendant who testifies
in his own behalf United States v Havens, 446 U S 620
(1980), Walder v United States, 347 U S 62 (1954) We
have also declined to adopt a "per se or 'but for' rule" that
would make inadmissible any evidence which comes to light
through a chain of causation that began with an illegal ar-
rest Brown v Illinois, 422 U S 590, 603 (1975) And we
have held that testimony of a live witness may be admitted,
notwithstanding that the testimony was derived from a con-
cededly unconstitutional search United States v Ceccohm,
435 U S 268 (1978) Nor is exclusion required when law
enforcement agents act in good-faith reliance upon a statute
or ordinance that is subsequently held to be unconstitu-
tional United States v Peltier, 422 U S 531 (1975), Michi-
gan v DeFilhppo, 443 U S 31 (1979) 12 Cf United States
v Caceres, 440 U S 741, 754-757 (1979) (exclusion not
12 To be sure, Peltier and DeFilhppo did not modify the exclusionary rule
itself Peltier held that Almeida Sanchez v United States, 413 U S 266
(1973), was not to be given retroactive effect, DeFilhppo upheld the valid
ity of an arrest made in good-faith reliance on an ordinance subsequently
declared unconstitutional The effect of these decisions, of course, was
that evidence was not excluded because of the officer's reasonable belief
that he was acting lawfully, and the Court's reasoning, as I discuss infra,
at 260-261, leads inexorably to the more general modification of the exclu-
sionary rule I favor Indeed, JUSTICE BRENNAN recognized this in his
dissent in Peltier, 422 U S , at 551-552
I recognize that we have held that the exclusionary rule required sup-
pression of evidence obtained in searches carried out pursuant to statutes,
not previously declared unconstitutional, which purported to authorize the
searches in question without probable cause and without a valid warrant
See, e g , Torres v Puerto Rico, 442 U S 465 (1979), Almeida Sanchez v
United States, supra, Sibron v New York, 392 U S 40 (1968), Berger v
New York, 388 U S 41 (1967) The results in these cases may well be
different under a "good-faith" exception to the exclusionary rule
ILLINOIS v GATES 257
213 WHITE, J , concurring in judgment
required of evidence tainted by violation of an executive
department's rules concerning electronic eavesdropping)
A similar balancing approach is employed in our deci-
sions limiting the scope of the exclusionary remedy for Fifth
Amendment violations, Oregon v Hass, 420 U S 714 (1975),
Harris v New York, 401 U S 222 (1971), Michigan v
Tucker, 417 U S 433 (1974), and our cases considering
whether Fourth Amendment decisions should be applied ret-
roactively, United States v Peltier, supra, at 538-539, Wil-
liams v United States, 401 U S 646, 654-655 (1971) (plural-
ity opinion), Desist v United States, 394 U S 244, 249-250
(1969), Linkletter v Walker, 381 U S 618, 636-639 (1965)
But see United States v Johnson, 457 U S 537 (1982)
These cases reflect that the exclusion of evidence is not a
personal constitutional right but a remedy, which, like all
remedies, must be sensitive to the costs and benefits of its
imposition The trend and direction of our exclusionary rule
decisions indicate not a lesser concern with safeguarding the
Fourth Amendment but a fuller appreciation of the high costs
incurred when probative, reliable evidence is barred because
of investigative error The primary cost, of course, is that
the exclusionary rule interferes with the truthseeking func-
tion of a criminal trial by barring relevant and trustworthy
evidence 13 We will never know how many guilty defendants
go free as a result of the rule's operation But any rule of
evidence that denies the jury access to clearly probative and
reliable evidence must bear a heavy burden of justification,
13 The effects of the exclusionary rule are often felt before a case reaches
trial A recent study by the National Institute of Justice of felony arrests
in California during the years 1976-1979 "found a major impact of the ex-
clusionary rule on state prosecutions " National Institute of Justice, The
Effects of the Exclusionary Rule A Study in California 2 (1982) The
study found that 4 8% of the more than 4,000 felony cases declined for pros-
ecution were rejected because of search and seizure problems The exclu-
sionary rule was found to have a particularly pronounced effect in drug
cases, prosecutors rejected approximately 30% of all felony drug arrests
because of search and seizure problems
258 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
and must be carefully limited to the circumstances in which it
will pay its way by deterring official lawlessness I do not
presume that modification of the exclusionary rule will, by
itself, significantly reduce the crime rate — but that is no
excuse for indiscriminate application of the rule
The suppression doctrine entails other costs as well It
would be surprising if the suppression of evidence garnered
in good faith, but by means later found to violate the Fourth
Amendment, did not deter legitimate as well as unlawful po-
lice activities To the extent the rule operates to discourage
police from reasonable and proper investigative actions, it
hinders the solution and even the prevention of crime A
tremendous burden is also placed on the state and federal ju-
dicial systems One study reveals that one-third of federal
defendants going to trial file Fourth Amendment suppres-
sion motions, and 70% to 90% of these involve formal hear-
ings General Accounting Office, Comptroller General of the
United States, Impact of the Exclusionary Rule on Federal
Criminal Prosecutions 10 (1979)
The rule also exacts a heavy price in undermining public
confidence in the reasonableness of the standards that govern
the criminal justice system "[Although the [exclusionary]
rule is thought to deter unlawful police activity in part
through the nurturing of respect for Fourth Amendment val-
ues, if applied indiscriminately it may well have the opposite
effect of generating disrespect for the law and the adminis-
tration of justice " Stone v Powell, 428 U S , at 490-491
As JUSTICE POWELL observed m Stone v Powell, supra,
at 490 "The disparity in particular cases between the error
committed by the police officer and the windfall afforded a
guilty defendant by application of the rule is contrary to
the idea of proportionality that is essential to the concept of
justice "
For these reasons, "application of the [exclusionary] rule
has been restricted to those areas where its remedial objec-
tives are thought most efficaciously served " United States
ILLINOIS v GATES 259
213 WHITE, J , concurring in judgment
v Calandra, 414 U S , at 348 14 The reasoning of our
recent cases strongly suggests that there is insufficient jus-
tification to suppress evidence at a criminal trial which was
seized in the reasonable belief that the Fourth Amendment
was not violated The deterrent effect of the exclusionary
rule has never been established by empirical evidence, de-
14 Our decisions applying the exclusionary rule have referred to the "im-
perative of judicial integrity," Elkins v United States, 364 U S 206,
222 (1960), although recent opinions of the Court make clear that the pri
mary function of the exclusionary rule is to deter violations of the Fourth
Amendment, Stone v Powell, 428 U S , at 486, United States v Jams,
428 U S 433, 446 (1976), United States v Calandra, 414 U S , at 348
I do not dismiss the idea that the integrity of the courts may be compro-
mised when illegally seized evidence is admitted, but I am convinced that
the force of the argument depends entirely on the type of search or seizure
involved At one extreme, there are lawless invasions of personal privacy
that shock the conscience, and the admission of evidence so obtained must
be suppressed as a matter of due process, entirely aside from the Fourth
Amendment See, e g , Rochm v California, 342 U S 165 (1952) Also
deserving of exclusionary treatment are searches and seizures perpetrated
in intentional and flagrant disregard of Fourth Amendment principles
But the question of exclusion must be viewed through a different lens when
a Fourth Amendment violation occurs because the police have reasonably
erred m assessing the facts, mistakenly conducted a search authorized
under a presumably valid statute, or relied in good faith upon a warrant
not supported by probable cause In these circumstances, the integrity of
the courts is not implicated The violation of the Fourth Amendment is
complete before the evidence is admitted Thus, "[t]he primary meaning
of 'judicial integrity' in the context of evidentiary rules is that the courts
must not commit or encourage violations of the Constitution " United
States v Jams, supra, at 458, n 35 Cf United States v Peltier, 422
U S 531, 537 (1975) ("The teaching of these retroactivity cases is that if
the law enforcement officers reasonably believed in good faith that evi-
dence they had seized was admissible at trial, the 'imperative of judicial
integrity' is not offended by the introduction into evidence of that material
even if decisions subsequent to the search or seizure have broadened the
exclusionary rule to encompass evidence seized in that manner") I am
content that the interests in judicial integrity run along with rather than
counter to the deterrence concept, and that to focus upon the latter is to
promote, not denigrate, the former
260 OCTOBER TERM, 1982
WHITE, J , concurring m judgment 462 U S
spite repeated attempts United States v Jams, 428 U S ,
at 449-453, Irvine v California, 347 U S 128, 136 (1954)
But accepting that the rule deters some police misconduct, it
is apparent as a matter of logic that there is little if any deter-
rence when the rule is invoked to suppress evidence obtained
by a police officer acting in the reasonable belief that his con-
duct did not violate the Fourth Amendment As we initially
observed in Michigan v Tucker, 417 U S , at 447, and re-
iterated in United States v Peltier, 422 U S , at 539
" 'The deterrent purpose of the exclusionary rule nec-
essarily assumes that the police have engaged in will-
ful, or at the very least negligent, conduct which has
deprived the defendant of some right By refusing to
admit evidence gained as a result of such conduct, the
courts hope to instill m those particular investigating
officers, or in their future counterparts, a greater degree
of care toward the rights of an accused Where the offi-
cial action was pursued in complete good faith, however,
the deterrence rationale loses much of its force ' "
The Court in Peltier continued, id , at 542
"If the purpose of the exclusionary rule is to deter
unlawful police conduct then evidence obtained from a
search should be suppressed only if it can be said that the
law enforcement officer had knowledge, or may properly
be charged with knowledge, that the search was uncon-
stitutional under the Fourth Amendment "
See also United States v Jams, supra, at 459, n 35 ("[T]he
officers here were clearly acting m good faith a factor
that the Court has recognized reduces significantly the poten-
tial deterrent effect of exclusion") The deterrent value of
the exclusionary sanction is most effective when officers en-
gage in searches and seizures under circumstances "so lack-
ing in indicia of probable cause as to render official belief in
its existence entirely unreasonable " Brown v Illinois, 422
U S , at 610-611 (POWELL, J , concurring in part) On the
ILLINOIS v GATES 261
213 WHITE, J , concurring in judgment
other hand, when officers perform their tasks in the good-
faith belief that their action comported with constitutional
requirements, the deterrent function of the exclusionary rule
is so minimal, if not nonexistent, that the balance clearly
favors the rule's modification 15
16 It has been suggested that the deterrence function of the exclusionary
rule has been understated by viewing the rule as aimed at special deterrence,
when, in fact, the exclusionary rule is directed at "affecting the wider audi-
ence of law enforcement officials and society at large " 1 W LaFave,
Search and Seizure 6 (1983 Supp ) See also Mertens & Wasserstrom, The
Good Faith Exception to the Exclusionary Rule Deregulating the Police
and Derailing the Law, 70 Geo L J 365, 399-401 (1981) I agree that the
exclusionary rule's purpose is not only, or even primarily, to deter the indi-
vidual police officer involved in the instant case It appears that this ob-
jection assumes that the proposed modification of the exclusionary rule will
turn only on the subjective "good faith" of the officer Grounding the
modification in objective reasonableness, however, retains the value of the
exclusionary rule as an incentive for the law enforcement profession as a
whole to conduct themselves in accord with the Fourth Amendment Duna-
way v New York, 442 U S 200, 221 (1979) (STEVENS, J , concurring)
Indeed, the present indiscriminate application of the exclusionary rule
may hinder the educative and deterrent function of the suppression rem-
edy "Instead of disciplining their employees, police departments gener-
ally have adopted the attitude that the courts cannot be satisfied, that the
rules are hopelessly complicated and subject to change, and that the sup-
pression of evidence is the court's problem and not the departments' "
Kaplan, The Limits of the Exclusionary Rule, 26 Stan L Rev 1027, 1050
(1974) If evidence is suppressed only when a law enforcement officer
should have known that he was violating the Fourth Amendment, police
departments may look more seriously at the officer's misconduct when sup-
pression is invoked Moreover, by providing that evidence gathered in
good-faith reliance on a reasonable rule will not be excluded, a good faith
exception creates an incentive for police departments to formulate rules
governing activities of officers in the search-and-seizure area Many com-
mentators, including proponents of the exclusionary sanction, recognize
that the formulation of such rules by police departments, and the training
necessary to implement these guidelines in practice, are perhaps the most
effective means of protecting Fourth Amendment rights See K Davis,
Discretionary Justice (1969), McGowan, Rule-Making and the Police, 70
Mich L Rev 659 (1972), Amsterdam, Perspectives on the Fourth Amend-
ment, 58 Minn L Rev 349, 416-431 (1974)
262 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
B
There are several types of Fourth Amendment violations
that may be said to fall under the rubric of "good faith "
"[T]here will be those occasions where the trial or appellate
court will disagree on the issue of probable cause, no matter
how reasonable the grounds for arrest appeared to the officer
and though reasonable men could easily differ on the ques-
tion It also happens that after the events at issue have oc-
curred, the law may change, dramatically or ever so slightly,
but in any event sufficiently to require the trial judge to hold
that there was not probable cause to make the arrest and to
seize the evidence offered by the prosecution " Stone v
Powell, 428 U S , at 539-540 (WHITE, J , dissenting) The
argument for a good-faith exception is strongest, however,
when law enforcement officers have reasonably relied on a
judicially issued search warrant
This Court has never set forth a rationale for applying the
exclusionary rule to suppress evidence obtained pursuant to a
search warrant, it has simply done so without considering
whether Fourth Amendment interests will be advanced It
is my view that they generally will not be When officers
have dutifully obtained a search warrant from a judge or
magistrate, and execute the warrant as directed by its terms,
exclusion of the evidence thus obtained cannot be expected
to deter future reliance on such warrants The warrant is
prima facie proof that the officers acted reasonably in con-
ducting the search or seizure, "[o]nce the warrant issues,
there is literally nothing more that the policeman can do
in seeking to comply with the law " Stone v Powell, supra,
at 498 (BURGER, C J , concurring) 16 As JUSTICE STEVENS
16 The Attorney General's Task Force on Violent Crime concluded that
the situation in which an officer relies on a duly authorized warrant
"is a particularly compelling example of good faith A warrant is a judicial
mandate to an officer to conduct a search or make an arrest, and the officer
has a sworn duty to carry out its provisions Accordingly, we believe that
there should be a rule which states that evidence obtained pursuant to and
ILLINOIS?; GATES 263
213 WHITE, J , concurring in judgment
put it in writing for the Court in United States v Ross, 456
U S 798, 823, n 32 (1982) "[A] warrant issued by a magis-
trate normally suffices to establish" that a law enforcement
officer has "acted in good faith in conducting the search "
Nevertheless, the warrant may be invalidated because of a
technical defect or because, as in this case, the judge issued a
warrant on information later determined to fall short of prob-
able cause Excluding evidence for these reasons can have
no possible deterrent effect on future police conduct, unless it
is to make officers less willing to do their duty Indeed,
applying the exclusionary rule to warrant searches may well
reduce incentives for police to utilize the preferred warrant
procedure when a warrantless search may be permissible
under one of the established exceptions to the warrant re-
quirement See ante, at 236, Brown v Illinois, 422 U S ,
at 611, and n 3 (POWELL, J , concurring in part), P Johnson,
New Approaches to Enforcing the Fourth Amendment 11
(unpublished paper, 1978) See also United States v United
States District Court, 407 U S 297, 316-317 (1972), United
States v Ventresca, 380 U S 102, 106-107 (1965)
Opponents of the proposed "reasonable belief " exception
suggest that such a modification would allow magistrates and
judges to flout the probable-cause requirements in issuing
warrants This is a novel concept the exclusionary rule was
adopted to deter unlawful searches by police, not to punish
the errors of magistrates and judges Magistrates must be
neutral and detached from law enforcement operations and I
would not presume that a modification of the exclusionary
rule will lead magistrates to abdicate their responsibility to
apply the law 17 In any event, I would apply the exclusion-
withm the scope of a warrant is prima facie the result of good faith on the
part of the officer seizing the evidence "US Dept of Justice, Attorney
General's Task Force on Violent Crime, Final Report 55 (1981)
17 Much is made of Shadwick v City of Tampa, 407 U S 345 (1972),
where we held that magistrates need not be legally trained Shadunck's
holding was quite narrow First, the Court insisted that "an issuing mag-
264 OCTOBER TERM, 1982
WHITE, J , concurring m judgment 462 U S
ary rule when it is plainly evident that a magistrate or judge
had no business issuing a warrant See, e g , Agmlar v
Texas, 378 U S 108 (1964), Nathanson v United States, 290
U S 41 (1933) Similarly, the good-faith exception would
not apply if the material presented to the magistrate or judge
is false or misleading, Franks v Delaware, 438 U S 154
(1978), or so clearly lacking in probable cause that no well-
trained officer could reasonably have thought that a warrant
should issue
Another objection is that a reasonable-belief exception will
encompass all searches and seizures on the frontier of the
Fourth Amendment and that such cases will escape review
on the question of whether the officer's action was permissi-
ble, denying needed guidance from the courts and freezing
Fourth Amendment law in its present state These fears
are unjustified The premise of the argument is that a court
must first decide the reasonable-belief issue before turning to
the question of whether a Fourth Amendment violation has
occurred I see no need for such an inflexible practice
When a Fourth Amendment case presents a novel question of
law whose resolution is necessary to guide future action by
law enforcement officers and magistrates, there is sufficient
reason for the Court to decide the violation issue before turn-
ing to the good-faith question Indeed, it may be difficult to
istrate must meet two tests He must be neutral and detached, and he
must be capable of determining whether probable cause exists for the re
quested arrest or search " Id , at 350 Second, in Shadwick, the Court
Clerk's authority extended only to the relatively straightforward task of
issuing arrest warrants for breach of municipal ordinances To issue
search warrants, an individual must be capable of making the probable
cause judgments involved In this regard, I reject the Court's insinuation
that it is too much to expect that persons who issue warrants remain
abreast of judicial refinements of probable cause Ante, at 235 Finally,
as indicated in text, I do not propose that a warrant clearly lacking a basis
in probable cause can support a "good-faith" defense to invocation of the
exclusionary rule
ILLINOIS v GATES 265
213 WHITE, J , concurring in judgment
determine whether the officers acted reasonably until the
Fourth Amendment issue is resolved 18 In other circum-
stances, however, a suppression motion poses no Fourth
Amendment question of broad import — the issue is simply
whether the facts in a given case amounted to probable
cause — in these cases, it would be prudent for a reviewing
court to immediately turn to the question of whether the offi-
cers acted in good faith Upon finding that they had, there
would generally be no need to consider the probable-cause
question I doubt that our Fourth Amendment jurispru-
dence would suffer thereby It is not entirely clear to me
that the law in this area has benefited from the constant
pressure of fully litigated suppression motions The result
usually has been that initially bright-line rules have disap-
peared in a sea of ever-finer distinctions Moreover, there
is much to be said for having Fourth Amendment jurispru-
18 Respondents and some amici contend that this practice would be incon-
sistent with the Art III requirement of an actual case or controversy I
have no doubt that a defendant who claims that he has been subjected to an
unlawful search or seizure and seeks suppression of the evidentiary fruits
thereof raises a live controversy within the Art III authority of federal
courts to adjudicate It is fully appropriate for a court to decide whether
there has been a wrong before deciding what remedy to impose When
questions of good-faith immunity have arisen under 42 U S C § 1983, we
have not been constrained to reach invariably the immunity question be-
fore the violation issue Compare O'Connor v Donaldson, 422 U S 563
(1975) (finding constitutional violation and remanding for consideration of
good-faith defense), with Procumer v Navarette, 434 U S 555, 566, n 14
(1978) (finding good-faith defense first) Similarly, we have exercised dis-
cretion at times in deciding the merits of a claim even though the error was
harmless, while on other occasions resolving the case solely by reliance on
the harmless-error doctrine Compare Milton v Wamwright, 407 U S
371, 372 (1972) (declining to decide whether admission of confession was
constitutional violation because error, if any, was harmless beyond a rea-
sonable doubt), with Coleman v Alabama, 399 U S 1 (1970) (upholding
right to counsel at preliminary hearing and remanding for harmless-error
determination)
266 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
dence evolve in part, albeit perhaps at a slower pace, in other
settings 19
Finally, it is contended that a good-faith exception will be
difficult to apply in practice This concern appears grounded
in the assumption that courts would inquire into the sub-
jective belief of the law enforcement officers involved I
would eschew such investigations "[SJendmg state and fed-
eral courts on an expedition into the minds of police officers
would produce a grave and fruitless misallocation of judicial
resources " Massachusetts v Pamten, 389 U S 560, 565
(1968) (WHITE, J , dissenting) Moreover, "[s]ubjective in-
tent alone does not make otherwise lawful conduct illegal
or unconstitutional " Scott v United States, 436 U S 128,
136 (1978) Just last Term, we modified the qualified immu-
nity public officials enjoy in suits seeking damages against
federal officials for alleged deprivations of constitutional
rights, eliminating the subjective component of the standard
See Harlow v Fitzgerald, 457 U S 800 (1982) Although
19 For example, a pattern or practice of official conduct that is alleged
to violate Fourth Amendment rights may be challenged by an aggrieved
individual in a suit for declaratory or injunctive relief See, e g , Zurcher
v Stanford Daily, 436 U S 547 (1978) (Of course, there are limits on
the circumstances in which such actions will he Rizzo v Goode, 423 U S
362 (1976), Los Angeles v Lyons, 461 U S 95 (1983) ) Although a mu-
nicipality is not liable under 42 U S C § 1983 on a theory of respondeat
superior, local governing bodies are subject to suit for constitutional torts
resulting from implementation of local ordinances, regulations, policies, or
even customary practices M onell v New York City Dept of Social Serv
ices, 436 U S 658 (1978) Such entities enjoy no immunity defense that
might impede resolution of the substantive constitutional issue Owen v
City of Independence, 445 U S 622 (1980) In addition, certain state
courts may continue to suppress, as a matter of state law, evidence in state
trials for any Fourth Amendment violation These cases would likely pro-
vide a sufficient supply of state criminal cases in which to resolve unsettled
questions of Fourth Amendment law As a final alternative, I would
entertain the possibility of according the benefits of a new Fourth Amend-
ment rule to the party in whose case the rule is first announced See
Stovall v Denno, 388 U S 293, 301 (1967)
ILLINOIS v GATES 267
213 WHITE, J , concurring in judgment
searches pursuant to a warrant will rarely require any deep
inquiry into reasonableness, I would measure the reason-
ableness of a particular search or seizure only by objective
standards Even for warrantless searches, the requirement
should be no more difficult to apply than the closely related
good-faith test which governs civil suits under 42 U S C
§ 1983 In addition, the burden will likely be offset by the
reduction in the number of cases which will require elongated
considerations of the probable-cause question, and will be
greatly outweighed by the advantages in limiting the bite of
the exclusionary rule to the field in which it is most likely to
have its intended effects
III
Since a majority of the Court deems it inappropriate to
address the good-faith issue, I briefly address the question
that the Court does reach — whether the warrant authorizing
the search and seizure of respondents' car and home was con-
stitutionally valid Abandoning the "two-pronged test" of
Aguilar v Texas, 378 U S 108 (1964), and Spinelh v
United States, 393 U S 410 (1969), the Court upholds the
validity of the warrant under a new "totality of the cir-
cumstances" approach Although I agree that the warrant
should be upheld, I reach this conclusion in accordance with
the Agmlar-Spmelh framework
For present purposes, the Agmlar-Spinelh rules can be
summed up as follows First, an affidavit based on an in-
formant's tip, standing alone, cannot provide probable cause
for issuance of a warrant unless the tip includes information
that apprises the magistrate of the informant's basis for
concluding that the contraband is where he claims it -S
(the "basis of knowledge" prong), and the affiant informs
the magistrate of his basis for believing that the informant
is credible (the "veracity" prong) Agmlar, supra, at 114,
26g OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
Spinelh, supra, at 412-413, 416 20 Second, if a tip fails under
either or both of the two prongs, probable cause may yet be
established by independent police investigatory work that
corroborates the tip to such an extent that it supports "both
the inference that the informer was generally trustworthy
and that he made his charge on the basis of information
obtained in a reliable way " Spinelh, supra, at 417 In in-
stances where the officers rely on corroboration, the ultimate
question is whether the corroborated tip "is as trustworthy
as a tip which would pass Aguilar's tests without independ-
ent corroboration " 393 U S , at 415
In the present case, it is undisputed that the anonymous
tip, by itself, did not furnish probable cause The question is
whether those portions of the affidavit describing the results
of the police investigation of the respondents, when consid-
ered in light of the tip, "would permit the suspicions engen-
dered by the informant's report to ripen into a judgment that
a crime was probably being committed " Spinelh, supra, at
418 The Illinois Supreme Court concluded that the corrobo-
ration was insufficient to permit such a ripening 85 111 2d
376, 387, 423 N E 2d 887, 892 (1981) The court reasoned
as follows
"[T]he nature of the corroborating evidence in this case
would satisfy neither the 'basis of knowledge' nor the
20 The "veracity" prong is satisfied by a recitation m the affidavit that
the informant previously supplied accurate information to the police, see
McCray v Illinois, 386 U S 300, 303-304 (1967), or by proof that the in-
formant gave his information against his penal interest, see United States
v Harris, 403 U S 573, 583-584 (1971) (plurality opinion) The "basis of
knowledge" prong is satisfied by a statement from the informant that he
personally observed the criminal activity, or, if he came by the information
indirectly, by a satisfactory explanation of why his sources were reliable,
or, in the absence of a statement detailing the manner in which the in-
formation was gathered, by a description of the accused's criminal activity
in sufficient detail that the magistrate may infer that the informant is rely-
ing on something more substantial than casual rumor or an individual's
general reputation Spinelh v United States, 393 U S , at 416
ILLINOIS v GATES 269
213 WHITE, J , concurring in judgment
'veracity' prong of Agmlar Looking to the affidavit
submitted as support for Detective Mader's request that
a search warrant issue, we note that the corrobora-
tive evidence here was only of clearly innocent activity
Mader's independent investigation revealed only that
Lance and Sue Gates lived on Greenway Drive, that
Lance Gates booked passage on a flight to Florida, that
upon arriving he entered a room registered to his wife,
and that he and his wife left the hotel together by car
The corroboration of innocent activity is insufficient to
support a finding of probable cause " Id , at 390, 423
N E 2d, at 893
In my view, the lower court's characterization of the
Gateses' activity here as totally "innocent" is dubious In fact,
the behavior was quite suspicious I agree with the Court,
ante, at 243, that Lance Gates' flight to West Palm Beach, an
area known to be a source of narcotics, the brief overnight
stay in a motel, and apparent immediate return north, sug-
gest a pattern that trained law enforcement officers have
recognized as indicative of illicit drug-dealing activity 21
Even, however, had the corroboration related only to com-
pletely innocuous activities, this fact alone would not pre-
clude the issuance of a valid warrant The critical issue is
not whether the activities observed by the police are inno-
cent or suspicious Instead, the proper focus should be on
whether the actions of the suspects, whatever their nature,
give rise to an inference that the informant is credible and
that he obtained his information in a reliable manner
Thus, in Draper v United States, 358 U S 307 (1959), an
informant stated on September 7 that Draper would be car-
rying narcotics when he arrived by tram in Denver on the
morning of September 8 or September 9 The informant
also provided the police with a detailed physical description
21 See United States v Mendenhall, 446 U S 544, 562 (1980) (POWELL,
J , concurring in part and concurring m judgment)
270 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
of the clothes Draper would be wearing when he alighted
from the tram The police observed Draper leaving a train
on the morning of September 9, and he was wearing the pre-
cise clothing described by the informant The Court held
that the police had probable cause to arrest Draper at this
point, even though the police had seen nothing more than the
totally innocent act of a man getting off a tram carrying a
briefcase As we later explained in Spinelh, the important
point was that the corroboration showed both that the in-
formant was credible, i e , that he "had not been fabricating
his report out of whole cloth," Spinelh, 393 U S , at 417, and
that he had an adequate basis of knowledge for his allega-
tions, "since the report was of the sort which in common
experience may be recognized as having been obtained in a
reliable way " Id , at 417-418 The fact that the informant
was able to predict, two days in advance, the exact clothing
Draper would be wearing dispelled the possibility that his tip
was just based on rumor or "an offhand remark heard at a
neighborhood bar " Id , at 417 Probably Draper had
planned in advance to wear these specific clothes so that an
accomplice could identify him A clear inference could there-
fore be drawn that the informant was either involved in the
criminal scheme himself or that he otherwise had access to
reliable, inside information **
22 Thus, as interpreted in Spinelh, the Court in Draper held that there
was probable cause because "the kind of information related by the inform-
ant [was] not generally sent ahead of a person's arrival in a city except
to those who are intimately connected with making careful arrangements
for meeting him " Spinelh, supra, at 426 (WHITE, J , concurring) As I
said in Spinelh, the conclusion that Draper itself was based on this fact
is far from inescapable Prior to Spmelh, Draper was susceptible to the
interpretation that it stood for the proposition that "the existence of the
tenth and critical fact is made sufficiently probable to justify the issuance
of a warrant by verifying nine other facts coming from the same source "
Spinelh, supra, at 426-427 (WHITE, J , concurring) But it now seems
clear that the Court in Spinelh rejected this reading of Draper
JUSTICE BRENNAN, post, at 280, n 3, 281-282, erroneously interprets
my Spinelh concurrence as espousing the view that "corroboration of cer-
ILLINOIS v GATES 271
213 WHITE, J , concurring in judgment
As in Draper, the police investigation in the present case
satisfactorily demonstrated that the informant's tip was as
trustworthy as one that would alone satisfy the Agmlar
tests The tip predicted that Sue Gates would drive to Flor-
ida, that Lance Gates would fly there a few days after May 3,
and that Lance would then drive the car back After the
police corroborated these facts,23 the judge could reasonably
have inferred, as he apparently did, that the informant, who
had specific knowledge of these unusual travel plans, did not
make up his story and that he obtained his information in a
reliable way It is theoretically possible, as respondents
insist, that the tip could have been supplied by a "vindic-
tive travel agent" and that the Gateses' activities, although
unusual, might not have been unlawful 24 But Agmlar and
Spinelh, like our other cases, do not require that certain
guilt be established before a warrant may properly be is-
sued "[O]nly the probability, and not a prima facie show-
tain details in a tip may be sufficient to satisfy the veracity, but not the
basis of knowledge, prong of Agmlar " Others have made the same mis-
take See, e g , Comment, 20 Am Grim L Rev 99, 105 (1982) I did
not say that corroboration could never satisfy the "basis of knowledge"
prong My concern was, and still is, that the prong might be deemed sat-
isfied on the basis of corroboration of information that does not in any way
suggest that the informant had an adequate basis of knowledge for his re-
port If, however, as in Draper, the police corroborate information from
which it can be inferred that the informant's tip was grounded on inside
information, this corroboration is sufficient to satisfy the "basis of knowl-
edge" prong Spinelh, 393 U S , at 426 (WHITE, J , concurring) The
rules would indeed be strange if, as JUSTICE BRENNAN suggests, post, at
284, the "basis of knowledge" prong could be satisfied by detail in the tip
alone, but not by independent police work
28 JUSTICE STEVENS is correct, post, at 291, that one of the informant's
predictions proved to be inaccurate However, I agree with the Court,
ante, at 245, n 14, that an informant need not be infallible
24 It is also true, as JUSTICE STEVENS points out, post, at 292, n 3, that
the fact that respondents were last seen leaving West Palm Beach on a
northbound interstate highway is far from conclusive proof that they were
heading directly to Bloommgdale
272 OCTOBER TERM, 1982
WHITE, J , concurring in judgment 462 U S
ing, of criminal activity is the standard of probable cause "
Spinelh, supra, at 419 (citing Beck v Ohio, 379 U S 89,
96 (1964)) I therefore conclude that the judgment of the
Illinois Supreme Court invalidating the warrant must be
reversed
B
The Court agrees that the warrant was valid, but, in the
process of reaching this conclusion, it overrules the Agmlar-
Spinelh tests and replaces them with a "totality of the cir-
cumstances" standard As shown above, it is not at all nec-
essary to overrule Aguilar-Spinelli in order to reverse the
judgment below Therefore, because I am inclined to be-
lieve that, when applied properly, the Aguilar-Spinelli rules
play an appropriate role in probable-cause determinations,
and because the Court's holding may foretell an evisceration
of the probable-cause standard, I do not join the Court's
holding
The Court reasons, ante, at 233, that the "veracity" and
"basis of knowledge" tests are not independent, and that a
deficiency as to one can be compensated for by a strong show-
ing as to the other Thus, a finding of probable cause may be
based on a tip from an informant "known for the unusual reli-
ability of his predictions" or from "an unquestionably honest
citizen," even if the report fails thoroughly to set forth the
basis upon which the information was obtained Ibid If
this is so, then it must follow a fortiori that "the affidavit of
an officer, known by the magistrate to be honest and experi-
enced, stating that [contraband] is located in a certain
building" must be acceptable Spmelli, 393 U S , at 424
(WHITE, J , concurring) It would be "quixotic" if a similar
statement from an honest informant, but not one from an
honest officer, could furnish probable cause Ibid But we
have repeatedly held that the unsupported assertion or belief
of an officer does not satisfy the probable-cause requirement
See, e g , Whiteley v Warden, 401 U S 560, 564-565
ILLINOIS v GATES 273
213 WHITE, J , concurring in judgment
(1971), Jones v United States, 362 U S 257, 269 (1960),
Nathanson v United States, 290 U S 41 (1933) * Thus,
this portion of today's holding can be read as imphcitly reject-
ing the teachings of these prior holdings
The Court may not intend so drastic a result Indeed, the
Court expressly reaffirms, ante, at 239, the validity of cases
such as Nathanson that have held that, no matter how reli-
able the affiant-officer may be, a warrant should not be issued
unless the affidavit discloses supporting facts and circum-
stances The Court limits these cases to situations involving
affidavits containing only "bare conclusions" and holds that,
if an affidavit contains anything more, it should be left to
the issuing magistrate to decide, based solely on "practical-
ity]" and "common sense," whether there is a fair probability
that contraband will be found in a particular place Ante, at
238-239
Thus, as I read the majority opinion, it appears that the
question whether the probable-cause standard is to be diluted
is left to the common-sense judgments of issuing magistrates
I am reluctant to approve any standard that does not ex-
pressly require, as a prerequisite to issuance of a warrant,
some showing of facts from which an inference may be drawn
that the informant is credible and that his information was
obtained in a reliable way The Court is correctly concerned
with the fact that some lower courts have been applying
Agmlar-Spinelh in an unduly rigid manner M I believe,
however, that with clarification of the rule of corroborating
25 1 have already indicated my view, supra, at 263-264, that such a "bare-
bones" affidavit could not be the basis for a good-faith issuance of a
warrant
26Bridger\ State, 503 S W 2d 801 (Tex Grim App 1974), and People
v Palanza, 55 111 App 3d 1028, 371 N E 2d 687 (1978), which the Court
describes ante, at 234, n 9, appear to me to be excellent examples of overly
technical applications of the Agmlar-Spinelh standard The holdings in
these cases could easily be disapproved without reliance on a "totality of
the circumstances" analysis
274 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
information, the lower courts are fully able to properly inter-
pret Aguilar-Spmelli and avoid such unduly rigid applica-
tions I may be wrong, it ultimately may prove to be the
case that the only profitable instruction we can provide to
magistrates is to rely on common sense But the question
whether a particular anonymous tip provides the basis for is-
suance of a warrant will often be a difficult one, and I would
at least attempt to provide more precise guidance by clarify-
ing Agmlar'Spmelh and the relationship of those cases with
Draper before totally abdicating our responsibility in this
area Hence, I do not join the Court's opinion rejecting the
Agmlar-Spinelh rules
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting
Although I join JUSTICE STEVENS' dissenting opinion and
agree with him that the warrant is invalid even under the
Court's newly announced "totality of the circumstances" test,
see post, at 294-295, and n 8, I write separately to dissent
from the Court's unjustified and ill-advised rejection of the
two-prong test for evaluating the validity of a warrant based
on hearsay announced in Aguilar v Texas, 378 U S 108
(1964), and refined in Spinelh v United States, 393 U S 410
(1969)
I
The Court's current Fourth Amendment jurisprudence,
as reflected by today's unfortunate decision, patently disre-
gards Justice Jackson's admonition in Bnnegar v United
States, 338 U S 160 (1949)
"[Fourth Amendment rights] are not mere second-
class rights but belong in the catalog of indispensa-
ble freedoms Among deprivations of rights, none is
so effective in cowing a population, crushing the spirit
of the individual and putting terror in every heart
ILLINOIS v GATES 275
213 BRENNAN, J , dissenting
Uncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbitrary
government
"But the right to be secure against searches and sei-
zures is one of the most difficult to protect Since the
officers are themselves the chief invaders, there is no en-
forcement outside of court " Id , at 180-181 (dissenting
opinion)
In recognition of the judiciary's role as the only effective
guardian of Fourth Amendment rights, this Court has devel-
oped over the last half century a set of coherent rules govern-
ing a magistrate's consideration of a warrant application and
the showings that are necessary to support a finding of prob-
able cause We start with the proposition that a neutral and
detached magistrate, and not the police, should determine
whether there is probable cause to support the issuance of a
warrant In Johnson v United States, 333 U S 10 (1948),
the Court stated
"The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence Its protection
consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enter-
prise of ferreting out crime When the right of
privacy must reasonably yield to the right of search is,
as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent " Id , at
13-14 (footnote omitted)
See also Whiteley v Warden, 401 U S 560, 564 (1971),
Spinelli v United States, supra, at 415, United States v
Ventresca, 380 U S 102, 109 (1965), Agmlar v Texas,
supra, at 111, Jones v United States, 362 U S 257, 270-271
276 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
(1960), Giordenello v United States, 357 U S 480, 486
(1958), United States v Lefkowitz, 285 U S 452, 464 (1932)
In order to emphasize the magistrate's role as an independ-
ent arbiter of probable cause and to insure that searches or
seizures are not effected on less than probable cause, the
Court has insisted that police officers provide magistrates
with the underlying facts and circumstances that support the
officers' conclusions In Nathanson v United States, 290
U S 41 (1933), the Court held invalid a search warrant that
was based on a customs agent's "mere affirmation of suspi-
cion and belief without any statement of adequate supporting
facts " Id , at 46 The Court stated "Under the Fourth
Amendment, an officer may not properly issue a warrant to
search a private dwelling unless he can find probable cause
therefor from facts or circumstances presented to him under
oath or affirmation Mere affirmance of belief or suspicion is
not enough " Id , at 47
In Gwrdenello v United States, supra, the Court re-
viewed an arrest warrant issued under the Federal Rules of
Criminal Procedure based on a complaint sworn to by a Fed-
eral Bureau of Narcotics agent Id , at 481 1 Based on the
agent's testimony at the suppression hearing, the Court
noted that "until the warrant was issued [the agent's]
suspicions of petitioner's guilt derived entirely from informa-
tion given him by law enforcement officers and other persons
in Houston, none of whom either appeared before the Com-
missioner or submitted affidavits " Id , at 485 The Court
found it unnecessary to decide whether a warrant could be
based solely on hearsay information, for the complaint was
"defective in not providing a sufficient basis upon which a
1 Although the warrant was issued under the Federal Rules of Criminal
Procedure, the Court stated that "[t]he provisions of these Rules must be
read in light of the constitutional requirements they implement " 357
U S , at 485 See Agmlar v Texas, 378 U S 108, 112, n 3 (1964) ("The
principles announced in Giordenello derived from the Fourth Amend
ment, and not from our supervisory power")
ILLINOIS v GATES 277
213 BRENNAN, J , dissenting
finding of probable cause could be made " Ibid In particu-
lar, the complaint contained no affirmative allegation that the
agent spoke with personal knowledge nor did it indicate any
sources for the agent's conclusion Id , at 486 The Court
expressly rejected the argument that these deficiencies could
be cured by "the Commissioner's reliance upon a presumption
that the complaint was made on the personal knowledge of
the complaining officer " Ibid
As noted, the Court did not decide the hearsay question
lurking in Giordenello The use of hearsay to support the
issuance of a warrant presents special problems because in-
formants, unlike police officers, are not regarded as presump-
tively reliable or honest Moreover, the basis for an inform-
ant's conclusions is not always clear from an affidavit that
merely reports those conclusions If the conclusory allega-
tions of a police officer are insufficient to support a finding
of probable cause, surely the conclusory allegations of an
informant should a fortiori be insufficient
In Jones v United States, supra, the Court considered
"whether an affidavit which sets out personal observations
relating to the existence of cause to search is to be deemed
insufficient by virtue of the fact that it sets out not the affi-
ant's observations but those of another " Id , at 269 The
Court held that hearsay information can support the issuance
of a warrant "so long as a substantial basis for crediting the
hearsay is presented " Ibid The Court found that there
was a substantial basis for crediting the hearsay involved in
Jones The informant's report was based on the inform-
ant's personal knowledge, and the informant previously had
provided accurate information Moreover, the informant's
story was corroborated by other sources Finally, the de-
fendant was known to the police to be a narcotics user Id ,
at 271
Aguilar v Texas, 378 U S 108 (1964), merely made ex-
plicit what was implicit in Jones In considering a search
warrant based on hearsay, the Court reviewed Nathanson
278 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
and Giordenello and noted the requirement established by
those cases that an officer provide the magistrate with the
underlying facts or circumstances that support the officer's
conclusion that there is probable cause to justify the issuance
of a warrant The Court stated
"The vice in the present affidavit is at least as great as
in Nathanson and Giordenello Here, the 'mere conclu-
sion' that petitioner possessed narcotics was not even
that of the affiant himself, it was that of an unidenti-
fied informant The affidavit here not only 'contains no
affirmative allegation that the affiant spoke with per-
sonal knowledge of the matters contained therein/ it
does not even contain an 'affirmative allegation' that the
affiant's unidentified source 'spoke with personal knowl-
edge ' For all that appears, the source here merely sus-
pected, believed or concluded that there were narcotics
in petitioner's possession The magistrate here cer-
tainly could not 'judge for himself the persuasiveness
of the facts relied on to show probable cause ' He
necessarily accepted 'without question' the informant's
'suspicion,' 'belief or 'mere conclusion'" 378 U S,
at 113-114 (footnote omitted) 2
While recognizing that a warrant may be based on hearsay,
the Court established the following standard
"[T]he magistrate must be informed of some of the un-
derlying circumstances from which the informant con-
2 The Court noted that approval of the affidavit before it "would open
the door to easy circumvention of the rule announced in Nathanson and
Gkordenello " 378 U S , at 114, n 4 The Court stated
"A police officer who arrived at the 'suspicion/ 'belief or 'mere conclusion'
that narcotics were in someone's possession could not obtain a warrant
But he could convey this conclusion to another police officer, who could
then secure the warrant by swearing that he had 'received reliable in-
formation from a credible person' that the narcotics were m someone's pos-
session " Ibid
ILLINOIS v GATES 279
213 BRENNAN, J , dissenting
eluded that the narcotics were where he claimed they
were, and some of the underlying circumstances from
which the officer concluded that the informant, whose
identity need not be disclosed was 'credible' or his
information 'reliable ' Otherwise, 'the inferences from
the facts which lead to the complaint' will be drawn not
'by a neutral and detached magistrate/ as the Constitu-
tion requires, but instead, by a police officer 'engaged in
the often competitive enterprise of ferreting out crime'
or, as in this case, by an unidentified informant "
Id , at 114-115 (footnote omitted)
The Aguilar standard was refined in Spinelh v United
States, 393 U S 410 (1969) In Spinelh, the Court re-
viewed a search warrant based on an affidavit that was "more
ample/' id , at 413, than the one in Aguilar The affidavit in
Spinelli contained not only a tip from an informant, but also a
report of an independent police investigation that allegedly
corroborated the informant's tip 393 U S , at 413 Under
these circumstances, the Court stated that it was "required
to delineate the manner in which Agmlar's two-pronged test
should be applied " Ibid
The Court held that the Aguilar test should be applied to
the tip, and approved two additional ways of satisfying that
test First, the Court suggested that if the tip contained
sufficient detail describing the accused's criminal activity it
might satisfy Aguilar^s basis of knowledge prong 393
U S , at 416 Such detail might assure the magistrate that
he is "relying on something more substantial than a casual
rumor circulating in the underworld or an accusation based
merely on an individual's general reputation " Ibid Al-
though the tip in the case before it did not meet this stand-
ard, "[t]he detail provided by the informant in Draper v
United States, 358 U S 307 (1959), provide[d] a suitable
benchmark," ibid , because "[a] magistrate, when confronted
with such detail, could reasonably infer that the informant
280 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u g
had gamed his information in a reliable way " Id , at 417
(footnote omitted) 3
Second, the Court stated that police corroboration of the
details of a tip could provide a basis for satisfying Aguilar
3 There is some tension between Draper v United States, 358 U S 307
(1959), and Aguilar In Draper, the Court considered the validity of a
warrantless arrest based on an informant's tip and police corroboration of
certain details of the tip The informant, who m the past had always given
accurate and reliable information, told the police that Draper was peddling
narcotics The informant later told the police that Draper had left for
Chicago by tram to pick up some heroin and would return by tram on
the morning of one of two days The informant gave the police a detailed
physical description of Draper and of the clothing he was wearing The
informant also said that Draper would be carrying a tan zipper bag and
that he walked very fast 358 U S , at 309
On the second morning specified by the informant, the police saw a man
"having the exact physical attributes and wearing the precise clothing de
scribed by [the informant], alight from an incoming Chicago train and start
walking 'fast' toward the exit " Id , at 309-310 The man was carrying a
tan zipper bag The police arrested him and searched him incident to the
arrest Id , at 310
The Court found that the arrest had been based on probable cause
Having verified every detail of the tip "except whether [Draper] had ac
comphshed his mission and had the three ounces of heroin on his person
or in his bag," id , at 313, the pohce "had 'reasonable grounds' to believe
that the remaining unverified bit of [the informant's] information was
likewise true " Ibid
There is no doubt that the tip satisfied Agmla^s veracity prong The
informant had given accurate information in the past Moreover, under
Spinelh, the pohce corroborated most of the details of the informant's tip
See Spinelh v United States, 393 U S , at 417, id , at 426-427 (WHITE, J ,
concurring), infra, at 281, and n 4 There is some question, however,
about whether the tip satisfied Aguilar>s basis of knowledge prong The
fact that an informant is right about most things may suggest that he is
credible, but it does not establish that he has acquired his information m a
reliable way See Spinelh v United States, supra, at 426-427 (WHITE,
J , concurring) Spinelh's "self-verifying detail" element resolves this
tension As one commentator has suggested, "under Spinelli, the Draper
decision is sound as applied to its facts " Note, The Informer's Tip As
Probable Cause for Search or Arrest, 54 Cornell L Rev 958, 964, n 34
(1969)
ILLINOIS v GATES 281
213 BRENNAN, J , dissenting
393 U S , at 417 The Court's opinion is not a model of clar-
ity on this issue since it appears to suggest that corroboration
can satisfy both the basis of knowledge and veracity prongs
ofAgmlar 393 U S , at 417-418 4 JUSTICE WHITE'S con-
curring opinion, however, points the way to a proper reading
of the Court's opinion After reviewing the Court's decision
in Draper v United States, 358 U S 307 (1959), JUSTICE
WHITE concluded that "[t]he thrust of Draper is not that the
verified facts have independent significance with respect to
proof of [another unverified fact] " 393 U S , at 427 In
his view, "[t]he argument instead relates to the reliability of
the source because an informant is right about some things,
he is more probably right about other facts, usually the criti-
cal, unverified facts " Ibid JUSTICE WHITE then pointed
out that prior cases had rejected "the notion that the past
4 The Court stated that the Federal Bureau of Investigation's independ-
ent investigative efforts could not "support both the inference that the in-
former was generally trustworthy and that he had made his charge against
Spinelh on the basis of information obtained in a reliable way " Spinelh v
United States, supra, at 417 The Court suggested that Draper again pro-
vided "a relevant comparison " 393 U S , at 417 Once the police had
corroborated most of the details of the tip in Draper "[i]t was apparent
that the informant had not been fabricating his report out of whole cloth,
since the report was of the sort which in common experience may be recog-
nized as having been obtained in a reliable way, it was perfectly clear that
probable cause had been established " 393 U S , at 417-418
It is the Court's citation of Draper which creates most of the confusion
The informant's credibility was not at issue in Draper irrespecti /e of the
corroboration of the details of his tip See n 3, supra The Court's opin-
ion, therefore, might be read as suggesting that corroboration also could
satisfy Aguilar*s basis of knowledge test I think it is more likely, how-
ever, especially in view of the discussion infra, this page and 282, that the
Court simply was discussing an alternative means of satisfying Agmlar's
veracity prong, using the facts of Draper as an example, and relying on its
earlier determination that the detail of the tip in Draper was self-verifying
See 393 U S , at 416-417 It is noteworthy that although the affiant
in Spinelh had sworn that the informer was reliable, "he [had] offered
the magistrate no reason in support of this conclusion " Id , at 416
Aguilar's veracity prong, therefore, was not satisfied 393 U S , at 416
282 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
reliability of an officer is sufficient reason for believing his
current assertions " Ibid JUSTICE WHITE went on to
state
"Nor would it suffice, I suppose, if a reliable informant
states there is gambling equipment in Apartment 607
and then proceeds to describe in detail Apartment 201, a
description which is verified before applying for the war-
rant He was right about 201, but that hardly makes
him more believable about the equipment in 607 But
what if he states that there are narcotics locked in a safe
in Apartment 300, which is described m detail, and the
apartment manager verifies everything but the contents
of the safe? I doubt that the report about the narcotics
is made appreciably more believable by the verification
The informant could still have gotten his information
concerning the safe from others about whom nothing is
known or could have inferred the presence of narcotics
from circumstances which a magistrate would find unac-
ceptable " Ibid
I find this reasoning persuasive Properly understood,
therefore, Spinelh stands for the proposition that corrobora-
tion of certain details in a tip may be sufficient to satisfy the
veracity, but not the basis of knowledge, prong of Aguilar
As noted, Spinelh also suggests that m some limited circum-
stances considerable detail in an informant's tip may be ade-
quate to satisfy the basis of knowledge prong of Aguilar 5
5 After concluding that the tip was not sufficient to support a finding of
probable cause, the Court stated
"This is not to say that the tip was so insubstantial that it could not prop-
erly have counted m the magistrate's determination Rather, it needed
some further support When we look to the other parts of the application,
however, we find nothing alleged which would permit the suspicions en
gendered by the informant's report to ripen into a judgment that a crime
was probably being committed " Spinelh v United States, 393 U S , at
418
The Court went on to suggest that corroboration of incriminating facts
would be needed See ibid
ILLINOIS v GATES 283
213 BRENNAN, J , dissenting
Although the rules drawn from the cases discussed above
are cast in procedural terms, they advance an important un-
derlying substantive value Findings of probable cause, and
attendant intrusions, should not be authorized unless there is
some assurance that the information on which they are based
has been obtained in a reliable way by an honest or credible
person As applied to police officers, the rules focus on the
way in which the information was acquired As applied to
informants, the rules focus both on the honesty or credibility
of the informant and on the reliability of the way in which the
information was acquired Insofar as it is more complicated,
an evaluation of affidavits based on hearsay involves a more
difficult inquiry This suggests a need to structure the in-
quiry in an effort to insure greater accuracy The standards
announced in Agmlar, as refined by Spinelh, fulfill that
need The standards inform the police of what information
they have to provide and magistrates of what information
they should demand The standards also inform magistrates
of the subsidiary findings they must make in order to arrive
at an ultimate finding of probable cause Spinelh, properly
understood, directs the magistrate's attention to the possibil-
ity that the presence of self-verifying detail might satisfy
Aguilar's basis of knowledge prong and that corroboration of
the details of a tip might satisfy Aguilar*s veracity prong
By requiring police to provide certain crucial information to
magistrates and by structuring magistrates' probable-cause
inquiries, Aguilar and Spinelh assure the magistrate's role
as an independent arbiter of probable cause, insure greater
accuracy in probable-cause determinations, and advance the
substantive value identified above
Until today the Court has never squarely addressed the
application of the Agmlar and Spinelh standards to tips from
anonymous informants Both Agmlar and Spinelh dealt
with tips from informants known at least to the police See
also, e g , Adams v Williams, 407 U S 143, 146 (1972),
United States v Harris, 403 U S 573, 575 (1971), Whiteley
v Warden, 401 U S , at 565, McCray v Illinois, 386 U S
284 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
300, 302 (1967), Jones v United States, 362 U S , at 268-
269* And surely there is even more reason to subject anony-
mous informants' tips to the tests established by Agmlar and
Spinelh By definition nothing is known about an anony-
mous informant's identity, honesty, or reliability One com-
mentator has suggested that anonymous informants should
be treated as presumptively unreliable See Comment,
Anonymous Tips, Corroboration, and Probable Cause Rec-
onciling the Spmelh/Draper Dichotomy in Illinois v Gates,
20 Am Cnm L Rev 99, 107 (1982) See also Adams v
Williams, supra, at 146 (suggesting that an anonymous tele-
phone tip provides a weaker case for a Terry v Ohio, 392
U S 1 (1968), stop than a tip from an informant known to
the police who had provided information in the past), United
States v Hams, supra, at 599 (Harlan, J , dissenting) ("We
cannot assume that the ordinary law-abiding citizen has
qualms about [appearing before a magistrate]") In any
event, there certainly is no basis for treating anonymous
informants as presumptively reliable Nor is there any basis
for assuming that the information provided by an anonymous
informant has been obtained in a reliable way If we are
unwilling to accept conclusory allegations from the police,
who are presumptively reliable, or from informants who are
known, at least to the police, there cannot possibly be any
rational basis for accepting conclusory allegations from anon-
ymous informants
To suggest that anonymous informants' tips are subject to
the tests established by Aguilar and Spinelh is not to sug-
gest that they can never provide a basis for a finding of prob-
able cause It is conceivable that police corroboration of the
details of the tip might establish the reliability of the inform-
ant under Agmlar's veracity prong, as refined in Spinelh,
and that the details in the tip might be sufficient to qualify
under the "self-verifying detail" test established by Spinelh
as a means of satisfying Aguilafs basis of knowledge prong
The Aguilar and Spinelh tests must be applied to anonymous
informants' tips, however, if we are to continue to insure
ILLINOIS v GATES 285
213 BRENNAN, J , dissenting
that findings of probable cause, and attendant intrusions, are
based on information provided by an honest or credible per-
son who has acquired the information in a reliable way 6
In light of the important purposes served by Aguilar and
Spmelh, I would not reject the standards they establish If
anything, I simply would make more clear that Spinelh,
properly understood, does not depart in any fundamental
way from the test established by Agmlar For reasons I
shall next state, I do not find persuasive the Court's justifica-
tions for rejecting the test established by Agmlar and refined
by Spinelh
6 As noted, supra, at 277-282, Agmlar and Spinelh inform the police of
what information they have to provide and magistrates of what information
they should demand This advances the important process value, which is
intimately related to substantive Fourth Amendment concerns, of having
magistrates, rather than police, or informants, determine whether there is
probable cause to support the issuance of a warrant We want the police
to provide magistrates with the information on which they base their con-
clusions so that magistrates can perform their important function Wher
the police rely on facts about which they have personal knowledge, requir-
ing them to disclose those facts to magistrates imposes no significant bur-
den on the police When the police rely on information obtained from con-
fidential informants, requiring the police to disclose the facts on which the
informants based then: conclusions imposes a more substantial burden on
the police, but it is one that they can meet because they presumably have
access to their confidential informants
In cases in which the police rely on information obtained from an anony-
mous informant, the police, by hypothesis, cannot obtain further informa-
tion from the informant regarding the facts and circumstances on which the
informant based his conclusion When the police seek a warrant based
solely on an anonymous informant's tip, therefore, they are providing the
magistrate with all the information on which they have based their conclu-
sion In this respect, the command of Aguilar and Spinelh has been met
and the process value identified above has been served But Agmlar and
Spinelh advance other values which argue for their application even to
anonymous informants' tips They structure the magistrate's probable-
cause inquiry and, more importantly, they guard against findings of proba-
ble cause, and attendant intrusions, based on anything other than informa-
tion which magistrates reasonably can conclude has been obtained in a
reliable way by an honest or credible person
OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
II
In rejecting the Aguilar-Spmelh standards, the Court
suggests that a "totahty-of-the-circumstances approach is far
more consistent with our prior treatment of probable cause
than is any rigid demand that specific 'tests' be satisfied by
every informant's tip " Ante, at 230-231 (footnote omitted)
In support of this proposition the Court relies on several
cases that purportedly reflect this approach, ante, at 230-
231, n 6, 232-233, n 7, and on the "practical, nontechnical,"
ante, at 231, nature of probable cause
Only one of the cases cited by the Court in support of its
"totality of the circumstances" approach, Jaben v United
States, 381 U S 214 (1965), was decided subsequent to
Agmlar It is by no means inconsistent with Aguilar1
The other three cases 8 cited by the Court as supporting its
7 In Jaben v United States, the Court considered whether there was
probable cause to support a complaint charging petitioner with willfully fil
ing a false tax return 381 U S , at 221 After reviewing the extensive
detail contained m the complaint, id , at 223, the Court expressly distin
guished tax offenses from other types of offenses
"Some offenses are subject to putative establishment by blunt and concise
factual allegations, e g , 'A saw narcotics in B's possession/ whereas 'A
saw B file a false tax return' does not mean very much in a tax evasion
case Establishment of grounds for belief that the offense of tax evasion
has been committed often requires a reconstruction of the taxpayer's m
come from many individually unrevealing facts which are not susceptible of
a concise statement in a complaint Furthermore, unlike narcotics inform
ants, for example, whose credibility may often be suspect, the sources in
this tax evasion case are much less likely to produce false or untrustworthy
information Thus, whereas some supporting information concerning the
credibility of informants in narcotics cases or other common garden varie
ties of crime may be required, such information is not so necessary in the
context of the case before us " Id , at 223-224
Obviously, Jaben is not inconsistent with Aguilar and involved no general
rejection of the Aguilar standards
&Rugendorf v United States, 376 U S 528 (1964), Ker v California,
374 U S 23 (1963), Jones v United States, 362 U S 257 (1960)
ILLINOIS v GATES 287
213 BRENNAN, J , dissenting
totahty-of-the-circumstances approach were decided before
Agmlar In any event, it is apparent from the Court's dis-
cussion of them, see ante, at 232-233, n 7, that they are not
inconsistent with Agmlar
In addition, one can concede that probable cause is a "prac-
tical, nontechnical" concept without betraying the values that
Agmlar and Spinelh reflect As noted, see supra, at 277-
282, Agmlar and Spmelh require the police to provide magis-
trates with certain crucial information They also provide
structure for magistrates' probable-cause inquiries In so
doing, Agmlar and Spmelh preserve the role of magistrates
as independent arbiters of probable cause, insure greater
accuracy in probable-cause determinations, and advance the
substantive value of precluding findings of probable cause,
and attendant intrusions, based on anything less than in-
formation from an honest or credible person who has ac-
quired his information in a reliable way Neither the stand-
ards nor their effects are inconsistent with a "practical,
nontechnical" conception of probable cause Once a magis-
trate has determined that he has information before him that
he can reasonably say has been obtained in a reliable way by
a credible person, he has ample room to use his common
sense and to apply a practical, nontechnical conception of
probable cause
It also should be emphasized that cases such as Nathanson
v United States, 290 U S 41 (1933), and Giordenello v
United States, 357 U S 480 (1958), discussed supra, at
276-277, directly contradict the Court's suggestion, ante, at
233, that a strong showing on one prong of the Agmlar test
should compensate for a deficient showing on the other If
the conclusory allegations of a presumptively reliable police
officer are insufficient to establish probable cause, there is no
conceivable reason why the conclusory allegations of an anon-
ymous informant should not be insufficient as well More-
over, contrary to the Court's implicit suggestion, Agmlar
and Spmelh do not stand as an insuperable barrier to the use
288 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
of even anonymous informants' tips to estabhsh probable
cause See supra, at 277-282 It is no justification for re-
jecting them outright that some courts may have employed
an overly technical version of the Agmlar-Spmelli standards,
see ante, at 234-235, and n 9
The Court also insists that the Agudar-Spinelh standards
must be abandoned because they are inconsistent with the
fact that nonlawyers frequently serve as magistrates Ante,
at 235-236 To the contrary, the standards help to structure
probable-cause inquiries and, properly interpreted, may ac-
tually help a nonlawyer magistrate in making a probable-
cause determination Moreover, the Agmlar and Spinelh
tests are not inconsistent with deference to magistrates'
determinations of probable cause Agmlar expressly ac-
knowledged that reviewing courts "will pay substantial def-
erence to judicial determinations of probable cause "
378 U S , at 111 In Spinelh, the Court noted that it was
not retreating from the proposition that magistrates' deter-
minations of probable cause "should be paid great deference
by reviewing courts " 393 U S , at 419 It is also
noteworthy that the language from United States v Ven-
tresca, 380 U S , at 108-109, which the Court repeatedly
quotes, see ante, at 235, 236, and 237, n 10, brackets the
following passage, which the Court does not quote
"This is not to say that probable cause can be made out
by affidavits which are purely conclusory, stating only
the affiant's or an informer's belief that probable cause
exists without detailing any of the 'underlying circum-
stances' upon which that belief is based See Agmlar v
Texas, supra Recital of some of the underlying circum-
stances in the affidavit is essential if the magistrate is to
perform his detached function and not serve merely as a
rubber stamp for the police However, where these cir-
cumstances are detailed, where reason for crediting the
source of the information is given, and when a magis-
trate has found probable cause, the courts should not
ILLINOIS v GATES 289
213 BRENNAN, J , dissenting
invalidate the warrant by interpreting the affidavit in a
hypertechnical, rather than a commonsense, manner "
380 U S , at 108-109 9
At the heart of the Court's decision to abandon Agmlar
and Spinelh appears to be its belief that "the direction taken
by decisions following Spinelli poorly serves '[t]he most basic
function of any government' 'to provide for the security of
the individual and of his property '" Ante, at 237 This
conclusion rests on the judgment that Agmlar and Spinelh
"seriously imped[e] the task of law enforcement/' ante, at 237,
and render anonymous tips valueless in police work Ibid
Surely, the Court overstates its case See supra, at 287-288
But of particular concern to all Americans must be that the
Court gives virtually no consideration to the value of insuring
that findings of probable cause are based on information that
a magistrate can reasonably say has been obtained in a reh-
9 The Court also argues that "[i]f the affidavits submitted by police offi-
cers are subjected to the type of scrutiny some courts have deemed appro-
priate, police might well resort to warrantless searches, with the hope of
relying on consent or some other exception to the Warrant Clause that
might develop at the time of the search " Ante, at 236 If the Court is
suggesting, as it appears to be, that the police will intentionally disregard
the law, it need only be noted in response that the courts are not helpless
to deal with such conduct Moreover, as was noted in Coohdge v New
Hampshire, 403 U S 443 (1971)
"[T]he most basic constitutional rule in this area is that 'searches con-
ducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment — sub-
ject only to a few specifically established and well-delineated exceptions '
The exceptions are 'jealously and carefully drawn/ and there must be 'a
showing by those who seek exemption that the exigencies of the situa-
tion made that course imperative ' '[T]he burden is on those seeking the
exemption to show the need for it ' " Id , at 454-455 (plurality opinion)
(footnotes omitted)
It therefore would appear to be not only inadvisable, but also unavailing,
for the police to conduct warrantless searches in "the hope of relying on
consent or some other exception to the Warrant Clause that might develop
at the time of the search " Ante, at 236
290 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
able way by an honest or credible person I share JUSTICE
WHITE'S fear that the Court's rejection of Aguilar and
Spinelh and its adoption of a new totahty-of-the-circum-
stances test, ante, at 238, "may foretell an evisceration of the
probable-cause standard " Ante, at 272 (WHITE, J ,
concurring in judgment)
III
The Court's complete failure to provide any persuasive rea-
son for rejecting Agmlar and Spinelli doubtlessly reflects im-
patience with what it perceives to be "overly technical" rules
governing searches and seizures under the Fourth Amend-
ment Words such as "practical," "nontechnical," and "com-
mon sense," as used in the Court's opinion, are but code
words for an overly permissive attitude towards police prac-
tices in derogation of the rights secured by the Fourth
Amendment Everyone shares the Court's concern over the
horrors of drug trafficking, but under our Constitution only
measures consistent with the Fourth Amendment may be
employed by government to cure this evil We must be ever
mindfiil of Justice Stewart's admonition in Coohdge v New
Hampshire, 403 U S 443 (1971) "In times of unrest,
whether caused by crime or racial conflict or fear of internal
subversion, this basic law and the values that it represents
may appear unrealistic or 'extravagant' to some But the
values were those of the authors of our fundamental constitu-
tional concepts " Id , at 455 (plurality opinion) In the
same vein, Glasser v Umted States, 315 U S 60 (1942),
warned that "[sjteps innocently taken may, one by one, lead
to the irretrievable impairment of substantial liberties "
Id , at 86
Rights secured by the Fourth Amendment are particularly
difficult to protect because their "advocates are usually crimi-
nals " Draper v United States, 358 U S , at 314 (Douglas,
J , dissenting) But the rules "we fashion [are] for the inno-
cent and guilty alike " Ibid See also Kolender v Lawson,
461 U S 352, 362, n 1 (1983) (BRENNAN, J , concurring),
Brinegarv United States , 338 U S , at 181 (Jackson, J , dis-
ILLINOIS v GATES 291
213 STEVENS, J , dissenting
senting) By replacing Agmlar and Spinelh with a test that
provides no assurance that magistrates, rather than the
police, or informants, will make determinations of probable
cause, imposes no structure on magistrates' probable-cause
inquiries, and invites the possibility that intrusions may be
justified on less than reliable information from an honest
or credible person, today's decision threatens to "obliterate
one of the most fundamental distinctions between our form
of government, where officers are under the law, and the
police-state where they are the law " Johnson v United
States, 333 U S , at 17
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
dissenting
The fact that Lance and Sue Gates made a 22-hour non-
stop drive from West Palm Beach, Florida, to Bloommgdale,
Illinois, only a few hours after Lance had flown to Florida
provided persuasive evidence that they were engaged in
illicit activity That fact, however, was not known to the
judge when he issued the warrant to search their home
What the judge did know at that time was that the anony-
mous informant had not been completely accurate in his or
her predictions The informant had indicated that " 'Sue
drives their car to Florida where she leaves it to be loaded up
with drugs Sueflfies] back after she drops the car off
in Florida'" 85111 2d 376, 379, 423 N E 2d 887, 888 (1981)
(emphasis added) Yet Detective Mader's affidavit reported
that she " 'left the West Palm Beach area driving the Mercury
northbound '" 82 111 App 3d 749, 757, 403 N E 2d 77, 82
(1980)
The discrepancy between the informant's predictions and
the facts known to Detective Mader is significant for three
reasons First, it cast doubt on the informant's hypothesis
that the Gates already had " 'over [$100,000] worth of drugs in
their basement,' " 85 111 2d, at 379, 423 N E 2d, at 888 The
informant had predicted an itinerary that always kept one
292 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 U S
spouse in Bloommgdale, suggesting that the Gates did not
want to leave their home unguarded because something valu-
able was hidden within That inference obviously could not
be drawn when it was known that the pair was actually to-
gether over a thousand miles from home
Second, the discrepancy made the Gates' conduct seem
substantially less unusual than the informant had predicted it
would be It would have been odd if, as predicted, Sue had
driven down to Florida on Wednesday, left the car, and flown
right back to Illinois But the mere facts that Sue was in
West Palm Beach with the car,1 that she was joined by her
husband at the Holiday Inn on Friday,2 and that the couple
drove north together the next morning3 are neither unusual
nor probative of criminal activity
irThe anonymous note suggested that she was going down on Wednes
day, 85 111 2d, at 379, 423 N E 2d, at 888, but for all the officers knew she
had been in Florida for a month 82 111 App 3d, at 755-757, 403 N E 2d,
at 82-83
2 Lance does not appear to have behaved suspiciously in flying down to
Florida He made a reservation in his own name and gave an accurate
home phone number to the airlines Cf Florida v Royer, 460 U S 491,
493, n 2 (1983), United States v Mendenhall, 446 U S 544, 548 (1980)
(Stewart, J , announcing the judgment) And Detective Mader's affidavit
does not report that he did any of the other things drug couriers are no-
torious for doing, such as paying for the ticket in cash, Royer, 460 U S ,
at 493, n 2, dressing casually, ibid , looking pale and nervous, ibid ,
Mendenhall, supra, at 548, improperly filling out baggage tags, Royer, 460
U S , at 493, n 2, carrying American Tourister luggage, ibid , not carry-
ing any luggage, Mendenhall, 446 U S , at 564-565 (POWELL, J , concur-
ring in part and concurring in judgment), or changing airlines en route,
ibid
8 Detective Mader's affidavit hinted darkly that the couple had set out
upon "that interstate highway commonly used by travelers to the Chicago
area " But the same highway is also commonly used by travelers to Dis-
ney World, Sea World, and Ringhng Brothers and Barnum and Bailey Cir-
cus World It is also the road to Cocoa Beach, Cape Canaveral, and Wash-
ington, DC I would venture that each year dozens of perfectly innocent
people fly to Florida, meet a waiting spouse, and drive off together in the
family car
ILLINOIS v GATES 293
213 STEVENS, J , dissenting
Third, the fact that the anonymous letter contained a mate-
rial mistake undermines the reasonableness of relying on it as
a basis for making a forcible entry into a private home 4
Of course, the activities in this case did not stop when the
judge issued the warrant The Gates drove all night to
Bloommgdale, the officers searched the car and found 400
pounds of marihuana, and then they searched the house 5
However, none of these subsequent events may be consid-
ered in evaluating the warrant,6 and the search of the house
was legal only if the warrant was valid Vale v Louisiana,
399 U S 30, 33-35 (1970) I cannot accept the Court's ca-
sual conclusion that, before the Gates arrived in Blooming-
dale, there was probable cause to justify a valid entry and
search of a private home No one knows who the informant
in this case was, or what motivated him or her to write the
note Given that the note's predictions were faulty in one
4 The Court purports to rely on the proposition that "if the [anonymous]
informant could predict with considerable accuracy the somewhat unusual
traml plans of the Gateses, he probably also had a reliable basis for his
statements that the Gateses kept a large quantity of drugs in their home "
Ante, at 245-246, n 14 (emphasis added) Even if this syllogism were
sound, but see Spinelh ^ United States, 393 U S 410, 427 (1969) (WHITE,
J , concurring), its premises are not met in this case
5 The officers did not enter the unoccupied house as soon as the warrant
issued, instead, they waited until the Gates returned It is unclear
whether they waited because they wanted to execute the warrant without
unnecessary property damage or because they had doubts about whether
the informant's tip was really valid In either event their judgment is to
be commended
6 It is a truism that "a search warrant is valid only if probable cause has
been shown to the magistrate and that an inadequate showing may not be
rescued by post-search testimony on information known to the searching
officers at the time of the search " Rice v Wolff, 513 F 2d 1280, 1287
(CAS 1975) See Coolidge v New Hampshire, 403 U S 443, 450-451
(1971), Whiteley v Warden, 401 U S 560, 565, n S (1971), Aguilar v
Texas, 378 U S 108, 109, n 1 (1964), Jones v United States, 357 U S
493, 497-498 (1958), Giordenello v United States, 357 U S 480, 486
(1958), Taylor v United States, 286 U S 1, 6 (1932), Agnello v United
States, 269 U S 20, 33 (1925)
294 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 u S
significant respect, and were corroborated by nothing except
ordinary innocent activity, I must surmise that the Court's
evaluation of the warrant's validity has been colored by sub
sequent events 7
Although the foregoing analysis is determinative as to
the house search, the car search raises additional issues be
cause "there is a constitutional difference between houses
and cars " Chambers v Maroney, 399 U S 42, 52 (1970)
Cf Payton v New York, 445 U S 573, 589-590 (1980) An
officer who has probable cause to suspect that a highly mov-
able automobile contains contraband does not need a valid
warrant in order to search it This point was developed m
our opinion m United States v Ross, 456 U S 798 (1982),
which was not decided until after the Illinois Supreme Court
rendered its decision m this case Under -Ross, the car
search may have been valid if the officers had probable cause
after the Gates arrived
In apologizing for its belated realization that we should not
have ordered reargument in this case, the Court today shows
high regard for the appropriate relationship of this Court to
state courts Ante, at 221-222 When the Court discusses
the merits, however, it attaches no weight to the conclusions
of the Circuit Judge of Du Page County, Illinois, of the three
judges of the Second District of the Illinois Appellate Court,
or of the five justices of the Illinois Supreme Court, all of
whom concluded that the warrant was not based on probable
cause In a fact-bound inquiry of this sort, the judgment of
three levels of state courts, all of which are better able to
evaluate the probable reliability of anonymous informants in
7 Draper v United States, 858 U S 307 (1959), affords no support for
today's holding That case did not involve an anonymous informant On
the contrary, as the Court twice noted, Mr Hereford was "employed for
that purpose and [his] information had always been found accurate and reli-
able " Id , at 313, see id , at 309 In this case, the police had no prior
experience with the informant, and some of his or her information in this
ease was unreliable and inaccurate
ILLINOIS v GATES 295
213 STEVENS, J , dissenting
Bloommgdale, Illinois, than we are, should be entitled to at
least a presumption of accuracy 8 I would simply vacate the
judgment of the Illinois Supreme Court and remand the case
for reconsideration in the light of our intervening decision in
United States v Ross
8 The Court holds that what were heretofore considered two mdepend
ent "prongs" — "veracity" and "basis of knowledge" — are now to be consid-
ered together as circumstances whose totality must be appraised Ante,
at 233 "[A] deficiency in one may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other, or by some
other indicia of reliability " Ibid Yet in this case, the lower courts found
neither factor present 85 111 2d, at 390, 423 N E 2d, at 893 And the
supposed "other indicia" in the affidavit take the form of activity that is not
particularly remarkable I do not understand how the Court can find that
the "totality" so far exceeds the sum of its "circumstances "
296 OCTOBER TERM, 1982
Syllabus 462 U S
CHAPPELL ET AL v WALLACE ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No 82-167 Argued April 26, 1983— Decided June 13, 1983
Respondent Navy enlisted men brought an action for damages and other
relief in Federal District Court against petitioner superior officers, alleg
mg that petitioners in making duty assignments and performance evalua
tions and in imposing penalties had discriminated against respondents
because of their race in violation of their constitutional rights The
District Court dismissed the complaint on the grounds that the actions
complained of were nonreviewable military decisions, that petitioners
were entitled to immunity, and that respondents had failed to exhaust
their administrative remedies The Court of Appeals reversed
Held Enlisted military personnel may not maintain a suit to recover dam
ages from a superior officer for alleged constitutional violations The
special status of the military has required, the Constitution has contem-
plated, Congress has created, and this Court has long recognized two
systems of justice one for civilians and one for military personnel The
need for unhesitating and decisive action by military officers and equally
disciplined responses by enlisted personnel would be undermined by a
judicially created remedy exposing officers to personal liability at the
hands of those they are charged to command Moreover, Congress, the
constitutionally authorized source of authority over the military system
of justice, has not provided a damages remedy for claims by military per
sonnel that constitutional rights have been violated by superior officers
Any action to provide a judicial response by way of such a remedy would
be inconsistent with Congress' authority Taken together, the unique
disciplinary structure of the military establishment and Congress' activ
ity in the field constitute "special factors" which dictate that it would
be inappropriate to provide enlisted military personnel a Bivens-type
remedy against their superior officers Pp 298-305
661 F 2d 729, reversed and remanded
BURGER, C J , delivered the opinion for a unanimous Court
Assistant Attorney General McGrath argued the cause
for petitioners With him on the briefs were Solicitor Gen-
eral Lee, Deputy Solicitor General Geller, David A Strauss,
Robert E Kopp, and John F Cordes
CHAPPELL v WALLACE 297
296 Opinion of the Court
John Murcko, by appointment of the Court, 459 U S
1068, argued the cause and filed a brief for respondents *
CHIEF JUSTICE BURGER delivered the opinion of the
Court
We granted certioran to determine whether enlisted mili-
tary personnel may maintain suits to recover damages from
superior officers for injuries sustained as a result of violations
of constitutional rights in the course of military service
Respondents are five enlisted men who serve in the United
States Navy on board a combat naval vessel Petitioners
are the commanding officer of the vessel, four lieutenants,
and three noncommissioned officers
Respondents brought action against these officers seeking
damages, declaratory judgment, and injunctive relief Re-
spondents alleged that because of their minority race peti-
tioners failed to assign them desirable duties, threatened
them, gave them low performance evaluations, and imposed
penalties of unusual severity App 5-16 Respondents
claimed, inter aha, that the actions complained of "deprived
[them] of [their] rights under the Constitution and laws of the
United States, including the right not to be discriminated
against because of [their] race, color or previous condition of
servitude " Id , at 7, 9, 11, 13, 15 Respondents also
alleged a conspiracy among petitioners to deprive them of
rights in violation of 42 U S C § 1985
*Briefs ofamici cunae urging reversal were filed by Mitchell L Lathrop
and Terrence L Bingman for the Naval Reserve Association, and by Dan-
iel J Popeo, Paul D Kamenar, and Nicholas E Caho for the Washington
Legal Foundation
Briefs of amici cunae urging affirmance were filed by Nanette Dembitz
and Burt Neuborne for the American Civil Liberties Union, by Leonard B
Boudin for the Bill of Rights Foundation, Inc , by Barry Sullivan for the
Lawyers' Committee for Civil Rights Under Law, and by Jack Greenberg,
James M Nabritt HI, Steven L Winter, and Steven J Phillips for the
NAACP Legal Defense and Educational Fund, Inc
298 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The United States District Court for the Southern District
of California dismissed the complaint on the grounds that the
actions respondents complained of were nonreviewable mili-
tary decisions, that petitioners were entitled to immunity,
and that respondents had failed to exhaust their adminis-
trative remedies
The United States Court of Appeals for the Ninth Circuit
reversed 661 F 2d 729 (1981) The Court of Appeals as-
sumed that Bivens v Six Unknown Fed Narcotics Agents,
403 U S 388 (1971), authorized the award of damages for the
constitutional violations alleged m their complaint, unless
either the actions complained of were not re viewable or peti-
tioners were immune from suit The Court of Appeals set out
certain tests for determining whether the actions at issue are
re viewable by a civilian court and, if so, whether petitioners
are nonetheless immune from suit The case was remanded
to the District Court for application of these tests
We granted certioran, 459 U S 966 (1982), and we
reverse
II
This Court's holding m Bivens v Six Unknown Fed Nar-
cotics Agents, supra, authorized a suit for damages against
federal officials whose actions violated an individual's con-
stitutional rights, even though Congress had not expressly
authorized such suits The Court, in Bivens and its prog-
eny, has expressly cautioned, however, that such a remedy
will not be available when "special factors counselling hesita-
tion" are present Id , at 396 See also Carlson v Green,
446 U S 14, 18 (1980) Before a Bivens remedy may be
fashioned, therefore, a court must take into account any
"special factors counselling hesitation " See Bush v Lucas,
post, at 378
The "special factors" that bear on the propriety of respond-
ents' Bivens action also formed the basis of this Court's deci-
sion in Feres v United States, 340 U S 135 (1950) There
CHAPPELL v WALLACE 299
2% Opinion of the Court
the Court addressed the question "whether the [Federal]
Tort Claims Act extends its remedy to one sustaining 'inci-
dent to [military] service' what under other circumstances
would be an actionable wrong " Id , at 138 The Court held
that, even assuming the Act might be read literally to allow
tort actions against the United States for injuries suffered
by a soldier in service, Congress did not intend to subject
the Government to such claims by a member of the Armed
Forces The Court acknowledged "that if we consider rele-
vant only a part of the circumstances and ignore the status of
both the wronged and the wrongdoer in these cases," id , at
142, the Government would have waived its sovereign immu-
nity under the Act and would be subject to liability But the
Feres Court was acutely aware that it was resolving the
question of whether soldiers could maintain tort suits against
the Government for injuries arising out of their military serv-
ice The Court focused on the unique relationship between
the Government and military personnel — noting that no such
liability existed before the Federal Tort Claims Act — and
held that Congress did not intend to create such liability
The Court also took note of the various "enactments by Con-
gress which provide systems of simple, certain, and uniform
compensation for injuries or death of those in the armed serv-
ices " Id , at 144 As the Court has since recognized, "[i]n
the last analysis, Feres seems best explained by the 'peculiar
and special relationship of the soldier to his superiors, [and]
the effects of the maintenance of such suits on discipline
'" United States v Mumz, 374 U S 150, 162 (1963),
quoting United States v Brown, 348 U S 110, 112 (1954)
See also Parker v Levy, 417 U S 733, 743-744 (1974),
Stencel Aero Engineering Corp v United States, 431 U S
666, 673 (1977) Although this case concerns the limitations
on the type of nonstatutory damages remedy recognized in
Bwens, rather than Congress' intent in enacting the Federal
Tort Claims Act, the Court's analysis in Feres guides our
analysis in this case
300 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The need for special regulations in relation to military dis-
cipline, and the consequent need and justification for a special
and exclusive system of military justice, is too obvious to re-
quire extensive discussion, no military organization can func-
tion without strict discipline and regulation that would be un-
acceptable in a civilian setting See Parker v Levy, supra,
at 743-744, Orloffv Willoughby, 345 U S 83, 94 (1953) In
the civilian life of a democracy many command few, in the
military, however, this is reversed, for military necessity
makes demands on its personnel "without counterpart in ci-
vilian life " Schlesinger v Councilman, 420 U S 738, 757
(1975) The inescapable demands of military discipline and
obedience to orders cannot be taught on battlefields, the
habit of immediate compliance with military procedures and
orders must be virtually reflex with no time for debate or re-
flection The Court has often noted "the peculiar and special
relationship of the soldier to his superiors," United States v
Brown, supra, at 112, see In re Grimley, 137 U S 147, 153
(1890), and has acknowledged that "the rights of men in the
armed forces must perforce be conditioned to meet certain
overriding demands of discipline and duty " Burns v
Wilson, 346 U S 137, 140 (1953) (plurality opinion) This
becomes imperative in combat, but conduct in combat inev-
itably reflects the training that precedes combat, for that rea-
son, centuries of experience have developed a hierarchical
structure of discipline and obedience to command, unique in
its application to the military establishment and wholly dif-
ferent from civilian patterns Civilian courts must, at the
very least, hesitate long before entertaining a suit which asks
the court to tamper with the established relationship be-
tween enlisted military personnel and their superior officers,
that relationship is at the heart of the necessarily unique
structure of the Military Establishment
Many of the Framers of the Constitution had recently ex-
perienced the rigors of military life and were well aware of
the differences between it and civilian life In drafting the
CHAPPELL v WALLACE 301
296 Opinion of the Court
Constitution they anticipated the kinds of issues raised in
this case Their response was an explicit grant of plenary
authority to Congress "To raise and support Armies", "To
provide and maintain a Navy", and "To make Rules for the
Government and Regulation of the land and naval Forces "
Art I, §8, els 12-14 It is clear that the Constitution con-
templated that the Legislative Branch have plenary control
over rights, duties, and responsibilities in the framework
of the Military Establishment, including regulations, proce-
dures, and remedies related to military discipline, and Con-
gress and the courts have acted in conformity with that view
Congress' authority in this area, and the distance between
military and civilian life, was summed up by the Court in
Orloffv Willoughby, supra, at 93-94
"[J]udges are not given the task of running the Army
The responsibility for setting up channels through which
grievances can be considered and fairly settled rests
upon the Congress and upon the President of the United
States and his subordinates The military constitutes a
specialized community governed by a separate discipline
from that of the civilian Orderly government requires
that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupu-
lous not to intervene in judicial matters "
Only recently we restated this principle in Rostker v Gold-
berg, 453 U S 57, 64-65 (1981)
"The case arises in the context of Congress' authority
over national defense and military affairs, and perhaps in
no other area has the Court accorded Congress greater
deference "
In Gilligan v Morgan, 413 U S 1, 4 (1973), we addressed
the question of whether Congress' analogous power over the
militia, granted by Art I, §8, cl 16, would be impermissibly
compromised by a suit seeking to have a Federal District
Court examine the "pattern of training, weaponry and or-
302 OCTOBER TERM, 1982
Opinion of the Court 4^2 u g
ders" of a State's National Guard In denying relief we
stated
"It would be difficult to think of a clearer example of
the type of governmental action that was intended by
the Constitution to be left to the political branches di
rectly responsible — as the Judicial Branch is not— to the
electoral process Moreover, it is difficult to conceive of
an area of governmental activity in which the courts
have less competence The complex, subtle, and profes
sional decisions as to the composition, training, equip
ping, and control of a military force are essentially pro
fessional military judgments, subject always to civilian
control of the Legislative and Executive Branches The
ultimate responsibility for these decisions is appropri-
ately vested in branches of the government which are
periodically subject to electoral accountability " Id , at
10 (emphasis m original)
Congress has exercised its plenary constitutional authority
over the military, has enacted statutes regulating military
life, and has established a comprehensive internal system of
justice to regulate military life, taking into account the spe-
cial patterns that define the military structure The result-
ing system provides for the review and remedy of complaints
and grievances such as those presented by respondents
Mihtary personnel, for example, may avail themselves of the
procedures and remedies created by Congress in Art 138 of
the Uniform Code of Military Justice, 10 U S C §938,
which provides
"Any member of the armed forces who believes him-
self wronged by his commanding officer, and who, upon
due application to that commanding officer, is refused
redress, may complain to any superior commissioned
officer, who shall forward the complaint to the officer
exercising general court-martial jurisdiction over the
officer against whom it is made The officer exercising
CHAPPELL v WALLACE 303
2% Opinion of the Court
general court-martial jurisdiction shall examine into the
complaint and take proper measures for redressing the
wrong complained of, and he shall, as soon as possible,
send to the Secretary concerned a true statement of that
complaint, with the proceedings had thereon "
The Board for Correction of Naval Records, composed of
civilians appointed by the Secretary of the Navy, provides
another means with which an aggrieved member of the mili-
tary "may correct any military record when [the Sec-
retary of the Navy acting through the Board] considers it
necessary to correct an error or remove an injustice " 10
U S C § 1552(a) Respondents' allegations concerning per-
formance evaluations and promotions, for example, could
readily have been made within the framework of this mtra-
imktary administrative procedure Under the Board's pro-
cedures, one aggrieved as respondents claim may request a
hearing, if the claims are denied without a hearing, the Board
is required to provide a statement of its reasons 32 CFR
§§ 723 3(e)(2), (4), (5), 723 4, 723 5 (1982) The Board is em-
powered to order retroactive backpay and retroactive promo-
tion 10 U S C § 1552(c) Board decisions are subject to
judicial review and can be set aside if they are arbitrary, ca-
pricious, or not based on substantial evidence See Grieg v
United States, 226 Ct Cl 258, 640 F 2d 1261 (1981), cert
denied, 455 U S 907 (1982), Sanders v United States, 219
Ct Cl 285, 594 F 2d 804 (1979) >
The special status of the military has required, the Con-
stitution has contemplated, Congress has created, and this
Court has long recognized two systems of justice, to some ex-
1 The record shows that one of the respondents availed himself of his
remedy before the Board for Correction of Naval Records by filing an
application for correction of naval records The request for relief was de-
nied by the Board based on a failure to exhaust administrative remedies
and to present sufficient relevant evidence App 67 The applicant was
informed of his right to pursue an appeal from this decision, ibid , and the
record does not reflect whether any further action was taken
304 OCTOBER TERM, 1982
Opinion of the Court 462 U g
tent parallel one for civilians and one for military personnel
Burns v Wilson, 346 U S , at 140 The special nature of
military life — the need for unhesitating and decisive action by
military officers and equally disciplined responses by enlisted
personnel — would be undermined by a judicially created rem
edy exposing officers to personal liability at the hands of
those they are charged to command Here, as in Feres, we
must be "concerned] with the disruption of '[t]he peculiar
and special relationship of the soldier to his superiors' that
might result if the soldier were allowed to hale his superiors
into court," Stencel Aero Engineering Corp v United
States, 431 U S , at 676 (MARSHALL, J , dissenting), quoting
United States v Brown, 348 U S , at 112
Also, Congress, the constitutionally authorized source of
authority over the military system of justice, has not pro-
vided a damages remedy for claims by military personnel
that constitutional rights have been violated by superior offi
cers Any action to provide a judicial response by way of
such a remedy would be plainly inconsistent with Congress'
authority in this field
Taken together, the unique disciplinary structure of the
Military Establishment and Congress' activity in the field
constitute "special factors" which dictate that it would be in-
appropriate to provide enlisted military personnel a Bwens-
type remedy against their superior officers See Bush v
Lucas, post, p 367
III
Chief Justice Warren had occasion to note that "our citi-
zens in uniform may not be stripped of basic rights simply be-
cause they have doffed their civilian clothes " Warren, The
Bill of Rights and the Military, 37 N Y U L Rev 181,188
(1962) This Court has never held, nor do we now hold, that
military personnel are barred from all redress in civilian
courts for constitutional wrongs suffered in the course of mili-
tary service See, e g , Brawn v Glines, 444 U S 348
(1980), Parker v Levy, 417 U S 733 (1974), Frontiero v
CHAPPELL v WALLACE 305
296 Opinion of the Court
Richardson, 411 U S 677 (1973) But the special relation-
ships that define military life have "supported the military
establishment's broad power to deal with its own personnel
The most obvious reason is that courts are ill-equipped to
determine the impact upon discipline that any particular
intrusion upon military authority might have " Warren,
supra, at 187
We hold that enlisted military personnel may not maintain
a suit to recover damages from a superior officer for alleged
constitutional violations 2 The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion 3
Reversed and remanded
2 Respondents and the Court of Appeals rely on Wilkes v Dinsman, 1
How 89 (1849), after remand, Dmsman v Wilkes, 12 How 390 (1852)
Wilkes, however, is inapposite because it involved a well-recognized
common law cause of action by a marine against his commanding officer
for damages suffered as a result of punishment and did not ask the Court
to imply a new kind of cause of action Also, since the time of Wilkes,
significant changes have been made establishing a comprehensive system
of military justice
3 We leave it for the Court of Appeals to decide on remand whether the
portion of respondents' suit seeking damages flowing from an alleged con-
spiracy among petitioners in violation of 42 U S C § 1985(3) can be main-
tained This issue was not adequately addressed either by the Court of
Appeals or in the briefs and oral argument before this Court
306 OCTOBER TERM, 1982
Syllabus 462 U S
HARING, LIEUTENANT, ARLINGTON COUNTY
POLICE DEPARTMENT, ET AL v PROSISE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No 81-2169 Argued April 20, 1983— Decided June 13, 1983
A Virginia trial court accepted respondent's plea of guilty to a charge of
manufacturing a controlled substance At the hearing at which re
spondent pleaded guilty, one of petitioner police officers gave a brief
account of the search of respondent's apartment that led to the discovery
of material typically used in manufacturing the controlled substance
Thereafter, respondent brought a damages action under 42 U S C
§ 1983 in Federal District Court against petitioners, officers who partici
pated in the search of his apartment, alleging that his Fourth Amend
ment rights had been violated The District Court granted summary
judgment for petitioners on the ground that respondent's guilty plea to
the criminal charge barred his § 1983 claim The Court of Appeals
reversed in pertinent part and remanded
Held
1 The § 1983 action is not barred on the asserted ground that under
principles of collateral estoppel generally applied by the Virginia courts,
respondent's conviction would bar his subsequent civil challenge to police
conduct, and that a federal court must therefore give the state conviction
the same effect under 28 U S C § 1738, which generally requires fed
eral courts to give preclusive effect to state-court judgments if the courts
of the State from which the judgments emerged would do so Under
collateral estoppel rules applied by Virginia courts, unless an issue was
actually litigated and determined in the prior judicial proceeding, it will
not be treated as final for purposes of the later action Furthermore,
under Virginia law collateral estoppel precludes litigation of only those
issues necessary to support the judgment entered in the first action
Thus, the collateral estoppel doctrine would not be invoked in this case
by Virginia courts for at least three reasons First, the legality of the
search of respondent's apartment was not litigated in the criminal pro
eeedings Second, the criminal proceedings did not decide against
respondent any issue on which he must prevail in order to establish his
§1983 claim, the only question determined by the guilty plea being
whether respondent unlawfully engaged in the manufacture of a con
trolled substance This question is irrelevant to the legality of the
search or to respondent's right to compensation from state officials under
RARING v PROSISE 307
306 Syllabus
§ 1983 Finally, none of the issues in the <* 1983 action could have been
"necessarily" determined m the criminal proceeding A determination
as to whether or not the search of respondent's apartment was legal
would have been entirely irrelevant m the context of the guilty plea
proceeding Pp 312-317
2 Nor is litigation of respondent's *» 1983 damages claim barred on the
asserted ground that because he had an opportunity to raise his Fourth
Amendment claim in the criminal prosecution, by pleading guilty he
should be deemed to have either admitted the legality of the search or
waived any Fourth Amendment claim The guilty plea m no way consti-
tuted an admission that the search of his apartment was proper under
the Fourth Amendment It may not be assumed that a guilty plea is
based on a defendant's determination that he would be unable to prevail
on a motion to suppress evidence, since a decision to plead guilty may
have any number of other motivations Cf Tollett v Henderson, 411
U S 258, 263, 268 Similarly, although a guilty plea results in the de-
fendant's loss of any meaningful opportunity he might otherwise have
had in the criminal proceeding to challenge the admissibihty of evidence
obtained in violation of the Fourth Amendment, it does not follow that a
guilty plea is a "waiver" of antecedent Fourth Amendment claims that
may be given effect outside the confines of the criminal proceeding
And while a Fourth Amendment claim ordinarily may not be raised m a
habeas corpus proceeding following a guilty plea, that conclusion does
not rest on any notion of waiver, but rests on the fact that the claim is
irrelevant to the constitutional validity of the conviction Thus, the jus-
tifications for denying habeas review of Fourth Amendment claims fol
lowing a guilty plea are inapplicable to an action under § 1983 Adoption
of a rule of preclusion m this case would threaten important interests in
preserving federal courts as an available forum for the vindication of
constitutional rights Pp 317-323
667 F 2d 1133, affirmed
MARSHALL, J , delivered the opinion for a unanimous Court
David R Lasso argued the cause for petitioners With
him on the briefs was Charles G Fhnn
Norman A Tovmsend argued the cause for respondent
With him on the brief were Sebastian K D Graber and
Bradley S Stetler *
*Fred E Inbau, Wayne W Schmidt, James P Manak, Evelle J
Younger, Darnel B Hales, and David Crump filed a brief for Amen-
108 CKTORI'RTFRM 1982
Opinion of th«* i inirt 4§2 U g
Jrsric F MARSH At t delivered the opinion of the Court
The trial court accepted respondent John Pranklm Pro-
sise's plea of guilty to one count of manufacturing a controlled
substance — phencychdme At the hearing at which re-
spondent pleaded guilt v, a police officer gave a brief account
of the search of respondent's apartment that led to the
discovery of material typically used in manufacturing this
substance Thereafter* Preside brought a damages action
under 42 U S C § 1983 in federal District Court against
petitioner Gilbert A Haring and the other officers who
participated in the search of his apartment The question
presented by this ease m whether respondent's § 1983 claim
is barred by hia prior guilty plea
I
On April 27, 1978f pursuant to a plea agreement, Prosise
pleaded guilty in the Circuit Court for Arlington County,
Va , to one count of manufacturing pheneyehdine The Com-
monwealth then called one witness. Detective Henry Allen of
the Arlington County Police Department Allen testified
that on September 7t 1977 1 he responded to a radio call
directing him to an Arlington apartment which turned out to
be leased to Prosise By the time he arrived, two uniformed
officers had placed Pimise under arrest for the possession of
a controlled substance After entering the apartment, Allen
noticed various chemicals in the apartment as well as a quan-
tity of what he believed to be phencyclidine A warrant was
later obtained for a search of the apartment Allen and De-
tective Petti then conducted a search which led to the seizure
of devices and chemicals used to manufacture phencychdme,
cans for Effective Law Enforcement, tm , et al as amwi curuw urging
reversal
Bnefe of amwt cunas urging affirmance were filed by Charles S Sims
and Burt Neuborne for the Aineriean Civil Liberties Union, and by Stephen
A SaMzburg for the University of Virginia School of Law Post-Conviction
Assistance Project
HARING v PROSISE 309
306 Opinion of the Court
receipts for such chemicals, a paper containing a formula for
making phencychdme, and two buckets containing traces of
the substance
At the conclusion of Allen's testimony, the judge accepted
Prosise's guilty plea, finding that it had been entered vol-
untarily and intelligently and that it had a sufficient basis
m fact On June 23, 1978, the court denied Prosise's mo-
tion to withdraw his plea and sentenced him to 25 years'
imprisonment l
On January 23, 1979, while under confinement in the Ar-
lington Detention Center, Prosise filed a pro se action under
42 U S C § 1983 against Lt Gilbert A Harmg and various
other members of the Arlington County Police Department
who had participated in the search of his apartment His
complaint alleged that the officers had unlawfully searched
his apartment prior to obtaining a search warrant, and that
after obtaining the warrant the officers conducted a search
that exceeded the scope of the warrant
The District Court granted summary judgment for defend-
ants on the ground that Prosise's guilty plea to the charge of
manufacturing phencychdme barred his § 1983 claim The
court reasoned that Prosise's failure to assert his Fourth
Amendment claim in state court constituted a waiver of that
right, precluding its assertion m any subsequent proceeding
It relied primarily on this Court's decision m Tollett v Hen-
derson, 411 U S 258 (1973), which held that when a state
criminal defendant has pleaded guilty to the offense for which
he was indicted by the grand jury, he cannot in a later federal
habeas corpus proceeding raise a claim of discrimination m
the selection of the grand jury The District Court stated
that, under the reasoning in Tollett^ a guilty plea would simi-
larly foreclose federal habeas inquiry into the constitutional-
1 On July 17, 1970, the Supreme Court of Virginia denied respondent's
petition for a writ of error to review the trial court's decision that his plea
was voluntary and its refusal to permit the withdrawal of the plea
310 OCTOBER TERM, 1982
Opinion of the Court 4^2 U g
ity of a search that turned up evidence of the crime charged
The court concluded
"If a defendant who pleach guilty is foreclosed from
obtaining his freedom because of an illegal search and
seizure, he should not be allowed to secure damages
in a § 1983 suit and thereby litigate the antecedent con-
stitutional question relating to the search that could
not otherwise be heard because of Tollett "
The District Court also appears to have held that Prosise's
plea of guilty constituted an implied admission that the
search of his apartment was legal The court stated that
even though the constitutionality of the police conduct was
not litigated in the state criminal proceedings, Prosise's "plea
of guilty estops him from asserting a fourth amendment claim
in a § 1983 suit [because his] plea of guilty necessarily implied
that the search giving rise to the incriminating evidence was
lawfol "
The Court of Appeals reversed in pertinent part and re-
manded for further proceedings 667 F 2d 1 133 (C A4 1981)
It held that the principles governing guilty pleas announced
in Tollett are applicable only to subsequent habeas corpus
proceedings and that the preclusive effect, if any, of a guilty
plea upon subsequent proceedings under §1983 **is to be
determined on the basis of other principles, specifically, of
collateral estoppel and the full faith and credit statute, 28
U S C §1738" /d , at 1136-1187 The Court of Appeals
proceeded to examine the law of Virginia "to determine
whether, and to what extent, that state would give preclu-
sive effect to the criminal judgment here in issue " Id , at
1138 The court found that under Virginia law "criminal
judgments, whether by guilty plea or adjudicated guilt, have
no preclusive effect in subsequent civil litigation " Id » at
1139 Because the courts of Virginia would not give preclu-
sive effect to the criminal judgment, it was not entitled to any
greater effect under § 1738
HARING r PROSISE 311
306 Opinion of the Court
The Court of Appeals concluded that in any event a guilty
plea should not "have preclusive effect as to potential but not
actually litigated issues respecting the exclusion of evidence
on fourth amendment grounds " Id , at 1140-1141 The
court cited the general view of courts and commentators that
"among the most critical guarantees of fairness in applying
collateral estoppel is the guarantee that the party sought to
be estopped had not only a full and fair opportunity but an
adequate incentive to litigate *to the hilt* the issues in ques-
tion " Id , at 1141 Unlike a criminal defendant who has
been convicted after a full trial on the criminal charges, a
defendant who pleads guilty has not necessarily had an
adequate incentive to litigate "with respect to potential but
unhtigated issues related to the exclusion of evidence on
fourth amendment grounds " Ihid
After the Court of Appeals denied rehearing, id , at 1143,
petitioners' suggestion for rehearing en bane was denied by
an equally divided court Ibid We granted certiorari, 459
U S 904 (1982), to resolve the uncertainty concerning the
impact of a guilty plea upon a later suit under § 1983 * We
now affirm
2 In Metros v United States Duttnct Court for the Dwtrict of Colorado,
441 F 2d 313 (1070). the Court of Appeals for the Tenth Circuit held that a
guilty plea to one count of possession of heroin must be given preclusive
effect m a subsequent civil rights action against police officers who had
searched the premises m which the narcotics were found Other federal
courts have concluded, however, that civil rights plaintiffs are not barred
from litigating issues that could have been raised m prior proceedings m
state court on a different cause of action See, € g t New Jeraej/ Ed
Asm v Burke, 679 F 2d 764, 772-774 (CA3 1078), Lombard v Board of
Ed of City afNtw York, 502 F 2d 6S1, 885-637 (CA2 1974) Since no
motion to suppress evidence on Fourth Amendment grounds was ever
raised at the state-court proceedings, this case does not present questions
as to the scope of collateral estoppel with respect to particular Issues that
were litigated and decided at a criminal trial in state court As we did in
Allm v McCurry, 449 U S 90, 98, n 2 (I980), we now leave those ques
tions to another day
312 OCTOBER TERM 19H2
Opinion of the ( ourt 462 U S
II
We must decide whether Prosne's § 1983 action ' to redress
an alleged Fourth Amendment violation4 is barred by the
judgment of conviction entered in state court following his
guilty plea Petitioners* initial argument is that under prin-
ciples of collateral estoppel generally applied by the Virginia
courts, Prosise's conviction would bar his subsequent civil
challenge to police conduct, and that a federal court must
therefore give the state judgment the same effect under 28
USC §17S85
In Allen v McCurry, 449 U S 90 (1980), the Court con-
sidered whether the doctrine of collateral estoppel can be in-
voked against a § 1983 claimant to bar rehtigation of a Fourth
Amendment claim decided against him m a state criminal
proceeding The Court rejected the view thatf because the
§ 1983 action provides the only route to federal district court
for the plaintiff's constitutional claim, rehtigation of the
Fourth Amendment question m federal court must be per-
mitted No support was found in the Constitution or m § 1983
8 Title 42 U S C § 1&83 at the time in question provided
"Every person who, under color of any statute* ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the juris-
diction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be hable to the party iryured m
an action at law, suit m equity, or other proper proceeding for redress >J
4 The Fourth Amendment provides
"The right of the people to be secure in their persons* houses, papers,
and effects, against unreasonable searches and seizures, shall not be vio-
lated, and no Warrants shall issue but upon probable causa, supported by
Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized w
5 Title 28 U S C §1788 provides, m relevant part, that the "Acts,
records and judicial proceedings" of any State, Territory, or Possession
"shall have the same full faith and credit in every court within tha United
States and its Territories and Possessions as they have by law or usage m
the courts of such State, Territory or Possession from which they are
taken "
HARING v PROSISE 313
306 Opinion of the Court
for the "principle that every person asserting a federal right
is entitled to one unencumbered opportunity to litigate that
right in a federal district court, regardless of" whether that
claim has already been decided against him after a full
and fair proceeding in state court Id , at 103 The Court
concluded that the doctrine of collateral estoppel therefore
applies to § 1983 suits against police officers to recover
for Fourth Amendment violations The Court in Allen v
McCurry did not consider precisely how the doctrine of col-
lateral estoppel should be applied to a Fourth Amendment
question that was litigated and decided during the course
of a state criminal trial Id , at 105, n 25
We begin by reviewing the principles governing our deter-
mination whether a § 1983 claimant will be collaterally es-
topped from litigating an issue on the basis of a prior state-
court judgment Title 28 U S C § 1738 generally requires
"federal courts to give preclusive effect to state-court judg-
ments whenever the courts of the State from which the judg-
ments emerged would do so " Allen v McCurry, 449 U S ,
at 96 6 In federal actions, including § 1983 actions, a state-
court judgment will not be given collateral-estoppel effect,
however, where "the party against whom an earlier court de-
cision is asserted did not have a full and fair opportunity to
litigate the claim or issue decided by the first court " Id , at
101 7 Moreover, additional exceptions to collateral estoppel
8 If the state courts would not give preclusive effect to the prior judg-
ment, "the courts of the United States can accord it no greater efficacy"
under § 1738 Union & Planters' Bank v Memphis, 189 U S 71, 75
(1903)
7 We have recognized various other conditions that must also be satis-
fied before giving preclusi\ e effect to a state-court judgment See gen-
erally Montana v United States, 440 U S 147 (1979) For example,
collateral-estoppel effect is not appropriate when "controlling facts or legal
principles have changed significantly since the state-court judgment," id ,
at 155, or when "special circumstances warrant an exception to the normal
rules of preclusion/' ibid , see, e g , Porter & Dietsche, Inc v FTC, 605
F 2d 294, 300 (CA7 1979), cf Montana v United States, supra, at 163
314 OCTOBER TERM, 1982
Opinion of the Court 462 U S
may be warranted m § 1983 actions in light of the "under-
standing of §1983" that "the federal courtb could step in
where the state courts were unable or unwilling to protect
federal rights " Ibid Cf id , at 95, n 7, Board of Regents
vTomamo,446U S 478, 485-486(1980) (42 U S C §1988
authorizes federal courts, in an action under § 1983, to disre-
gard an otherwise applicable state rule of law if the state law
is inconsistent with the federal policy underlying ^ 1983)
The threshold question is whether, under the rules of col-
lateral estoppel applied by the Virginia courts, the judgment
of conviction based upon Prosise's guilty plea would foreclose
him in a later civil action from challenging the legality of a
search which had produced inculpatory evidence * Because
there is no Virginia decision precisely on point, we must look
for guidance to Virginia decisions concerning collateral estop-
pel generally While it is often appropriate to look to the law
as it is generally applied in other jurisdictions for additional
guidance, we need not do so m this case because the state-law
question is not a particularly difficult one
The courts of Virginia have long recognized that a valid
final " 'judgment rendered upon one cause of action' " may bar a
party to that action from later litigating " "matters arising in a
(preclusive effect to a state-court judgment may be inappropriate when the
§ 1983 claimant has not " 'freely and without reservation submitted] his
federal claims for decision by the state courts and ha{d] them decided
there ' ") (quoting England v Medical Examiners, 375 U S 411, 419
(1964))
8 It is our practice to accept a reasonable construction of state law by the
court of appeals "even if an examination of the state-law issue without
such guidance might have justified a different conclusion " Bishop v
Wood, 426 U S 841, 346 (1976) See id , at 846, n 10 Because we
would be particularly hesitant to consider creating a new federal rule of
preclusion, however, where a state rule of preclusion may itself be given
effect under 28 U S C § 1738, we consider petitioners' assertion that the
Virginia courts would give collateral-estoppel effect to Prosise's conviction
We emphasize, however, that, standing alone, a challenge to state-law
determinations by the court of appeals wiE rarely constitute an appropri-
ate subject of this Court's review See this Court's Rule 17
HARING v PROSISE 315
306 Opinion of the Court
suit upon a different cause of action ' " Eason v Eason, 204
Va 347, 350, 131 S E 2d 280, 282 (1963), quoting Kemp v
Miller, 166 Va 661, 674-675, 186 S E 99, 104 (1936) 9
However, "the judgment in the prior action operates as an
estoppel only as to those matters in issue or points contro-
verted, upon the determination of which the finding or ver-
dict was rendered " Ibid Unless an issue was actually
litigated and determined in the former judicial proceeding,
Virginia law will not treat it as final See, e g , Luke Con-
struction Co v Simpkms, 223 Va 387, 291 S E 2d 204
(1982), Eason v Eason, supra Compare Brown v Felsen,
442 U S 127, 139, n 10 (1979) Furthermore, collateral es-
toppel precludes the litigation of only those issues necessary
to support the judgment entered in the first action As the
Virginia Supreme Court stated in Petrus v Robbins, 196 Va
322, 330, 83 S E 2d 408, 412 (1954), "[t]o render the judg-
ment conclusive, it must appear by the record of the prior
suit that the particular matter sought to be concluded was
necessarily tried or determined, — that is, that the verdict
could not have been rendered without deciding that matter "
Cf Block v Commissioners, 99 U S 686, 693 (1879), Segal
v American Tel & Tel Co , 606 F 2d 842, 845, n 2 (CA9
1979)
9 Like the federal courts, the courts of Virginia apply different rules of
preclusion to matters arising in a suit between the same parties and based
upon the same causes of action as those involved in the previous proceed
mg Under the doctrine of res judicata, " 'the judgment in the former [ac
tion] is conclusive of the latter, not only as to every question which was
decided, but also as to every other matter which the parties might have
litigated and had determined, within the issues as they were made or ten-
dered by the pleadings, or as incident to or essentially connected with the
subject matter of the litigation, whether the same, as a matter of fact,
were or were not considered ' " Eason v Eason, 204 Va , at 350, 131
S E 2d, at 282, quoting Kemp v Miller, 166 Va , at 674, 186 S E , at
103-104 This doctrine does not apply, however, to a later action between
different parties or to a later action between the same parties on a different
claim or demand Ibid
316 IKTOBf-K riRM 19K2
Opmum of Ihi C mm 462 U S
It is clear from the foregoing that the doctrine of collateral
estoppel would not he muiked in thn cane by the Virginia
courts for at leant three reason** Firnt. the legality of the
search of Prosi&e $ apartment wm not actually litigated in the
criminal proceedings Indeed, no issue was **actually liti-
gated" in the state proceeding mnce Prautte declined to con-
test his guilt in any way Second t the criminal proceedings
did not actually decide against Promise any issue on which he
must prevail in order to establish fam § 1983 claim The only
question raised by the criminal indictment and determined by
Prosise's guilty plea in Arlington Circuit Court was whether
Prosise unlawfully engaged in the manufacture of a controlled
substance This question is simply irrelevant to the legality
of the search under the Fourth Amendment or to Prosise's
right to compensation firom state officials under § 1988
Finally, none of the issues in the § 1983 action could have
been "necessarily** determined in the criminal proceeding
SpeofteaUy, a determination that the county police officers
engaged in no illegal police conduct would not have been es-
sential to the trial court's acceptance of Premise's guilty plea
Indeed, a determmation that the search of Prosise^s apart-
ment was illegal would have been entirely irrelevant in the
context of the guilty plea proceeding Neither state nor fed-
eral law requires that a guilty plea in state court be sup-
ported by legally adnntoible evidence where the accused's
valid waiver of his right to stand trial is accompanied by a
confession of guilt. See Ktbert v, C&mmmweatth, 216 Va
660, 222 S E 2d 790 (1976); ef. JVortA Carolina v Alford,
400 U, S 25, 87-38, and n 10 (1970), WiUttt v
F 2d 588, 540 (CAB 1979) »
*°Tfae cowt betow found that, even If the Fourth Amendment issue had
been litigated and necessarily (tetmotmd by tht SUM court, that deter-
mmaton would mi be given prediisivt tflfect for an additional reason
under Virgin^ law, «<a judgment iwteraJ to a criminal prosecution,
whether of convteticm or accpfefcal, does not establish to a subsequent dvfl
action the tmth of the ikto on w!^ 667 F 2d 1188,
HARING i' PROS1SE «7
30£ Opinion of the* Court
We therefore conclude that Virginia law would not bar
Prosise from litigating the validity of the search conducted by
petitioners Accordingly, the wue is not foreclosed under
28 U S C U788
III
We turn next to petitioners' contention that even if
Prosise's claim IH not precluded under it 1738, this Court
should create a special rule of preclusion which nevertheless
would bar litigation of hm $ 1983 claim AH a general matter,
even when issues have been raised, argued, and decided m a
prior proceeding, and are therefore preclusive under state
1139 (CA4 1981), quoting Aetna Caxualty d Surety ( o v Anderww, 200
Va J85, 3HHf 10B S fc "M Hf»^ H7S2 (3%8) Thm general rule i« ba^ed
largely on the traditional principle that collateral estoppel may only be as
serted by peraom who vuw uther a party or pnvy to the prior action
Aetna Casmlty dc Surety Co v Anitersttm, ir«pm» at *$8U» 10f> 8 E 2c! at
872 Although the doctrine of mutuality of parties han been abandoned
in recent years by the courti* of many jurisdictions, see, 0 g , Parktarw
Hosiery Co v Shore, 430 II S 322, <&6-%13 (1979), Blonder Ton@m labo*
ratorte&9 Inc v Unnwnuty «/ llttmnx foundation, 402 U S 313 (1971),
it has not been rejected by the courtu of Virginia Nttrfolk & Wmte?n
R Co v Bailey Lumber To , 221 Va 638,2728 E 2d 217(1880)
In one reported ca^et however the highest court of the State hjn allowed
a stranger to a enminml conviction to invoke the dcKrtrine of collateral estop-
pel m an action brought against hlrn by the convicted person B>e, Star
& British Dominion* IHM Co v tf«//«r, 149 Va 82, 140 S E 3140927)
In Eagle, Star the court held that a convicted mnoniut was fomclosed from
seeking to recover the proceeds of a flrt insurance policy Thia exception
to the mutuality doctrine wan expressly limited to cam*H in which **th«
plaintiff who brings {thel action has committed the felony, and seeks to re-
cover the fruit of hiii own crime w Id t at 10&f 140 8 E , at ^1 That
Eagle, Star announced only a narrow exception to the rule that a criminal
conviction may not be given prtclu«ivt effect In a latar action was con-
firmed by the court in Attna Casualty & Suraty Co v Antfamon, §uprat
at 889, 105 S E 2d, at 8T2 See abo Smith v Nino £hxw Lims, Im > Wl
Va 466, 472-478, i U S E 2d 484f 488^42® (1959) Since a { 1983 action
IB not a suit to ^recover the fruit" of the plaintiff's crimtf the cmtrt below
reasonably concluded that, under Virginia lawf a criminal conviction would
not b^ given pmelu&ive effaet in a 1 1988 action with respect to any Issues,
including issues that ware actually and neces&arily decided
318 OCTOBER TERM, 1982
Opinion of the Court 462 U S
law, "[r]edetermmation of [the] issues [may nevertheless be]
warranted if there is reason to doubt the quality, extensive-
ness, or fairness of procedures followed in prior litigation "
Montana v United States, 440 U S 147, 164, n 11 (1979)
Yet petitioners maintain that Prosise should be barred from
litigating an issue that was never raised, argued, or decided,
simply because he had an opportunity to raise the issue in a
previous proceeding Petitioners reason that by pleading
guilty Prosise should be deemed to have either admitted the
legality of the search or waived any Fourth Amendment
claim, thereby precluding him from asserting that claim m
any subsequent suit According to petitioners, such a fed-
eral rule of preclusion imposed in addition to the require-
ments of § 1738 is necessary to further important interests m
judicial administration
There is no justification for creating such an anomalous
rule To begin with, Prosise's guilty plea m no way consti-
tuted an admission that the search of his apartment was
proper under the Fourth Amendment During the course of
proceedings in Arlington County Circuit Court, Prosise made
no concession with respect to the Fourth Amendment claim
Petitioners contend that we should infer such an admission
because Prosise had a substantial incentive to elect to go to
trial if he considered his Fourth Amendment claim meritori-
ous since the State would most likely have been unable to ob-
tain a conviction in the absence of the evidence seized from
Prosise's apartment In our view, however, it is impermissi-
ble for a court to assume that a plea of guilty is based on a
defendant's determination that he would be unable to prevail
on a motion to suppress evidence As we recognized in
Brady v United States, 397 U S 742, 750 (1970), and reaf-
firmed in Tollett v Henderson, 411 U S , at 263, a defend-
ant's decision to plead guilty may have any number of other
"For some people, their breach of a State's law is alone
sufficient reason for surrendering themselves and ac-
HARING^; PROSISE 319
306 Opinion of the Court
ceptmg punishment For others, apprehension and
charge, both threatening acts by the Government, jar
them into admitting their guilt In still other cases, the
post-indictment accumulation of evidence may convince
the defendant and his counsel that a trial is not worth the
agony and expense to the defendant and his family "
Similarly, a prospect of a favorable plea agreement or "the
expectation or hope of a lesser sentence are consider-
ations that might well suggest the advisability of a guilty
plea without elaborate consideration of whether [a Fourth
Amendment challenge to the introduction of inculpatory evi-
dence] might be factually supported " Tollett v Henderson,
supra, at 268 Therefore, Prosise's decision not to exercise
his right to stand trial cannot be regarded as a concession of
any kind that a Fourth Amendment evidentiary challenge
would fail Cf Brown v Felsen, 442 U S , at 137
We similarly reject the view, argued by petitioners and ac-
cepted by the District Court, that by pleading guilty Prosise
"waived" any claim involving an antecedent Fourth Amend-
ment violation Petitioners rely on our prior decisions con-
cerning the scope of federal habeas review of a criminal con-
viction based upon a guilty plea See, e g , Brady v United
States, supra, Tollett v Henderson, supra, Blackledge v
Perry, 417 U S 21 (1974), Lefkowitz v Newsome, 420 U S
283 (1975), Menna v New York, 423 U S 61 (1975) (per
cumam) In Brady, we reaffirmed that a guilty plea is not
simply "an admission of past conduct," but a waiver of con-
stitutional trial rights such as the right to call witnesses, to
confront and cross-examine one's accusers, and to trial by
jury Brady, supra, at 747-748, citing Boykin v Alabama,
395 U S 238, 242 (1969) For this reason, a guilty plea "not
only must be voluntary but must be [a] knowing, intelligent
ac[t] done with sufficient awareness of the relevant circum-
stances and likely consequences " Brady, supra, at 748 In
Tollett v Henderson, we concluded that an intelligent and
voluntary plea of guilty generally bars habeas review of
320 OCTOBER TERM, 1982
Opinion of the Court 462 U S
claims relating to the deprivation of constitutional rights that
occurred before the defendant pleaded guilty We held that,
because "[t]he focus of federal habeas inquiry is the nature of
[defense counsel's] advice and the voluntanness of the plea,
not the existence as such of an antecedent constitutional infir-
mity," 411 U S , at 266, Henderson was not entitled to a writ
of habeas corpus on the basis of infirmities in the selection of
the grand jury
Our decisions subsequent to Tollett make clear that a plea
of guilty does not bar the review in habeas corpus proceed-
ings of all claims involving constitutional violations anteced-
ent to a plea of guilty A defendant who pleads guilty may
seek to set aside a conviction based on prior constitu-
tional claims which challenge "the very power of the State to
bring the defendant into court to answer the charge brought
against him " Blackledge v Perry, 417 U S , at 30 Be-
cause a challenge to an indictment on grounds of prosecu-
torial vindictiveness was such a claim, we concluded that a
federal court may grant the writ of habeas corpus if it found
merit in that constitutional challenge Id , at 30-31 We
also applied this principle in Menna v New York, supra, in
holding that a double jeopardy claim may be raised in federal
habeas proceedings following a state-court conviction based
on a plea of guilty In Lefkowitz v Newsome, supra, we
held that Tollett does not apply to preclude litigation of a
Fourth Amendment claim subsequent to a guilty plea when
the State itself permits the claim to be raised on appeal
Under our past decisions, as the District Court correctly
recognized, a guilty plea results in the defendant's loss of
any meaningful opportunity he might otherwise have had to
challenge the adnussibihty of evidence obtained in violation
of the Fourth Amendment It does not follow, however,
that a guilty plea is a "waiver" of antecedent Fourth Amend-
uaent claims that may be given effect outside the confines of
ttie cramnal proceeding The defendant's rights under the
Fourth Amendment are not among the trial rights that he
MAKING v PROSISE 321
306 Opinion of the Court
necessarily waives when he knowingly and voluntarily pleads
guilty Moreover, our decisions provide no support for peti-
tioners' waiver theory for the simple reason that these deci-
sions did not rest on any principle of waiver The cases re-
lied on by petitioners all involved challenges to the validity of
a state criminal conviction Our decisions in Tollett and the
cases that followed simply recognized that when a defendant
is convicted pursuant to his guilty plea rather than a trial, the
validity of that conviction cannot be affected by an alleged
Fourth Amendment violation because the conviction does not
rest in any way on evidence that may have been improperly
seized State law treats a guilty plea as "a break in the chain
of events [that] preceded it in the criminal process," Tollett v
Henderson, supra, at 267 Therefore, the conclusion that a
Fourth Amendment claim ordinarily may not be raised in a
habeas proceeding following a plea of guilty does not rest
on any notion of waiver, but rests on the simple fact that
the claim is irrelevant to the constitutional validity of the
conviction As we explained in Menna v New York, supra,
at 62-63, n 2
"[W]aiver was not the basic ingredient of this line of
cases The point of these cases is that a counseled plea
of guilty is an admission of factual guilt so reliable that,
where voluntary and intelligent, it quite vahdly removes
the issue of factual guilt from the case In most cases,
factual guilt is a sufficient basis for the State's imposition
of punishment A guilty plea, therefore, simply renders
irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt
and which do not stand in the way of conviction, if factual
guilt is vahdly established " (Emphasis in original, cita-
tion omitted )
It is therefore clear that Prosise did not waive his Fourth
Amendment claims by pleading guilty in state court The
cases relied on by petitioners do not establish that a guilty plea
is a waiver of Fourth Amendment claims Moreover, the
322 OCTOBER TERM, 1982
Opinion of the Court 462 U S
justifications for denying habeas review of Fourth Amend-
ment claims following a guilty plea are inapplicable to an
action under §1983 While Prosise's Fourth Amendment
claim is irrelevant to the constitutionality of his criminal con-
viction, and for that reason may not be the basis of a writ of
habeas corpus, that claim is the crux of his § 1983 action
which directly challenges the legality of police conduct u
Adoption of petitioners' rule of preclusion would threaten
important interests in preserving federal courts as an avail-
able forum for the vindication of constitutional rights See
England v Medical Examiners, 375 U S 411, 416-417
(1964), McClellan v Garland, 217 U S 268, 281 (1910),
Willcox v Consolidated Gas Co , 212 U S 19, 40 (1909),
Cohens v Virginia, 6 Wheat 264, 404 (1821) Under peti-
tioners' rule, whether or not a state judgment would be
accorded preclusive effect by state courts, a federal court
would be barred from entertaining a § 1983 claim The rule
would require "an otherwise unwilling party to try [Fourth
Amendment] questions to the hilt" and prevail in state court
"in order to [preserve] the mere possibility" of later bringing
a § 1983 claim in federal court Brown v Felsen, 442 U S ,
11 Although petitioners also contend that a special federal rule of preclu
sion is necessary to preserve important federal interests in judicial admin
istration, we fail to understand how any such interests justify the adoption
of a rule that would bar the assertion of constitutional claims which
have never been litigated See Allen v McCurry, 449 U S , at 95, n 7,
cf Patsy v Florida Board of Regents, 457 U S 496, 501-502, 512-513,
and n. 13 (1982), Kr&mer v Chemical Construction Corp , 456 U S 461,
476 (1982) Petitioners allude generally to the interests that underlie the
pnnaples of collateral estoppel, such as the elimination of "the expense,
vexation, waste, and possible inconsistent results of duphcatory litigation "
Hoog v New Jersey, 356 U S 464, 470 (1958) Yet these interests are
cpite simply inapplicable to this case When a court accepts a defendant's
gKit^ plea, there is no adjudication whatsoever of any issues that may sub
sequm% be the basis of a § 1983 claim There is thus no repetitive use of
Jftcfieaal resources and no possibility of inconsistent decisions that could
3®sijfy precluding the bringing of such claims Cf England v Medical
^ at 419
HARING v. PROSISE 323
306 Opinion of the Court
at 135. Defendants who have pleaded guilty and who wish
to bring a § 1983 claim would be forced to bring that claim in
state court, if at all. Not only have petitioners failed to
advance any compelling justification for a rule confining the
litigation of constitutional claims to a state forum, but such a
rule would be wholly contrary to one of the central concerns
which motivated the enactment of § 1983, namely, the "grave
congressional concern that the state courts had been deficient
in protecting federal rights." Allen v. McCurry, 449 U. S.,
at 98-99, citing Mitchum v. Foster, 407 U. S. 225, 241-242
(1972), and Monroe v. Pape, 365 U. S. 167, 180 (1961). See
Patsy v. Florida Board of Regents, 457 U. S. 496 (1982).
IV
We conclude that respondent's conviction in state court
does not preclude him from now seeking to recover damages
under 42 U. S. C. § 1983 for an alleged Fourth Amendment
violation that was never considered in the state proceedings.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
324 OCTOBER TERM, 1982
Syllabus 462 U S
NEW MEXICO ET AL v MESCALERO APACHE TRIBE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No 82-331 Argued April 19, 1983— Decided June 13, 1983
With extensive federal assistance, respondent Indian Tribe has established
a comprehensive scheme for managing the fish and wildlife resources on
its reservation in New Mexico Federally approved tribal ordinances
regulate in detail the conditions under which both members of the Tribe
and nonmembers may hunt and fish New Mexico has hunting and fish
ing regulations that conflict with, and in some instances are more restric
tive than, the tribal regulations, and the State has applied its regulations
to hunting and fishing by nonmembers on the reservation The Tribe
filed suit in Federal District Court, seeking to prevent the State from
regulating on-reservation hunting and fishing The District Court ruled
in the Tribe's favor and granted declaratory and injunctive relief The
Court of Appeals affirmed
Held The application of New Mexico's laws to on-reservation hunting and
fishing by nonmembers of the Tribe is pre-empted by the operation of
federal law Pp 330-344
(a) The exercise of concurrent jurisdiction by the State would effec-
tively nullify the Tribe's unquestioned authority to regulate the use of
its resources by members and nonmembers, would interfere with the
comprehensive tribal regulatory scheme, and would threaten Congress'
overriding objective of encouraging tribal self-government and economic
development Pp 338-341
(b) The State has failed to identify any interests that would justify
the assertion of concurrent regulatory authority Any financial in-
terest that the State might have by way of revenues from the sale of
licenses to nonmembers who hunt or fish on the reservation or match
ing federal funds based on the number of state licenses sold, is msuffi
cient justification, especially where the loss of such revenues is likely to
be insubstantial Pp 341-343
677 F 2d 55, affirmed
MARSHALL, J , delivered the opinion for a unanimous Court
Thomas L Durngan, Special Assistant Attorney General
of New Mexico, argued the cause for petitioners With him
on the briefe were Paul Bardacke, Attorney General, and
Paul A Lenzim
NEW MEXICO v MESCALERO APACHE TRIBE 325
324 Opinion of the Court
George E Fettinger argued the cause for respondent
With him on the brief were Kathleen A Miller and Kim
Jerome Gottschalk
Deputy Solicitor General Claiborne argued the cause for
the United States as amicus curiae urging affirmance With
him on the brief were Solicitor General Lee, Assistant Attor-
ney General Dinkins, and Jacques B Gelin *
JUSTICE MARSHALL delivered the opinion of the Court
We are called upon to decide in this case whether a State
may restrict an Indian Tribe's regulation of hunting and fish-
ing on its reservation With extensive federal assistance
and supervision, the Mescalei o Apache Tribe has established
a comprehensive scheme for managing the reservation's fish
and wildlife resources Federally approved tribal ordinances
regulate in detail the conditions under which both members
of the Tribe and nonmembers may hunt and fish New Mex-
ico seeks to apply its own laws to hunting and fishing by non-
members on the reservation We hold that this application
of New Mexico's hunting and fishing laws is pre-empted by
the operation of federal law
The Mescalero Apache Tribe (Tribe) resides on a reserva-
tion located within Otero County in south central New Mex-
ico The reservation, which represents only a small portion
*Briefs of amici curiae urging reversal were filed by Robert K Corbm,
Attorney General of Arizona, Steven J Silver, Special Assistant Attorney
General, Kenneth L Eikenberry, Attorney General of Washington, and
James R Johnson, Senior Assistant Attorney General, for the State of
Arizona et al , and by David L Wilkinson, Attorney General, Richard
L Dewsnup> Solicitor General, and Dallin W Jensen and Michael M
Quealy, Assistant Attorneys General, for the State of Utah
Briefs of amici curiae urging affirmance were filed by Frank E Maynes
for the Southern Ute Indian Tribe, by Martin E Seneca, Jr , for the
Umtah and Ouray Tribe, and by Robert C Brauchli for the White Moun-
tain Apache Tribe
326 OCTOBER TERM, 1982
Opinion of the Court 462 U S
of the aboriginal Mescalero domain, was created by a succes
sion of Executive Orders promulgated in the 1870's and 1880's 1
The present reservation comprises more than 460,000 acres,
of which the Tribe owns all but 193 85 acres 2 Approxi
mately 2,000 members of the Tribe reside on the reservation,
along with 179 non-Indians, including resident federal em
ployees of the Bureau of Indian Affairs and the Indian Health
Service
The Tribe is organized under the Indian Reorganization
Act of 1934, 48 Stat 984, 25 U S C §461 et seq (1976 ed
and Supp V), which authorizes any tribe residing on a res-
ervation to adopt a constitution and bylaws, subject to the
approval of the Secretary of the Interior (Secretary) The
Tribe's Constitution, which was approved by the Secretary
on January 12, 1965, requires the Tribal Council
"[t]o protect and preserve the property, wildlife and nat-
ural resources of the tribe, and to regulate the conduct of
trade and the use and disposition of tribal property upon
the reservation, providing that any ordinance directly
affecting non-members of the tribe shall be subject to
review by the Secretary of [the] Interior " App 53a
lSee 1 C Kappler, Indian Affairs Laws and Treaties 870-873 (1904)
The final boundaries were fixed by the Executive Order of Mar 24, 1883
(Order of President Arthur) Portions of the reservation were briefly in
eluded in a National Forest, but were restored to the Mescalero Reserva
tion by the Executive Order of Feb 17, 1912 (Order of President Taft)
An intervening Executive Order of Mar 1, 1910, issued by President
Taft exempted from the reservation two "small holdings claims" covering
settlements located before the establishment of the reservation The
Tribe has since purchased all but 23 8 acres of the land covered by these
claims
2 These lands comprise the 23 8 acres remaining of the "small holdings
claims," see n 1, supra, 10 acres granted to St Joseph's Catholic Church
by the Act of Mar 29, 1928, ch 299, 45 Stat 1716, and the unimproved and
unoccupied 160-acre "Dodson Tract" in the northwest portion of the res-
ervation See Brief for United States as Arnica Curiae 2, n 3
NEW MEXICO v MESCALERO APACHE TRIBE 327
324 Opinion of the Court
The Constitution further provides that the Council shall
"adopt and approve plans of operation to govern the
conduct of any business or industry that will further the
economic well-being of the members of the tribe, and to
undertake any activity of any nature whatsoever, not
inconsistent with Federal law or with this constitution,
designed for the social or economic improvement of the
Mescalero Apache people, subject to review by the
Secretary of the Interior " Ibid
Anticipating a decline in the sale of lumber which has been
the largest income-producing activity within the reservation,
the Tribe has recently committed substantial time and re-
sources to the development of other sources of income The
Tribe has constructed a resort complex financed principally
by federal funds,3 and has undertaken a substantial develop-
ment of the reservation's hunting and fishing resources
These efforts provide employment opportunities for members
of the Tribe, and the sale of hunting and fishing licenses and
related services generates income which is used to maintain
the tribal government and provide services to Tribe members 4
Development of the reservation's fish and wildlife re-
sources has involved a sustained, cooperative effort by the
3 Financing for the complex, the Inn of the Mountain Gods, came princi-
pally from the Economic Development Administration (EDA), an agency of
the United States Department of Commerce, and other federal sources
In addition, the Tribe obtained a $6 million loan from the Bank of New
Mexico, 90% of which was guaranteed by the Secretary of the Interior
under the Indian Financing Act of 1974, 25 U S C § 1451 et seq (1976 ed
and Supp V), and 10% of which was guaranteed by tribal funds Certain
additional facilities at the Inn were completely funded by the EDA as pub
he works projects, and other facilities received 50% funding from the EDA
App to Brief in Opposition 7a-8a
4 Income from the sale of hunting and fishing licenses, "package hunts"
which combine hunting and fishing with use of the facilities at the Inn, and
campground and picnicking permits totaled $269,140 in 1976 and $271,520
in 1977 The vast majority of the nonmember hunters and fishermen on
the reservation are not residents of the State of New Mexico
328 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Tribe and the Federal Government Indeed, the reserva-
tion's fishing resources are wholly attributable to these re-
cent efforts Using federal funds, the Tribe has established
eight artificial lakes which, together with the reservation's
streams, are stocked by the Bureau of Sport Fisheries and
Wildlife of the United States Fish and Wildlife Service, De-
partment of the Interior, which operates a federal hatchery
located on the reservation None of the waters are stocked
by the State 5 The United States has also contributed sub-
stantially to the creation of the reservation's game resources
Prior to 1966 there were only 13 elk in the vicinity of the res-
ervation In 1966 and 1967 the National Park Service do-
nated a herd of 162 elk which was released on the reserva-
tion Through its management and range development6 the
Tribe has dramatically increased the elk population, which by
1977 numbered approximately 1,200 New Mexico has not
contributed significantly to the development of the elk herd
or the other game on the reservation, which includes ante-
lope, bear, and deer 7
The Tribe and the Federal Government jointly conduct a
comprehensive fish and game management program Pur-
suant to its Constitution and to an agreement with the
Bureau of Sport Fisheries and Wildlife,8 the Tribal Council
adopts hunting and fishing ordinances each year The tribal
ordinances, which establish bag limits and seasons and pro-
5 The State has not stocked any waters on the reservation since 1976
6 These efforts have included controlling and reducing the population of
other animals, such as wild horses and cattle, which compete for the avail
able forage on the reservation
7 The New Mexico Department of Game and Fish issued a permit for the
importation of the elk from Wyoming into New Mexico The Department
has provided the Tribe with any management assistance which the Tribe
has requested, such requests have been limited Id , at 16a
8 That agreement, which provides for the stocking of the reservation's ar
tificial lakes by the Bureau, obligates the Tribe to "designate those waters
of the Reservation which shall be open to public fishing" and to "establish
regulations for the conservation of the fishery resources " App 71a
NEW MEXICO v MESCALERO APACHE TRIBE 329
324 Opinion of the Court
vide for licensing of hunting and fishing, are subject to ap-
proval by the Secretary under the Tribal Constitution and
have been so approved The Tribal Council adopts the game
ordinances on the basis of recommendations submitted by
a Bureau of Indian Affairs' range conservationist who is
assisted by full-time conservation officers employed by the
Tribe The recommendations are made in light of the con-
servation needs of the reservation, which are determined on
the basis of annual game counts and surveys Through the
Bureau of Sport Fisheries and Wildlife, the Secretary also
determines the stocking of the reservation's waters based
upon periodic surveys of the reservation
Numerous conflicts exist between state and tribal hunting
regulations 9 For instance, tribal seasons and bag limits for
both hunting and fishing often do not coincide with those im-
posed by the State The Tribe permits a hunter to kill both
a buck and a doe, the State permits only buck to be killed
Unlike the State, the Tribe permits a person to purchase an
elk license in two consecutive years Moreover, since 1977,
the Tribe's ordinances have specified that state hunting and
fishing licenses are not required for Indians or non-Indians
who hunt or fish on the reservation 10 The New Mexico De-
partment of Game and Fish has enforced the State's regula-
tions by arresting non-Indian hunters for illegal possession of
game killed on the reservation in accordance with tribal ordi-
nances but not in accordance with state hunting regulations
In 1977 the Tribe filed suit against the State and the Direc-
tor of its Game and Fish Department in the United States
District Court for the District of New Mexico, seeking to
prevent the State from regulating on-reservation hunting or
9 These conflicts have persisted despite the parties' stipulation that the
New Mexico State Game Commission has attempted to "accommodate the
preferences of the Mescalero Apache Tribe and other Indian tribes "
App to Brief in Opposition 25a
10 Prior to 1977 the Tribe consented to the application to the reservation
of the State's hunting and fishing regulations
330 OCTOBER TERM, 1982
Opinion of the Court 462 U s
fishing by members or nonmembers On August 2, 1978, the
District Court ruled in favor of the Tribe and granted de
claratory and mjunctive relief against the enforcement of the
State's hunting and fishing laws against any person for hunt
ing and fishing activities conducted on the reservation The
United States Court of Appeals for the Tenth Circuit af-
firmed 630 F 2d 724 (1980) Following New Mexico's
petition for a writ of certiorari, this Court vacated the Tenth
Circuit's judgment, 450 U S 1036 (1981), and remanded the
case for reconsideration in light of Montana v United States,
450 U S 544 (1981) On remand, the Court of Appeals
adhered to its earlier decision 677 F 2d 55 (1982) We
granted certioran, 459 U S 1014 (1982), and we now affirm
II
New Mexico concedes that on the reservation the Tribe
exercises exclusive jurisdiction over hunting and fishing by
members of the Tribe and may also regulate the hunting and
fishing by nonmembers " New Mexico contends, however,
that it may exercise concurrent jurisdiction over nonmem-
bers and that therefore its regulations governing hunting and
fishing throughout the State should also apply to hunting and
fishing by nonmembers on the reservation Although New
Mexico does not claim that it can require the Tribe to permit
nonmembers to hunt and fish on the reservation, it claims
that, once the Tribe chooses to permit hunting and fishing
by nonmembers, such hunting and fishing is subject to any
state-imposed conditions Under this view the State would
be free to impose conditions more restrictive than the Tribe's
own regulations, including an outright prohibition The
question in this case is whether the State may so restrict the
Tribe's exercise of its authority
Our decision in Montana v United States, supra, does not
resolve this question Unlike this case, Montana concerned
lands located within the reservation but not owned by the
11 Brief for Petitioners 7, 12, 20, Tr of Oral Arg 7
NEW MEXICO v MESCALERO APACHE TRIBE 331
324 Opinion of the Court
Tribe or its members We held that the Crow Tribe could
not as a general matter regulate hunting and fishing on those
lands 450 U S , at 557-567 12 But as to "land belonging to
the Tribe or held by the United States in trust for the Tribe/'
we "readily agree[d]" that a Tribe may "prohibit nonmem-
bers from hunting or fishing [or] condition their entry by
charging a fee or establish bag and creel limits " Id , at 557
We had no occasion to decide whether a Tribe may only exer-
cise this authority in a manner permitted by a State
On numerous occasions this Court has considered the ques-
tion whether a State may assert authority over a reservation
The decision in Worcester v Georgia, 6 Pet 515, 560 (1832),
reflected the view that Indian tribes were wholly distinct na-
tions within whose boundaries "the laws of [a State] can have
no force " We long ago departed from the "conceptual clar-
ity of Mr Chief Justice Marshall's view in Worcester," Mes-
calero Apache Tribe v Jones, 411 U S 145, 148 (1973), and
have acknowledged certain limitations on tribal sovereignty
For instance, we have held that Indian tribes have been im-
plicitly divested of their sovereignty in certain respects by
virtue of their dependent status,13 that under certain circum-
stances a State may validly assert authority over the activi-
ties of nonmembers on a reservation,14 and that in exceptional
12 Even so, the Court acknowledged that "Indian tribes retain inherent
sovereign power to exercise some forms of civil jurisdiction over non-
Indians on their reservations, even on non-Indian fee lands " 450 U S ,
at 565 The Court stressed that in Montana the pleadings "did not allege
that non Indian hunting and fishing on [non-Indian] reservation lands [had]
unpaired [the Tribe's reserved hunting and fishing privileges]," id , at 558,
n 6, or "that non-Indian hunting and fishing on fee lands imperil the sub-
sistence or welfare of the Tribe," id , at 566, and that the existing record
failed to suggested "that such non-Indian hunting and fishing threaten
the Tribe's political or economic security " Ibid
18 See, e g , Oneida Indian Nation v County of Oneida, 414 U S 661,
667-668 (1974), Ohphant v Suquamish Indian Tribe, 435 U S 191 (1978)
14 See, e g , Washington v Confederated Tribes ofColville Indian Res
eroatwn, 447 U S 134 (1980), Moe v Sahsh & Kootenai Tribes, 425 U S
463 (1976)
332 OCTOBER TERM, 1982
Opinion of the Court 462 U S
circumstances a State may assert jurisdiction over the on
reservation activities of tribal members 15
Nevertheless, in demarcating the respective spheres of
state and tribal authority over Indian reservations, we have
continued to stress that Indian tribes are unique aggrega
tions possessing "'attributes of sovereignty over both their
members and their territory/" White Mountain Apache
Tribe v Bracker, 448 U S 136, 142 (1980), quoting United
States v Mazurie, 419 U S 544, 557 (1975) Because of
their sovereign status, tribes and their reservation lands are
insulated in some respects by a "historic immunity from state
and local control," Mescalero Apache Tribe v Jones, supra,
at 152, and tribes retain any aspect of their historical sover-
eignty not "inconsistent with the overriding interests of the
National Government " Washington v Confederated Tribes
of Colville Indian Reservation, 447 U S 134, 153 (1980)
The sovereignty retained by tribes includes "the power of
regulating their internal and social relations," United States
v Kagama, 118 U S 375, 381-382 (1886), cited in United
States v Wheeler, 435 U S 313, 322 (1978) A tribe's
power to prescribe the conduct of tribal members has never
been doubted, and our cases establish that " 'absent govern-
ing Acts of Congress/" a State may not act in a manner that
" 'infhnge[s] on the right of reservation Indians to make their
own laws and be ruled by them ' " McClanahan v Arizona
15 See Puyallup Tribe v Washington Game Dept , 433 U S 165 (1977)
Puyallup upheld the State of Washington's authority to regulate on
reservation fishing by tribal members Like Montana v United States,
the decision in Puyallup rested in part on the fact that the dispute cen
tered on lands which, although located within the reservation boundaries,
no longer belonged to the Tribe, all but 22 of the 18,000 acres had been
alienated in fee simple The Court also relied on a provision of the Indian
treaty which qualified the Indians' fishing rights by requiring that they be
exercised ''in common with all citizens of the Territory," 433 U S , at 175,
and on the State's interest in conserving a scarce, common resource Id ,
at 174, 175-177
NEW MEXICO v MESCALERO APACHE TRIBE 333
g24 Opinion of the Court
State Tax Comm'n, 411 U S 164, 171-172 (1973), quoting
Williams v Lee, 358 U S 217, 219-220 (1959) See also
Fisher v District Court, 424 U S 382, 388-389 (1976) (per
curiam)
A tribe's power to exclude nonmembers entirely or to con-
dition their presence on the reservation is equally well estab-
lished See, e g , Montana v United States, 450 U S 544
(1981), Memon v Jicarilla Apache Tribe, 455 U S 130
(1982) Whether a State may also assert its authority over
the on-reservation activities of nonmembers raises "[rci]ore
difficult questions ," Bracker, supra, at 144 While under
some circumstances a State may exercise concurrent jurisdic-
tion over non-Indians acting on tribal reservations, see, e g ,
Washington v Confederated Tribes, supra, Moe v Sahsh &
Kootenai Tribes, 425 U S 463 (1976), such authority may be
asserted only if not pre-empted by the operation of federal
law See, e g , Ramah Navajo School Ed , Inc v Bureau
of Revenue of New Mexico, 458 U S 832 (1982), Bracker,
supra, Central Machinery Co v Arizona Tax Comm'n, 448
U S 160 (1980), Williams v Lee, supra, Warren Trading
Post v Arizona Tax Comm'n, 380 U S 685 (1965), Fisher v
District Court, supra, Kennerly v District Court of Mon-
tana, 400 U S 423 (1971)
In Bracker we reviewed our prior decisions concerning
tribal and state authority over Indian reservations and
extracted certain principles governing the determination
whether federal law pre-empts the assertion of state author-
ity over nonmembers on a reservation We stated that that
determination does not depend "on mechanical or absolute
conceptions of state or tribal sovereignty, but call[s] for a
particularized inquiry into the nature of the state, federal,
and tribal interests at stake " 448 U S , at 145
We also emphasized the special sense in which the doctrine
of pre-emption is applied in this context See id , at 143-
144, Ramah Navajo School Bd , supra, at 838 Although a
State will certainly be without jurisdiction if its authority
334 OCTOBER TERM, 1982
Opinion of the Court 462 U S
is pre-empted under familiar principles of pre-emption, we
cautioned that our prior cases did not limit pre-emption of
state laws affecting Indian tribes to only those circumstances
"The unique historical origins of tribal sovereignty" and
the federal commitment to tribal self-sufficiency and self-
determination make it "treacherous to import notions of
pre-emption that are properly applied to other [con-
texts] " Bracker, supra, at 143 See also Ramah Navajo
School Bd , supra, at 838 By resting pre-emption analysis
principally on a consideration of the nature of the competing
interests at stake, our cases have rejected a narrow focus
on congressional intent to pre-empt state law as the sole
touchstone They have also rejected the proposition that
pre-emption requires "'an express congressional statement
to that effect ' " Bracker, supra, at 144 (footnote omitted)
State jurisdiction is pre-empted by the operation of federal
law if it interferes or is incompatible with federal and tribal
interests reflected in federal law, unless the state interests at
stake are sufficient to justify the assertion of state authority
Bracker, supra, at 145 See also Ramah Navajo School
Bd , supra, at 845, quoting Hines v Davidowitz, 312 U S
52, 67 (1941) 16
Certain broad considerations guide our assessment of the
federal and tribal interests The traditional notions of
Indian sovereignty provide a crucial "backdrop/' Bracker,
supra, at 143, citing McClanahan, supra, at 172, against
which any assertion of state authority must be assessed
Moreover, both the tribes and the Federal Government are
firmly committed to the goal of promoting tribal self-govern-
16 The exercise of state authority may also be barred by an independent
barrier— inherent tribal sovereignty— if it "unlawfully mfrmge[s] 'on the
right of reservation Indians to make their own laws and be ruled by
them ' " White Mountain Apache Tribe v Bracker, 448 U S 136, 142
(1980), quoting Williams v Lee, 358 U S 217, 220 (1959) "See also
Washington v Yakima Indian Nation , 439 U S 463, 502 (1979), Fisher v
District Court, 424 U S 382 (1976) (per cunam), Kennerly v District
Court of Montana, 400 U S 423 (1971) " 448 U S , at 142-143
NEW MEXICO v MESCALERO APACHE TRIBE 335
324 Opinion of the Court
ment, a goal embodied m numerous federal statutes 17 We
have stressed that Congress' objective of furthering tribal
self-government encompasses far more than encouraging
tribal management of disputes between members, but in-
cludes Congress9 overriding goal of encouraging "tribal self-
sufficiency and economic development " Bracker, 448 U S ,
at 143 (footnote omitted) In part as a necessary implication
of this broad federal commitment, we have held that tribes
have the power to manage the use of their territory and
resources by both members and nonmembers,18 Memon,
sup? a, at 137, Bracker, supra, at 151, Montana v United
States, supra, 18 U S C §1162(b), 25 U S C §§1321(b),
1322(b), to undertake and regulate economic activity within
the reservation, Memon, 455 U S , at 137, and to defray
17 For example, the Indian Financing Act of 1974, 25 U S C § 1451 et
seq (1976 ed and Supp V), states "It is hereby declared to be the policy
of Congress to help develop and utilize Indian resources, both physical
and human, to a point where the Indians will fully exercise responsibility
for the utilization and management of their own resources and where they
will enjoy a standard of living from their own productive efforts compara-
ble to that enjoyed by non-Indians in neighboring communities " § 1451
Similar policies underlie the Indian Self Determination and Education As
sistance Act of 1975, 25 U S C § 450 et seq , as well as the Indian Reorga-
nization Act of 1934, 25 U S C § 461 et seq (1976 ed and Supp V), pur-
suant to which the Mescalero Apache Tribe adopted its Constitution The
"intent and purpose of the Reorganization Act was 'to rehabilitate the
Indian's economic life and to give him a chance to develop the initiative de-
stroyed by a century of oppression and paternalism ' " Mescalero Apache
Tribe v Jones, 411 U S 145, 152 (1973), quoting H R Rep No 1804, 73d
Cong , 2d Sess , 6 (1934) The Indian Civil Rights Act of 1968, 25
U S C § 1301 et seq , likewise reflects Congress' intent "to promote the
well-established federal 'policy of furthering Indian self-government ' "
Santa Clara Pueblo v Martinez, 436 U S 49, 62 (1978), quoting Morton
v Mancari, 417 U S 535, 551 (1974)
18 Our cases have recognized that tribal sovereignty contains a "signifi-
cant geographical component " Bracker, supra, at 151 Thus the off-
reservation activities of Indians are generally subject to the prescriptions
of a "nondiscrimmatory state law" in the absence of "express federal law to
the contrary " Mescalero Apache Tribe v Jones, supra, at 148-149
336 OCTOBER TERM, 1982
Opinion of the Court 462 U g
the cost of governmental services by levying taxes Ibid
Thus, when a tribe undertakes an enterprise under the au-
thority of federal law, an assertion of state authority must be
viewed against any interference with the successful accom-
plishment of the federal purpose See generally Bracker,
supra, at 143 (footnote omitted), Ramah Navajo School Bd ,
458 U S , at 845, quoting Hines v Davidowitz, supra, at 67
(state authority precluded when it " 'stands as an obstacle to
the accomplishment of the full purposes and objectives of
Congress' ")
Our prior decisions also guide our assessment of the state
interest asserted to justify state jurisdiction over a reserva-
tion The exercise of state authority which imposes addi-
tional burdens on a tribal enterprise must ordinarily be
justified by functions or services performed by the State in
connection with the on-reservation activity Ramah Navajo
School Bd , supra, at 843, and n 7, Bracker, supra, at
148-149, Central Machinery Co v Arizona Tax Comm'n,
448 U S , at 174 (POWELL, J , dissenting) Thus a State
seeking to impose a tax on a transaction between a tribe and
nonmembers must point to more than its general interest in
raising revenues See, e g , Warren Trading Post Co v
Arizona, 380 U S 685 (1965), Bracker, supra, Ramah Nav-
ajo School Bd , supra See also Confederated Tribes, 447
U S , at 157 ("governmental interest in raising revenues is
strongest when the tax is directed at off-reservation
value and when the taxpayer is the recipient of state serv-
ices"), Moe, 425 U S , at 481-483 (State may require tribal
shops to collect state cigarette tax from nonmember purchas-
ers) A State's regulatory interest will be particularly sub-
stantial if the State can point to off-reservation effects that
necessitate state intervention Cf Puyallup Tribe v Wash-
ington Game Dept , 433 U S 165 (1977)
III
With these principles in mind, we turn to New Mexico's
claim that it may superimpose its own hunting and fishing
NEW MEXICO v MESCALERO APACHE TRIBE 337
324 Opinion of the Court
regulations on the Mescalero Apache Tribe's regulatory
scheme
A
It is beyond doubt that the Mescalero Apache Tribe law-
fully exercises substantial control over the lands and re-
sources of its reservation, including its wildlife As noted
supra, at 330, and as conceded by New Mexico,19 the sover-
eignty retained by the Tribe under the Treaty of 1852 in-
cludes its right to regulate the use of its resources by mem-
bers as well as nonmembers In Montana v United States,
we specifically recognized that tribes m general retain this
authority
Moreover, this aspect of tribal sovereignty has been ex-
pressly confirmed by numerous federal statutes ** Pub L
280 specifically confirms the power of tribes to i egulate on-
reservation hunting and fishing 67 Stat 588, 18 U S C
§1162(b), see also 25 U S C § 1321(b) 21 This authority
19 New Mexico concedes that the Tribe originally relied on wildlife for
subsistence, that tribal members freely took fish and game in ancestral
territory, and that the Treaty of July 1, 1852, 10 Stat 979, between the
Tribe and the United States confirmed the Tribe's rights regarding hunt-
ing and fishing on the small portion of the aboriginal Mescalero domain that
was eventually set apart as the Tribe's reservation Brief for Petitioners
12 See Menominee Tribe v United States, 391 U S 404 (1968), Mon
tana v United States, 450 U S 544, 558-559 (1981) See also United
States v Winans, 198 U S 371, 381 (1905) (recognizing that hunting and
fishing "were not much less necessary to the existence of the Indians than
the atmosphere they breathed")
20 The Tribe's authority was also cor firmed more generally by the Indian
Reorganization Act of 1934, 25 U S C § 476, which reaffirms "all powers
vested in any Indian tribe or tribal council by existing law "
21 The provision of Pub L 280 granting States criminal jurisdiction over
Indian reservations under certain conditions provides that States are not
thereby authorized to
"deprive any Indian or any Indian tribe, band, or community of any right,
privilege, or immunity afforded under Federal treaty, agreement, or stat-
ute with respect to hunting, trapping, or fishing or the control, licensing or
regulation thereof" 18 U S C § 1162(b) (emphasis added) The same
language is contained in 25 U S C § 1321(b)
338 OCTOBER TERM, 1982
Opinion of the Court 462 U g
is afforded the protection of the federal criminal law by 18
U S C § 1165, which makes it a violation of federal law to
enter Indian land to hunt, trap, or fish without the consent of
the tribe See Montana v United States, 450 U S , at 562,
n 11 The 1981 Amendments to the Lacey Act, 16 U S C?
§3371 et seq (1976 ed , Supp V), further accord tribal hunt
ing and fishing regulations the force of federal law by making
it a federal offense "to import, export, transport, sell, re
eeive, acquire, or purchase any fish or wildlife taken
or possessed in violation of any Indian tribal law"
§3372(a)(l)22
B
Several considerations strongly support the Court of Ap
peals' conclusion that the Tribe's authority to regulate hunt
ing and fishing pre-empts state jurisdiction It is important
to emphasize that concurrent jurisdiction would effectively
nullify the Tribe's authority to control hunting and fishing on
the reservation Concurrent jurisdiction would empower
New Mexico wholly to supplant tribal regulations The State
would be able to dictate the terms on which nonmembers are
permitted to utilize the reservation's resources The Tribe
would thus exercise its authority over the reservation only at
the sufferance of the State The tribal authority to regulate
hunting and fishing by nonmembers, which has been repeat-
edly confirmed by federal treaties and laws and which we
explicitly recognized in Montana v United States, supra,
would have a rather hollow ring if tribal authority amounted
to no more than this
Furthermore, the exercise of concurrent state jurisdiction
in this case would completely "disturb and disarrange," War-
ren Trading Post Co v Arizona Tax Comm'n, supra, at
691, the comprehensive scheme of federal and tribal manage-
ment established pursuant to federal law As described
22 Sections 3375(a) and (b) authorize the Secretary to enter into agree
ments with Indian tribes to enforce the provisions of the law by, inter aha,
making arrests and serving process
NEW MEXICO v MESCALERO APACHE TRIBE 339
324 Opinion of the Court
supra, at 326, federal law requires the Secretary to review
each of the Tribe's hunting and fishing ordinances Those
ordinances are based on the recommendations made by a
federal range conservationist employed by the Bureau of
Indian Affairs Moreover, the Bureau of Sport Fisheries
and Wildlife stocks the reservation's waters based on its
own determinations concerning the availability of fish, bio-
logical requirements, and the fishing pressure created by
on-reservation fishing App 71a *
Concurrent state jurisdiction would supplant this regula-
tory scheme with an inconsistent dual system members
would be governed by tribal ordinances, while nonmembers
would be regulated by general state hunting and fishing laws
This could severely hinder the ability of the Tribe to conduct
a sound management program Tribal ordinances reflect the
specific needs of the reservation by establishing the optimal
level of hunting and fishing that should occur, not simply a
maximum level that should not be exceeded State laws in
contrast are based on considerations not necessarily relevant
to, and possibly hostile to, the needs of the reservation For
instance, the ordinance permitting a hunter to kill a buck and
a doe was designed to curb excessive growth of the deer
population on the reservation Id , at 153a— 154a Enforce-
ment of the state regulation permitting only buck to be killed
would frustrate that objective Similarly, by determining
the tribal hunting seasons, bag limits, and permit availabil-
ity, the Tribe regulates the duration and intensity of hunting
These determinations take into account numerous factors, in-
cluding the game capacity of the terrain, the range utilization
of the game animals, and the availability of tribal personnel
to monitor the hunts Permitting the State to enforce differ-
ent restrictions simply because they have been determined to
be appropriate for the State as a whole would impose on the
Tribe the possibly insurmountable task of ensuring that the
23 In addition, as noted earlier, supra, at 327-328, the Federal Govern
ment played a substantial role in the development of the Tribe's resources
340 OCTOBER TERM, 1982
Opinion of the Court 462 U S
patchwork application of state and tribal regulations re-
mains consistent with sound management of the reservation's
resources
Federal law commits to the Secretary and the Tribal Coun-
cil the responsibility to manage the reservation's resources
It is most unlikely that Congress would have authorized, and
the Secretary would have established, financed, and par-
ticipated in, tribal management if it were thought that New
Mexico was free to nullify the entire arrangement * Requir-
ing tribal ordinances to yield whenever state law is more
restrictive would seriously "undermine the Secretary's [and
the Tribe's] ability to make the wide range of determinations
committed to [their] authority " Bracker, 448 U S , at 149
See Fisher v District Court, 424 U S , at 390, United States
v Mazume, 419 U S 544 (1975) *
24 The Secretary assumed precisely the opposite is true — that state juris
diction is pre-empted — when he approved a tribal ordinance which pro-
vided that nonmembers hunting and fishing on the reservation need not
obtain state licenses That assumption is also embodied in an agreement
between the Tribe and the Department of the Interior's Bureau of Sport
Fisheries and Wildlife, see n 8, supra, which openly acknowledges that
tribal regulations need not agree with state laws The agreement pro-
vides that "[ijnsofar as possible said regulations shall be in agreement
with State regulations " App 71a (Emphasis added )
25 Congress' intent to pre-empt state regulation of hunting and fishing on
reservations is reinforced by Pub L 280 That law, which grants limited
criminal and civil jurisdiction over Indian reservations to States which
meet certain requirements, contains a provision which expressly excludes
authority over hunting and fishing See n 21, supra Pub L 280 evi
dences Congress' understanding that tribal regulation of hunting and
fishing should generally be insulated from state interference, since "Con
gress would not have jealously protected" tribal exemption from conflicting
state hunting and fishing laws "had it thought that the States had residual
power to impose such [laws] in any event " McClanahan v Arizona Tax
Comm'n, 411 IT S 164, 177 (1973) In McClanahan we concluded that
the Buck Act, 4 U S C § 105 et seq , which contains a provision exempt
ing Indians from a grant to the States of general authority to tax residents
of federal areas, likewise provided evidence of Congress' intent to exempt
Indians from state taxes Ibid
NEW MEXICO v MESCALERO APACHE TRIBE 341
324 Opinion of the Court
The assertion of concurrent jurisdiction by New Mexico not
only would threaten to disrupt the federal and tribal regula-
tory scheme, but also would threaten Congress' overriding
objective of encouraging tribal self-government and economic
development The Tribe has engaged in a concerted and
sustained undertaking to develop and manage the reserva-
tion's wildlife and land resources specifically for the benefit
of its members The project generates funds for essential
tribal services and provides employment for members who
reside on the reservation This case is thus far removed
from those situations, such as on-reservation sales outlets
which market to nonmembers goods not manufactured by the
tribe or its members, in which the tribal contribution to
an enterprise is de mimmis See Washington v Confed-
erated Tribes of Colville Indian Reservation, 447 U S , at
154-159 26 The tribal enterprise in this case clearly involves
"value generated on the reservation by activities involving
the Tnb[e] " Id , at 156-157 The disruptive effect that
would result from the assertion of concurrent jurisdiction
by New Mexico would plainly "'stan[d] as an obstacle to
the accomplishment of the full purposes and objectives of
Congress/" Ramah Navajo School Bd , 458 U S , at 845,
quoting Hines v Davidowitz, 312 U S , at 67
The State has failed to "identify any regulatory function or
service that would justify" the assertion of concurrent
regulatory authority Bracker, supra, at 148 The hunting
and fishing permitted by the Tribe occur entirely on the res-
26 In Washington v Confederated Tribes the Court held that the sales of
tribal smokeshops which sold cigarettes to nonmembers were subject to
the state sales and cigarette taxes 447 U S , at 154-159 The Court
rehed on the fact that the tribal smokeshops were not marketing "value
generated on the reservation," id , at 156-157, but instead were seeking
merely to market a "tax exemption to nonmembers who do not receive
significant tribal services " Id , at 157
342 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ervation The fish and wildlife resources are either native to
the reservation or were created by the joint efforts of the
Tribe and the Federal Government New Mexico does not
contribute in any significant respect to the maintenance of
these resources, and can point to no other "governmental
functions it provides/' Ramah Navajo School Bd , supra, at
843, in connection with hunting and fishing on the reserva-
tion by nonmembers that would justify the assertion of its
authority
The State also cannot point to any off-reservation effects
that warrant state intervention Some species of game never
leave tribal lands, and the State points to no specific inter-
est concerning those that occasionally do Unlike Puyallup
Tribe v Washington Game Dept , this is not a case in which a
treaty expressly subjects a tribe's hunting and fishing rights
to the common rights of nonmembers and in which a State's
interest in conseivmg a scarce, common supply justifies state
intervention 433 U S , at 174, 175-177 The State con-
cedes that the Tribe's management has "not had an adverse
impact on fish and wildlife outside the Reservation " App
to Brief in Opposition 35a 27
We recognize that New Mexico may be deprived of the sale
of state licenses to nonmembers who hunt and fish on the res-
ervation, as well as some federal matching funds calculated in
27 We reject the State's claim that the Tribe's ability to manage its wild
life resources suffers from a lack of enforcement powers and that therefore
concurrent jurisdiction is necessary to fill the void The Tribe clearly can
exclude or expel those who violate tribal ordinances Trespassers may be
referred for prosecution under 18 U S C § 1165 Furthermore, the
Lacey Act Amendments of 1981, 16 U S C § 3371 et seq (1976 ed , Supp
V), make it a federal offense to violate any tribal law, provide for civil
and criminal penalties and authorize forfeiture of fish or wildlife as well as
vehicles or equipment used m the violation, §§3373, 3374, and provide
that the Secretary can grant authority to tribal personnel to enforce these
provisions §§ 3375(a), (b)
NEW MEXICO v MESCALERO APACHE TRIBE 343
324 Opinion of the Court
part on the basis of the number of state licenses sold ^ How-
ever, any financial interest the State might have in this case
is simply insufficient to justify the assertion of concurrent
jurisdiction The loss of revenues to the State is likely to be
insubstantial given the small numbers of persons who pur-
chase tribal hunting licenses * Moreover, unlike Confeder-
ated Tribes, supra, and Moe v Sahsh & Kootenai Tribes, 425
U S 463 (1976), the activity involved here concerns value
generated on the reservation by the Tribe Finally, as al-
ready noted supra, at 342, the State has pointed to no serv-
ices it has performed in connection with hunting and fishing
by nonmembers which justify imposing a tax in the form
of a hunting and fishing license, Ramah Navajo School
Bd , supra, at 843, Central Machinery Co v Arizona Tax
Comm'n, 448 U S , at 174 (POWELL, J , dissenting), and its
general desire to obtain revenues is simply inadequate to
justify the assertion of concurrent jurisdiction in this case
See Bracker, 448 U S , at 150, Ramah Navajo School Bd ,
supra, at 845 30
IV
In this case the governing body of an Indian Tribe, work-
ing closely with the Federal Government and under the au-
thority of federal law, has exercised its lawful authority to
develop and manage the reservation's resources for the bene-
fit of its members The exercise of concurrent jurisdiction
28 The State receives federal matching funds through the Pittman-
Robertson Act, 16 U S C § 669 (hunting), and the Dmgell-Johnson Act,
16 U S C § 777 (fishing), which are allocated through a formula which
considers the number of licenses sold and the number of acres in the State
29 In recent years the Tribe sold 10 antelope licenses compared to 3,500
for the State, 50 elk licenses compared to 14,000 by the State, and 500 deer
licenses compared to 100,000 for the State
30 New Mexico concedes that it has expended no Dingell- Johnson funds
for projects within the reservation during the last six to eight years App
to Brief in Opposition 17a-18a It presented no evidence as to expendi-
tures of Pittman-Robertson funds within the reservation
344 OCTOBER TERM, 1982
Opinion of the Court 4^2 n o
by the State would effectively nullify the Tribe's unques-
tioned authority to regulate the use of its resources by mem-
bers and nonmembers, interfere with the comprehensive
tribal regulatory scheme, and threaten Congress7 firm com-
mitment to the encouragement of tribal self-sufficiency and
economic development. Given the strong interests favoring
exclusive tribal jurisdiction and the absence of state interests
which justify the assertion of concurrent authority, we con-
clude that the application of the State's hunting and fishing
laws to the reservation is pre-empted.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
CROWN, CORK & SEAL CO v PARKER 345
Syllabus
CROWN, CORK & SEAL CO , INC v PARKER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No 82-118 Argued April 18, 1983 — Decided June 13, 1983
Respondent, a Negro male, after being discharged by petitioner employer
in 1977, filed a discrimination charge with the Equal Employment Oppor-
tunity Commission (EEOC), which, on November 9, 1978, upon finding
no reasonable cause to believe the charge was true, sent respondent
a Notice of Right to Sue pursuant to § 706(f ) of Title VII of the Civil
Rights Act of 1964 Previously, while respondent's charge was still
pending before the EEOC, two other Negro males formerly employed by
petitioner had filed a class action against petitioner m Federal District
Court, alleging employment discrimination and purporting to represent
a class of which respondent was a member Subsequently, on Septem-
ber 4, 1980, the District Court denied the named plaintiffs' motion for
class certification, and the action then proceeded as an individual action
Within 90 days thereafter but almost two years after receiving his No-
tice of Right to Sue, respondent filed an action under Title VII against
petitioner in Federal District Court, alleging that his discharge was
racially motivated The District Court granted summary judgment for
petitioner on the ground that respondent had failed to file his action
within 90 days of receiving his Notice of Right to Sue as required by
§ 706(f )(1) The Court of Appeals reversed
Held The filing of the class action tolled the statute of limitations for re-
spondent and other members of the putative class Since respondent
did not receive his Notice of Right to Sue until after the class action was
filed, he retained a full 90 days in which to bring suit after class certifica-
tion was denied, and hence his suit was timely filed Pp 349-354
(a) While American Pipe & Constr Co v Utah, 414 U S 538, con-
cerned only mtervenors in a class action, the holding of that case — that
the filing of a class action tolls the running of the applicable statute of
limitations for all asserted members of the class — is to be read as not
being limited to mtervenors but as extending to class members filing
separate actions Otherwise, class members would be led to file individ-
ual actions prior to denial of class certification, in order to preserve their
rights The result would be a needless multiplicity of actions — precisely
the situation that Federal Rule of Civil Procedure 23 and the tolling rule
of American Pipe were designed to avoid Pp 349-351
(b) Failure to apply American Pipe to class members filing separate
actions would also be inconsistent with this Court's reliance on American
346 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Pipe in Eisen v Carlisle & Jacquelin, 417 U S 156, where it was held
that Rule 23(c)(2) required individual notice to class members so that
each of them could decide whether to "opt out" of the class and thereby
preserve his right to pursue his own lawsuit A class member would be
unable to pursue his own lawsuit if the limitations period had expired
while the class action was pending Pp 351-352
(c) A tolling rule for class actions is not inconsistent with the purposes
served by statutes of limitations of putting defendants on notice of ad
verse claims and of preventing plaintiffs from sleeping on their rights
These ends are met when a class action is filed Class members who do
not file suit while the class action is pending cannot be accused of sleep-
ing on their rights And a class complaint notifies the defendants not
only of the claims against them but also of the number and generic identi
ties of the potential plaintiffs Pp 352-353
(d) Once the commencement of a class action suspends the applicable
statute of limitations as to all putative members of the class, it remains
suspended until class certification is denied Pp 353-354
677 F 2d 391, affirmed
BLACKMUN, J , delivered the opinion for a unanimous Court POWELL,
J , filed a concurring opinion, in which REHNQUIST and O'CONNOR, JJ ,
joined, post, p 354
George D Setter argued the cause for petitioner With
him on the brief was Richard J Magid
Norris C Ramsey argued the cause for respondent With
him on the brief were James L Foster, William L Robin-
son, Beatrice Rosenberg, and Norman J Chachkin *
JUSTICE BLACKMUN delivered the opinion of the Court
The question that confronts us in this case is whether the
filing of a class action tolls the applicable statute of limita-
tions, and thus permits all members of the putative class to
file individual actions in the event that class certification is
*Robert E Williams, Douglas S McDowell, and Thomas R Bagby
filed a brief for the Equal Employment Advisory Council as amicus curiae
urging reversal
Briefs of amici curiae urging affirmance were filed by Solicitor General
Lee, Deputy Solicitor General Wallace, David A Strauss, and Phillip
B Sklover for the Equal Employment Opportunity Commission, and by
James W Witherspoon and James E Elliott for Jack Williams et al
CROWN, CORK & SEAL CO v PARKER 347
345 Opinion of the Court
denied, provided, of course, that those actions are instituted
within the time that remains on the limitations period
I
Respondent Theodore Parker, a Negro male, was dis-
charged from his employment with petitioner Crown, Cork &
Seal Company, Inc , in July 1977 In October of that year,
he filed a charge with the Equal Employment Opportunity
Commission (EEOC) alleging that he had been harassed
and then discharged on account of his race On November
9, 1978, the EEOC issued a Determination Letter finding
no reasonable cause to believe respondent's discrimination
charge was true, and, pursuant to §706(f ) of the Civil Rights
Act of 1964 (Act), 78 Stat 260, as amended, 42 U S C
§ 2000e-5(f ), sent respondent a Notice of Right to Sue App
5A, 7A
Two months earlier, while respondent's charge was pend-
ing before the EEOC, two other Negro males formerly em-
ployed by petitioner filed a class action in the United States
District Court for the District of Maryland Pendleton v
Crown, Cork & Seal Co , Civ No M-78-1734 The com-
plaint in that action alleged that petitioner had discriminated
against its Negro employees with respect to hiring, dis-
charges, job assignments, promotions, disciplinary actions,
and other terms and conditions of employment, in violation of
Title VII of the Act, 78 Stat 253, as amended, 42 U S C
§ 2000e et seq The named plaintiffs purported to represent
a class of "black persons who have been, continue to be and
who in the future will be denied equal employment opportuni-
ties by defendant on the grounds of race or color " App to
Brief for Petitioner 2a It is undisputed that respondent
was a member of the asserted class
In May 1979, the named plaintiffs in Pendleton moved for
class certification Nearly a year and a half later, on Sep-
tember 4, 1980, the District Court denied that motion App
to Brief for Petitioner 7a The court ruled that the named
plaintiffs' claims were not typical of those of the class, that
348 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the named plaintiffs would not be adequate representatives,
and that the class was not so numerous as to make joinder
impracticable Thereafter, Pendleton proceeded as an indi-
vidual action on behalf of its named plaintiffs 1
On October 27, 1980, within 90 days after the denial of class
certification but almost two years after receiving his Notice
of Right to Sue, respondent filed the present Title VII ac-
tion in the United States District Court for the District of
Maryland, alleging that his discharge was racially motivated
Respondent moved to consolidate his action with the pend-
ing Pendleton case, but petitioner opposed the motion on the
ground that the two cases were at substantially different
stages of preparation The motion to consolidate was denied
The District Court then granted summary judgment for
petitioner, ruling that respondent had failed to file his action
within 90 days of receiving his Notice of Right to Sue, as
required by the Act's §706(f )(1), 42 U S C §2000e^5(f)(l)
514 F Supp 122(1981)
The United States Court of Appeals for the Fourth Circuit
reversed 677 F 2d 391 (1982) Relying on American Pipe
& Constr Co v Utah, 414 U S 538 (1974), the Court of
Appeals held that the filing of the Pendleton class action had
tolled Title VIFs statute of limitations for all members of the
putative class Because the Pendleton suit was instituted
before respondent received his Notice, and because respond-
ent had filed his action within 90 days after the denial of class
certification, the Court of Appeals concluded that it was
timely
Two other Courts of Appeals have held that the tolling rule
of American Pipe applies only to putative class members who
seek to intervene after denial of class certification, and not
lfThe named plaintiffs in Pendleton later settled their claims, and their
action was dismissed with prejudice Respondent Parker, as permitted by
United Airlines, Inc v McDonald, 432 U S 385, 392-395 (1977), then
intervened in that lawsuit for the limited purpose of appealing the denial
of class certification He failed, however, to take a timely appeal
CROWN, CORK & SEAL CO v PARKER 349
345 Opinion of the Court
to those who, like respondent, file individual actions 2 We
granted certiorari to resolve the conflict 459 U S 986
(1982)
II
A
American Pipe was a federal antitrust suit brought by the
State of Utah on behalf of itself and a class of other public
bodies and agencies The suit was filed with only 11 days
left to run on the applicable statute of limitations The Dis-
trict Court eventually ruled that the suit could not proceed as
a class action, and eight days after this ruling a number of
putative class members moved to intervene This Court ruled
that the motions to intervene were not time-barred The
Court reasoned that unless the filing of a class action tolled
the statute of limitations, potential class members would be
induced to file motions to intervene or to join in order to
protect themselves against the possibility that certification
would be denied 414 U S , at 553 The principal purposes
of the class-action procedure — promotion of efficiency and
economy of litigation — would thereby be frustrated Ibid
To protect the policies behind the class-action procedure, the
Court held that "the commencement of a class action sus-
pends the applicable statute of limitations as to all asserted
members of the class who would have been parties had the suit
been permitted to continue as a class action " Id , at 554
Petitioner asserts that the rule of American Pipe was lim-
ited to intervenors, and does not toll the statute of limitations
for class members who file actions of their own 3 Petitioner
2 See Pavlak v Church, 681 F 2d 617 (CA9 1982), cert pending,
No 82-650, Stull v Bayard, 561 F 2d 429, 433 (CA2 1977), cert denied,
434 U S 1035 (1978), Arneil v Ramsey, 550 F 2d 774, 783 (CA2 1977)
3 Petitioner also argues that American Pipe does not apply m Title
VII actions, because the time limit contained in § 706(f )(1), 42 U S C
§2000e-5(f)(l), is jurisdictional and may not be tolled This argument is
foreclosed by the Court's decisions in Zipes v Trans World Airlines, Inc ,
455 U S 385, 398 (1982), and Mohasco Corp v Silver, 447 U S 807, 811,
and n 9 (1980)
350 OCTOBER TERM, 1982
Opinion of the Court 462 U S
relies on the Court's statement in American Pipe that "the
commencement of the original class suit tolls the running of
the statute for all purported members of the class who make
timely motions to intervene after the court has found the suit
inappropriate for class action status " Id , at 553 (emphasis
added) While American Pipe concerned only mtervenors,
we conclude that the holding of that case is not to be read so
narrowly The filing of a class action tolls the statute of limi-
tations "as to all asserted members of the class," id , at 554,
not just as to mtervenors
The American Pipe Court recognized that unless the stat
ute of limitations was tolled by the filing of the class action,
class members would not be able to rely on the existence of
the suit to protect their rights Only by intervening or tak-
ing other action prior to the running of the statute of limita-
tions would they be able to ensure that their rights would not
be lost in the event that class certification was denied Much
the same inefficiencies would ensue if American Pipe's tolling
rule were limited to permitting putative class members to
intervene after the denial of class certification There are
many reasons why a class member, after the denial of class
certification, might prefer to bring an individual suit rather
than intervene The forum in which the class action is pend-
ing might be an inconvenient one, for example, or the class
member might not wish to share control over the litigation
with other plaintiffs once the economies of a class action were
no longer available Moreover, permission to intervene
might be refused for reasons wholly unrelated to the merits
of the claim 4 A putative class member who fears that class
4 Putative class members frequently are not entitled to intervene as of
right under Federal Rule of Civil Procedure 24(a), and permissive inter
vention under Federal Rule of Civil Procedure 24(b) may be denied in the
discretion of the District Court American Pipe, 414 U S , at 559-560,
id , at 562 (concurring opinion), see Railroad Trainmen v Baltimore &
Ohio R Co , 331 U S 519, 524-525 (1947) In exercising its discretion
the district court considers "whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties," Fed Rule
CROWN, CORK & SEAL CO v PARKER 351
345 Opinion of the Court
certification may be denied would have every incentive to file
a separate action prior to the expiration of his own period of
limitations The result would be a needless multiplicity of
actions — precisely the situation that Federal Rule of Civil
Procedure 23 and the tolling rule of American Pipe were
designed to avoid
B
Failure to apply American Pipe to class members filing
separate actions also would be inconsistent with the Court's
reliance on American Pipe in Eisen v Carlisle & Jacquelin,
417 U S 156 (1974) In Eisen, the Court held that Rule
23(c)(2) required individual notice to absent class members,
so that each class member could decide whether to "opt out"
of the class and thereby preserve his right to pursue his own
lawsuit 417 U S , at 176 The named plaintiff in Eisen ar-
gued that such notice would be fruitless because the statute
of limitations had long since run on the claims of absent class
members This argument, said the Court, was "disposed of
by our recent decision m American Pipe which estab-
lished that commencement of a class action tolls the appli-
cable statute of limitations as to all members of the class "
Id , at 176, n 13
If American Pipe's tolling rule applies only to intervenors,
this reference to American Pipe is misplaced and makes no
sense Eisen's notice requirement was intended to inform
the class member that he could "preserve his opportunity to
press his claim separately" by opting out of the class 417
U S , at 176 (emphasis added) But a class member would
be unable to "press his claim separately" if the limitations
period had expired while the class action was pending The
Eisen Court recognized this difficulty, but concluded that the
right to opt out and press a separate claim remained mean-
Civ Proc 24(b), and a court could conclude that undue delay or prejudice
would result if many class members were brought in as plaintiffs upon the
denial of class certification Thus, permissive intervention well may be an
uncertain prospect for members of a proposed class
352 OCTOBER TERM, 1982
Opinion of the Court 462 U S
mgful because the filing of the class action tolled the statute
of limitations under the rule of American Pipe 417 U S ,
at 176, n 13 If American Pipe were limited to intervenors'
it would not serve the purpose assigned to it by Eisen, no
class member would opt out simply to intervene Thus, the
Eisen Court necessarily read American Pipe as we read it
today, to apply to class members who choose to file separate
suits 5
C
The Court noted in American Pipe that a tolling rule for
class actions is not inconsistent with the purposes served by
statutes of limitations 414 U S , at 554 Limitations pe-
riods are intended to put defendants on notice of adverse
claims and to prevent plaintiffs from sleeping on their rights,
see Delaware State College v Ricks, 449 U S 250, 256-
257 (1980), American Pipe, 414 U S , at 561 (concurring
opinion), Burnett v New York Central R Co , 380 U S 424,
428 (1965), but these ends are met when a class action is
commenced Class members who do not file suit while the
class action is pending cannot be accused of sleeping on their
rights, Rule 23 both permits and encourages class members
6 Several Members of the Court have indicated that American Pipe's toll
ing rule can apply to class members who file individual suits, as well as to
those who seek to intervene See Johnson v Railway Express Agency,
Inc , 421 U S 454, 474-475 (1975) (MARSHALL, J , joined by Douglas and
BRENNAN, JJ , concurring in part and dissenting m part) ("In American
Pipe we held that initiation of a timely class action tolled the running of the
limitation period as to individual members of the class, enabling them to
institute separate actions after the District Court found class action an
inappropriate mechanism for the litigation"), United Airlines, Inc v
McDonald, 432 U S , at 402 (POWELL, J , joined by BURGER, C J , and
WHITE, J , dissenting) ("Under American Pipe, the filing of a class action
complaint tolls the statute of limitations until the District Court makes a
decision regarding class status If class status is denied, the statute of
limitations begins to run again as to class members excluded from the class
In order to protect their rights, such individuals must seek to intervene in
the individual action (or possibly file an action of their own) before the time
remaining in the limitations period expires")
CROWN, CORK & SEAL CO v PARKER 353
345 Opinion of the Court
to rely on the named plaintiffs to press their claims And a
class complaint "notifies the defendants not only of the sub-
stantive claims being brought against them, but also of the
number and generic identities of the potential plaintiffs who
may participate in the judgment " American Pipe, 414
U S , at 555, see United Airlines, Inc v McDonald, 432
U S 385, 395 (1977) The defendant will be aware of the
need to preserve evidence and witnesses respecting the
claims of all the members of the class Tolling the statute
of limitations thus creates no potential for unfair surprise,
regardless of the method class members choose to enforce
their rights upon denial of class certification
Restricting the rule of American Pipe to mtervenors might
reduce the number of individual lawsuits filed against a par-
ticular defendant but, as discussed above, this decrease in
litigation would be counterbalanced by an increase in protec-
tive filings in all class actions Moreover, although a defend-
ant may prefer not to defend against multiple actions in mul-
tiple forums once a class has been decertified, this is not an
interest that statutes of limitations are designed to protect
Cf Goldlawr, Inc v Heiman, 369 U S 463, 467 (1962)
Other avenues exist by which the burdens of multiple law-
suits may be avoided, the defendant may seek consolidation
m appropriate cases, see Fed Rule Civ Proc 42(a), 28
U S C § 1404 (change of venue), and multidistrict proceed-
ings may be available if suits have been brought in different
jurisdictions, see 28 U S C § 1407 6
III
We conclude, as did the Court in American Pipe, that "the
commencement of a class action suspends the applicable stat-
ute of limitations as to all asserted members of the class who
would have been parties had the suit been permitted to con-
6 Petitioner's complaints about the burden of defending multiple suits
ring particularly hollow in this case, since petitioner opposed respondent's
efforts to consolidate his action with Pendleton
354 OCTOBER TERM, 1982
POWELL, J , concurring 462 U g
tmue as a class action " 414 U S , at 554 Once the statute
of limitations has been tolled, it remains tolled for all mem
bers of the putative class until class certification is denied
At that point, class members may choose to file their own
suits or to intervene as plaintiffs in the pending action
In this case, respondent clearly would have been a party in
Pendleton if that suit had been permitted to continue as a
class action The filing of the Pendleton action thus tolled
the statute of limitations for respondent and other members
of the Pendleton class Since respondent did not receive his
Notice of Right to Sue until after the Pendleton action was
filed, he retained a full 90 days in which to bring suit after
class certification was denied Respondent's suit was thus
timely filed
The judgment of the Court of Appeals is
Affirmed
JUSTICE POWELL, with whom JUSTICE REHNQUIST and
JUSTICE O'CONNOR join, concurring
I join the Court's opinion It seems important to reiter-
ate the view expressed by JUSTICE BLACKMUN in American
Pipe & Constr Co v Utah, 414 U S 538 (1974) He wrote
that our decision "must not be regarded as encouragement to
lawyers in a case of this kind to frame their pleadings as a
class action, intentionally, to attract and save members of the
purported class who have slept on their rights " Id , at 561
(concurring opinion) The tolling rule of American Pipe is a
generous one, inviting abuse It preserves for class mem-
bers a range of options pending a decision on class certifica-
tion The rule should not be read, however, as leaving a
plaintiff free to raise different or peripheral claims following
denial of class status
In American Pipe we noted that a class suit "notifies the
defendants not only of the substantive claims being brought
against them, but also of the number and generic identities
of the potential plaintiffs who participate in the judgment
CROWN, CORK & SEAL CO. v. PARKER 355
345 POWELL, J., concurring
Within the period set by the statute of limitations, the de-
fendants have the essential information necessary to deter-
mine both the subject matter and size of the prospective liti-
gation." Id., at 555. When thus notified, the defendant
normally is not prejudiced by tolling of the statute of limita-
tions. It is important to make certain, however, that Amer-
ican Pipe is not abused by the assertion of claims that differ
from those raised in the original class suit. As JUSTICE
BLACKMUN noted, a district court should deny intervention
under Rule 24(b) to "preserve a defendant whole against
prejudice arising from claims for which he has received no
prior notice." /d., at 562 (concurring opinion). Similarly,
when a plaintiff invokes American Pipe in support of a sepa-
rate lawsuit, the district court should take care to ensure that
the suit raises claims that "concern the same evidence, mem-
ories, and witnesses as the subject matter of the original
class suit," so that "the defendant will not be prejudiced."
Ibid. Claims as to which the defendant was not fairly placed
on notice by the class suit are not protected under American
Pipe and are barred by the statute of limitations.
In this case, it is undisputed that the Pendleton class suit
notified petitioner of respondent's claims. The statute of
limitations therefore was tolled under American Pipe as to
those claims.
356 OCTOBER TERM, 1982
Syllabus 462 u s
BELL v UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No 82-5119 Argued April 25, 1983— Decided June 13, 1983
A provision of the Bank Robbery Act, 18 U S C § 2113(b), imposes criim
nal sanctions on "[w]hoever takes and carries away, with intent to steal
or purloin, any property or money or any other thing of value exceeding
$100 belonging to, or in the care, custody, control, management, or pos
session of any bank, credit union, or any savings and loan association "
Petitioner opened an account at a savings and loan institution using his
own name, but giving a false address, birth date, and social security
number Later that day, at another branch, he deposited into his ac
count a third party's $10,000 check on which the endorsement had been
altered to show petitioner's account number Subsequently petitioner
closed his account and was paid the total balance in cash He was
convicted of violating § 2113(b) after trial in Federal District Court
The Court of Appeals ultimately affirmed, concluding that the statute
embraces all felonious takings — including obtaining money under false
pretenses
Held Section 2113(b) is not limited to common-law larceny, but also
proscribes petitioner's crime of obtaining money under false pretenses
Pp 358-362
(a) The statutory language does not suggest that it covers only com
mon-law larceny The language "takes and carries away" is traditional
common-law language, but represents only one element of common law
larceny It is entirely consistent with false pretenses, although not a
necessary element of that crime Moreover, other language of § 2113(b)
shows an intention to go beyond common-law larceny Section 2113(b)
does not apply to a case of false pretenses in which there is not a tak
ing and carrying away, but it proscribes petitioner's conduct here
Pp 360-361
(b) The legislative history of §2113(b) also suggests that Congress
intended the statute to reach petitioner's conduct The congressional
purpose was to protect banks from those who wished to steal banks'
assets — even if they used no force in doing so Pp 361-362
678 F 2d 547, affirmed
POWELL, J , delivered the opinion of the Court, in which BURGER, C J ,
and BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and O'CoN
NOR, JJ , joined STEVENS, J , filed a dissenting opinion, post, p 362
BELL v UNITED STATES 357
356 Opinion of the Court
Roy W Allman, by appointment of the Court, 459 U S
1100, argued the cause and filed a brief for petitioner
Associate Attorney General Giuham argued the cause for
the United States On the brief were Solicitor General Lee,
Assistant Attorney General Jensen, Elliott Schulder, and
Sara Cnscitelli
JUSTICE POWELL delivered the opinion of the Court
The issue presented is whether 18 U S C §2113(b), a
provision of the Federal Bank Robbery Act, proscribes the
crime of obtaining money under false pretenses
I
On October 13, 1978, a Cincinnati man wrote a check for
$10,000 drawn on a Cincinnati bank He endorsed the check
for deposit to his account at Dade Federal Savings & Loan of
Miami and mailed the check to an agent there The agent
never received the check On October 17, petitioner Nelson
Bell opened an account at a Dade Federal branch and depos-
ited $50 — the minimum amount necessary for new accounts
He used his own name, but gave a false address, birth date,
and social security number Later that day, at another
branch, he deposited the Cincinnati man's $10,000 check into
this new account The endorsement had been altered to
show Bell's account number Dade Federal accepted the de-
posit, but put a 20-day hold on the funds On November 7,
as soon as the hold had expired, Bell returned to the branch
at which he had opened the account The total balance, with
accrued interest, was then slightly over $10,080 Bell closed
the account and was paid the total balance in cash
Bell was apprehended and charged with violating 18 U S C
§2113(b) The statute provides, in relevant part
'"Whoever takes and carries away, with intent to steal
or purloin, any property or money or any other thing
of value exceeding $100 belonging to, or in the care,
custody, control, management, or possession of any bank,
358 OCTOBER TERM, 1982
Opinion of the Court 462 U S
credit union, or any savings and loan association, shall be
fined not more than $5,000 or imprisoned not more than
ten years, or both "
Bell was convicted after a jury trial in the United States Dis
trict Court for the Southern District of Florida
On appeal, a divided panel of the United States Court of
Appeals for the Fifth Circuit reversed the conviction on the
ground that there was insufficient evidence of specific intent
649 F 2d 281 (1981) The en bane court granted the Gov-
ernment's petition for rehearing, however, and affirmed the
conviction 678 F 2d 547 (1982) (Unit B) In so doing, it
concluded that the statute embraces all felonious takings-
including obtaining money under false pretenses The
court thus rejected Bell's argument that §2113(b) is limited
to common-law larceny Id , at 548-549 Because this con-
clusion is inconsistent with that reached in United States v
Ferom, 655 F 2d 707, 708-711 (CA6 1981), and LeMasters v
United States, 378 F 2d 262, 267-268 (CA9 1967), we
granted certiorari to resolve the conflict * 459 U S 1034
(1982) We now affirm
II
In the 13th century, larceny was limited to trespassory
taking a thief committed larceny only if he feloniously "took
and carried away" another's personal property from his pos-
session The goal was more to prevent breaches of the peace
than losses of property, and violence was more likely when
property was taken from the owner's actual possession
1 Most Courts of Appeals have taken a broad reading of § 2113(b) See,
e g , United States v Hinton, 703 F 2d 672, 675-677 (CA2 1983), cert
denied, post, p 1121, United States v Shoels, 685 F 2d 379, 381-383
(CA10 1982), cert pending, No 82-5550, United States v Simmons, 679
F 2d 1042, 1045-1049 (CAS 1982), cert pending sub nom Brown v
United States, No 82-5201, United States v Guiffre, 576 F 2d 126,
127-128 (CA7), cert denied, 439 U S 833 (1978), cf United States v
Johnson, 575 F 2d 678, 679-680 (CAS 1978) (dictum), but see United
States v Rogers, 289 F 2d 433, 437-438 (CA4 1961) (dictum)
BELL?; UNITED STATES 359
355 Opinion of the Court
As the common law developed, protection of property also
became an important goal The definition of larceny accord-
ingly was expanded by judicial interpretation to include cases
where the owner merely was deemed to be in possession
Thus when a bailee of packaged goods broke open the pack-
ages and misappropriated the contents, he committed lar-
ceny The Carrier's Case, Y B Pasch 13 Edw IV, f 9,
pi 5 (Star Ch and Exch Ch 1473), reprinted in 64 Selden
Society 30 (1945) The bailor was deemed to be in possession
of the contents of the packages, at least by the time of the
misappropriation Similarly, a thief committed "larceny by
trick" when he obtained custody of a horse by telling the
owner that he intended to use it for one purpose when he in
fact intended to sell it and to keep the proceeds King v
Pear, 1 Leach 212, 168 Eng Rep 208 (Cr Gas Res 1779)
The judges accepted the fiction that the owner retained pos-
session of the horse until it was sold, on the theory that the
thief had custody only for a limited purpose Id , at 213-214,
168 Eng Rep , at 209
By the late 18th century, courts were less willing to expand
common-law definitions Thus when a bank clerk retained
money given to him by a customer rather than depositing
it in the bank, he was not guilty of larceny, for the bank
had not been in possession of the money King v Bazeley, 2
Leach 835, 168 Eng Rep 517 (Cr Gas Res 1799) Statu-
tory crimes such as embezzlement and obtaining property by
false pretenses therefore were created to fill this gap 2
The theoretical distinction between false pretenses and lar-
ceny by trick may be stated simply If a thief, through his
trickery, acquired title to the property from the owner, he
has obtained property by false pretenses, but if he merely ac-
quired possession from the owner, he has committed larceny
2 The historical development of common-law larceny and related crimes is
discussed in detail in several treatises See, e g , W LaFave & A Scott,
Handbook on Criminal Law 618-622 (1972), J Hall, Theft, Law and Society
3-58 (2d ed 1952)
360 OCTOBER TERM, 1982
Opinion of the Court 462 U g
by trick See LaFave & Scott, supra n 2, at 660-662 In
this case the parties agree that Bell is guilty of obtaining
money by false pretenses When the teller at Dade Federal
handed him $10,080 m cash, Bell acquired title to the money
The only dispute is whether 18 U S C § 21 13(b) proscribes
the crime of false pretenses, or whether the statute is instead
limited to common-law larceny
III
A
Bell's argument in favor of the narrower reading of
§2113(b) relies principally on the statute's use of the tradi-
tional common-law language "takes and carries away " He
cites the rule of statutory construction that when a federal
criminal statute uses a common-law term without defining it,
Congress is presumed to intend the common-law meaning
See United States v Turley, 352 U S 407, 411 (1957) In
§2113(b), however, Congress has not adopted the elements
of larceny in common-law terms The language "takes and
carries away" is but one part of the statute and represents
only one element of common-law larceny Other language in
§2113(b), such as "with intent to steal or purloin," has no
established meaning at common law See Turley, supra, at
411-412 Moreover, "taking and carrying away," although
not a necessary element of the crime, is entirely consistent
with false pretenses
Two other aspects of §2113(b) show an intention to go be-
yond the common-law definition of larceny First, common-
law larceny was limited to thefts of tangible personal prop-
erty This limitation excluded, for example, the theft of a
written instrument embodying a chose in action LaFave &
Scott, supra n 2, at 633 Section 2113(b) is thus broader
,han common-law larceny, for it covers "any property or
noney or any other thing of value exceeding $100 " Second,
and of particular relevance to the distinction at issue here,
'ommon-law larceny required a theft from the possession of
BELL v UNITED STATES 361
355 Opinion of the Court
the owner When the definition was expanded, it still ap-
phed only when the owner was deemed to be in possession
Section 2113(b), however, goes well beyond even this ex-
panded definition It applies when the property "belong[s]
to," or is "in the care, custody, control, management, or
possession of," a covered institution
In sum, the statutory language does not suggest that it
covers only common-law larceny Although §2113(b) does
not apply to a case of false pretenses in which there is not a
taking and carrying away, it proscribes Bell's conduct here
The evidence is clear that he "t[ook] and came[d] away, with
intent to steal or purloin, [over $10,000 that was] in the care,
custody, control, management, or possession of" Dade Fed-
eral Savings & Loan
B
The legislative history of §2113(b) also suggests that Con-
gress intended the statute to reach Bell's conduct As origi-
nally enacted in 1934, the Federal Bank Robbery Act, ch 304,
48 Stat 783, governed only robbery — a crime requiring a
forcible taking Congress apparently was concerned with
"'gangsters who operate habitually from one State to another
in robbing banks '"3 S Rep No 537, 73d Cong , 2d Sess ,
1 (1934) (quoting Justice Department memorandum), see
78 Cong Rec 2946-2947 (1934), H R Rep No 1461, 73d
Cong , 2d Sess , 2 (1934)
By 1937 the concern was broader, for the limited nature of
the original Act " *ha[d] led to some incongruous results ' "
H R Rep No 732, 75th Cong , 1st Sess , 1 (1937) (quoting
Attorney General's letter to the Speaker) It was possible
for a thief to steal a large amount from a bank " 'without dis-
playing any force or violence and without putting any one in
fear,'" id , at 2, and he would not violate any federal law
3 The narrow concern of the 1934 Congress is illustrated in its rejection of
a broad bill that would have gone well beyond bank robbery The rejected
bill, for example, explicitly would have covered taking property by false
pretenses S 2841, 73d Cong , 2d Sess , §2 (1934)
362 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 U S
Congress amended the Act to fill this gap, adding language
now found at §§ 2113(a) and (b) Act of Aug 24, 1937, eh 747,
50 Stat 749 Although the term "larceny" appears in the
legislative Reports, the congressional purpose plainly was
to protect banks from those who wished to steal banks*
assets — even if they used no force in doing so
The congressional goal of protecting bank assets is entirely
independent of the traditional distinction on which Bell relies
To the extent that a bank needs protection against larceny by
trick, it also needs protection from false pretenses We can
not believe that Congress wished to limit the scope of the
amended Act's coverage, and thus limit its remedial purpose,
on the basis of an arcane and artificial distinction more suited
to the social conditions of 18th-century England than the needs
of 20th-century America Such an interpretation would
signal a return to the "incongruous results" that the 1937
amendment was designed to eliminate
IV
We conclude that 18 U S C §2113(b) is not limited to
common-law larceny 4 Although § 2113(b) may not cover the
full range of theft offenses, it covers Bell's conduct here
His conviction therefore was proper, and the judgment of the
Court of Appeals accordingly is
Affirmed
JUSTICE STEVENS, dissenting
Although federal criminal statutes that are intended to fill
a void m local law enforcement should be construed broadly,
see, e g , Umted States v Staszcuk, 517 F 2d 53, 57-58
(CA7 1975) (en bane), I take a different approach to federal
4 There are dicta in Jerome v Umted States, 318 U S 101 (1943), that
suggest a narrow reading of § 2113(b), but our conclusion today is consist-
ent with the Jerome holding The only issue then before the Court was
whether the Act's burglary provision, now codified in § 2113(a), proscribed
entering a bank to commit a state-law felony
BELL v UNITED STATES 363
356 STEVENS, J , dissenting
laws that merely subject the citizen to the risk of prosecution
by two different sovereigns See, e g , United States v
Altobella, 442 F 2d 310, 316 (CAT 1971) When there is no
perceivable obstacle to effective state enforcement, I believe
federal criminal legislation should be narrowly construed
unless it is clear that Congress intended the coverage in
dispute McElroyv United States, 455 U S 642,675(1982)
(STEVENS, J , dissenting), see Jerome v United States, 318
U S 101, 104-105 (1943)
The history of the bank robbery and bank larceny legisla-
tion enacted in 1934 and 1937 persuades me that Congress did
not intend federal law to encompass the conduct of obtaining
funds from a bank with its consent, albeit under false pre-
tenses The 1934 Act was a response to the spate of armed
bank robberies committed by John Dilhnger and other travel-
ing gunmen who outwitted and outmaneuvered a series of
local police forces as they moved from State to State in the
early 1930's 1 Congress responded to local requests for fed-
eral assistance by enacting a statute that prohibited robbery
of federal banks, but rejected the section initially passed by
the Senate that made larceny by false pretenses a federal
irThe Department of Justice explained the need for new legislation
largely by reference to the problem of armed robberies, though it recom-
mended a bill broad enough to cover larceny by false pretenses as well
Its memorandum, quoted in the House Report, explains
"This bill is directed at one of the most serious forms of crime committed
by organized gangsters who operate habitually from one State to another —
the robbery of banks From all sections of this country Federal relief has
been requested It is asserted that these criminals are sufficiently power-
ful and well equipped to defy local police, and to flee beyond the borders of
the State before adequate forces can be organized to resist and capture
these bandits " H R Rep No 1461, 73d Cong , 2d Sess , 2 (1934), see
S Rep No 537, 73d Cong , 2d Sess , 1 (1934)
Indeed, the 1934 floor debates in the House included a clear reference to
one of Dillinger's well-known escapades Representative Blanton noted
that a man might go into a bank with intent to rob, and "he might use one
of these new kind of Indiana six shooters carved out of a piece of wood with
a pocket knife " 78 Cong Rec 8132 (1934)
364 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 u g
offense 2 It is clear that Congress did not intend the federal
law to overlap state jurisdiction to any greater extent than
was necessary to cope with the specific evil that had given
rise to the legislation 3
2 For the Department of Justice's memoranda to Congress, see H R
Rep No 1461, supra n 1, at 2, S Rep No 537, supra n 1, at 1 The
Senate bill provided, in part
"Whoever, not being entitled to the possession of property or money or
any other thing of value belonging to, or in the care, custody, control, man
agement, or possession of, any bank, takes and carries away, or attempts
to take and carry away, such property or money or any other thing of value
from any place (1) without the consent of such bank, or (2) with the consent
of such bank obtained by the offender by any trick, artifice, fraud, or false
or fraudulent representation, with intent to convert such property or
money or any other thing of value to his use or to the use of any individual,
association, partnership, or corporation, other than such bank, shall be
punished by a fine of not more than $5,000 or imprisonment for not more
than 10 years, or both " S 2841, §2, 73d Cong , 2d Sess , 78 Cong Rec
8132 (1934) (emphasis supplied)
The House Judiciary Committee recommended that § 2, making bank
larceny a federal crime, be stricken out The House accepted the Commit
tee amendment, and the Senate accepted the changes Id , at 8767, 8776
During floor discussion of the Committee Report, Representative Hatton
Sumners, longtime Chairman of the House Judiciary Committee, made
clear his reluctance to extend federal criminal jurisdiction He explained,
in opposing a proposed amendment extending the reach of the bill to other
governmental institutions "I may say to the gentleman that we are going
rather far in this bill, since all the property is owned, as a rule, by the citi
zens of the community where the bank is located The committee was
not willing to go further, and the Attorney General did not ask it to go
further " Id , at 8133 As a contemporary observer noted, Sumners
"sought throughout the session to confine extensions of federal power to
those situations where the need to supplement state and local law enforcing
agencies had become imperative " A Note on the Racketeering, Bank
Robbery, and "Kick-Back" Laws, 1 Law & Contemp Prob 445, 448-449
(1934)
3 The Department of Justice expressly stated in its memorandum
"There is no intention that the Federal Government shall supersede the
State authorities in this class of cases It will intervene only to cooperate
with local forces when it is evident that the latter cannot cope with the
criminals " H R Rep No 1461, supra n 1, at 2
BELL v UNITED STATES 365
355 STEVENS, J , dissenting
Three years later the bank robbery statute was amended
at the request of Attorney General Cummings The Attor-
ney General specifically described the anomaly created by the
statute's failure to cover larceny by stealth, theft of money
from a bank without violence but also clearly without the
bank's consent 4 The amendment — making burglary and
"larceny" of federal banks a federal crime — was adopted rou-
tinely, without significant comment or debate 5 It is fair to
infer that Congress viewed the amendment as a limited
change that was entirely consistent with the intent of the
1934 Act, including the intent of legislators who perceived a
danger in encouraging the unnecessary growth of a national
police force
This interpretation of the legislative history was accepted
by all of the Members of this Court in Jerome v United
States, 318 U S 101 (1943), a case decided only six years
after the passage of the bank larceny statute The defend-
ant in that case had been convicted in federal court for enter-
ing a national bank with intent to utter a forged promissory
note Although the Court was construing a different section
of the statute, its discussion of Congress' intent is equally
applicable to the section involved in this case 6 Justice
Douglas observed
4 "The fact that the statute is limited to robbery and does not include lar-
ceny and burglary has led to some incongruous results A striking in-
stance arose a short time ago, when a man was arrested in a national bank
while walking out of the building with $11,000 of the bank's funds on his
person He had managed to gain possession of the money during a mo
mentary absence of one of the employees, without displaying any force or
violence and without putting any one in fear — necessary elements of the
crime of robbery — and was about to leave the bank when apprehended
As a result, it was not practicable to prosecute him under any Federal stat-
ute " H R Rep No 732, 75th Cong , 1st Sess , 1-2 (1937)
sSee, e g ,81 Cong Rec 5376-5377 (1937)
€The provision construed by the Court made it a federal offense to enter
any bank with intent to commit "any felony or larceny " The Court ex-
pressly noted that the term "larceny" was defined in the statute itself— a
reference to the section at issue here 318 U S , at 105, 106
366 OCTOBER TERM, 1982
STEVENS, J , dissenting 452 u g
"It is difficult to conclude in the face of this history that
Congress, having rejected in 1934 an express provision
making state felonies federal offenses, reversed itself in
1937 It is likewise difficult to believe that Con
gress, through the same clause, adopted by indirection in
1937 much of the fraud provision which it rejected in
1934" W, at 105-106
Further, the Court noted, "there is not the slightest mdica
tion that the interstate activities of gangsters against national
and insured banks had broken down or rendered ineffective
enforcement of state laws covering all sorts of felonies "
Id , at 107 7
Given the strong evidence of Congress' specific, limited
intent, I would confine the bank larceny statute to takings
without the bank's consent Although I cannot deny that
the Court's construction of the statutory language is plausi-
ble, the language remains ambiguous I would not at this
late date repudiate Jerome's understanding of Congress'
intent I therefore respectfully dissent
7 As the Ninth Circuit wrote in LeMasters v United States, 378 F 2d
262, 268 (1967), quoted in full in United States v Feroni, 655 F 2d 707,
710-711 (CA6 1981)
"In the bank situation we see no reason, urgent or otherwise, why Con
gress in 1937 should have wanted to enter the field of obtaining by false
pretenses, duplicating state law which was adequate and effectively en-
forced, and the duplication of which would bring innumerable cases, most
of them small, within the jurisdiction of federal prosecutors and courts
Congress was as aware in 1937 as it was in 1934, when it rejected the un
ambiguous provision making obtaining by false pretense from a bank [a]
federal crime, that such an extension of federal law would serve no purpose
except to confuse and dilute state responsibility for local crimes which were
being adequately dealt with by state law "
BUSHv LUCAS 367
Syllabus
BUSH?; LUCAS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No 81-469 Argued January 19, 1983— Decided June 13, 1983
Petitioner, an aerospace engineer employed at the George C Marshall
Space Flight Center, a facility operated by the National Aeronautics and
Space Administration (NASA), made a number of public statements to
the news media highly critical of the Center Subsequently, respondent
Director of the Center demoted petitioner for making the public state-
ments on the ground that they were false and misleading The Federal
Employee Appeals Authority upheld the demotion, but the Civil Service
Commission's Appeals Review Board, upon reopening the proceeding
at petitioner's request, found that the demotion had violated his First
Amendment rights NASA accepted the Board's recommendation that
petitioner be restored to his former position retroactively and that he re-
ceive backpay While his administrative appeal from the demotion was
pending, petitioner filed an action against respondent in an Alabama
state court, seeking to recover damages for violation of his First Amend-
ment rights Respondent removed the action to Federal District Court,
which granted summary judgment for respondent The Court of Ap-
peals affirmed, holding that petitioner had no cause of action for damages
under the First Amendment for retaliatory demotion in view of the avail-
able remedies under the Civil Service Commission regulations
Held Because petitioner's claims arise out of an employment relationship
that is governed by comprehensive procedural and substantive provi-
sions giving meaningful remedies against the United States, it would be
inappropriate for this Court to supplement that regulatory scheme with
a new nonstatutory damages remedy Pp 374-390
(a) The federal courts' statutory jurisdiction to decide federal ques-
tions confers adequate power to award damages to the victim of a con-
stitutional violation even if Congress has not expressly authorized such a
remedy When Congress provides an alternative remedy, it may indi-
cate its intent that this power should not be exercised In the absence
of such a congressional directive, the federal courts must make the kind
of remedial determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors counselling hesi
tation before authorizing a new kind of federal litigation Pp 374-380
(b) The Government's comprehensive scheme protecting civil servants
against arbitrary action by supervisors provides meaningful remedies for
368 OCTOBER TERM, 1982
Opinion of the Court 462 U S
employees who may have been unfairly disciplined for making critical
comments about their agencies Given the history of the development
of civil service remedies and the comprehensive nature of the remedies
currently available, the question in this case is not what remedy the
court should provide for a wrong that would otherwise go unredressed,
but whether an elaborate remedial system that has been constructed
step by step, with careful attention to policy considerations, should be
augmented by the creation of a new judicial remedy for the constitutional
violation at issue This Court declines to create such a remedy because
Congress is in a better position to decide whether or not the public inter
est would be served by creating it Pp 380-390
647 F 2d 573, affirmed
STEVENS, J , delivered the opinion for a unanimous Court MARSHALL,
J , filed a concurring opinion, m which BLACKMUN, J , joined, post, p 390
William Harvey Elrod, Jr , argued the cause and filed
briefs for petitioner
Deputy Solicitor General Getter argued the cause for
respondent With him on the brief were Solicitor General
Lee, Assistant Attorney General McGrath, David A Strauss,
Barbara L Herwig, and Wendy M Keats *
JUSTICE STEVENS delivered the opinion of the Court
Petitioner asks us to authorize a new nonstatutory dam-
ages remedy for federal employees whose First Amendment
rights are violated by their superiors Because such claims
arise out of an employment relationship that is governed by
comprehensive procedural and substantive provisions giving
meaningful remedies against the United States, we conclude
that it would be inappropriate for us to supplement that regu-
latory scheme with a new judicial remedy
*Bnefs of amici cwnae urging reversal were filed by Charles B Wayne
and Mark H Lynch for the American Civil Liberties Union, by / Albert
Woll, Marsha Berzon, Laurence Gold, Edward J Hickey, Erick Genser,
James Rosa, and David Barr for the American Federation of Labor and
Congress of Industrial Organizations et al , by John F Bufe, Lois G
Williams, and Michael David Fox for the National Treasury Employees
Union, and by John C Keeney, Jr , Joseph M Hassett, and Peter Raven
Hansen for Representative Schroeder et al
BUSHv LUCAS 369
357 Opinion of the Court
Petitioner Bush is an aerospace engineer employed at the
George C Marshall Space Flight Center, a major facility
operated by the National Aeronautics and Space Administra-
tion in Alabama Respondent Lucas is the Director of the
Center In 1974 the facility was reorganized and petitioner
was twice reassigned to new positions He objected to both
reassignments and sought formal review by the Civil Service
Commission 1 In May and June 1975, while some of his
administrative appeals were pending, he made a number of
public statements, including two televised interviews, that
were highly critical of the agency The news media quoted
him as saying that he did not have enough meaningful work
to keep him busy, that his job was "a travesty and worth-
less/' and that the taxpayers' money was being spent fraudu-
lently and wastefully at the Center His statements were
reported on local television, in the local newspaper, and in a
national press release that appeared in newspapers in at least
three other States 2
In June 1975 respondent, in response to a reporter's in-
quiry, stated that he had conducted an investigation and
that petitioner's statements regarding his job had "no basis
in fact " App 15 In August 1975 an adverse personnel
action was initiated to remove petitioner from his position
Petitioner was charged with "publicly mak[mg] intemperate
remarks which were misleading and often false, evidencing
a malicious attitude towards Management and generating
an environment of sensationalism demeaning to the Govern-
ment, the National Aeronautics and Space Administration
and the personnel of the George C Marshall Space Flight
Center, thereby impeding Government efficiency and econ-
2The record indicates that petitioner filed two appeals from the first re-
assignment and three appeals from the second App to Pet for Cert e-3
to e-4 He asserts that he had previously made unsuccessful attempts
within the Center to obtain redress App 30
2 App to Pet for Cert d-2 to d-3 (memorandum opinion of District
Court), id , at e-19 (opinion of Federal Employee Appeals Authority)
370 OCTOBER TERM, 1982
Opinion of the Court 4$2 u g
omy and adversely affecting public confidence in the Govern
ment service " He was also informed that his conduct had
undermined morale at the Center and caused disharmony and
disaffection among his fellow employees 3 Petitioner had the
opportunity to file a written response and to make an oral
presentation to agency officials Respondent then deter
mined that petitioner's statements were false and misleading
and that his conduct would justify removal, but that the
lesser penalty of demotion was appropriate for a "first
offense " Ibid He approved a reduction in grade from
GS-14 to GS-12, which decreased petitioner's annual salary
by approximately $9,716
Petitioner exercised his right to appeal to the Federal Em
ployee Appeals Authority After a 3-day public hearing, the
Authority upheld some of the charges and concluded that
the demotion was justified It specifically determined that a
number of petitioner's public statements were misleading and
that, for three reasons, they "exceeded the bounds of expres
sion protected by the First Amendment " First, petitioner's
statements did not stem from public interest, but from his de
sire to have his position abolished so that he could take early
retirement and go to law school Second, the statements
conveyed the erroneous impression that the agency was de
hberately wasting public funds, thus discrediting the agency
and its employees Third, there was no legitimate public
interest to be served by abolishing petitioner's position 4
Two years after the Appeals Authority's decision, peti-
tioner requested the Civil Service Commission's Appeals Re
view Board to reopen the proceeding The Board reexam
ined petitioner's First Amendment claim and, after making a
detailed review of the record and the applicable authorities,
applied the balancing test articulated in Pickering v Board
*Id , at f-2 to f-3, e-19, e-7
4/d , at e-38 to e-39 Petitioner could have obtained judicial review of
the Authority's determination by filing suit in a federal district court or in
the United States Court of Claims, but did not do so
BUSHt? LUCAS 371
367 Opinion of the Court
of Education, 391 U S 563 (1968) On the one hand, it ac-
knowledged the evidence tending to show that petitioner's
motive might have been personal gam, and the evidence that
his statements caused some disruption of the agency's day-to-
day routine On the other hand, it noted that society as well
as the individual had an interest in free speech, including "a
right to disclosure of information about how tax dollars are
spent and about the functioning of government apparatus, an
interest in the promotion of the efficiency of the government,
and in the maintenance of an atmosphere of freedom of
expression by the scientists and engineers who are responsi-
ble for the planning and implementation of the nation's space
program " Because petitioner's statements, though some-
what exaggerated, "were not wholly without truth, they prop-
erly stimulated public debate " Thus the nature and extent
of proven disruption to the agency's operations did not "jus-
tify abrogation of the exercise of free speech " 5 The Board
recommended that petitioner be restored to his former posi-
tion, retroactively to November 30, 1975, and that he receive
backpay That recommendation was accepted Petitioner
received approximately $30,000 in backpay
While his administrative appeal was pending, petitioner
filed an action against respondent in state court in Alabama
seeking to recover damages for defamation and violation of
his constitutional rights Respondent removed the lawsuit
to the United States District Court for the Northern District
of Alabama, which granted respondent's motion for summary
judgment It held, first, that the defamation claim could not
be maintained because, under Barr v Matteo, 360 U S 564
(1959), respondent was absolutely immune from liability for
damages for defamation, and second, that petitioner's demo-
tion was not a constitutional deprivation for which a damages
action could be maintained 6 The United States Court of Ap-
peals for the Fifth Circuit affirmed 598 F 2d 958 (1979)
5 Id , atf-23tof-25
6 Id , at d-2 to d-17
372 OCTOBER TERM, 1982
Opinion of the Court 462 U S
We vacated that court's judgment, 446 U S 914 (1980), and
directed that it reconsider the case in the light of our inter
venmg decision in Carlson v Green, 446 U S 14 (1980)
The Court of Appeals again affirmed the judgment against
petitioner It adhered to its previous conclusion that "plain
tiff had no cause of action for damages under the First
Amendment for retaliatory demotion in view of the available
remedies under the Civil Service Commission regulations "
647 F 2d 573, 574 (1981) It explained that the relationship
between the Federal Government and its civil service em
ployees was a special factor counselling against the judicial
recognition of a damages remedy under the Constitution in
this context
We assume for purposes of decision that petitioner's First
Amendment rights were violated by the adverse personnel
action 7 We also assume that, as petitioner asserts, civil
service remedies were not as effective as an individual dam
ages remedy8 and did not fully compensate him for the harm
he suffered 9 Two farther propositions are undisputed
7 Competent decisionmakers may reasonably disagree about the merits of
petitioner's First Amendment claim Compare the opinion of the District
Court, App D to Pet for Cert , and the opinion of the Atlanta Field Office
of the Federal Employees Appeal Authority issued on August 12, 1976,
App E, both rejecting petitioner's claims, with the opinion of the Appeals
Review Board issued on July 14, 1978, App F, finding that the First
Amendment had been violated This question is not before us
8 See Carlson v Green, 446 U S 14, 20-23 (1980) (factors making Fed
eral Tort Claims Act recovery less "effective" than an action under the
Constitution to recover damages against the individual official) Pet
tioner contends that, unlike a damages remedy against respondent mdivid
ually, civil service remedies against the Government do not provide for
punitive damages or a jury trial and do not adequately deter the unconsti
tutional exercise of authority by supervisors Brief for Petitioner 27-29
'His attorney's fees were not paid by the Government, and he claims
to have suffered uncompensated emotional and dignitary harms Id , at
24-26 In light of our disposition of this case, we do not need to de
cide whether such costs could be recovered as compensation in an action
brought directly under the Constitution
BUSH v LUCAS 373
367 Opinion of the Court
Congress has not expressly authorized the damages remedy
that petitioner asks us to provide On the other hand, Con-
gress has not expressly precluded the creation of such a rem-
edy by declaring that existing statutes provide the exclusive
mode of redress
Thus, we assume, a federal right has been violated and
Congress has provided a less than complete remedy for the
wrong If we were writing on a clean slate, we might
answer the question whether to supplement the statutory
scheme in either of two quite simple ways We might adopt
the common-law approach to the judicial recognition of new
causes of action and hold that it is the province of the judi-
ciary to fashion an adequate remedy for every wrong that can
be proved in a case over which a court has jurisdiction 10 Or
we might start from the premise that federal courts are
courts of limited jurisdiction whose remedial powers do not
extend beyond the granting of relief expressly authorized by
Congress " Under the former approach, petitioner would
obviously prevail, under the latter, it would be equally clear
that he would lose
Our prior cases, although sometimes emphasizing one ap-
proach and sometimes the other, have unequivocally rejected
both extremes They establish our power to grant relief
that is not expressly authorized by statute, but they also
remind us that such power is to be exercised in the light of
relevant policy determinations made by the Congress We
wInMarbury v Madison, 1 Cranch 137, 163 (1803), Chief Justice Mar
shall invoked the authority of Blackstone's Commentaries m support of this
proposition Blackstone had written "[I]t is a general and indisputable
rule, that where there is a legal right, there is also a legal remedy by suit,
or action at law, whenever that right is invaded [I]t is a settled
and invariable principle in the laws of England, that every right, when
withheld, must have a remedy, and every injury its proper redress " 3
Commentaries *23, *109
"See Bivens v Six Unknown Fed Narcotics Agents, 403 U S 388, 428
(1971) (Black, J , dissenting)
374 OCTOBER TERM, 1982
Opinion of the Court 462 U g
therefore first review some of the cases establishing our
power to remedy violations of the Constitution and then
consider the bearing of the existing statutory scheme on the
precise issue presented by this case
The federal courts' power to grant relief not expressly
authorized by Congress is firmly established Under 28
U S C § 1331, the federal courts have jurisdiction to decide
all cases "ans[mg] under the Constitution, laws, or treaties
of the United States " This jurisdictional grant provides
not only the authority to decide whether a cause of action
is stated by a plaintiff's claim that he has been injured by
a violation of the Constitution, Bell v Hood, 327 U S 678,
684 (1946), but also the authority to choose among available
judicial remedies in order to vindicate constitutional rights
This Court has fashioned a wide variety of nonstatutory rem-
edies for violations of the Constitution by federal and state
officials 12 The cases most relevant to the problem before us
are those m which the Court has held that the Constitution
itself supports a private cause of action for damages against
a federal official Bivens v Six Unknown Fed Narcotics
Agents, 403 U S 388 (1971), Davis v Passman, 442 U S
228 (1979), Carlson v Green, supra
12 See, e g , United States v Lee, 106 U S 196 (1882) (ejectment action
against federal officers to enforce Takings Clause of Fifth Amendment),
Wiley v Smkler, 179 U S 58, 64-65 (1900) (damages against state officer
for denying plaintiff's right to vote in federal election), Ex parte Young,
209 U S 123 (1908) (injunctive relief against state official for violation
of Fourteenth Amendment), Weeks v United States, 232 U S 383, 398
(1914) (exclusion in federal criminal case of evidence seized in violation
of Fourth Amendment), Jacobs v United States, 290 U S 13, 16 (1933)
(award of interest as well as principal in just compensation claim founded
on the Fifth Amendment), Swann v Charlotte Mecklenburg Bd of Ed
ucation, 402 U S 1, 15-16 (1971) (school busing to remedy unconstitu
tional racial segregation) See generally Hill, Constitutional Remedies, 69
Colum L Rev 1109, 1124-1127 (1969)
BUSH v LUCAS 375
357 Opinion of the Court
In Bivens the plaintiff alleged that federal agents, without
a warrant or probable cause, had arrested him and searched
his home in a manner causing him great humiliation, embar-
rassment, and mental suffering He claimed damages on the
theory that the alleged violation of the Fourth Amendment
provided an independent basis for relief The Court upheld
the sufficiency of his complaint, rejecting the argument that a
state tort action in trespass provided the only appropriate
judicial remedy The Court explained why the absence of
a federal statutory basis for the cause of action was not an
obstacle to the award of damages
"That damages may be obtained for injuries conse-
quent upon a violation of the Fourth Amendment by fed-
eral officials should hardly seem a surprising proposition
Historically, damages have been regarded as the ordi-
nary remedy for an invasion of personal interests in lib-
erty See Nixon v Condon, 286 U S 73 (1932), Nixon
v Herndon, 273 U S 536, 540 (1927), Swafford v
Templeton, 185 U S 487 (1902), Wiley v Sinkler, 179
U S 58 (1900), J Landynski, Search and Seizure and
the Supreme Court 28 et seq (1966), N Lasson, History
and Development of the Fourth Amendment to the United
States Constitution 43 et seq (1937), Katz, The Jurispru-
dence of Remedies Constitutional Legality and the Law
of Torts in Bell v Hood, 117 U Pa L Rev 1, 8-33
(1968), cf West v Cabell, 153 U S 78 (1894), Lammon
v Feusier, 111 U S 17 (1884) Of course, the Fourth
Amendment does not in so many words provide for its
enforcement by an award of money damages for the con-
sequences of its violation But 'it is well settled that
where legal rights have been invaded, and a federal stat-
ute provides for a general right to sue for such invasion,
federal courts may use any available remedy to make
good the wrong done ' Bell v Hood, 327 U S , at 684
(footnote omitted) The present case involves no special
factors counselling hesitation in the absence of affirma-
376 OCTOBER TERM, 1982
Opinion of the Court 452 U S
tive action by Congress We are not dealing with a
question of 'federal fiscal policy/ as in United States
v Standard Oil Co , 332 U S 301, 311 (1947) " 403
U S , at 395-396
The Court further noted that there was "no explicit congres
sional declaration that persons injured by a federal officer's
violation of the Fourth Amendment may not recover money
damages from the agents, but must instead be remitted to
another remedy, equally effective in the view of Congress "
Id , at 397
In his separate opinion concurring in the judgment, Justice
Harlan also thought it clear that the power to authorize dam
ages as a remedy for the vindication of a federal constitu
tional right had not been placed by the Constitution itself ex
clusively in Congress' hands Id , at 401-402 Instead, he
reasoned, the real question did not relate to "whether the
federal courts have the power to afford one type of remedy as
opposed to the other, but rather to the criteria which should
govern the exercise of our power " Id , at 406 In resolv
mg that question he suggested that "the range of policy con-
siderations we may take into account is at least as broad as
the range of those a legislature would consider with respect
to an expressed] statutory authorization of a traditional
remedy " Id , at 407 After weighing the relevant policies
he agreed with the Court's conclusion that the Government
had not advanced any substantial policy consideration against
recognizing a federal cause of action for violation of Fourth
Amendment rights by federal officials
In Dams v Passman, supra, the petitioner, former deputy
administrative assistant to a Member of Congress, alleged
that she had been discharged because of her sex, in violation
of her constitutional right to the equal protection of the laws
We held that the Due Process Clause of the Fifth Amend-
ment gave her a federal constitutional right to be free from
official discrimination and that she had alleged a federal cause
BUSHv LUCAS 377
207 Opinion of the Court
of action In reaching the conclusion that an award of dam-
ages would be an appropriate remedy, we emphasized the
fact that no other alternative form of judicial relief was
available 13 The Court also was persuaded that the special
concerns which would ordinarily militate against allowing
recovery from a legislator were fully reflected in respond-
ent's affirmative defense based on the Speech or Debate
Clause of the Constitution Id , at 246 We noted the
absence of any explicit congressional declaration that persons
in petitioner's position may not recover damages from those
responsible for their injury Id , at 246-247
Carlson v Green, 446 U S 14 (1980), involved a claim
that a federal prisoner's Eighth Amendment rights had been
violated The prisoner's mother brought suit on behalf of
her son's estate, alleging that federal prison officials were re-
sponsible for his death because they had violated their con-
stitutional duty to provide him with proper medical care after
he suffered a severe asthmatic attack Unlike Bwens and
Davis, the Green case was one in which Congress had pro-
vided a remedy, under the Federal Tort Claims Act, against
the United States for the alleged wrong 28 U S C §2671
et seq As is true in this case, that remedy was not as com-
pletely effective as a Bivens-tyye action based directly on the
Constitution
The Court acknowledged that a Bivens action could be de-
feated in two situations, but found that neither was present
First, the Court could discern " 'no special factors counselling
hesitation in the absence of affirmative action by Congress ' "
446 U S , at 18-19, citing Bivens, 403 U S , at 396, and
Davis, supra, at 245 Second, there was no congressional
^"Moreover, since respondent is no longer a Congressman, see n 1,
supra, equitable relief in the form of reinstatement would be unavailing
And there are available no other alternative forms of judicial relief For
Davis, as for Bivens, 'it is damages or nothing ' Bivens, supra, at 410
(Harlan, J , concurring in judgment) " 442 U S , at 245
378 OCTOBER TERM, 1982
Opinion of the Court 462 U S
determination foreclosing the damages claim and making the
Federal Tort Claims Act exclusive 446 U S , at 19, and
n 5 No statute expressly declared the FTCA remedy to be
a substitute for a Bivens action, indeed, the legislative his-
tory of the 1974 amendments to che FTCA "made it crystal
clear that Congress views FTCA and Bivens as parallel, com-
plementary causes of action " 446 U S , at 19-20
This much is established by our prior cases The federal
courts' statutory jurisdiction to decide federal questions con-
fers adequate power to award damages to the victim of a
constitutional violation When Congress provides an alter-
native remedy, it may, of course, indicate its intent, by statu-
tory language, by clear legislative history, or perhaps even
by the statutory remedy itself, that the courts' power should
not be exercised In the absence of such a congressional
directive, the federal courts must make the kind of remedial
determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors coun-
selling hesitation before authorizing a new kind of federal
litigation
Congress has not resolved the question presented by this
case by expressly denying petitioner the judicial remedy he
seeks or by providing him with an equally effective substi-
tute 14 There is, however, a good deal of history that is rele-
vant to the question whether a federal employee's attempt to
recover damages from his superior for violation of his First
Amendment rights involves any "special factors counselling
hesitation " When those words were first used in Bivens,
supra, at 396, we illustrated our meaning by referring to
14 We need not reach the question whether the Constitution itself re
quires a judicially fashioned damages remedy in the absence of any other
remedy to vindicate the underlying right, unless there is an express
textual command to the contrary Cf Dams v Passman, 442 U S 228,
246 (1979) The existing civil service remedies for a demotion in retalia
tion for protected speech are clearly constitutionally adequate See infra,
at 386-388
BUSH?; LUCAS 379
3^7 Opinion of the Court
United States v Standard Oil Co , 332 U S 301, 311, 316
(1947), and United States v Oilman, 347 U S 507 (1954)
In the Standard Oil case the Court had been asked to au-
thorize a new damages remedy for the Government against
a tortfeasor who had injured a soldier, imposing hospital
expenses on the Government and depriving it of his services
Although, as Justice Jackson properly noted in dissent, the
allowance of recovery would not have involved any usurpa-
tion of legislative power, 332 U S , at 318, the Court never-
theless concluded that Congress as "the custodian of the
national purse" should make the necessary determination of
federal fiscal policy I5 The Court refused to create a dam-
ages remedy, which would be "the instrument for determin-
ing and establishing the federal fiscal and regulatory policies
which the Government's executive arm thinks should prevail
in a situation not covered by traditionally established liabil-
ities " Id , at 314
Similarly, in Oilman, the Court applied the Standard Oil
rationale to reject the Government's attempt to recover
indemnity from one of its employees after having been held
liable under the FTCA for the employee's negligence As
the Court noted "The relations between the United States
and its employees have presented a myriad of problems with
which the Congress over the years has dealt Govern-
ment employment gives rise to policy questions of great un-
16 "Whatever the merits of the policy, its conversion into law is a proper
subject for congressional action, not for any creative power of ours Con-
gress, not this Court or the other federal courts, is the custodian of the
national purse By the same token it is the primary and most often the
exclusive arbiter of federal fiscal affairs And these comprehend, as we
have said, securing the treasury or the government against financial losses
however inflicted, including requiring reimbursement for irguries creating
them, as well as filling the treasury itself " 332 U S , at 314-315
The Court further noted that the type of harm for which the Executive
sought judicial redress was not new, and that Congress presumably knew
of it but had not exercised its undoubted power to authorize a damages
action Id , at 315-316
380 OCTOBER TEEM, 1982
Opinion of the Court 462 u g
port, both to the employees and to the Executive and Legis
lative Branches " 347 U S , at 509 The decision regard-
ing indemnity involved questions of employee discipline and
morale, fiscal policy, and the efficiency of the federal service
Hence, the Court wrote, the reasons for deferring to con-
gressional policy determinations were even more compelling
than in Standard Oil
"Here a complex of relations between federal agencies
and their staffs is involved Moreover, the claim now
asserted, though the product of a law Congress passed,
is a matter on which Congress has not taken a position
It presents questions of policy on which Congress has
not spoken The selection of that policy which is most
advantageous to the whole involves a host of consider
ations that must be weighed and appraised That func
tion is more appropriately for those who write the laws,
rather than for those who interpret them " 347 U S ,
at 511-513
The special factors counselling hesitation in the creation
of a new remedy m Standard Oil and Oilman did not con
cern the merits of the particular remedy that was sought
Rather, they related to the question of who should decide
whether such a remedy should be provided We should
therefore begin by considering whether there are reasons for
allowing Congress to prescribe the scope of relief that is
made available to federal employees whose First Amendment
rights have been violated by their supervisors
II
Unlike Standard Oil and Oilman, this case concerns a
claim that a constitutional right has been violated Never-
theless, just as those cases involved "federal fiscal policy"
and the relations between the Government and its employ-
ees, the ultimate question on the merits in this case may
appropriately be characterized as one of "federal personnel
BUSH v LUCAS 381
337 Opinion of the Court
policy " When a federal civil servant is the victim of a retal-
iatory demotion or discharge because he has exercised his
First Amendment rights, what legal remedies are available
to him?
The answer to that question has changed dramatically over
the years Originally the answer was entirely a matter of
Executive discretion During the era of the patronage sys-
tem that prevailed in the Federal Government prior to the
enactment of the Pendleton Act in 1883, 22 Stat 403, the fed-
eral employee had no legal protection against political retalia-
tion Indeed, the exercise of the First Amendment right to
support a political candidate opposing the party in office
would routinely have provided an accepted basis for dis-
charge 16 During the past century, however, the job secu-
rity of federal employees has steadily increased
In the Pendleton Act Congress created the Civil Service
Commission and provided for the selection of federal civil
servants on a merit basis by competitive examination Al-
though the statute did not address the question of removals
in general,17 it provided that no employee in the public service
could be required to contribute to any political fund or fired
16 The Report of the Committee on Civil Service and Retrenchment sub-
mitted by Senator Pendleton on May 15, 1882, contained a vivid description
of the patronage system, reading in part as follows
"The fact is confessed by all observers and commended by some that 'to the
victors belong the spoils/ that with each new administration comes the
business of distributing patronage among its friends [The President]
is to do what some predecessor of his has left undone, or to undo what oth-
ers before him have done, to put this man up and that man down, as the
system of political rewards and punishments shall seem to him to demand "
S Rep No 576, 47th Cong , 1st Sess , 2 (1882)
See generally House Committee on Post Office and Civil Service, History
of Civil Service Merit Systems of the United States and Selected Foreign
Countries, 94th Cong , 2d Sess , 26-173 (1976)
17 See S Rep No 576, supra n 16, at 9, cf H R Rep No 1826, 47th
Cong , 2d Sess , 1-2 (1882) (rejected provisions of House bill permitting
removals only for cause)
382 OCTOBER TERM, 1982
Opinion of the Court 462 U S
for refusing to do so, and it prohibited officers from attempt-
ing to influence or coerce the political actions of others l8
Congressional attention to the problem of politically moti-
vated removals was again prompted by the issuance of Exec-
utive Orders by Presidents Roosevelt and Taft that forbade
federal employees to communicate directly with Congress
without the permission of their supervisors 19 These "gag
18 Section 13 provided
"No officer or employee of the United States mentioned in this act shall
discharge, or promote, or degrade, or in manner change the official rank or
compensation of any other officer or employee, or promise or threaten so to
do, for giving or withholding or neglecting to make any contribution of
money or other valuable thing for any political purpose " 22 Stat 407
Other sections made it unlawful for Government employees to solicit
political contributions from, and to give such contributions to, other Gov
eminent employees, §§ 11, 14, and to receive any political contributions on
Government premises, § 12 Section 2 required the Civil Service Commis
sion to promulgate rules providing, inter aha, "that no person in the public
service is for that reason under any obligations to contribute to any politi
cal fund, or to render any political service, and that he will not be removed
or otherwise prejudiced for refusing to do so," and also "that no person in
said service has any right to use his official authority or influence to coerce
the political action of any person or body " 22 Stat 404 See 5 U S C
§ 2302(b)(3) (1982 ed ), 5 U S C §§ 7321-7323
19 In 1906 President Roosevelt issued Executive Order No 1142, which
provided
"All officers and employees of the United States of every description,
serving in or under any of the Executive Departments or independent
Government establishments, and whether so serving in or out of Washing
ton, are hereby forbidden, either directly or indirectly, individually or
through associations, to solicit an increase of pay or to influence or attempt
to influence in their own interest any other legislation whatever, either be
fore Congress or its committees, or in any way save through the heads of
the Departments or independent Government establishments in or under
which they serve, on penalty of dismissal from the Government service
Theodore Roosevelt "
President Taft issued another Order, Executive Order No 1514, in 1909
"It is hereby ordered that no bureau, office, or division chief, or sub
ordmate in any department of the Government, and no officer of the Army
or Navy or Marine Corps stationed in Washington, shall apply to either
House of Congress, or to any committee of either House of Congress, or to
BUSH v LUCAS 383
367 Opinion of the Court
orders," enforced by dismissal, were cited by several legisla-
tors as the reason for enacting the Lloyd-La Follette Act m
1912, 37 Stat 539, 555, §6 20 That statute provided that "no
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
»2i Moreover, it explicitly guaranteed that the right
of civil servants "to furnish information to either House of
Congress, or to any committee or member thereof, shall not
be denied or interfered with J>22 As the House Report ex-
any Member of Congress, for legislation or for appropriations, or for con
gressional action of any kind, except with the consent and knowledge of the
head of the department, nor shall any such person respond to any request
for information from either House of Congress, or any committee of either
House of Congress, or any member of Congress, except through, or as
authorized by, the head of his department William H Taf t "
See 48 Cong Rec 4513, 5223, 5634, 5635, 10673, 10729-10730 (1912)
20 See id , at 4513 (remarks of Rep Gregg) ("[I]t is for the purpose of
wiping out the existence of this despicable 'gag rule' that this provision is
inserted The rule is unjust, unfair, and against the provisions of the Con
stitution of the United States, which provides for the right of appeal and
the right of free speech to all its citizens") A number of the bill's propo-
nents asserted that the gag rule violated the First Amendment rights of
civil servants See, e g , id , at 4653 (remarks of Rep Calder), id , at
4738 (remarks of Rep Blackmon), id , at 5201 (remarks of Rep Prouty),
id , at 5223 (remarks of Rep O'Shaunessy), id , at 5634 (remarks of Rep
Lloyd), id , at 5637-5638 (remarks of Rep Wilson), id , at 10671 (remarks
of Sen Ashurst), id , at 10673 (remarks of Sen Reed), id , at 10793
(remarks of Sen Smith), id , at 10799 (remarks of Sen La Follette)
21 The statute also required notice and reasons and an opportunity for the
employee to answer the charges in writing with supporting affidavits
These requirements had previously been adopted by President McKinley in
an Executive Order issued in 1897, but they were not judicially enforce
able History of Civil Service Merit Systems, supra n 16, at 202-203
22 This provision was accompanied by a more specific guarantee that
membership m any independent association of postal employees seeking
improvements in wages, hours, and working conditions, or the presenta
tion to Congress of any grievance, "shall not constitute or be cause for
reduction in rank or compensation or removal of such person or groups of
persons from said service "
384 OCTOBER TERM, 1982
Opinion of the Court 462 TJ S
plained, this legislation was intended "to protect employees
against oppression and in the right of free speech and the
right to consult their representatives "23 In enacting the
Lloyd-La Follette Act, Congress weighed the competing pol-
icy considerations and concluded that efficient management
of Government operations did not preclude the extension of
free speech rights to Government employees M
28 H R Rep No 388, 62d Cong , 2d Sess , 7 (1912)
^Members of the House, which originated §6, suggested that it would
improve the efficiency and morale of the civil service "It will do away
with the discontent and suspicion which now exists among the employees
and will restore that confidence which is necessary to get the best results
from the employees " 48 Cong Rec 4654 (1912) (remarks of Rep Gal
der), see id , at 5635 (remarks of Rep Lloyd)
The Senate Committee initially took a different position, urging in its
Report that the relevant language, see id , at 10732 (House version) be
omitted entirely
"As to the last clause in section 6, it is the view of the committee that all
citizens have a constitutional right as such to present their grievances to
Congress or Members thereof But governmental employees occupy a
position relative to the Government different from that of ordinary citi
zens Upon questions of interest to them as citizens, governmental em
ployees have a right to petition Congress direct A different rule should
prevail with regard to their presentation of grievances connected with
their relation to the Government as employees In that respect good disci
phne and the efficiency of the service requires that they present their
grievances through the proper administrative channels " S Rep No 955,
62d Cong , 2d Sess , 21 (1912)
As Senator Bourne explained, "it was believed by the committee that to
recognize the right of the individual employee to go over the head of his
superior and go to Members of Congress on matters appertaining to his
own particular grievances, or for his own selfish interest, would be detri
mental to the service itself, that it would absolutely destroy the discipline
necessary for good service " 48 Cong Rec 10676 (1912)
This view did not prevail After extended discussion in floor debate
concerning the right to organize and the right to present grievances to
Congress, id , at 10671-10677, 10728-10733, 10792-10804, the Committee
offered and the Senate approved a compromise amendment to the House
version— guaranteeing both rights at least in part — which was subse-
quently enacted into law Id , at 10804, 37 Stat 555
BUSHi; LUCAS 385
307 Opinion of the Court
In the ensuing years, repeated consideration of the con-
flicting interests involved in providing job security, protect-
ing the right to speak freely, and maintaining discipline and
efficiency in the federal work force gave rise to additional
legislation,25 various Executive Orders,26 and the promul-
gation of detailed regulations by the Civil Service Commis-
sion * Federal civil servants are now protected by an elabo-
rate, comprehensive scheme that encompasses substantive
provisions forbidding arbitrary action by supervisors and
procedures — administrative and judicial — by which improper
action may be redressed They apply to a multitude of per-
sonnel decisions that are made daily by federal agencies ^
25 Among the most significant are the Veterans Preference Act of 1944,
58 Stat 390 (protecting veterans in federal employment by extending the
1912 Act's procedural and substantive protections to adverse actions other
than removals, and adding the right to respond orally and to appeal to the
Civil Service Commission), the Back Pay Act of 1948, 62 Stat 354 (extend-
ing the protections against removal contained in the 1912 Act to all employ-
ees who were suspended without pay, permitting backpay awards to cer-
tain categories of employees who were improperly removed or suspended
and to victims of improper reductions in force), the Back Pay Act of 1966,
81 Stat 203 (extending the right to backpay and lost benefits to every em-
ployee affected by a personnel action subsequently found to be unjustified),
and the Civil Service Reform Act of 1978, 92 Stat 1134 (shifting adjudica-
tive functions of the Civil Service Commission to the Merit Systems Pro-
tection Board, modifying administrative appeals procedures, and providing
new protections for so-called "wmstleblowers")
26 Exec Order No 10988, § 14, 3 CFR 521 (1959-1963 Comp ), and Exec
Order No 11491, § 22, 3 CFR 861 (1966-1970 Comp ), printed in note fol
lowing 5 U S C § 7301, gave all employees in the competitive service the
right to appeal adverse actions to the Civil Service Commission, and made
the administrative remedy applicable to adverse personnel actions other
than removal and suspension without pay
27 See 5 CFR §§752, 772 (1975)
28 Not all personnel actions are covered by this system For example,
there are no provisions for appeal of either suspensions for 14 days or less,
5 U S C § 7503 (1982 ed ), or adverse actions against probationary em-
ployees, § 7511 In addition, certain actions by supervisors against federal
employees, such as wiretapping, warrantless searches, or uncompensated
takings, would not be defined as "personnel actions" within the statutory
scheme
386 OCTOBER TERM, 1982
Opinion of the Court 4§2 u g
Constitutional challenges to agency action, such as the First
Amendment claims raised by petitioner, are fully cognizable
within this system As the record in this case demonstrates
the Government's comprehensive scheme is costly to admin
ister, but it provides meaningful remedies for employees who
may have been unfairly disciplined for making critical com
ments about their agencies **
A federal employee in the competitive service may be
removed or demoted "only for such cause as will promote the
efficiency of the service " *° The regulations applicable at the
time of petitioner's demotion in 1975, 31 which are substan
tially similar to those now in effect, required that an em-
ployee be given 30 days' written notice of a proposed dis
charge, suspension, or demotion, accompanied by the agency's
reasons and a copy of the charges The employee then had
the right to examine all disclosable materials that formed
the basis of the proposed action, 5 CFR § 752 202(a) (1975),
^Petitioner received retroactive reinstatement and $30,000 in backpay
An empirical study found that approximately one quarter of the adverse
actions in the federal civil service were contested Merrill, Procedures for
Adverse Actions Against Federal Employees, 59 Va L Rev 196, 198-199
(1973) In 1970, agency appeals succeeded in 20% of removal cases and
24% of demotion cases Before the Civil Service Commission, 47% of
those employees who appealed demotions and 24% of those who contested
removal were successful Id , at 204, n 35
80 Prior to the enactment of the Civil Service Reform Act of 1978, this
protection was accorded in part by statute, 5 U S C § 7501(a) (remov
als and suspensions without pay of non-preference-eligible employees),
§7512(a) (removals, suspensions without pay, reductions m grade or pay,
and other adverse actions against preference-eligible employees), and in
part by Executive Orders, see n 26, supra, implemented in Civil Service
Commission regulations, 5 CFR §§752 104(a), 752 201 (1975) (adverse ac
tions, including reductions in grade or pay, against covered employees,
including non-preference-ehgibles) The 1978 amendments retained the
general rule, 5 U S C § 7513(a) (1982 ed ), and supplemented it by speci
fymg certain "prohibited personnel practices " § 2302
^Various aspects of the regulations discussed in text were added at
different times See generally Merrill, supra n 29, at 214-218
BUSH v LUCAS 387
367 Opinion of the Court
the right to answer the charges with a statement and sup-
porting affidavits, and the right to make an oral noneviden-
tiary presentation to an agency official § 752 202(b) ® The
regulations required that the final agency decision be made
by an official higher in rank than the official who proposed the
adverse action, §752 202(f) The employee was entitled to
notification in writing stating which of the initial reasons had
been sustained Ibid , 5 U S C §7501(b)(4)
The next step was a right to appeal to the Civil Serv-
ice Commission's Federal Employee Appeals Authority 5
CFR §§752 203, 772 101 (1975) » The Appeals Authority
was required to hold a trial-type hearing at which the em-
ployee could present witnesses, cross-examine the agency's
witnesses, and secure the attendance of agency officials,
§772 307(c),34 and then to render a written decision, §772 -
309(a) An adverse decision by the FEAA was judicially
renewable in either federal district court or the Court of
Claims ** In addition, the employee had the right to ask
32 Under the statute, before and after the 1978 amendments, the agency
has the discretionary authority to provide an evidentiary hearing 5
U S C § 7501(b), 5 U S C § 7513(c) (1982 ed ), see 5 CFR § 752 404(g)
(1983) As amended in 1978, the statute gives the employee the right to
representation by an attorney or other person 5 U S C § 7513(b)(3)
(1982 ed ), see 5 CFR § 752 404(e) (1983)
38 The 1978 Civil Service Reform Act gave the Commission's adjudicative
functions to the Merit Systems Protection Board (MSPB) 5 U S C
§§ 1205, 7543(d), 7701 (1982 ed )
84 The Commission's regulations did not specify which party carried the
burdens of production and persuasion Nevertheless, participants in the
process and reviewing courts assumed that the burden was on the agency
to prove that the adverse action was justified Merrill, supra n 29, at
251, Johnson & Stoll, Judicial Review of Federal Employee Dismissals and
Other Adverse Actions, 57 Cornell L Rev 178, 192-193 (1972)
85 Under the law now in effect, the United States Court of Appeals for
the Federal Circuit has exclusive jurisdiction over appeals from the MSPB
5 U S C §7703 (1982 ed ), Federal Courts Improvement Act of 1982,
§127(a), Pub L 97-164, 96 Stat 37, 28 U S C § 1295 (1982 ed )
388 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the Commission's Appeals Review Board to reopen an adverse
decision by the FEAA § 772 310
If the employee prevailed in the administrative process or
upon judicial review, he was entitled to reinstatement with
retroactive seniority § 752 402 He also had a right to full
backpay, including credit for periodic withm-grade or step
increases and general pay raises during the relevant period,
allowances, differentials, and accumulated leave §550 803
Congress intended that these remedies would put the em-
ployee "in the same position he would have been in had the
unjustified or erroneous personnel action not taken place )J36
Given the history of the development of civil service reme-
dies and the comprehensive nature of the remedies currently
available, it is clear that the question we confront today is
quite different from the typical remedial issue confronted by
a common-law court The question is not what remedy the
court should provide for a wrong that would otherwise go un-
redressed It is whether an elaborate remedial system that
has been constructed step by step, with careful attention to
conflicting policy considerations, should be augmented by the
creation of a new judicial remedy for the constitutional viola-
tion at issue That question obviously cannot be answered
simply by noting that existing remedies do not provide com-
plete relief for the plaintiff The policy judgment should be
informed by a thorough understanding of the existing regula-
tory structure and the respective costs and benefits that
would result from the addition of another remedy for viola-
tions of employees' First Amendment rights
The costs associated with the review of disciplinary deci-
sion^ are already significant — not only in monetary terms,
but also m the time and energy of managerial personnel who
must defend their decisions Respondent argues that super-
visory personnel are already more hesitant than they should
be m administering discipline, because the review that en-
*S Rep No 1062, 89th Cong , 2d Sess , 1 (1966)
BUSH v LUCAS 389
ggY Opinion of the Court
sues inevitably makes the performance of their regular duties
more difficult Brief for Respondent 37-41 Whether or
not this assessment is accurate, it is quite probable that if
management personnel face the added risk of personal liabil-
ity for decisions that they believe to be a correct response to
improper criticism of the agency, they would be deterred
from imposing discipline in future cases In all events, Con-
gress is in a far better position than a court to evaluate the
impact of a new species of litigation between federal em-
ployees on the efficiency of the civil service Not only has
Congress developed considerable familiarity with balancing
governmental efficiency and the rights of employees, but it
also may inform itself through factfindmg procedures such as
hearings that are not available to the courts
Nor is there any reason to discount Congress' ability to
make an evenhanded assessment of the desirability of creat-
ing a new remedy for federal employees who have been
demoted or discharged for expressing controversial views
Congress has a special interest in informing itself about the
efficiency and morale of the Executive Branch In the past
it has demonstrated its awareness that lower-level Govern-
ment employees are a valuable source of information, and
that supervisors might improperly attempt to curtail their
subordinates' freedom of expression 37
37 There is a remarkable similarity between comments made in Congress
in 1912, when the Lloyd-La Follette Act was passed, and in 1978, when the
Civil Service Reform Act was enacted In 1912, Representative Calder
stated "There are always two sides to every question, and surely if any
man is competent to express an opinion regarding the needs of the postal
service it is the men who perform the actual work If anyone is competent
to make known unsatisfactory working conditions, who, might I ask, is bet-
ter qualified to lay his proper grievances before Congress than the men
who have complaints to make and who suffer from these grievances^" 48
Cong Rec 4653 (1912) In 1978, a Senate Committee Print stated "Fed-
eral employees are often the source of information about agency operations
suppressed by their superiors Since they are much closer to the actual
working situation than top agency officials, they have testified before Con-
390 OCTOBER TERM, 1982
MARSHALL, J , concurring 4^2 u g
Thus, we do not decide whether or not it would be good
policy to permit a federal employee to recover damages from
a supervisor who has improperly disciplined him for exercis
ing his First Amendment rights As we did in Standard Oil,
we decline "to create a new substantive legal liability without
legislative aid and as at the common law," 332 U S , at 302,
because we are convinced that Congress is in a better posi
tion to decide whether or not the public interest would be
served by creating it
The judgment of the Court of Appeals is
Affirmed
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN
joins, concurring
I join the Court's opinion because I agree that there are
"special factors counselling hesitation in the absence of af-
firmative action by Congress " Bivens v Six Unknown
Fed Narcotics Agents, 403 U S 388, 396 (1971) I write
separately only to emphasize that in my view a different case
would be presented if Congress had not created a compre-
hensive scheme that was specifically designed to provide full
compensation to civil service employees who are discharged
or disciplined in violation of their First Amendment rights,
cf Carlson v Green, 446 U S 14, 23 (1980), Sonntag v
Dooley, 650 F 2d 904, 907 (CA7 1981), and that affords a
remedy that is substantially as effective as a damages action
Although petitioner may be correct that the administrative
procedure created by Congress, unlike a Bivens action,* does
gress, spoken to reporters, and informed the public Mid-level employees
provide much of the information Congress needs to evaluate programs,
budgets, and overall agency performance " Senate Committee on Gov
ernmental Affairs, The Whistleblowers, 95th Cong , 2d Sess , 40 (Comm
Print 1978) See also H R Rep No 95-1403, pp 886-387 (1978), S Rep
No 95-^969, p 8 (1978)
*See? e g , Halpervn, v Kissinger, 196 U S App D C 285, 300-301,
606 F M 1192, 1207-1208 (1979), aff'd in pertinent part by an equally
dmded Court, 452 U S 713 (1981)
LUCAS 391
357 MARSHALL, J , concurring
not permit recovery for loss due to emotional distress and
mental anguish, Congress plainly intended to provide what it
regarded as full compensatory relief when it enacted the
Back Pay Act of 1966, 5 U S C § 5596 (1982 ed ) The Act
was designed to "pu[t] the employee in the same position he
would have been in had the unjustified or erroneous person-
nel action not taken place " See S Rep No 1062, 89th
Cong , 2d Sess , 1 (1966) See H R Rep No 32, 89th
Cong , 1st Sess , 5 (1965), cf Sampson v Murray, 415 U S
61, 82-83 (1974) Moreover, there is nothing in today's deci-
sion to foreclose a federal employee from pursuing a Bivens
remedy where his injury is not attributable to personnel
actions which may be remedied under the federal statutory
scheme
I cannot agree with petitioner's assertion that civil service
remedies are substantially less effective than an individual
damages remedy See ante, at 372 To begin with, the
procedure provided by the civil service scheme is in many
respects preferable to the judicial procedure under a Bwens
action See Brief for Respondent 18-21 For example, the
burden of proof in an action before the Civil Service Commis-
sion (now the Merit Systems Protection Board) must be borne
by the agency, rather than by the discharged employee See
Civil Service Commission, Conducting Hearings on Em-
ployee Appeals 11 (1968), cf Finfer v Caphn, 344 F 2d 38,
41 (CA2), cert denied, 382 U S 883 (1965), Pehcone v
Hodges, 116 U S App D C 32, 34, 320 F 2d 754, 756
(1963) Moreover, the employee is not required to overcome
the qualified immunity of executive officials as he might be
required to in a suit for money damages See Butz v
Economou, 438 U S 478 (1978) Finally, an administrative
action is likely to prove speedier and less costly than a law-
suit These advantages are not clearly outweighed by the
obvious and significant disadvantages of the civil service pro-
cedure— that it denies the claimant the option of a jury trial,
see Carlson v Green, supra, at 22-23, and that it affords
392 OCTOBER TERM, 1982
MARSHALL, J., concurring 452 u g
only limited judicial review rather than a full trial in federal
court, see Chandler v. Roudebush, 425 U. S. 840, 851-853
(1976).
As the Court emphasizes, "[t]he question is not what rem-
edy the court should provide for a wrong that would other-
wise go unredressed." Ante, at 388. The question is
whether an alternative remedy should be provided when the
wrong may already be redressed under "an elaborate reme-
dial system that has been constructed step by step, with
careful attention to conflicting policy considerations." Ibid.
I agree that a Bivens remedy is unnecessary in this case.
NLRB v TRANSPORTATION MANAGEMENT CORP 393
Syllabus
NATIONAL LABOR RELATIONS BOARD v
TRANSPORTATION MANAGEMENT CORP
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No 82-168 Argued March 28, 1983— Decided June 15, 1983
Acting on unfair labor practice charges filed by an employee of respondent,
petitioner National Labor Relations Board found that respondent had
discharged the employee, a busdriver, for his union activities, in viola-
tion of §§8(a)(l) and 8(a)(3) of the National Labor Relations Act The
Board applied its rule that the General Counsel has the burden of per-
suading the Board by a preponderance of the evidence that an antmmon
animus contributed to the employer's decision to discharge the em-
ployee, and the employer can avoid the conclusion that it violated the Act
by proving by a preponderance of the evidence that the employee would
have been fired for permissible reasons even if he had not been involved
in protected union activities The Board concluded that respondent
failed to carry its burden of persuading the Board that the employee's
discharge would have taken place, even if he had not been engaged in
protected union activities, because of his practice of leaving his keys in
the bus and taking unauthorized breaks The Court of Appeals refused
to enforce the Board's order, based on its view that it was error to place
the burden on the employer, and that the General Counsel carried the
burden of proving not only that a forbidden motivation contributed to the
discharge but also that the discharge would not have taken place inde-
pendently of the employee's protected conduct
Held
1 The burden of proof placed on the employer under the Board's rule
is consistent with §§ 8(a)(l) and 8(a)(3), as well as with § 10(c) of the Act,
which provides that the Board must find an unfair labor practice by a
"preponderance of the testimony " The Board's construction of the stat-
ute, which is not mandated by the Act, extends to the employer what the
Board considers to be an affirmative defense but does not change or add
to the elements of the unfair labor practice that the General Counsel has
the burden of proving under § 10(c) This is a permissible construction,
and the Board's allocation of the burden of proof is reasonable Cf Mt
Healthy City Board of Education \ Doyle, 429 U S 274 Pp 397-404
2 The Board was justified in this case in finding that the employee
would not have been discharged had respondent not considered his pro-
394 OCTOBER TERM, 1982
Opinion of the Court 4$) U S
tected activities Such finding was supported by substantial evidence
on the record considered as a whole Pp 404-405
674 F 2d 130, reversed
WHITE, J , delivered the opinion for a unanimous Court
Deputy Solicitor General Wallace argued the cause for
petitioner With him on the brief were Solicitor General
Lee, Carolyn F Corwm, Norton J Come, and Linda Sher
Martin Ames argued the cause and filed briefs for
respondent *
JUSTICE WHITE delivered the opinion of the Court
The National Labor Relations Act (NLRA or Act), 29
USC §151etseq (1976 ed and Supp V), makes unlawful
the discharge of a worker because of union activity, §§ 8(a)(l),
(3), as amended, 61 Stat 140, 29 U S C §§158(a)(l),(3),1but
employers retain the right to discharge workers for any num-
ber of other reasons unrelated to the employee's union activi-
ties When the General Counsel of the National Labor Rela-
tions Board (Board) files a complaint alleging that an employee
was discharged because of his union activities, the employer
*Bnefs of amici cunae urging affirmance were filed by John W
Noble, Jr , and Stephen A Bokat for the Chamber of Commerce of the
United States, and by Joseph D Alviam for the New England Legal Foun
dation et al
Briefs of amici cunae were filed by J Albert Woll, Michael H Gottes
mow, Robert M Weinberg, and Laurence Gold for the American Fed
eration of Labor and Congress of Industrial Organizations, and by
Gerard C Smetana and Gary L Starkman for the Council on Labor Law
Equality
1 Section 8(a), as set forth in 29 U S C § 158(a), provides, in relevant
part
"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 an
term or condition of employment to encourage or discourage membershi]
m any labor organization "
NLRB v TRANSPORTATION MANAGEMENT CORP 395
393 Opinion of the Court
may assert legitimate motives for his decision In Wright
Line, 251 N L R B 1083 (1980), enf ' d, 662 F 2d 899 (CA1
1981), cert denied, 455 U S 989 (1982), the Board reformu-
lated the allocation of the burden of proof in such cases It
determined that the General Counsel carried the burden of
persuading the Board that an antmnion animus contributed
to the employer's decision to discharge an employee, a bur-
den that does not shift, but that the employer, even if it failed
to meet or neutralize the General Counsel's showing, could
avoid the finding that it violated the statute by demonstrat-
ing by a preponderance of the evidence that the worker
would have been fired even if he had not been involved with
the union The question presented in this case is whether
the burden placed on the employer in Wright Line is consist-
ent with §§8(a)(l) and 8(a)(3), as well as with §10(c) of the
NLRA, 29 U S C § 160(c), which provides that the Board
must find an unfair labor practice by a "preponderance of the
testimony "2
Prior to his discharge, Sam Santillo was a busdnver for
respondent Transportation Management Corp On March
19, 1979, Santillo talked to officials of the Teamster's Union
about organizing the drivers who worked with him Over
Section 10(c) provides, in relevant part
"If upon the preponderance of the testimony taken the Board shall be of
the opinion that any person named in the complaint has engaged in or is
engaging in any such unfair labor practice, then the Board shall state its
findings of fact and shall issue and cause to be served on such person an
order requiring such person to cease and desist from such unfair labor prac-
tice, and to take such affirmative action including reinstatement of em-
ployees with or without back pay, as will effectuate the policies of this
subchapter If upon the preponderance of the testimony taken the
Board shall not be of the opinion that the person named in the complaint
has engaged in or is engaging in any such unfair labor practice, then the
Board shall state its findings of fact and shall issue an order dismissing the
said complaint No order of the Board shall require the reinstatement of
any individual as an employee who has been suspended or discharged, or
the payment to him of any back pay, if such individual was suspended or
discharged for cause " 29 U S C § 160(c)
396 OCTOBER TERM, 1982
Opinion of the Court 462 U g
the next four days Santillo discussed with his fellow drivers
the possibility of joining the Teamsters and distributed
authorization cards On the night of March 23, George Pat-
terson, who supervised Santillo and the other drivers, told
one of the drivers that he had heard of Santillo's activities
Patterson referred to Santillo as two-faced, and promised to
get even with him
Later that evening Patterson talked to Ed West, who was
also a busdnver for respondent Patterson asked, "What's
with Sam and the Union?" Patterson said that he took
Santillo's actions personally, recounted several favors he had
done for Santillo, and added that he would remember San-
tillo's activities when Santillo again asked for a favor On
Monday, March 26, Santillo was discharged Patterson told
Santillo that he was being fired for leaving his keys in the bus
and taking unauthorized breaks
Santillo filed a complaint with the Board alleging that he
had been discharged because of his union activities, contrary
to §§8(a)(l) and 8(a)(3) of the NLRA The General Counsel
issued a complaint The Administrative Law Judge (ALJ)
determined by a preponderance of the evidence that Patter-
son clearly had an antmnion animus and that Santillo's dis-
charge was motivated by a desire to discourage union activi-
ties The ALJ also found that the asserted reasons for the
discharge could not withstand scrutiny Patterson's disap-
proval of Santillo's practice of leaving his keys in the bus
was clearly a pretext, for Patterson had not known about
SantiUo's practice until after he had decided to discharge San-
tillo, moreover, the practice of leaving keys in buses was
commonplace among respondent's employees Respondent
identified two types of unauthorized breaks, coffeebreaks and
stops at home With respect to both coffeebreaks and stop-
ping^ at home, the ALJ found that Santillo was never
cautioned or admonished about such behavior, and that the
employer had not followed its customary practice of issuing
three written warnings before discharging a driver The
NLRB v TRANSPORTATION MANAGEMENT CORP 397
393 Opinion of the Court
ALJ also found that the taking of coffeebreaks during work-
ing hours was normal practice, and that respondent tolerated
the practice unless the breaks interfered with the driver's
performance of his duties In any event, said the ALJ,
respondent had never taken any adverse personnel action
against an employee because of such behavior While
acknowledging that Santillo had engaged in some unsatisfac-
tory conduct, the ALJ was not persuaded that Santillo would
have been fired had it not been for his union activities
The Board affirmed, adopting with some clarification the
ALJ's findings and conclusions and expressly applying its
Wright Line decision It stated that respondent had failed
to carry its burden of persuading the Board that the dis-
charge would have taken place had Santillo not engaged in
activity protected by the Act The Court of Appeals for the
First Circuit, relying on its previous decision rejecting the
Board's Wright Line test, NLRB v Wright Line, 662 F
2d 899 (1981), refused to enforce the Board's order and
remanded for consideration of whether the General Counsel
had proved by a preponderance of the evidence that Santillo
would not have been fired had it not been for his union activi-
ties 674 F 2d 130 (1982) We granted certiorari, 459
U S 1014 (1982), because of conflicts on the issue among the
Courts of Appeals 3 We now reverse
Employees of an employer covered by the NLRA have the
right to form, join, or assist labor organizations NLRA § 7,
29 U S C § 157 It is an unfair labor practice to interfere
with, restrain, or coerce the exercise of those rights, NLRA
8 The Board's Wright Line decision has been rejected by the Second and
Third Circuits, see NLRB v New York University Medical Center, 702 F
2d 284 (CA2 1983), cert pending, No 82-1705, Behmng International, Inc
v NLRB, 675 F 2d 83 (CAS 1982), cert pending, No 82-438, as well as by
the First Several Circuits have expressly approved the Wright Line test
See NLRB v Senftner Volkswagen Corp , 681 F 2d 557, 560 (CA8 1982),
NLRB v News Industries, Inc , 647 F 2d 905, 909 (CA9 1981), Peavey
Co v NLRB, 648 F 2d 460 (CA7 1981)
398 OCTOBER TERM, 1982
Opinion of the Court 462 U S
§8(a)(l), 29 U S C §158(a)(l), or by discrimination in hire
or tenure "to encourage or discourage membership in any
labor organization," NLRA §8(a)(3), 29 U S C §158(a)(3)
Under these provisions it is undisputed that if the em
ployer fires an employee for having engaged in union activi-
ties and has no other basis for the discharge, or if the reasons
that he proffers are pretextual, the employer commits an
unfair labor practice He does not violate the NLRA, how
ever, if any antmmon animus that he might have entertained
did not contribute at all to an otherwise lawful discharge for
good cause Soon after the passage of the Act, the Board
held that it was an unfair labor practice for an employer to
discharge a worker where antmmon animus actually con
tributed to the discharge decision Consumers Research,
Inc , 2 N L R B 57, 73 (1936), Louisville Refining Co ,
4 N L R B 844, 861 (1938), enf 'd, 102 F 2d 678 (CA6),
cert denied, 308 U S 568 (1939), Dow Chemical Co , 13
N L R B 993, 1023 (1939), enf 'd in relevant part, 117 F
2d 455 (CA6 1941), Republic Creosoting Co , 19 N L R B
267, 294 (1940) In Consumers Research, the Board re-
jected the position that "antecedent to a finding of violation
of the Act, it must be found that the sole motive for
discharge was the employee's union activity " It explained
that "[s]ueh an interpretation is repugnant to the purpose
and meaning of the Act, and may not be made " 2
N L R B , at 73 In its Third Annual Report, the Board
stated "Where the employer has discharged an employee
for two or more reasons, and one of them is union affiliation
or activity, the Board has found a violation [of §8(a)(3)] "
3 NLRB Ann Rep 70 (1938) In the following year in
Dow Chemical Co , supra, the Board stated that a violation
could be found where the employer acted out of antmmon
bias Vhether or not the [employer] may have had some
other motive and without regard to whether or not the
[employer's] asserted motive was lawful " 13 N L R B ,
at 1023 This construction of the Act— that to establish an
NLRB v TRANSPORTATION MANAGEMENT CORP 399
393 Opinion of the Court
unfair labor practice the General Counsel need show by a pre-
ponderance of the evidence only that a discharge is in any
way motivated by a desire to frustrate union activity — was
plainly rational and acceptable The Board has adhered to
that construction of the Act since that time
At the same time, there were decisions indicating that the
presence of an antmmon motivation in a discharge case was
not the end of the matter An employer could escape the
consequences of a violation by proving that without regard
to the impermissible motivation, the employer would have
taken the same action for wholly permissible reasons See,
e g , Eagle-Picker Mining & Smelting Co , 16 N L R B
727, 801 (1939), enf 'd in relevant part, 119 F 2d 903 (CAS
1941), Borden Mills, Inc , 13 N L R B 459,474-475(1939),
Bobbins Tire & Rubber Co , 69 N L R B 440, 454, n 21
(1946), enf 'd, 161 F 2d 798 (CA5 1947) 4
The Courts of Appeals were not entirely satisfied with the
Board's approach to dual-motive cases The Board's Wright
4 The Board argues that its approach to mixed-motive cases was known
to Congress and ratified by the passage of the Labor Management Rela-
tions Act (LMRA), 61 Stat 136, which reenacted §§ 8(a)(l) and 8(a)(3)
almost without material change We need not pass on this submission,
since we find nothing in the legislative history of the LMRA that calls into
question the decisions of the Board relevant to the issue before us now
The issue after, as well as before, the passage of the LMRA is whether the
Board's construction of § 8(a) is sufficiently rational to be acceptable in the
courts We do note that nowhere in the legislative history is reference
made to any of the mixed motive cases decided by the Board or by the
courts, see, e g , NLRB v Remington Rand, Inc , 94 F 2d 862, 872 (CA2)
(L Hand, J ) ("[S]mce the refusal [to negotiate] was at least one cause of
the strike, and was a tort it rested upon the tortfeasor to disentangle
the consequences for which it was chargeable from those irom which it was
immune"), cert denied, 304 U S 576 (1938), NLRB v Stackpole Carbon
Co , 105 F 2d 167, 176 (CA3), cert denied, 308 U S 605 (1939), Borden
Mills, Inc , 13 N L R B , at 474-475 (dicta), Davis Precision Machine
Co , 64 N L R B 529, 537 (1945), Wnght Hibbard Industrial Electric
Truck Co , 67 N L R B 897, 908, n 15 (1946), Robbins Tire and Rubber
Co , 69 N L R B , at 454, n 21
400 OCTOBER TERM, 1982
Opinion of the Court 462 u g
Line decision in 1980 was an attempt to restate its analysis m
a way more acceptable to the Courts of Appeals The Board
held that the General Counsel of course had the burden of
proving that the employee's conduct protected by § 7 was a
substantial or a motivating factor in the discharge 5 Even if
this was the case, and the employer failed to rebut it, the em
ployer could avoid being held in violation of §§8(a)(l) and
8(a)(3) by proving by a preponderance of the evidence that
the discharge rested on the employee's unprotected conduct
as well and that the employee would have lost his job m any
event It thus became clear, if it was not clear before, that
proof that the discharge would have occurred m any event
and for valid reasons amounted to an affirmative defense on
which the employer carried the burden of proof by a prepon-
derance of the evidence "The shifting burden merely re-
quires the employer to make out what is actually an affirma
tive defense " Wright Line, 251 N L R B , at 1088,
n 11, see also id , at 1084, n 5
The Court of Appeals for the First Circuit refused enforce
ment of the Wright Line decision because in its view it was
error to place the burden on the employer to prove that the
discharge would have occurred had the forbidden motive not
been present The General Counsel, the Court of Appeals
held, had the burden of showing not only that a forbidden
6 The Board has not purported to shift the burden of persuasion on the
question of whether the employer fired Santillo at least in part because he
engaged m protected activities The General Counsel satisfied his burden
in this respect and no one disputes it Thus, Texas Department of Com
mumty Affairs v Burdme, 450 U S 248 (1981), is inapposite In that
case, which involved a claim of racial discrimination m violation of Title VII
of the Civil Rights Act of 1964, 42 U S C § 2000e et seq (1976 ed and
Supp V), the question was who had "[t]he ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the
plaintiff » 450 U S , at 253 The Court discussed only the situation
in which the issue is whether either illegal or legal motives, but not both,
ware Mi© "fcrue" motives behind the decision It thus addressed the pre
text ease
NLRB v TRANSPORTATION MANAGEMENT CORP 401
393 Opinion of the Court
motivation contributed to the discharge but also that the dis-
charge would not have taken place independently of the pro-
tected conduct of the employee The Court of Appeals was
quite correct, and the Board does not disagree, that through-
out the proceedings, the General Counsel carries the burden
of proving the elements of an unfair labor practice Section
10(c) of the Act, 29 U S C § 160(c), expressly directs that
violations may be adjudicated only "upon the preponder-
ance of the testimony" taken by the Board The Board's
rules also state that "[t]he Board's attorney has the burden
of pro[vmg] violations of Section 8 " 29 CFR § 101 10(b)
(1982) We are quite sure, however, that the Court of Ap-
peals erred in holding that § 10(c) forbids placing the burden
on the employer to prove that absent the improper motiva-
tion he would have acted m the same manner for wholly
legitimate reasons
As we understand the Board's decisions, they have consist-
ently held that the unfair labor practice consists of a dis-
charge or other adverse action that is based in whole or in
part on antmnion animus — or as the Board now puts it, that
the employee's protected conduct was a substantial or moti-
vating factor in the adverse action The General Counsel
has the burden of proving these elements under § 10(c) But
the Board's construction of the statute permits an employer
to avoid being adjudicated a violator by showing what his ac-
tions would have been regardless of his forbidden motivation
It extends to the employer what the Board considers to be an
affirmative defense but does not change or add to the ele-
ments of the unfair labor practice that the General Counsel
has the burden of proving under § 10(c) 6 We assume that
6 The language of the NLRA requiring that the Board act on a prepon-
derance of the testimony taken was added by the LMRA, 61 Stat 136, m
1947 A closely related provision directed that no order of the Board rein-
state or compensate any employee who was fired for cause Section 10(c)
places the burden on the General Counsel only to prove the unfair labor
practice, not to disprove an affirmative defense Furthermore, it is clear
402 OCTOBER TERM, 1982
Opinion of the Court 452 U S
the Board could reasonably have construed the Act m the
manner insisted on by the Court of Appeals We also as
sume that the Board might have considered a showing by the
employer that the adverse action would have occurred in any
event as not obviating a violation adjudication but as going
only to the permissible remedy, in which event the burden of
proof could surely have been put on the employer The
Board has instead chosen to recognize, as it insists it has done
for many years, what it designates as an affirmative defense
that the employer has the burden of sustaining We are un
prepared to hold that this is an impermissible construction of
the Act "[T]he Board's construction here, while it may not
from the legislative history of the LMRA that the drafters of § 10(c) were
not thinking of the mixed-motive case Their discussions reflected the
assumption that discharges were either "for cause" or punishment for
protected activity Read fairly, the legislative history does not indicate
whether, in mixed motive cases, the employer or the General Counsel has
the burden of proof on the issue of what would have happened if the em
ployer had not been influenced by his unlawful motives, on that point the
legislative history is silent
The "for cause" proviso was not meant to apply to cases in which both
legitimate and illegitimate causes contributed to the discharge, see infra
The amendment was sparked by a concern over the Board's perceived
practice of inferring from the fact that someone was active m a union that
he was fired because of antiumon animus even though the worker had been
guilty of gross misconduct The House Report explained the change in the
following terms
"A third change forbids the Board to reinstate an individual unless the
weight of the evidence shows that the individual was not suspended or dis
charged for cause In the past, the Board, admitting that an employee
was guilty of gross misconduct, nevertheless frequently reinstated him, <m
ferrmsg? that, because he was a member or an official of a union, this, not his
misconduct, was the reason for his discharge " H R Rep No 245, 80th
Cong., 1st Sess , 42 (1947) (emphasis added)
The proviso was thus a reaction to the Board's readiness to infer antiumon
animus from the fact that the discharged person was active in the union,
and thus 1ms little to do with the situation m which the Board has soundly
cone&$ed that the employer had an antiumon animus and that such feel
*ogs played a role in a worker's discharge
NLRB v TRANSPORTATION MANAGEMENT CORP 403
393 Opinion of the Court
be required by the Act, is at least permissible under it ,"
and m these circumstances its position is entitled to defer-
ence NLRB v / Weingarten, Inc , 420 U S 251, 266-267
(1975), NLRB v Erie Resistor Corp , 373 U S 221, 236
(1963)
The Board's allocation of the burden of proof is clearly rea-
sonable in this context, for the reason stated m NLRB v
Remington Rand, Inc , 94 F 2d 862, 872 (CA2), cert denied,
304 U S 576 (1938), a case on which the Board relied when
it began taking the position that the burden of persuasion
could be shifted E g , Eagle-Picher Mining & Smelting,
16 N L R B , at 801 The employer is a wrongdoer, he
has acted out of a motive that is declared illegitimate by the
statute It is fair that he bear the risk that the influence of
legal and illegal motives cannot be separated, because he
knowingly created the risk and because the risk was created
not by innocent activity but by his own wrongdoing
In Mt Healthy City Board of Education v Doyle, 429
U S 274 (1977), we found it prudent, albeit in a case impli-
cating the Constitution, to set up an allocation of the burden
of proof which the Board heavily relied on and borrowed from
in its Wright Line decision There, we held that the plaintiff
had to show that the employer's disapproval of his First
Amendment protected expression played a role in the em-
ployer's decision to discharge him If that burden of persua-
sion were carried, the burden would be on the defendant to
show by a preponderance of the evidence that he would have
reached the same decision even if, hypothetically, he had not
been motivated by a desire to punish plaintiff for exercis-
ing his First Amendment rights The analogy to M t Healthy
drawn by the Board was a fair one 7
7 Respondent also argues that placement of the burden of persuasion on
the employer contravenes § 10(b) of the Act and § 7(c) of the Adminis-
trative Procedure Act, 5 U S C § 556(d) Section 10(b) provides that
the Federal Rules of Evidence apply to Board proceedings insofar as prac-
ticable Respondent contends that Federal Rule of Evidence 301 requires
404 OCTOBER TERM, 1982
Opinion of the Court 462 u S
For these reasons, we conclude that the Court of Appeals
erred in refusing to enforce the Board's orders, which rested
on the Board's Wright Line decision
The Board was justified in this case in concluding that
Santillo would not have been discharged had the employer
not considered his efforts to establish a union At least two
of the transgressions that purportedly would have in any
event prompted Santillo's discharge were commonplace, and
yet no transgressor had ever before received any kind of dis
cipline Moreover, the employer departed from its usual prac
tice in dealing with rules infractions, indeed, not only did the
employer not warn Santillo that his actions would result in
being subjected to discipline, it also never even expressed its
disapproval of his conduct In addition, Patterson, the per
son who made the initial decision to discharge Santillo, was
obviously upset with Santillo for engaging in such protected
that the burden of persuasion rest on the General Counsel Rule 301
provides
"In all civil actions and proceedings not otherwise provided for by Act of
Congress or by these rules, a presumption imposes on the party against
whom it is directed the burden of going forward with evidence to rebut or
meet the presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion, which remains throughout the
trial upon the party on whom it was originally cast "
The Rule merely defines the term "presumption " It in no way restricts
the authority of a court or an agency to change the customary burdens of
persuasion in a manner that otherwise would be permissible Indeed,
were respondent correct, we could not have assigned to the defendant the
burden of persuasion on one issue in Mt Healthy City Board of Education
v Doyle, 429 U S 274 (1977)
Section 7(c) of the Administrative Procedure Act, 5 U S C § 556(d),
provides that the proponent of an order has the burden of proof Since the
General Counsel is the proponent of the order, asserts respondent, the
General Counsel must bear the burden of proof Section 7(c), however,
determines only the burden of going forward, not the burden of persuasion
Environmental Defense Fund, Inc v EPA, 179 U S App D C 43, 49,
§8-60, 548 F 2d 998, 1004, 1013-1015 (1976), cert denied sub nom
Chemical Corp v EPA, 431 U S 925 (1977)
NLRB w TRANSPORTATION MANAGEMENT CORP. 405
gog Opinion of the Court
activity. It is thus clear that the Board's finding that San-
tillo would not have been fired if the employer had not had an
antiunion animus was "supported by substantial evidence on
the record considered as a whole," 29 U. S. C. § 160(f ).
Accordingly, the judgment is
Reversed.
406 OCTOBER TERM, 1982
Syllabus 462 u S
PHILKO AVIATION, INC v SHACKET ET ux
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No 82-342 Argued April 20, 1983— Decided June 15, 1983
A corporation in Illinois, operated by Roger Smith, sold a new airplane to
respondents, who paid the sale price in full and took possession of the
plane Smith, however, did not give respondents the original bills of
sale reflecting the plane's chain of title, but gave them only photocopies
and an assurance that he would "take care of the paperwork " Subse
quently, Smith purported to sell the plane to petitioner, giving it the title
documents, which petitioner's financing bank later recorded with the
Federal Aviation Administration (FAA) Respondents filed an action m
Federal District Court to determine title to the plane Petitioner ar
gued that it had title because respondents never recorded their interest
in the plane with the FAA, relying on § 503(c) of the Federal Aviation
Act of 1958, which provides that "[n]o conveyance or instrument" affect
ing title to civil aircraft shall be valid against third parties not having
actual notice of the sale, until such conveyance or instrument is recorded
with the FAA But the District Court awarded summary judgment in
respondents' favor, and the Court of Appeals affirmed, holding that
§ 503(c) did not pre-empt Illinois state law under which no documentation
for a valid transfer of an aircraft is required and an oral sale is valid
against third parties once the buyer takes possession of the aircraft
Held State laws, such as the Illinois law, allowing undocumented or un
recorded transfers of interests in aircraft to affect innocent third parties
are pre-empted by the federal Act Although if § 503(c) were inter
preted literally in accordance with the federal Act's definition of "con
veyance" — "a bill of sale, contract of conditional sale, mortgage, assign
ment of mortgage, or other instrument affecting title to, or interest in,
property" — it would invalidate only unrecorded title instruments and
not unrecorded title transfers, thus enabling a claimant to establish title
against an innocent third party without relying on an instrument, it is
apparent that Congress did not intend § 503(c) to be interpreted in this
manner Rather, § 503(c) means that every aircraft transfer must be
evidenced by an instrument, and every such instrument must be re-
corded before the rights of innocent third parties can be affected Be-
cause of these requirements, state laws permitting undocumented or un-
recorded transfers are pre-empted, for there is a direct conflict between
I503(c) and such state laws These conclusions are dictated by the fed-
PHILKO AVIATION, INC v SHACKET 407
406 Opinion of the Court
eral Act's legislative history Any other construction would defeat Con-
gress' purpose in enacting § 503(c) of creating a "central clearing house"
for recordation of title so that a person could have "ready access" to
information about an aircraft's title Pp 409-414
681 F 2d 506, reversed and remanded
WHITE, J , delivered the opinion of the Court, in which BURGER, C J ,
and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STE-
VENS, JJ , joined O'CONNOR, J , filed an opinion concurring in part and
concurring in the judgment, post, p 414
Leshe R Bishop argued the cause for petitioner With
him on the briefs were Donald B Garvey and John N Dore
James C Murray, Jr , argued the cause for respondents
With him on the brief was Lee Ann Watson *
JUSTICE WHITE delivered the opinion of the Court
This case presents the question whether the Federal Avia-
tion Act of 1958 (Act), 72 Stat 737, as amended, 49 U S C
§ 1301 et seq (1976 ed and Supp V), prohibits all transfers
of title to aircraft from having validity against innocent third
parties unless the transfer has been evidenced by a written
instrument, and the instrument has been recorded with the
Federal Aviation Administration (FAA) We conclude that
the Act does have such effect
On April 19, 1978, at an airport in Illinois, a corporation
operated by Roger Smith sold a new airplane to respondents
Respondents, the Shackets, paid the sale price in full and
took possession of the aircraft, and they have been in posses-
sion ever since Smith, however, did not give respondents
the original bills of sale reflecting the chain of title to the
plane He instead gave them only photocopies and his assur-
ance that he would "take care of the paperwork," which the
Shackets understood to include the recordation of the original
bills of sale with the FAA Insofar as the present record
* J Arthur Mozley and Donald R Andersen filed a brief far the Aireraf t
Finance Association as amiaus curvae urging reversal
408 OCTOBER TERM, 1982
Opinion of the Court 462 U S
reveals, the Shackets never attempted to record their title
with the FAA
Unfortunately for all, Smith did not keep his word but
instead commenced a fraudulent scheme Shortly after the
sale to the Shackets, Smith purported to sell the same
airplane to petitioner, Philko Aviation According to Philko,
Smith said that the plane was in Michigan having electronic
equipment installed Nevertheless, Philko and its financing
bank were satisfied that all was in order, for they had exam-
ined the original bills of sale and had checked the aircraft's
title against FAA records J At closing, Smith gave Philko
the title documents, but, of course, he did not and could not
have given Philko possession of the aircraft Philko's bank
subsequently recorded the title documents with the FAA
After the fraud became apparent, the Shackets filed the
present declaratory judgment action to determine title to the
plane Philko argued that it had title because the Shackets
had never recorded their interest in the airplane with the
FAA Philko relied on §503(c) of the Act, 72 Stat 773, as
amended, 49 U S C § 1403(c), which provides that no con-
veyance or instrument affecting the title to any civil aircraft
shall be valid against third parties not having actual notice
of the sale, until such conveyance or other instrument is
filed for recordation with the FAA However, the District
Court awarded summary judgment in favor of the Shackets,
Shacket v Roger Smith Aircraft Sales, Inc , 497 F Supp
1262 (ND 111 1980), and the Court of Appeals affirmed, rea-
soning that § 503(c) did not pre-empt substantive state law
regarding title transfers, and that, under the Illinois Uniform
Commercial Code, 111 Rev Stat , ch 26, 1 1-101 et seq
(1981), the Shackets had title but Philko did not 681 F 2d
506 (1982) We granted certiorari, 459 U S 1069 (1982),
and we now reverse and remand for further proceedings
1 It is perhaps noteworthy, however, that Philko's title search did not
even reveal that the seller, Smith's corporation, owned or ever had owned
the subject airplane
PHILKO AVIATION, INC v SHACKET 409
406 Opinion of the Court
Section 503(a)(l) of the Act, 49 U S C § 1403(a)(l), di-
rects the Secretary of Transportation to establish and mam-
tain a system for the recording of any "conveyance which
affects the title to, or any interest in, any civil aircraft of the
United States " Section 503(c), 49 U S C § 1403(c), states
"No conveyance or instrument the recording of which
is provided for by [§503(a)(l)] shall be valid in respect
of such aircraft against any person other than the
person by whom the conveyance or other instrument is
made or given, his heir or devisee, or any person having
actual notice thereof, until such conveyance or other
instrument is filed for recordation in the office of the
Secretary of Transportation "
The statutory definition of "conveyance" defines the term
as "a bill of sale, contract of conditional sale, mortgage, as-
signment of mortgage, or other instrument affecting title to,
or interest in, property " 49 U S C § 1301(20) (1976 ed ,
Supp V) If § 503(c) were to be interpreted literally in ac-
cordance with the statutory definition, that section would not
require every transfer to be documented and recorded, it
would only invalidate unrecorded title instruments, rather
than unrecorded title transfers Under this interpretation,
a claimant might be able to prevail against an innocent third
party by establishing his title without relying on an instru-
ment In the present case, for example, the Shackets could
not prove their title on the basis of an unrecorded bill of
sale or other writing purporting to evidence a transfer of title
to them, even if state law did not require recordation of such
instruments, but they might still prevail, since Illinois law
does not require written evidence of a sale "with respect to
goods for which payment has been made and accepted or
which have been received and accepted " 111 Rev Stat ,
ch 26, f2-201(3)(c) (1981)
We are convinced, however, that Congress did not intend
§503(c) to be interpreted in this manner Rather, §50S(c)
means that every aircraft transfer must be evidenced by an
410 OCTOBER TERM, 1982
Opinion of the Court 462 U S
instrument, and every such instrument must be recorded,
before the rights of innocent third parties can be affected
Furthermore, because of these federal requirements, state
laws permitting undocumented or unrecorded transfers are
pre-empted, for there is a direct conflict between § 503(c) and
such state laws, and the federal law must prevail 2
These conclusions are dictated by the legislative history
The House and House Conference Committee Reports, and
the section-by-section analysis of one of the bill's drafters,
all expressly declare that the federal statute "requires" the
recordation of "every transfer of any interest in a civil
aircraft " 3 The House Conference Report explains "This
section requires the recordation with the Authority of every
transfer made after the effective date of the section, of any
interest in a civil aircraft of the United States The convey-
ance evidencing each such transfer is to be recorded with an
index in a recording system to be established by the Author-
ity " 4 Thus, since Congress intended to require the recorda-
tion of a conveyance evidencing each transfer of an interest in
aircraft, Congress must have intended to pre-empt any state
law under which a transfer without a recordable conveyance
would be valid against innocent transferees or henholders
who have recorded
2U S Const, Art VI, cl 2, Pacific Gas & Electric Co v State Energy
Resources Conservation & Development Comm'n, 461 U S 190, 204
(1983), Fidelity Federal Savings & Loan Assn v De la Cuesta, 458 U S
141, 153 (1982), Jones v Rath Packing Co , 430 U S 519, 525-526 (1977)
SH R Conf Rep No 2635, 75th Cong , 3d Sess , 74 (1938) (emphasis
added), H R Rep No 2254, 75th Cong , 3d Sess , 9 (1938), Hearings on
S 3760 before the Senate Committee on Commerce, 75th Cong , 3d Sess ,
9 (1938) (section-by section analysis of C M Hester, Assistant General
Counsel, Treasury Dept ) Section 503(c) of the present Act is derived
from § 503(b) of the Civil Aeronautics Act of 1938, 52 Stat 1006 The only
pertineiit legislative history that we have found is that relating to the
passage of the original 1938 provision
^ 4IL R Conl Rep No 2635, supra, at 74 (emphasis added) The
"Authority" mentioned in the quotation is the Civil Aeronautics Authority,
tiie predecessor of the FAA
PHILKO AVIATION, INC v SHACKET 411
406 Opinion of the Court
Any other construction would defeat the primary congres-
sional purpose for the enactment of §503(c), which was to
create "a central clearing house for recordation of titles so
that a person, wherever he may be, will know where he can
find ready access to the claims against, or liens, or other legal
interests in an aircraft " Hearings on H R 9738 before the
House Committee on Interstate and Foreign Commerce, 75th
Cong , 3d Sess , 407 (1938) (testimony of F Fagg, Director
of Air Commerce, Dept of Commerce) Here, state law
does not require any documentation whatsoever for a valid
transfer of an aircraft to be effected An oral sale is fully
valid against third parties once the buyer takes possession of
the plane If the state law allowing this result were not
pre-empted by § 503(c), then any buyer in possession would
have absolutely no need or incentive to record his title with
the FAA, and he could refuse to do so with impunity, and
thereby prevent the "central clearing house" from providing
"ready access" to information about his claim This is not
what Congress intended 5
In the absence of the statutory definition of conveyance,
our reading of § 503(c) would be by far the most natural one,
because the term "conveyance" is first defined in the dic-
tionary as "the action of conveying," ^ e , "the act by which
title to property is transferred " Webster's Third New
International Dictionary 499 (P Gove ed 1976) Had Con-
gress defined "conveyance" in accordance with this defini-
5 Although the recording system ideally should allow any transferee
who has checked the FAA records to acquire his interest with the certain
knowledge that the transferor's title is clear, we recognize that the present
system does not allow for such certainty, because there is a substantial lag
from the time at which an instrument is mailed to the FAA to the tune at
which the FAA actually records the instrument Thus, if the owner of an
airplane grants a hen on it to Doe on one day and attempts to sell it to Roe
on the following day, Roe might erroneously assume, based on a search of
the FAA records, that his vendor has clear title to the plane, even rf Doe
had promptly mailed the documents evidencing his ben to the FAA ior
recordation
412 OCTOBER TERM, 1982
Opinion of the Court 462 U g
tion, then §503(c) plainly would have required the recor
dation of every transfer Congress7 failure to adopt this def-
inition is not dispositive, however, since the statutory defini-
tion is expressly not applicable if "the context otherwise
requires " 49 U S C § 1301 (1976 ed and Supp V) Even
m the absence of such a caveat, we need not read the statu-
tory definition mechanically into § 503(c), since to do so would
render the recording system ineffective and thus would
defeat the purpose of the legislation A statutory definition
should not be applied in such a manner Lawson v Suwan
nee Fruit & S S Co , 336 U S 198, 201 (1949) Accord-
ingly, we hold that state laws allowing undocumented or
unrecorded transfers of interests in aircraft to affect innocent
third parties are pre-empted by the federal Act
In support of the judgment below, respondents rely on In
re Gary Aircraft Corp , 681 F 2d 365 (CAS 1982), which
rejected the contention that § 503 pre-empted all state laws
dealing with priority of interests in aircraft The Court of
Appeals held that the first person to record his interest with
the FAA is not assured of priority, which is determined by
reference to state law 6 We are inclined to agree with this
6 Gary Aircraft involved a contest between the holder of a security inter
est in two airplanes and a subsequent purchaser Although the security
interest holder recorded its interest in the planes prior to the time that the
purchaser did so, the Court of Appeals held in favor of the purchaser,
because Texas law governed priorities and, under Texas law, the pur
chaser was a buyer in the ordinary course of business who took free of the
security interest The security interest holder argued that Texas law was
pre-empted by § 503(d) of the Act, 49 U S C § 1403(d), which states that
all instruments recorded with the FAA shall be "valid" without further
recordahon, but the court found that 'Validity" did not mean "priority "
Instead, it only meant such "validity" as granted by state law Gary Air
craft ttos dealt with the question of the effect of recording under § 503(d),
tie present ease, which concerns the effect of nonrecording under
— *r — \*w&
In support ©fits decision, the Court of Appeals, 681 F 2d, at 510, cited
^OftK^T Gmbercd Electric Credit Corp , 582 F 2d 869 (CA4 1978), Sand
ersv M D Aircraft Sales, Inc , 575 F 2d 1086 (CA3 1978), State Secun
ties Co v Aviation Enterprises, Inc , 355 F 2d 225 (CA10 1966), Northern
PHILKO AVIATION, INC v SHACKET 413
4Qg Opinion of the Court
rationale, but it does not help the Shackets Although state
law determines priorities, all interests must be federally
recorded before they can obtain whatever priority to which
they are entitled under state law As one commentator has
explained "The only situation in which priority appears to
be determined by operation of the [federal] statute is where
the security holder has failed to record his interest Such
failure invalidates the conveyance as to innocent third per-
sons But recordation itself merely validates, it does not
grant priority " Scott, Liens in Aircraft Priorities, 25
J Air L & Commerce 193, 203 (1958) (footnote omitted)
Accord, Sigman, The Wild Blue Yonder Interests in Aircraft
under Our Federal System, 46 So Cal L Rev 316, 324-325
(1973) (although recordation does not establish priority, "fail-
ure to record serves to subordinate"), Note, 36 Wash &
Lee L Rev 205, 212-213 (1979) 7
Illinois Corp v Bishop Distributing Co , 284 F Supp 121 (WD Mich
1968), and Bitzer Croft Motors, Inc v Pioneer Bank & Trust Co , 82 111
App 3d 1, 401 N E 2d 1340 (1980) All of these cases involved facts simi-
lar to those of Gary Aircraft and are distinguishable on the same basis
7 Nothing m § 506 of the Act, 49 U S C § 1406, provides support for a
different conclusion This provision states
"The validity of any instrument the recording of which is provided for by
[§503] shall be governed by the laws of the State, District of Columbia, or
territory or possession of the United States in which such instrument is
delivered, irrespective of the location or the place of delivery of the prop-
erty which is the subject of such instrument "
Section 506 was passed in 1964 to rectify the "chaotic situation existing] in
the aircraft industry as a result of conflicting State rules relating to the
choice of law governing the validity of instruments for the transfer of inter
ests in tangible personal property " H R Rep No 1033, 88th Cong , 1st
Sess , 1 (1963) Although § 506 provided a uniform federal choice-of-law
rule for determining which State's laws govern the substantive validity of
an instrument, § 506 did not repeal § 503(c)'s requirement that the instru
ment must be recorded before it obtains whatever validity to which it is
entitled under the state law applicable pursuant to § 506 In enacting
§506, the Senate Committee Report observed that, under the §503 re-
gime, "to determine whether there are any encumbrances on [an] aircraft,
it is only necessary to consult the central file," and no disapproval of this
regime was expressed S Rep No 1060, 88th Cong , 2d Sess , 2 (1964)
414 OCTOBER TERM, 1982
Opinion of O'CONNOR, J 462 U S
In view of the foregoing, we find that the courts below
erred by granting the Shackets summary judgment on the
basis that if an unrecorded transfer of an aircraft is vahd
under state law, it has validity as against innocent third par
ties Of course, it is undisputed that the sale to the Shackets
was vahd and binding as between the parties Hence, if
Philko had actual notice of the transfer to the Shackets or if,
under state law, Philko failed to acquire or perfect the inter
est that it purports to assert for reasons wholly unrelated to
the sale to the Shackets,8 Philko would not have an enforce
able interest, and the Shackets would retain possession of the
aircraft Furthermore, we do not think that the federal law
imposes a standard with which it is impossible to comply
There may be situations in which the transferee has used rea-
sonable diligence to file and cannot be faulted for the failure
of the crucial documents to be of record 9 But because of the
manner in which this case was dispose^ of on summary judg-
ment, matters such as these were not considered, and these
issues remain open on remand The judgment of the Court
of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion
So ordered
JUSTICE O'CONNOR, concurring in part and concurring in
the judgment
I join the opinion of the Court except to the extent that
it might be read to suggest this Court's endorsement of
8 For example, if the instrument evidencing the transfer of the aircraft
from Smith's corporation to Philko failed to comply with formal requisites
of Itoioislaw, then Philko might have no enforceable interest at all in the
plaice, m which case the Shackets would retain possession This does not
mean, of course, that Philko can be deemed to have no interest in the plane
on the ground that, due to the sale to the Shackets, under Illinois law
Smith had no interest to transfer to Philko
*See, e g , State Securities* Co v Aviation Enterprises, Inc , supra, at
228 (buyer mailed its bi» of sale to the FAA for recordation, but the F AA
refused to record it) There is no indication in the record now before us
that the Shackets made a prompt attempt to record
PHILKO AVIATION, INC. u SHACKET 415
Opinion of O'CONNOR, J.
406 v
u -aw that one who makes a reasonably diligent effort to
the ^Ifobtain the protections ordinarily reserved for re-
reTPd Merest I would express no opinion on that ques-
± fort is noi ^before us and has not been addressed m brief
or in argument or, indeed, in the statute.
416 OCTOBER TERM, 1982
Syllabus 462 U S
CITY OF AKRON v AKRON CENTER FOR
REPRODUCTIVE HEALTH, INC , ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No 81-746 Argued November 30, 1982— Decided June 15, 1983*
An Akron, Ohio, ordinance, inter aha, (1) requires all abortions performed
after the first trimester of pregnancy to be performed in a hospital
(§ 1870 03), (2) prohibits a physician from performing an abortion on an
unmarried minor under the age of 15 unless he obtains the consent of one
of her parents or unless the minor obtains an order from a court having
jurisdiction over her that the abortion be performed (§ 1870 05(B)), (3)
requires that the attending physician inform his patient of the status of
her pregnancy, the development of her fetus, the date of possible viabil
ity, the physical and emotional complications that may result from an
abortion, and the availability of agencies to provide her with assistance
and information with respect to birth control, adoption, and childbirth
(§ 1870 06(B)), and also inform her of the particular risks associated with
her pregnancy and the abortion technique to be employed (§ 1870 06(C)),
(4) prohibits a physician from performing an abortion until 24 hours after
the pregnant woman signs a consent form (§ 1870 07), and (5) requires
physicians performing abortions to ensure that fetal remains are dis
posed of in a "humane and sanitary manner" (§ 1870 16) A violation of
the ordinance is punishable as a misdemeanor Respondents and cross
petitioners filed an action in Federal District Court against petitioners
and cross respondents, challenging the ordinance The District Court
invalidated §§ 1870 05(B), 1870 06(B), and 1870 16, but upheld §§ 1870 03,
1870 06(C), and 1870 07 The Court of Appeals affirmed as to §§ 1870
03, 1870 05(0), 1870 06(8), and 1870 16, but reversed as to §§ 1870 06(C)
and 1870 07
Held
1 Section 1870 03 is unconstitutional Pp 431-439
(a) While a State's interest in health regulation becomes compelling
at approximately the end of the first trimester, the State's regulation
may be upheld only if it is reasonably designed to further that interest
If during a substantial portion of the second trimester the State's regula
*Together with No 81-1172, Akron Center for Reproductive Health,
Inc , et al v City of Akron et al , also on certioran to the same court
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 417
416 Syllabus
tion departs from accepted medical practice, it may not be upheld simply
because it may be reasonable for the remaining portion of the trimester
Rather, the State is obligated to make a reasonable effort to limit the
effect of its regulations to the period in the trimester during which its
health interest may be furthered Pp 433-434
(b) It cannot be said that the lines drawn in § 1870 03 are reason
able By preventing the performance of dilatation-and-evacuation abor-
tions in an appropriate nonhospital setting, Akron has imposed a heavy
and unnecessary burden on women's access to a relatively inexpensive,
otherwise accessible, and safe abortion procedure Section 1870 03 has
the effect of inhibiting the vast majority of abortions after the first tri-
mester and therefore unreasonably infringes upon a woman's constitu-
tional right to obtain an abortion Pp 434-439
2 Section 1870 05(B) is unconstitutional as making a blanket deter-
mination that all minors under the age of 15 are too immature to make an
abortion decision or that an abortion never may be in the minor's best
interests without parental approval Under circumstances where the
Ohio statute governing juvenile proceedings does not mention minors'
abortions nor suggest that the Ohio Juvenile Court has authority to in-
quire into a minor's maturity or emancipation, § 1870 05(B), as applied in
juvenile proceedings, is not reasonably susceptible of being construed to
create an opportunity for case-by-case evaluations of the maturity of
pregnant minors Pp 439-442
3 Sections 1870 06(B) and 1870 06(C) are unconstitutional Pp 442-
449
(a) The validity of an informed consent requirement rests on the
State's interest in protecting the pregnant woman's health But this
does not mean that a State has unreviewable authority to decide what
information a woman must be given before she chooses to have an
abortion A State may not adopt regulations designed to influence the
woman's informed choice between abortion or childbirth Pp 442-444
(b) Section 1870 06(B) attempts to extend the State's interest in en-
suring "informed consent" beyond permissible limits, and intrudes upon
the discretion of the pregnant woman's physician While a State may
require a physician to make certain that his patient understands the
physical and emotional implications of having an abortion, § 1870 06(B)
goes far beyond merely describing the general subject matter relevant to
informed consent By insisting upon recitation of a lengthy and inflex-
ible list of information, the section unreasonably has placed obstacles in
the path of the physician Pp 444-445
(c) With respect to § 1870 06(C)'s requirement that the "attending
physician" must inform the woman of the specified information, it is
unreasonable for a State to insist that only a physician is competent to
418 OCTOBER TERM, 1982
Syllabus 462 u S
provide the information and counseling relevant to informed consent
Pp 446-449
4 Section 1870 07 is unconstitutional Akron has failed to demon
strate that any legitimate state interest is furthered by an arbitrary and
inflexible waiting period There is no evidence that the abortion proce
dure will be performed more safely Nor does it appear that the State's
legitimate concern that the woman's decision be informed is reasonably
served by requiring a 24-hour delay as a matter of course Pp 449-451
5 Section 1870 16 violates the Due Process Clause by failing to
give a physician fair notice that his contemplated conduct is forbidden
Pp 451-452
651 F 2d 1198, affirmed in part and reversed in part
POWELL, J , delivered the opinion of the Court, in which BURGER, C J ,
and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ , joined
O'CONNOR, J , filed a dissenting opinion, in which WHITE and REHNQUIST,
JJ , joined, post, p 452
Alan G Segedy argued the cause for petitioner in No 81-
746 and respondent in No 81-1172 With him on the briefs
wasJRo&er£D Pntt Mr Segedy and Robert A Destro filed
a brief for Segum et al , respondents under this Court's Rule
19 6, in support of petitioner in No 81-746 and respondent in
No 81-1172
Solicitor General Lee argued the cause for the United
States as amicus curiae With him on the brief were Assist
ant Attorney General McGrath and Deputy Solicitor General
Geller
Stephan Landsman argued the cause for respondents in
No 81-746 and petitioners in No 81-1172 With him on the
briefs were Janet Benshoof, Suzanne M Lynn, Nan D
Hunter, Lois J Lipton, and Gordon Beggs t
t Briefs of anuci curiae urging reversal were filed by Delores V Horan
for Feminists for Life, and by Lynn D Wardle for the United Families
Foundation et al
Bnefe of amid dvnae urging affirmance were filed by Bruce J En
ni89 Jr , and Donald N Ber&qfffor the American Psychological Association,
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 419
416 Opinion of the Court
JUSTICE POWELL delivered the opinion of the Court
In this litigation we must decide the constitutionality of
several provisions of an ordinance enacted by the city of
Akron, Ohio, to regulate the performance of abortions
Today we also review abortion regulations enacted by the
State of Missouri, see Planned Parenthood Assn of Kansas
City, Mo , Inc v Ashcroft, post, p 476, and by the State of
Virginia, see Simopoulos v Virginia, post, p 506
These cases come to us a decade after we held in Roe v
Wade, 410 U S 113 (1973), that the right of privacy,
grounded in the concept of personal liberty guaranteed by
the Constitution, encompasses a woman's right to decide
whether to terminate her pregnancy Legislative responses
to the Court's decision have required us on several occasions,
and again today, to define the limits of a State's authority to
regulate the performance of abortions And arguments con-
tinue to be made, in these cases as well, that we erred in
interpreting the Constitution Nonetheless, the doctrine of
and by Sylvia A Law, Nadme Taub, and Ellen J Winner for the Commit
tee for Abortion Rights and Against Sterilization Abuse et al
Briefs of amici curiae were filed by M Carolyn Cox and Lynn Bregman
for the American College of Obstetricians and Gynecologists et al , by
David B Hopkins for the American Public Health Association, by Dennis
J Horan, Victor G Rosenblum, Patrick A Trueman, and Thomas J
Marzen for Americans United for Life, for California Women Lawyers et
al , by Charles E Rice for the Catholic League for Religious and Civil
Rights, by Rhonda Copelon for Certain Religious Organizations, by Jack
R Bierig for the College of American Pathologists, by Ronald J Suster for
Lawyers for Life, by Alan Ernest for the Legal Defense Fund for Unborn
Children, by Judith Levin for the National Abortion Federation, by Jack
Greenberg, James M Nabrit ///, and Judith Reed for the NAACP Legal
Defense and Educational Fund, Inc , by Phyllis N Segal, Judith I Avner,
and Jemera Rone for the National Organization for Women et al , by Eve
W Paul and Dara Klassel for the Planned Parenthood Federation of
America, Inc , et al , by James Arthur Gleason for Womankind, Inc , by
Nancy Reardan for Women Lawyers of Sacramento et al, and by Susan
Frehch Appleton and Paul Brest for Certain Law Professors
420 OCTOBER TERM, 1982
Opinion of the Court 462 U g
stare decisis, while perhaps never entirely persuasive on a
constitutional question, is a doctrine that demands respect in
a society governed by the rule of law 1 We respect it today,
and reaffirm Roe v Wade
1 There are especially compelling reasons for adhering to stare decisis in
applying the principles of Roe v Wade That case was considered with
special care It was first argued during the 1971 Term, and reargued—
with extensive briefing — the following Term The decision was joined by
THE CHIEF JUSTICE and six other Justices Since Roe was decided in Jan
uary 1973, the Court repeatedly and consistently has accepted and applied
the basic principle that a woman has a fundamental right to make the
highly personal choice whether or not to terminate her pregnancy See
Connecticut v Menillo, 423 U S 9 (1975), Planned Parenthood of Central
Missouri v Danforth, 428 U S 52 (1976), Bellotti v Baird, 428 U S 132
(1976), Beal v Doe, 432 U S 438 (1977), Maker v Roe, 432 U S 464
(1977), Colautti v Franklin, 439 U S 379 (1979), Bellotti v Baird,
443 U S 622 (1979), Hams v McRae, 448 U S 297 (1980), H L v
Matheson, 450 U S 398 (1981)
Today, however, the dissenting opinion rejects the basic premise of Roe
and its progeny The dissent stops short of arguing flatly that Roe should
be overruled Rather, it adopts reasoning that, for all practical purposes,
would accomplish precisely that result The dissent states that "[e]ven as
summg that there is a fundamental right to terminate pregnancy in some
situations," the State's compelling interests in maternal health and poten
tial human life "are present throughout pregnancy " Post, at 459 (emphasis
in original) The existence of these compelling interests turns out to be
largely unnecessary, however, for the dissent does not think that even one
of the numerous abortion regulations at issue imposes a sufficient burden
on the 'limited" fundamental right, post, at 465, n 10, to require heightened
scrutiny Indeed, the dissent asserts that, regardless of cost, "[a] health
regulation, such as the hospitahzation requirement, simply does not rise to
the level of 'official interference' with the abortion decision " Post, at 467
(quoting Hams v McRae, supra, at 328 (WHITE, J , concurring)) The
dissent therefore would hold that a requirement that all abortions be per-
formed in an acute-care, general hospital does not impose an unacceptable
burden on the abortion decision It requires no great familiarity with the
cost and limited availability of such hospitals to appreciate that the effect of
the dissenf s views would be to drive the performance of many abortions
back underground free of effective regulation and often without the attend
ance of a physician
In sum, it appears that the dissent would uphold virtually any abortion
regulation under a rational-basis test It also appears that even where
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 421
41g Opinion of the Court
I
In February 1978 the City Council of Akron enacted Ordi-
nance No 160-1978, entitled "Regulation of Abortions "2
heightened scrutiny is deemed appropriate, the dissent would uphold virtu-
ally any abortion-inhibiting regulation because of the State's interest in
preserving potential human life See post, at 474 (arguing that a 24-hour
waiting period is justified in part because the abortion decision "has grave
consequences for the fetus") This analysis is wholly incompatible with
the existence of the fundamental right recognized in Roe v Wade
2 The ordinance was prefaced by several findings
'WHEREAS, the citizens of Akron are entitled to the highest standard
of health care, and
'WHEREAS, abortion is a major surgical procedure which can result in
complications, and adequate equipment and personnel should be required
for its safe performance in order to insure the highest standards of care for
the protection of the life and health of the pregnant woman, and
'WHEREAS, abortion should be performed only in a hospital or in such
other special outpatient facility offering the maximum safeguards to the
life and health of the pregnant woman, and
'WHEREAS, it is the finding of Council that there is no point in time
between the union of sperm and egg, or at least the blastocyst stage and
the birth of the infant at which point we can say the unborn child is not a
human life, and that the changes occurring between implantation, a six
weeks embryo, a six month fetus, and a one-week-old child, or a mature
adult are merely stages of development and maturation, and
"WHEREAS, traditionally the physician has been responsible for the
welfare of both the pregnant woman and her unborn child, and that while
situations of conflict may arise between a pregnant woman's health inter
ests and the welfare of her unborn child, the resolution of such conflicts by
inducing abortion in no way implies that the physician has an adversary
relationship towards the unborn child, and
'WHEREAS, Council therefore wishes to affirm that the destruction of
the unborn child is not the primary purpose of abortion and that conse-
quently Council recognizes a continuing obligation on the part of the physi-
cian towards the survival of a viable unborn child where this obligation
can be discharged without additional hazard to the health of the pregnant
woman, and
"WHEREAS, Council, after extensive public hearings and investiga-
tions concludes that enactment of this ordinance is a reasonable and pru-
dent action which will significantly contribute to the preservation of
the public life, health, safety, morals, and welfare " Akron Ordinance
Nn lfiO-1978
422 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The ordinance sets forth 17 provisions that regulate the
performance of abortions, see Akron Codified Ordinances,
ch 1870, 5 of which are at issue in this case
(i) Section 1870 03 requires that all abortions performed
after the first trimester of pregnancy be performed in a
hospital 3
(n) Section 1870 05 sets forth requirements for notification
of and consent by parents before abortions may be performed
on unmarried minors 4
3 "1870 03 ABORTION IN HOSPITAL
"No person shall perform or induce an abortion upon a pregnant woman
subsequent to the end of the first trimester of her pregnancy, unless such
abortion is performed in a hospital "
Section 1870 01(B) defines "hospital" as "a general hospital or special
hospital devoted to gynecology or obstetrics which is accredited by the
Joint Commission on Accreditation of Hospitals or by the American Osteo
pathic Association "
4 "1870 05 NOTICE AND CONSENT
"(A) No physician shall perform or induce an abortion upon an unmar
ried pregnant woman under the age of 18 years without first having given
at least twenty four (24) hours actual notice to one of the parents or the
legal guardian of the minor pregnant woman as to the intention to perform
such abortion, or if such parent or guardian cannot be reached after a
reasonable effort to find him or her, without first having given at least
seventy-two (72) hours constructive notice to one of the parents or the
legal guardian of the minor pregnant woman by certified mail to the last
known address of one of the parents or guardian, computed from the time
of mailing, unless the abortion is ordered by a court having jurisdiction
over such minor pregnant woman
"(B) No physician shall perform or induce an abortion upon a minor
pregnant woman under the age of fifteen (15) years without first having
obtained the informed written consent of the minor pregnant woman in
accordance with Section 1870 06 of this Chapter, and
"(1) First having obtained the informed written consent of one of her
parents or her legal guardian in accordance with Section 1870 06 of this
Chapter, or
"(2) The minor pregnant woman first having obtained an order from a
court having jurisdiction over her that the abortion be performed or
induced "
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 423
4^0 Opinion of the Court
(m) Section 1870 06 requires that the attending physician
make certain specified statements to the patient "to insure
that the consent for an abortion is truly informed consent " 5
5 "1870 06 INFORMED CONSENT
"(A) An abortion otherwise permitted by law shall be performed or in
duced only with the informed written consent of the pregnant woman, and
one of her parents or her legal guardian whose consent is required in ac-
cordance with Section 1870 05(B) of this Chapter, given freely and without
coercion
"(B) In order to insure that the consent for an abortion is truly informed
consent, an abortion shall be performed or induced upon a pregnant woman
only after she, and one of her parents or her legal guardian whose consent
is required in accordance with Section 1870 05(B) of this Chapter, have
been orally informed by her attending physician of the following facts, and
have signed a consent form acknowledging that she, and the parent or legal
guardian where applicable, have been informed as follows
"(1) That according to the best judgment of her attending physician she
is pregnant
"(2) The number of weeks elapsed from the probable time of the concep-
tion of her unborn child, based upon the information provided by her as to
the time of her last menstrual period or after a history and physical exami-
nation and appropriate laboratory tests
"(3) That the unborn child is a human life from the moment of conception
and that there has been described in detail the anatomical and physiological
characteristics of the particular unborn child at the gestational point of
development at which time the abortion is to be performed, including, but
not limited to, appearance, mobility, tactile sensitivity, including pain, per-
ception or response, brain and heart function, the presence of internal or-
gans and the presence of external members
"(4) That her unborn child may be viable, and thus capable of surviving
outside of her womb, if more than twenty two (22) weeks have elapsed
from the time of conception, and that her attending physician has a legal
obligation to take all reasonable steps to preserve the life and health of her
viable unborn child during the abortion
"(5) That abortion is a major surgical procedure which can result in sen
ous complications, including hemorrhage, perforated uterus, infection,
menstrual disturbances, sterility and miscarriage and prematurity in sub
sequent pregnancies, and that abortion may leave essentially unaffected or
may worsen any existing psychological problems she may have, and can re-
sult in severe emotional disturbances
[Footnote 5 is continued on p 4,24]
424 OCTOBER TERM, 1982
Opinion of the Court 462 u g
(iv) Section 1870 07 requires a 24-hour waiting period be
tween the time the woman signs a consent form and the time
the abortion is performed 6
(v) Section 1870 16 requires that fetal remains be "dis
posed of in a humane and sanitary manner " 7
"(6) That numerous public and private agencies and services are avail
able to provide her with birth control information, and that her physician
will provide her with a list of such agencies and the services available if she
so requests
"(7) That numerous public and private agencies and services are avail
able to assist her during pregnancy and after the birth of her child, if she
chooses not to have the abortion, whether she wishes to keep her child or
place him or her for adoption, and that her physician will provide her with a
list of such agencies and the services available if she so requests
"(C) At the same time the attending physician provides the information
required by paragraph (B) of this Section, he shall, at least orally, inform
the pregnant woman, and one of her parents or her legal guardian whose
consent is required in accordance with Section 1870 05(B) of this Chapter,
of the particular risks associated with her own pregnancy and the abortion
technique to be employed including providing her with at least a general
description of the medical instructions to be followed subsequent to the
abortion in order to insure her safe recovery, and shall in addition provide
her with such other information which in his own medical judgment is rele
vant to her decision as to whether to have an abortion or carry her preg
nancy to term
"(D) The attending physician performing or inducing the abortion shall
provide the pregnant woman, or one of her parents or legal guardian sign
ing the consent form where applicable, with a duplicate copy of the consent
form signed by her, and one of her parents or her legal guardian where
applicable, in accordance with paragraph (B) of this Section "
^"1870 07 WAITING PERIOD
"No physician shall perform or induce an abortion upon a pregnant
woman until twenty four (24) hours have elapsed from the time the preg
nant woman, and one of her parents or her legal guardian whose consent is
required in accordance with Section 1870 05(B) of this Chapter, have
signed the consent form required by Section 1870 06 of this Chapter, and
the physician- so certifies in writing that such time has elapsed "
^"187016 DISPOSAL OF REMAINS
"Any physician who shall perform or induce an abortion upon a pregnant
woman shall insure that the remains of the unborn child are disposed of in a
humane and sanitary manner "
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 425
416 Opinion of the Court
A violation of any section of the ordinance is punishable as
a criminal misdemeanor § 1870 18 If any provision is in-
validated, it is to be severed from the remainder of the ordi-
nance 8 The ordinance became effective on May 1, 1978
On April 19, 1978, a lawsuit challenging virtually all of the
ordinance's provisions was filed in the District Court for the
Northern District of Ohio The plaintiffs, respondents and
cross-petitioners in this Court, were three corporations that
operate abortion clinics in Akron and a physician who has
performed abortions at one of the clinics The defendants,
petitioners and cross-respondents here, were the city of
Akron and three city officials (Akron) Two individuals (m-
tervenors) were permitted to intervene as codefendants "in
their individual capacity as parents of unmarried minor
daughters of childbearing age " 479 F Supp 1172, 1181
(1979) On April 27, 1978, the District Court preliminarily
enjoined enforcement of the ordinance
In August 1979, after hearing evidence, the District Court
ruled on the merits It found that plaintiffs lacked standing
to challenge seven provisions of the ordinance, none of which
is before this Court The District Court invalidated four
provisions, including § 1870 05 (parental notice and consent),
§ 1870 06(B) (requiring disclosure of facts concerning the
woman's pregnancy, fetal development, the complications of
abortion, and agencies available to assist the woman), and
§ 1870 16 (disposal of fetal remains) The court upheld the
constitutionality of the remainder of the ordinance, including
§ 1870 03 (hospitahzation for abortions after the first trimes-
ter), § 1870 06(C) (requiring disclosure of the particular risks
of the woman's pregnancy and the abortion technique to be
employed), and § 1870 07 (24-hour waiting period)
8 "1870 19 SEVERABILITY
"Should any provision of this Chapter be construed by any court of law to
be invalid, illegal, unconstitutional, or otherwise unenforcible, such invalid-
ity, illegality, unconstitutionally, or unenforcibihty shall not extend to any
other provision or provisions of this Chapter "
426 OCTOBER TERM, 1982
Opinion of the Court 452 u S
All parties appealed some portion of the District Court's
judgment The Court of Appeals for the Sixth Circuit af
firmed in part and reversed in part 651 F 2d 1198 (1981)
It affirmed the District Court's decision that § 1870 03's hos
pitalization requirement is constitutional It also affirmed
the ruling that §§ 1870 05, 1870 06(B), and 1870 16 are un
constitutional The Court of Appeals reversed the District
Court's decision on §§ 1870 06(0) and 1870 07, finding these
provisions to be unconstitutional
Three separate petitions for certioran were filed In light
of the importance of the issues presented, and in particular
the conflicting decisions as to whether a State may require
that all second-trimester abortions be performed m a hospi-
tal,9 we granted both Akron's and the plaintiffs' petitions
456 U S 988 (1982) We denied the mtervenors' petition,
Segmn v Akron Center for Reproductive Health, Inc , 456
U S 989 (1982), but they have participated in this Court as
respondents under our Rule 19 6 We now reverse the judg
ment of the Court of Appeals upholding Akron's hospitahza-
tion requirement, but affirm the remainder of the decision
invalidating the provisions on parental consent, informed
consent, waiting period, and disposal of fetal remains
II
In Roe v Wade, the Court held that the "right of privacy,
founded in the Fourteenth Amendment's concept of per-
sonal liberty and restrictions upon state action, is broad
enough to encompass a woman's decision whether or not
to terminate her pregnancy " 410 U S , at 153 Although
the Constitution does not specifically identify this right, the
* Compare Planned Parenthood Assn of Kansas City, Mo , Inc v Ash
cmft, 655 F 2<j 848 (CAS), supplemented, 664 F 2d 687 (CAS 1981) (mvali
dating hospital requirement), with Simopoulos v Commonwealth, 221 Va
W59, 277 S E 2d 194 (1981) (upholding hospital requirement) Numerous
States require that second-trimester abortions be performed in hospitals
See Bnef for Americans United for Life as Amicus Curme in Simopoulos
v Vvrgima, 0 T 1982, No 81-185, p 4, n 1 (listing 23 States)
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 427
416 Opinion of the Court
history of this Court's constitutional adjudication leaves no
doubt that "the full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or limited by the pre-
cise terms of the specific guarantees elsewhere provided m
the Constitution " Poe v Ullman, 367 U S 497, 543 (1961)
(Harlan, J , dissenting from dismissal of appeal) Central
among these protected liberties is an individual's "freedom
of personal choice in matters of marriage and family life "
Roe, 410 U S , at 169 (Stewart, J , concurring) See, e g ,
Eisenstadt v Baird, 405 U S 438 (1972), Loving v Vir-
ginia, 388 U S 1 (1967), Griswold v Connecticut, 381 U S
479 (1965), Pierce v Society of Sisters, 268 U S 510 (1925),
Meyer v Nebraska, 262 U S 390 (1923) The decision in
Roe was based firmly on this long-recognized and essential
element of personal liberty
The Court also has recognized, because abortion is a medi-
cal procedure, that the full vindication of the woman's funda-
mental right necessarily requires that her physician be given
"the room he needs to make his best medical judgment "
Doe v Bolton, 410 U S 179, 192 (1973) See Whalen v
Roe, 429 U S 589, 604-605, n 33 (1977) The physician's
exercise of this medical judgment encompasses both assisting
the woman in the decisionmaking process and implementing
her decision should she choose abortion See Colautti v
Franklin, 439 U S 379, 387 (1979)
At the same time, the Court in Roe acknowledged that the
woman's fundamental right "is not unqualified and must be
considered against important state interests in abortion "
Roe, 410 U S , at 154 But restrictive state regulation of
the right to choose abortion, as with other fundamental
rights subject to searching judicial examination, must be
supported by a compelling state interest Id , at 155 We
have recognized two such interests that may justify state
regulation of abortions 10
10 In addition, the Court repeatedly has recognized that, in view of the
unique status of children under the law, the States have a "significant" in-
428 OCTOBER TERM, 1982
Opinion of the Court 462 U S
First, a State has an "important and legitimate interest in
protecting the potentiality of human life " Id , at 162
Although this interest exists "throughout the course of the
woman's pregnancy," Seal v Doe, 432 U S 438, 446 (1977),
it becomes compelling only at viability, the point at which
the fetus "has the capability of meaningful life outside the
mother's womb," Roe, supra, at 163 See Planned Parent
hood of Central Missouri v Danforth, 428 U S 52, 63-65
(1976) At viability this interest in protecting the potential
life of the unborn child is so important that the State may
proscribe abortions altogether, "except when it is necessary
to preserve the life or health of the mother " Roe, 410
U S, at 164
Second, because a State has a legitimate concern with the
health of women who undergo abortions, "a State may prop-
erly assert important interests in safeguarding health [and]
terest in certain abortion regulations aimed at protecting children "that is
not present in the case of an adult " Planned Parenthood of Central Mis
soun v Danforth, 428 U S , at 75 See Carey v Population Services In
temational, 431 U S 678, 693, n 15 (1977) (plurality opinion) The right
of privacy includes "independence in making certain kinds of important de-
cisions," Whalen v Roe, 429 U S 589, 599-600 (1977), but this Court has
recognized that many minors are less capable than adults of making such
important decisions See Bellotti v Baird, 443 U S , at 633-635 (Bellotti
II) (plurality opinion), Danforth, supra, at 102 (STEVENS, J , concurring in
part and dissenting in part) Accordingly, we have held that the States
have a legitimate interest in encouraging parental involvement in their
minsor children's decision to have an abortion See H L v Matheson, 450
U S 398 (1981) (parental notice), Bellotti II, supra, at 639, 648 (plurality
opinion) (parental consent) A majority of the Court, however, has mdi
cated that these state and parental interests must give way to the constitu
tional right of a mature minor or of an immature minor whose best inter
ests are contrary to parental involvement See, e g , Matheson, 450
U S , at 420 (POWELL, J , concurring), id , at 450-451 (MARSHALL, J , dis-
senting) The plurality in Bellotti II concluded that a State choosing to
encourage parental involvement must provide an alternative procedure
throigh which a minor may demonstrate that she is mature enough to
make her own decision or that the abortion is in her best interest See
II, wpm, at 643-644
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 429
416 Opinion of the Court
in maintaining medical standards " Id , at 154 We held in
Roe, however, that this health interest does not become com-
pelling until "approximately the end of the first trimester"
of pregnancy u Id , at 163 Until that time, a pregnant
woman must be permitted, in consultation with her physi-
11 Roe identified the end of the first trimester as the compelling point
because until that time — according to the medical literature available in
1973 — "mortality in abortion may be less than mortality in normal child-
birth " 410 U S , at 163 There is substantial evidence that develop-
ments in the past decade, particularly the development of a much safer
method for performing second-trimester abortions, see infra, at 435-437,
have extended the period in which abortions are safer than childbirth
See, e g , LeBolt, Grimes, & Gates, Mortality From Abortion and Child-
birth Are the Populations Comparable?, 248 J A M A 188, 191 (1982)
(abortion may be safer than childbirth up to gestational ages of 16 weeks)
We think it prudent, however, to retain Rotfs identification of the begin-
ning of the second trimester as the approximate time at which the State's
interest in maternal health becomes sufficiently compelling to justify sig-
nificant regulation of abortion We note that the medical evidence sug-
gests that until approximately the end of the first trimester, the State's
interest in maternal health would not be served by regulations that restrict
the manner in which abortions are performed by a licensed physician
See, e g , American College of Obstetricians and Gynecologists (AGOG),
Standards for Obstetric-Gynecologic Services 54 (5th ed 1982) (hereinafter
AGOG Standards) (uncomplicated abortions generally may be performed in
a physician's office or an outpatient clinic up to 14 weeks from the first day
of the last menstrual period), AGOG Technical Bulletin No 56, Methods of
Mid-Trimester Abortion 4 (Dec 1979) ("Regardless of advances in abortion
technology, midtrimester terminations will likely remain more hazardous,
expensive, and emotionally disturbing for women than earlier abortions")
The Roe trimester standard thus continues to provide a reasonable legal
framework for limiting a State's authority to regulate abortions Where
the State adopts a health regulation governing the performance of abor-
tions during the second trimester, the determinative question should be
whether there is a reasonable medical basis for the regulation See Roe,
410 U S , at 163 The comparison between abortion and childbirth
mortality rates may be relevant only where the State employs a health ra-
tionale as a justification for a complete prohibition on abortions in certain
circumstances See Danforth, supra, at 78-79 (invalidating state ban on
saline abortions, a method that was "safer, with respect to maternal mor-
tality, than even continuation of the pregnancy until normal childbirth")
430 OCTOBER TERM, 1982
Opinion of the Court 462 U S
cian, to decide to have an abortion and to effectuate that deci-
sion "free of interference by the State " 12 Ibid
This does not mean that a State never may enact a regula-
tion touching on the woman's abortion right during the first
weeks of pregnancy Certain regulations that have no sig-
nificant impact on the woman's exercise of her right may be
permissible where justified by important state health objec-
tives In Danforth, supra, we unanimously upheld two Mis-
souri statutory provisions, applicable to the first trimester,
requiring the woman to provide her informed written consent
to the abortion and the physician to keep certain records,
even though comparable requirements were not imposed on
most other medical procedures See 428 U S , at 65-67,
79-81 The decisive factor was that the State met its burden
of demonstrating that these regulations furthered important
health-related state concerns 13 But even these minor regu-
lations on the abortion procedure during the first trimester
may not interfere with physician-patient consultation or with
the woman's choice between abortion and childbirth See
id , at 81
From approximately the end of the first trimester of preg-
nancy, the State "may regulate the abortion procedure to the
extent that the regulation reasonably relates to the preserva-
12 Of course, the State retains an interest in ensuring the validity of
Roe's factual assumption that 'the first trimester abortion [is] as safe for
the woman as normal childbirth at term," an assumption that "holds true
only if the abortion is performed by medically competent personnel
under conditions insuring maximum safety for the woman " Connecticut
v Menillo, 423 U S 9, 11 (1975) (per curiam) On this basis, for exam
pie, it is permissible for the States to impose criminal sanctions on the
performance of an abortion by a nonphysician Ibid
13 For example, we concluded that recordkeepmg, "if not abused or over
done, can be useful to the State's interest in protecting the health of its
feiaale citizens, and may be a resource that is relevant to decisions involv
nig medaeal experience and judgment " 428 U S , at 81 See infra, at
(discussing the State's interest in requiring informed consent)
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 431
416 Opinion of the Court
tion and protection of maternal health " 14 Roe, 410 U S , at
163 The State's discretion to regulate on this basis does
not, however, permit it to adopt abortion regulations that
depart from accepted medical practice We have rejected a
State's attempt to ban a particular second-trimester abortion
procedure, where the ban would have increased the costs and
limited the availability of abortions without promoting impor-
tant health benefits See Danforth, 428 U S , at 77-78 If
a State requires licensing or undertakes to regulate the per-
formance of abortions during this period, the health stand-
ards adopted must be "legitimately related to the objective
the State seeks to accomplish " Doe, 410 U S , at 195
III
Section 1870 03 of the Akron ordinance requires that any
abortion performed "upon a pregnant woman subsequent to
the end of the first trimester of her pregnancy" 15 must be
14 "Examples of permissible state regulation in this area are requirements
as to the qualifications of the person who is to perform the abortion, as to
the hcensure of that person, as to the facility in which the procedure is to
be performed, that is, whether it must be a hospital or may be a clinic or
some other place of less-than-hospital status, as to the licensing of the facil-
ity, and the like " Roe, supra, at 163-164
15 The Akron ordinance does not define "first trimester," but elsewhere
suggests that the age of the fetus should be measured from the date of con-
ception See § 1870 06(B)(2) (physician must inform woman of the number
of weeks elapsed since conception), § 1870 06(B)(4) (physician must inform
woman that a fetus may be viable after 22 weeks from conception) An
average pregnancy lasts approximately 38 weeks from the time of concep-
tion or, as more commonly measured, 40 weeks from the beginning of the
woman's last menstrual period Under both methods there may be more
than a 2-week deviation either way
Because of the approximate nature of these measurements, there is no
certain method of delineating 'trimesters " Frequently, the first trimes-
ter is estimated as 12 weeks following conception, or 14 weeks following
the last menstrual period We need not attempt to draw a precise line, as
this Court — for purposes of analysis — has identified the "compelling point"
for the State's interest in health as "approximately the end of the first tn-
432 OCTOBER TERM, 1982
Opinion of the Court 462 U S
"performed in a hospital " A. "hospital" is "a general hospital
or special hospital devoted LO gynecology or obstetrics which
is accredited by the Joint Commission on Accreditation of
Hospitals or by the American Osteopathic Association "
§ 1870 01(B) Accreditation by these organizations requires
compliance with comprehensive standards governing a wide
variety of health and surgical services 16 The ordinance thus
prevents the performance of abortions in outpatient facilities
that are not part of an acute-care, full-service hospital 1T
In the District Court plaintiffs sought to demonstrate that
this hospitahzation requirement has a serious detrimental
impact on a woman's ability to obtain a second-trimester
abortion in Akron and that it is not reasonably related to the
State's interest in the health of the pregnant woman The
District Court did not reject this argument, but rather found
the evidence "not so convincing that it is willing to
discard the Supreme Court's formulation in Roe9' of a line
between impermissible first-trimester regulation and permis-
sible second-trimester regulation 479 F Supp , at 1215
The Court of Appeals affirmed on a similar basis It ac-
cepted plaintiffs' argument that Akron's hospitahzation re-
quirement did not have a reasonable health justification dur-
ing at least part of the second trimester, but declined to
"retreat from the 'bright line' in Roe v Wade " 651 F 2d, at
mester " Roe, 410 U S , at 163 Unless otherwise indicated, all refer
ences in this opinion to gestational age are based on the time from the
beginning of the last menstrual period
16 The Joint Commission on Accreditation of Hospitals (JCAH), for exam
pie, has established guidelines for the following services dietetic, emer
gency, home care, nuclear medicine, pharmaceutical, professional library,
rehabilitation, social work, and special care See generally JCAH, Ac
ereditation Manual for Hospitals, 1983 Edition (1982)
17 Akron's ordinance distinguishes between "hospitals" and outpatient
ehmcs Section 1870 02 provides that even first-trimester abortions must
be performed in "a hospital or an abortion facility " "Abortion facility" is
defined as "a chmc, physician's office, or any other place or facility in which
abortions are performed, other than a hospital " § 1870 01(G)
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 433
416 Opinion of the Court
1210 18 We believe that the courts below misinterpreted this
Court's prior decisions, and we now hold that § 1870 03 is
unconstitutional
A
In Roe v Wade the Court held that after the end of the
first trimester of pregnancy the State's interest becomes
compelling, and it may "regulate the abortion procedure to
the extent that the regulation reasonably relates to the pres-
ervation and protection of maternal health " 410 U S , at
163 We noted, for example, that States could establish re-
quirements relating "to the facility in which the procedure is
to be performed, that is, whether it must be in a hospital or
may be a clinic or some other place of less-than-hospital sta-
tus " Ibid In the companion case of Doe v Bolton the
Court invalidated a Georgia requirement that all abortions be
performed in a hospital licensed by the State Board of Health
and accredited by the Joint Commission on Accreditation of
Hospitals See 410 U S , at 201 We recognized the
State's legitimate health interests in establishing, for second-
trimester abortions, "standards for licensing all facilities
where abortions may be performed " Id , at 195 We
found, however, that "the State must show more than [was
shown in Doe} in order to prove that only the full resources of
18 The Court of Appeals believed that it was bound by Gary -Northwest
Indiana Women's Services, Inc v Bowen, 496 F Supp 894 (ND Ind
1980) (three-judge court), summarily aff d sub nom Gary Northwest Indi-
ana Women's Services, Inc v Orr, 451 U S 934 (1981), in which an Indi-
ana second-trimester hospitalization requirement was upheld Although
the District Court in that case found that "Roe does not render the con-
stitutionality of second trimester regulations subject to either the availabil-
ity of abortions or the improvements in medical techniques and skills," 496
F Supp , at 901-902, it also rested the decision on the alternative ground
that the plaintiffs had failed to provide evidence to support their theory
that it was unreasonable to require hospitalization for dilatation and evac-
uation abortions performed early in the second trimester See id , at
902-903 Our summary affirmance therefore is not binding precedent on
the hospitalization issue See Illinois State Board of Elections v Social
ist Workers Party, 440 U S 173, 180-181, 182-183 (1979)
434 OCTOBER TERM, 1982
Opinion of the Court 462 U g
a licensed hospital, rather than those of some other appro
priately licensed institution, satisfy these health interests "
Ibid 19
We reaffirm today, see supra, at 429, nil, that a State's
interest in health regulation becomes compelling at approxi-
mately the end of the first trimester The existence of
a compelling state interest in health, however, is only the
beginning of the inquiry The State's regulation may be
upheld only if it is reasonably designed to further that state
interest See Doe, 410 U S , at 195 And the Court in Roe
did not hold that it always is reasonable for a State to adopt
an abortion regulation that applies to the entire second tri
mester A State necessarily must have latitude in adopting
regulations of general applicability in this sensitive area
But if it appears that during a substantial portion of the sec
ond trimester the State's regulation "depart[s] from accepted
medical practice," supra, at 431, the regulation may not be
upheld simply because it may be reasonable for the remaining
portion of the trimester Rather, the State is obligated to
make a reasonable effort to limit the effect of its regulations
to the period in the trimester during which its health interest
will be furthered
B
There can be no doubt that § 1870 OS's second-trimester
hospitahzation requirement places a significant obstacle in
the path of women seeking an abortion A primary burden
created by the requirement is additional cost to the woman
The Court of Appeals noted that there was testimony that a
second-trimester abortion costs more than twice as much in a
18 We also found that the additional requirement that the licensed hospi
tal be accredited by the JCAH was "not 'based on differences that are
reasonably related to the purposes of the Act in which it is found ' " Doe,
410 U S , at 194 (quoting Morey v Doud, 354 U S 457, 465 (1957)) We
concluded that, in any event, Georgia's hospital requirement was invalid
because it applied to first-trimester abortions
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 435
416 Opinion of the Court
hospital as in a clinic See 651 F 2d, at 1209 (in-hospital
abortion costs $850-$900, whereas a dilatation-and-evacua-
tion (D&E) abortion performed in a clinic costs $350-$400) 20
Moreover, the court indicated that second-trimester abor-
tions were rarely performed in Akron hospitals Ibid (only
nine second-trimester abortions performed in Akron hospi-
tals in the year before trial) 21 Thus, a second-trimester hos-
pitahzation requirement may force women to travel to find
available facilities, resulting in both financial expense and ad-
ditional health risk It therefore is apparent that a second-
trimester hospitahzation requirement may significantly limit
a woman's ability to obtain an abortion
Akron does not contend that § 1870 03 imposes only an in-
significant burden on women's access to abortion, but rather
defends it as a reasonable health regulation This position
had strong support at the time of Roe v Wade, as hospitahza-
tion for second-trimester abortions was recommended by the
American Public Health Association (APHA), see Roe, 410
U S , at 143-146, and the American College of Obstetricians
and Gynecologists (AGOG), see Standards for Obstetric-
Gynecologic Services 65 (4th ed 1974) Since then, how-
ever, the safety of second-trimester abortions has increased
20 National statistics indicate a similar cost difference In 1978 the aver
age clinic charged $284 for a D&E abortion, whereas the average hospital
charge was $435 The hospital charge did not include the physician's fee,
which ran as high as $300 See Rosoff , The Availability of Second-Trimes-
ter Abortion Services in the United States, published in Second-Trimester
Abortion Perspectives After a Decade of Experience 35 (G Berger,
W Brenner, &L Keith eds 1981) (hereinafter Second-Trimester Abortion)
21 The Akron situation is not unique In many areas of this country,
few, if any, hospitals perform second trimester abortions See, e g ,
Planned Parenthood Assn of Kansas City, Mo , Inc v Ashcroft, 664 F
2d, at 689 (second-trimester D&E abortions available at only one hospital
in Missouri), Wolfe v Stumbo, 519 F Supp 22, 23 (WD Ky 1980) (no elec-
tive post-fir st-trimester abortion performed in Kentucky hospitals), Mar
garet S v Edwards, 488 F Supp 181, 192 (ED La 1980) (no hospitals in
Louisiana perform abortions after first trimester)
436 OCTOBER TERM, 1982
Opinion of the Court 462 U S
dramatically ffi The principal reason is that the D&E proce
dure is now widely and successfully used for second-trimester
abortions M The Court of Appeals found that there was "an
abundance of evidence that D&E is the safest method of per
forming post-first trimester abortions today " 651 F 2d, at
1209 The availability of the D&E procedure during the in
terval between approximately 12 and 16 weeks of pregnancy,
a period during which other second-trimester abortion tech
mques generally cannot be used,24 has meant that women de
siring an early second-trimester abortion no longer are forced
to incur the health risks of waiting until at least the 16th
week of pregnancy
For our purposes, an even more significant factor is that
experience indicates that D&E may be performed safely on
an outpatient basis in appropriate nonhospital facilities The
evidence is strong enough to have convinced the APHA to
abandon its prior recommendation of hospitahzation for all
second-trimester abortions
"Current data show that abortions occurring in the
second trimester can be safely performed by the Dilata
tion and Evacuation (D and E) procedure Require
ments that all abortions after 12 weeks of gestation
be performed in hospitals increase the expense and
inconvenience to the woman without contributing to the
safety of the procedure " APHA Recommended Pro-
22 The death to case ratio for all second trimester abortions in this coun
try fell from 14 4 deaths per 100,000 abortions in 1972 to 7 6 per 100,000
in 1977 See Tyler, Gates, Schulz, Sehk, & Smith, Second-Trimester
Induced Abortion in the United States, published in Second-Trimester
Abortion 17-20
23 At the time Roe was decided, the D&E procedure was used only to per
form first-trimester abortions
84 Instillation procedures, the primary means of performing a second
trimester abortion before the development of D&E, generally cannot be
performed until approximately the 16th week of pregnancy because until
that time the ammotic sac is too small See Grimes & Gates, Dilatation
and Evacuation, published in Second Trimester Abortion 121
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 437
41£ Opinion of the Court
gram Guide for Abortion Services (Revised 1979), 70
Am J Public Health 652, 654 (1980) (hereinafter APHA
Recommended Guide)
Similarly, the AGOG no longer suggests that all second-
trimester abortions be performed in a hospital It recom-
mends that abortions performed in a physician's office or
outpatient clinic be limited to 14 weeks of pregnancy, but
it indicates that abortions may be performed safely in "a
hospital-based or in a free-standing ambulatory surgical facil-
ity, or in an outpatient clmic meeting the criteria required
for a free-standing surgical facility," until 18 weeks of preg-
nancy AGOG, Standards for Obstetric-Gynecologic Serv-
ices 54 (5th ed 1982)
These developments, and the professional commentary
supporting them, constitute impressive evidence that — at
least during the early weeks of the second trimester — D&E
abortions may be performed as safely in an outpatient clinic
as in a full-service hospital ^ We conclude, therefore, that
"present medical knowledge," Roe, supra, at 163, convinc-
ingly undercuts Akron's justification for requiring that all
second-trimester abortions be performed in a hospital 26
25 See also Planned Parenthood Assn of Kansas City, Mo , Inc v Ash
croft, supra, at 690, n 6 (discussing testimony by Dr Willard Gates, Chief
of Federal Abortion Surveillance for the National Centers for Disease Con-
trol, that D&E second-trimester abortions are as safely performed outside
of hospitals up to the 16th week), APHA Recommended Guide 654 (out-
patient D&E is safer than all in hospital non-D&E abortion procedures
during the second trimester)
26 At trial Akron relied largely on the former position of the various medi-
cal organizations concerning hospitahzation during the second trimester
See 651 F 2d, at 1209 The revised position of the ACOG did not occur
until after trial
Akron also argues that the safety of nonhospital D&E abortions de-
pends on adherence to minimum standards such as those adopted by ACOG
for free-standing surgical facilities, see ACOG Standards 51-62, and that
there is no evidence that plaintiffs' clinics operate in this manner But the
issue in this litigation is not whether these clinics would meet such stand-
438 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Akron nonetheless urges that "[t]he fact that some mid
trimester abortions may be done in a minimally equipped clime
does not invalidate the regulation " 27 Brief for Respondents
in No 81-1172, p 19 It is true that a state abortion regula
tion is not unconstitutional simply because it does not eorre
spond perfectly in all cases to the asserted state interest
But the lines drawn in a state regulation must be reasonable,
and this cannot be said of § 1870 03 By preventing the per
formance of D&E abortions in an appropriate nonhospital
setting, Akron has imposed a heavy, and unnecessary, bur
den on women's access to a relatively inexpensive, otherwise
accessible, and safe abortion procedure M Section 1870 03
has "the effect of inhibiting the vast majority of abortions
after the first 12 weeks," Danforth, 428 U S , at 79, and
ards if they were prescribed by the city Rather, Akron has gone much
further by banning all second-trimester abortions m all climes, a regulation
that does not reasonably further the city's interest in promoting health
We continue to hold, as we did in Doe v Bolton, that a State may, "from
and after the end of the first trimester, adopt standards for licensing
all facilities where abortions may be performed so long as those stand
ards are legitimately related to the objective the State seeks to accom
phsh " 410 U S , at 194-195 This includes standards designed to cor
rect any deficiencies that Akron reasonably believes exist in the clinics'
present operation
27 The city thus implies that its hospital requirement may be sustained
because it is reasonable as applied to later D&E abortions or to all second
trimester instillation abortions We do not hold today that a State in
no circumstances may require that some abortions be performed in a full
service hospital Abortions performed by D&E are much safer, up to a
point in the development of the fetus, than those performed by instillation
methods See Gates & Grimes, Morbidity and Mortality, published in
Second-Trimester Abortion 166-169 The evidence before us as to the
need for hospitahzation concerns only the D&E method performed in the
early weeks of the second trimester See 651 F 2d, at 1208-1210
28 In the United States during 1978, 82 1% of all abortions from 13-15
weeks and 24 6% of all abortions from 16-20 weeks were performed by the
D&E method See Department of Health and Human Services, Centers
for Disease Control, Abortion Surveillance Annual Summary 1978, Table
14, p 43(1980)
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 439
416 Opinion of the Court
therefore unreasonably infringes upon a woman's constitu-
tional right to obtain an abortion
IV
We turn next to § 1870 05(B), the provision prohibiting a
physician from performing an abortion on a minor pregnant
woman under the age of 15 unless he obtains "the informed
written consent of one of her parents or her legal guardian"
or unless the minor obtains "an order from a court having
jurisdiction over her that the abortion be performed or
induced " The District Court invalidated this provision
because "[i]t does not establish a procedure by which a minor
can avoid a parental veto of her abortion decision by demon-
strating that her decision is, in fact, informed Rather, it
requires, in all cases, both the minor's informed consent and
either parental consent or a court order " 479 F Supp , at
1201 The Court of Appeals affirmed on the same basis *
The relevant legal standards are not in dispute The
Court has held that "the State may not impose a blanket pro-
vision requiring the consent of a parent or person in loco
parentis as a condition for abortion of an unmarried minor "
Danforth, supra, at 74 In Bellotti v Baird, 443 U S 622
(1979) (Bellotti II), a majority of the Court indicated that a
State's interest in protecting immature minors will sustain a
requirement of a consent substitute, either parental or judi-
cial See id , at 640-642 (plurality opinion for four Justices),
id , at 656-657 (WHITE, J , dissenting) (expressing approval
of absolute parental or judicial consent requirement) See
also Danforth, supra, at 102-105 (STEVENS, J , concurring in
part and dissenting in part) The Bellotti II plurality cau-
tioned, however, that the State must provide an alternative
procedure whereby a pregnant minor may demonstrate that
she is sufficiently mature to make the abortion decision her-
29 The Court of Appeals upheld § 1870 05(A)'s notification requirement
See 651 F 2d, at 1206 The validity of this ruling has not been challenged
in this Court
440 OCTOBER TERM, 1982
Opinion of the Court 462 u S
self or that, despite her immaturity, an abortion would be in
her best interests 443 U S , at 643-644 Under these de
cisions, it is clear that Akron may not make a blanket deter
mination that all minors under the age of 15 are too immature
to make this decision or that an abortion never may be m the
minor's best interests without parental approval
Akron's ordinance does not create expressly the alterna
tive procedure required by Bellotti II But Akron contends
that the Ohio Juvenile Court will qualify as a "court having
jurisdiction" within the meaning of § 1870 05(B), and that "it
is not to be assumed that during the course of the juvenile
proceedings the Court will not construe the ordinance in a
manner consistent with the constitutional requirement of
a determination of the minor's ability to make an informed
consent" Brief for Petitioner in No 81-746, p 28 Akron
concludes that the courts below should not have invalidated
§ 1870 05(B) on its face The city relies on Bellotti v Baird,
428 U S 132 (1976) (Bellotti I), in which the Court did not
decide whether a State's parental consent provisions were
unconstitutional as applied to mature minors, holding instead
that "abstention is appropriate where an unconstrued state
statute is susceptible of a construction by the state judiciary
'which might avoid in whole or in part the necessity for fed-
eral constitutional adjudication, or at least materially change
the nature of the problem ' " Id , at 146-147 (quoting Ham
sonv NAACP, 360 U S 167, 177(1959)) See also H L v
Matheson, 450 U S 398 (1981) (refusing to decide whether
parental notice statute would be constitutional as applied to
mature minors) 30
30 The Court's primary holding in Matheson was that the pregnant minor
who questioned Utah's abortion consent requirement on the ground that it
impermissibly applied to mature or emancipated minors lacked standing to
raise that argument since she had not alleged that she or any member of
her class was mature or emancipated 450 U S , at 406 No such stand
ing problem exists here, however, as the physician plaintiff, who is subject
to potential criminal liability for failure to comply with the requirements of
§ 1870 05(B), has standing to raise the claims of his minor patients See
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 441
416 Opinion of the Court
We do not think that the abstention principle should have
been applied here It is reasonable to assume, as we did in
Bellotti 7, supra, and Matheson, supra, that a state court
presented with a state statute specifically governing abortion
consent procedures for pregnant minors will attempt to con-
strue the statute consistently with constitutional require-
ments This suit, however, concerns a municipal ordinance
that creates no procedures for making the necessary deter-
minations Akron seeks to invoke the Ohio statute govern-
ing juvenile proceedings, but that statute neither mentions
minors' abortions nor suggests that the Ohio Juvenile Court
has authority to inquire into a minor's maturity or emancipa-
tion 31 In these circumstances, we do not think that the
Akron ordinance, as applied in Ohio juvenile proceedings, is
reasonably susceptible of being construed to create an
"opportunity for case-by-case evaluations of the maturity of
pregnant minors " Bellotti II, supra, at 643, n 23 (plurality
Danforth, 428 U S , at 62, Doe v Bolton, 410 U S , at 188-189, Bel
loUi II, 443 U S , at 627, n 5 (plurality opinion)
31 The Ohio Juvenile Court has jurisdiction over any child "alleged to be a
juvenile traffic offender, delinquent, unruly, abused, neglected, or depend-
ent " Ohio Rev Code Ann § 2151 23 (Supp 1982) The only category
that arguably could encompass a pregnant minor desiring an abortion
would be the "neglected" child category A neglected child is defined as
one "[w]hose parents, guardian or custodian neglects or refuses to pro-
vide him with proper or necessary subsistence, education, medical or sur
gical care, or other care necessary for his health, morals, or well being "
§ 2151 03 Even assuming that the Ohio courts would construe these pro-
visions as permitting a minor to obtain judicial approval for the "proper or
necessary medical or surgical care" of an abortion, where her parents
had refused to provide that care, the statute makes no provision for a ma-
ture or emancipated minor completely to avoid hostile parental involve-
ment by demonstrating to the satisfaction of the court that she is capable of
exercising her constitutional right to choose an abortion On the contrary,
the statute requires that the minor's parents be notified once a petition has
been filed, § 2151 28, a requirement that in the case of a mature minor
seeking an abortion would be unconstitutional See H L v Mathe&on,
450 U S , at 420 (POWELL, J , concurring), id , at 428, n 3 (MARSHALL, J ,
dissenting)
442 OCTOBER TERM, 1982
Opinion of the Court 462 U S
opinion) We therefore affirm the Court of Appeals' judg-
ment that § 1870 05(B) is unconstitutional
V
The Akron ordinance provides that no abortion shall be
performed except "with the informed written consent of the
pregnant woman, given freely and without coercion "
§ 1870 06(A) Furthermore, "in order to insure that the con-
sent for an abortion is truly informed consent," the woman
must be "orally informed by her attending physician" of the
status of her pregnancy, the development of her fetus, the
date of possible viability, the physical and emotional com
plications that may result from an abortion, and the availabil-
ity of agencies to provide her with assistance and informa-
tion with respect to birth control, adoption, and childbirth
§ 1870 06(B) In addition, the attending physician must in-
form her "of the particular risks associated with her own
pregnancy and the abortion technique to be employed
[and] other information which in his own medical judgment is
relevant to her decision as to whether to have an abortion or
carry her pregnancy to term " § 1870 06(C)
The District Court found that § 1870 06(B) was unconstitu-
tional, but that § 1870 06(C) was related to a valid state inter-
est in maternal health See 479 F Supp , at 1203-1204
The Court of Appeals concluded that both provisions were
unconstitutional See 651 F 2d, at 1207 We affirm
In Danforth, we upheld a Missouri law requiring a preg-
nant woman to "certif [y] in writing her consent to the abor-
tion and that her consent is informed and freely given and is
not the result of coercion " 428 U S , at 85 We explained
"The decision to abort is an important, and often a
stressful one, and it is desirable and imperative that it
be made with full knowledge of its nature and conse-
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 443
415 Opinion of the Court
quences The woman is the one primarily concerned,
and her awareness of the decision and its significance
may be assured, constitutionally, by the State to the ex-
tent of requiring her prior written consent " Id , at 67
We rejected the view that "informed consent" was too vague
a term, construing it to mean "the giving of information to
the patient as to just what would be done and as to its conse-
quences To ascribe more meaning than this might well con-
fine the attending physician in an undesired and uncomfort-
able straitjacket in the practice of his profession " Id , at 67,
n 8
The validity of an informed consent requirement thus rests
on the State's interest in protecting the health of the preg-
nant woman The decision to have an abortion has "implica-
tions far broader than those associated with most other kinds
of medical treatment/' Bellotti II, 443 U S , at 649 (plurality
opinion), and thus the State legitimately may seek to ensure
that it has been made "in the light of all attendant circum-
stances— psychological and emotional as well as physical —
that might be relevant to the well-being of the patient "
Colautti v Franklin, 439 U S , at 394 tt This does not
mean, however, that a State has unreviewable authority to
decide what information a woman must be given before
she chooses to have an abortion It remains primarily the
responsibility of the physician to ensure that appropriate
information is conveyed to his patient, depending on her
particular circumstances Danforth's recognition of the
State's interest in ensuring that this information be given
32 In particular, we have emphasized that a State's interest in protecting
immature minors and in promoting family integrity gives it a special inter-
est m ensuring that the abortion decision is made with understanding and
after careful deliberation See, e g , H L v Matheson, 450 U S , at 411,
id , at 419-420 (POWELL, J , concurring), id , at 421-424 (STEVENS, J ,
concurring in judgment)
444 OCTOBER TERM, 1982
Opinion of the Court 462 U S
will not justify abortion regulations designed to influence the
woman's informed choice between abortion or childbirth ®
B
Viewing the city's regulations m this light, we believe that
§ 1870 06(B) attempts to extend the State's interest in ensur-
ing "informed consent" beyond permissible limits First, it
is fair to say that much of the information required is de-
signed not to inform the woman's consent but rather to per-
suade her to withhold it altogether Subsection (3) requires
the physician to inform his patient that "the unborn child is a
human life from the moment of conception," a requirement
inconsistent with the Court's holding in Roe v Wade that a
State may not adopt one theory of when life begins to jus-
tify its regulation of abortions See 410 U S , at 159-162
Moreover, much of the detailed description of "the anatomical
and physiological characteristics of the particular unborn
child" required by subsection (3) would involve at best specu-
lation by the physician M And subsection (5), that begins
with the dubious statement that "abortion is a major surgical
procedure"35 and proceeds to describe numerous possible
83 A State is not always foreclosed from asserting an interest in whether
pregnancies end m abortion or childbirth In Maker v Roe, 432 U S 464
(1977), and Hams v McRae, 448 U S 297 (1980), we upheld govern
mental spending statutes that reimbursed indigent women for childbirth
but not abortion This legislation to further an interest in preferring
childbirth over abortion was permissible, however, only because it did not
add any "restriction on access to abortions that was not already there "
Maker, supra, at 474
84 This description must include, but not be limited to, "appearance, mo
bihty, tactile sensitivity, including pain, perception or response, brain and
heart function, the presence of internal organs and the presence of external
members " The District Court found that "there was much evidence that
it is impossible to determine many of [these] items, such as the 'unborn
child's' sensitivity to pain " 479 F Supp , at 1203
35 The District Court found that "there was much evidence that rather
than being 'a major surgical procedure' as the physician is required to state
, an abortion generally is considered a 'minor surgical procedure '"
Ihd
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 445
416 Opinion of the Court
physical and psychological complications of abortion,36 is a
"parade of horribles" intended to suggest that abortion is a
particularly dangerous procedure
An additional, and equally decisive, objection to
§ 1870 06(B) is its intrusion upon the discretion of the preg-
nant woman's physician This provision specifies a litany of
information that the physician must recite to each woman
regardless of whether in his judgment the information is
relevant to her personal decision For example, even if the
physician believes that some of the risks outlined in subsec-
tion (5) are nonexistent for a particular patient, he remains
obligated to describe them to her In Danforth the Court
warned against placing the physician m just such an "unde-
sired and uncomfortable straitjacket " 428 U S , at 67, n 8
Consistent with its interest in ensuring informed consent, a
State may require that a physician make certain that his
patient understands the physical and emotional implications
of having an abortion But Akron has gone far beyond
merely describing the general subject matter relevant to in-
formed consent By insisting upon recitation of a lengthy
and inflexible hst of information, Akron unreasonably has
placed "obstacles in the path of the doctor upon whom [the
woman is] entitled to rely for advice in connection with her
decision " Whalen v Roe, 429 U S , at 604, n 33 *
36 Section 1870 06(B)(5) requires the physician to state
"[t]hat abortion is a major surgical procedure which can result in serious
complications, including hemorrhage, perforated uterus, infection, men-
strual disturbances, sterility and miscarriage and prematurity in subse-
quent pregnancies, and that abortion may leave essentially unaffected or
may worsen any existing psychological problems she may have, and can
result in severe emotional disturbances "
37 Akron has made little effort to defend the constitutionality of
§§ 1870 06(B)(3), (4), and (5), but argues that the remaining four subsec-
tions of the provision are valid and severable These four subsections
require that the patient be informed by the attending physician of the fact
that she is pregnant, § 1870 06(B)(1), the gestational age of the fetus,
§ 1870 06(B)(2), the a\ liability of information on birth control and adop-
446 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Section 1870 06(C) presents a different question Under
this provision, the "attending physician" must inform the
woman
"of the particular risks associated with her own preg-
nancy and the abortion technique to be employed includ-
ing providing her with at least a general description of
the medical instructions to be followed subsequent to the
abortion in order to insure her safe recovery, and shall in
addition provide her with such other information which
in his own medical judgment is relevant to her decision
as to whether to have an abortion or carry her pregnancy
to term "
The information required clearly is related to maternal
health and to the State's legitimate purpose in requiring
informed consent Nonetheless, the Court of Appeals
determined that it interfered with the physician's medical
judgment "in exactly the same way as section 1870 06(B) It
requires the doctor to make certain disclosures in all cases,
regardless of his own professional judgment as to the de-
sirability of doing so " 651 F 2d, at 1207 This was a mis-
application ofDanforth There we construed "informed con-
sent" to mean "the giving of information to the patient as to
just what would be done and as to its consequences " 428
U S , at 67, n 8 We see no significant difference in
Akron's requirement that the woman be told of the partic-
ular risks of her pregnancy and the abortion technique to be
toon, § 1870 06(B)(6), and the availability of assistance during pregnancy
and after childbirth, § 1870 06(B)(7) This information, to the extent it is
accurate, certainly is not objectionable, and probably is routinely made
available to the patient We are not persuaded, however, to sever these
provisions from the remainder of § 1870 06(B) They require that all of the
information be given orally by the attending physician when much, if not all
of it, could be given by a qualified person assisting the physician See
infra, at 448-449
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 447
416 Opinion of the Court
used, and be given general instructions on proper postabortion
care Moreover, in contrast to subsection (B), § 1870 06(C)
merely describes in general terms the information to be
disclosed It properly leaves the precise nature and amount
of this disclosure to the physician's discretion and "medical
judgment "
The Court of Appeals also held, however, that § 1870 06(C)
was invalid because it required that the disclosure be made
by the "attending physician " The court found that "the
practice of all three plaintiff clinics has been for the counsel-
ing to be conducted by persons other than the doctor who
performs the abortion," 651 F 2d, at 1207, and determined
that Akron had not justified requiring the physician person-
ally to describe the health risks Akron challenges this hold-
ing as contrary to our cases that emphasize the importance of
the physician-patient relationship In Akron's view, as in
the view of the dissenting judge below, the "attending physi-
cian" requirement "does no more than seek to ensure that
there is m fact a true physician-patient relationship even for
the woman who goes to an abortion clinic " Id , at 1217
(Kennedy, J , concurring in part and dissenting in part)
Requiring physicians personally to discuss the abortion
decision, its health risks, and consequences with each patient
may in some cases add to the cost of providing abortions,
though the record here does not suggest that ethical physi-
cians will charge more for adhering to this typical element of
the physician-patient relationship Yet in Roe and subse-
quent cases we have "stressed repeatedly the central role of
the physician, both in consulting with the woman about
whether or not to have an abortion, and in determining how
any abortion was to be carried out " Colautti v Franklin,
439 U S , at 387 Moreover, we have left no doubt that,
to ensure the safety of the abortion procedure, the States
may mandate that only physicians perform abortions See
Connecticut v Memllo, 423 US 9, 11 (1975), Roe, 410
U S , at 165
448 OCTOBER TERM, 1982
Opinion of the Court 462 U S
We are not convinced, however, that there is as vital a
state need for insisting that the physician performing the
abortion, or for that matter any physician, personally counsel
the patient in the absence of a request The State's interest
is in ensuring that the woman's consent is informed and
unpressured, the critical factor is whether she obtains the
necessary information and counseling from a qualified per-
son, not the identity of the person from whom she obtains it M
Akron and mtervenors strongly urge that the nonphysician
counselors at the plaintiff abortion clinics are not trained or
qualified to perform this important function The courts
below made no such findings, however, and on the record
before us we cannot say that the woman's consent tQ the
abortion will not be informed if a physician delegates the
counseling task to another qualified individual
In so holding, we do not suggest that the State is powerless
to vindicate its interest in making certain the "important"
and "stressful" decision to abort "[i]s made with full knowl-
edge of its nature and consequences " Danforth, 428 U S ,
at 67 Nor do we imply that a physician may abdicate his
essential role as the person ultimately responsible for the
medical aspects of the decision to perform the abortion ^ A
88 We do not suggest that appropriate counseling consists simply of a re
cital of pertinent medical facts On the contrary, it is clear that the needs
of patients for information and an opportunity to discuss the abortion deci
sion will vary considerably It is not disputed that individual counseling
should be available for those persons who desire or need it See, e g ,
National Abortion Federation Standards 1 (1981) (hereinafter NAF Stand
ards), Planned Parenthood of Metropolitan Washington, D C , Inc , Guide
lines for Operation, Maintenance, and Evaluation of First Trimester
Outpatient Abortion Facilities 5 (1980) Such an opportunity may be
especially important for minors alienated or separated from their parents
See APHA Recommended Guide 654 Thus, for most patients, mere pro-
vision of a printed statement of relevant information is not counseling
39 This Court's consistent recognition of the critical role of the physician
in the abortion procedure has been based on the model of the competent,
conscientious, and ethical physician See Doe, 410 U S , at 196-197 We
have no occasion in this case to consider conduct by physicians that may
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 449
416 Opinion of the Court
State may define the physician's responsibility to include
verification that adequate counseling has been provided and
that the woman's consent is informed 40 In addition, the
State may establish reasonable minimum qualifications for
those people who perform the primary counseling function 41
See, e g , Doe, 410 U S , at 195 (State may require a medi-
cal facility "to possess all the staffing and services necessary
to perform an abortion safely") In light of these alterna-
tives, we believe that it is unreasonable for a State to insist
that only a physician is competent to provide the information
and counseling relevant to informed consent We affirm the
judgment of the Court of Appeals that § 1870 06(C) is invalid
VI
The Akron ordinance prohibits a physician from perform-
ing an abortion until 24 hours after the pregnant woman signs
a consent form § 1870 07 <* The District Court upheld this
provision on the ground that it farthered Akron's interest in
ensuring "that a woman's abortion decision is made after
careful consideration of all the facts applicable to her particu-
depart from this model Cf Danforth, 428 U S , at 91-92, n 2 (Stewart,
J , concurring)
40 Cf AGOG Standards 54 ("If counseling has been provided elsewhere,
the physician performing the abortion should verify that the counseling has
taken place")
41 The importance of well-trained and competent counselors is not in dis-
pute See, e g , APHA Becommended Guide 654 ("Abortion counselors
may be highly skilled physicians as well as trained, sympathetic individuals
working under appropriate supervision"), NAF Standards 2 (counselors
must be trained initially at least in the following subjects "sexual and
reproductive health, abortion technology, contraceptive technology, short-
term counseling skills, community resources and referrals, informed con-
sent, agency policies and practices")
42 This provision does not apply if the physician certifies in writing that
"there is an emergency need for an abortion to be performed or in-
duced such that continuation of the pregnancy poses an immediate threat
and grave risk to the life or physical health of the pregnant woman "
§ 1870 12
450 OCTOBER TERM, 1982
Opinion of the Court 462 U S
lar situation " 479 F Supp , at 1204 The Court of Appeals
reversed, finding that the inflexible waiting period had "no
medical basis," and that careful consideration of the abortion
decision by the woman "is beyond the state's power to re
quire" 651 F 2d, at 1208 We affirm the Court of Appeals'
judgment
The District Court found that the mandatory 24-hour wait-
ing period increases the cost of obtaining an abortion by re-
quiring the woman to make two separate trips to the abortion
facility See 479 F Supp , at 1204 Plaintiffs also contend
that because of scheduling difficulties the effective delay may
be longer than 24 hours, and that such a delay in some cases
could increase the risk of an abortion Akron denies that
any significant health risk is created by a 24-hour waiting
period, and argues that a brief period of delay — with the
opportunity for reflection on the counseling received — often
will be beneficial to the pregnant woman
We find that Akron has failed to demonstrate that any
legitimate state interest is farthered by an arbitrary and
inflexible waiting period There is no evidence suggesting
that the abortion procedure will be performed more safely
Nor are we convinced that the State's legitimate concern that
the woman's decision be informed is reasonably served by re-
quiring a 24-hour delay as a matter of course The decision
whether to proceed with an abortion is one as to which it is
important to "affor[d] the physician adequate discretion in
the exercise of his medical judgment " Colautti v Frank
hn, 439 U S , at 387 In accordance with the ethical stand-
ards of the profession, a physician will advise the patient to
defer the abortion when he thinks this will be beneficial to
her * But if a woman, after appropriate counseling, is pre-
48 The ACOG recommends that a clinic allow "sufficient time for reflec
tion prior to making an informed decision " ACOG Standards 54 In con
trast to § 1870 OTs mandatory waiting period, this standard recognizes
that the time needed for consideration of the decision varies depending on
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 451
416 Opinion of the Court
pared to give her written informed consent and proceed with
the abortion, a State may not demand that she delay the
effectuation of that decision
VII
Section § 1870 16 of the Akron ordinance requires physi-
cians performing abortions to "insure that the remains of the
unborn child are disposed of m a humane and sanitary man-
ner " The Court of Appeals found that the word "humane"
was impermissibly vague as a definition of conduct subject to
criminal prosecution The court invalidated the entire provi-
sion, declining to sever the word "humane" in order to uphold
the requirement that disposal be "sanitary " See 651 F 2d,
at 1211 We affirm this judgment
Akron contends that the purpose of § 1870 16 is simply "'to
preclude the mindless dumping of aborted fetuses onto gar-
bage piles ' " Planned Parenthood Assn v Fitzpatnck f 401
F Supp 554, 573 (ED Pa 1975) (three-judge court) (quot-
ing State's characterization of legislative purpose), summar-
ily aff d sub nom Franklin v Fitzpatnck, 428 U S 901
(1976) M It is far from clear, however, that this provision
has such a limited intent The phrase "humane and sani-
tary" does, as the Court of Appeals noted, suggest a possible
intent to "mandate some sort of 'decent burial' of an embryo
at the earliest stages of formation " 651 F 2d, at 1211
This level of uncertainty is fatal where criminal liability is im-
posed See Colautti v Franklin, supra, at 396 Because
§ 1870 16 fails to give a physician "fair notice that his contem-
plated conduct is forbidden," United States v Harriss, 347
the particular situation of the patient and how much prior counseling she
has received
44 In Fitzpatnck the District Court accepted Pennsylvania's contention
that its statute governing the "humane" disposal of fetal remains was de-
signed only to prevent such "mindless dumping " That decision is distin-
guishable because the statute did not impose criminal Lability, but merely
provided for the promulgation of regulations to implement the disposal
requirement See 401 F Supp , at 572-573
452 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
U S 612, 617 (1954), we agree that it violates the Due Proc
ess Clause 45
VIII
We affirm the judgment of the Court of Appeals invali-
dating those sections of Akron's "Regulations of Abortions"
ordinance that deal with parental consent, informed consent,
a 24-hour waiting period, and the disposal of fetal remains'
The remaining portion of the judgment, sustaining Akron's
requirement that all second-trimester abortions be performed
in a hospital, is reversed
It is so ordered
JUSTICE O'CONNOR, with whom JUSTICE WHITE and
JUSTICE REHNQUIST join, dissenting
In Roe v Wade, 410 U S 113 (1973), the Court held that
the "right of privacy founded in the Fourteenth Amend
ment's concept of personal liberty and restrictions upon state
action is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy " Id , at 153
The parties in these cases have not asked the Court to re
examine the validity of that holding and the court below did
not address it Accordingly, the Court does not re-examine
its previous holding Nonetheless, it is apparent from the
Court's opinion that neither sound constitutional theory nor
our need to decide cases based on the application of neutral
principles can accommodate an analytical framework that
varies according to the "stages" of pregnancy, where those
stages, and their concomitant standards of review, differ ac
cording to the level of medical technology available when a
particular challenge to state regulation occurs The Court's
analysis of the Akron regulations is inconsistent both with
45 We are not persuaded by Akron's argument that the word "humane"
should be severed from the statute The uncertain meaning of the phrase
"humane and sanitary" leaves doubt as to whether the city would have
enacted § 1870 16 with the word "sanitary" alone Akron remains free, of
course, to enact more carefully drawn regulations that further its legiti
mate interest in proper disposal of fetal remains
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 453
416 O'CONNOR, J , dissenting
the methods of analysis employed in previous cases dealing
with abortion, and with the Court's approach to fundamental
rights in other areas
Our recent cases indicate that a regulation imposed on "a
lawful abortion 'is not unconstitutional unless it unduly bur-
dens the right to seek an abortion '" Maker v Roe, 432
U S 464, 473 (1977) (quoting Bellotto, v Baird, 428 U S
132, 147 (1977) (Bellotti I)} See also Hams v McRae, 448
U S 297, 314 (1980) In my view, this "unduly burden-
some" standard should be applied to the challenged regula-
tions throughout the entire pregnancy without reference to
the particular "stage" of pregnancy involved If the particu-
lar regulation does not "unduly burde[n]" the fundamental
right, Maher, supra, at 473, then our evaluation of that regu-
lation is limited to our determination that the regulation ra-
tionally relates to a legitimate state purpose Irrespective
of what we may believe is wise or prudent policy in this diffi-
cult area, "the Constitution does not constitute us as Tlatonic
Guardians' nor does it vest in this Court the authority to
strike down laws because they do not meet our standards of
desirable social policy, 'wisdom/ or 'common sense ' " Plyler
v Doe, 457 U S 202, 242 (1982) (BURGER, C J , dissenting)
I
The trimester or "three-stage" approach adopted by the
Court m Roe,1 and, in a modified form, employed by the
1 Roe recognized that the State possesses important and legitimate inter-
ests in protecting maternal health and the potentiality of human life
These "separate and distinct" interests were held to grow "in substantial-
ity as the woman approaches term and, at a point during pregnancy, each
becomes 'compelling ' " 410 U S , at 162-163 The state interest in ma-
ternal health was said to become compelling "at approximately the end of
the first trimester " Id , at 163 Before that time, "the abortion decision
and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician " Id , at 164 After the end of the first tri
mester, "a State may regulate the abortion procedure to the extent that
the regulation reasonably relates to the preservation and protection of ma
ternal health " Id , at 163 The Court noted that "in the light of present
454 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 TJ S
Court to analyze the regulations in these cases, cannot be
supported as a legitimate or useful framework for accommo-
dating the woman's right and the State's interests The
decision of the Court today graphically illustrates why the
trimester approach is a completely unworkable method of
accommodating the conflicting personal rights and compel
ling state interests that are involved in the abortion context
As the Court indicates today, the State's compelling interest
in maternal health changes as medical technology changes,
and any health regulation must not "depart from accepted
medical practice " Ante, at 431 2 In applying this stand-
ard, the Court holds that "the safety of second-trimester
abortions has increased dramatically" since 1973, when
medical knowledge mortality in abortion may be less than mortality in
normal childbirth" during the first trimester of pregnancy Ibid
The state interest in potential human life was held to become compelling
at "viability," defined by the Court as that point "at which the fetus [is]
potentially able to live outside the mother's womb, albeit with artificial
aid " Roe, 410 U S , at 160 (footnote omitted) Based on the Court's re-
view of the contemporary medical literature, it placed viability at about 28
weeks, but acknowledged that this point may occur as early as 24 weeks
After viability is reached, the State may, according to Roe, proscribe abor
tion altogether, except when it is necessary to preserve the life and health
of the mother See id , at 163-164 Since Roe, the Court has held that
Roe "left the point [of viability] flexible for anticipated advancements in
medical skill " Colautti v Franklin, 439 U S 379, 387 (1979)
The Court has also identified a state interest in protection of the young
and "familial integrity" in the abortion context See, e g , H L v
Matheson, 450 U S 398, 411 (1981)
2 Although the Court purports to retain the trimester approach as "a rea
sonable legal framework for limiting" state regulatory authority over abor
tions, ante at 429, n 11, the Court expressly abandons the Roe view that
the relative rates of childbirth and abortion mortality are relevant for
determining whether second trimester regulations are reasonably related
to maternal health Instead, the Court decides that a health regulation
must not "depart from accepted medical practice" if it is to be upheld
Ante, at 431 The State must now "make a reasonable effort to limit the
effect of its regulations to the period in the trimester during which its
health interest will be furthered " Ante, at 434 (emphasis added)
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 455
416 O'CONNOR, J , dissenting
Roe was decided Ante, at 435-436 (footnote omitted) Al-
though a regulation such as one requiring that all second-
trimester abortions be performed in hospitals "had strong
support" in 1973 "as a reasonable health regulation," ante, at
435, this regulation can no longer stand because, according to
the Court's diligent research into medical and scientific litera-
ture, the dilation and evacuation (D&E) procedure, used in
1973 only for first-trimester abortions, "is now widely and
successfully used for second-trimester abortions " Ante, at
436 (footnote omitted) Further, the medical literature re-
lied on by the Court indicates that the D&E procedure may
be performed in an appropriate nonhospital setting for "at
least the early weeks of the second trimester "
Ante, at 437 The Court then chooses the period of 16 weeks
of gestation as that point at which D&E procedures may be
performed safely in a nonhospital setting, and thereby invali-
dates the Akron hospitakzation regulation
It is not difficult to see that despite the Court's purported
adherence to the trimester approach adopted in Roe, the
lines drawn in that decision have now been "blurred" because
of what the Court accepts as technological advancement in
the safety of abortion procedure The State may no longer
rely on a "bright line" that separates permissible from imper-
missible regulation, and it is no longer free to consider the
second trimester as a unit and weigh the risks posed by all
abortion procedures throughout that trimester 3 Rather,
3 The Court holds that the summary affirmance in Gary Northwest Indi
ana Women's Services, Inc v Bowen, 496 F Supp 894 (ND Ind 1980)
(three-judge court), aff'd sub nom Gary Northwest Indiana Women's
Services, Inc v Orr, 451 U S 934 (1981), is not, as the court below
thought, binding precedent on the hospitahzation issue See ante, at 433,
n 18 Although the Court reads Gary -Northwest to be decided on the
alternative ground that the plaintiffs failed to prove the safety of second-
trimester abortions, ante, at 433, n 18, the Court simply ignores the fact
that the District Court in Gary Northwest held that "even if the plaintiffs
could prove birth more dangerous than early second trimester D&E abor-
456 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 u S
the State must continuously and conscientiously study con
temporary medical and scientific literature in order to deter
mine whether the effect of a particular regulation is to
"depart from accepted medical practice" insofar as particular
procedures and particular periods within the trimester are
concerned Assuming that legislative bodies are able to
engage in this exacting task,4 it is difficult to believe that our
Constitution requires that they do it as a prelude to protect-
ing the health of their citizens It is even more difficult to
believe that this Court, without the resources available to
those bodies entrusted with making legislative choices, be-
lieves itself competent to make these inquiries and to revise
these standards every time the American College of Obstetri
cians and Gynecologists (ACOG) or similar group revises its
views about what is and what is not appropriate medical pro-
cedure in this area Indeed, the ACOG Standards on which
the Court relies were changed in 1982 after trial in the
present cases Before ACOG changed its Standards in 1982,
it recommended that all mid-trimester abortions be per-
formed in a hospital See 651 F 2d 1198, 1209 (CA6 1981)
As today's decision indicates, medical technology is changing,
and tlus change will necessitate our continued functioning
as the Nation's "ex officio medical board with powers to ap-
prove or disapprove medical and operative practices and
standards throughout the United States " Planned Parent
hood of Central Missouri v Danforth, 428 U S 52, 99 (1976)
(WHITE, J , concurring in part and dissenting in part)
Just as improvements in medical technology inevitably will
move forward the point at which the State may regulate for
reasons of maternal health, different technological improve-
ments will move backward the point of viability at which the
tions," that would not matter insofar as the constitutionality of the regula
tions were concerned See 496 F Supp , at 903 (emphasis added)
4 Irrespective of the difficulty of the task, legislatures, with their supe-
rior factfinding capabilities, are certainly better able to make the necessary
judgments than are courts
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 457
416 O'CONNOR, J , dissenting
State may proscribe abortions except when necessary to pre-
serve the life and health of the mother
In 1973, viability before 28 weeks was considered unusual
The 14th edition of L Hellman & J Pritchard, Williams Ob-
stetrics (1971), on which the Court relied in Roe for its unde^-
standing of viability, stated, at 493, that "[attainment of a
[fetal] weight of 1,000 g [or a fetal age of approximately 28
weeks' gestation] is widely used as the criterion of viabil-
ity " However, recent studies have demonstrated increas-
ingly earlier fetal viability 5 It is certainly reasonable to be-
lieve that fetal viability in the first trimester of pregnancy
may be possible in the not too distant future Indeed, the
Court has explicitly acknowledged that Roe left the point of
viability "flexible for anticipated advancements m medical
skill" Colautti v Franklin, 439 U S 379, 387 (1979)
"[W]e recognized in Roe that viability was a matter of mech-
5 One study shows that infants born alive with a gestational age of less
than 25 weeks and weight between 500 and 1,249 grams have a 20% chance
of survival See Phillip, Little, Polivy, & Lucey, Neonatal Mortality Risk
for the Eighties The Importance of Birth Weight/Gestational Age Groups,
68 Pediatrics 122 (1981) Another recent comparative study shows that
preterm infants with a weight of 1,000 grams or less born in one hospital
had a 42% rate of survival Kopelman, The Smallest Preterm Infants
Reasons for Optimism and New Dilemmas, 132 Am J Diseases of Chil-
dren 461 (1978) An infant weighing 484 grams and having a gestational
age of 22 weeks at birth is now thriving in a Los Angeles hospital, and
the attending physician has stated that the infant has a "95% chance of
survival " Washington Post, Mar 31, 1983, p A2, col 2 The aborted
fetus in Simopoulos v Virginia, post, p 506, weighed 495 grams and had
a gestational age of approximately 22 weeks
Recent developments promise even greater success in overcoming the
various respiratory and immunological neonatal complications that stand in
the way of increased fetal viability See, e g , Beddis, Collins, Levy, God-
frey, & Silverman, New Technique for Servo-Control of Arterial Oxygen
Tension in Preterm Infants, 54 Archives of Disease in Childhood 278
(1979) "There is absolutely no question that in the current era there has
been a sustained and progressive improvement in the outlook for survival
of small premature infants " Stern, Intensive Care of the Pre-Term
Infant, 26 Danish Med Bull 144 (1979)
458 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 u S
cal judgment, skill, and technical ability, and we preserved
the flexibility of the term " Danforth, supra, at 64
The Roe framework, then, is clearly on a collision course
with itself As the medical risks of various abortion proce-
dures decrease, the point at which the State may regulate for
reasons of maternal health is moved further forward to actual
childbirth As medical science becomes better able to pro-
vide for the separate existence of the fetus, the point of
viability is moved further back toward conception More-
over, it is clear that the trimester approach violates the fun-
damental aspiration of judicial decisionmakmg through the
application of neutral principles "sufficiently absolute to give
them roots throughout the community and continuity over
significant periods of time " A Cox, The Role of the
Supreme Court in American Government 114 (1976) The
Roe framework is inherently tied to the state of medical tech-
nology that exists whenever particular litigation ensues Al
though legislatures are better suited to make the necessary
factual judgments in this area, the Court's framework forces
legislatures, as a matter of constitutional law, to speculate
about what constitutes "accepted medical practice" at any
given time Without the necessary expertise or ability,
courts must then pretend to act as science review boards and
examine those legislative judgments
The Court adheres to the Roe framework because the doc
trine of stare decisis "demands respect in a society governed
by the rule of law " Ante, at 420 Although respect for stare
decisis cannot be challenged, "this Court's considered prac-
tice [is] not to apply stare decisis as rigidly in constitutional
as in nonconstitutional cases " Ghdden Co v Zdanok, 370
U S 530, 543 (1962) Although we must be mindful of the
"desirability of continuity of decision in constitutional ques
tions when convinced of former error, this Court has
never felt constrained to follow precedent In constitutional
questions, where correction depends upon amendment and
not upon legislative action this Court throughout its history
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 459
416 O'CONNOR, J , dissenting
has freely exercised its power to reexamine the basis of its
constitutional decisions " Smith v Allwright, 321 U S 649,
665 (1944) (footnote omitted)
Even assuming that there is a fundamental right to termi-
nate pregnancy in some situations, there is no justification in
law or logic for the trimester framework adopted in Roe
and employed by the Court today on the basis of stare
decisis For the reasons stated above, that framework is
clearly an unworkable means of balancing the fundamental
right and the compelling state interests that are indisputably
implicated
II
The Court in Roe correctly realized that the State has im-
portant interests "in the areas of health and medical stand-
ards" and that "[t]he State has a legitimate interest in seeing
to it that abortion, like any other medical procedure, is per-
formed under circumstances that insure maximum safety for
the patient " 410 U S , at 149-150 The Court also recog-
nized that the State has "another important and legitimate
interest in protecting the potentiality of human life " Id , at
162 (emphasis in original) I agree completely that the State
has these interests, but in my view, the point at which these
interests become compelling does not depend on the tri-
mester of pregnancy Rather, these interests are present
throughout pregnancy
This Court has never failed to recognize that "a State may
properly assert important interests in safeguarding health
[and] in maintaining medical standards " Id , at 154 It
cannot be doubted that as long as a state statute is within
"the bounds of reason and [does not] assumfe] the character
of a merely arbitrary fiat [then] [t]he State must de-
cide upon measures that are needful for the protection of its
people " Purity Extract and Tonic Co v Lynch, 226
U S 192, 204-205 (1912) "There is nothing in the United
States Constitution which limits the State's power to require
that medical procedures be done safely " Sendak v
460 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
Arnold, 429 U S 968, 969 (1976) (WHITE, J , dissenting)
"The mode and procedure of medical diagnostic procedures is
not the business of judges " Parham v J R , 442 U S 584,
607-608 (1979) Under the Roe framework, however, the
state interest in maternal health cannot become compelling
until the onset of the second trimester of pregnancy because
"until the end of the first trimester mortality in abortion may
be less than mortality in normal childbirth " 410 U S , at
163 Before the second trimester, the decision to perform
an abortion "must be left to the medical judgment of the
pregnant woman's attending physician " Id , at 164 6
The fallacy inherent in the Roe framework is apparent just
because the State has a compelling interest in ensuring ma-
ternal safety once an abortion may be more dangerous than
childbirth, it simply does not follow that the State has no
interest before that point that justifies state regulation to
ensure that first-trimester abortions are performed as safely
as possible 7
The state interest in potential human life is likewise ex-
tant throughout pregnancy In Roe, the Court held that
6 Interestingly, the Court in Planned Parenthood of Central Missouri v
Danforth, 428 U S 52 (1976), upheld a recordkeeping requirement as well
as the consent provision even though these requirements were imposed on
first trimester abortions and although the State did not impose comparable
requirements on most other medical procedures See id , at 65-67, 79-81
Danforth, then, must be understood as a retreat from the position ostensi
bly adopted in Roe that the State had no compelling interest in regulation
during the first trimester of pregnancy that would justify restrictions im
posed on the abortion decision
7 For example, the 1982 AGOG Standards, on which the Court relies so
heavily in its analysis, provide that physicians performing first-trimester
abortions in their offices should provide for prompt emergency treatment
or hospitahzation in the event of any complications See AGOG Stand
ards, at 54 ACOG also prescribes that certain equipment be available
for office abortions See id , at 57 I have no doubt that the State has a
compelling interest to ensure that these or other requirements are met,
and that this legitimate concern would justify state regulation for health
reasons even in the first trimester of pregnancy
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 461
416 O'CONNOR, J , dissenting
although the State had an important and legitimate interest
in protecting potential life, that interest could not become
compelling until the point at which the fetus was viable The
difficulty with this analysis is clear potential life is no less
potential in the first weeks of pregnancy than it is at viability
or afterward At any stage in pregnancy, there is the poten-
tial for human life Although the Court refused to "resolve
the difficult question of when life begins," id , at 159, the
Court chose the point of viability — when the fetus is capable
of life independent of its mother — to permit the complete pro-
scription of abortion The choice of viability as the point at
which the state interest in potential life becomes compelling
is no less arbitrary than choosing any point before viability or
any point afterward Accordingly, I believe that the State's
interest in protecting potential human life exists throughout
the pregnancy
III
Although the State possesses compelling interests in the
protection of potential human hfe and in maternal health
throughout pregnancy, not every regulation that the State
imposes must be measured against the State's compelling in-
terests and examined with strict scrutiny This Court has
acknowledged that "the right in Roe v Wade can be under-
stood only by considering both the woman's interest and the
nature of the State's interference with it Roe did not de-
clare an unqualified 'constitutional right to an abortion'
Rather, the right protects the woman from unduly burden-
some interference with her freedom to decide whether to ter-
minate her pregnancy " Maker, 432 U S , at 473-474 The
Court and its individual Justices have repeatedly utilized the
"unduly burdensome" standard in abortion cases 8
8 See Bellotti v Baird, 428 U S 132, 147 (1976) (Bellotti I) (State may
not impose undue burdens upon a minor capable of giving an informed con-
sent " In Bellotti I, the Court left open the question whether a judicial
hearing would unduly burden the Roe right of an adult woman See 428
U S , at 147), Bellotti v Baird, 443 U S 622, 640 (1979) (Bellotti II)
462 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
The requirement that state interference "infringe substan
tially" or "heavily burden" a right before heightened scrutiny
is applied is not novel in our fundamental-rights junspru
dence, or restricted to the abortion context In San Antonio
Independent School District v Rodriguez, 411 U S 1, 37-38
(1973), we observed that we apply "strict judicial scrutiny"
only when legislation may be said to have "'deprived/ 'in
fringed/ or 'interfered' with the free exercise of some such
fundamental personal right or liberty " If the impact of the
regulation does not rise to the level appropriate for our strict
scrutiny, then our inquiry is limited to whether the state law
bears "some rational relationship to legitimate state pur-
poses " Id , at 40 Even in the First Amendment context,
we have required in some circumstances that state laws
"infringe substantially" on protected conduct, Gibson v Flor
ida Legislative Investigation Committee, 372 U S 539, 545
(opinion of POWELL, J ) (State may not "unduly burden the right to seek an
abortion"), Harris v McRae, 448 U S 297, 314 (1980) ("The doctrine of
Roe v Wade, the Court held in Maker, 'protects the woman from unduly
burdensome interference with her freedom to decide whether to termi
nate her pregnancy/ [432 U S ], at 473-474, such as the severe criminal
sanctions at issue in Roe v Wade, supra, or the absolute requirement of
spousal consent for an abortion challenged in Planned Parenthood of
Central Missouri v Danforth, 428 U S 52"), Beal v Doe, 432 U S
438, 446 (1977) (The state interest in protecting potential human life "does
not, at least until approximately the third trimester, become sufficiently
compelling to justify unduly burdensome state interference "), Carey
v Population Services International, 431 U S 678, 705 (1977) (POWELL,
J , concurring in part and concurring in judgment) ("In my view, [Roe and
Gnswold v Connecticut, 381 U S 479 (1965),] make clear that the [com
pelling state interest] standard has been invoked only when the state regu
lation entirely frustrates or heavily burdens the exercise of constitutional
rights in this area See Bellotti v Baird, 428 U S 132, 147 (1976)")
Even though the Court did not explicitly use the "unduly burdensome"
standard m evaluating the informed-consent requirement in Planned
Parenthood of Central Missouri v Danforth, supra, the informed-consent
requirement for first-trimester abortions in Danforth was upheld because
it did not "unduly burde[n] the right to seek an abortion " Bellotti I,
supra, at 147
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 463
416 O'CONNOR, J , dissenting
(1963), or that there be "a significant encroachment upon per-
sonal liberty," Bates v City of Little Rock, 361 U S 516, 524
(1960)
In Carey v Population Services International, 431 U S
678 (1977), we eschewed the notion that state law had to meet
the exacting "compelling state interest" test "'whenever it
implicates sexual freedom ' " Id , at 688, n 5 Rather, we
required that before the "strict scrutiny" standard was em-
ployed, it was necessary that the state law "imposfe] a sig-
nificant burden" on a protected right, id , at 689, or that it
"burden an individual's right to decide to prevent conception
or terminate pregnancy by substantially limiting access to
the means of effectuating that decision " Id , at 688
(emphasis added) The Court stressed that "even a burden-
some regulation may be validated by a sufficiently compelling
state interest " Id , at 686 Finally, Griswold v Connecti-
cut, 381 U S 479, 485 (1965), recognized that a law banning
the use of contraceptives by married persons had "a maxi-
mum destructive impact" on the marital relationship
Indeed, the Court today follows this approach Although
the Court does not use the expression "undue burden," the
Court recognizes that even a "significant obstacle" can be justi-
fied by a "reasonable" regulation See ante, at 434, 435, 438
The "undue burden" required in the abortion cases repre-
sents the required threshold inquiry that must be conducted
before this Court can require a State to justify its legislative
actions under the exacting "compelling state interest" stand-
ard "[A] test so severe that legislation rarely can meet it
should be imposed by courts with deliberate restraint in view
of the respect that properly should be accorded legislative
judgments " Carey, supra, at 705 (POWELL, J , concurring
in part and concurring in judgment)
The "unduly burdensome" standard is particularly appro-
priate in the abortion context because of the nature and scope
of the right that is involved The privacy right involved in
the abortion context "cannot be said to be absolute " Roe,
464 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 u §
410 U S , at 154 "Roe did not declare an unqualified 'con
stitutional right to an abortion ' " Maker, 432 U S , at 473
Rather, the Roe right is intended to protect against state
action "drastically limiting the availability and safety of the
desired service," id , at 472, against the imposition of an "ab
solute obstacle" on the abortion decision, Danforth, 428 U S ,
at 70-71, n 11, or against "official interference" and "coer
cive restraint" imposed on the abortion decision, Hams, 448
U S , at 328 (WHITE, J , concurring) That a state regula
tion may "inhibit" abortions to some degree does not require
that we find that the regulation is invalid See H L v
Matheson, 450 U S 398, 413 (1981)
The abortion cases demonstrate that an "undue burden"
has been found for the most part in situations involving abso-
lute obstacles or severe limitations on the abortion decision
In Roe, the Court invalidated a Texas statute that criminal
ized all abortions except those necessary to save the life of
the mother In Danforth, the Court invalidated a state pro
hibition of abortion by saline ammocentesis because the ban
had "the effect of inhibiting the vast majority of abortions
after the first 12 weeks " 428 U S , at 79 The Court today
acknowledges that the regulation in Danforth effectively
represented "a complete prohibition on abortions in certain
circumstances " Ante, at 429, n 11 (emphasis adued) In
Danforth, the Court also invalidated state regulations requir-
ing parental or spousal consent as a prerequisite to a first-
trimester abortion because the consent requirements effec
tively and impermissibly delegated a "veto power" to parents
and spouses during the first trimester of pregnancy In both
Bellotti I, 428 U S 132 (1977), and Bellotti v Baird, 443
U S 622 (1979) (Bellotti II), the Court was concerned with
effective parental veto over the abortion decision 9
9 The only case in which the Court invalidated regulators that were not
"undue burdens'9 was Doe v Bolton, 410 U S 179 (1973), which was
decided on the same day as Roe In Doe, the Court invalidated a hospital!
zation requirement because it covered first trimester abortion The Court
4.KRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 465
416 O'CONNOR, J , dissenting
In determining whether the State imposes an "undue bur-
den/7 we must keep in mind that when we are concerned with
extremely sensitive issues, such as the one involved here,
"the appropriate forum for their resolution in a democracy is
the legislature We should not forget that 'legislatures are
ultimate guardians of the liberties and welfare of the people
in quite as great a degree as the courts ' Missouri, K & T
R Co v May, 194 U S 267, 270 (1904) (Holmes, J ) "
Maker, 432 U S , at 479-480 (footnote omitted) This does
not mean that in determining whether a regulation imposes
an "undue burden" on the Roe right we defer to the judg-
ments made by state legislatures "The point is, rather,
that when we face a complex problem with many hard
questions and few easy answers we do well to pay care-
ful attention to how the other branches of Government have
addressed the same problem " Columbia Broadcasting
System, Inc v Democratic National Committee, 412 U S
94, 103 (1973) 10
also invalidated a hospital accreditation requirement, a hospital-committee
approval requirement, and a two doctor concurrence requirement The
Court clearly based its disapproval of these requirements on the fact that
the State did not impose them on any other medical procedure apart from
abortion But the Court subsequent to Doe has expressly rejected the
view that differential treatment of abortion requires invalidation of regula-
tions See Danforth, 428 U S , at 67, 80-81, Maker v Roe, 432 U S 464,
480 (1977), Hams, 448 U S , at 325 See also Planned Parenthood Assn
of Kansas City, Mo , Inc v Ashcrqft, post, p 476
10 In his amicus curiae brief in support of the city of Akron, the Solicitor
General of the United States argues that we should adopt the "unduly bur-
densome" standard and m doing so, we should "accord heavy deference to
the legislative judgment" in determining what constitutes an "undue bur
den " See Brief for the United States as Amicus Curiae 10 The Unduly
burdensome" standard is appropriate not because it incorporates deference
to legislative judgment at the threshold stage of analysis, but rather be
cause of the limited nature of the fundamental right that has been recog-
nized in the abortion cases Although our cases do require that we "pay
careful attention" to the legislative judgment before we invoke strict scru-
tiny, see e g , Columbia Broadcasting System, Inc v Democratic Na~
466 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
We must always be mindful that "[t]he Constitution does
not compel a state to fine-tune its statutes so as to encourage
or facilitate abortions To the contrary, state action 'encour
aging childbirth except in the most urgent circumstances' is
'rationally related to the legitimate governmental objective of
protecting potential life ' Hams v McRae, 448 U S , at
325 Accord, Maker v Roe, supra, at 473-474 " H L v
Matheson, supra, at 413 (footnote omitted)
IV
A
Section 1870 03 of the Akron ordinance requires that
second-trimester abortions be performed in hospitals The
Court holds that this requirement imposes a "significant obsta
cle" in the form of increased costs and decreased availability
of abortions, ante, at 434-435, 435, and the Court rejects
the argument offered by the State that the requirement is
a reasonable health regulation under Roe, 410 U S , at 163
See ante, at 435-436
For the reasons stated above, I find no justification for the
trimester approach used by the Court to analyze this restric
tion I would apply the "unduly burdensome" test and find
that the hospitalization requirement does not impose an
undue burden on that decision
The Court's reliance on increased abortion costs and de
creased availability is misplaced As the city of Akron points
out, there is no evidence in this case to show that the
two Akron hospitals that performed second-trimester abor
tions denied an abortion to any woman, or that they would
not permit abortion by the D&E procedure See Reply
Brief for Petitioner in No 81-746, p 3 In addition, there
was no evidence presented that other hospitals in nearby
areas did not provide second-trimester abortions Further,
almost any state regulation, including the licensing require-
twnal Committee, 412 U S , at 103, it is not appropriate to weigh the state
interests at the threshold stage
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 467
416 O'CONNOR, J , dissenting
ments that the Court would allow, see ante, at 437-438, n 26,
inevitably and necessarily entails increased costs for any
abortion In Simopoulos v Virginia, post, p 506, the Court
upholds the State's stringent licensing requirements that will
clearly involve greater cost because the State's licensing
scheme "is not an unreasonable means of furthering the
State's compelling interest in" preserving maternal health
Post, at 519 Although the Court acknowledges this indis-
putably correct notion in Simopoulos, it inexplicably refuses
to apply it in this case A health regulation, such as the hos-
pitahzation requirement, simply does not rise to the level
of "official interference" with the abortion decision See
Hams, supra, at 328 (WHITE, J , concurring)
Health-related factors that may legitimately be considered
by the State go well beyond what various medical organiza-
tions have to say about the physical safety of a particular
procedure Indeed, "all factors — physical, emotional, psy-
chological, familial, and the woman's age — [are] relevant to
the well-being of the patient " Doe v Bolton, 410 U S 179,
192 (1973) The ACOG Standards, upon which the Court
relies, state that "[rjegardless of advances in abortion tech-
nology, midtrimester terminations will likely remain more
hazardous, expensive, and emotionally disturbing for a woman
than early abortions " American College of Obstetricians
and Gynecologists, Technical Bulletin No 56 Methods of
Midtrimester Abortion 4 (Dec 1979)
The hospitahzation requirement does not impose an undue
burden, and it is not necessary to apply an exacting standard
of review Further, the regulation has a "rational relation"
to a valid state objective of ensuring the health and welfare of
its citizens See Williamson v Lee Optical Co , 348 U S
483, 491 (1955) "
11 The Court has never required that state regulation that burdens the
abortion decision be ''narrowly drawn" to express only the relevant state
interest In Roe, the Court mentioned "narrowly drawn" legislative en-
actments, 410 U S , at 155, but the Court never actually adopted this
468 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
B
Section 1870 05(B)(2) of the Akron ordinance provides that
no physician shall perform an abortion on a minor under 15
years of age unless the minor gives written consent, and the
physician first obtains the informed written consent of a par
ent or guardian, or unless the minor first obtains "an order
from a court having jurisdiction over her that the abortion be
performed or induced " Despite the fact that this regula
tion has yet to be construed in the state courts, the Court
holds that the regulation is unconstitutional because it is
not "reasonably susceptible of being construed to create an
'opportunity for case-by-case evaluations of the maturity of
pregnant minors '" Ante, at 441 (quoting Bellotti II, 443
U S , at 643-644, n 23 (plurality opinion)) I believe that
the Court should have abstained from declaring the ordinance
unconstitutional
In Bellotti I, the Court abstained from deciding whether
a state parental consent provision was unconstitutional as
standard in the Roe analysis In its decision today, the Court fully en
dorses the Roe requirement that a burdensome health regulation, or as the
Court appears to call it, a "significant obstacle," ante, at 434, be "reason
ably related" to the state compelling interest See ante, at 430-431, 435,
438 The Court recognizes that "[a] State necessarily must have latitude
in adopting regulations of general applicability in this sensitive area"
Ante, at 434 See also Simopoulos v Virginia, post, at 516 Neverthe-
less, the Court fails to apply the "reasonably related" standard The hos
pitalization requirement "reasonably relates" to its compelling interest in
protection and preservation of maternal health under any normal under
standing of what "reasonably relates" signifies
The Court concludes that the regulation must fall because "it appears
that during a substantial portion of the second trimester the State's regula
tion 'depart[s] from accepted medical practice ' " Ante, at 434 It is diffi
cult to see how the Court concludes that the regulation "depart[s] from
accepted medical practice" during "a substantial portion of the second
trimester," ibid , in light of the fact that the Court concludes that D&E
abortions may be performed safely in an outpatient clinic through 16 weeks,
or 4 weeks into the second trimester Ante, at 436-437 Four weeks
is hardly a "substantial portion" of the second trimester
AKRON i AKRON CENTER FOR REPRODUCTIVE HEALTH 469
416 O'CONNOR, J dissenting
applied to mature minors The Court recognized and re-
spected the well-settled rule that abstention is proper "where
an unconstrued state statute is susceptible of a construction
by the state judiciary 'which might avoid in whole or in part
the necessity for federal constitutional adjudication, or at
least materially change the nature of the problem ' " 428
U S , at 147 (quoting Harrison v NAACP, 360 U S 167,
177 (1959)) While acknowledging the force of the abstention
doctrine, see ante, at 440-441, the Court nevertheless de-
clines to apply it Instead, it speculates that a state juvenile
court might inquire into a minor's maturity and ability to decide
to have an abortion in deciding whether the minor is being
provided "'surgical care necessary for his health, morals,
or well being, '"ante at 44 l,n 31 (quoting Ohio Rev Code Ann
§2151 03 (1976)) The Court ultimately rejects this possible
interpretation of state law, however, because filing a petition
in juvenile court requires parental notification, an unconstitu-
tional condition insofar as mature minors are concerned
Assuming, arguendo, that the Court is correct in holding
that a parental notification requirement would be unconstitu-
tional as applied to mature minors,12 I see no reason to as-
sume that the Akron ordinance and the State Juvenile Court
statute compel state judges to notify the parents of a mature
minor if such notification was contrary to the minor's best in-
terests Further, there is no reason to believe that the state
12 In my view, no decision of this Court has yet held that parental notifi
cation in the case of mature minors is unconstitutional Although the plu-
rality opinion of JUSTICE POWELL in Bellotti II suggested that the state
statute in that case was unconstitutional because, inter aha, it failed to
provide all minors with an opportunity "to go directly to a court without
first consulting or notifying her parents," 443 U S , at 647, the Court in
H L v Matheson held that unemancipated and immature minors had
"no constitutional right to notify a court in lieu of notifying their parents "
450 U S , at 412, n 22 Furthermore, the Court in H L v Matheson
expressly did no* decide that a parental notification requirement would be
unconstitutional if the State otherwise permitted mature minors to make
abortion decisions free of parental or judicial "veto " See id , at 406-407
470 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
courts would construe the consent requirement to impose any
type of parental or judicial veto on the abortion decisions of
mature minors In light of the Court's complete lack of
knowledge about how the Akron ordinance will operate, and
how the Akron ordinance and the State Juvenile Court stat
ute interact, our " 'scrupulous regard for the rightful inde-
pendence of state governments'" counsels against "unnec-
essary interference by the federal courts with proper and
validly administered state concerns, a course so essential to
the balanced working of our federal system " Harrison v
NAACP, supra, at 176 (quoting Matthews v Rodgers, 284
U S 521, 525 (1932))
C
The Court invalidates the informed-consent provisions of
§ 1870 06(B) and § 1870 06(C) of the Akron ordinance 13 Al-
though it finds that subsections (1), (2), (6), and (7) of
§1870 06(B) are "certainly not objectionable," ante, at
445-446, n 37, it refuses to sever those provisions from sub-
sections (3), (4), and (5) because the city requires that the
"acceptable" information be provided by the attending physi-
cian when "much, if not all of it, could be given by a qualified
person assisting the physician," ibid Despite the fact that
the Court finds that § 1870 06(C) "properly leaves the precise
nature and amount of disclosure to the physician's discre
13 Section 1870 06(B) requires that the attending physician orally inform
the pregnant woman (1) that she is pregnant, (2) of the probable number of
weeks since conception, (3) that the unborn child is a human being from the
moment of conception, and has certain anatomical and physiological charac
tenstics, (4) that the unborn child may be viable and, if so, the physician
has a legal responsibility to try to save the child, (5) that abortion is a major
surgical procedure that can result in serious physical and psychological
complications, (6) that various agencies exist that will provide the pregnant
woman with information about birth control, and (7) that various agencies
exist that will assist the woman through pregnancy should she decide not
to undergo the abortion Section 1870 06(C) requires the attending physi
cian to inform the woman of risks associated with her particular pregnancy
and proposed abortion technique, as well as to furnish information that the
physician deems relevant "in his own medical judgment "
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 471
416 O'CONNOR, J , dissenting
tion and 'medical judgment/ " ante, at 447, the Court also finds
§ 1870 06(C) unconstitutional because it requires that the dis-
closure be made by the attending physician, rather than by
other "qualified persons" who work at abortion clinics
We have approved informed-consent provisions in the past
even though the physician was required to deliver certain in-
formation to the patient In Danforth, the Court upheld a
state informed-consent requirement because "[t]he decision
to abort, indeed, is an important, and often a stressful one,
and it is desirable and imperative that it be made with full
knowledge of its nature and consequences " 428 U S , at
67 14 In H L v Matheson, the Court noted that the state
statute in the case required that the patient "be advised
at a minimum about available adoption services, about fetal
development, and about foreseeable complications and risks
of an abortion See Utah Code Ann § 76-7-305 (1978) In
Planned Parenthood of Central Mo v Danforth, 428 U S
52, 65-67 (1976), we rejected a constitutional attack on writ-
ten consent provisions " 450 U S , at 400-401, n 1 In-
deed, we have held that an informed-consent provision does
not "unduly burde[n] the right to seek an abortion " Bellotti
7, 428 U S , at 147 ls
The validity of subsections (3), (4), and (5) is not before
the Court because it appears that the city of Akron conceded
their unconstitutionally before the court below See Brief
14 The Court in Danforth did not even view the informed-consent require-
ment as having a "legally significant impact" on first-trimester abortions
that would trigger the Roe and Doe proscriptions against state interference
in the decision to seek a first-trimester abortion See 428 U S , at 81
(recordkeeping requirements)
15 Assuming, arguendo, that the Court now decides that Danforth, Bel-
lotti II, and H L v Matheson were incorrect, and that the informed-
consent provisions do burden the right to seek an abortion, the Court inex-
plicably refuses to determine whether this "burden" Reasonably relates"
to legitimate state interests Ante, at 430 (quoting Roe, 410 U S , at 163)
Rather, the Court now decides that an informed-consent provision must be
justified by a "vital state need" before it can be upheld See ante, at 448
472 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 y g
for City of Akron in No 79-3757 (CA6), p 35, Reply Brief for
City of Akron m No 79-3757 (CA6), pp 5-9 In my view,
the remaining subsections of § 1870 06(B) are separable from
the subsections conceded to be unconstitutional Section
1870 19 contains a separability clause which creates a " 'pre-
sumption of divisibility' " and places "the burden on the
litigant who would escape its operation " Carter v Carter
Coal Co , 298 U S 238, 335 (1936) (opinion of Cardozo, J )
Akron Center has failed to show that severance of subsec
tions (3), (4), and (5) would "create a program quite different
from the one the legislature actually adopted " Sloan v
Lemon, 413 U S 825, 834 (1973)
The remainder of § 1870 06(B), and § 1870 06(C), impose no
undue burden or drastic limitation on the abortion decision
The city of Akron is merely attempting to ensure that the
decision to abort is made in light of that knowledge that the
city deems relevant to informed choice As such, these reg-
ulations do not impermissibly affect any privacy right under
the Fourteenth Amendment 16
D
Section 1870 07 of the Akron ordinance requires a 24-hour
waiting period between the signing of a consent form and the
actual performance of the abortion, except in cases of emer
gency See § 1870 12 The court below invalidated this re-
quirement because it affected abortion decisions during the
1 first trimester of pregnancy The Court affirms the decision
below, not on the ground that it affects early abortions, but
because "Akron has failed to demonstrate that any legitimate
state interest is furthered by an arbitrary and inflexible wait
16 This is not to say that the informed-consent provisions may not violate
the First Amendment rights of the physician if the State requires him or
her to communicate its ideology See Wooley v Maynard, 430 U S 705
(1977) However, it does not appear that Akron Center raised any First
Amendment argument m the court below See Brief for Akron Center for
Reproductive Health, Inc , in No 79-3701 (CA6), pp 18-23, Reply Brief
for Akron Center for Reproductive Health, Inc , in No 79-3701 (CA6),
pp 26-33
AKRON v AKRON CENTER FOR REPRODUCTIVE HEALTH 473
416 O'CONNOR, J , dissenting
mg period " Ante, at 450 The Court accepts the argu-
ments made by Akron Center that the waiting period in-
creases the costs of obtaining an abortion by requiring the
pregnant woman to make two trips to the clinic, and in-
creases the risks of abortion through delay and scheduling
difficulties The decision whether to proceed should be left
to the physician's " 'discretion in the exercise of his medical
judgment '" Ibid (quoting Colautti, 439 U S , at 387)
It is certainly difficult to understand how the Court be-
lieves that the physician-patient relationship is able to accom-
modate any interest that the State has in maternal physical
and mental well-being in light of the fact that the record in
this case shows that the relationship is nonexistent See 651
F 2d, at 1217 (Kennedy, J , concurring in part and dissenting
in part) It is also interesting to note that the American
College of Obstetricians and Gynecologists recommends that
"[p]rior to abortion, the woman should have access to special
counseling that explores options for the management of an
unwanted pregnancy, examines the risks, and allows suffi-
cient time for reflection prior to making an informed de-
cision " 1982 AGOG Standards for Obstetric-Gynecologic
Services, at 54
The waiting period does not apply in cases of medical emer-
gency Therefore, should the physician determine that the
waiting period would increase risks significantly, he or she
need not require the woman to wait The Court's concern in
this respect is simply misplaced Although the waiting pe-
riod may impose an additional cost on the abortion decision,
this increased cost does not unduly burden the availability of
abortions or impose an absolute obstacle to access to abor-
tions Further, the State is not required to "fine-tune" its
abortion statutes so as to minimize the costs of abortions
H L v Matheson, 450 U S , at 413
Assuming, arguendo, that any additional costs are such as
to impose an undue burden on the abortion decision, the
State's compelling interests in maternal physical and mental
474 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 u S
health and protection of fetal life clearly justify the waiting
period As we acknowledged in Danforth, 428 U S , at 67,
the decision to abort is "a stressful one," and the waiting pe'
nod reasonably relates to the State's interest in ensuring
that a woman does not make this serious decision in undue
haste The decision also has grave consequences for the
fetus, whose life the State has a compelling interest to pro-
tect and preserve "[N]o other [medical] procedure involves
the purposeful termination of a potential life " Hams, 448
U S , at 325 The waiting period is surely a small cost to
impose to ensure that the woman's decision is well considered
in light of its certain and irreparable consequences on fetal
life, and the possible effects on her own 1?
E
Finally, § 1870 16 of the Akron ordinance requires that
"[a]ny physician who shall perform or induce an abortion
upon a pregnant woman shall insure that the remains of the
unborn child are disposed of in a humane and sanitary man-
ner " The Court finds this provision void for vagueness I
disagree
In Planned Parenthood Assn v Fitzpatmck, 401 F Supp
554 (ED Pa 1975) (three-judge court), summarily a£P d sub
nom Franklin v Fitzpatrick, 428 U S 901 (1976), the Dis-
trict Court upheld a "humane disposal" provision against a
vagueness attack in light of the State's representation that
the intent of the Act " 'is to preclude the mindless dumping of
17 On the basis of this analysis of the waiting-period requirement, the
Court charges that "the dissent would uphold virtually any abortion-inhib-
iting regulation " Ante, at 421, n 1 The waiting-period require-
ment is vahd because it imposes a small cost when all relevant factors
are taken into consideration This is precisely the reasoning that JUS-
TICE POWELL employs in upholding the pathology-report requirement in
Planned Parenthood Assn of Kansas City, Mo , Inc v Ashcroft, post,
p 476 (report requirement imposes a "comparatively small additional
cost," post, at 489)
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 475
416 O'CONNOR, J., dissenting
aborted fetuses onto garbage piles/" 401 F. Supp., at 573.
The District Court held that different concerns would be im-
plicated if the statute were, at some point, determined to re-
quire "expensive burial." Ibid. In the present cases, the
city of Akron has informed this Court that the intent of the
"humane" portion of its statute, as distinguished from the
"sanitary" portion, is merely to ensure that fetuses will not
be "*dump[ed] ... on garbage piles/" Brief for Petitioner
in No. 81-746, p. 48. In light of the fact that the city of
Akron indicates no intent to require that physicians provide
"decent burials" for fetuses, and that "humane" is no more
vague than the term "sanitary," the vagueness of which
Akron Center does not question, I cannot conclude that the
statute is void for vagueness.
For the reasons set forth above, I dissent from the judg-
ment of the Court in these cases.
476 OCTOBER TERM, 1982
Syllabus 462 U S
PLANNED PARENTHOOD ASSOCIATION OF KANSAS
CITY, MISSOURI, INC , ET AL v ASHCROFT
ATTORNEY GENERAL OF MISSOURI, ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No 81-1255 Argued November 30, 1982— Decided June 15, 1983*
Missouri statutes require abortions after 12 weeks of pregnancy to be per
formed in a hospital (§ 188 025), require a pathology report for each abor
tion performed (§ 188 047), require the presence of a second physician
during abortions performed after viability (§ 188 030 3), and require
minors to secure parental consent or consent from the Juvenile Court for
an abortion (§ 188 028) In an action challenging the constitutionality of
these provisions, the District Court invalidated all provisions except
§ 188 047 The Court of Appeals reversed as to §§ 188 028 and 188 047
but affirmed as to §§ 188 030 3 and 188 025
Held Section 188 025 is unconstitutional, but §§ 188 047, 188 030 3, and
188 028 are constitutional
664 F 2d 687, affirmed in part, reversed in part, vacated in part, and
remanded
JUSTICE POWELL delivered the opinion of the Court with respect to
Parts I and II, concluding that the second-trimester hospitakzation
requirement of § 188 025 "unreasonably infringes upon a woman's con
stitutional right to obtain an abortion " Akron v Akron Center of
Reproductive Health, Inc , ante, at 439 Pp 481-482
JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded in Parts
III, IV, and V that
1 The second physician requirement of § 188 030 3 is constitutional as
reasonably furthering the State's compelling interest in protecting the
lives of viable fetuses Pp 482-486
2 The pathology-report requirement of § 188 047 is constitutional On
its face and in effect, such requirement is reasonably related to generally
accepted medical standards and furthers important health-related state
concerns In light of the substantial benefits that a pathologist's examina
tion can have, the small additional cost of such an examination does not
significantly burden a pregnant woman's abortion decision Pp 486-490
Together with No 81-1623, Ashcroft, Attorney General of Missouri,
et al v Planned Parenthood Association of Kansas City, Missouri, Inc ,
et al , also on certiorari to the same court
PLANNED PARENTHOOD ASSN v ASHCROFT 477
476 Syllabus
3 Section 188 028 is constitutional A State's interest in protecting
immature minors will sustain a requirement of a consent substitute,
either parental or judicial And as interpreted by the Court of Appeals
to mean that the Juvenile Court cannot deny a minor's application for
consent to an abortion "for good cause" unless the court first finds that
the minor was not mature enough to make her own decision, § 188 028
provides a judicial alternative that is consistent with established legal
standards See Akron v Akron Center for Reproductive Health, Inc ,
ante, at 439-440 Pp 490-493
JUSTICE O'CONNOR, joined by JUSTICE WHITE and JUSTICE REHN-
QUIST, concluded that
1 The second-physician requirement of § 188 030 3 is constitutional
because the State has a compelling interest, extant throughout preg-
nancy, in protecting and preserving fetal life P 505
2 The pathology-report requirement of § 188 047 is constitutional be-
cause it imposes no undue burden on the limited right to undergo an
abortion, and its validity is not contingent on the trimester of pregnancy
m which it is imposed P 505
3 Assuming, arguendo, that the State cannot impose a parental veto
on a minor's decision to undergo an abortion, the parental consent provi-
sion of § 188 028 2 is constitutional because it imposes no undue burden
on any right that a minor may have to undergo an abortion P 505
POWELL, J , announced the judgment of the Court m Part VI and delivered
the opinion of the Court with respect to Parts I and II, in which BURGER,
C J , and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ , joined,
and an opinion with respect to Parts III, IV, and V, in which BURGER, C J ,
joined BLACKMUN, J , filed an opinion concurring m part and dissenting in
part, in which BRENNAN, MARSHALL, and STEVENS, JJ ,jomed,pos£,p 494
O'CONNOR, J , filed an opinion concurring in the judgment in part and dis-
senting in part, in which WHITE and REHNQUIST, JJ , joined, post, p 505
Frank Susman argued the cause and filed briefs for peti-
tioners m No 81-1255 and respondents in No 81-1623
John Ashcroft, Attorney General of Missouri, pro se, ar-
gued the cause for respondents m No 81-1255 and petition-
ers in No 81-1623 With him on the briefs was Michael L
Boicourt, Assistant Attorney General t
^Dennis J Horan, Victor G Rosenblum, Patrick A Trueman, and
Thomas J Marzen filed a brief for Americans United for Life as amicus
cunae urging reversal
Briefs of armci cumae urging affirmance were filed by Sylvw A Law,
Nadine Taub, and Ellen J Winner for the Committee for Abortion Rights
478 OCTOBER TERM, 1982
Opinion of the Court 462 TJ g
JUSTICE POWELL announced the judgment of the Court in
Part VI and delivered the opinion of the Court with respect
to Parts I and II and an opinion with respect to Parts III, IV,
and V, in which THE CHIEF JUSTICE joins
These cases, like City of Akron v Akron Center for Re
productive Health, Inc , ante, p 416, and Simopoulos v
Virginia, post, p 506, present questions as to the validity of
state statutes or local ordinances regulating the performance
of abortions
I
Planned Parenthood Association of Kansas City, Missouri,
Inc , two physicians who perform abortions, and an abortion
clinic (plaintiffs) filed a complaint in the District Court for the
Western District of Missouri challenging, as unconstitutional,
several sections of the Missouri statutes regulating the per-
formance of abortions The sections relevant here include
Mo Rev Stat § 188 025 (Supp 1982), requiring that abor-
tions after 12 weeks of pregnancy be performed in a hospital, *
§ 188 047, requiring a pathology report for each abortion
performed,2 §188 030 3, requiring the presence of a second
and Against Sterilization Abuse et al , and by James Bopp, Jr , for the
National Right to Life Committee, Inc
Briefs of amici curiae were filed by Solicitor General Lee, Assistant
Attorney General McGrath, and Deputy Solicitor General Geller for the
United States, by Alan Ernest for the Legal Defense Fund for Unborn
Children, by Judith Levin for the National Abortion Federation, by Phyl
lis N Segal, Judith I Avner, and Jemera Rone for the National Orgamza
tion for Women, by Eve W Paul and Dara Klassel for the Planned Parent
hood Federation of America, Inc , et al , by Nancy Reardan for Women
Lawyers of Sacramento et al , and by Susan Frelich Appleton and Paid
Brest for Professor Richard L Abel et al
1 Missouri Rev Stat §188 025 (Supp 1982) provides "Every abortion
performed subsequent to the first twelve weeks of pregnancy shall be per
formed in a hospital "
2 Missouri Rev Stat §188 047 (Supp 1982) provides
"A representative sample of tissue removed at the time of abortion shall
be submitted to a board eligible or certified pathologist, who shall file a
PLANNED PARENTHOOD ASSN v ASHCROFT 479
475 Opinion of the Court
physician during abortions performed after viability,3 and
§ 188 028, requiring minors to secure parental or judicial
consent 4
copy of the tissue report with the state division of health, and who shall
provide a copy of the report to the abortion facility or hospital m which the
abortion was performed or induced and the pathologist's report shall be
made a part of the patient's permanent record "
8 Missouri Rev Stat § 188 030 3 (Supp 1982) provides
"An abortion of a viable unborn child shall be performed or induced only
when there is in attendance a physician other than the physician perform-
ing or inducing the abortion who shall take control of and provide immedi-
ate medical care for a child born as a result of the abortion During the
performance of the abortion, the physician performing it, and subsequent
to the abortion, the physician required by this section to be in attendance,
shall take all reasonable steps in keeping with good medical practice, con-
sistent with the procedure used, to preserve the life and health of the via-
ble unborn child, provided that it does not pose an increased risk to the life
or health of the woman "
4 Missouri Rev Stat § 188 028 (Supp 1982) provides
"1 No person shall knowingly perform an abortion upon a pregnant
woman under the age of eighteen years unless
"(1) The attending physician has secured the informed written consent
of the minor and one parent or guardian, or
"(2) The minor is emancipated and the attending physician has received
the informed written consent of the minor, or
"(3) The minor has been granted the right to self-consent to the abortion
by court order pursuant to subsection 2 of this section, and the attending
physician has received the informed written consent of the minor, or
"(4) The minor has been granted consent to the abortion by court order,
and the court has given its informed written consent in accordance with
subsection 2 of this section, and the minor is having the abortion willingly,
in compliance with subsection 3 of this section
"2 The right of a minor to self consent to an abortion under subdivision
(3) of subsection 1 of this section or court consent under subdivision (4) of
subsection 1 of this section may be granted by a court pursuant to the fol-
lowing procedures
"(1) The minor or next friend shall make an application to the juvenile
court which shall assist the minor or next friend in preparing the petition
and notices required pursuant to this section The minor or the next
friend of the minor shall thereafter file a petition setting forth the initials of
the minor, the age of the minor, the names and addresses of each parent,
480 OCTOBER TERM, 1982
Opinion of the Court 462 U S
After hearing testimony from a number of expert wit
nesses, the District Court invalidated all of these sections
except the pathology requirement 483 F Supp 679, 699-
701 (1980) 5 The Court of Appeals for the Eighth Circuit
guardian, or, if the minor's parents are deceased and no guardian has been
appointed, any other person standing in loco parentis of the minor, that the
minor has been fully informed of the risks and consequences of the abor
tion, that the minor is of sound mind and has sufficient intellectual capacity
to consent to the abortion, that, if the court does not grant the minor ma
jority rights for the purpose of consent to the abortion, the court should
find that the abortion is in the best interest of the minor and give judicial
consent to the abortion, that the court should appoint a guardian ad htem of
the child, and if the minor does not have private counsel, that the court
should appoint counsel The petition shall be signed by the minor or the
next friend,
"(3) A hearing on the merits of the petition, to be held on the record,
shall be held as soon as possible within five days of the filing of the petition
At the hearing, the court shall hear evidence relating to the emotional
development, maturity, intellect and understanding of the minor, the na
ture, possible consequences, and alternatives to the abortion, and any
other evidence that the court may find useful in determining whether the
minor should be granted majority rights for the purpose of consenting to
the abortion or whether the abortion is in the best interests of the minor,
"(4) In the decree, the court shall for good cause
"(a) Grant the petition for majority rights for the purpose of consenting
to the abortion, or
"(b) Find the abortion to be in the best interests of the minor and give
judicial consent to the abortion, setting forth the grounds for so finding, or
"(c) Deny the petition, setting forth the grounds on which the petition is
denied,
"3 If a minor desires an abortion, then she shall be orally informed of
and, if possible, sign the written consent required by section 188 039 m the
same manner as an adult person No abortion shall be performed on any
minor against her will, except that an abortion may be performed against
the will of a minor pursuant to a court order described in subdivision (4) of
subsection 1 of this section that the abortion is necessary to preserve the
life of the minor "
6 The District Court also awarded attorney's fees for all hours claimed by
the plaintiffs' attorneys The Court of Appeals affirmed this allocation of
PLANNED PARENTHOOD ASSN v ASHCROFT 481
476 Opinion of the Court
reversed the District Court's judgment with respect to
§ 188 028, thereby upholding the requirement that a minor
secure parental or judicial consent to an abortion It also
held that the District Court erred in sustaining § 188 047,
the pathology requirement The District Court's judgment
with respect to the second-physician requirement was af-
firmed, and the case was remanded for further proceed-
ings and findings relating to the second-trimester hospitali-
zation requirement 655 F 2d 848, 872-873 (1981) On
remand, the District Court adhered to its holding that the
second-trimester hospitahzation requirement was unconsti-
tutional The Court of Appeals affirmed this judgment 664
F 2d 687, 691 (1981) We granted certioran 456 U S
988 (1982)
The Court today in City of Akron, ante, at 426-431, has
stated fully the principles that govern judicial review of state
statutes regulating abortions, and these need not be repeated
here With these principles in mind, we turn to the statutes
at issue
II
In City of Akron, we invalidated a city ordinance requiring
physicians to perform all second-trimester abortions at gen-
eral or special hospitals accredited by the Joint Commission
on Accreditation of Hospitals (JCAH) or by the American
Osteopathic Association Ante, at 431-432 Missouri's
hospitahzation requirements are similar to those enacted by
Akron, as all second-trimester abortions must be performed in
general, acute-care f acihties 6 For the reasons stated in City of
fees See 655 F 2d 848, 872 (CAS 1981) The petition for certiorari
raises the issue whether an award of attorney's fees, made pursuant to 42
U S C § 1988 (1976 ed , Supp V), should be proportioned to reflect the
extent to which plaintiffs prevailed
6 Missouri does not define the term "hospital" in its statutory provisions
regulating abortions We therefore must assume, as did the courts below,
see 483 F Supp 679, 686, n 10 (1980), 664 F 2d 687, 689-690, and nn 3, 5,
and 6 (1981), that the term has its common meaning of a general, acute-
482 OCTOBER TERM, 1982
Opinion of POWELL, J 462 U s
Akron, we held that such a requirement "unreasonably in-
fringes upon a woman's constitutional right to obtain an abor-
tion " Ante, at 439 For the same reasons, we affirm the
Court of Appeals' judgment that § 188 025 is unconstitutional
III
We turn now to the State's second-physician requirement
In Roe v Wade, 410 U S 113 (1973), the Court recognized
that the State has a compelling interest in the life of a viable
fetus "[T]he State in promoting its interest in the potential-
ity of human life may, if it chooses, regulate, and even pro-
scribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of
the mother " Id , at 164-165 See Colautti v Franklin,
439 U S 379, 386-387 (1979), Beal v Doe, 432 U S 438,
445_446 (1977) Several of the Missouri statutes under-
take such regulation Postviabihty abortions are proscribed
except when necessary to preserve the life or the health of
the woman Mo Rev Stat § 188 030 1 (Supp 1982) The
care facility Cf Mo Rev Stat § 188 015(2) (Supp 1982) (defining "abor
tion facility" as "a clinic, physician's office, or any other place or facility in
which abortions are performed other than a hospital") Section 197 020 2
(1978), part of Missouri's hospital licensing laws, reads
" 'Hospital' means a place devoted primarily to the maintenance and op-
eration of facilities for the diagnosis, treatment or care for not less than
twenty-four hours in any week of three or more nonrelated individuals suf
fering from illness, disease, injury, deformity or other abnormal physical
conditions, or a place devoted primarily to provide for not less than twenty
four hours m any week medical care for three or more nonrelated
individuals "
Cf Mo Rev Stat § 197 200(1) (1978) (defining "ambulatory surgical cen
ter" to include facilities "with an organized medical staff of physicians" and
"with continuous physician services and registered professional nursing
services whenever a patient is in the facility"), 13 Mo Admin Code
§ 50-30 01Q(1)(A) (1977) (same) The regulations for the Department of
Social Services establish standards for the construction, physical facilities,
and administration of hospitals §§ 50-20 010 to 50-20 030 These are
not unlike those set by JCAH See City of Akron, ante, at 432, and n 16
PLANNED PARENTHOOD ASSN v ASHCROFT 483
476 Opinion of POWELL, J
State also forbids the use of abortion procedures fatal to the
viable fetus unless alternative procedures pose a greater risk
to the health of the woman § 188 030 2
The statutory provision at issue in this case requires the
attendance of a second physician at the abortion of a viable
fetus § 188 030 3 This section requires that the second
physician "take all reasonable steps in keeping with good
medical practice to preserve the life and health of the via-
ble unborn child, provided that it does not pose an increased
risk to the life or health of the woman " See n 3, supra It
also provides that the second physician "shall take control of
and provide immediate medical care for a child born as a
result of the abortion "
The lower courts invalidated § 188 030 3 7 The plaintiffs,
respondents here on this issue, urge affirmance on the
7 The courts below found, and JUSTICE BLACKMUN'S partial dissenting
opinion agrees, post, at 499-500, that there is no possible justification for a
second-physician requirement whenever D&E is used because no viable fetus
can survive a D&E procedure 483 F Supp , at 694, 655 F 2d, at 865
Accordingly, for them, § 188 030 3 is overbroad This reasoning rests on
two assumptions First, a fetus cannot survive a D&E abortion, and sec-
ond, D&E is the method of choice in the third trimester There is general
agreement as to the first proposition, but not as to the second Indeed,
almost all of the authorities disagree with JUSTICE BLACKMUN'S critical as-
sumption, and as the Court of Appeals noted, the choice of this procedure
after viability is subject to the requirements of § 188 030 2 See id , at
865, and n 28 Nevertheless, the courts below, in conclusory language,
found that D&E is the "method of choice even after viability is possible "
Id , at 865 No scholarly writing supporting this view is cited by those
courts or by the partial dissent Reliance apparently is placed solely on the
testimony of Dr Robert Crist, a physician from Kansas, to whom the District
Court referred in a footnote 483 F Supp , at 694, n 25 This testimony
provides slim support for this holding Dr Grist's testimony, if nothing
else, is remarkable in its candor He is a member of the National Abortion
Federation, "an organization of abortion providers and people interested in
the pro-choice movement " 3 Record 415-416 He supported the use of
D&E on 28-week pregnancies, well into the third trimester In some cir-
cumstances, he considered it a better procedure than other methods See
id , at 427-428 His disinterest in protecting fetal life is evidenced by his
484 OCTOBER TERM, 1982
Opinion of POWELL, J 462 U S
grounds that the second-physician requirement distorts the
traditional doctor-patient relationship, and is both impracti-
cal and costly They note that Missouri does not require two
agreement "that the abortion patient has a right not only to be rid of the
growth, called a fetus in her body, but also has a right to a dead fetus "
Id , at 431 He also agreed that he "[njever ha[s] any intention of trying
to protect the fetus, if it can be saved," ibid , and finally that "as a general
principle" "[t]here should not be a live fetus," id , at 435 Moreover, con
trary to every other view, he thought a fetus could survive a D&E abor
tion Id , at 433-434 None of the other physicians who testified at the
trial, those called both by the plaintiffs and defendants, considered that
any use of D&E after viability was indicated See 2 Record 21 (kimting
use of D&E to under 18 weeks), 3 Record 381, 410-413 (Dr Robert
Kretzschmar) (D&E up to 17 weeks, would never perform D&E after 26
weeks), 5 Record 787 (almost "inconceivable" to use D&E after viability), 7
Record 52 (D&E safest up to 18 weeks), id , at 110 (doctor not performing
D&E past 20 weeks), id , at 111 (risks of doing outpatient D&E equiva
lent to childbirth at 24 weeks) See also 8 Record 33, 78-81 (deposition
of Dr WiUard Gates) (16 weeks latest D&E performed) Apparently
Dr Crist performed abortions only in Kansas, 3 Record 334, 368, 428, a
State having no statutes comparable to § 188 030 1 and § 188 030 2 It is
not clear whether he was operating under or familiar with the limitations
imposed by Missouri law Nor did he explain the circumstances when
there were "contraindications" against the use of any of the procedures
that could preserve viability, or whether his conclusory opinion was limited
to emergency situations Indeed, there is no record evidence that D&E
ever will be the method that poses the least risk to the woman in those rare
situations where there are compelling medical reasons for performing an
abortion after viability If there were such instances, they hardly would
justify invalidating § 188 030 3
In addition to citing Dr Crist in its footnote, the District Court cited—
with no elaboration — Dr Schmidt His testimony, reflecting no agree-
ment with Dr Crist, is enlightening Although he conceded that the at
tendance of a second physician for a D&E abortion on a viable fetus was not
necessary, he considered the point mostly theoretical, because he "simply
[did] not believe that the question of viability comes up when D&E is
an elected method of abortion " 5 Record 836 When reminded of
Dr Grist's earlier testimony, he conceded the remote possibility of third-
trimester D&E abortions, but stated "I personally cannot conceive that as
a significant practical point It may be important legally, but [not] from a
medical standpoint " Ibid Given that Dr Crist's discordant test
PLANNED PARENTHOOD ASSN v ASHCROFT 485
476 Opinion of POWELL, J
physicians in attendance for any other medical or surgical
procedure, including childbirth or delivery of a premature
infant
The first physician's primary concern will be the life and
health of the woman Many third-trimester abortions in
Missouri will be emergency operations,8 as the State permits
these late abortions only when they are necessary to pre-
serve the hfe or the health of the woman It is not unreason-
able for the State to assume that during the operation the
first physician's attention and skills will be directed to pre-
serving the woman's health, and not to protecting the actual
life of those fetuses who survive the abortion procedure Vi-
able fetuses will be in immediate and grave danger because of
their premature birth A second physician, in situations
where Missouri permits third-trimester abortions, may be of
assistance to the woman's physician in preserving the health
and life of the child
By giving immediate medical attention to a fetus that is de-
livered alive, the second physician will assure that the State's
interests are protected more fully than the first physician
alone would be able to do And given the compelling inter-
est that the State has in preserving life, we cannot say that
the Missouri requirement of a second physician in those un-
mony is wholly unsupported, the State's compelling interest in protecting a
viable fetus justifies the second-physician requirement even though there
may be the rare case when a physician may think honestly that D&E is
required for the mother's health Legislation need not accommodate
every conceivable contingency
8 There is no clearly expressed exception on the face of the statute for the
performance of an abortion of a viable fetus without the second physician in
attendance There may be emergency situations where, for example, the
woman's health may be endangered by delay Section § 188 030 3 is quali-
fied, at least in part, by the phrase "provided that it does not pose an in-
creased risk to the life or health of the woman " This clause reasonably
could be construed to apply to such a situation Cf H L v Matheson,
450 U S 398, 407, n 14 (1981) (rejecting argument that Utah statute
might apply to individuals with emergency health care needs)
486 OCTOBER TERM, 1982
Opinion of POWELL, J 4^2 u Q
usual circumstances where Missouri permits a third-trimes
ter abortion is unconstitutional Preserving the life of a via
ble fetus that is aborted may not often be possible,9 but the
State legitimately may choose to provide safeguards for the
comparatively few instances of live birth that occur We
believe the second-physician requirement reasonably furthers
the State's compelling interest in protecting the lives of
viable fetuses, and we reverse the judgment of the Court of
Appeals holding that § 188 030 3 is unconstitutional
IV
In regulating hospital services within the State, Missouri
requires that "[a]ll tissue surgically removed with the excep-
tion of such tissue as tonsils, adenoids, hermal sacs and
prepuces, shall be examined by a pathologist, either on the
premises or by arrangement outside of the hospital " 13
Mo Admin Code § 50-20 030(3)(A)7 (1977) With respect to
abortions, whether performed in hospitals or in some other
facility, § 188 047 requires the pathologist to "file a copy of
the tissue report with the state division of health " See
n 2, supra The pathologist also is required to "provide a
copy of the report to the abortion facility or hospital in which
the abortion was performed or induced " Thus, Missouri
appears to require that tissue following abortions, as well as
from almost all other surgery performed in hospitals, must be
submitted to a pathologist, not merely examined by the per-
forming doctor The narrow question before us is whether
the State lawfully also may require the tissue removed fol
9 See American College of Obstetricians and Gynecologists (AGOG) Tech
meal Bulletin No 56, p 4 (Dec 1979) (as high as 7% live-birth rate for
intrauterme instillation of uterotomc agents), Stroh & Hmman, Reported
Live Births Following Induced Abortion Two and One-Half Years' Expen
ence in Upstate New York, 126 Am J Obstet Gynecol 83, 83-84 (1976)
(26 live births following saline induced-abortions, 9 following hysterotomy;
1 following oxtyocm induced abortion) (1 survival out of 38 live births), 5
Record 728 (50-62% mortality rate for fetuses 26 and 27 weeks), id , at 729
(25-92% mortality rate for fetuses 28 and 29 weeks), id , at 837 (50% mor
tahty rate at 34 weeks)
PLANNED PARENTHOOD ASSN v ASHCROFT 487
476 Opinion of POWELL, J
lowing abortions performed in climes as well as in hospitals to
be submitted to a pathologist
On its face and in effect, § 188 047 is reasonably related to
generally accepted medical standards and "further[s] impor-
tant health-related state concerns " City of Akron, ante, at
430 As the Court of Appeals recognized, pathology examina-
tions are clearly "useful and even necessary in some cases,"
because "abnormalities in the tissue may warn of serious,
possibly fatal disorders " 655 F 2d, at 870 10 As a rule, it is
accepted medical practice to submit all tissue to the examina-
tion of a pathologist n This is particularly important follow-
ing abortion, because questions remain as to the long-range
10 A pathological examination is designed to assist in the detection of fatal
ectopic pregnancies, hydatidiform moles or other precancerous growths,
and a variety of other problems that can be discovered only through a
pathological examination The general medical utility of pathological exam-
inations is clear See, e g , AGOG, Standards for Obstetric-Gynecologic
Services 52 (5th ed 1982) (1982 AGOG Standards), National Abortion
Federation (NAF) Standards 6 (1981) (compliance with standards oblig-
atory for NAF member facilities to remain in good standing), Brief
for American Public Health Association as Arrncus Cunae, O T 1982,
Nos 81-185, 81-746, 81-1172, p 29, n 6 (supporting the NAF standards
for nonhospital abortion facilities as constituting "minimum standards")
nACOG's standards at the time of the District Court's trial recom-
mended that a "tissue or operative review committee" should examine "all
tissue removed at obstetric-gynecologic operations " AGOG, Standards
for Obstetric-Gynecologic Services 13 (4th ed 1974) The current AGOG
Standards also state as a general rule that, for all surgical services per-
formed on an ambulatory basis, "[t]issue removed should be submitted to a
pathologist for examination " 1982 AGOG Standards, at 52 JUSTICE
BLACKMUN'S partial dissent, however, relies on the recent modification of
these Standards as they apply to abortions AGOG now provides an "ex-
ception to the practice" of mandatory examination by a pathologist and
makes such examination for abortion tissue permissive Ibid Not sur-
prisingly, this change in policy was controversial within the College See
5 Record 799-800 AGOG found that "[n]o consensus exists regarding
routine microscopic examination of aspirated tissue in every case," though
it recognized — on the basis of inquiries made in 29 institutions — that in a
majority of them a microscopic examination is performed in all cases
AGOG, Report of Committee on Gynecologic Practice, Item #621 (June
27-28, 1980)
488 OCTOBER TERM, 1982
Opinion of POWELL, J 462 U S
complications and their effect on subsequent pregnancies
See App 72-73 (testimony of Dr Willard Gates, Jr ), Levin,
Schoenbaum, Monson, Stubblefield, & Ryan, Association of
Induced Abortion with Subsequent Pregnancy Loss, 243
JAMA 2495, 2499 (1980) Recorded pathology reports,
in concert with abortion complication reports, provide a sta
tistical basis for studying those complications Cf Planned
Parenthood of Central M^ssour^ v Danforth, 428 U S 52
81 (1976)
Plaintiffs argue that the physician performing the abortion
is as qualified as a pathologist to make the examination
This argument disregards the fact that Missouri requires a
pathologist — not the performing physician — to examine tis
sue after almost every type of surgery Although this re-
quirement is in a provision relating to surgical procedures in
hospitals, many of the same procedures included within the
Missouri statute customarily are performed also in outpatient
clinics No reason has been suggested why the prudence re-
quired in a hospital should not be equally appropriate in such
a clinic Indeed, there may be good reason to impose
stricter standards in this respect on clinics performing abor
tions than on hospitals 12 As the testimony in the District
12 The professional views that the plaintiffs find to support their position
do not disclose whether consideration was given to the fact that not all
abortion clinics, particularly inadequately regulated clinics, conform to eth-
ical or generally accepted medical standards See Bellotti v Beard, 443
U S 622, 641, n 21 (1979) (Bellotti II) (minors may resort to "incompetent
or unethical" abortion clinics), Planned Parenthood of Central Missouri v
Danforth, 428 U S 52, 91, n 2 (1976) (Stewart, J , concurring) The Sun
Times of Chicago, in a series of special reports, disclosed widespread ques-
tionable practices in abortion clinics m Chicago, including the failure to
obtain proper pathology reports See The Abortion Profiteers, Chicago
Sun-Times 25-26 (Special Reprint 1978) It is clear, therefore, that a
State reasonably could conclude that a pathology requirement is necessary
in abortion clinics as well as in general hospitals
In suggesting that we make from a "comfortable perspective" the judg
ment that a State constitutionally can require the additional cost of a pathol-
ogy examination, JUSTICE BLACKMUN'S partial dissent suggests that we
PLANNED PARENTHOOD ASSN v ASHCROFT 489
476 Opinion of POWELL, J
Court indicates, medical opinion differs widely on this ques-
tion See 4 Record 623, 5 Record 749-750, 798-800, 845-847,
n 11, supra There is substantial support for Missouri's re-
quirement In this case, for example, Dr Bernard Nathan-
son, a widely experienced abortion practitioner, testified that
he requires a pathologist examination after each of the 60,000
abortions performed under his direction at the New York
Center for Reproductive and Sexual Health He considers it
"absolutely necessary to obtain a pathologist's report on each
and every specimen of tissue removed from abortion or for
that matter from any other surgical procedure which involves
the removal of tissue from the human body " App 143-144
See also id , at 146-147 (testimony of Dr Keitges), 5 Record
798-799 (testimony of Dr Schmidt) 13
In weighing the balance between protection of a woman's
health and the comparatively small additional cost of a pa-
thologist's examination, we cannot say that the Constitution
requires that a State subordinate its interest in health to min-
imize to this extent the cost of abortions Even in the early
weeks of pregnancy, "[c]ertam regulations that have no
significant impact on the woman's exercise of her right [to
disregard the interests of the "woman on welfare or the unemployed teen-
ager " Post, at 498 But these women may be those most likely to seek
the least expensive clinic available As the standards of medical practice
in such clinics may not be the highest, a State may conclude reasonably
that a pathologist's examination of tissue is particularly important for then-
protection
13 JUSTICE BLACKMUN'S partial dissent appears to suggest that § 188 047
is constitutionally infirm because it does not require microscopic examina-
tion, post, at 496-497, but that misses the point of the regulation The
need is for someone other than the performing clinic to make an independ-
ent medical judgment on the tissue See n 12, supra, 5 Record 750 (Dr
Pierre Keitges, a pathologist) It is reasonable for the State to assume
that an independent pathologist is more likely to perform a microscopic
examination than the performing doctor See H Cove, Surgical Pathol-
ogy of the Endometnum 28 (1981) ("To the pathologist, abortions of any
sort are evaluated grossly and microscopically for the primary purpose of
establishing a diagnosis of intrauterme pregnancy") (emphasis added)
490 OCTOBER TERM, 1982
Opinion of POWELL, J 462 U g
decide to have an abortion] may be permissible where justi
fled by important state health objectives " City of Akron,
ante, at 430 See Danforth, supra, at 80-81 We think the
cost of a tissue examination does not significantly burden a
pregnant woman's abortion decision The estimated cost of
compliance for plaintiff Reproductive Health Services was
$19 40 per abortion performed, 483 F Supp , at 700, n 48,
and in light of the substantial benefits that a pathologist^
examination can have, this small cost clearly is justified In
Danforth, this Court unanimously upheld Missouri's record
keeping requirement as "useful to the State's interest in
protecting the health of its female citizens, and [as] a re-
source that is relevant to decisions involving medical expe-
rience and judgment," 428 U S , at 81 14 We view the
requirement for a pathology report as comparable and as
a relatively insignificant burden Accordingly, we reverse
the judgment of the Court of Appeals on this issue
V
As we noted in City of Akron, the relevant legal standards
with respect to parental-consent requirements are not in dis
pute See ante, at 439, Bellotti v Baird, 443 U S 622,
640-642, 643-644 (1979) (Bellotti II) (plurality opinion), id ,
at 656-657 (WHITE, J , dissenting) 16 A State's interest in
14 The Danforth Court also noted that "[t]he added requirements for con
fidentiality, with the sole exception for public health officers, and for reten-
tion for seven years, a period not unreasonable in length, assist and per
suade us in our determination of the constitutional limits " 428 U S , at
81 Missouri extends the identical safeguards found reassuring in Danforth
to the pathology reports at issue here See Mo Rev Stat §§188 055 2,
188 060 (Supp 1982)
16 The dissenters apparently believe that the issue here is an open one,
and adhere to the views they expressed in Bellotti II Post, at 503-504
But those views have never been adopted by a majority of this Court,
while a majority have expressed quite differing views See H L v
Mathe&on, 450 U S 398 (1981), Bellotti II (plurality opinion), 443 U S,at
656-657 (WHITE, J , dissenting)
PLANNED PARENTHOOD ASSN v ASHCROFT 491
476 Opinion of POWELL, J
protecting immature minors will sustain a requirement of a
consent substitute, either parental or judicial It is clear,
however, that "the State must provide an alternative proce-
dure whereby a pregnant minor may demonstrate that she is
sufficiently mature to make the abortion decision herself or
that, despite her immaturity, an abortion would be in her best
interests "16 City of Akron, ante, at 439-440 17 The issue
here is one purely of statutory construction whether Mis-
16 The plurality in Bellotti II also required that the alternative to parental
consent must "assure" that the resolution of this issue "will be completed
with anonymity and sufficient expedition to provide an effective opportu-
nity for an abortion to be obtained " Id , at 644 Confidentiality here
is assured by the statutory requirement that allows the minor to use her
initials on the petition Mo Rev Stat § 188 028 2(1) (Supp 1982) As
to expedition of appeals, § 188 028 2(6) provides in relevant part
"The notice of intent to appeal shall be given within twenty-four hours from
the date of issuance of the order The record on appeal shall be completed
and the appeal shall be perfected within five days from the filing of notice
to appeal Because time may be of the essence regarding the performance
of the abortion, the supreme court of this state shall, by court rule, provide
for expedited appellate review of cases appealed under this section "
We believe this section provides the framework for a constitutionally
sufficient means of expediting judicial proceedings Immediately after
the effective date of this statutory enactment, the District Court enjoined
enforcement No unemancipated pregnant minor has been required to
comply with this section Thus, to this point in time, there has been no
need for the State Supreme Court to promulgate rules concerning appellate
review There is no reason to believe that Missouri will not expedite
any appeal consistent with the mandate in our prior opinions
17 Cf H L v Matheson, supra, at 406-407, and n 14, 411 (upholding
a parental notification requirement but not extending the holding to ma-
ture or emancipated minors or to immature minors showing such notifica-
tion detrimental to their best interests) The lower courts found that
§ 188 O28's notice requirement was unconstitutional 655 F 2d, at 873, 483
F Supp , at 701 The State has not sought review of that judgment here
Thus, m the posture in which it appears before this Court for review,
§ 188 028 contains no requirement for parental notification
492 OCTOBER TERM, 1982
Opinion of POWELL, J 462 U ^
souri provides a judicial alternative that is consistent with
these established legal standards 18
The Missouri statute, § 188 028 2,19 in relevant part, pro-
vides
"(4) In the decree, the court shall for good cause
"(a) Grant the petition for majority rights for the pur
pose of consenting to the abortion, or
"(b) Find the abortion to be in the best interests of the
minor and give judicial consent to the abortion, setting
forth the grounds for so finding, or
"(c) Deny the petition, setting forth the grounds on
which the petition is denied "
On its face, §1880282(4) authorizes Juvenile Courts20 to
choose among any of the alternatives outlined m the section
18 The Missouri statute also exempts "emancipated" women under the age
of 18 both from the requirement of parental consent and from the alter
native requirement of a judicial proceeding Plaintiffs argue that the
word "emancipated" in this context is void for vagueness, but we disagree
Cf H L v Matheson, supra, at 407 (using word to describe a minor)
Although the question whether a minor is emancipated turns upon the
facts and circumstances of each individual case, the Missouri courts have
adopted general rules to guide that determination, and the term is one of
general usage and understanding in the Missouri common law See Black
v Cole, 626 S W 2d 397, 398 (Mo App 1981) (quoting 67 C J S , Parent
and Child § 86, p 811 (1950)), In re Marriage ofHeddy, 535 S W 2d 276,
279 (Mo App 1976) (same), Wurth v Wurth, 313 S W 2d 161, 164 (Mo
App 1958) (same), rev'd on other grounds, 322 S W 2d 745 (Mo 1959)
u See n 4, supra This Court in Danforth held unconstitutional Mis-
souri's parental-consent requirement for all unmarried minors under the
age of 18 428 U S , at 75 In response to our decision, Missouri enacted
the section challenged here This new statute became effective shortly
before our decision in BelloUi II
20 We have indicated in prior opinions that a minor should have access to
an "independent decisionmaker " H L v Matheson, supra, at 420 (Pow
ELL, J , concurring) Missouri has provided for a judicial decisionmaker
We therefore need not consider whether a qualified and independent non-
judicial decisionmaker would be appropriate Cf Bellotto //, 443 U S , at
643, n 22
PLANNED PARENTHOOD ASSN v ASHCROFT 493
476 Opinion of POWELL, J
The Court of Appeals concluded that a denial of the petition
permitted in subsection (c) "would initially require the court
to find that the minor was not emancipated and was not ma-
ture enough to make her own decision and that an abortion
was not in her best interests " 655 F 2d, at 858 Plaintiffs
contend that this interpretation is unreasonable We do not
agree
Where fairly possible, courts should construe a statute to
avoid a danger of unconstitutionally The Court of Appeals
was aware, if the statute provides discretion to deny permis-
sion to a minor for any "good cause," that arguably it would
violate the principles that this Court has set forth Ibid It
recognized, however, that before exercising any option, the
Juvenile Court must receive evidence on "the emotional
development, maturity, intellect and understanding of the
minor " Mo Rev Stat § 188 028 2(3) (Supp 1982) The
court then reached the logical conclusion that "findings and
the ultimate denial of the petition must be supported by a
showing of 'good cause '" 655 F 2d, at 858 The Court of
Appeals reasonably found that a court could not deny a peti-
tion "for good cause" unless it first found — after having re-
ceived the required evidence — that the minor was not mature
enough to make her own decision See Bellotti //, 443 U S ,
at 643-644, 647-648 (plurality opinion) We conclude that
the Court of Appeals correctly interpreted the statute and
that § 188 028, as interpreted, avoids any constitutional
infirmities 21
21 Plaintiffs also argue that, in light of the ambiguity of § 188 028 2(4), as
evidenced by the differing interpretations placed upon it, the appropriate
course of judicial restraint is abstention This Court has found such an
approach appropriate See Bellotti v Baird, 428 U S 132, 146-147
(1976) (Bellotti I) Plaintiffs did not, however, argue in the Court of Ap-
peals that the court should abstain, and Missouri has no certification proce-
dure whereby this Court can refer questions of state statutory construction
to the State Supreme Court See 655 F 2d, at 861, n 20, 17 C Wright,
A Miller, & E Cooper, Federal Practice and Procedure § 4248, p 525,
n 29 (1978 and Supp 1982) Such a procedure "greatly simphfie[d]" our
494 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
VI
The judgment of the Court of Appeals, insofar as it invali-
dated Missouri's second-trimester hospitalization require-
ment and upheld the State's parental- and judicial-consent
provision, is affirmed The judgment invalidating the re-
quirement of a pathology report for all abortions and the re-
quirement that a second physician attend the abortion of any
viable fetus is reversed We vacate the judgment upholding
an award of attorney's fees for all hours expended by plain-
tiffs' attorneys and remand for proceedings consistent with
Hensley v Eckerhart, 461 U S 424 (1983)
It is so ordered
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUS-
TICE MARSHALL, and JUSTICE STEVENS join, concurring in
part and dissenting in part
The Court's decision today in Akron v Akron Center for
Reproductive Health, Inc , ante, p 416, invalidates the city
of Akron's hospitalization requirement and a host of other
provisions that infringe on a woman's decision to terminate
her pregnancy through abortion I agree that Missouri's
hospitalization requirement is invalid under the Akron analy-
sis, and I join Parts I and II of JUSTICE POWELL'S opinion in
the present cases I do not agree, however, that the remain-
ing Missouri statutes challenged in these cases satisfy the
constitutional standards set forth in Akron and the Court's
prior decisions
I
Missouri law provides that whenever an abortion is per-
formed, a tissue sample must be submitted to a "board eli-
analysis in Bellotti /, supra, at 151 Moreover, where, as here, a statute
is susceptible to a fair construction that obviates the need to have the state
courts render the saving construction, there is no reason for federal courts
to abstain
PLANNED PARENTHOOD ASSN v ASHCROFT 495
476 Opinion of BLACKMUN, J
gible or certified pathologist" for a report Mo Rev Stat
§ 188 047 (Supp 1982) This requirement applies to first-
trimester abortions as well as to those performed later in
pregnancy Our past decisions establish that the perform-
ance of abortions during the first trimester must be left
"'free of interference by the State '" Akron, ante, at 430,
quoting Roe v Wade, 410 U S 113, 163 (1973) As we have
noted in Akron, this does not mean that every regulation
touching upon first-trimester abortions is constitutionally im-
permissible But to pass constitutional muster, regulations
affecting first-trimester abortions must "have no significant
impact on the woman's exercise of her right" and must be
"justified by important state health objectives " Akron,
ante, at 430, see ante, at 489-490
Missouri's requirement of a pathologist's report is not jus-
tified by important health objectives Although pathology
examinations may be "useful and even necessary in some
cases/' ante, at 487, Missouri requires more than a pathology
examination and a pathology report, it demands that the
examination be performed and the report prepared by a
"board eligible or certified pathologist" rather than by the
attending physician Contrary to JUSTICE POWELL'S asser-
tion, ibid , this requirement of a report by a pathologist is
not in accord with "generally accepted medical standards "
The routine and accepted medical practice is for the attend-
ing physician to perform a gross (visual) examination of any
tissue removed during an abortion Only if the physician de-
tects abnormalities is there a need to send a tissue sample to
a pathologist The American College of Obstetricians and
Gynecologists (ACOG) does not recommend an examination
by a pathologist in every case
"In the situation of elective termination of pregnancy,
the attending physician should record a description of
the gross products Unless definite embryonic or fetal
parts can be identified, the products of elective interrup-
496 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
tions of pregnancy must be submitted to a pathologist for
gross and microscopic examination
" Aspirated tissue should be examined to ensure
the presence of villi or fetal parts prior to the patient's
release from the facility If villi or fetal parts are not
identified with certainty, the tissue specimen must be
sent for further pathologic examination " AGOG,
Standards for Obstetric-Gynecologic Services 52, 54 (5th
ed 1982) 1
Nor does the National Abortion Federation believe that such
an examination is necessary
"All tissue must be examined grossly at the time of the
abortion procedure by a physician or trained assistant
and the results recorded in the chart In the absence of
visible fetal parts or placenta upon gross examination,
obtained tissue may be examined under a low power
microscope for the detection of villi If this examination
is inconclusive, the tissue should be sent to the nearest
suitable pathology laboratory for microscopic examina-
tion " National Abortion Federation Standards 6 (1981)
(emphasis deleted)
As the Court of Appeals pointed out, there was expert tes-
timony at trial that a nonpathologist physician is as capable of
performing an adequate gross examination as is a patholo-
gist, and that the "abnormalities which are of concern" are
'See also AGOG, Standards for Obstetric-Gynecologic Services 66
(1982)
"Tissue removed should be submitted to a pathologist for examina-
tion An exception to the practice may be in elective terminations of
pregnancy in which definitive embryonic or fetal parts can be identified
In such instances, the physician should record a description of the gross
products Unless definite embryonic or fetal parts can be identified, the
products of elective interruptions of pregnancy must be submitted to a
pathologist for gross and microscopic examination "
PLANNED PARENTHOOD ASSN v ASHCROFT 497
476 Opinion of BLACKMUN, J
readily detectable by a physician 655 F 2d 848, 871, n 37
(CAS 1981), see App 135 2 While a pathologist may be
better able to perform a microscopic examination, Missouri
law does not require a microscopic examination unless "fetal
parts or placenta are not identified " 13 Mo Admin Code
§ 50-151 030(1) (1981) Thus, the effect of the Missouri stat-
ute is to require a pathologist to perform the initial gross
examination, which is normally the responsibility of the at-
tending physician and which will often make the pathologist's
services unnecessary
On the record before us, I must conclude that the State
has not "met its burden of demonstrating that [the patholo-
gist requirement] further[s] important health-related State
concerns " Akron, ante, at 430 3 There has been no show-
ing that tissue examinations by a pathologist do more to
protect health than examinations by a nonpathologist physi-
cian Missouri does not require pathologists' reports for
any other surgical procedures performed in clinics, or for
minor surgery performed in hospitals 13 Mo Admin Code
§50-20 030(3)(A)(7) (1977) Moreover, I cannot agree with
JUSTICE POWELL that Missouri's pathologist requirement
has "no significant impact" ante, at 489, on a woman's exercise
of her right to an abortion It is undisputed that this re-
quirement may increase the cost of a first-trimester abortion
by as much as $40 See 483 F Supp 679, 700, n 48 (WD
Mo 1980) Although this increase may seem insignificant
from the Court's comfortable perspective, I cannot say that it
is equally insignificant to every woman seeking an abortion
2 The District Court made no findings on this point, noting only that some
witnesses for the State had testified that ''pathology should be done" for
every abortion 483 F Supp 679, 700, n 49 (WD Mo 1980)
3 JUSTICE POWELL appears to draw support from the facts that "ques-
tionable practices" occur at some abortion clinics, while at others "the
standards of medical practice may not be the highest " Ante, at 489,
n 12 There is no evidence, however, that such questionable practices
occur in Missouri
498 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
For the woman on welfare or the unemployed teenager, this
additional cost may well put the price of an abortion beyond
reach 4 Cf Harper v Virginia Board of Elections, 383
U S 663, 668 (1966) ($1 50 poll tax "excludes those uliable
to pay"), Burns v Ohio, 360 U S 252, 255, 257 (1959)
($20 docket fee "foreclose^] access" to appellate review for
indigents)
In Planned Parenthood of Central Missouri v Danforth,
428 U S 52, 81 (1976), the Court warned that the minor
recordkeeping requirements upheld in that case "perhaps
approach[ed] impermissible limits " Today in Akron, we
have struck down restrictions on first-trimester abortions
that "may in some cases add to the cost of providing abor
tions " Ante, at 447-448, see ante, at 449-451 Missouri's
requirement of a pathologist's report unquestionably adds
significantly to the cost of providing abortions, and Missouri
has not shown that it serves any substantial health-related
purpose Under these circumstances, I would hold that con-
stitutional limits have been exceeded
II
In Missouri, an abortion may be performed after via-
bility only if necessary to preserve the life or health of the
woman Mo Rev Stat § 188 030 1 (Supp 1982) When a
postviabihty abortion is performed, Missouri law provides that
"there [must bel in attendance a [second] physician who
4 A $40 pathologist's fee may increase the price of a first-trimester abor
tion by 20% or more See 655 F 2d 848, 869, n 35 (1981) (cost of first-
trimester abortion at Reproductive Health Services is $170), F Jafie,
B Lindheim, & P Lee, Abortion Politics Private Morality and Public Pol-
icy 36 (1981) (cost of first-trimester clinic abortion ranges from approxi
mately $185 to $235), Henshaw, Freestanding Abortion Clinics Services,
Structure, Fees, 14 Family Planning Perspectives 248, 255 (1982) (average
cost of first-trimester clinic abortion is $190), National Abortion Federation
Membership Directory 18-19 (1982/1983) (NAF clinics in Missouri charge
$180 to $225 for first-trimester abortion)
PLANNED PARENTHOOD ASSN v ASHCROFT 499
475 Opinion of BLACKMUN, J
shall take control of and provide immediate medical care for
a child born as a result of the abortion " Mo Rev Stat
§ 188 030 3 (Supp 1982) The Court recognized in Roe v
Wade, 410 U S , at 164-165, that a State's interests in pre-
serving maternal health and protecting the potentiality of
human life may justify regulation and even prohibition of
postviability abortions, except those necessary to preserve
the life and health of the mother But regulations governing
postviability abortions, like those at any other stage of preg-
nancy, must be "tailored to the recognized state interests "
Id , at 165, see H L v Matheson, 450 U S 398, 413 (1981)
("statute plainly serves important state interests, [and] is
narrowly drawn to protect only those interests"), Roe, 410
U S , at 155 ("legislative enactments must be narrowly
drawn to express only the legitimate state interests at
stake")
A
The second-physician requirement is upheld in these cases
on the basis that it "reasonably furthers the State's compel-
ling interest in protecting the lives of viable fetuses " Ante,
at 486 While I agree that a second physician indeed may aid
in preserving the life of a fetus born alive, this type of aid is
possible only when the abortion method used is one that may
result in a live birth Although Missouri ordinarily requires
a physician performing a postviabihty abortion to use the
abortion method most likely to preserve fetal life, this re-
striction does not apply when this method "would present a
greater risk to the hfe and health of the woman " Mo Rev
Stat § 188 030 2 (Supp 1982)
The District Court found that the dilatation and evacuation
(D&E) method of abortion entails no chance of fetal survival,
and that it will nevertheless be the method of choice for some
women who need postviabihty abortions In some cases, in
other words, maternal health considerations will preclude
the use of procedures that might result m a live birth 483
500 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
F Supp , at 694 5 When a D&E abortion is performed, the
second physician can do nothing to further the State's com
pelkng interest in protecting potential hfe His presence
is superfluous The second-physician requirement thus is
overbroad and "imposes a burden on women in cases where
the burden is not justified by any possibility of survival of the
fetus " 655 F 2d, at 865-866
JUSTICE POWELL apparently believes that the State's in-
terest in preserving potential life justifies the State in requir-
ing a second physician at all postviabihty abortions because
some methods other than D&E may result in live births
But this fact cannot justify requiring a second physician to at
tend an abortion at which the chance of a live birth is nonexist-
ent The choice of method presumably will be made in ad-
vance,6 and any need for a second physician disappears when
6 The District Court relied on the testimony of Doctors Robert Crist and
Richard Schmidt Doctor Crist testified that in some instances abortion
methods other than D&E would be "absolutely contramdicated" by the
woman's health condition, 3 Record 438-439, giving the example of a recent
patient with hemolytic anemia that would have been aggravated by the use
of prostaglandins or other labor-inducing abortion methods, id , at 428
Doctor Schmidt testified that "[t]here very well may be*' situations in
which D&E would be used because other methods were contramdicated
5 Record 836 Although Doctor Schmidt previously had testified that a
postviabihty D&E abortion was "almost inconceivable," this was in re-
sponse to a question by the State's attorney regarding whether D&E
would be used "[a]bsent the possibility that there is extreme contramdica
tion for the use of prostaglandins or saline, or of hysterotomy n Id , at
787 Any inconsistencies in Doctor Schmidt's testimony apparently were
resolved by the District Court in the plaintiffs' favor
The Court of Appeals upheld the District Court's factual finding that
health reasons sometimes would require the use of D&E for postviabihty
abortions 655 F 2d, at 865 Absent the most exceptional circum-
stances, we do not review a District Court's factual findings in which the
Court of Appeals has concurred Branti v Finkel, 445 U S 507, 512,
n 6(1980)
6 In addition to requiring the physician to select the method most likely to
preserve fetal hfe, so long as it presents no greater risk to the pregnant
woman, Missouri requires that the physician "certify in writing the avail-
PLANNED PARENTHOOD ASSN v ASHCROFT 501
476 Opinion of BLACKMUN, J
the woman's health requires that the choice be D&E Be-
cause the statute is not tailored to protect the State's legiti-
mate interests, I would hold it invalid 7
B
In addition, I would hold that the statute's failure to pro-
vide a clear exception for emergency situations renders it un-
constitutional As JUSTICE POWELL recognizes, ante, at 485,
n 8, an emergency may arise in which delay could be danger-
ous to the life or health of the woman A second physician
may not always be available in such a situation, yet the stat-
ute appears to require one It states, in unqualified terms,
that a postviability abortion "shall be performed only
when there is in attendance" a second physician who "shall
take control of" any child born as a result of the abortion, and
it imposes certain duties on "the physician required by this
section to be in attendance " Mo Rev Stat § 188 030 3
(Supp 1982) (emphasis added) By requiring the attendance
of a second physician even when the resulting delay may be
harmful to the health of the pregnant woman, the statute im-
permissibly fails to make clear "that the woman's life and
able method or techniques considered and the reasons for choosing the
method or technique employed " Mo Rev Stat § 188 030 2 (Supp 1982)
This ensures that the choice of method will be a reasoned one
7 The State argues that its second-physician requirement is justified even
when D&E is used, because "[i]f the statute specifically excepted D&E
procedures, abortionists would be encouraged to use it more frequently to
avoid the expense of a second physician, to ensure a dead fetus, to pre-
vent the presence of a second professional to observe malpractice or the
choice of a questionable procedure from a safety viewpoint, a fetus-
destroying procedure, or to avoid their own awakening to concern for the
newborn " Brief for Petitioners in No 81-1623, p 44 The Court re-
jected this purported justification for a second physician in Dae v Balton,
410 U S 179, 199 (1973) "If a physician is licensed by the State, he is rec-
ognized by the State as capable of exercising acceptable clinical judgment
If he fails m this, professional censure and deprivation of his license are
available remedies Required acquiescence by co-practitioners has no
rational connection with a patient's needs and unduly infringes on the
physician's right to practice "
502 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
health must always prevail over the fetus' life and health
when they conflict " Colautti v Franklin, 439 U S 379
400 (1979)
JUSTICE POWELL attempts to cure this defect by asserting
that the final clause of the statute, requiring the two physi
cians to "take all reasonable steps to preserve the life and
health of the viable unborn child, provided that it does not
pose an increased risk to the life or health of the woman,"
could be construed to permit emergency postviability abor
tions without a second physician Ante, at 485, n 8 This
construction is contrary to the plain language of the statute,
the clause upon which JUSTICE POWELL relies refers to the
duties of both physicians during the performance of the abor
tion, but it in no way suggests that the second physician may
be dispensed with
Moreover, since JUSTICE POWELL'S proposed construction
is not binding on the courts of Missouri,8 a physician perform
ing an emergency postviability abortion cannot rely on it with
any degree of confidence The statute thus remains imper
nussibly vague, it fails to inform the physician whether he
may proceed with a postviabihty abortion in an emergency,
or whether he must wait for a second physician even if the
woman's life or health will be further imperiled by the delay
This vagueness may well have a severe chilling effect on the
physician who perceives the patient's need for a postviability
abortion In Colautti v Franklin, we considered a statute
that failed to specify whether it "reqmre[d] the physician to
make a 'trade-off' between the woman's health and additional
percentage points of fetal survival " 439 U S , at 400 The
Court held there that "where conflicting duties of this magni-
tude are involved, the State, at the least, must proceed with
greater precision before it may subject a physician to possible
8 "Only the [Missouri] courts can supply the requisite construction, since
of course *we lack jurisdiction authoritatively to construe state legisla
tion'" Gooding v Wilson, 40lf U S 518, 520 (1972), quoting United
States v Thirty seven Photographs, 402 U S 363, 369 (1971)
PLANNED PARENTHOOD ASSN v ASHCROFT 503
476 Opinion of BLACKMUN, J
criminal sanctions " Id , at 400-401 9 I would apply that
reasoning here, and hold Missouri's second-physician require-
ment invalid on this ground as well 10
III
Missouri law prohibits the performance of an abortion on
an unemancipated minor absent parental consent or a court
order Mo Rev Stat § 188 028 (Supp 1982)
Until today, the Court has never upheld "a requirement of
a consent substitute, either parental or judicial," ante, at 491
In Planned Parenthood of Central Missouri v Danforth, 428
U S , at 74, the Court invalidated a parental-consent re-
quirement on the ground that "the State does not have the
constitutional authority to give a third party an absolute, and
possibly arbitrary, veto over the decision of the physician and
his patient to terminate the patient's pregnancy, regardless
of the reason for withholding the consent " In Bellotti
v Baird, 443 U S 622 (1979) (Bellotti II), eight Justices
9 A physician who fails to comply with Missouri's second-physician re-
quirement faces criminal penalties and the loss of his license Mo Rev
Stat §§ 188 065, 188 075 (1978 and Supp 1982)
10 Because I would hold the statute unconstitutional on these grounds,
I do not reach the question whether Missouri's second-physician require-
ment impermissibly interferes with the doctor patient relationship I
note, however, that Missouri does not require attendance of a second phy-
sician at any other medical procedure, including a premature birth There
was testimony at trial that a newborn infant, whether the product of a
normal birth or an abortion, ordinarily remains the responsibility of the
woman's physician until he turns its care over to another App 133,
see AGOG, Standards for Obstetric-Gynecologic Services 31 (5th ed ,
1982) ("The individual who delivers the baby is responsible for the immedi-
ate post-delivery care of the newborn until another person assumes this
duty11)
This allocation of responsibility makes sense Consultation and team-
work are fundamental in medical practice, but in an operating room a pa-
tient's life or health may depend on split-second decisions by the physician
If responsibility and control must be shared between two physicians with
the lines of authority unclear, precious moments may be lost to the detri-
ment of both woman and child
504 OCTOBER TERM, 1982
Opinion of BLACKMUN, J 462 U S
agreed that a Massachusetts statute permitting a judicial
veto of a mature minor's decision to have an abortion was un
constitutional See id , at 649-650 (opinion of POWELL, J )
id , at 654-656 (opinion of STEVENS, J ) Although four
Justices stated in Bellotti II that an appropriately structured
judicial-consent requirement would be constitutional, id , at
647-648 (opinion of POWELL, J ), this statement was not nee
essary to the result of the case and did not command a major
ity Four other Justices concluded that any judicial-consent
statute would suffer from the same flaw the Court identified
in Danforth it would give a third party an absolute veto over
the decision of the physician and his patient 443 U S , at
655-656 (opinion of STEVENS, J )
I continue to adhere to the views expressed by JUSTICE
STEVENS in Bellotti II
"It is inherent in the right to make the abortion decision
that the right may be exercised without public scrutiny
and in defiance of the contrary opinion of the sovereign
or other third parties As a practical matter, I would
suppose that the need to commence judicial proceedings
in order to obtain a legal abortion would impose a burden
at least as great as, and probably greater than, that im
posed on the minor child by the need to obtain the con
sent of the parent Moreover, once this burden is met,
the only standard provided for the judge's decision is the
best interest of the minor That standard provides little
real guidance to the judge, and his decision must neces-
sarily reflect personal and societal values and mores
whose enforcement upon the minor — particularly when
contrary to her own informed and reasonable decision^-
is fundamentally at odds with privacy interests under-
lying the constitutional protection afforded to her deci
sion " Ibid (footnote omitted)
Because Mo Rev Stat § 188 028 (Supp 1982) permits a
parental or judicial veto of a minor's decision to obtain an
abortion, I would hold it unconstitutional
PLANNED PARENTHOOD ASSN v ASHCROFT 505
475 Opinion of O'CONNOR, J
JUSTICE O'CONNOR, with whom JUSTICE WHITE and
JUSTICE REHNQUIST join, concurring m the judgment in part
and dissenting in part
For reasons stated in my dissent in Akron v Akron
Center for Reproductive Health, ante, p 416, I believe that
the second-trimester hospitahzation requirement imposed by
§ 188 025 does not impose an undue burden on the limited
right to undergo an abortion Assuming, arguendo, that the
requirement was an undue burden, it would nevertheless
"reasonably relat[e] to the preservation and protection of
maternal health " Roe v Wade, 410 U S 113, 163 (1973)
I therefore dissent from the Court's judgment that the
requirement is unconstitutional
I agree that the second-physician requirement contained in
§ 188 030 3 is constitutional because the State possesses a
compelling interest in protecting and preserving fetal life,
but I believe that this state interest is extant throughout
pregnancy I therefore concur in the judgment of the Court
I agree that the pathology-report requirement imposed by
§ 188 047 is constitutional because it imposes no undue bur-
den on the limited right to undergo an abortion Because I
do not believe that the validity of this requirement is contin-
gent in any way on the trimester of pregnancy in which it is
imposed, I concur in the judgment of the Court
Assuming, arguendo, that the State cannot impose a pa-
rental veto on the decision of a minor to undergo an abortion,
I agree that the parental-consent provision contained in
§ 188 028 is constitutional However, I believe that the pro-
vision is valid because it imposes no undue burden on any
right that a minor may have to undergo an abortion I con-
cur in the judgment of the Court on this issue
I also concur in the Court's decision to vacate and remand
on the issue of attorney's fees in light of Hensley v Ecker-
hart,461U S 424(1983)
506 OCTOBER TERM, 1982
Syllabus 462u g
SIMOPOULOS v VIRGINIA
APPEAL FROM THE SUPREME COURT OF VIRGINIA
No 81-185 Argued November 30, 1982 — Decided June 15, 1983
Appellant, an obstetrician-gynecologist, was convicted after a Virginia
state-court trial for violating Virginia statutory provisions that make it
unlawful to perform an abortion during the second trimester of preg
nancy outside of a licensed hospital "Hospital" is defined to include
outpatient hospitals, and State Department of Health regulations define
"outpatient hospital" as including institutions that primarily furnish facil
ities for the performance of surgical procedures on outpatients The
regulations also provide that second-trimester abortions may be per
formed in an outpatient surgical clinic licensed as a hospital" by the
State The evidence at appellant's trial established, inter alia, that
he performed a second-trimester abortion on an unmarried minor by an
injection of saline solution at his unlicensed clime, that the minor under
stood appellant to agree to her plan to deliver the fetus in a motel and did
not recall being advised to go to a hospital when labor began, although
such advice was included m an instruction sheet provided her by appel
lant, and that the minor, alone in a motel, aborted her fetus 48 hours
after the saline injection The Virginia Supreme Court affirmed appel
lant's conviction
Held
1 The Virginia abortion statute was not unconstitutionally applied to
appellant on the asserted ground that the State failed to allege in the in-
dictment and to prove lack of medical necessity for the abortion Under
the authoritative construction of the statute by the Virginia Supreme
Court, the prosecution was not obligated to prove lack of medical neces
sity beyond a reasonable doubt until appellant invoked medical necessity
as a defense Placing upon the defendant the burden of going forward
with evidence on an affirmative defense is normally permissible And
appellant's contention that the prosecution failed to prove that his acts in
fact caused the fetus' death is meritless, in view of the undisputed facts
proved at trial P 510
2 Virginia's requirement that second-trimester abortions be per
formed in licensed outpatient clinics is not an unreasonable means of fur
thermg the State's important and legitimate interest in protecting the
woman's health, which interest becomes "compelling" at approximately
the end of the first trimester In Akron v Akron Center for Reproduc
SIMOPOULOSu VIRGINIA 507
506 Syllabus
tive Health, Inc , ante, p 416, and Planned Parenthood Assn of Kan
sas City, Mo , Inc v Ashcroft, ante, p 476, constitutional challenges
were upheld with regard to requirements mandating that all second
trimester abortions be performed in "general, acute-care facilities " In
contrast, the Virginia statutes and regulations do not require that such
abortions be performed exclusively in full-service hospitals, but permit
their performance at licensed outpatient clinics Thus, the decisions in
Akron and Ashcroft are not controlling here Although a State's discre-
tion in determining standards for the licensing of medical facilities does
not permit it to adopt abortion regulations that depart from accepted
medical practice, the Virginia regulations on their face are compatible
with accepted medical standards governing outpatient second-trimester
abortions Pp 510-519
221 Va 1059, 277 S E 2d 194, affirmed
POWELL, J , delivered the opinion of the Court, in which BURGER, C J ,
and BRENNAN, MARSHALL, and BLACKMUN, JJ , joined, and in Parts I and
II of which WHITE, REHNQUIST, and O'CONNOR, JJ , joined O'CONNOR,
J , filed an opinion concurring in part and concurring in the judgment, in
which WHITE and REHNQUIST, JJ , joined, post, p 519 STEVENS, J ,
filed a dissenting opinion, post, p 520
Roy Lucas argued the cause for appellant With him on
the briefs was Wilham P Marshall
William G Broaddus, Chief Deputy Attorney General of
Virginia, argued the cause for appellee With him on the
brief were Gerald L Bahles, Attorney General, and Thomas
D Bagwell and Julia Krebs-Markmch, Assistant Attorneys
General *
*Sylwa A Law, Nadine Taub, and Ellen J Winner filed a brief for the
Committee for Abortion Rights and Against Sterilization Abuse et al as
amici curiae urging reversal
Dennis J Horan, Victor G Rosenblum, Patrick A Trueman, and
Thomas J Marzen filed a brief for Americans United for Life as amwus
ewnae urging affirmance
Briefs of amici curiae were filed by Alan Ernest for the Legal Defense
Fund for Unborn Children, by Phyllis N Segal, Judith I Avner, and
Jemera Rone for the National Organization for Women et al , by David
B Hopkins for the American Public Health Association, by Nancy
Reardan for Women Lawyers of Sacramento et al , and by Susan Frehch
Appleton and Paul Brest for Certain Law Professors
508 OCTOBER TERM, 1982
Opinion of the Court 4g2 u s
JUSTICE POWELL delivered the opinion of the Court
We have considered today mandatory hospitakzation re-
quirements for second-trimester abortions in City of Akron
v Akron Center for Reproductive Health, Inc , ante,
p 416, and Planned Parenthood Assn of Kansas City, Mo \
Inc v Ashcroft, ante, p 476 The principal issue here is
whether Virginia's mandatory hospitahzation requirement is
constitutional
I
Appellant is a practicing obstetrician-gynecologist certified
by the American Board of Obstetrics and Gynecology In
November 1979, he practiced at his office in Woodbridge,
Va , at four local hospitals, and at his clinic in Falls Church,
Va The Falls Church clinic has an operating room and facil-
ities for resuscitation and emergency treatment of cardiac/
respiratory arrest Replacement and stabilization fluids are
on hand Appellant customarily performs first-trimester
abortions at his clinic During the time relevant to this case,
the clinic was not licensed, nor had appellant sought any
license for it
P M was a 17-year-old high school student when she went
to appellant's clinic on November 8, 1979 She was unmar-
ried, and told appellant that she was approximately 22 weeks
pregnant She requested an abortion but did not want her
parents to know Examination by appellant confirmed that
P M was five months pregnant, well into the second trimes-
ter Appellant testified that he encouraged her to confer
with her parents and discussed with her the alternative of
continuing the pregnancy to term She did return home, but
never advised her parents of her decision
Two days later, P M returned to the clinic with her boy-
friend The abortion was performed by an injection of saline
solution P M told appellant that she planned to deliver the
fetus in a motel, and understood him to agree to this course
Appellant gave P M a prescription for an analgesic and a
"Post-Injection Information" sheet that stated that she had
SIMOPOULOS v VIRGINIA 509
503 Opinion of the Court
undergone "a surgical procedure" and warned of a "wide
range of normal reactions " App 199 The sheet also ad-
vised that she call the physician if "heavy" bleeding began
Although P M did not recall being advised to go to a hospital
when labor began, this was included on the instruction sheet
Id , at 200
P M went to a motel Alone, she aborted her fetus in
the motel bathroom 48 hours after the saline injection She
left the fetus, followup instructions, and pain medication
in the wastebasket at the motel Her boyfriend took her
home Police found the fetus later that day and began an
investigation l
Appellant was indicted2 for unlawfully performing an abor-
tion during the second trimester of pregnancy outside of a li-
censed hospital and was convicted by the Circuit Court of Fair-
fax County sitting without a jury The Supreme Court of
Virginia unanimously affirmed the conviction 221 Va 1059,
1 Except as permitted by statute, persons performing an abortion are
guilty of a Class 4 felony under Virginia law and subject to mandatory
license revocation Va Code §§ 18 2-71, 54-316(3), 54-317(1), 54 321 2
(1982) A Class 4 felony is punishable by a sentence of 2 to 10 years in
prison Va Code § 18 2-10(d) (1982)
2 The indictment alleges a violation of Va Code § 18 2-71 (1982), which
provides
"Except as provided in other sections of this article, if any person admin-
ister to, or cause to be taken by a woman, any drug or other thing, or use
means, with intent to destroy her unborn child, or to produce abortion or
miscarriage, and thereby destroy such child, or produce such abortion or
miscarriage, he shall be guilty of a Class 4 felony "
The Virginia Code sets forth four exceptions to this statute there is no
criminal liability if the abortion (i) is performed within the first trimester,
§ 18 2-72, (u) is performed in a licensed hospital in the second trimester,
§ 18 2-73, (111) is performed during the third trimester under certain cir-
cumstances, § 18 2-74, and (iv) is necessary to save the woman's life,
§ 18 2-74 1 The indictment here alleged a violation of § 18 2-71 and ex-
pressly negated any defense of hospitalization under § 18 2-73 and any
first-trimester defense under § 18 2-72 The indictment did not, however,
rebut the other defenses
510 OCTOBER TERM, 1982
Opinion of the Court 462 u S
277 S E 2d 194 (1981) This appeal followed We noted
probable jurisdiction, 456 U S 988, and now affirm
II
Appellant raises two issues that do not require extended
treatment He first contends that Va Code § 18 2-71 (1982)
was applied unconstitutionally to him, because lack of medical
necessity for the abortion was not alleged in the indictment,
addressed in the prosecution's case, or mentioned by the trier
of fact Appellant contends that this failure renders his con-
viction unconstitutional for two reasons (i) the State failed to
meet its burden of alleging necessity in the indictment, as re-
quired by United States v Vuitch, 402 U S 62 (1971), and
(u) the prosecution failed to meet its burden of persuasion, as
required by Patterson v New York, 432 U S 197 (1977)
The authoritative construction of § 18 2-71 by the Supreme
Court of Virginia makes it clear that, at least with respect to
the defense of medical necessity, the prosecution was not
obligated to prove lack of medical necessity beyond a reason-
able doubt until appellant invoked medical necessity as a
defense See 221 Va , at 1069, 277 S E 2d, at 200 Appel-
lant's reliance on Vuitch thus is misplaced the District of
Columbia statute in Vuitch, as construed by this Court,
required the prosecution to make this allegation See 402
U S , at 70 Placing upon the defendant the burden of
going forward with evidence on an affirmative defense is
normally permissible See Engle v Isaac, 456 U S 107,
120-121, and n 20 (1982), Mullaney v Wilbur, 421 U S 684,
701-703, nn 28, 30, 31 (1975)
Appellant also contends that the prosecution failed to
prove that his acts in fact caused the death of the fetus In
view of the undisputed facts proved at trial, summarized
above, this contention is mentless See 221 Va , at 1069-
1070, 277 S E 2d, at 200-201
III
We consistently have recognized and reaffirm today that a
State has an "important and legitimate interest in the health
SIMOPOULOS v VIRGINIA 511
50($ Opinion of the Court
of the mother" that becomes "'compelling' at approxi-
mately the end of the first trimester " Roe v Wade, 410
U S 113, 163 (1973) See City of Akron, ante, at 428 This
interest embraces the facilities and circumstances in which
abortions are performed See 410 U S , at 150 Appel-
lant argues, however, that Virginia prohibits all nonhospital
second-trimester abortions and that such a requirement im-
poses an unconstitutional burden on the right of privacy In
City of Akron and Ashcroft, we upheld such a constitutional
challenge to the acute-care hospital requirements at issue
there The State of Virginia argues here that its hospitakza-
tion requirement differs significantly from the hospitahzation
requirements considered in City of Akron and Ashcroft and
that it reasonably promotes the State's interests
In furtherance of its compelling interest in maternal
health, Virginia has enacted a hospitahzation requirement for
abortions performed during the second trimester As a gen-
eral proposition, physicians' offices are not regulated under
Virginia law 3 Virginia law does not, however, permit a
8 A physician's office is explicitly excluded from the hospital licensing
statutes and regulations unless the office is used principally for performing
surgery Va Code § 32 1-124(5) (1979) "Surgery" is not defined Ap-
pellant contends that whether his facility principally performs surgery is a
question of fact that has not been resolved, and that it is uncertain whether
his clinic may be licensed as a "hospital " He notes that after he per-
formed the abortion on P M he requested a certificate of need, see § 32 1-
102 3 (Supp 1983), but was informed by the Office of the Attorney General
that his "clinic-office cannot be licensed as a hospital" and that <4if you wish
to perform this type of procedure, you must, in essence, build a hospital to
do it " App to Reply Brief for Appellant 3a, 4a Appellant did not seek a
license before he performed the abortion at issue here, nor does he now
argue that his clinic would meet the requirements of the Virginia statute
and regulations Rather, he broadly attacks the validity of the state hos-
pitahzation requirements as applied to second-trimester abortions Thus,
it is irrelevant to the issue before us whether appellant's clinic and his pro-
cedures would have complied with the Virginia regulations
512 OCTOBER TERM, 1982
Opinion of the Court 452 U S
physician licensed in the practice of medicine and surgery to
perform an abortion during the second trimester of preg-
nancy unless "such procedure is performed in a hospital
licensed by the State Department of Health " Va Code
§ 18 2-73 (1982) The Virginia abortion statute itself does
not define the term "hospital " This definition is found in
Va Code §32 1-123 1 (1979),4 that defines "hospital" to in-
clude "outpatient hospitals "5 Section 20 2 11 of the
4 The Supreme Court of Virginia views the word "hospital" in § 18 2-73
as referring to the definition of that term in § 32 1-123 1 This is made
clear by the court's general reference in its opinion to Title 32 1 of the Vir
gima Code, the Title of the Code that contains many of Virginia's health
laws
"The state is empowered to license and regulate hospitals, climes, home
health agencies, and other medical care facilities, see generally. Title 32 1
of the Code, and to fix and enforce different standards of medical care for
different facilities The General Assembly has decided that medical proce
dures employed in second-trimester abortions must be performed in hospi
tals Based upon the evidence in this record, we are of the opinion that
the hospital requirement is reasonably related to the State's compelling in
terest in preserving and protecting maternal health " 221 Va , at 1075,
277 S E 2d, at 204
There is no basis for assuming that the court interpreted "hospital" in
§ 18 2-73 any differently from its interpretation in Title 32 1, and speafi
caUy in § 32 1-123 1 See n 5, infra
5 Section 32 1-123 1 provides
" 'Hospital' means any facility in which the primary function is the provi
sion of diagnosis, of treatment, and of medical and nursing services, surgi
cal or nonsurgical, for two or more nonrelated individuals, including hospi
tals known by varying nomenclature or designation such as sanatoriums,
sanitariums and general, acute, short-term, long-term, outpatient and ma-
ternity hospitals "
The definition of "hospital" in effect in 1975 when § 18 2-73 was enacted is
similar See Va Code §32298(2) (Supp 1975) (repealed by 1979 Va.
Acts, ch 711) It specifically included at that time "out-patient surgical
hospitals (which term shall not include the office or offices of one or more
physicians or surgeons unless such office or offices are used principally for
performing surgery) "
SIMOPOULOS v VIRGINIA 513
506 Opinion of the Court
Department of Health's Rules and Regulations for the Lieen-
sure of Outpatient Hospitals in Virginia (1977) (regulations)8
6 The regulations were promulgated pursuant to the State Board of
Health's general authority to adopt rules and regulations prescribing mini-
mum standards for hospitals This authority permits it to
"classify hospitals in accordance with the character of treatment, care, or
service rendered or offered, and prescribe the minimum standards and
requirements for each class in conformity with provisions of tins chapter,
with the guiding principles expressed or unphed herein, and with due
regard to and in reasonable conformity to the standards of health, hygiene,
sanitation, and safety as established and recognized by the medical profes-
sion and by specialists m matters of public health and safety, having dtie
regard to the availability of physicians, surgeons, nurses and other assist-
ants, and the cost and expense to the hospital and the resulting costs to the
patients " Va Code § 32-301 (1973) (repealed by 1979 Va. Acts, ch 711)
(similar rulemaking authority currently is granted m Va. Code §§32.1-
12 and 32 1-127 (1979))
The first draft of the regulations differed considerably from the regula-
tions that the Board finally approved See Department of Health, Draft I,
Rules and Regulations for the Licensure of Outpatient Hospitals in Vir-
ginia (Oct 27, 1976) The most important difference was that the require-
ments now in Part II of the regulations were applicable to all outpa-
tient facilities in which abortions could be performed, regardless of the
trimester
The State Board of Health gave preliminary approval to the proposed
regulations on December 1, 1976, and a public hearing was held January
26, 1977 Dr William R Hill, a member of the Board, presided at this
hearing, and staff present from the Department included two doctors and
the Director of the Bureau of Medical and Nursing Facilities Services
Witnesses included the Associate Executive Director of the Virginia Hos-
pital Association, a representative of five outpatient abortion dimes in the
State, representatives of two abortion climes, the Richmond Medical Cen-
ter and the Hillcrest Clinic, a professor from Eastern Virginia Medical
School representing Planned Parenthood of Southside Tidewater and the
Tidewater OBGYN Society, the Medical Director of the Ambulatory Surgi-
cal Center of Leigh Memorial Hospital, the Administrator of Leigb Memo-
rial Hospital, a representative of the Virginia Society for Human Life, and
a representative of the Northern Virginia Medical Center See Common-
wealth of Virginia Department of Health, Public Hearing In Re Proposed
Rules and Regulations for the Licensure of Otitpa&ent Hospitals in Vb>
514 OCTOBER TERM, 1982
Opinion of the Court 4$2 u g
defines "outpatient hospitals" in pertinent part as "[ijnstitu
tions which primarily provide facilities for the perform
ance of surgical procedures on outpatients"7 and provides
that second-trimester abortions may be performed in these
climes 8 Thus, under Virginia law, a second-trimester abor
gima (Jan 26, 1977) The Executive Director of the Virginia Hospital As-
sociation stated that "[i]n general, they are a good set of standards and
have our support " Id , at 4 The abortion clinics were concerned, how
ever, about the imposition of the regulations on outpatient abortion clinics
then performing first-trimester abortions The clinics acknowledged that
during the second trimester "the State may regulate the [abortion] proce
dure in the interest of maternal health " Id , at 7 But the clinics specifi-
cally "propose[d] that clinics or other facilities that perform abortions
during the first trimester be specifically excluded from the Rules and
Regulations for the Licensure of Outpatient Hospitals in Virginia " Id , at
26 See also id , at 28 The Medical Director of the Ambulatory Surgical
Center of Leigh Memorial Hospital, concerned about the need to set high
standards for outpatient surgical hospitals in the State, agreed that the
Board should not "compromise" the strict standards needed for outpatient
surgical hospitals m order to include these first-trimester outpatient abor
tion clinics within the same set of regulations See id , at 30 Following
the hearing, the Board added Part III, the regulations of which apply only
to clinics doing first-trimester abortions See nn 8, 12, infra It there-
fore is clear that Virginia has recognized the need for discrete and different
sets of regulations for the two periods The Board gave its final approval,
and the regulations became effective on June 30, 1977 The abortion for
which appellant was prosecuted was performed on November 10, 1979,
some two years and five months later
We note that new but similar regulations now supersede the regulations
in effect when appellant performed the abortion for which he was prose-
cuted See Department of Health, Rules and Regulations for the Licen-
sure of Hospitals in Virginia, Pt IV (1982) These new regulations were
promulgated pursuant to Va Code §§ 32 1-12, 32 1-127 (1979), enacted in
1979
7 Section 32 1-125 of the Code provides "No person shall establish, con
duct, maintain, or operate in this Commonwealth any hospital unless
such hospital is licensed as provided in this article " See also Va.
Regs (Outpatient Hospitals) § 30 1 (1977) (similar provision specifically
governing outpatient surgical hospitals)
8 Part II of the regulations sets minimum standards for outpatient surgi-
cal hospitals that may perform second-trimester abortions This interpre-
SIMOPOULOS v VIRGINIA 515
506 Opinion of the Court
tion may be performed in an outpatient surgical hospital pro-
vided that facility has been licensed as a "hospital" by the
State
The Virginia regulations applicable to the performance of
second-trimester abortions in outpatient surgical hospitals
are, with few exceptions, the same regulations applicable to
all outpatient surgical hospitals in Virginia, and may be
grouped for purposes of discussion into three main catego-
ries The first grouping relates to organization, manage-
ment, policies, procedures, and staffing These regulations
require personnel and facilities "necessary to meet patient
and program needs " Va Regs (Outpatient Hospitals)
§40 3 (1977), see also §40 1 They also require a policy and
procedures manual, § 43 2, an administrative officer, § 40 6, a
licensed physician who must supervise clinical services and
perform surgical procedures, § 42 1, and a registered nurse to
be on duty at all times while the facility is in use, § 42 2 The
second category of requirements outlines construction stand-
ards for outpatient surgical clinics, but also provides that
"deviations from the requirements prescribed herein may be
approved if it is determined that the purposes of the mini-
mum requirements have been fulfilled," § 50 2 1 There are
also construction requirements that set forth standards for
the public areas, clinical areas, laboratory and radiology serv-
tation is confirmed by several sections in Part II, i e , §§ 43 6 2, 43 6 3,
43 7 3(c), 43 8 4, 43 8 5, 43 9 5, all of which refer to abortion services, and
by the history of Part III, see n 6, supra Moreover, the State's counsel
at oral argument represented that facilities licensed pursuant to Part II
legally may perform second-trimester abortions Tr of Oral Arg 33
Virginia uses the term "outpatient abortion clinics" to refer specifically
to those facilities meeting the minimum standards of Part III of the reg-
ulations See Va Regs (Outpatient Hospitals) i (1977) Facilities meet-
ing these standards are limited to performing abortions only during the
first trimester of pregnancy Ibid See id , § 62 1 2 ("Any procedure per-
formed to terminate a pregnancy [in an outpatient abortion clinic] shall be
performed prior to the end of the first trimester (12th week amenorrhea)")
516 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ices, §§521, 522, 523, and general building, §§5061,
50 7 1, 50 8 1, 52 4 The final group of regulations relates to
patient care services Most of these set the requirements
for various services that the facility may offer, such as an
esthesia, §43 1, laboratory, §§43 6 1, 64 1 3, 64 1 4, and pa-
thology, §§43 6 3, 64 2 4 Some of the requirements relate
to sanitation, laundry, and the physical plant §§ 43 2, 43 10,
43 11, 43 12 6 There are also guidelines on medical records,
§ 43 7, preoperative admission, § 43 8, and postoperative re^
covery, § 43 9 Finally, the regulations mandate some emer
gency services and evacuation planning §§43 4 1, 43 5
It is readily apparent that Virginia's second-trimester hos-
pitalization requirement differs from those at issue in City of
Akron, ante, at 431-432, and Planned Parenthood Assn of
Kansas City, Mo , Inc v Ashcroft, ante, at 481 In those
cases, we recognized the medical fact that, "at least during
the early weeks of the second trimester [,] D&E abortions
may be performed as safely in an outpatient clinic as in a
full-service hospital " City of Akron, ante, at 437 The
requirements at issue, however, mandated that "all second
trimester abortions must be performed in general, acute-care
facilities " Ashcroft, ante, at 481 In contrast, the Virginia
statutes and regulations do not require that second-trimester
abortions be performed exclusively in full-service hospitals
Under Virginia's hospitahzation requirement, outpatient
surgical hospitals may qualify for licensing as "hospitals"
m which second-trimester abortions lawfully may be per
formed Thus, our decisions in City of Akron and Ashcroft
are not controlling here
In view of its interest in protecting the health of its citi-
zens, the State necessarily has considerable discretion in
determining standards for the licensing of medical facilities
Although its discretion does not permit it to adopt abortion
regulations that depart from accepted medical practice, it does
have a legitimate interest in regulating second-trimester
SIMOPOULOS v VIRGINIA 517
506 Opinion of the Court
abortions and setting forth the standards for facilities m
which such abortions are performed
On their face, the Virginia regulations appear to be gen-
erally compatible with accepted medical standards govern-
ing outpatient second-trimester abortions The American
Public Health Association (APHA) (Resolution No 7907),
although recognizing "that greater use of the Dilatation and
Evacuation procedure makes it possible to perform the vast
majority of second trimester abortions during or prior to the
16th week after the last menstrual period," still "[ujrges en-
dorsement of the provision of second trimester abortion in
free-standing qualified clinics that meet the state standards
required for certification " APHA, The Right to Second Tri-
mester Abortion 1, 2 (1979) The medical profession has not
thought that a State's standards need be relaxed merely
because the facility performs abortions "Ambulatory care
facilities providing abortion services should meet the same
standards of care as those recommended for other surgical
procedures performed in the physician's office and outpatient
clinic or the free-standing and hospital-based ambulatory set-
ting " American College of Obstetricians and Gynecologists
(AGOG), Standards for Obstetric-Gynecologic Services 54
(5th ed 1982) See also id , at 52 ("Free-standing or hospi-
tal-based ambulatory surgical facilities should be hcensed to
conform to requirements of state or federal legislation") In-
deed, the medical profession's standards for outpatient surgi-
cal facilities are stringent "Such facilities should maintain the
same surgical, anesthetic, and personnel standards as recom-
mended for hospitals " Ibid
We need not consider whether Virginia's regulations are
constitutional in every particular Despite personal knowl-
edge of the regulations at least by the time of trial, appel-
lant has not attacked them as being insufficiently related to
the State's interest in protecting health 9 His challenge
9 See nn 3, 6, supra, 5 Record 55-56 (appellant acknowledging existence
of the outpatient hospital license, stating that he was seeking a license, but
518 OCTOBER TERM, 1982
Opinion of the Court 4^ u g
throughout this litigation appears to have been limited to an
assertion that the State cannot require all second-trimester
abortions to be performed in full-service general hospitals
In essence, appellant has argued that Virginia's hospitaliza
tion requirements are no different in substance from those
reviewed in the City of Akron and Ashcroft cases 10 At
the same time, however, appellant took the position— both
before the Virginia courts and this Court — that a state licens-
ing requirement for outpatient abortion facilities would be
constitutional u We can only assume that by continuing to
challenge the Virginia hospitalization requirement appellant
either views the Virginia regulations in some unspecified way
as unconstitutional or challenges a hospitalization require-
ment that does not exist in Virginia Yet, not until his reply
brief in this Court did he elect to criticize the regulations
apart from his broadside attack on the entire Virginia hos-
pitalization requirement
Given the plain language of the Virginia regulations and
the history of their adoption, see n 6, supra, we see no rea
son to doubt that an adequately equipped clinic could, upon
denying that he knew of the licensing program when the abortion was
performed)
10 Appellant's reply brief does criticize the Virginia regulations, but not
individually or on specific grounds, instead making only facial challenges in
the broadest language and in conclusory terms that the record is silent on
the applicability of those regulations to his facility, that the record does
not show whether any outpatient surgical hospitals exist in Virginia or
whether, if they exist, they allow second-trimester abortions, that the
record is silent on the reasonableness of the regulations, that he had no
opportunity to defend against the regulations at trial, that it is uncertain
whether, if he had applied for an outpatient hospital license, it would have
been granted, that obtaining a license is an arduous process, that Virgmm
courts have had no opportunity to construe the "licensing statutes and
regulations", and that Part II of the regulations does not cover an out-
patient surgical hospital where second-trimester abortions are performed.
Some of these arguments are simply mentless, see n 8, supra, and others
are irrelevant, see n 3, supra, and none has been raised below
"See 8 Record 196a, 214a, Brief for Appellant in No 801107 (Va Sup
Ct ), p 35, Juris Statement 16, Brief for Appellant 32, 43, n 75, 46
SIMOPOULOS v VIRGINIA 519
506 Opinion of O'CONNOR, J
proper application, obtain an outpatient hospital license per-
mitting the performance of second-trimester abortions We
conclude that Virginia's requirement that second-trimester
abortions be performed in licensed clinics is not an unreason-
able means of furthering the State's compelling interest in
"protecting the woman's own health and safety " Roe, 410
U S , at 150 12 As we emphasized in Roe, "[t]he State has a
legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that
insure maximum safety for the patient " Ibid Unlike the
provisions at issue in City of Akron and Ashcroft, Virginia's
statute and regulations do not require that the patient be hos-
pitalized as an inpatient or that the abortion be performed in a
full-service, acute-care hospital Rather, the State's require-
ment that second-trimester abortions be performed in licensed
clinics appears to comport with accepted medical practice, and
leaves the method and timing of the abortion precisely where
they belong — with the physician and the patient
IV
The judgment of the Supreme Court of Virginia is
Affirmed
JUSTICE O'CONNOR, with whom JUSTICE WHITE and
JUSTICE REHNQUIST join, concurring in part and concurring
in the judgment
I agree with the Court's treatment of the appellant's argu-
ments based on United States v Vuitch, 402 U S 62 (1971),
^Appellant argues that Part III of the regulations, covering first-
trimester abortion clinics, requires the same services and equipment as
Part II In fact, Part III has detailed regulations that do not appear in
Part II See, e g , Va Regs (Outpatient Hospitals) §§63 1 l(b), 63 3,
64 2 5(a)-(ni) (1977) Appellant contends that, given these extensive regu-
lations for first-trimester abortion clinics, the only way to require more
technological support for second-trimester abortions would be to restrict
them to acute-care, general hospitals The only issue before us, however,
relates to second-trimester abortions
520 OCTOBER TERM, 1982
STEVENS, J , dissenting 462 u s
and Patterson v New York, 432 U S 197 (1977) Accord-
uigly, I join Parts I and II of the Court's opinion
I concur in the judgment of the Court insofar as it affirms
the conviction For reasons stated in my dissent in Akron v
Akron Center for Reproductive Health, ante, p 416, I do
not agree that the constitutional validity of the Virginia man-
datory hospitahzation requirement is contingent in any way
on the trimester in which it is imposed Rather, I believe
that the requirement in this case is not an undue burden on
the decision to undergo an abortion
JUSTICE STEVENS, dissenting
Prior to this Court's decision in Roe v Wade, 410 U S 113
(1973), it was a felony to perform any abortion in Virginia
except in a hospital accredited by the Joint Committee on
Accreditation of Hospitals and licensed by the Department
of Health, and with the approval of the hospital's Abortion
Review Board (a committee of three physicians) * In 1975,
the Virginia Code was amended to authorize additional
abortions, including any second-trimester abortion performed
by a physician '*in a hospital licensed by the State Depart-
ment of Health or under the control of the State Board of
Mental Health and Mental Retardation " Va Code § 18 2-
73 (1982)
The amended statute might be interpreted in either of
two ways It might be read to prohibit all second-trimester
abortions except those performed in a full-service, acute-care
hospital facility Or it might be read to permit any abortion
performed in a facility licensed as a "hospital" in accord with
any regulations subsequently adopted by the Department of
*An Hi-hospital abortion was also unlawful unless (a) it was necessary to
protect the life or health of the mother, (b) thevpregnancy was the product
of rape or incest, or (c) there was a substantial medical likelihood that the
child would be born with an irremediable and incapacitating mental or
physical defect 1970 Va Acts, ch 508
SIMOPOULOS v VIRGINIA 521
506 STEVENS, J , dissenting
Health The Court today chooses the latter interpretation
See ante, at 512-514
There is reason to think the Court may be wrong At the
time the statute was enacted, there were no regulations iden-
tifying abortion clinics as "hospitals " The structure of the
1975 amendment suggests that the Virginia General Assem-
bly did not want to make any greater change in its law than it
believed necessary to comply with Roe v Wade, and it may
well have thought a full-service, acute-care hospitalization
requirement constitutionally acceptable Moreover, the
opinion below does not suggest that the Supreme Court of
Virginia believed the term "hospital" to incorporate licensed
abortion clinics It only discussed testimony pertaining to
full-service, acute-care hospitals like Fairfax Hospital See
221 Va 1059, 1073, 277 S E 2d 194, 203 And it stated that
"two hospitals in Northern Virginia and 24 hospitals located
elsewhere in the State were providing abortion services in
1977," id , at 1075, 277 S E 2d, at 204, again referring to
acute-care facilities The opinion refers to "clinics" only
once, as part of a general statement concerning the variety of
medical care facilities the State licenses and regulates, even
there, the term is included in the list as a category that is dis-
tinct from "hospitals " Id , at 1074, 277 S E 2d, at 204
On the other hand, the Court may well be correct in its
interpretation of the Virginia statute The word "hospital"
in § 18 2-73 could incorporate by reference any institution
licensed in accord with Va Code §32 1-123 1 (1979) and its
implementing regulations See ante, at 512-514 It is not
this Court's role, however, to interpret state law We should
not rest our decision on an interpretation of state law that was
not endorsed by the court whose judgment we are reviewing
The Virginia Supreme Court's opinion was written on the as-
sumption that the Commonwealth could constitutionally re-
quire all second-trimester abortions to be performed in a full-
service, acute-care hospital Our decision today in C^ty of
522 OCTOBER TERM, 1982
STEVENS, J., dissenting ^ g
Akron v. Akron Center for Reproductive Health fc, ,
P. 416, proves that assumption to have *£££% t'
proper disposition of this appeal is therefore to vacat^
judgment of the Supreme Court of Virginia and to rt S
the case to that court to reconsider its hSdingT the 2,
our opinion in Akron. S e Ught of
I respectfully dissent.
JONES & LAUGHLIN STEEL CORP v PFEIFER 523
Syllabus
JONES & LAUGHLIN STEEL CORP v PFEIFER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No 82-131 Argued February 28, 1983— Decided June 15, 1983
Respondent was injured in the course of his employment while employed
by petitioner as a loading helper on petitioner's coal barge in Pennsylva-
nia The injury made respondent permanently unable to return to his
job or to perform other than light work Respondent brought an action
in Federal District Court against petitioner, alleging that his injury
had been "caused by the negligence of the vessel" within the meaning
of § 5(b) of the Longshoremen's and Harbor Workers' Compensation
Act (LHWCA) The District Court found in respondent's favor and
awarded damages of $275,881 31, holding that receipt of compensation
from petitioner under § 4 of the LHWCA did not bar a separate recovery
of damages for negligence In calculating the damages, the court did
not increase the award to take inflation into account nor did it discount
the award to reflect the present value of the future stream of income
Instead, the court followed a decision of the Pennsylvania Supreme
Court, which had held "as a matter of law that future inflation shall be
presumed equal to future interest rates with these factors offsetting "
The Court of Appeals affirmed
Held
1 A longshoreman may bring a negligence action under § 5(b) against
the owner of a vessel who acts as his own stevedore, even though the
longshoreman has received compensation from the owner-employer
under § 4 The plain language of § 5(a), which provides that the liability
of an employer for compensation prescribed in § 4 "shall be exclusive and
in place of all other liability of such an employer to the employee/'
appears to support petitioner's contention that since, as respondent's
employer, it had paid compensation to him under § 4, § 5(a) absolves it of
all other responsibility to respondent for damages But such contention
is undermined by the plain language of § 5(b), which authorizes a long-
shoreman whose injury is caused by the negligence of a vessel to bring a
separate action against such a vessel as a third party, unless the in-
jury was caused by the negligence of persons engaged in providing
stevedoring services to the vessel If § 5(a) had been intended to bar all
negligence suits against owner employers, there would have been no
need to put an additional sentence in § 5(b) barring stats against owner-
524 OCTOBER TERM, 1982
Syllabus 462 y g
employers for injuries caused by fellow servants And the history of the
LHWCA further refutes the contention that § 5(a) bars respondent's suit
under §6(b) Pp 528-532
2 The District Court, in performing its damages calculation, erred in
applying the theory of the Pennsylvania decision as a mandatory federal
rule of decision Pp 533-553
(a) The two elements that determine the calculation of a damages
award to a permanently injured employee in an inflation free economy
are the amount that the employee would have earned during each year
that he could have been expected to work after the injury, and the
appropriate discount rate, reflecting the safest available investment
Pp 533-538
(b) In an inflationary economy, inflation should ideally affect both
stages of the calculation described above This Court, however, will not
at this time select one of the many rules proposed by the litigants and
armci in this case and establish it for all time as the exclusive method
in all federal courts for calculating an award for lost earnings in an infla
tionary economy First, by its very nature the calculation of an award
for lost earnings must be a rough approximation Second, sustained
price inflation can make the award substantially less precise And
third, the question of lost earnings can arise in many different contexts
Pp 538-547
(c) Respondent's cause of action is rooted in federal maritime law,
and thus the fact that Pennsylvania has adopted the total offset rule for
all negligence cases in that forum is not of controlling importance in this
case Moreover, the reasons that may support the adoption of the rule
for a State's entire judicial system are not necessarily applicable to the
special class of workers covered by the LHWCA P 547
(d) In calculating an award for a longshoreman's lost earnings
caused by a vessel's negligence, the discount rate should be chosen on
the basis of the factors that are used to estimate the lost stream of future
earnings If the trier of fact relies on a specific forecast of the future
rate of price inflation, and if the estimated lost stream of future earnings
is calculated to include price inflation along with individual factors and
other societal factors, then the proper discount rate would be the after
tax market interest rate But since specific forecasts of future price
inflation remain too unreliable to be useful in many cases, it will normally
be a costly and ultimately unproductive waste of longshoremen's re-
sources to make such forecasts the centerpiece of litigation under § 5(b)
On the other hand, if forecasts of future price inflation are not used, it is
necessary to choose an appropriate below-market discount rate As
long as inflation continues, the amount of the "offset" against the market
rate should be chosen on the basis of the same factors that are used to
JONES & LAUGHLIN STEEL CORP v PFEIFER 525
523 Opinion of the Court
estimate the lost stream of future earnings If full account is taken of
the individual and societal factors (excepting price inflation) that can be
expected to have resulted in wage increases, then all that should be
set off against the market interest rate is an estimate of future price
inflation Pp 547-549
(e) On remand, whatever rate the District Court may choose to dis-
count the estimated stream of future earnings, it must make a deliberate
choice, rather than assuming that it is bound by a mile of state law
Pp 552-553
678 F 2d 453, vacated and remanded
STEVENS, J , delivered the opinion for a unanimous Court
Robert W Murdoch argued the cause for petitioner With
him on the brief was Darnel R Minmck
Jerome M Libenson argued the cause and filed a brief for
respondent *
JUSTICE STEVENS delivered the opinion of the Court
Respondent was injured in the course of his employment as
a loading helper on a coal barge As his employer, petitioner
was required to compensate him for his injury under §4 of
the Longshoremen's and Harbor Workers' Compensation Act
(Act) 44Stat 1426, 33 U S C §904 As the owner pro
hac vice of the barge, petitioner may also be liable for negli-
gence under §5 of the Act 86 Stat 1263, 33 U S C §905
We granted certiorari to decide whether petitioner may be
subject to both forms of liability, and also to consider
whether the Court of Appeals correctly upheld the trial
court's computation of respondent's damages 459 U S
821 (1982)
*Briefs of amici cunae urging reversal were filed by Solicitor General
Lee, Assistant Attorney General McGrath, Deputy Solicitor General
Geller, Richard G Wilkins, and Jeffrey Axelrad for the United States, by
John T Biezup, Michael D Brophy, and E D Vickery for Alcoa Steam-
ship Co et al , and by Robert C Wert and Norman Hegge, Jr , for the
Southeastern Pennsylvania Transportation Authority
Raymond J Conboy filed a brief for the International Longshoremen's
md Warehousemen's Union as amicus curiae
526 OCTOBER TERM, 1982
Opinion of the Court 452 y o
Petitioner owns a fleet of barges that it regularly operates
on three navigable rivers in the vicinity of Pittsburgh, Pa
Respondent was employed for 19 years to aid in loading and
unloading those barges at one of petitioner's plants located on
the shore of the Monongahela River On January 13, 1973
while carrying a heavy pump, respondent slipped and fell on
snow and ice that petitioner had negligently failed to remove
from the gunnels of a barge His injury made him perma
nently unable to return to his job with the petitioner, or to
perform anything other than light work after July 1, 1979
In November 1979, respondent brought this action against
petitioner, alleging that his injury had been "caused by the
negligence of the vessel" within the meaning of § 5(b) of the
Act The District Court found in favor of respondent and
awarded damages of $275,881 36 The court held that re-
ceipt of compensation payments from petitioner under §4 of
the Act did not bar a separate recovery of damages for
negligence
The District Court's calculation of damages was predicated
on a few undisputed facts At the time of his injury respond
ent was earning an annual wage of $26,025 He had a re-
maining work expectancy of \21A years On the date of trial
(October 1, 1980), respondent had received compensation
payments of $33,079 14 If he had obtained light work and
earned the legal minimum hourly wage from July 1, 1979,
until his 65th birthday, he would have earned $66,352
The District Court arrived at its final award by taking 12!4
years of earnings at respondent's wage at the time of injury
($325,312 50), subtracting his projected hypothetical earn
ings at the minimum wage ($66,352) and the compensation
payments he had received under §4 ($33,079 14), and adding
$50,000 for pain and suffering The court did not increase
the award to take inflation into account, and it did not dis-
count the award to reflect the present value of the future
stream of income The court instead decided to follow a de-
cision of the Supreme Court of Pennsylvania, which had held
JONES & LAUGHLIN STEEL CORP v PFEIFER 527
rog Opinion of the Court
"as a matter of law that future inflation shall be presumed
equal to future interest rates with these factors offsetting "
Kaczkowski v Bolubasz, 491 Pa 561, 583, 421 A 2d 1027,
1038-1039 (1980) Thus, although the District Court did not
dispute that respondent could be expected to receive regular
cost-of-living wage increases from the date of his injury until
his presumed date of retirement, the court refused to include
such increases in its calculation, explaining that they would
provide respondent "a double consideration for inflation "
App to Pet for Cert 41a For comparable reasons, the
court disregarded changes in the legal minimum wage in com-
puting the amount of mitigation attributable to respondent's
ability to perform light work
It does not appear that either party offered any expert tes-
timony concerning predicted future rates of inflation, the
interest rate that could be appropriately used to discount
future earnings to present value, or the possible connection
between inflation rates and interest rates Respondent did,
however, offer an estimate of how his own wages would have
increased over time, based upon recent increases in the com-
pany's hourly wage scale
The Court of Appeals affirmed 678 F 2d 453 (CAS 1982)
It held that a longshoreman may bring a negligence action
against the owner of a vessel who acts as its own stevedore,
relying on its prior decision in Griffith v Wheeling Pitts-
burgh Steel Corp , 521 F 2d 31, 38-44 (1975), cert denied,
423 U S 1054 (1976) On the damages issue, the Court of
Appeals first noted that even though the District Court had
relied on a Pennsylvania case, federal law controlled The
Court of Appeals next held that in defining the content of
that law, inflation must be taken into account
"Full compensation for lost prospective earnings is
most difficult, if not impossible, to attain if the court is
blind to the realities of the consumer price index and the
recent historical decline of purchasing power Thus if
we recognize, as we must, that the injured worker is
528 OCTOBER TERM, 1982
Opinion of the Court 452 U S
entitled to reimbursement for his loss of future earnings,
an honest and accurate calculation must consider the
stark reality of inflationary conditions " 678 F 2d, at
460-461 :
The court understood, however, that the task of predicting
future rates of inflation is quite speculative It concluded
that such speculation could properly be avoided in the man-
ner chosen by the District Court — by adopting Pennsylva-
nia's "total offset method" of computing damages The
Court of Appeals approved of the way the total offset method
respects the twin goals of considering future inflation and dis-
counting to present value, while eliminating the need to make
any calculations about either, "because the inflation and dis-
count rates are legally presumed to be equal and cancel one
another " Id , at 461 Accordingly, it affirmed the District
Court's judgment
The Liability Issue
Most longshoremen who load and unload ships are em-
ployed by independent stevedores, who have contracted with
the vessel owners to provide such services In this case,
however, the respondent longshoreman was employed di
rectly by the petitioner vessel owner Under § 4 of the Act,
a longshoreman who is injured in the course of his employ-
ment is entitled to a specified amount of compensation from
1 The court drew support for that conclusion from the recent Pennsylva
ma case, Kaczkowski v Bolubasz, 491 Pa 561, 421 A 2d 1027 (1980), a
venerable Vermont case, Halloran v New England Telephone & Tele
graph Co , 95 Vt 273, 274, 115 A 143, 144 (1921), and a few federal deci
sions McWeeney v New York, N H & H R Co , 282 F 2d 34, 38
(CA2) (en bane), cert denied, 364 U S 870 (1960), Yodice v Konmkhjke
Nederlandsche Stoomboot Maatschappij, 443 F 2d 76, 79 (CA2 1971),
Doca v Marina Mercante Nicaraguense, S A , 634 F 2d 30, 36 (CA2
1980), cert denied, 451 U S 971 (1981), Steckler v United States, 549 F
2d 1372, 1375-1378 (CA10 1977), Freeport Sulphur Co v S/S Hermosa,
526 F 2d 300, 308-311 (CA5 1976) (Wisdom, J , concurring), United States
v English, 521 F 2d 63, 72-76 (CA9 1975)
JONES & LAUGHLIN STEEL CORP v PFEIFER 529
523 Opinion of the Court
his employer, whether or not the injury was caused by the
employer's negligence 2 Section 5(a) of the Act appears to
make that liability exclusive 3 It reads "The liability of an
2 Section 4 of the Act provides
"(a) Every employer shall be liable for and shall secure the payment to
his employees of the compensation payable under sections 7, 8, and 9 In
the case of an employer who is a subcontractor, the contractor shall be lia-
ble 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 1426, 33 U S C § 904
3 The full text of § 5 of the Act reads as follows
"(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, his legal
representative, husband or wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer at law
or in admiralty on account of such injury or death, except that if an em-
ployer fails to secure payment of compensation as required by this Act, an
irgured employee, or his legal representative in case death results from the
injury, may elect to claim compensation under the Act, or to maintain an
action at law or in admiralty for damages on account of such irgury or
death In such action the defendant may not plead as a defense that the
H^jury was caused by the negligence of a fellow servant, or that the em-
ployee assumed the risk of his employment, or that the injury was due to
the contributory negligence of the employee
"(b) In the event of injury to a person covered under this Act caused by
the negligence of a vessel, then such person, or anyone otherwise entitled
to recover damages by reason thereof, may bring an action against such
vessel as a third party in accordance with the provisions of section 33 of
this Act, and the employer shall not be liable to the vessel for such dam-
ages directly or indirectly and any agreements or warranties to the con-
trary shall be void If such person was employed by the vessel to provide
stevedoring services, no such action shall be permitted if the ii\jury was
caused by the negligence of persons engaged in providing stevedoring
services to the vessel If such person was employed by the vessel to pro-
vide ship building or repair services, no such action shall be permitted if
the injury was caused by the negligence of persons engaged in providing
ship building or repair services to the vessel The liability of the vessel
under this subsection shall not be based upon the warranty of seaworthi-
ness or a breach thereof at the time the injury occurred The remedy pro-
vided in this subsection shall be exclusive of all other remedies against the
530 OCTOBER TERM, 1982
Opinion of the Court 462 u Q
employer prescribed m section 4 [of this Act] shall be exclu
sive and in place of all other liability of such employer to the
employee " 44 Stat 1426, 33 U S C § 905(a) Since
the petitioner was the respondent's employer and paid him
benefits pursuant to §4 of the Act, it contends that §5(a)
absolves it of all other responsibility for damages
Although petitioner's contention is, indeed, supported by
the plain language of § 5(a), it is undermined by the plain
language of § 5(b) The first sentence of § 5(b) authorizes a
longshoreman whose injury is caused by the negligence of a
vessel4 to bring a separate action against such a vessel as a
third party Thus, in the typical tripartite situation, the
longshoreman is not only guaranteed the statutory com-
pensation from his employer, he may also recover tort dam-
ages if he can prove negligence by the vessel 6 The second
sentence of § 5(b) makes it clear that such a separate action is
authorized against the vessel even when there is no inde-
pendent stevedore and the longshoreman is employed di-
rectly by the vessel owner That sentence provides "If such
person was employed by the vessel to provide stevedoring
services, no such action shall be permitted if the injury was
caused by the negligence of persons engaged in providing
stevedoring services to the vessel " If § 5(a) had been in-
tended to bar all negligence suits against owner-employers,
there would have been no need to put an additional sentence
vessel except remedies available under this Act " 86 Stat 1263, 33
USC §905
4 "The term 'vessel' means any vessel upon which or in connection with
which any person entitled to benefits under this Act suffers injury or death
arising out of or in the course of his employment, and said vessel's owner,
owner pro hac vice, agent, operator, charter or bare boat charterer, mas
ter, officer, or crew member " 86 Stat 1263, 33 U S C § 902(21)
5 The longshoreman cannot receive a double recovery, because the
stevedore, by paying him statutory compensation, acquires a hen in that
amount against any recovery the longshoreman may obtain from the ves-
sel See Edmonds v Compagme Generate Transatlantique, 443 U S
256, 269-270 (1979)
JONES & LAUGHLIN STEEL CORP v PFEIFER 531
523 Opinion of the Court
in § 5(b) barring suits against owner-employers for injuries
caused by fellow servants 6
The history of the Act further refutes petitioner's conten-
tion that § 5(a) of the Act bars respondent's suit under § 5(b)
Prior to 1972, this Court had construed the Act to authorize a
longshoreman employed directly by the vessel to obtain a re-
covery from his employer in excess of the statutory schedule,
even though § 5 of the Act contained the same exclusive li-
ability language as today Reed v The Yaka, 373 U S 410
(1963), Jackson v Lykes Brothers S S Co , 386 U S 731
(1967) Although the 1972 Amendments changed the charac-
ter of the longshoreman's action against the vessel by sub-
stituting negligence for unseaworthiness as the basis for
kability,7 Congress clearly intended to preserve the rights of
longshoremen employed by the vessel to maintain such an
action The House Committee Report is unambiguous
"The Committee has also recognized the need for special
provisions to deal with a case where a longshoreman or
shipbuilder or repairman is employed directly by the
vessel In such case, notwithstanding the fact that the
6 Of course, §5(b) does make it clear that a vessel owner acting as its
own stevedore is liable only for negligence in its "owner" capacity, not for
negligence in its "stevedore** capacity
7 Until 1972, a longshoreman could supplement his statutory compensa-
tion and obtain a tort recovery from the vessel merely by proving that his
injury was caused by an **unseaworthy" condition, Seas Shipping Co v
Sieracki, 328 U S 85 (1946), even if the condition was not attributable to
negligence by the owner, Mitchell v Trawler Racer, Inc , 362 U S 539,
549-550 (1960) And an owner held liable to the longshoreman in such a
situation was permitted to recover from the longshoreman's stevedore-
employer if he could prove that the stevedore's negligence caused the in-
jury Ryan Stevedoring Co v Pan-Atlantic S S Corp , 350 U S 124
(1956) The net result, in many cases, was to make the stevedore abso-
lutely liable for statutory compensation in all cases and to deny him protec-
tion from additional liability in the cases in which his negligence could be
established The 1972 Amendments protect the stevedore from a claim by
the vessel and limit the longshoreman's recovery to statutory compensa-
tion unless he can prove negligence on the part of the vessel
532 OCTOBER TERM, 1982
Opinion of the Court 462 U s
vessel is the employer, the Supreme Court in Reed v
S S Yaka, 373 U S 410 (1963) and Jackson v Lykes
Bros Steamship Co , 386 U S 371 (1967), held that
the unseaworthiness remedy is available to the injured
employee The Committee believes that the rights of
an injured longshoreman or shipbuilder or repairman
should not depend on whether he was employed directly
by the vessel or by an independent contractor The
Committee's intent is that the same principles should
apply in determining liability of the vessel which em-
ploys its own longshoremen or shipbuilders or repairmen
as apply when an independent contractor employs such
persons " H R Rep No 92-1441, pp 7-8 (1972)
In Edmonds v Compagme Generate Transatlantique, 443
U S 256, 266 (1979), we observed that under the post-1972
Act, "all longshoremen are to be treated the same whether
their employer is an independent stevedore or a shipowner-
stevedore and that all stevedores are to be treated the same
whether they are independent or an arm of the shipowner
itself " If respondent had been employed by an independent
stevedore at the time of his injury, he would have had the
right to maintain a tort action against the vessel We hold
today that he has the same right even though he was in fact
employed by the vessel
The Damages Issue
The District Court found that respondent was permanently
disabled as a result of petitioner's negligence He therefore
was entitled to an award of damages to compensate him for
his probable pecuniary loss over the duration of his career,
reduced to its present value It is useful at the outset to
review the way in which damages should be measured in a
hypothetical inflation-free economy We shall then consider
how price inflation alters the analysis Finally, we shall de-
cade whether the District Court committed reversible error
in this case
JONES & LAUGHLIN STEEL CORP v PFEIFER 533
523 Opinion of the Court
In calculating damages, it is assumed that if the injured
party had not been disabled, he would have continued to
work, and to receive wages at periodic intervals until retire-
ment, disability, or death An award for impaired earning
capacity is intended to compensate the worker for the dimi-
nution in that stream of income 8 The award could in theory
take the form of periodic payments, but in this country it has
traditionally taken the form of a lump sum, paid at the conclu-
sion of the litigation 9 The appropriate lump sum cannot be
computed without first examining the stream of income it
purports to replace
The lost stream's length cannot be known with certainty,
the worker could have been disabled or even killed in a differ-
ent, non-work-related accident at any time The probability
that he would still be working at a given date is constantly
diminishing 10 Given the complexity of trying to make an
8 See generally D Dobbs, Law of Remedies §81 (1973) It should be
noted that in a personal irgury action such as this one, damages for im-
paired earning capacity are awarded to compensate the injured person for
his loss In a wrongful-death action, a similar but not identical item of
damages is awarded for the manner m which diminished earning capacity
harms either the worker's survivors or his estate See generally 1
S Speiser, Recovery for Wrongful Death 2d, ch 3 (1975) (hereafter
Speiser) Since the problem of incorporating inflation into the award is
the same in both types of action, we shall make occasional reference to
wrongful-death actions in this opinion
9 But cf Uniform Periodic Payment of Judgments Act, 14 U L A 22
(Supp 1983) See generally Elhgett, The Periodic Payment of Judg-
ments, 46 Ins Counsel J 130 (1979), Kolbach, Variable Periodic Payments
of Damages An Alternative to Lump Sum Awards, 64 Iowa L Rev 138
(1978), Rea, Lump-Sum Versus Periodic Damage Awards, 10 J Leg Stud-
ies 131 (1981)
10 For examples of calculations that take this diminishing probability into
account, and assume that it would fall to zero when the worker reached age
65 see Fitzpatrick, The Personal Economic Loss Occasioned by the Death
of Nancy Hollander Feldman An Introduction to the Standard Valuation
Procedure, 1977 Economic Expert in Litigation, No 5, pp 25, 44-46 (De
534 OCTOBER TERM, 1982
Opinion of the Court 462 U S
exact calculation, litigants frequently follow the relatively
simple course of assuming that the worker would have con
tinued to work up until a specific date certain In this case
for example, both parties agreed that the petitioner would
have continued to work until age 65 (12% more years) if he
had not been injured
Each annual installment n in the lost stream comprises sev
eral elements The most significant is, of course, the actual
wage In addition, the worker may have enjoyed certain
fringe benefits, which should be included in an ideal evalua
tion of the worker's loss but are frequently excluded for
simplicity's sake 12 On the other hand, the injured worker's
lost wages would have been diminished by state and federal
income taxes Since the damages award is tax-free, the rel
evant stream is ideally of after-tax wages and benefits See
Norfolk & Western R Co v Liepelt, 444 U S 490 (1980)
Moreover, workers often incur unreimbursed costs, such as
transportation to work and uniforms, that the injured worker
will not incur These costs should also be deducted in es
timatmg the lost stream
In this case the parties appear to have agreed to simplify
the litigation, and to presume that in each installment all the
elements in the stream would offset each other, except for
gross wages However, in attempting to estimate even such
a stylized stream of annual installments of gross wages, a
trier of fact faces a complex task The most obvious and
most appropriate place to begin is with the worker's annual
wage at the time of injury Yet the "estimate of the loss
fense Research Institute, Inc ) (hereafter Fitzpatrick), Hanke, How To De-
termine Lost Earning Capacity, 27 Prac Lawyer 27, 29-33 (July 15, 1981)
u Obviously, another distorting simplification is being made here Al
though workers generally receive their wages in weekly or biweekly
installments, virtually all calculations of lost earnings, including the one
made in this case, pretend that the stream would have flowed in large
spurts, taking the form of annual installments
12 These might include insurance coverage, pension and retirement plans,
profit sharing, and in-kind services Fitzpatrick 27
JONES & LAUGHLIN STEEL CORP v PFEIFER 535
523 Opinion of the Court
from lessened earnings capacity in the future need not be
based solely upon the wages which the plaintiff was earning
at the time of his injury " C McCormick, Damages § 86,
p 300 (1935) Even in an inflation-free economy — that is to
say one in which the prices of consumer goods remain sta-
ble— a worker's wages tend to "inflate " This "real" wage
inflation reflects a number of factors, some linked to the spe-
cific individual and some linked to broader societal forces 13
With the passage of time, an individual worker often
becomes more valuable to his employer His personal work
experiences increase his hourly contributions to firm profits
To reflect that heightened value, he will often receive "se-
niority" or "experience" raises, "merit" raises, or even pro-
motions 14 Although it may be difficult to prove when, and
whether, a particular injured worker might have received
such wage increases, see Feldman v Allegheny Airlines,
Inc , 524 F 2d 384, 392-393 (CA2 1975) (Friendly, J , concur-
ring dubitante), they may be reliably demonstrated for some
workers 15
Furthermore, the wages of workers as a class may increase
over time See Grunenthal v Long Island R Co , 393
U S 156, 160 (1968) Through more efficient interaction
among labor, capital, and technology, industrial productivity
may increase, and workers' wages may enjoy a share of that
growth 16 Such productivity increases — reflected in real in-
13 As will become apparent, in speaking of "societal" forces we are pri-
marily concerned with those macroecononuc forces that influence wages in
the worker's particular industry The term will be used to encompass all
forces that tend to inflate a worker's wage without regard to the worker's
individual characteristics
14 It is also possible that a woiker could be expected to change occupa-
tions completely See, e g , Stearns Coal & Lumber Co v Williams, 164
Ky 618, 176 S W 15 (1915)
16 See, e g , Fitzpatrick 33-39, Henderson, Income Over the Life Cycle
Some Problems of Estimation and Measurement, 25 Federation Ins Coun-
sel Q 15(1974)
16 P Samuelson, Economics 738-756 (10th ed 1976) (hereafter Samuel-
son)
536 OCTOBER TERM, 1982
Opinion of the Court 4^ ^ g
creases m the gross national product per worker-hour-have
been a permanent feature of the national economy since the
conclusion of World War II l7 Moreover, through collective
bargaining, workers may be able to negotiate increases in
their "share" of revenues, at the cost of reducing share-
holders' rate of return on their investments 18 Either of these
forces could affect the lost stream of income in an inflation
free economy In this case, the plaintiff 's proffered evidence
on predictable wage growth may have reflected the influence
of either or both of these two factors
To summarize, the first stage in calculating an appropriate
award for lost earnings involves an estimate of what the lost
stream of income would have been The stream may be ap
proximated as a series of after-tax payments, one in each
year of the worker's expected remaining career In estimat
ing what those payments would have been in an inflation-free
economy, the trier of fact may begin with the worker's annual
wage at the time of injury If sufficient proof is offered, the
trier of fact may increase that figure to reflect the appropn
ate influence of individualized factors (such as foreseeable
promotions) and societal factors (such as foreseeable pro-
ductivity growth within the worker's industry) 19
Of course, even in an inflation-free economy the award of
damages to replace the lost stream of income cannot be com
puted simply by totaling up the sum of the periodic pay
ments For the damages award is paid in a lump sum at the
conclusion of the litigation, and when it— or even a part of
it— is invested, it will earn additional money It has been
17 See Henderson, The Consideration of Increased Productivity and the
Discounting of Future Earnings to Present Value, 20 S D L Rev 307,
&0-320 (1975) (hereafter Henderson)
KSee Samuelson 584-593, 737, Henderson 315, and n 15
Mff foreseeable real wage growth is shown, it may produce a steadily
increasing series of payments, with the first payment showing the least m
crease from the wage at the time of injury and the last payment showing
the most
JONES & LAUGHLIN STEEL CORP v PFEIFER 637
r£3 Opinion of the Court
settled since our decision in Chesapeake & Ohio R Co v
Kelly, 241 U S 485 (1916), that "in all cases where it is rea-
sonable to suppose that interest may safely be earned upon
the amount that is awarded, the ascertained future benefits
ought to be discounted in the making up of the award " Id ,
at 490 *
The discount rate should be based on the rate of interest
that would be earned on "the best and safest investments "
Id , at 491 Once it is assumed that the injured worker
would definitely have worked for a specific term of years, he
is entitled to a risk-free stream of future income to replace his
lost wages, therefore, the discount rate should not reflect the
market's premium for investors who are willing to accept
some risk of default Moreover, since under Norfolk &
Western R Co v Liepelt, 444 U S 490 (1980), the lost
stream of income should be estimated in after-tax terms, the
discount rate should also represent the after-tax rate of re-
turn to the injured worker 21
Thus, although the notion of a damages award represent-
ing the present value of a lost stream of earnings in an infla-
tion-free economy rests on some fairly sophisticated economic
concepts, the two elements that determine its calculation can
be stated fairly easily They are (1) the amount that the
employee would have earned during each year that he could
have been expected to work after the injury, and (2) the ap-
20 Although this rule could be seen as a way of ensuring that the lump-
sum award accurately represents the pecuniary injury as of the time of
trial, it was explained by reference to the duty to mitigate damages 241
U S , at 489-490
21 The arithmetic necessary for discounting can be simplified through the
use of a so-called "present value table," such as those found in R Wixon,
Accountants' Handbook 2958-2959 (4th ed 1956), or 1 Speiser §84,
pp 713-718 These tables are based on the proposition that if t is
the discount rate, then "the present value of $1 due in n periods must be
d + ^w Wixon, supra, at 29 57 In this context, the relevant "peri-
ods" are years, accordingly, if t is a market interest rate, it should be the
effective annual yield
538 OCTOBER TERM, 1982
Opinion of the Court 462 U S
propnate discount rate, reflecting the safest available invest
ment The trier of fact should apply the discount rate to
each of the estimated installments in the lost stream of in
come, and then add up the discounted installments to deter
mine the total award ^
II
Unfortunately for triers of fact, ours is not an inflation-free
economy Inflation has been a permanent fixture m our econ
omy for many decades, and there can be no doubt that it ideally
should affect both stages of the calculation described m the
previous section The difficult problem is how it can do so in
the practical context of civil litigation under § 5(b) of the Act
The first stage of the calculation required an estimate of
the shape of the lost stream of future income For many
workers, including respondent, a contractual "cost-of-kving
adjustment" automatically increases wages each year by the
percentage change during the previous year in the consumer
price index calculated by the Bureau of Labor Statistics
Such a contract provides a basis for taking into account an
additional societal factor — price inflation — in estimating the
worker's lost future earnings
The second stage of the calculation requires the selection
of an appropriate discount rate Price inflation — or more
precisely, anticipated price inflation — certainly affects market
22 At one tune it was thought appropriate to distinguish between com
pensating a plaintiff 'for the loss of time from his work which has actually
occurred up to the tune of trial" and compensating him "for the time which
he will lose in [the] future " C McCormick, Damages § 86 (1935) This
suggested that estimated future earning capacity should be discounted to
the date of trial, and a separate calculation should be performed for the es-
timated loss of earnings between injury and trial Id , §§ 86, 87 It is
both easier and more precise to discount the entire lost stream of earnings
back to the date of uyury— the moment from which earning capacity was
impaired The plaintiff may then be awarded interest on that discounted
sum for tfce period between injury and judgment, in order to ensure that
the award when invested will still be able to replicate the lost stream See
^i re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 644
F 2d 633, 641-646 (CA7 1981), 1 Speiser § 8 6, p 723
JONES & LAUGHLIN STEEL CORP v PFEIFER 539
523 Opinion of the Court
rates of return If a lender knows that his loan is to be re-
paid a year later with dollars that are less valuable than those
he has advanced, he will charge an interest rate that is high
enough both to compensate him for the temporary use of the
loan proceeds and also to make up for their shrinkage in
value M
At one time many courts incorporated inflation into only
one stage of the calculation of the award for lost earnings
See, e g , Sleeman v Chesapeake and Ohio R Co , 414
** The effect of price inflation on the discount rate may be less speculative
than its effect on the lost stream of future income The latter effect al-
ways requires a prediction of the future, for the existence of a contractual
cost-of-hving adjustment gives no guidance about how big that adjustment
will be in some future year However, whether the discount rate also
turns on predictions of the future depends on how it is assumed that the
worker will invest his award
On the one hand, it might be assumed that at the time of the award the
worker will invest in a mixture of safe short-term, medium-term, and long-
term bonds, with one scheduled to mature each year of his expected work-
life In that event, by purchasing bonds immediately after judgment, the
worker can be ensured whatever future stream of nominal income is pre-
dicted Since all relevant effects of inflation on the market interest rate
will have occurred at that time, iuture changes in the rate of price inflation
will have no effect on the stream of income he receives For recent com-
mentaries on how an appropriate discount rate should be chosen under this
assumption, see JarreU & Pulsmelh, Obtaining the Ideal Discount Rate in
Wrongful Death and Injury Litigation, 32 Defense L J 191 (1983), Fulmer
& Geraghty, The Appropriate Discount Rate to Use in Estimating Finan-
cial Loss, 32 Federation Ins Counsel Q 263 (1982) See also Doca v
Marina Mercante Nicaraguense, S A,634F 2d 30, 37, n. 8 (CA2 1980)
On the other hand, it might be assumed that the worker will invest exclu-
sively in safe short-term notes, reinvesting them at the new market rate
whenever they mature Future market rates would be quite important to
such a worker Predictions of what they will be would therefore also be
relevant to the choice of an appropriate discount rate, m nmch the same
way that they are always relevant to the first stage of the caieulattoo. For
a commentary choosing a discount rate on the basis of this assumption^ see
Sherman, Projection of Economic Loss Inflation v Present Value, 14
Creighton L Rev 723 (1981) (hereafter Sherman) We perceive no mfcro-
sic reason to prefer one assumption over the other, but most **di&efc'*
analyses seem to adopt the latter See n. 26,
540 OCTOBER TERM, 1982
Opinion of the Court 462 U g
F 2d 305 (CA6 1969), Johnson v Penrod Drilling Co , 510
F 2d 234 (CAS 1975) (en bane) In estimating the lost stream
of future earnings, they accepted evidence of both individual
and societal factors that would tend to lead to wage increases
even in an inflation-free economy, but required the plaintiff
to prove that those factors were not influenced by predictions
of future price inflation See Higginbotham v Mobil Oil
Corp , 545 F 2d 422, 434-435 (CA5 1977) No increase was
allowed for price inflation, on the theory that such predic-
tions were unreliably speculative See Sleeman, supra, at
308, Penrod, supra, at 240-241 In discounting the esti-
mated lost stream of future income to present value, how-
ever, they applied the market interest rate See Blue v
Western R of Alabama, 469 F 2d 487, 496-497 (CA5 1972)
The effect of these holdings was to deny the plaintiff the
benefit of the impact of inflation on his future earnings, while
giving the defendant the benefit of inflation's impact on the
interest rate that is used to discount those earnings to
present value Although the plaintiff in such a situation
could invest the proceeds of the litigation at an ''inflated" rate
of interest, the stream of income that he received provided
him with only enough dollars to maintain his existing norm
ncd income, it did not provide him with a stream comparable
to what his lost wages would have been in an inflationary
economy •• This inequity was assumed to have been minimal
because of the relatively low rates of inflation
In recent years, of course, inflation rates have not re-
mained low There is now a consensus among courts that
* As Judge Posner has explained it
"But if there is inflation it will affect wages as well as prices Therefore to
give Mrs O*Shea $2318 today because that is the present value of $7200
10 years hence, computed at a discount rate — 12 percent — that consists
mainly of an allowance for anticipated inflation, is in fact to give her tess
than she would have been earning then if she was earning $7200 on the date
of the accident, even if the only wage increases she would have received
would have been those necessary to keep pace with inflation " O'Shea v
Rwerway Tvwmg Co , 677 F 2d 1194, 1199 (CA7 1982)
JONES & LAUGHLIN STEEL CORP v PFEIFER 541
523 Opinion of the Court
the prior inequity can no longer be tolerated See, e g ,
United States v English, 521 F 2d 63, 75 (CA9 1975) ("While
the administrative convenience of ignoring inflation has some
appeal when inflation rates are low, to ignore inflation when
the rates are high is to ignore economic reality") There is
no consensus at all, however, regarding what form an appro-
priate response should take See generally Note, Future
Inflation, Prospective Damages, and the Circuit Courts, 63
Va L Rev 105(1977)
Our sister common-law nations generally continue to ad-
here to the position that inflation is too speculative to be con-
sidered in estimating the lost stream of future earnings, they
have sought to counteract the danger of systematically un-
dercompensating plaintiffs by applying a discount rate that is
below the current market rate Nevertheless, they have
each chosen different rates, applying slightly different eco-
nomic theories In England, Lord Diplock has suggested
that it would be appropriate to allow for future inflation ''in
a rough and ready way" by discounting at a rate of 4%%
Cookson v Knowles, [1979] A C 556, 565-573 He ac-
cepted that rate as roughly equivalent to the rates available
"[i]n times of stable currency " Id , at 571-572 See also
Mallett v McMonagle, [1970] A C 166 The Supreme
Court of Canada has recommended discounting at a rate of
7%, a rate equal to market rates on long-term investments
minus a government expert's prediction of the long-term rate
of price inflation Andrews v Grand & Toy Alberta Ltd ,
[1978] 2 S C R 229, 83 D L R 3d 452, 474 And in Aus-
tralia, the High Court has adopted a 2% rate, on the theory
that it represents a good approximation of the long-term
"real interest rate " See Pennant Hills Restaurants Pty
Ltd v Barrell Insurances Pty Ltd , 55 A L J R 258
(1981), id , at 260 (Barwick, C J ), id , at 262 (Gibbs, J ), id ,
at 277 (Mason, J ), id , at 280 (Wilson, J )
In this country, some courts have taken the same "real in-
terest rate" approach as Australia, See Feldman v Alle-
542 OCTOBER TERM, 1982
Opinion of the Court 462 U S
gheny Airlines, Inc , 524 F 2d, at 388 (1 5%), Doca v Ma
rinaMercantiNwaragitense, S A , 634 F 2d 30, 39-40 (CA2
1980) (2%, unless litigants prove otherwise) They have en-
dorsed the economic theory suggesting that market interest
rates include two components — an estimate of anticipated
inflation, and a desired "real" rate of return on investment —
and that the latter component is essentially constant over
time * They have concluded that the inflationary increase
in the estimated lost stream of future earnings will therefore
be perfectly "offset" by all but the "real" component of the
market interest rate *
K In his dissenting opinion in Pennant Hills Restaurant Pty Ltd v
BarreU Insurances Pty Ltd , 55 A L J R 258, 266-267 (1981), Justice
Stephen explained the "real interest rate" approach to discounting future
earmngs, in part, as follows
**It rests upon the assumption that interest rates have two principal com
ponents the market's own estimation of likely rates of inflation during the
term of a particular fixed interest investment, and a 'real interest' compo-
nent, being the rate of return which, in the absence of all inflation, a lender
will demand and a borrower will be prepared to pay for the use of borrowed
firods It also rehes upon the alleged economic fact that this *real interest
rate, of about two per cent, will always be much the same and that fluctua-
tion in nominal rates of interest are due to the other main component of
interest rates, the inflationary expectation "
* What is meant by the "real interest rate" depends on how one expects
the ptataff to invest the award, see n 23, supra If one assumes that the
H^ured worker will immediately invest in bonds having a variety of matu
r&y dates, in order to ensure a particular stream of future payments, then
£be relevant **real interest rate" must be the difference between (1) an
ara-age of short-term, medium-term, and long-term market interest rates
to a given year and (2) the average rate of price inflation in subsequent
fears (u e , during the terms of the investments) The only comprehen-
sive analysis of this difference that has been called to our attention is
m FMm&n v Allegheny Airlines, Inc , 382 F Supp 1271, 1293-12%,
1306-1312 (Com* 1974)
It appears nacre common fen* "real interest rate" approaches to rest on
toe assumption that the worker will invest in low-risk short-term securities
and wtB rwmis& fre*p*eij% E g , O*Shea v Rwerway Towmg Co , 677
JONES & LAUGHLIN STEEL CORP v PFEIFER 543
523 Opinion of the Court
Still other courts have preferred to continue relying on
market interest rates To avoid undercompensation, they
have shown at least tentative willingness to permit evidence
of what future price inflation will be in estimating the lost
stream of future income Schmitt v Jenkins Truck Lines,
Inc , 170 N W 2d 632 (Iowa 1969), Bach v Penn Central
Transp Co , 502 F 2d 1117, 1122 (CA6 1974), Turcotte v
Ford Motor Co , 494 F 2d 173, 186-187 (CA1 1974), Huddell
v Levin, 537 F 2d 726 (CA3 1976), United States v English,
supra, at 74-76, Ott v Frank, 202 Neb 820, 277 N W 2d
251 (1979), District of Columbia v Bamteau, 399 A 2d 563,
566-569 (D C 1979) Cf Magill v Westinghouse Electric
Corp , 464 F 2d 294, 301 (CA3 1972) (holding open possibility
of establishing a factual basis for price inflation testimony),
Resner v Northern Pacific R Co , 161 Mont 177, 505 P
2d 86 (1973) (approving estimate of future wage inflation),
Taenzler v Burlington Northern, 608 F 2d 796, 801 (CAS
1979) (allowing estimate of future wage inflation, but not of a
specific rate of price inflation), Steckler v United States, 549
F 2d 1372 (CA10 1977) (same)
Within the past year, two Federal Courts of Appeals have
decided to allow litigants a choice of methods Sitting en
bane, the Court of Appeals for the Fifth Circuit has overruled
its prior decision in Johnson v Penrod Drilling Co , 510
F 2d, at 1199 Under that assumption, the relevant real interest rate is
the difference between the short-term market interest rate m a given year
and the average rate of price inflation during that same year Several
studies appear to have been done to measure this difference See Sher-
man 731-732, Carlson, Short-Term Interest Rates as Predictors of Infla-
tion Comment, 67 Am Econ Rev 469 (1977), Gibson, Interest Rates and
Inflationary Expectations New Evidence, 62 Am Econ Rev 854 (1972)
However one interprets the ''real interest rate," there is a slight distor-
tion introduced by netting out the two effects and discounting by the differ-
ence See Comments, 49 U Chi L Rev 1003, 1017-1018, n 66 (1982),
Note, Future Inflation, Prospective Damages, and the Circuit Courts, 63
Va L Rev 105, 111 (1977)
544 OCTOBER TERM, 1982
Opinion of the Court 452 u S
F 2d 234 (1975), and held it acceptable either to exclude evi
dence of future price inflation and discount by a "real" inter-
est rate, or to attempt to predict the effects of future price
inflation on future wages and then discount by the market
interest rate Culver v Slater Boat Co , 688 F 2d 280,
308-310 (1982) * A panel of the Court of Appeals for the
Seventh Circuit has taken a substantially similar position
O'Shea v Riverway Towing Co , 677 F 2d 1194, 1200 (1982)
Finally, some courts have applied a number of techniques
that have loosely been termed "total offset" methods What
these methods have in common is that they presume that the
ideal discount rate — the after-tax market interest rate on a
safe investment — is (to a legally tolerable degree of precision)
completely offset by certain elements in the ideal computa
tion of the estimated lost stream of future income They all
assume that the effects of future price inflation on wages are
part of what offsets the market interest rate The methods
differ, however, in their assumptions regarding which if any
other elements in the first stage of the damages calculation
contribute to the offset
Beauheu v Elliott, 434 P 2d 665 (Alaska 1967), is re-
garded as the seminal "total offset" case The Supreme
Court of Alaska ruled that m calculating an appropriate
award for an injured worker's lost wages, no discount was to
be applied It held that the market interest rate was fully
offset by two factors price inflation and real wage inflation
27 The Fifth Circuit recommended replacing the estimated stream of ac
tual installments with a stream of installments representing the "average
annual income " See 688 F 2d, at 309 As we have noted, a worker does
not generally receive the same wage each year If, as an accurate esti
mate would normally show, the estimated wages increase steadily, then
averaging will raise the estimate for the early years and lower it for the
later years Since the early years are discounted less than the later years,
this step will necessarily increase the size of the award, providing plaintiffs
with an unjustified windfall Cf Turcotte v Ford Motor Co , 494 F 2d
173, 186, n 20 (CA1 1974)
JONES & LAUGHLIN STEEL CORP v PFEIFER 545
523 Opinion of the Court
Id , at 671-672 Significantly, the court did not need to
distinguish between the two types of sources of real wage in-
flation— individual and societal — in order to resolve the case
before it * It simply observed
"It is a matter of common experience that as one pro-
gresses in his chosen occupation or profession he is likely
to increase his earnings as the years pass by In nearly
any occupation a wage earner can reasonably expect to
receive wage increases from time to time This factor is
generally not taken into account when loss of future
wages is determined, because there is no definite way of
determining at the time of trial what wage increases the
plaintiff may expect to receive in the years to come
However, this factor may be taken into account to some
extent when considered to be an offsetting factor to the
result reached when future earnings are not reduced to
present value " Id , at 672
Thus, the market interest rate was deemed to be offset by
price inflation and all other sources of future wage increases
In State v Gumn, 555 P 2d 530 (Alaska 1976), the Beau-
lieu approach was refined slightly In that case, the plaintiff
had offered evidence of "small, automatic increases in the
wage rate keyed to the employee's length of service with the
company," 555 P 2d, at 545, and the trial court had included
those increases in the estimated lost stream of future income
but had not discounted It held that this type of "certain and
predictable" individual raise was not the type of wage in-
crease that offsets the failure to discount to present value
Thus, the market interest rate was deemed to be offset by
price inflation, societal sources of wage inflation, and indi-
vidual sources of wage inflation that are not "certain and
predictable " Id , at 546-547 See also Gowdy v United
States, 271 F Supp 733 (WD Mich 1967) (price inflation and
28 See supra, at 535-536
546 OCTOBER TERM, 1982
Opinion of the Court 452 y g
societal sources of wage inflation), rev'd on other grounds
412 F 2d 525 (CA6 1969), Pierce v New York Central R
Co , 304 F Supp 44 (WD Mich 1969) (same)
Kaczkowski v Bolubasz, 491 Pa 561, 421 A 2d 1027
(1980), took still a third approach The Pennsylvania
Supreme Court followed the approach of the District Court
in Feldman v Allegheny Airlines, Inc , 382 F Supp 1271
(Conn 1974), and the Court of Appeals for the Fifth Circuit
in Higgmbotham v Mobil Oil Corp , 545 F 2d 422 (1977),
in concluding that the plaintiff could introduce all manner of
evidence bearing on likely sources— both individual and soci-
etal—of future wage growth, except for predictions of price
inflation 491 Pa , at 579-580, 421 A 2d, at 10364037
However, it rejected those courts' conclusion that the result
ing estimated lost stream of future income should be dis
counted by a "real interest rate " Rather, it deemed the
market interest rate to be offset by future price inflation
Id , at 580-582, 421 A 2d, at 1037-1038 See also SchneUy
v Baker, 217 N W 2d 708, 727 (Iowa 1974), FreeportSul
phur Co v StS Hermosa, 526 F 2d 300, 310-312 (CAS 1976)
(Wisdom, J , concurring)
The litigants and the amici in this case urge us to select
one of the many rules that have been proposed and establish
it for all time as the exclusive method in all federal trials for
calculating an award for lost earnings in an inflationary
economy We are not persuaded, however, that such an
approach is warranted Accord, Cookson v Knowles, [1979]
A C , at 574 (Lord Salmon) For our review of the forego-
ing cases leads us to draw three conclusions First, by its
very nature the calculation of an award for lost earnings must
be a rough approximation Because the lost stream can
never be predicted with complete confidence, any lump sum
represents only a "rough and ready" effort to put the plaintiff
in the position he would have been in had he not been injured
Second, sustained price inflation can make the award sub-
stantially less precise Inflation's current magnitude and
JONES & LAUGHLIN STEEL CORP v PFEIFER 547
523 Opinion of the Court
unpredictability create a substantial risk that the damages
award will prove to have little relation to the lost wages it
purports to replace Third, the question of lost earnings can
arise in many different contexts In some sectors of the
economy, it is far easier to assemble evidence of an individ-
ual's most likely career path than in others
These conclusions all counsel hesitation Having surveyed
the multitude of options available, we will do no more than is
necessary to resolve the case before us We limit our atten-
tion to suits under § 5(b) of the Act, noting that Congress has
provided generally for an award of damages but has not given
specific guidance regarding how they are to be calculated
Within that narrow context, we shall define the general
boundaries within which a particular award will be consid-
ered legally acceptable
III
The Court of Appeals correctly noted that respondent's
cause of action "is rooted in federal maritime law " Pope &
Talbot, Inc v Hawn, 346 U S 406, 409 (1953) See also
H R Rep No 92-1441(1972) The fact that Pennsylvania
has adopted the total offset rule for all negligence cases in
that forum is therefore not of controlling importance in this
case Moreover, the reasons which may support the adop-
tion of the rule for a State's entire judicial system — for a
broad class of cases encompassing a variety of claims affect-
ing a number of different industries and occupations — are not
necessarily applicable to the special class of workers covered
by this Act
In calculating an award for a longshoreman's lost earnings
caused by the negligence of a vessel, the discount rate should
be chosen on the basis of the factors that are used to estimate
the lost stream of future earnings If the trier of fact relies
on a specific forecast of the future rate of price inflation, and
if the estimated lost stream of future earnings is calculated to
include price inflation along with individual factors and other
_,Q OCTOBER TERM, 1982
o4o
Opinion of the Court 462 U S
societal factors, then the proper discount rate would be the
after-tax market interest rate » But since specific forecasts
of future price inflation remain too unreliable to be useful m
many cases, it will normally be a costly and ultimately unpro-
ductive waste of longshoremen's resources to make such fore-
casts the centerpiece of litigation under § 5(b) As Judge
Newman has warned "The average accident trial should not
be converted into a graduate seminar on economic forecast-
mg " Doca v Marina Mercante Nicaraguense, S A , 634
F 2d at 39 For that reason, both plaintiffs and trial courts
should be discouraged from pursuing that approach
On the other hand, if forecasts of future price inflation are
not used, it is necessary to choose an appropriate below
market discount rate Ab long as inflation continues, one
must ask how much should be "offset" against the market
rate Once again, that amount should be chosen on the basis
of the same factors that are used to estimate the lost stream
of future earnings If full account is taken of the individual
and societal factors (excepting price inflation) that can be
expected to have resulted in wage increases, then all that
should be set off against the market interest rate is an esti
mate of future price inflation This would result in one of the
"real interest rate" approaches described above Although
we find the economic evidence distinctly inconclusive regard
ing an essential premise of those approaches,30 we do not be-
29 Seen 23, supra
80 The key premise is that the real interest rate is stable over time See
n 25 supra It is obviously not perfectly stable, but whether it is even
relatively stable is hotly disputed among economists See the sources
cited in Doca, 634 F 2d, at 39, n 10 In his classic work, Irving Fisher
arjrued that the rate is not stable because changes in expectations of infla
tion (the factor that influences market interest rates) lag behind changes in
mflation itself I Fisher, The Theory of Interest 43 (1930) He noted
that the "real rate of interest in the United States from March to April,
1917, fell below minus 70 percent'" Id , at 44 Consider also the more
recent observations of Justice Stephen of the High Court of Australia
"Past Australian economic experience appears to provide little support
for the concept of a relatively constant rate of 'real interest ' Year by year
JONES & LAUGHLIN STEEL CORP v PFEIFER 549
523 Opinion of the Court
heve a trial court adopting such an approach in a suit under
§5(b) should be reversed if it adopts a rate between 1 and 3%
and explains its choice
There may be a sound economic argument for even further
setoffs In 1976, Professor Carlson of the Purdue Univer-
sity Economics Department wrote an article in the American
Bar Association Journal contending that in the long run the
societal factors excepting price inflation — largely productiv-
ity gains — match (or even slightly exceed) the "real interest
rate " Carlson, Economic Analysis v Courtroom Contro-
versy, 62 A B A J 628(1976) He thus recommended that
the estimated lost stream of future wages be calculated with-
out considering either price inflation or societal productivity
gains All that would be considered would be individual se-
niority and promotion gams If this were done, he concluded
that the entire market interest rate, including both inflation
a figure for 'real interest' can of course be calculated, simply by subtracting
from nominal interest rates the rate of inflation But these figures are no
more than a series of numbers bearing no resemblance to any relatively
constant rate of interest which lenders are supposed to demand and bor-
rowers to pay after allowing for estimated inflation If official statistics
for the past twelve calendar years are consulted, the Reserve Bank of Aus-
tralia's Statistical Bulletins supply interest rates on two-year Australian
government bonds (non rebatable) and the 0 E C D Economic Out-
look— July 1980, p 105 and p 143, supplies annual percentage changes in
consumer prices, which gives a measure of inflation The difference figure
year by year, which should represent the 'real interest* rate, averages out
at a negative average rate of interest of - 1 46, the widest fluctuations
found in particular years being a positive rate of 2 58 per cent and a nega-
tive rate of - 6 61 per cent Nothing resembling a relatively constant
positive rate of 2 per cent-3 per cent emerges An equally random series
of numbers, showing no steady rate of 'real interest', appears as Table 9 1
in the recent Interim Report of the Campbell Committee of Inquiry (Aus-
tralian Government Publication Service — 1980) For the period of thirty
years which that Table covers, from 1950 to 1979, the average 'implicit real
interest rate' is a negative rate of - 7 per cent, with 4 per cent as the
greatest positive rate in any year and - 20 2 per cent as the greatest nega-
tive annual rate " Pennant Hills Restaurants Pty Ltd , 55 A L J R ,
at 267
550 OCTOBER TERM, 1982
Opinion of the Court 462 TJ a
and the real interest rate, would be more than adequately
offset *
Although such an approach has the virtue of simplicity and
may even be economically precise,31 we cannot at this tune
agree with the Court of Appeals for the Third Circuit that its
use is mandatory in the federal courts Naturally, Congress
could require it if it chose to do so And nothing prevents
parties interested in keeping litigation costs under control
from stipulating to its use before trial 32 But we are not pre-
31 We note that a substantial body of literature suggests that the Carlson
rule might even twdercompensate some plaintiffs See S Speiser, Secov
ery for Wrongful Death, Economic Handbook 36-37 (1970) (average inter
est rate 1% below average rate of wage growth), Formuzis & O'Donnell,
Inflation and the Valuation of Future Economic Losses, 38 Mont L Rev
297, 299 (1977) (interest rate 1 4% below rate of wage growth), Franz, Snn
phfying Future Lost Earnings, 13 Trial 34 (Aug 1977) (rate of wage
growth exceeds interest rate by over 1% on average), Coyne, Present
Value of Future Earnings A Sensible Alternative to Simplistic Methodolo-
gies, 49 Ins Counsel J 25, 26 (1982) (noting that Carlson's own data sug
gest that rate of wage growth exceeds interest rate by over 1 6%, and
recommending a more individualized approach) See generally Note, 57
St John's L Rev 316, 342-345 (1983) But see Comments, 49 U Chi L
Rev 1003, 1023, and n 87 (1982) (noting "apparent congruence" between
Government projections of 2% average annual productivity growth and
real interest rate, and concluding that total offset is accurate)
It is also interesting that in O'Shea v Rwerway Tounng Co , 677 F 2d
1194 (CA7 1982), Judge Posner stated that the real interest rate varies
between 1 and 3%, id , at 1199, and that "[i]t would not be outlandish to
assume that even if there were no inflation, Mrs O'Shea's wages would
have risen by three percent a year," id , at 1200 Depending on how much
of Judge Posner's estimated wage inflation for Mrs O'Shea was due to inch
vidual factors (excluded from a total offset computation), his comments
suggest that a total offset approach in that case could have meant over
discounting by as much as 2%
82 If parties agree in advance to use the Carlson method, all that would be
needed would be a table of the after-tax values of present salaries and
fringe benefits for different positions and levels of seniority ("steps")
within an industry Presumably this would be a matter for stipulation be-
fore trial, as well The trier of fact would be instructed to determine how
JONES & LAUGHLIN STEEL CORP v PFEIFER 551
523 Opinion of the Court
pared to impose it on unwilling litigants, for we have not been
given sufficient data to judge how closely the national pat-
terns of wage growth are likely to reflect the patterns within
any given industry The Legislative Branch of the Federal
Government is far better equipped than we are to perform a
comprehensive economic analysis and to fashion the proper
general rule
As a result, the judgment below must be set aside In
performing its damages calculation, the trial court applied
the theory of Kaczkowski v Bolubasz, 491 Pa 561, 421 A 2d
1027 (1980), as a mandatory federal rule of decision, even
though the petitioner had insisted that if compensation was
to be awarded, it "must be reduced to its present worth "
App 60 Moreover, this approach seems to have colored the
trial court's evaluation of the relevant evidence At one
point, the court noted that respondent had offered a com-
putation of his estimated wages from the date of the accident
until his presumed date of retirement, including projected
cost-of-hving adjustments It stated "We do not disagree
with these projections, but feel they are inappropriate in
view of the holding in Kaczkowski " Id , at 74 Later in its
opinion, however, the court declared "We do not believe that
there was sufficient evidence to establish a basis for esti-
mating increased future productivity for the plaintiff, and
therefore we will not inject such a factor in this award " Id ,
at 76
On remand, the decision on whether to reopen the record
should be left to the sound discretion of the trial court It
bears mention that the present record already gives reason
to believe a fair award may be more confidently expected in
many years the injured worker would have spent at each step It would
multiply the number of years the worker would spend at each step by the
current net value of each step (as shown on the table) and then add up the
results The trier of fact would be spared the need to cope with inflation
estimates, productivity trends, and present value tables
552 OCTOBER TERM, 1982
Opinion of the Court 462 TT
this case than in many The employment practices in the
longshoring industry appear relatively stable and predict
able The parties seem to have had no difficulty in arriving
at the period of respondent's future work expectancy, or in
predicting the character of the work that he would have been
performing during that entire period if he had not been
injured Moreover, the record discloses that respondent's
wages were determined by a collective-bargaining agreement
that explicitly provided for "cost of living" increases, id
at 310, and that recent company history also included a
"general" increase and a "job class increment increase"
Although the trial court deemed the latter increases irrele-
vant during its first review because it felt legally compelled
to assume they would offset any real interest rate, further
study of them on remand will allow the court to determine
whether that assumption should be made in this case
IV
We do not suggest that the trial judge should embark on a
search for "delusive exactness "M It is perfectly obvious
that the most detailed inquiry can at best produce an approxi
mate result * And one cannot ignore the fact that in many
instances the award for impaired earning capacity may be
overshadowed by a highly impressionistic award for pain and
suffering ** But we are satisfied that whatever rate the Dis
trict Court may choose to discount the estimated stream of
88 Judge Friendly perceived the relevance of Justice Holmes' phrase
in this context See Feldman v Allegheny Airlines, Inc , 524 F 2d 384,
392 (CA2 1975) (Friendly, J , concurring dubitante), quoting Truax v
Comgan, 257 U S 312, 342 (1921) (Holmes, J , dissenting)
84 Throughout this opinion we have noted the many rough approximations
that are essential under any manageable approach to an award for lost
earnings See supra, at 533-544, and nn 11, 25, 26, 30
86 It has been estimated that awards for pain and suffering account for
72% of damages in personal injury litigation 6 Am Jur Trials, Predict
mg Personal Iiyury Verdicts and Damages § 24 (1967)
JONES & LAUGHLIN STEEL CORP. v. PFEIFER 553
-no Opinion of the Court
future earnings, it must make a deliberate choice, rather
than assuming that it is bound by a rule of state law.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
554 OCTOBER TERM, 1982
Syllabus 462 U S
TEXAS v NEW MEXICO
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
No 65, Orig Argued March 30, 1983 — Decided June 17, 1983
The Pecos River Compact was entered into by Texas and New Mexico (and
approved by Congress) to govern allocation of the waters of the Pecos
River, which rises in New Mexico and flows into Texas Article III(a)
of the Compact requires that New Mexico "not deplete by man's actm
ties the flow of the Pecos River at the New Mexico Texas state line
below an amount which will give to Texas a quantity of water equivalent
to that available to Texas under the 1947 condition " The Compact es-
tablishes the Pecos River Commission (Commission) — consisting of one
Commissioner from each State and a nonvoting representative of the
United States — and empowers it to make all findings of fact necessary to
administer the Compact The two voting Commissioners were unable
to agree when a dispute arose between the States concerning the meth
ods for determining annual shortfalls of state-line water flow with regard
to Texas' right to receive as much water as it would have received under
the consumption conditions prevailing in New Mexico in 1947 Texas
filed this action against New Mexico (the United States intervened to
protect its claims on the waters of the river), alleging that New Mexico
had breached its obligations under Art III(a) of the Compact and seek
ing a decree commanding New Mexico to deliver water in accordance
with the Compact This Court appointed a Special Master, who ult
mately filed the report involved here, and the parties filed various excep-
tions thereto
Held
1 Exceptions of the Government and New Mexico to the Master's
recommendation that either the United States Commissioner or some
other third party be given a vote on the Commission and be empowered
to participate in all Commission deliberations are sustained Once con-
gressional consent is given to an interstate compact as required by the
Compact Clause, the compact is transformed into a law of the United
States, and unless the compact is unconstitutional, no court may order
relief inconsistent with its express terms Here, the Compact provides
that the Government Commissioner shall not have the right to vote, and
no other third party is given the right to vote on matters before the
Commission This Court cannot rewrite the Compact so as to provide
for a third, tie-breaking vote Moreover, the Court's equitable powers
have never been exercised so as to appoint quasi-administrative offi
TEXAS v NEW MEXICO 555
g^ Syllabus
cials to control the division of interstate waters on a day to-day basis
Pp 564-566
2 New Mexico's exception to the Master's alternative recommenda-
tion to continue the suit as presently postured is overruled, and the rec-
ommendation is accepted There is no merit to New Mexico's conten-
tion that this Court may do nothing more than review the Commission's
official actions, and that the case should be dismissed if it is found either
that there is no Commission action to review or that actions taken by the
Commission were not arbitrary or capricious This Court's original
jurisdiction to resolve controversies between two States extends to a
suit by one State to enforce its compact with another State or to declare
rights under a compact Here, fundamental structural considerations of
the Compact militate against New Mexico's theory, since if all questions
under the Compact had to be decided by the Commission in the first in-
stance, New Mexico could indefinitely prevent authoritative Commission
action solely by exercising its veto on the Commission Nor do the
Compact's express terms constitute the Commission as the sole arbiter
of disputes over New Mexico's Art III obligations Moreover, if
authorized representatives of the compacting States have reached an
agreement on action to be taken by the Commission, this Court will not
review the Commission's action at the behest of one of the States absent
extraordinary cause or a precise mandate from Congress Pp 566-571
3 Texas' exception to the Master's recommendation against approval
of Texas' motion to adopt a so called "Double Mass Analysis" method for
determining when a shortfall in state-line flows has occurred is over-
ruled The Compact provides that until the Commission adopts a more
feasible method, an "inflow-outflow method" shall be used to measure
state-line shortfalls The "Double Mass Analysis" is not close enough to
what the Compact terms an "inflow-outflow method, as described m the
Report of the Engineering Advisory Committee" to make it acceptable
for use in determining New Mexico's compliance with its Art III obliga-
tions While the Compact leaves the Commission free to adopt the
"Double Mass Analysis," this Court may not apply it against New Mex-
ico in the absence of Commission action Pp 571-574
Exceptions to Special Master's report sustained in part and overruled m
part
BRENNAN, J , delivered the opinion for a unanimous Court
R Lambeth Townsend, Assistant Attorney General of
Texas, argued the cause for plaintiff With him on the briefs
were Mark White, Attorney General, John W Fainter, Jr ,
556 OCTOBER TERM, 1982
Opinion of the Court 4^2 n Q
First Assistant Attorney General, Richard E Gray III
Executive Assistant Attorney General, and Frank R Booth
Charlotte Uram, Special Assistant Attorney General of
New Mexico, argued the cause for defendant With her on
the briefs were Paul G Bardacke, Attorney General, Jeff
Bingaman, former Attorney General, and Peter Thomas
White, Special Assistant Attorney General
Solicitor General Lee, Deputy Solicitor General Claiborne,
and John H Garvey filed a brief for the United States
JUSTICE BRENNAN delivered the opinion of the Court
For the second time we consider exceptions to a report of
the Special Master in this case The States of Texas and
New Mexico and the United States have filed exceptions to a
report submitted by the Special Master on September 10,
1982 (1982 Report) We sustain an exception in which both
New Mexico and the United States concur, overrule all other
exceptions, and return the case to the Special Master for a
final decision on the basic issue in dispute — whether New
Mexico is in compliance with obligations imposed by the
Pecos River Compact
I
The Pecos River rises in north-central New Mexico and
flows in a southerly direction into Texas until it joins the
Rio Grande near Langtry, Tex * It is the principal river in
eastern New Mexico, draining roughly one-fifth of the State,
and it is a major tributary of the Rio Grande
'From north to south, the Pecos River flows past Pecos and Santa Rosa,
N M , and then into the Alamogordo Reservoir above Alamogordo (or
Stunner) Dam It then passes Fort Sumner and traverses a relatively des-
olate region in the central part of the State From Acme to Artesia, in the
area around Roswell, the river is fed by a large, slowly flowing aquifer
Below Artesia, the river passes through a set of deltas and lakes formed by
the now deteriorated McMillan and Avalon Dams, then flows past Carlsbad
and into the Red Bluff Reservoir, which straddles the state line and is used
to regulate the river in Texas
TEXAS v NEW MEXICO 557
cr^ Opinion of the Court
Due in large part to many natural difficulties,2 the Pecos
barely supports a level of development reached in the first
third of this century If development in New Mexico were
not restricted, especially the groundwater pumping near
Roswell, no water at all might reach Texas in many years
As things stand, the amount of water Texas receives in any
year varies with a number of factors besides beneficial con-
sumption in New Mexico These factors include, primarily,
precipitation in the Pecos Basin over the preceding several
years, evaporation in the McMillan and Alamogordo Reser-
voirs, and nonbeneficial consumption of water by salt cedars
and other riverbed vegetation
A
After 20 years of false starts,3 in 1945 Texas and New
Mexico commenced negotiations on a compact to allocate the
2 In its natural state, the Pecos may dry up completely for weeks at a
time over fairly long reaches in central New Mexico Much of its annual
flow comes in flash floods, carrying with them great quantities of topsoil
that both progressively destroy reservoirs, by silting, and render the
river's waters quite saline The nonflood "base" flow of the Pecos below
Alamogordo Dam is supplied to a large part by groundwater aquifers that
empty into the river in the reach between Acme and Artesia, N M The
operation of these aquifers is little understood They are depleted by
pumping from wells in the Roswell area, and there is some suggestion that
at tunes heavy groundwater pumping m the area around Roswell may actu-
ally reverse the direction of flow of the underground aquifer, so that water
flows away from the river See Texas' Brief on the 1947 Condition (filed
Aug 21, 1978), p 34 In addition, a steady stream of underground brine
enters the river at Malaga Bend, some 10 miles above the Texas border,
severely impairing the quality of water that reaches Texas when the river
is low Salt cedars, which consume large amounts of water, proliferate
along its channel and in the silt deposits at the heads of its reservoirs
3 In 1925, the States negotiated a compact for regulating the river It
was approved by both state legislatures, but the Governor of New Mexico
vetoed its bill In the early 1930's, the Texas congressional delegation
succeeded in holding up federal funding for construction of the Alamogordo
Bam until New Mexico agreed to ensure that Texas received the same por-
tion of flood flows originating above Avalon Dam that it had received dur-
ing the period from 1905 to 1935 This agreement was signed in 1935 by
558 OCTOBER TERM, 1982
Opinion of the Court 4^ jj «
waters of the Pecos Basin A Compact Commission was
formed, consisting of three Commissioners, representing the
two States and the United States In January 1948, the
Compact Commission's engineering advisory committee sub-
mitted a lengthy report (1947 Study), the central portion of
which was a set of river routing studies describing six "condi-
tions" of the Pecos, one of which consisted of the actual condi
tions as of the beginning of 1947 4 Each of the studies was
embodied in a 41-column table accounting for all known in
flows and outflows of water on the river during each of the
years between 1905 and 1946 ° The engineering advisory
committee also drafted a Manual of Inflow-Outflow Methods
the Secretary of the Interior, the United States Senators from both States,
and representatives of the irrigation districts concerned, and it was for
mally ratified by the Texas Legislature but never by the New Mexico
Legislature New Mexico did, however, sharply restrict groundwater
pumping in the Roswell area in 1937, thus restoring to some extent the
base flow of the river
4 The six "conditions" studied by the engineering committee represented
various combinations of historical facts from different periods and hypo-
thetical assumptions about the existence, condition, and operation of
the dams and irrigation projects that had been built since 1905 See
S Doc No 109, 81st Cong , 1st Sess , 9-11 (1949) (S Doc 109) The only
one material to the Compact as adopted is the "1947 condition," which
assumed actual conditions as of 1947, with some additional use by the
Carlsbad and Fort Sumner projects
5 For instance, on each table column 14 showed depletion by pumps be-
tween Acme and Artesia, column 15 showed inflows from aquifers in the
same reach, and column 16 showed depletion by salt cedars Some of the
entries m the tables could be inferred more or less easily from observed
data — e g , the flow of the river past specific gauges, or diversions toirri
gation projects Others, such as the entries for salt-cedar depletions or
evaporation from each reservoir, could only be estimated, albeit with some
degree of reliability However, many entries — e g , the three columns
showing "flood inflows" and the two columns entitled "channel losses"—
required a great deal of speculation, and to some extent they may have
been used as residual categories to "balance the books " See S Doc
109, at 41-42, Report of Review of Basic Data to Engineering Advisory
Committee, Pecos River Commission 24 (1960) (stipulated exhibit No 8)
(Review of Basic Data)
TEXAS v NEW MEXICO 559
rr^ Opinion of the Court
of Measuring Changes m Stream-Flow Depletion (1948)
(Inflow-Outflow Manual), which contained charts and tables,
derived from data in the 1947 Study, to be used in determin-
ing how much water Texas should expect to receive over any
particular period for any particular levels of precipitation,
under the consumption conditions prevailing m New Mexico
in 1947
On the basis of the 1947 Study and the Inflow-Outflow
Manual, the two States successfully negotiated the Pecos
River Compact It was signed by the Commissioners from
both States on December 3, 1948, and thereafter ratified
by both state legislatures and — as required under the Com-
pact Clause of the Constitution6 — approved by Congress
Ch 184, 63 Stat 159 The 1947 Study and the Inflow-
Outflow Manual were incorporated into S Doc 109, and they
unquestionably provided the basis upon which Congress
approved the Compact, see S Rep No 409, 81st Cong , 1st
Sess (1949)
The crucial substantive provision of the Pecos River Com-
pact is found at Art III(a) "New Mexico shall not deplete
by man's activities the flow of the Pecos River at the New
Mexico-Texas state line below an amount which will give to
Texas a quantity of water equivalent to that available to
Texas under the 1947 condition " The term "1947 condition"
was expressly defined as "that situation m the Pecos River
Basin as described and defined m the Report of the Engineer-
ing Advisory Committee " Art II(g) In turn, the Report
was defined to include "basic data, processes, and analyses
utilized in preparing that report," Art II(f ), and "deplete
by man's activities" was defined to include any "beneficial
consumptive uses of water within the Pecos River Basin,"
but to exclude diminutions of flow due to "encroachment of
6 "No State shall, without the Consent of Congress, Compact with
another State, or with a foreign Power "US Const , Art I, § 10,
cl 3
560 OCTOBER TERM, 1982
Opinion of the Court 4^2 TJ «
salt cedars" or "deterioration of the channel of the stream "
Art II(e)
The Compact also established the Pecos River Commission
as a permanent body, in more or less the same form that it
had during the negotiations on the Compact It was to have
three Commissioners, one from each State and one repre-
senting the United States, but the United States represent
ative could not vote Art V(a) Accordingly, the Commis-
sion could take official action only with the concurrence
of both state Commissioners The Commission was given
broad powers to make all findings of fact necessary to admin
ister the Compact, Arts V(d)(5)-(10), as well as to "[e]ngage
in studies of water supplies of the Pecos River" and to "[c]ol
lect, analyze, correlate, preserve and report on data as to the
stream flows, storage, diversions, salvage, and use of the wa
ters of the Pecos River and its tributaries/' Arts V(d)(3), (4) 7
For roughly 15 years, the Pecos River Commission fonc
tioned more or less as had been contemplated in the Com-
pact It met regularly, passed resolutions, and undertook
studies of various questions of importance to those who use
the waters of the Pecos The apparent harmony that char
acterized the Commission m those years, however, seems
largely to have been the result of a tacit agreement to defer
disagreement on a problem of serious magnitude For it be-
came clear soon after the Compact went into effect that the
1947 Study and, more importantly, the tables in the Inflow
Outflow Manual did not describe the actual state of the river
In almost every year following adoption of the Compact,
state-line flows were significantly below the amount that one
would have predicted on the basis of the Inflow-Outflow Man-
ual, with no obvious change either in natural conditions along
the river or in "man's activities "
The initial response of the Commission to this problem was
to authorize, in 1957, an ambitious "Review of Basic Data,"
7 Further relevant provisions in Arts V and VI are discussed infra, &
568, n 14, 571-572
TEXAS v NEW MEXICO 561
554 Opinion of the Court
which would essentially retrace the steps of the engineering
committee's 1947 Study to provide a more accurate descrip-
tion of the "1947 condition " The Review of Basic Data was
presented to the Commission in 1960, it essentially duplicated
the 1947 Study, but using different periods of time, revised
records, a number of different assumptions, and different
hydrological and mathematical procedures The Commission
took no action on the Review of Basic Data until two years
later, when it directed the engineering committee to proceed
with a draft of a new Inflow-Outflow Manual, and adopted as
findings of fact a set of figures derived from the new study
showing that the cumulative shortfall of state-line flows for
the years 1950-1961 was approximately 53,000 acre-feet 8
This was essentially the Commission's last action with re-
spect to the all-important question of Texas' right under the
Compact to receive as much water as it would have received
under the "1947 condition " 9 Disputes that had been de-
ferred and avoided in the past now surfaced They came to a
head at a special meeting of the Commission in July 1970, at
which the Texas Commissioner stated his position that, calcu-
lated according to the original Inflow-Outflow Manual, there
had been a cumulative shortfall in state-line flows of 1 1 mil-
8 This figure was far less than the shortfall that would have been found
had the tables m the original Inflow-Outflow Manual been used The
Commission did not determine whether any difference between expected
flows and actual flows was due to "man's activities" in New Mexico, and
later engineering committee reports indicated that adjustments to the
1950-1961 figures were contemplated
9 The Commission did not meet at all between January 1967 and Novem-
ber 1968, during which period the identities of four key persons changed
Both the Texas Commissioner (first appointed immediately after the Com-
pact was ratified) and the Engineering Advisor to the United States Com-
missioner (also chairman of the engineering committee and principal author
of the 1947 St ady and Inflow-Outflow Manual) died The New Mexico and
United States Commissioners (the latter an important force in the original
compact negotiations) retired Thus, by late 1968, administration of the
Compact was largely in the hands of people with no personal connection to
the Commission's early work
562 OCTOBER TERM, 1982
Opinion of the Court 462 U S
lion acre-feet for the years 1950-1969, that the Review of
Basic Data was "incomplete and replete with errors," and
that Texas had a right to an annual determination of depar
tures in state-line flows under the original assumptions of
the 1947 Study until the Commission adopted a different
method Thereafter, the Texas and New Mexico staffs
prepared different reports in 1971 and 1974 on cumulative
shortfalls under the "1947 condition," with Texas relying
on the original Inflow-Outflow Manual and New Mexico on
the Keview of Basic Data Attempts to mediate between
the two positions failed, and the Commission took no action
for lack of agreement between the two voting Commissioners
B
In June 1974, Texas invoked the original jurisdiction of this
Court under Art III, §2, cl 2, of the United States Constitu
tionand28U S C §1251 Its bill of complaint alleged that
New Mexico had breached its obligations under Art III(a) of
the Compact "by countenancing and permitting depletions by
man's activities within New Mexico to the extent that from
1950 through 1972 there has occurred a cumulative depar-
ture of the quantity of water available from the flow of the
Pecos River at the Texas-New Mexico State Line in excess
of 1,200,000 acre-feet from the equivalent available under
the 1947 condition " Texas sought a decree command
ing New Mexico to deliver water in accordance with the
Compact The United States intervened to protect its own
claims on the waters of the Pecos River, which had been pre
served in Arts XI-XII of the Compact We granted leave
to file the complaint, 421 U S 927 (1975), and appointed a
Special Master, 423 U S 942 (1975)
In 1979, the Special Master made his first report to this
Court In that report, he recommended that we reject
Texas' position that the phrase "1947 condition" in Art III(a)
of the Compact should be taken to mean an artificial condition
TEXAS v NEW MEXICO 563
554 Opinion of the Court
as described by the 1947 Study embodied in S Doc 109, how-
ever erroneous the data in that study might have been In-
stead, he concluded that "[t]he 1947 condition is that situation
in the Pecos River Basin which produced in New Mexico the
man-made depletions resulting from the stage of develop-
ment existing at the beginning of the year 1947 ," and
that a new Inflow-Outflow Manual was required 1979 Re-
port 41 We approved the report in full 446 U S 540
(1980)
Over the following two years, the Special Master received
evidence on the question of what corrections to the 1947
Study and the Inflow-Outflow Manual were required to pro-
duce an accurate description of the 1947 condition, and thus
of New Mexico's obligations under Art III(a) of the Com-
pact In his 1982 Report, however, he concluded that reso-
lution of these issues would require that we "exercise admin-
istrative powers delegated to the [Pecos River Commission]"
and that "such exercise of administrative power is beyond the
judicial function " 1982 Report 27 Recognizing that the
Commission would be unlikely to act by unanimous vote of
both State Commissioners, and that continued impasse fa-
vored the upstream State, the Special Master recommended
"[T]he equity powers of the Court are adequate to pro-
vide a remedy If within a reasonable time the
States do not agree on a tie-breaking procedure, the
Court would be justified in ordering that either the
representative of the United States, or some other third-
party, be designated and empowered to participate in all
Commission deliberations and act decisively when the
States are not in agreement The order should provide
that the decision of the tie-breaker is final, subject only
to appropriate review by the Court Upon the selection
of a tie-breaker, the States should be ordered to return
to the Commission for determination of this long-stand-
ing controversy " Id , at 26
564 OCTOBER TERM, 1982
Opinion of the Court 4@2 TT n
At the same time, the Special Master rejected two pending
motions, one by New Mexico for dismissal of the case alto?
gether, and one by Texas to adopt a simpler method than the
Inflow-Outflow Manual provides for determining the extent
of shortfalls in state-line water deliveries
II
Both the United States and New Mexico have filed excep
tions to the Special Master's key recommendation— that
either the United States Commissioner or some other third
party be given a vote on the Pecos River Commission and
empowered to participate in all Commission deliberations
We sustain their exceptions
Under the Compact Clause, two States may not conclude
an agreement such as the Pecos River Compact without the
consent of the United States Congress However, once
given, "congressional consent transforms an interstate com
pact within this Clause into a law of the United States"
Cuyler v Adams, 449 U S 433, 438 (1981), see Pennsylva
ma v Wheeling & Belmont Bridge Co , 13 How 518, 566
(1852) One consequence of this metamorphosis is that, un
less the compact to which Congress has consented is some-
how unconstitutional, no court may order relief inconsistent
with its express terms Yet that is precisely what the Spe-
cial Master has recommended The Pecos River Compact
clearly delimits the role of the United State Commissioner
Although the United States Commissioner must be present
at a Commission meeting in order to provide a quorum and
serves as its presiding officer, and although the engineering
advisers to the United States Commissioner have consist
ently participated fully in the work of the various engineering
committees and subcommittees, Art V(a) of the Compact
specifies that "the Commissioner representing the United
States shall not have the right to vote in any of the delib-
erations of the Commission " No other third party is given
the right to vote on matters before the Commission To
TEXAS v NEW MEXICO 565
554 Opinion of the Court
provide a third, tie-breaking vote on regular Commission
business would be to alter fundamentally the structure of
the Commission
Congress may vest a federal official with the responsibility
to administer the division of interstate streams See Ari-
zona v California, 373 U S 546, 564-567 (1963) Other in-
terstate compacts, approved by Congress contemporaneously
with the Pecos River Compact, allow federal representatives
a vote on compact-created commissions, or expressly provide
for arbitration by federal officials of commission disputes
E g , Upper Colorado Basin Compact, 63 Stat 31, 35-37,
Arkansas River Compact, 63 Stat 145, 149-151, Yellowstone
River Compact, 65 Stat 663, 665-666 The Pecos River
Compact clearly lacks the features of these other compacts,
and we are not free to rewrite it
Without doubt, the structural likelihood of impasse on the
Pecos River Commission is a serious matter In light of
other States' experience, Texas and New Mexico might well
consider amending their Compact to provide for some mutu-
ally acceptable method for resolving paralyzing impasses
such as the one that gave rise to this suit Nevertheless, the
States' failure to agree on one issue, however important,
does not render the Compact void, nor does it provide a jus-
tification for altering its structure by judicial decree The
Commission has acted on many matters by unanimous vote 10
We cannot say whether unanimity would have been achieved
had a tie breaker stood ready to endorse one State's position
over the other's Under the Compact as it now stands, the
solution for impasse is judicial resolution of such disputes as
are amenable to judicial resolution, and further negotiation
for those disputes that are not See infra, at 569-571
10 For instance, the Commission has taken a number of concrete actions
with regard to salt-cedar eradication and salinity alleviation, especially at
Malaga Bend Furthermore, it has participated m and coordinated studies
of various features of the river, and it has maintained the numerous gauges
and other equipment used in such studies
566 OCTOBER TERM, 1982
Opinion of the Court ^ n
Texas, in support of the Special Master's recommendation
argues that reformation of the Compact is within this Court's
equitable powers Indeed, in its complaint Texas specifi
cally requested that we appoint a Master "to control the
diversion, storage and use of [the] Pecos River Basin waters
within the State of New Mexico", given the scope of the Com
mission's mandate, a tie breaker on the Commission would be
the functional equivalent of such a Master Texas has not
however, identified a single instance where we have granted
similar relief u We have expressly refused to make mdefi
nite appointments of quasi-administrative officials to control
the division of interstate waters on a day-to-day basis, even
with the consent of the States involved E g , Vermont v
New York, 417 U S 270 (1974), Wisconsin v Illinois, 289
U S 710, 711 (1933) Continuing supervision by this Court
of water decrees would test the limits of proper judicial func
tions, and we have thought it wise not to undertake such a
project Vermont v New York, supra, at 277
III
In the alternative, the Special Master recommends "con
tmuance of [this] suit as presently postured " 1982 Report
28 New Mexico excepts to this recommendation insofar as
it embodies a certain conception of this Court's role in resolv
ing the present dispute It contends that this Court may do
nothing more than review official actions of the Pecos River
Commission, on the deferential model of judicial review of
administrative action by a federal agency, and that this case
11 On occasion in the past, before the device of appointing special masters
in original jurisdiction cases became common, we have gone so far as to
appoint a commission with broad powers to resolve factual questions in a
controversy between two States, see Iowa v Illinois, 147 U S 1 (1893),
but even then we declined to accept the commission's decisions without
providing the States an opportunity to challenge them, see Iowa v Ilk
nois, 151 U S 238 (1894) We have, however, been willing to appoint a
River Master solely to perform ministerial tasks New Jersey v New
York, 347 U S 995, 1002-1004 (1954)
TEXAS v NEW MEXICO 567
554 Opinion of the Court
should be dismissed if we find either that there is no Commis-
sion action to review or that the actions the Commission has
taken were not arbitrary or capricious Thus, in New Mex-
ico's view, this suit may be maintained only as one for judicial
review of the Commission's quantification of the 1950-1961
shortfall, and the implied acceptance of the Review of Basic
Data which, New Mexico argues, that entailed 12 According
to New Mexico, "[this] Court has no authority to act de
novo or assume the powers of the Pecos River Commission "
Motion of New Mexico to Recommend Final Decree (filed
Feb 19, 1982), p 2 We disagree
There is no doubt that this Court's jurisdiction to resolve
controversies between two States, U S Const , Art III,
§2, cl 1, 28 U S C §1251(a)(l), extends to a properly
framed suit to apportion the waters of an interstate stream
between States through which it flows, e g , Kansas v Colo-
rado, 185 U S 125, 145 (1902), or to a suit to enforce a prior
apportionment, e g , Wyoming v Colorado, 298 U S 573
(1936) 13 It also extends to a suit by one State to enforce its
compact with another State or to declare rights under a com-
pact Virginia v West Virginia, 206 U S 290, 317-319
(1907), cf West Virginia ex rel Dyer v Sims, 341 U S 22,
30 (1951) (jurisdiction to interpret a compact on writ of certio-
rari), Green v Biddle, 8 Wheat 1, 91 (1823) If there is
a compact, it is a law of the United States, see supra, at
564, and our first and last order of business is interpreting the
12 We note that the Special Master's 1979 Report, which we approved,
decisively rejected New Mexico's argument that the Pecos River Commis-
sion in fact adopted the Review of Basic Data, but that same report did not
suggest that we dismiss this action See 1979 Report 40-41, 44 Thus, at
least by implication, the argument New Mexico now advances was also re-
jected New Mexico did not object to those portions of the Special Mas-
ter's Report, although it did object to others New Mexico's Objections to
the Report of the Special Master and Brief (filed Nov 29, 1979)
13 That jurisdiction exists even though litigation of such disputes is obvi-
ously a poor alternative to negotiation between the interested States See
Vermont v New York, 417 U S 270, 277-278 (1974), infra, at 575-576
568 OCTOBER TERM, 1982
Opinion of the Court ^ n o
compact "Where Congress has so exercised its constitu
tional power over waters, courts have no power to substitute
their own notions of an 'equitable apportionment' for the
apportionment chosen by Congress " Arizona v Califw
nia, 373 U S , at 565-566 Nevertheless, as Virginia v
West Virginia proves, the mere existence of a compact does
not foreclose the possibility that we will be required to re
solve a dispute between the compacting States
The question for decision, therefore, is what role the Pecos
River Compact leaves to this Court The Compact itself
does not expressly address the rights of the States to seek
relief in the Supreme Court, although it clearly contemplates
some independent exercise of judicial authority 14 Funda
mental structural considerations, however, militate against
New Mexico's theory First, if all questions under the Com-
pact had to be decided by the Commission in the first in
stance, New Mexico could indefinitely prevent authoritative
Commission action solely by exercising its veto on the Com
mission As New Mexico is the upstream State, with effec
14 Article V(f) provides "Findings of fact made by the Commission shall
not be conclusive in any court, or before any agency or tribunal, but shall
constitute prima facie evidence of the facts found " That language is am
biguous as to the role of the Supreme Court, but an earlier version of Art
V(f ) — one that was proposed by New Mexico — sheds further light "The
findings of the Commission shall not be conclusive in any court or tribunal
which may be called upon to interpret or enforce this Compact " Minutes
of Meeting of the Pecos River Compact Commission, Sept 28, 1943, p 11
(proposed Art XII, 14) Since the only parties with rights and duties to
be enforced under any draft of the Compact were the United States and
the two signatory States, it is clear that the New Mexico draft reflected
the assumption that this Court might be called upon to enforce the Com
pact Article V(f ) assumed its present form at a late stage in the negotia
tons and with no discussion on the record, its change was most likely due
to the efforts of a federal drafting expert brought in after all significant
disputes had been resolved, see Pecos River Compact Commission Meet
ing, Nov 8-13, 1948, p 61, reprinted in S Doc 109, at 101 In the light of
the other factors discussed in text, we need not consider whether, standing
alone, this history would be dispositive
TEXAS v NEW MEXICO 569
£54 Opinion of the Court
tive power to deny water altogether to Texas except under
extreme flood conditions, the Commission's failure to take
action to enforce New Mexico's obligations under Art III(a)
would invariably work to New Mexico's benefit 15 Under
New Mexico's interpretation, this Court would be powerless
to grant Texas relief on its claim under the Compact
If it were clear that the Pecos River Commission was in-
tended to be the exclusive forum for disputes between the
States, then we would withdraw But the express terms of
the Pecos River Compact do not constitute the Commission
as the sole arbiter of disputes between the States over New
Mexico's Art III obligations Our equitable power to ap-
portion interstate streams and the power of the States and
Congress acting in concert to accomplish the same result
are to a large extent complementary See Frankfurter &
Landis, The Compact Clause of the Constitution — A Study in
Interstate Adjustments, 34 Yale L J 685, 705-708 (1925)
Texas' right to invoke the original jurisdiction of this Court
was an important part of the context in which the Compact
was framed, indeed, the threat of such litigation undoubtedly
contributed to New Mexico's willingness to enter into a com-
pact It is difficult to conceive that Texas would trade away
its right to seek an equitable apportionment of the river in
return for a promise that New Mexico could, for all practical
purposes, avoid at will 16 In the absence of an explicit provi-
sion or other clear indications that a bargain to that effect
was made, we shall not construe a compact to preclude a
15 Cf Kansas v Colorado, 206 U S 46, 117 (1907) See also Frank-
furter & Landis, The Compact Clause of the Constitution — A Study in In-
terstate Adjustments, 34 Yale L J 685, 701 (1925) ("[O]ne answer is clear
no one State can control the power to feed or to starve, possessed by a
river flowing through several States"), Bannister, Interstate Rights in
Interstate Streams in the Arid West, 36 Harv L Rev 960, 979-980 (1923)
(describing practice in international law)
MNote that under Art XIV of the Compact Texas may withdraw
from the Compact only with the concurrence of the New Mexico State
Legislature
570 OCTOBER TERM, 1982
Opinion of the Court 452 U S
State from seeking judicial relief when the compact does not
provide an equivalent method of vindicating the State's
rights Cf Green v Biddle, 8 Wheat , at 91 17
Considerations outside the Compact itself also render New
Mexico's theory of the role of this Court untenable Accord-
ing to New Mexico, Texas may seek judicial review in this
Court of decisions actually made by the Commission — pre
sumably on the votes of both States7 Commissioners That
is not the proper function of our original jurisdiction to decide
controversies between two States In recent years, we have
consistently interpreted 28 U S C § 1251(a) as providing us
with substantial discretion to make case-by-case judgments
as to the practical necessity of an original forum in this Court
for particular disputes within our constitutional original juris
diction See Maryland v Louisiana, 451 U S 725, 743
(1981), Ohio v Wyandotte Chemicals Corp , 401 U S 493,
499 (1971) We exercise that discretion with an eye to pro-
moting the most effective functioning of this Court within the
overall federal system See ibid If authorized represent-
atives of the compacting States have reached an agreement
17 In Green v Biddle, the owners of certain lands in Kentucky sued their
tenant to recover the lands The tenant relied on two Kentucky statutes
which gave him a good defense to the action, and the owners responded
that the statutes were invalid as violations of a compact between Kentucky
and Virginia, ratified by Congress, which provided that "all private rights,
and interests of lands within [Kentucky] derived from the laws of Virginia
prior to [the separation of Kentucky from Virginia], shall remain valid and
secure under the laws of [Kentucky], and shall be determined by the laws
now existing in [Virginia] " 8 Wheat , at 3 An argument was made —
similar to New Mexico's argument in this case — that disputes concerning
the compact could only be resolved by a commission to be appointed under
the terms of the agreement, and not by the courts that would ordinarily
resolve questions of title to land We rejected the argument because the
possibility that one State could defeat the rights of the other's citizens or
allow the occupants of the land to enrich themselves without title simply by
refusing to appoint commissioners "is too monstrous to be for a moment
entertained The best feelings of our nature revolt against a construction
which leads to it " Id , at 91
TEXAS v NEW MEXICO 571
£54 Opinion of the Court
within the scope of their congressionally ratified powers, re-
course to this Court when one State has second thoughts is
hardly "necessary for the State's protection," Massachusetts
v Missouri, 308 US 1, 18 (1939) 18 Absent extraordinary
cause, we shall not review the Pecos River Commission's
actions without a more precise mandate from Congress than
either the Compact or 28 U S C § 1251 provides
Therefore, we accept the Special Master's alternative rec-
ommendation that this suit continue as presently framed
IV
The Special Master also recommends that we deny a
motion made by Texas — apparently at the Special Master's
invitation — to adopt what it calls a "Double Mass Analysis"
as the method for determining when a shortfall in state-line
flows has occurred 1982 Report 21 Texas excepts to that
recommendation We overrule the exception
Once again, we turn to the provisions of the Compact
Article VI provides
"The following principles shall govern in regard to the
apportionment made by Article III of this Compact
"(c) Unless and until a more feasible method is de-
vised and adopted by the Commission the inflow-outflow
method, as described in the Report of the Engineering
Advisory Committee, shall be used to
18 Cf Illinois v Milwaukee, 406 U S 91, 93 (1972) (original jurisdiction
will not be taken where there is an adequate alternative forum for resolu-
tion of the dispute) The model case for invocation of this Court's original
jurisdiction is a dispute between States of such seriousness that it would
amount to casus belli if the States were fully sovereign North Dakota v
Minnesota, 263 U S 365, 372-374 (1923), Missouri v Illinois, 200 U S
496, 519-521 (1906) When it is able to act, the Commission is a com-
pletely adequate means for vindicating either State's interests The need
for burdensome original jurisdiction litigation, which prevents this Court
from attending to its appellate docket, would seem slight
572 OCTOBER TERM, 1982
Opinion of the Court 462 U S
"(i) Determine the effect on the state-line flow of any
change in depletions by man's activities or otherwise, of
the waters of the Pecos River in New Mexico "
It is clear that the Commission has not adopted "a more feasi-
ble method/' so the question is whether Texas' "Double Mass
Analysis" fairly comes within the Compact phrase "inflow-
outflow method, as described in the Report of the Engineer-
ing Advisory Committee " If it does not, then we may not
use it to measure state-line shortfalls in enforcing the Compact
As an illustration of the method,19 and to permit adminis-
tration of the Compact to begin, the Inflow-Outflow Manual
provides a correlation curve and set of tables for the critical
reach of the river between Alamogordo Dam and the state
line See Appendix to this opinion Plotted along the hori-
zontal axis are overlapping 3-year averages of the sums of
four "index inflows" — the actual, measured flow into Ala-
mogordo Reservoir, and unmeasured estimates of "flood
inflows," see n 5, supra, in three sub-reaches between Ala-
19 The Inflow-Outflow Manual appended to the engineering committee's
1947 Study describes the inflow outflow method as follows
"The inflow-outflow method involves the determination of the correlation
between an index of the inflow to a basin as measured at certain gaging
stations and the outflow from the basin It is obviously impossible to
measure all of the inflow The gaging stations which are utilized to meas-
ure a part of the inflow are termed index inflow stations because the
amount of water measured at those stations is an acceptable index of the
inflow to the basin From the plotting by years of the sum of the index
inflows against the outflow there is developed a correlation curve showing
the relationship between inflow and outflow Any changes thereafter in
the basin which occur between the points of inflow and the point of outflow
and which affect the water supply of the basin can be measured by the
change in correlation between the inflow and outflow from that indicated
by the correlation curve previously developed For example, if over a
period of years additional depletions occur between the inflow points and
the outflow point, the correlation between the inflow and the outflow will
change With a given inflow into the basin there will be less outflow "
S Doc 109, at 149
TEXAS v NEW MEXICO 573
r£4 Opinion of the Court
mogordo Dam and the state line The vertical axis measures
corresponding 3-year averages of the measured "outflow'' at
the state line The data pomtb form a smooth curve that, ac-
cording to the Manual, "fairly accurately cover[s] the entire
range of expected water supply so far as such a supply is af-
fected by meteorological factors" under the "1947 condition"
as described in the 1947 Study S Doc 109, at 149
At this point in the litigation, it has been decided that the
actual curve provided by the original Inflow-Outflow Manual
does not accurately describe the correlation between inflows
and the state-line outflow under the 1947 condition The
parties' evidence now must be directed to drawing a new
curve, like the old one but using more accurate data, and the
disputes between them involve questions of which inflows
should be "index inflows" and how the historic values of those
inflows should be deduced and incorporated into the curve
See n 21, infra Texas' motion to substitute its "Double
Mass Analysis" represents a bold effort to simplify this ini-
tial process by reducing the number of index inflows to one,
directly measurable value — the measured flow past Alamo-
gordo Dam In essence, Texas' position is that this single
inflow provides an adequate index for all the inflows into the
river that are more difficult (if not impossible) to measure
If so, the correlation curve described by plotting 3-year aver-
ages of the single inflow against the state-line outflow would
furnish an adequate benchmark to which post-Compact flows
could be compared to determine whether Texas is receiving
the water it may expect to receive under the Compact *
20 It deserves emphasis that neither the Inflow-Outflow Manual in any
of its past or projected versions nor the Texas "Double Mass Analysis"
has anything to say about whether a particular shortfall in state-line
water deliveries is due to "man's activities," a critical qualification on New
Mexico's obligation to deliver water under Art III(a) of the Compact At
best, correlation curves for sub-reaches of the river can be helpful in identi
fymg where a shortfall seems to originate
574 OCTOBER TERM, 1982
Opinion of the Court 462 u S
Although simphfication would be desirable, and the ques-
tion is a close one, on balance we conclude that the "Double
Mass Analysis" is not close enough to what the Compact
terms an "inflow-outflow method, as described in the Report
of the Engineering Advisory Committee" to make it accept-
able for use in determining New Mexico's compliance with its
Art III obligations The flows past Alamogordo Dam do
not always bear a physical relationship to the state-line out
flow In its natural state, the Pecos actually dries up for
long periods of time between Alamogordo and the state line,
so the water that crosses the state line is not the same water
that passes the dam, except in periods of extreme flood
The Compact, by reference to the 1947 Study, clearly con
templates that the adequacy of state-line flows can be deter
mined without taking into account all inflows into the Pecos,
but the intent of the Compact's framers was clearly to use as
much information as possible rather than relying on a single
index inflow, even if that inflow reflects the same meteoro-
logical factors that produce the other inflows The Inflow
Outflow Manual expressly indicates that the engineering
committee intended to develop more precise correlation
curves for smaller sub-reaches of the river, taking into
account inflows not incorporated into the curve it provided
See S Doc 109, at 150-151 The "Double Mass Analysis"
represents a sharply different approach to how to go about
measuring shortfalls at the state line, an approach which the
Compact leaves the Commission free to adopt, but which this
Court may not apply against New Mexico in the absence of
Commission action
V
In a pretrial order dated October 31, 1977, the Special Mas-
ter identified four broad questions to be resolved The first
was settled by our approval of his 1979 Report, 446 U S 540
(1980) See supra, at 563 The crucial question that re-
mains to be decided is the fourth "[H]as New Mexico fulfilled
her obligations under Article III(a) of the Pecos River Com-
TEXAS v NEW MEXICO 575
554 Opinion of the Court
pact7" Pretnal Order 6 That question necessarily in-
volves two subsidiary questions First, under the proper
definition of the "1947 condition," see supra, at 563, what is
the difference between the quantity of water Texas could
have expected to receive in each year and the quantity it
actually received7 For the 1950-1961 period, that difference
has been determined by unanimous vote of the Commission,
for 1962 to the present, determining the extent of the short-
fall will require adjudicating disputes between the States
as to specific issues raised by the 1947 Study, the Review
of Basic Data, and the Inflow-Outflow Manual The States
have fully briefed their positions, however, and the Special
Master has already heard extensive evidence on these ques-
tions 21 Second, to what extent were the shortfalls due to
"man's activities in New Mexico"7
Time and again we have counseled States engaged in litiga-
tion with one another before this Court that their dispute "is
one more likely to be wisely solved by co-operative study and
by conference and mutual concession on the part of repre-
sentatives of the States so vitally interested in it than by pro-
ceedings in any court however constituted " New York v
New Jersey, 256 U S 296, 313 (1921), cf Vermont v New
York, 417 U S , at 277-278, Minnesota v Wisconsin, 252
U S 273, 283 (1920), Washington v Oregon, 214 U S 205,
218 (1909) It is within this Court's power to determine
whether New Mexico is in compliance with Art III(a) of the
21 New Mexico has generally relied on the Review of Basic Data Texas
has submitted a document entitled "Texas Workability' Statement," filed
Nov 18, 1981, which identifies nine "[questions which must be resolved in
connection with the flood inflow computation " Id , at 4-5 Not all of
them involve large quantities of water At this stage of the litigation,
there seems to be no more than three or four issues upon which the Special
Master will have to resolve difficult questions of fact or of hydrological
method We leave to the Special Master's discretion whether these issues
should be considered as framed in § 4(b) of his original pretrial order or
whether a revised formulation would be more appropriate See Order of
Dec 29, 1981, pp 5-7, 1982 Report 10-11
576 OCTOBER TERM, 1982
Opinion of the Court 462U
Pecos River Compact, but it is difficult to believe that «,«
bona fide differences in the two States' views of how ni
water Texas is entitled to receive justify the expense anri
time necessary to obtain a judicial resolution of this contnu
versy. With that observation, we return this case to tht
Special Master for determination of the unresolved issues
framed in his pretrial order, in a manner consistent with this
opinion. ^
It is so ordered.
TEXAS v NEW MEXICO
554 Appendix to Opinion of the Court
APPENDIX TO OPINION OF THE COURT
Inflow-Outflow Manual Plate No 2 and tables
S Doc 109, at 154-155
577
OUTFLOW AT NEW MEXICO -TEXAS STATE UNE - 1OOO ACRE FEET
i 3 5 1 § I g 5 § I |
/
l»40-
1941 1943
1941—
-y
1939 1941
ry
s
/
/
>I9 1911
V
/
mo
IS41
930 1851
•«N
944 1 /
/
X
1924
1931-
I92*
»31 1933
S24 —
93*-^
93»-x \
i/**
/Vl»71
-I93>
IS3fc
I93S II
913
939
939
131
1*13
19.44-
979 It SO-
tl 1 it 14-
93S — ->
»*«"^"*;
~— ^
^ A
x 1923-
— U39-
91C It 27
sit i»ia
91C
940
*r
G
527 )»!»
141 I94.S
934
wo loo 300 400 too too too too too
INDEX INFLOW 1000 ACRE FttT
ALAMOGOBOO DAM
TO
NEW MEXICO - TEXAS STATE LfNE
578
OCTOBER TERM, 1982
Appendix to Opinion of the Court 452 u g
Inflow-outflow relationships, Alamogordo Dam to New Mexico Texas State I
[1 000 acre-feet units]
Index Inflow
Outflow
relationship
Index inflow
Outflow
relationship
Index Inflow
Outflow^,
lailonship
140
77
250
151
400
~ ' —
160
83
260
159
460
257
160
89
270
166
500
307
170
06
280
174
550
352
180
102
200
182
000
403
190
109
300
189
650
464
rrt.
200
115
310
197
W
506
K\t
210
122
320
205
800
010
220
129
330
212
850
TMJ
230
136
340
220
yoo
(to
TUA
240
143
350
228
(00
Inflow-outflow calculations, Alamogordo Dam to New Mexico-Texas State line {from
1947 condition theoretical studies)
[1 000 acre-feet units]
Index
InQov
Routed
outflow
Outflow
from curve
Dl (Terences
Accumulated difference!
All yean
Omitllra
1&42-H
1019-21
5678
4123
410 1
+2.2
+2.2
+13
1020-22
370 3
259 0
243 8
+16 1
+18 3
+113
1021-23
302 3
250 6
261 0
-1 4
+169
+16, fl
1022-34
268 4
156 3
164 0
-8 6
+83
+83
1023-25
300 1
178 0
180 1
-11 1
-28
-2.8
1924-26
318 7
200 6
204 0
-3 4
-a 2
-43
1025-27
325 0
203 0
200 1
-5 2
-11 4
-11 4
1025-28
307 2
187 5
104 8
-7 3
-18 7
-187
1027-20
2ft) J
150 2
151 2
-1 0
-19 7
-197
102&-30
275 0
168 8
170 0
-1 2
-207
-20.7
1920-31
204 4
180 2
185 1
+4 1
-168
-1U
1930-32
377 2
251 7
240 2
+26
-143
-14.3
1031-53
342 2
2360
221 8
+14 2
- 1
- 1
1032-34
292 0
101 0
183 4
+8 5
+84
+84
1033-35
223 6
136 0
131 fi
+4 5
+12.9
+12.8
1934-36
227 4
127 8
134 2
-6 4
+6 5
+U
1035-37
367 1
243 5
24J 3
+2 2
+87
+8,7
1936^8
388 5
253 1
258 0
-4 0
+3 8
•HJ
1037-30
302 2
256 3
161 0
-4 7
- 9
- B
193&-W
2600
151 1
165 3
-14 2
-15 1
-15.1
103M1
267 1
630 8
6J4 2
+5 6
-9 5
-9 A
1040-41
850 7
732 3
730 2
-6 0
-164
-114
1041-43
8503
746 2
738 8
+«4
-10 1
-mo
1041M4
337 4
246 2
217 0
+28 3
+183
1943-45
224 8
130 0
132 4
+6 6
+24 9
-34
1944-4ft
201 2
121 0
116 S
+62
+30 1
+18
UNITED STATES v VILLAMONTE-MARQUEZ 579
Syllabus
UNITED STATES v VILLAMONTE-MARQUEZ ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No 81-1350 Argued February 23, 1983— Decided June 17, 1983
Title 19 U S C § 1581(a) authorizes customs officers to board any vessel
at any tune and at any place in the United States to examine the vessel's
manifest and other documents Customs officers, while patrolling a ship
channel which connects the Gulf of Mexico with Lake Charles, La , a
Customs Port of Entry, sighted an anchored, 40-foot sailboat The
wake of a passing vessel caused the sailboat to rock violently, and when
one of the two respondents, who were aboard the vessel, shrugged his
shoulders in an unresponsive manner when asked if the sailboat and crew
were all right, one of the customs officers, accompanied by a Louisiana
State Police officer, boarded the sailboat and asked to see the ves-
sel's documentation While examining a document, the customs officer
smelled what he thought to be burning marihuana and, looking through
an open hatch, saw burlap-wrapped bales that proved to be marihauna
Respondents were then arrested and given Miranda warnings, and a
subsequent search revealed more marihuana stored throughout the ves-
sel Upon trial in Federal District Court, respondents were convicted
of various federal drug offenses, but the Court of Appeals reversed,
holding that the officers' boarding of the sailboat violated the Fourth
Amendment because the boarding occurred in the absence of "a reason-
able suspicion of a law violation "
Held The action of the customs officers in boarding the sailboat pursuant
to § 1581(a) was "reasonable," and was therefore consistent with the
Fourth Amendment Although no Act of Congress can authorize a vi-
olation of the Constitution, in 1790, in a lineal ancestor to § 1581(a), the
First Congress clearly authorized the suspicionless boarding of vessels
by Government officers, reflecting its view that such boardings are not
contrary to the Fourth Amendment, which was promulgated by the
same Congress While random stops of vehicles, without any articula-
ble suspicion of unlawful conduct, away from the Nation's borders
are not permissible under the Fourth Amendment, Umted States v
Bngnoni-Ponce, 422 U S 873, Delaware v Prou&e, 440 U S 648,
whereas vehicles stops at fixed checkpoints or at roadblocks are, United
States v Martinez-Fuerte, 428 U S 543, Delaware v Prouse, supra,
the nature of waterborne commerce in waters providing ready access to
580 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the open sea is sufficiently different from the nature of vehicular traffic
on highways as to make possible alternatives to the sort of "stop" made
in this case less likely to accomplish the obviously essential govern
mental purposes involved The system of prescribed outward markings
used by States for vehicle registration is also significantly different than
the system of external markings on vessels, and the extent and type of
vessel documentation required by federal law is a good deal more vari
able and complex than are the state vehicle registration laws More-
over, governmental interests in assuring compliance with vessel docu
mentation requirements, particularly in waters where the need to deter
or apprehend smugglers is great, are substantial, whereas the type of
intrusion made in this case, while not minimal, is limited Pp 584-593
652 F 2d 481, reversed
REHNQUIST, J , delivered the opinion of the Court, in which BURGER,
C J , and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ , joined
BRENNAN, J , filed a dissenting opinion, m which MARSHALL, J , joined,
and in Part I of which STEVENS, J , joined, post, p 593
Samuel A Ahto, Jr , argued the cause for the United
States With him on the briefs were Solicitor General Lee,
Assistant Attorney General Jensen, Deputy Solicitor Gen-
eral Frey, Louis M Fischer, and Stuart P Seidel
Richard P leyoub argued the cause and filed a brief for
respondents
JUSTICE REHNQUIST delivered the opinion of the Court
Congress has provided that "[a]ny officer of the customs
may at any time go on board of any vessel at any place in
the United States and examine the manifest and other
documents and papers and to this end may hail and stop
such vessel and use all necessary force to compel com-
pliance * 46 Stat 747, as amended, 19 U S C § 1581(a) 1
We are asked to decide whether the Fourth Amendment
is offended when customs officials, acting pursuant to this
1 See also 46 U S C § 277 (provides similar authority for "[a]ny officer
concerned m the collection of the revenue") Cf 14 U S C § 89(a), 19
USC §1581(b)
UNITED STATES v VILLAMONTE-MARQUEZ 581
579 Opinion of the Court
statute and without any suspicion of wrongdoing, board for
inspection of documents a vessel that is located in waters
providing ready access to the open sea 2
Section 1581(a) provides customs officials with authority beyond board-
ing for document inspections In this case, however, we are concerned
only with the more narrow issue
Respondents briefly argue that we should not reach even this question
Relying on United States v Sarmiento Rozo, 592 F 2d 1318 (CAS 1979),
respondents contend that this case is moot because they have been de-
ported and, subsequent to the issuance of the mandate by the Court of
Appeals reversing their convictions, the indictments against them were
dismissed Sarmiento Rozo provides some authority for respondents'
argument, nevertheless, we reject the contention
The Government has sought review of the Court of Appeals' decision re-
versing respondents' convictions Ordinarily our reversal of that decision
would reinstate the judgment of conviction and the sentence entered by the
District Court See United States v Morrison, 429 U S 1, 3 (1976) (per
curiam) The fact that the Government did not obtain a stay, thus per-
mitting issuance of the mandate of the Court of Appeals, would not change
the effect of our reversal See Aetna Casualty & Surety Co v Flowers,
330 U S 464, 467 (1947), Carr v Zaja, 283 U S 52 (1931) Under our
reasoning in Mancusi v Stubbs, 408 U S 204, 205-207 (1972), the absence
of an indictment does not require a contrary conclusion Further, it is set
tied law that the preliminary steps in a criminal proceeding are "merged"
into a sentence once the defendant is convicted and sentenced See Parr
v United States, 351 U S 513, 518-519 (1956), Berman v United States,
302 U S 211 (1937) Upon respondents' conviction and sentence, the in-
dictment that was returned against them was merged into their convictions
and sentences, thus making unnecessary a separate reinstatement of the
original indictment
That respondents have been deported likewise does not remove the con-
troversy involved Following a reversal of the Court of Appeals, there
would be a possibility that respondents could be extradited and imprisoned
for then- crimes, or if respondents manage to re-enter this country on their
own they would be subject to arrest and imprisonment for these convic-
tions See United States v Campos Serrano, 404 U S 293, 294, n 2
(1971) In addition, as a collateral consequence of the convictions, the
Government could bar any attempt by respondents to voluntarily re-enter
this country 8 U S C § 1182(a)(9) See Pennsylvania v Mimms, 434
U S 106, 108, n 3 (1977) (per curiam), Sibron v New York, 392 U S 40,
53-57 (1968)
[Footnote 2 is continued on p
582 OCTOBER TERM, 1982
Opinion of the Court 452 u g
Near midday on March 6, 1980, customs officers, accompa
nied by Louisiana state policemen, were patrolling the Calca
sieu River Ship Channel, some 18 miles inland from the gulf
coast, when they sighted the Henry Morgan 77, a 40-foot sail
boat, anchored facing east on the west side of the channel
The Calcasieu River Ship Channel is a north-south waterway
connecting the Gulf of Mexico with Lake Charles, Louisiana
Lake Charles, located in the southwestern corner of Louisi
ana, is a designated Customs Port of Entry in the Houston,
Texas Region While there is access to the channel from
Louisiana's Calcasieu Lake, the channel is a separate thor
oughfare to the west of the lake which all vessels moving
between Lake Charles and the open sea of the Gulf must
traverse
Shortly after sighting the sailboat, the officers also ob-
served a large freighter moving north in the channel The
freighter was creating a huge wake and as it passed the
Henry Morgan II the wake caused the smaller vessel to rock
violently from side to side The patrol boat then approached
the sailboat from the port side and passed behind its stern
The dissent's discussion of mootness places heavy rehance on this
Court's decision in Ex parte Bam, 121 U S 1 (1887), and a hypothetical
example in a civil proceeding between Peter and David Post, at 594-598,
and n 1 Ex parte Bam was long ago limited to its facts by Salinger v
United States, 272 U S 542 (1926), where the Court said
"In the case of Ex parte Bain, 121 U S 1, on which the accused relies,
there was an actual amendment or alteration of the indictment to avoid an
adverse ruling on demurrer, and the trial was on the amended charge with
out a resubmission to a grand jury The principle on which the decision
proceeded is not broader than the situation to which it was applied " Id ,
at 549 (emphasis added)
In the present case, there is no doubt whatever that a valid indictment
was returned by the grand jury, the case was tried on that indictment,
and, unlike the dissent's hypothetical civil analogy, a judgment pursuant to
Federal Rule of Criminal Procedure 32 was entered on the jury verdict of
guilty At this juncture, for reasons explained above, the indictment vvas
merged into the judgment, and a successful effort on the part of the Gov
ernment to reverse the judgment of the Court of Appeals would have the
effect of reinstating the judgment of conviction
UNITED STATES v VILLAMONTE-MARQUEZ 583
579 Opinion of the Court
On the stern the name of the vessel, the "Henry Morgan II,"
was displayed along with its home port, "Basilea " The offi-
cers sighted one man, respondent Hamparian, on deck Offi-
cer Wilkins twice asked if the sailboat and crew were all
right Hamparian shrugged his shoulders in an unrespon-
sive manner
Officer Wilkins, accompanied by Officer Dougherty of the
Louisiana State Police, then boarded the Henry Morgan II
and asked to see the vessel's documentation Hamparian
handed Officer Wilkins what appeared to be a request to
change the registration of a ship from Swiss registry to
French registry, written in French and dated February 6,
1980 It subsequently was discovered that the home port
designation of "Basilea" was Latin for Basel, Switzerland, the
vessel was, however, of French registry
While examining the document, Officer Wilkins smelled
what he thought to be burning marihuana Looking through
an open hatch, Wilkins observed burlap-wrapped bales that
proved to be marihuana Respondent Villamonte-Marquez
was on a sleeping bag atop of the bales Wilkins arrested
both Hamparian and Villamonte-Marquez and gave them
Miranda warnings A subsequent search revealed some
5,800 pounds of marihuana on the Henry Morgan II, stored
in almost every conceivable place including the forward, mid,
and aft cabins, and under the seats in the open part of the
vessel
A jury found respondents guilty of conspiring to import
marihuana in violation of 21 U S C § 963, importing mari-
huana in violation of 21 U S C §952(a), conspiring to pos-
sess marihuana with intent to distribute in violation of 21
U S C § 846, and possessing marihuana with intent to dis-
tribute in violation of 21 U S C §841(a)(l) The Court of
Appeals for the Fifth Circuit reversed the judgment of con-
viction, finding that the officers' boarding of the Henry Mor-
gan II ' Vas not reasonable under the fourth amendment" be-
cause the boarding occurred in the absence of "a reasonable
584 OCTOBER TERM, 1982
Opinion of the Court 462 u g
suspicion of a law violation " 652 F 2d 481, 488 (1981) Be-
cause of a conflict among the Circuits and the importance of
the question presented as it affects the enforcement of cus-
toms laws, we granted certioran 457 U S 1104 (1982) 3
We now reverse
In 1790 the First Congress enacted a comprehensive stat-
ute "to provide more effectually for the collection of the
duties imposed by law on goods, wares and merchandise
imported into the United States, and on the tonnage of ships
or vessels " Act of Aug 4, 1790, 1 Stat 145 Section 31
of that Act provided in pertinent part as follows
"That it shall be lawful for all collectors, naval officers,
surveyors, inspectors, and the officers of the revenue
cutters herein after mentioned, to go on board of ships or
vessels in any part of the United States, or within four
leagues of the coast thereof, if bound to the United
States, whether in or out of their respective distrirts,
for the purposes of demanding the manifests aforesaid,
and of examining and searching the said ships or ves-
sels " 1 Stat 164
This statute appears to be the lineal ancestor of the provision
of present law upon which the Government relies to sustain
8 There is no issue in this case concerning the activities of the officers
once they boarded the Henry Morgan II The only question presented to
this Court concerns the validity of the suspicionless boarding of the vessel
for a document inspection
Respondents, however, contend in the alternative that because the cus-
toms officers were accompanied by a Louisiana state policeman, and were
following an informant's tip that a vessel in the ship channel was thought to
be carrying marihuana, they may not rely on the statute authorizing board
ing for inspection of the vessel's documentation This line of reasoning
was rejected in a similar situation m Scott v United States, 436 U S 128,
135-139 (1978), and we again reject it Acceptance of respondents' argu
ment would lead to the incongruous result criticized by Judge Campbell in
his opinion in United States v Arm, 630 F 2d 836, 846 (CA1 1980) "We
would see little logic in sanctioning such examinations of ordinary, unsus-
pect vessels but forbidding them in the case of suspected smugglers "
UNITED STATES v VILLAMONTE-MARQUEZ 585
579 Opinion of the Court
the boarding of the vessel in this case Title 19 U S C
§ 1581(a) provides that "[a]ny officer of the customs may at
any time go on board of any vessel at any place in the
United States or within the customs waters and examine
the manifest and other documents and papers "
The Government insists that the language of the statute
clearly authorized the boarding of the vessel in this case
The respondents do not seriously dispute this contention, but
contend that even though authorized by statute the boarding
here violated the prohibition against unreasonable searches
and seizures contained m the Fourth Amendment to the
United States Constitution We of course agree with re-
spondents' argument that "no Act of Congress can authorize
a violation of the Constitution " Almeida-Sanchez v United
States, 413 U S 266,272(1973) But we also agree with the
Government's contention that the enactment of this stat-
ute by the same Congress that promulgated the constitu-
tional Amendments that ultimately became the Bill of Rights
gives the statute an impressive historical pedigree 4 United
4 Relying on the words **bound to the United States" in the 1790 statute
and this Court's decision in Maul v United States, 274 U S 501 (1927),
the dissent contends that the Act of Aug 4, 1790, § 31, 1 Stat 164, did not
grant any authority to board a vessel found in domestic waters Post, at
600-601, n 7 The dissent misreads the statute and the Maul decision
As noted, § 31 of the 1790 Act provides for the boarding of vessels found
"in any part of the United States, or within four leagues of the coast
thereof, if bound to the United States " (Emphasis supplied ) The dis-
sent completely ignores that part of the statute which reads "in any part of
the United States " Furthermore, the phrase "if bound to the United
States" obviously qualifies only the phrase "within four leagues of the
coast " It would make no sense whatsoever to say that the statute author-
izes the boarding of vessels found in "any part of the United States" only so
long as such vessels are "bound to the United States " The dissent also
says that because § 48 of the Act of Aug 4, 1790, authorized some searches
without regard to location, it must be read as the only provision in the Act
that allows boardings in domestic waters Post, at 600-601, n 7 Again
the dissent misreads the statutory scheme Section 48 expressly applies
only to seizures of "goods, wares or merchandise subject to duty" and
586 OCTOBER TERM, 1982
Opinion of the Court 452 u s
States v Ramsey, 431 U S 606 (1977) As long ago as the
decision in Boyd v United States, 116 U S 616 (1886), this
Court said
"The seizure of stolen goods is authorized by the common
law and the like seizures have been authorized by
our own revenue acts from the commencement of the
government The first statute passed by Congress to
regulate the collection of duties, the act of July 31, 1789,
1 Stat 29, 43, contains provisions to this effect As this
thought to be concealed on "any ship or vessel" or "any particular dwelling
house, store, building or other place " Unlike § 31, § 48 does not purport
to deal with boardings for inspection of documents In short, the two sec
tions are concerned with different matters and nothing in one can be read
to limit the other
The dissent's reliance on the concurring opinion of Justice Brandeis in
Maul seriously misreads that concurrence Where the dissent says that
the concurrence ''recognized" that it was only in 1922 that Congress pur
ported to authorize suspicionless boardings of vessels not "bound to the
United States/' the dissent's reading of Justice Brandeis' language is un
precise, to say the least Observing that the 1922 amendments made two
changes in the statutory law, he described one of them m these terms "Un
like the earlier statutes, it did not limit to inbound vessels the right to
board and search " 274 U S , at 529 Thus Congress in 1922 allowed
searches to be made within four leagues of the coast of any vessel, whether
inbound or not But this change in no way altered the separate provision
in the same sentence of the 1922 statute retaining the authority to "go on
board of any vessel or vehicle at any place m the United States w
Nor is anything in the Court's opinion m Maul to the contrary The
Court was asked to decide whether the Coast Guard was authorized to
seize an American vessel "on the high seas more than twelve miles from
the coast " Id , at 503 In tracing the history of statutory authorization
for "seizures made on the high seas," id , at 504, the Court properly noted
that when acting pursuant to the Act of Aug 4, 1790, and its pre-1922 de-
scendants, such seizures were authorized only for inbound vessels within
the 12-mile limit, id , at 505-506 The Court determined, however, that
the Act of Mar 2, 1799, § 70, 1 Stat 678, authorized the seizure of Amen
can vessels beyond the 12 mile limit where the Coast Guard was acting
pursuant to "any [law] respecting the revenue " Nothing in the Maul
decision even remotely purported to apply to the boarding of vessels in
domestic waters
UNITED STATES v VILLAMONTE MARQUEZ 587
579 Opinion of the Court
Act was passed by the same Congress which proposed for
adoption the original amendments to the Constitution, it
is clear that the members of that body did not regard
searches and seizures of this kind as 'unreasonable,' and
they are not embraced within the prohibition of the
amendment " Id , at 623 (emphasis supplied, footnote
omitted)
In holding that the boarding of the vessel without articula-
ble suspicion violated the Fourth Amendment, the Court of
Appeals relied on several of its own decisions and on our
decision in United States v Bngnoni-Ponce, 422 U S 873
(1975), where we said
"Except at the border and its functional equivalents,
officers on roving patrol may stop vehicles only if they
are aware of specific articulable facts, together with
rational inferences from those facts, that reasonably
warrant suspicion that the vehicles contain aliens who
may be illegally in the country " Id , at 884
We think that two later decisions also bear on the question
before us
In United States v Martinez-Fuerte, 428 U S 543 (1976),
we upheld the authority of the Border Patrol to maintain
permanent checkpoints at or near intersections of important
roads leading away from the border at which a vehicle would
be stopped for brief questioning of its occupants "even
though there is no reason to believe the particular vehicle
contains illegal aliens " Id , at 545 Distinguishing our
holding in United States v Bngnom-Ponce, supra, we said
"A requirement that stops on major routes inland al-
ways be based on reasonable suspicion would be im-
practical because the flow of traffic tends to be too
heavy to allow the particularized study of a given car
that would enable it to be identified as a possible car-
rier of illegal aliens In particular, such a requirement
would largely eliminate any deterrent to the conduct of
588 OCTOBER TERM, 1982
Opinion of the Court 452 u S
well-disguised smuggling operations, even though smug-
glers are known to use these highways regularly " 428
U S , at 557
Three Terms later we held in Delaware v Prouse, 440 U S
648 (1979), that "persons in automobiles on public roadways
may not for that reason alone have their travel and privacy
interfered with at the unbridled discretion of police officers "
Id , at 663 We added that alternative methods, such as
spot checks that involve less intrusion, or questioning of aU
oncoming traffic at roadblock-type stops, would just as
readily accomplish the State's objectives m farthering com-
pliance with auto registration and safety laws
Our focus in this area of Fourth Amendment law has been
on the question of the "reasonableness" of the type of govern-
mental intrusion involved "Thus, the permissibility of a
particular law enforcement practice is judged by balancing its
intrusion on the individual's Fourth Amendment interests
against its promotion of legitimate governmental interests "
Delaware v Prouse, supra, at 654 See also Camara v
Municipal Court, 387 U S 523 (1967), Terry v Ohio, 392
U S 1 (1968), Cody v Dombrowski, 413 U S 433 (1973),
United States v Brignom-Ponce, supra, United States v
Martinez-Fuerte, supra It seems clear that if the customs
officers in this case had stopped an automobile on a public
highway near the border, rather than a vessel in a ship chan-
nel, the stop would have run afoul of the Fourth Amendment
because of the absence of articulable suspicion See United
States v Brignom-Ponce, supra But under the overarch-
ing principle of "reasonableness" embodied in the Fourth
Amendment, we think that the important factual differences
between vessels located in waters offering ready access to
the open sea and automobiles on principal thoroughfares in
the border area are sufficient to require a different result
here
The difference in outcome between the roving patrol stop
in Brignoni-Ponce, supra, and the fixed checkpoint stop in
UNITED STATES v VILLAMONTE-MARQUEZ 589
579 Opinion of the Court
Martinez-Fuerte, supra, was due in part to what the Court
deemed the less intrusive and less awesome nature of fixed
checkpoint stops when compared to roving patrol stops
And the preference for roadblocks as opposed to random spot
checks expressed in Delaware v Prouse, supra, reflects a
like concern But no reasonable claim can be made that per-
manent checkpoints would be practical on waters such as
these where vessels can move in any direction at any time
and need not follow established "avenues" as automobiles
must do Customs officials do not have as a practical alter-
native the option of spotting all vessels which might have
come from the open sea and herding them into one or more
canals or straits in order to make fixed checkpoint stops
Smuggling and illegal importation of aliens by land may, and
undoubtedly usually does, take place away from fixed check-
points or ports of entry, but much of it is at least along a fi-
nite number of identifiable roads But while eventually mar-
itime commerce on the inland waters of the United States
may funnel into rivers, canals, and the like, which are more
analogous to roads and make a "roadblock" approach more
feasible, such is not the case in waters providing ready access
to the seaward border, beyond which is only the open sea
Respondents have asserted that permanent checkpoints
could be established at various ports But vessels having
ready access to the open sea need never come to harbor
Should the captain want to avoid the authorities at port, he
could carry on his activity by anchoring at some obscure loca-
tion on the shoreline, or, as may have been planned in this
case, the captain could transfer his cargo from one vessel to
another In cases involving such endeavors as fishing or
water exploration, the crew of the vessel can complete its
mission without any assistance
Quite apart from the aforementioned differences between
waterborne vessels and automobiles traveling on highways,
the documentation requirements with respect to vessels are
significantly different from the system of vehicle licensing
590 OCTOBER TERM, 1982
Opinion of the Court 452 u g
that prevails generally throughout the United States A
police officer patrolling a highway can often tell merely by
observing a vehicle's license plate and other outward mark-
ings whether the vehicle is currently in compliance with the
requirements of state law See Delaware v Prouse, supra,
at 660-661 No comparable "license plates" or "stickers" are
issued by the United States or by States to vessels Both of
the required exterior markings on documented vessels— the
name and hailing port — as well as the numerals displayed by
undocumented American boats, are marked on the vessel at
the instance of the owner Furthermore, in cases like this
one where the vessel is of foreign registry it carries only the
markings required by its home port Here those markings
indicated that the vessel was of Swiss registry, while in ac-
tuality it carried French documentation papers
The panoply of statutes and regulations governing mari-
time documentation are likewise more extensive and more
complex than the typical state requirements for vehicle li-
censing, only some of the papers required need explicit men-
tion here to illustrate the point All American vessels of at
least five tons and used for commercial purposes must have a
"certificate of documentation " In addition, vessels engaged
in certain trades must obtain special licenses While pleas-
ure vessels of this size are not required to be documented,
they are eligible for federal registration See 46 U S C
§ 65 et seq (1976 ed , Supp V) Many of these vessels must
also submit to periodic inspection by the Coast Guard and a
"certificate of inspection" must be kept on the vessel at all
times 46 U S C §§399,400 Smaller American vessels
cannot be issued federal documentation papers, but under
federal law each such vessel with propulsion machinery must
have a state-issued number displayed on a "certificate of
number" that must be available for inspection at all times
46 U S C § 1470 Vessels not required to carry federal
documentation papers also may be required to carry a state-
issued safety certificate 46 U S C § 1471
UNITED STATES v VILLAMONTE MARQUEZ 591
£79 Opinion of the Court
While foreign vessels are not required to carry federal doc-
umentation papers, they are required to have a "manifest,"
which must be delivered to customs officials immediately upon
arrival in this country 19 U S C § 1439 If a foreign
vessel wants to visit more than one customs district, it
must obtain a "permit to proceed" at its first port of call, with
the exception that a foreign yacht need not obtain such a
permit if it has been issued a "cruising license " 46 U S C
§313, 19 U S C §1435 Any vessel departing American
waters for a foreign port must deliver its "manifest" to Cus-
toms and obtain clearance 46 U S C § 91
These documentation laws serve the public interest in
many obvious ways and respondents do not suggest that the
public interest is less than substantially furthered by enforce-
ment of these laws They are the linchpin for regulation of
participation in certain trades, such as fishing, salvaging,
towing, and dredging, as well as areas in which trade is sanc-
tioned, and for enforcement of various environmental laws
The documentation laws play a vital role in the collection of
customs duties and tonnage duties They allow for regula-
tion of imports and exports assisting, for example, Govern-
ment officials in the prevention of entry into this country of
controlled substances, illegal aliens, prohibited medicines,
adulterated foods, dangerous chemicals, prohibited agricul-
tural products, diseased or prohibited animals, and illegal
weapons and explosives These interests are, of course,
most substantial in areas such as the ship channel in this case,
which connects the open sea with a Customs Port of Entry
Cf United States v Ramsey, 431 U S 606 (1977) Re-
quests to check certificates of inspection play an obvious role
in ensuring safety on American waterways While inspec-
tion of a vessel's documents might not always conclusively
establish compliance with United States shipping laws, more
often than not it will 5
5 The dissent maintains that in heu of the type of stop made in this case,
it would be possible to enforce documentation laws by requiring vessels to
592 OCTOBER TERM, 1982
Opinion of the Court 452 U S
While the need to make document checks is great,6 the
resultant intrusion on Fourth Amendment interests is quite
limited While it does intrude on one's ability to make " 'free
passage without interruption/" United States v Martinez
Fuerte, 428 U S , at 557-558 (quoting Carroll v United
States, 267 U S 132, 154 (1925)), it involves only a brief
detention where officials come on board, visit public areas
of the vessel, and inspect documents Cf United States v
Brignoni-Ponce, 422 U S , at 880 "Neither the [vessel]
nor its occupants are searched, and visual inspection of the
[vessel] is limited to what can be seen without a search "
United States v Martinez-Fuerte, supra, at 558 Any inter-
ference with interests protected by the Fourth Amendment
is, of course, intrusive to some degree But in this case, the
interference created only a modest intrusion
We briefly recapitulate the reasons, set forth above in
greater detail, which lead us to conclude that the Govern-
ment's boarding of the Henry Morgan II did not violate the
Fourth Amendment In a lineal ancestor to the statute at
issue here the First Congress clearly authorized the sus-
picionless boarding of vessels, reflecting its view that such
boardings are not contrary to the Fourth Amendment, this
gives the statute before us an impressive historical pedigree
Random stops without any articulable suspicion of vehicles
away from the border are not permissible under the Fourth
Amendment, United States v Bmgnom-Ponce, supra, Dela
display identification markings more similar to automobile "license plates"
and for the Coast Guard to maintain extensive records on shore that can be
referred to by radio Even assuming that these alternatives are feasible,
Congress has chosen a different method So long as the method chosen by
Congress is constitutional, then it matters not that alternative methods
exist Cf Cody v Dombrowski, 413 U S 433, 447 (1973)
6 Respondents suggest that even if the public interest is great in stopping
commercial vessels, it is not so with "pleasure boats " The difficulties
with such line drawing are exemplified by this case Respondents assert
that they were in a "pleasure boat," yet they proved to be involved in a
highly lucrative commercial trade
UNITED STATES v VILLAMONTE-MARQUEZ 593
ryg BRENNAN, J , dissenting
ware v Prouse, 440 U S 648 (1979), but stops at fixed
checkpoints or at roadblocks are Ibid The nature of
waterborne commerce in waters providing ready access to
the open sea is sufficiently different from the nature of ve-
hicular traffic on highways as to make possible alternatives to
the sort of "stop" made in this case less likely to accomplish
the obviously essential governmental purposes involved
The system of prescribed outward markings used by States
for vehicle registration is also significantly different from the
system of external markings on vessels, and the extent and
type of documentation required by federal law is a good deal
more variable and more complex than are the state vehicle
registration laws The nature of the governmental interest
in assuring compliance with documentation requirements,
particularly in waters where the need to deter or apprehend
smugglers is great, is substantial, the type of intrusion made
in this case, while not minimal, is limited
All of these factors lead us to conclude that the action of
the customs officers in stopping and boarding the Henry
Morgan II was "reasonable," and was therefore consistent
with the Fourth Amendment The judgment of the Court of
Appeals is
Reversed
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
and with whom JUSTICE STEVENS joins as to Part I,
dissenting
The Court today holds that this case is not moot despite the
voluntary dismissal of the prosecution by the Government
It also holds that police on a roving, random patrol may stop
and board any vessel, at any time, on any navigable waters
accessible to the open sea, with no probable cause or rea-
sonable suspicion to believe that there has been a crime or a
border crossing, and without any limits whatever on their
discretion to impose this invasion of privacy Because I can-
not agree with either holding, I dissent
594 OCTOBER TERM, 1982
BRENNAN, J , dissenting 4^2
It is long settled that a party may not seek appellate re-
view when it has itself sought and obtained entry of a judg-
ment against it, unless it does so solely as a device by which
to obtain immediate appellate review of an interlocutory
order E g , United States v Procter & Gamble Co , 356
U S 677, 680-681 (1958), United States v Babbitt, 104 U S
767 (1882), Evans v Phillips, 4 Wheat 73 (1819)
Yet that is precisely what the Court permits the Govern-
ment to do in this case * Respondents were convicted of
drug violations and sentenced to prison The Court of Ap-
peals reversed the judgment on August 3, 1981, holding that
the convictions rested on illegally obtained evidence Re-
hearing was denied on October 19, and the mandate issued on
October 29 On November 20, the Court of Appeals granted
the Government's motion to recall the mandate and stay its
reissuance until December 7, pending a petition for writ of
certiorari in this Court The Government, however, per-
mitted that stay to expire without filing the petition, and the
1 Consider this hypothetical Peter brings a diversity suit against David,
seeking damages for trespass and an injunction against further trespass
The jury awards damages to Peter On post-trial motions, however, the
district judge refuses to enter judgment on the verdict for damages or
an injunction, instead, he orders a new trial because he concludes that the
verdict rested on improper hearsay evidence Peter's lawyer advises him
that his chances on retrial are slim, without the supposed hearsay, he has
virtually no evidence to support a key element of his case He advises
Peter to pursue an interlocutory appeal under 28 U S C § 1292(a) But
Peter decides not to bother further with the case, he files a stipulated dis
missal of the complaint under Federal Rule of Civil Procedure 41(aXl)
Thereafter, however, Peter files a notice of appeal, contending that the dis
trict judge should have entered judgment on the jury verdict When the
court of appeals asks him about mootness, he asserts that the court should
proceed to decide the hearsay issue, because if it holds for Peter it may
vacate the dismissal of the complaint and reinstate the jury verdict
Can there be any doubt that, in this hypothetical case, the court of
appeals would throw Peter out on his ear? Yet there is no significant dif
ference between Peter's conduct and that of the Government in this case
UNITED STATES v VILLAMONTE-MARQUEZ 595
579 BRENNAN, J , dissenting
mandate issued on December 8 On December 21, the Gov-
ernment moved voluntarily in the District Court for dismissal
of the indictment under Federal Rule of Criminal Procedure
48(a), and the motion was granted the same day Not until
January 18, 1982, did the Government file its petition for
certioran m this Court 2
Rule 48(a) provides that the Government "may by leave of
court file a dismissal of an indictment, information or com-
plaint and the prosecution shall thereupon terminate" (em-
phasis added) No one has ever challenged the effectiveness
of the District Court's order of dismissal, or sought to set it
aside, either by a request for rehearing in that court or by
direct review on appeal Yet the Government, having itself
permanently terminated this prosecution, now asks this
Court to reinstate respondents' convictions — convictions for
which there is no pending indictment and no extant criminal
action Neither the Government nor the Court provides any
adequate explanation of how this is possible
The Court relies primarily on cases holding that issuance of
the mandate of a court of appeals does not necessarily moot a
case Ante, at 581-582, n 2 That is ordinarily true enough,
but it is quite beside the point The act that terminated this
case was not the issuance of the mandate (or the Govern-
ment's failure to seek a further stay), but the dismissal of the
indictment at the Government's request The Court cites
Mancusi v Stubbs, 408 U S 204, 205-207 (1972), as support
for the proposition that the Court may reinstate respondents'
convictions despite the dismissal Presumably the Court re-
fers to our holding in Mancusi that "[petitioner's obedience
to the mandate of the Court of Appeals and the judgment of
the District Court does not moot this case " Id , at 206 (foot-
note omitted) 3 The unspoken but necessary step in the
2 The tune for filing was extended by JUSTICE WHITE
3 The facts of Mancusi illuminate why that case does not control this
one There, New York had sentenced Stubbs as a second offender, based
on an allegedly infirm prior Tennessee conviction On appeal from a denial
596 OCTOBER TERM, 1982
BRENNAN, J , dissenting 4^2 u s
Court's logic is the Government's assertion that "the indict-
ment in this case was dismissed solely in order to comply with
the court of appeals' mandate " Supplemental Brief for
United States 3 That assertion, however, is patently false
Not one syllable of the Court of Appeals' mandate or opinion
purported to require the District Court to dismiss the indict-
ment, or to require the Government to move for dismissal
The Court of Appeals held only that respondents' convictions
were infirm because based on inadmissible evidence, it re-
mained open for the Government to retry them on proper evi-
dence, or to seek further review in this Court The Govern-
ment points out that it had no other sufficient evidence, and
hence as a practical matter it could not have retried respond-
ents In that circumstance a dismissal of the indictment was
indeed a sensible response to the Court of Appeals' decision,
if the Government did not intend to proceed further in seek
ing to impose criminal liability on respondents But if, on
the contrary, the Government intended to seek a reversal in
this Court of the Court of Appeals' judgment, then there was
no reason why it would or should terminate the prosecution
by moving under Rule 48(a) for dismissal Instead, it could,
should, and would have proceeded in this Court, allowing the
indictment to stand pending our disposition Neither the
of federal habeas, the Court of Appeals held that the Tennessee conviction,
and hence the New York sentence, were invalid, accordingly, acting on the
Court of Appeals' mandate, the District Court granted a writ of habeas cor
pus, ordering that Stubbs be resentenced or released Before our decision
issued, the New York state court complied by resentencmg Stubbs We
held that the case was not moot because, if we reversed, the State would
be free to reimpose its earlier sentence on Stubbs (As it happened, the
second sentence was the same as the first, but it was still under appeal
when our decision was rendered, thus, it was possible that the second sen
tence would be reversed, leaving the original sentence as the only basis on
which New York could impose that punishment ) The key fact in Mancusi
was that the State was absolutely required by the District Court's writ
either to resentence Stubbs or to release him, it did not have the option, as
the Government did in this case, of simply letting the matter rest pending
decision by this Court
UNITED STATES v VILLAMONTE-MARQUEZ 597
579 BRENNAN, J , dissenting
Government nor the Court draws my attention to anything
that would have foreclosed this course of action 4 Plainly,
the Government's motion was based on a decision (presum-
ably later changed) to let the case drop, contenting itself with
deportation
The Court points out that preliminary steps in a prosecu-
tion are merged into a conviction and sentence Ante, at
581-582, n 2 Again, this is true enough as a general rule,
but it is hard to see how it provides any support for the
Court's position The rule means simply that interlocutory
steps are subject to attack on appeal from the final judgment,
it has never been meant or taken to undermine the funda-
mental principle that an indictment is the necessary founda-
tion of and predicate for a felony prosecution, conviction, or
sentence On the contrary, it means just the opposite — that
the indictment can be attacked on appeal from the conviction,
and if it is defective, the entire conviction and sentence falls
Likewise, if the indictment is dismissed, everything that has
been "merged" with it is necessarily included in the dis-
missal Where there is no valid indictment pending, "[i]t is
of no avail to say that the court still has jurisdiction of the
person and of the crime, for, though it has possession of the
person, and would have jurisdiction of the crime, if it were
properly presented by indictment, the jurisdiction of the
offence is gone, and the court has no right to proceed any
further in the progress of the case for want of an indictment "
Ex parte Bain, 121 U S 1, 13 (1887) 6 Rule 48(a) is but a
4 The Government suggests that the Speedy Trial Act, 18 U S C
§3161(e) (1976 ed , Supp V), somehow foreclosed this Supplemental
Brief for United States 2, n 1 It is doubtful, however, that a judgment
on which certiorari has been granted is "final" within § 3161(d)(2), alterna-
tively, action on the petition for certiorari would likely constitute "other
proceedings concerning the defendant" under § 3161(h)(l) In any event,
§3161(e) applies only "[i]f the defendant is to be tried again " The Gov-
ernment has disclaimed any intention of retrying respondents
5 Salinger v United States, 272 U S 542, 549 (1926), hardly limits Bam
to its facts, as the Court contends, ante, at 581-582, n 2, even less does it
598 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u S
recognition of this principle Once the indictment is dis-
missed, "the prosecution shall thereupon terminate " This
prosecution has terminated, and this Court is entirely with-
out power to revive it, or the convictions or sentences that
arose out of it and died with it Hence, because there is no
nonadvisory relief that we may grant to the Government, the
case should be vacated and remanded with instructions to
dismiss as moot
II
Today, for the first time in the nearly 200-year history of
the Fourth Amendment, the Court approves a completely
random seizure and detention of persons and an entry onto
private, noncommercial premises by police officers, without
any limitations whatever on the officers' discretion or any
safeguards against abuse The Court makes no pretense
that its issuance of this maritime writ of assistance is sup-
ported by any precedent approving such extraordinary and
unregulated powers 6 Instead, it correctly recognizes that
undermine the principle for which I cite the case Bain held that the Fifth
Amendment does not permit amendment of an indictment other than by a
grand jury, Sahnger held simply that a trial judge may "amend" an indict
ment by omitting a charge not supported by the evidence at trial This
unsurprising rule is entirely consistent with anything in either Bain or this
dissent It certainly does not in any way contradict Bain's statement that
a live, valid indictment is the sine qua non of any felony prosecution or
sentence
6 The closest this Court has ever come to granting such unlimited police
discretion is in one narrowly limited situation — that of border searches
"Travellers may be stopped in crossing an international boundary
because of national self protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his belongings as
effects which may be lawfully brought in " Carroll v United States, 267
U S 132, 154 (1925)
Yet at the same time, we have always stressed the uniqueness of the
border-search rule, and have repeatedly pointed out that its rationale
cannot acceptably be applied to any other situation
"It would be intolerable and unreasonable if a prohibition agent were au
thorized to stop every automobile on the chance of finding liquor and thus
UNITED STATES v VILLAMONTE-MARQUEZ 599
579 BRENNAN, J , dissenting
the relevant precedents are those governing searches or
stops of vehicles by police on random patrol or at fixed check-
points Almeida-Sanchez v United States, 413 U S 266
(1973), United States v Bngnom-Ponce, 422 U S 873
(1975), United States v Ortiz, 422 U S 891 (1975), United
States v Martmez-Fuerte, 428 U S 543 (1976), Delaware v
Prouse, 440 U S 648 (1979) But those precedents cannot
be read to support or permit today's holding, for not one of
them holds or even hints that a police officer on roving patrol
may stop, seize, enter, or search any vehicle, vessel, or per-
son at the whim of the officer Instead, the cases uniformly
hold that any stop or search requires probable cause, reason-
able suspicion, or another discretion-limiting feature such as
the use of fixed checkpoints instead of roving patrols If we
subject all persons lawfully using the highways to the inconvenience and
indignity of such a search [TJhose lawfully within the country, entitled to
use the public highways, have a right to free passage without interruption
or search unless there is known to a competent official authorized to
search, probable cause for believing that their vehicles are carrying contra
band or illegal merchandise " Id , at 153-154
See also, e g , Almeida Sanchez v United States, 413 U S 266, 272-274
(1973)
The Government does not contend that the boarding in this case can be
justified as a border search Accordingly, the Court — correctly — does not
argue that either the rule or the rationale of the border search cases has
any bearing on this case In any event, a border search is, in most in
stances, a fixed checkpoint stop, sharing the discretion-limiting features of
all such stops See United States v Ortiz, 422 U S 891, 894-895 (1975),
United States v Martmez-Fuerte, 428 U S 543, 558-559 (1976), Delaware
v Prouse, 440 U S 648, 656-657 (1979), infra, at 603-605 When a bor
der search does not occur at a regular port of entry, it can be made only if it
is known that there has in fact been a border crossing See 3 W LaFave,
Search and Seizure §§ 10 5(d), (e) (1978), cf United States v Bngnoni
Ponce, 422 U S 873, 884 (1975) (Government's power, if any, freely to
stop and question aliens cannot affect Fourth Amendment rights of citizens
mistaken for aliens) Hence, the border-search rule does not represent
any exception to our uniform insistence under the Fourth Amendment that
the police may not be loosed upon the populace with no limits on their abil
ity to stop, seize, or search
600 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u g
are to reach the merits, therefore, our precedents compel an
affirmance
The Court freely admits that the limitations we have im-
posed on police discretion were necessary to our holdings in
the vehicle-stop cases, ante, at 588, and that the seizure and
boarding at issue in this case cannot pass muster under those
precedents, ^b^d Yet it upholds this seizure, concluding
that there are differences between boats and cars sufficient
to justify such a blatant departure from solid and recent con-
stitutional precedent 7 There are three basic flaws in the
7 The Court also rests on its assertion that "[i]n a lineal ancestor to the
statute at issue here the First Congress clearly authorized the suspicion-
less boarding of vessels, reflecting its view that such boardings are not
contrary to the Fourth Amendment, this gives the statute before us an
impressive historical pedigree " Ante, at 592, see ante, at 584-587 I
cannot agree that every statute enacted by the First Congress must be
presumed to be constitutional See Marsh v Chambers, 463 U S 783,
795 (1983) (BRENNAN, J , dissenting) Even granting this theory of con
stitutional adjudication, however, the Court's historical analysis is self
refuting The 1790 statute on which it relies, quoted ante, at 584, is by its
own terms limited to boardings and searches of ships "if bound to the
United States " 1 Stat 164 (emphasis added) By contrast, §48 of the
Act, which did authorize customs officers to board and search any vessel
without regard to location or entry into the country, was expressly limited
to vessels in which customs officers had "reason to suspect any goods,
wares, or merchandise subject to duty shall be concealed " §48, 1 Stat
170 (emphasis added), cf Carroll, supra, at 150-151 The Court attempts
to explain away § 48, reasoning that § 48 authorized searches, whereas §31
authorized only boardings for document checks Ante, at 585-586, n 4
Section 31, however, also authorized officers to search an inbound ship,
with "free access to the cabin, and every other part of a ship or vessel "
Unless §48 (with its express requirement of reasonable suspicion for
searches) is to be read out of the Act, § 31's broad grant of authority to
board and search without suspicion must be read as applying only to ships
entering the country— as the language "if bound to the United States" indi
cates The section's further authorization to board and search vessels
without suspicion "in any part of the United States" meant merely that cus-
toms officials could wait to search a ship until it reached port In short,
§ 31 was a border-search statute, applicable only to vessels entering the
country See also n 6, supra Thus, as we recognized in Maul v United
UNITED STATES v VILLAMONTE-MARQUEZ 601
579 BRENNAN, J , dissenting
Court's reasoning First, the Court's exclusive focus on
available tools of investigation puts the cart before the horse,
it completely overlooks the primary and overarching concern
that has guided our previous decisions — our unqualified and
consistent rejection of any "standardless and unconstrained
discretion," Prouse, supra, at 661, that would subject our lib-
erties to the whim of an individual police officer in the field
Second, the supposed factual differences are either insub-
stantial or of the Government's own making And third, it is
a non sequitur to reason that because the police in a given
situation claim to need more intrusive and arbitrary enforce-
ment tools than the Fourth Amendment has been held to
permit, we may therefore dispense with the Fourth Amend-
ment's protections
A
In Almeida-Sanchez, we held that police officers on a rov-
ing patrol must have probable cause to suspect that a vehicle
contains illegal aliens or contraband before they may search
it In Ortiz, we held that the same rule governs searches of
vehicles at fixed checkpoints In either case, the severity of
the intrusion and the selective discretion necessarily exer-
cised by police in the field require that that discretion be
limited by a requirement of probable cause
"This degree of discretion to search private automo-
biles is not consistent with the Fourth Amendment A
search, even of an automobile, is a substantial invasion of
privacy To protect that privacy from official arbitrari-
ness, the Court has always regarded probable cause as
the minimum requirement for a lawful search " Ortiz,
supra, at 896 (footnote omitted)
States, 274 U S 501 (1927), it was not until the enactment of the present
statute in 1922 that Congress purported to authorize suspicionless board-
ings of vessels without regard to whether there had been any border cross-
ing Id , at 505, see id , at 521, 528-529 (Brandeis, J , concurring)
Where, then, is the "impressive historical pedigree"7
602 OCTOBER TERM, 1982
BRENNAN, J , dissenting 4^2 u Q
In Bngnom-Ponce and Martmez-Fuerte, the Court ad
dressed the limits on police officers' power to stop vehicles
and question the occupants, without searching either vehicles
or occupants These cases were not governed by the proba
ble-cause requirement of Almeida-Sanchez and Ortiz because
the police procedures in question were considerably less in
trusive than full vehicle searches Nevertheless, we contin
ued to insist, as we have always done, that there must be
some meaningful check on the arbitrary discretion of the
police
In Brignoni-Ponce, the stop in question was made by Bor
der Patrol officers on a roving patrol We held that such
stops are permitted only if the police have a reasonable
suspicion that the vehicle contains illegal aliens As in the
vehicle-search cases, we rested primarily on the Fourth
Amendment's command that police discretion be limited by
independent constitutional constraints
"We are unwilling to let the Border Patrol dispense
entirely with the requirement that officers must have
a reasonable suspicion to justify roving-patrol stops
[T]he reasonableness requirement of the Fourth Amend-
ment demands something more than the broad and
unlimited discretion sought by the Government To
approve roving-patrol stops of all vehicles in the border
area, without any suspicion that a particular vehicle is
carrying illegal immigrants, would subject the residents
of these and other areas to potentially unlimited interfer-
ence with their use of the highways, solely at the discre-
tion of Border Patrol officers [I]f we approved the
Government's position in this case, Border Patrol offi
cers could stop motorists at random for questioning, day
or night, anywhere within 100 air miles of the 2,000-nule
border, on a city street, a busy highway, or a desert
road, without any reason to suspect that they have vio-
lated any law " 422 U S , at 882-883 (footnote omitted)
UNITED STATES v VILLAMONTE-MARQUEZ 603
579 BRENNAN, J , dissenting
In Martmez-Fuerte, we held that Border Patrol officers
may stop vehicles and question their occupants at fixed
checkpoints without probable cause or reasonable suspicion
As the Court recognizes, ante, at 588-589, the reason why
reasonable suspicion was required in Brignom-Ponce but not
in Martinez-Fuerte was the additional feature m the latter
case that the stops took place at fixed checkpoints rather
than on roving patrols Fixed checkpoints have two major
advantages, for Fourth Amendment purposes, over roving
patrols They decrease somewhat the intrusiveness of the
stop, and they significantly channel and limit the discretion of
the officers and the consequent potential for abuse
"[W]e view checkpoint stops m a different light because
the subjective intrusion — the generating of concern or
even fright on the part of lawful travelers — is apprecia-
bly less in the case of a checkpoint stop
"[Checkpoint operations both appear to and actually in-
volve less discretionary enforcement activity The reg-
ularized manner in which established checkpoints are
operated is visible evidence, reassuring to law-abiding
motorists, that the stops are duly authorized and be-
lieved to serve the public interest The location of a
fixed checkpoint is not chosen by officers in the field, but
by officials responsible for making overall decisions as
to the most effective allocation of limited enforcement
resources We may assume that such officials will be
unlikely to locate a checkpoint where it bears arbitrarily
or oppressively on motorists as a class And since field
officers may stop only those cars passing the check-
point, there is less room for abusive or harassing stops
of individuals than there was in the case of roving-
patrol stops " 428 U S , at 558-559
See also Ortiz, 422 U S , at 894-895
In Prouse, we reaffirmed our holdings in BTignom-Ponce
and Martinez-Fuerte that stops of vehicles are permissible
604 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u s
only if made either at fixed checkpoints or on reasonable sus
picion Prouse involved a random, roving-patrol stop of a
vehicle for a spot hcense-and-registration check As in the
prior cases, we relied on the more intrusive nature of random
patrols as compared with fixed-checkpoint stops, 440 U S
at 657, and on the ever-present danger of arbitrariness and
abuse posed by the completely discretionary nature of ran-
dom roving-patrol stops
"The marginal contribution to roadway safety possibly
resulting from a system of spot checks cannot justify
subjecting every occupant of every vehicle on the roads
to a seizure — limited in magnitude compared to other
intrusions but nonetheless constitutionally cognizable —
at the unbridled discretion of law enforcement officials
To insist neither upon an appropriate factual basis for
suspicion directed at a particular automobile nor upon
some other substantial and objective standard or rule to
govern the exercise of discretion 'would invite intrusions
upon constitutionally guaranteed rights based on nothing
more substantial than inarticulate hunches ' Terry
v Ohio, 392 U S [1,] 22 [(1968)] When there is not
probable cause to believe that a driver is violating any
one of the multitude of applicable traffic and equipment
regulations — or other articulable basis amounting to rea-
sonable suspicion that the driver is unlicensed or his ve-
hicle unregistered — we cannot conceive of any legitimate
basis upon which a patrolman could decide that stopping
a particular driver for a spot check would be more
productive than stopping any other driver This kind
of standardless and unconstrained discretion is the evil
the Court has discerned when in previous cases it has
insisted that the discretion of the official in the field be
circumscribed, at least to some extent " Id , at 661
(footnote omitted)
In short, every one of the vehicle-stop precedents on which
the Court relies, from Almeida-Sanchez to Prouse, requires
UNITED STATES v VILLAMONTE-MARQUEZ 605
579 BRENNAN, J , dissenting
that a stop or search be supported by either probable cause,
reasonable suspicion, or another discretion-limiting feature
such as use of fixed checkpoints But the Court purports to
draw from these cases a rule that the police may board any
boat, at any time, on any "waters offering ready access to the
open sea," ante, at 588, 8 with nothing more to guide them
than their unsupported hunch, whim, or even their desire to
harass or to flaunt their authority The boarding at issue
here was made by officers on a roving patrol, concededly
without any reasonable suspicion of criminal activity To up-
hold it is flatly contrary to the square holdings of our cases
Nor can this departure from Bngnom-Ponce and Prtwse
be justified by a difference in degree of mtrusiveness The
Court asserts that its rule involves "only a modest intrusion,"
ante, at 592 (although, the Court admits, not a "minimal"
one, ante, at 593) The intrusion is modest, if the compari-
son is made to a full, detailed search of a vessel and its occu-
pants, which could only be made on probable cause But the
Court's bland assertion masks the fact that the intrusion
at issue here is significantly more severe than those in
Brignom-Ponce and f 'rouse, which we held permissible only
on reasonable suspicion As in those cases, the stop is made
on a roving patrol, so that it cannot claim the more limited
mtrusiveness of fixed checkpoints Also as in those cases,
there is a large noncrimmal maritime traffic that may hence-
forth be stopped and boarded at random in nearly any wa-
ters, at any time, without any reason to suspect that there
has been any violation of law Unlike the earlier cases,
however, it does not involve a mere stopping and question-
ing, cf infra, at 608, but an actual boarding of a private
vessel — more similar to entry of a private house than to the
8 Since the Court's holding rests primarily on the need to suppress mari-
time smuggling, it is necessarily hmited geographically to waters accessi-
ble to the open sea The same reasoning requires that today's rule be
hmited to such vessels as are capable of having entered the country from
the open sea
606 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u S
stops in Bngnom Ponce and Prouse Further, despite the
Court's enthusiasm for identifying differences between boats
and cars, it overlooks one obvious difference — the greater
expectation of privacy that persons enjoy on boats A boat,
unlike a car, quite often serves as an actual dwelling for its
owners, as was apparently true in this case Even where
the owners do not live aboard full-time, a boat may serve
essentially the same function as a summer vacation cottage —
a residence, albeit a temporary one In either instance, the
occupant would quite reasonably suppose that he was entitled
to remain undisturbed by arbitrary government authority
The Court, however, sweeps this expectation aside without a
thought 9
Today's holding thus runs roughshod over the previously
well-established principle that the police may not be issued a
free commission to invade any private premises without a
requirement of probable cause, reasonable suspicion, or some
other limit on their discretion or abuse thereof Here, as in
9 The Court points to the system of safety and documentation regulation
that vessels must obey As we pointed out in Prouse, however, the same
is true of automobiles, but that does not justify random stops of cars with
out reasonable suspicion
"The 'grave danger' of abuse of discretion does not disappear simply be
cause the automobile is subject to state regulation resulting m numerous
instances of police-citizen contact *[I]f the government intrudes the
privacy interest suffers whether the government's motivation is to mvesti
gate violations of criminal laws or breaches of other statutory or regulatory
standards ' " 440 U S , at 662 (citations omitted), quoting Marshall v
Barlow's, Inc , 436 U S 307, 312-313 (1978)
The Court also disparages the significance of the privacy interest in
boats by pointing out that, in this case, a private pleasure boat turned out
to be engaged in the business of smuggling Ante, at 592, n 6 This is
precisely the sort of post hoc reasoning, justifying a Fourth Amendment
violation by its results, against which we have warned E g , Martinez
Fuerte, 428 U S , at 565 Presumably the Court would not assert that a
random, warrantless entry of a private residence on land would be upheld
because it turned out that the residence was also being used for some crim-
inal enterprise
UNITED STATES v VILLAMONTE-MARQUEZ 607
579 BRENNAN J dissenting
Prouse, "[I] cannot conceive of any legitimate basis upon
which [a customs officer] could decide that [boarding] a par-
ticular [vessel] for a spot check would be more productive
than [boarding] any other [vessel] This kind of standardless
and unconstrained discretion is the evil the Court has dis-
cerned when in previous cases it has insisted that the discre-
tion of the official in the field be circumscribed, at least to
some extent " 440 U S , at 661
B
The Court attempts to justify its departure from Brignoni-
Ponce and Prouse by pointing to supposed special law en-
forcement problems in the maritime setting I do not accept
the premise that such problems permit us to dispense with
the Fourth Amendment's protections against arbitrary police
intrusion, see Part II-C, infra In any event, I am unper-
suaded that any sufficiently severe problems have been dem-
onstrated here
The Court asserts that it is not practicable on water for the
police to set up fixed checkpoints such as we approved in
Martinez-Fuerte and Prouse The boarding in this case,
however, took place m the Calcasieu Ship Channel, "a sepa-
rate thoroughfare which all vessels moving between
Lake Charles and the open sea of the Gulf must traverse "
Ante, at 582 The Channel bears a strong functional resem-
blance to the limited-access interstate highways on which the
Border Patrol sets up its fixed checkpoints, located so as to
funnel most of the relevant traffic through the checkpoints
See Martinez-Fuerte, 428 U S , at 553 As an opportunity
for effective fixed-point inspection, it compares quite favor-
ably to anything likely to have been available to the New
Castle County, Delaware, patrolman who made the illegal
random stop in Prouse Yet, despite the predictable diffi-
culty of setting up effective checkpoints or even temporary
roadblocks in an ordinary urban or suburban network of high-
ways and streets, we held in Prouse that random, roving-
608 OCTOBER TERM, 1982
BRENNAN, J , dissenting 452 u s
patrol traffic stops of vehicles are unconstitutional in any set
ting There is no justification for departing from that rule in
our considerably less extensive system of inland navigable
waterways 10
Checkpoints aside, there is no apparent reason why ran
dom stops are really necessary for adequate law enforce
ment In P rouse, we noted that many, if not all, safety
defects are readily detectable by visual means, without any
necessity for random stops 440 U S , at 660 The same is
true of vessels We also noted that the law enforcement
interests at stake could be substantially vindicated by stop-
ping drivers who commit traffic violations Id , at 659-660
Again, the same is true of vessels "Smuggling is commonly
attended by violation of the navigation laws " Maul v
United States, 274 U S 501, 525 (1927) (Brandeis, J , con-
curring) Similarly, as we noted in Bmgnom-Ponce "[T]he
nature of illegal alien traffic and the characteristics of smug
glmg operations tend to generate articulable grounds for
identifying violators Consequently, a requirement of rea
sonable suspicion for stops allows the Government adequate
means of guarding the public interest and also protects resi
dents of the border areas from indiscriminate official interfer
ence " 422 U S , at 883 The case law shows that the same
is true of the maritime smuggling trade u
10 The Court argues that fixed checkpoints are impossible on the open
sea Ante, at 589 Assuming this is true, however, it cannot provide
any explanation of why random, suspicionless stops are necessary or per
imssible on inland waterways such as the Calcasieu Ship Channel Nor
does it explain why, if random stops by roving patrols are necessary, they
could not be subjected to some sort of neutral selection system that would
decrease the opportunity for arbitrariness or harassment See Prouse,
440 U S , at 663-664 (BLACKMUN, J , concurring)
11 # g , United States v Glen-Archila, 677 F 2d 809, 813-814 (CA11
1982), United States v Green, 671 F 2d 46, 53-54 (CA1 1982), Blair v
United States, 665 F 2d 500, 505 (CA4 1981), United States v Stretfel, 665
F 2d 414, 424 (CA2 1981), United States v D'Antignac, 628 F 2d 428, 434
(CA5 1980), United States v Williams, 617 F 2d 1063, 1077, 1085 (CA5
UNITED STATES v VILLAMONTE-MARQUEZ 609
579 BRENNAN, J dissenting
The Court further rests on the fact that vessels, unlike
cars, do not carry uniform license plates giving visible evi-
dence of compliance with registration laws It identifies no
reason, however, why that is a necessary or permanent state
of affairs It would be manifestly easy and comparatively in-
expensive to provide boats with such means of identification
It is unseemly at best for the Government to refrain from im-
plementing a simple, effective, and unmtrusive law enforce-
ment device, and then to argue to this Court that the absence
of such a device justifies an unprecedented invasion of con-
stitutionally guaranteed liberties Moreover, assuming that
some check of documents is necessary, the Court does not
explain why that need invariably requires the police to board
a vessel, rather than to come alongside or to request that
someone from the vessel come on board the police vessel
Use of ship-to-shore radio, too, contributes considerably to
the Government's ability to keep track of documentation and
registration matters Cf Florida v Royer, 460 U S 491,
504-506 (1983) (plurality opinion), id , at 511-512, and n
(BRENNAN, J , concurring in result)
C
Even if the Court could make a more persuasive showing
that there are important differences between vehicles and
vessels as to the difficulty of law enforcement, I would not
agree with its holding It simply does not follow that, be-
cause the police in particular situations dislike limitations
placed on their powers of search and seizure, we may there-
fore sanction an unprecedented invasion of constitutionally
protected liberties
"The needs of law enforcement stand in constant ten-
sion with the Constitution's protection of the individual
1980), United States v Zurosky, 614 F 2d 779, 790 (CA1 1979), United
States v Serrano, 607 F 2d 1145, 1149 (CAS 1979), United States v
Castro, 596 F 2d 674, 675-676 (CA5 1979), United States v Whitmire,
595 F 2d 1303, 1306 (CAS 1979)
610 OCTOBER TERM, 1982
BRENNAN, J. , dissenting 4^2 u g
against certain exercises of official power. It is pre-
cisely the predictability of these pressures that counsels
a resolute loyalty to constitutional safeguards. It is well
to recall the words of Mr. Justice Jackson, soon after his
return from the Nuremberg trials:
"'These [Fourth Amendment rights], I protest, are
not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights,
none is so effective in cowing a population, crushing the
spirit of the individual and putting terror in every heart.
Uncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbi-
trary government. ' Brinegar v. United States, 338 U. S.
160, 180 [(1949)] (Jackson, J., dissenting)." Almeida-
Sanchez, 413 U. S., at 273-274.
Ill
In dissent in Martinez-Fuerte, I expressed my fear that
the Court's decision was part of a "continuing eviscera-
tion of Fourth Amendment protections against unreasonable
searches and seizures." 428 U. S., at 567. The majority
chided me for my rhetoric and my "unwarranted concern,"
pointing out that its holding was expressly and narrowly
limited: "Our holding today, approving routine stops for
brief questioning ... is confined to permanent checkpoints."
Id., at 566, n. 19. Today the Court breaks that promise.
I dissent.
HRST NAT CITY BANK i BANCO PARA EL COMERCIO bll
byllabus
FIRST NATIONAL CITY BANK v BANCO PARA
EL COMERCIO EXTERIOR DE CUBA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No 81-984 Argued March 28, 1983 — Decided June 17 1983
In 1960 the Cuban Government established respondent to serve as an
official autonomous credit institution for foreign trade with full juridical
capacity of its own Respondent sought to collect on a letter of credit
issued by petitioner bank in respondent s favor in support of a contract
for delivery of Cuban sugar to a buyer in the United States Shortly
thereafter, all of petitioner's assets in Cuba were seized and nationalized
by the Cuban Government When respondent brought suit on the letter of
credit in Federal District Court, petitioner counterclaimed, asserting a
right to set off the value of its seized Cuban assets After the suit was
brought but before petitioner filed its counterclaim, respondent was dis-
solved and its capital was split between Banco Nacional, Cuba's central
bank, and certain foreign trade enterprises or houses of the Cuban Min-
istry of Foreign Trade Rejecting respondent's contention that its sepa-
rate juridical status shielded it from liability for the acts of the Cuban
Government, the District Court held that since the value of petitioner's
Cuban assets exceeded respondent's claim, the setoff could be granted in
petitioner's favor, and therefore dismissed the complaint The Court of
Appeals reversed, holding that respondent was not an alter ego of the
Cuban Government for the purpose of petitioner's counterclaim
Held Under principles of equity common to international law and federal
common law, petitioner may apply the claimed setoff, notwithstanding
the fact that respondent was established as a separate juridical entity
Pp 619-633
(a) The Foreign Sovereign Immunities Act of 1976 does not control
the determination of whether petitioner may apply the setoff That Act
was not intended to affect the substantive law determining the liability
of a foreign state or instrumentality, or the attribution of liability among
such instrumentalities Pp 619-621
(b) Duly created instrumentalities of a foreign state are to be accorded
a presumption of independent status This presumption may be over-
come, however, where giving effect to the corporate form would permit
a foreign state to be the sole beneficiary of a claim pursued in United
States courts while escaping liability to the opposing party imposed by
international law Pp 623-630
612 OCTOBER TERM, 1982
Syllabus 462 y g
(c) Thus, here, giving effect to respondent's juridical status, even
though it has long been dissolved, would permit the real beneficiary of
such an action, the Cuban Government, to obtain relief in our courts that
it could not obtain in its own right without waiving its sovereign immu
mty and answering for the seizure of petitioner's assets in violation of
international law The corporate form will not be blindly adhered to
where doing so would cause such an injustice Having dissolved
respondent and transferred its assets to entities that may be held liable
on petitioner's counterclaim, Cuba cannot escape liability for acts in vio
lation of international law simply by retransfemng assets to separate
juridical entities To hold otherwise would permit governments to
avoid the requirements of international law simply by creating juridical
entities whenever the need arises Pp 630-633
658 F 2d 913, reversed and remanded
O'CONNOR, J , delivered the opinion of the Court, in which BURGER,
C J , and WHITE, MARSHALL, POWELL, and REHNQUIST, JJ , joined, and
in Parts I, II, III-A, and III-B of which BRENNAN, BLACKMUN, and
STEVENS, JJ , joined STEVENS, J , filed an opinion concurring in part
and dissenting in part, in which BRENNAN, and BLACKMUN, JJ , joined,
post, p 634
Henry Harfteld argued the cause for petitioner With him
on the briefs were John E Hoffman, Jr , and Charles B
Manuel, Jr
Richard G Wilkins argued the cause pro hac vice for the
United States as amicus curiae urging reversal With him
on the brief were Solicitor General Lee, Assistant Attorney
General McGrath, Deputy Solicitor General Geller, Geoffrey
S Stewart, Davis R Robinson, Fred L Morrison, and
Ronald W Klemman
Michael Knnsky argued the cause for respondent With
him on the brief were Victor Rabmowitz, Judith Levin, and
Jules Lobel *
*John J McGrath, Jr , filed a brief for Kalamazoo Spice Extraction Co
as amicus curiae urging reversal
Richard F Bellman filed a brief for the International Center for Law in
Development as amicus curiae urging affirmance
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 613
gH Opinion of the Court
JUSTICE O'CONNOR delivered the opinion of the Court
In 1960 the Government of the Republic of Cuba estab-
lished respondent Banco Para el Comercio Exterior de Cuba
(Bancec) to serve as "[a]n official autonomous credit institu-
tion for foreign trade with full j ur idical capacity of its
own " Law No 793, Art 1 (1960), App to Pet for
Cert 2d In September 1960 Bancec sought to collect on a
letter of credit issued by petitioner First National City Bank
(now Citibank) in its favor in support of a contract for deliv-
ery of Cuban sugar to a buyer in the United States Within
days after Citibank received the request for collection, all of
its assets in Cuba were seized and nationalized by the Cuban
Government When Bancec brought suit on the letter of
credit in United States District Court, Citibank counter-
claimed, asserting a right to set off the value of its seized
Cuban assets The question before us is whether Citibank
may obtain such a setoff , notwithstanding the fact that Bancec
was established as a separate juridical entity Applying
principles of equity common to international law and federal
common law, we conclude that Citibank may apply a setoff
I
Resolution of the question presented by this case requires
us to describe in some detail the events giving rise to the
current controversy
Bancec was established by Law No 793, of April 25, 1960,
as the legal successor to the Banco Cubano del Comercio
Exterior (Cuban Foreign Trade Bank), a trading bank estab-
kshed by the Cuban Government in 1954 and jointly owned
by the Government and private banks Law No 793 con-
tains detailed "By-laws" specifying Bancec's purpose, struc-
ture, and administration Bancec's stated purpose was "to
contribute to, and collaborate with, the international trade
policy of the Government and the application of the meas-
ures concerning foreign trade adopted by the 'Banco Nacional
de Cuba/" Cuba's central bank (Banco Nacional) Art 1,
614 OCTOBER TERM, 1982
Opinion of the Court 462 y a
No VIII, App to Pet for Cert 4d Bancec was empow
ered to act as the Cuban Government's exclusive agent in for
eign trade The Government supplied all of its capital and
owned all of its stock The General Treasury of the Republic
received all of Bancec's profits, after deduction of amounts
for capital reserves A Governing Board consisting of dele
gates from Cuban governmental ministries governed and
managed Bancec Its president was Ernesto Che Guevara,
who also was Minister of State and president of Banco
Nacional A General Manager appointed by the Governing
Board was charged with directing Bancec's day-to-day opera-
tions in a manner consistent with its enabling statute
In contracts signed on August 12, 1960, Bancec agreed to
purchase a quantity of sugar from El Institutio Nacional de
Reforma Agraria (INRA), an instrumentality of the Cuban
Government which owned and operated Cuba's nationalized
sugar industry, and to sell it to the Cuban Canadian Sugar
Company The latter sale agreement was supported by an
irrevocable letter of credit in favor of Bancec issued by
Citibank on August 18, 1960, which Bancec assigned to Banco
Nacional for collection
Meanwhile, in July 1960 the Cuban Government enacted
Law No 851, which provided for the nationalization of the
Cuban properties of United States citizens By Resolution
No 2 of September 17, 1960, the Government ordered that
all of the Cuban property of three United States banks, in-
cluding Citibank, be nationalized through forced expropria-
tion The "Bank Nationalization Law/' Law No 891, of
October 13, 1960, declared that the banking function could
be carried on only by instrumentalities created by the State,
and ordered Banco Nacional to effect the nationalization
On or about September 15, 1960, before the banks were
nationalized, Bancec's draft was presented to Citibank for
payment by Banco Nacional The amount sought was
$193,280 30 for sugar delivered at Pascagoula, Miss On
September 20, 1960, after its branches were nationalized,
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 615
QH Opinion of the Court
Citibank credited the requested amount to Banco NacionaPs
account and applied the balance m Banco NacionaPs account
as a setoff against the value of its Cuban branches
On February 1, 1961, Bancec brought this diversity action
to recover on the letter of credit in the United States District
Court for the Southern District of New York
On February 23, 1961, by Law No 930, Bancec was dis-
solved and its capital was split between Banco Nacional and
"the foreign trade enterprises or houses of the Ministry of
Foreign Trade/' which were established by Law No 934 the
same day J App to Pet for Cert 16d All of fiancee's
rights, claims, and assets "peculiar to the banking business"
were vested in Banco Nacional, which also succeeded to its
banking obligations Ibid All of fiancee's "trading func-
tions" were to be assumed by "the foreign trade enterprises
or houses of the Ministry of Foreign Trade " By Resolution
No 1, dated March 1, 1961, the Ministry of Foreign Trade
created Empresa Cubana de Exportaciones (Cuban Enter-
prise for Exports) (Empresa), which was empowered to con-
duct all commercial export transactions formerly conducted
by Bancec "remaining subrogated in the rights and obliga-
tions of said bank [Bancec] as regards the commercial export
activities " App to Pet for Cert 26d Three hundred
thousand of the two million pesos distributed to the Ministry
of Foreign Trade when Bancec was dissolved were assigned
to Empresa Id , at 27d By Resolution No 102, dated
December 31, 1961, and Resolution No 1, dated January 1,
1962, Empresa was dissolved and fiancee's rights relating to
foreign commerce in sugar were assigned to Empresa Cu-
1 Law No 934 provides that "[a]ll the functions of a mercantile character
heretofore assigned to [Bancec] are hereby transferred and vested in the
foreign trade enterprises or houses set up hereunder, which are subro-
gated to the rights and obligations of said former Bank in pursuance of the
assignment of those functions ordered by the Minister " App to Pet for
Cert 24d
616 OCTOBER TERM, 1982
Opinion of the Court 462 TJ o
bana Exportadora de Azucar y sus Derivados (Cubazucar) a
state trading company, which is apparently still in existence
On March 8, 1961, after Bancec had been dissolved, Citi
bank filed its answer, which sought a setoff for the value of
its seized branches, not an affirmative recovery of damages 2
On July 7, 1961, Bancec filed a stipulation signed by the par
ties stating that Bancec had been dissolved and that its claim
had been transferred to the Ministry of Foreign Trade, and
agreeing that the Republic of Cuba may be substituted as
plaintiff The District Court approved the stipulation, but
no amended complaint was filed
Apparently the case lay dormant until May 1975, when
respondent filed a motion seeking an order substituting
Cubazucar as plaintiff The motion was supported by an
affidavit by counsel stating that Bancec's claim had passed
through the Ministry of Foreign Trade and Empresa to Cu
bazucar, all by operation of the laws and resolutions cited
above Counsel for petitioner opposed the motion, and the
District Court denied it in August 1975, stating that "to per
mit such a substitution would only multiply complications
in this already complicated litigation " App 160
A bench trial was held in 1977,3 after which the District
2 Citibank's answer alleged that the suit was "brought by and for the ben-
efit of the Republic of Cuba by and through its agent and wholly owned
instrumentality, which is in fact and law and in form and function an
integral part of and indistinguishable from the Republic of Cuba " App
113
3 The bulk of the evidence at trial was directed to the question whether
the value of Citibank's confiscated branches exceeded the amount Citibank
had already recovered from Cuba, including a setoff it had successfully as-
serted in Banco Nacional de Cuba v First National City Bank, 478 F 2d
191 (CA2 1973) (Banco I), the decision on remand from this Court's dea
sion in First National City Bank v Banco Nacional de Cuba, 406 U S
759 (1972) Only one witness, Raul Lopez, testified on matters touching
upon the question presented (A second witness, Juan Sanchez, described
the operations of Bancec's predecessor App 185-186 ) Lopez, who was
called by Bancec, served as a lawyer for Banco Nacional from 1953 to 1965,
when he went to work for the Foreign Trade Ministry He testified that
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 617
fil« Opinion of the Court
Court4 granted judgment in favor of Citibank 505 F Supp
412 (1980) The court rejected Bancec's contention that its
separate juridical status shielded it from liability for the acts
of the Cuban Government
"Under all of the relevant circumstances shown in this
record, it is clear that Bancec lacked an independent
existence, and was a mere arm of the Cuban Govern-
ment, performing a purely governmental function The
control of Bancec was exclusively in the hands of the
Government, and Bancec was established solely to fur-
ther Governmental purposes Moreover, Bancec was
totally dependent on the Government for financing and
required to remit all of its profits to the Government
"Bancec is not a mere private corporation, the stock of
which is owned by the Cuban Government, but an
agency of the Cuban Government in the conduct of the
sort of matters which even in a country characterized by
private capitalism, tend to be supervised and managed
by Government Where the equities are so strong in
"Bancec was an autonomous organization that was supervised by the
Cuban Government but not controlled by it " Id , at 197 According to
Lopez, under Cuban law Bancec had independent legal status, and could
sue and be sued Lopez stated that Bancec's capital was supplied by the
Cuban Government and that its net profits, after reserves, were paid to
Cuba's Treasury, but that Bancec did not pay taxes to the Government
Id , at 196
The District Court also took into evidence translations of the Cuban stat
utes and resolutions, as well as the July 1961 stipulation for leave to file a
motion to file an amended complaint substituting the Republic of Cuba as
plaintiff The court stated that the stipulation would be taken "for what it
is worth," and acknowledged respondent's representation that it was based
on an "erroneous" interpretation of Cuba's law Id , at 207-209
4 Judge van Pelt Bryan, before whom the case was tried, died before issu
ing a decision With the parties' consent, Judge Brieant decided the case
based on the record of the earlier proceedings 505 F Supp 412 418
(1980)
618 OCTOBER TERM, 1982
Opinion of the Court 462 U S
favor of the counter-claiming defendants, as they are in
this case, the Court should recognize the practicalities of
the transactions The Court concludes that Bancec
is an alter ego of the Cuban Government " Id at
427-428
Without determining the exact value of Citibank's assets
seized by Cuba, the court held that "the value of the confis
cated branches substantially exceeds the sums already
recovered, and therefore the set-off pleaded here may be
granted in full in favor of Citibank " Id , at 467 It there
fore entered judgment dismissing the complaint 5
The United States Court of Appeals for the Second Circuit
reversed 658 F 2d 913 (1981) While expressing agree-
ment with the District Court's "descriptions of Bancec's fane
tions and its status as a wholly-owned instrumentality of the
Cuban government," the court concluded that "Bancec was
6 The District Court stated that the events surrounding Bancec's dissolu
tion "naturally inject a question of Veal party in interest' into the discussion
of Bancec's claim/' but it attached "no significance or validity to arguments
based on that concept " Id , at 425 It indicated that when Bancec was
dissolved, the claim on the letter of credit was "the sort of asset, right and
claim peculiar to the banking business, and accordingly, probably should be
regarded as vested in Banco Nacional " Id , at 424 Noting that the
Court of Appeals, in Banco /, had affirmed a ruling that Banco Nacional
could be held liable by way of setoff for the value of Citibank's seized
Cuban assets, the court concluded
"[T]he devolution of [Bancec's] claim, however viewed, brings it into the
hands of the Ministry, or Banco Nacional, each an alter ego of the Cuban
Government [W]e accept the present contention of plaintiff's counsel
that the order of this Court of July 6th [1961] permitting, but apparently
not requiring, the service of an amended complaint in which the Republic of
Cuba itself would appear as a party plaintiff in lieu of Bancec was based on
counsel's erroneous assumption, or an erroneous interpretation of the laws
and resolutions providing for the devolution of the assets of Bancec As-
suming this to be true, it is of no moment The Ministry of Foreign Trade
is no different than the Government of which its minister is a member"
505 F Supp , at 425 (emphasis in original)
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 619
/M 1 Opinion of the Court
not an alter ego of the Cuban government for the purpose of
[Citibank's] counterclaims " Id , at 917 It stated that, as a
general matter, courts would respect the independent iden-
tity of a governmental instrumentality created as "a separate
and distinct juridical entity under the laws of the state that
owns it" — except "when the subject matter of the counter-
claim assertible against the state is state conduct in which the
instrumentality had a key role " Id , at 918 As an exam-
ple of such a situation the Court of Appeals cited Banco Na-
cional de Cuba v First National City Bank, 478 F 2d 191
(CA2 1973), in which it had ruled that Banco Nacional could
be held liable by way of setoff for the value of Citibank's
seized Cuban assets because of the role it played in the expro-
priations But the court declined to hold that "a trading cor-
poration wholly owned by a foreign government, but created
and operating as a separate juridical entity, is an alter ego of
that government for the purpose of recovery for wrongs of
the government totally unrelated to the operations, conduct
or authority of the instrumentality " 658 F 2d, at 920 6
Citibank moved for rehearing, arguing, inter aha, that the
panel had ignored the fact that Bancec had been dissolved in
February 1961 The motion, and a suggestion of rehearing
en bane, were denied This Court granted certiorari 459
U S 942 (1982) We reverse, and remand the case for
further proceedings
II
As an initial matter, Bancec contends that the Foreign
Sovereign Immunities Act of 1976, 28 U S C §§ 1602-1611
(FSIA), immunizes an instrumentality owned by a foreign
government from suit on a counterclaim based on actions
6 In a footnote, the Court of Appeals referred to Bancec's dissolution and
listed its successors, but its opinion attached no significance to that event
658 F 2d, at 916, n 4
620 OCTOBER TERM, 1982
Opinion of the Court 462 U S
taken by that government Bancec correctly concedes that
under 28 U S C § 1607(c),7 an instrumentality of a foreign
state bringing suit in a United States court is not entitled
to immunity "with respect to any counterclaim to the
extent that the counterclaim does not seek relief exceeding
in amount or differing in kind from that sought by the
[instrumentality] " It contends, however, that as a substan
tive matter the FSIA prohibits holding a foreign instru
mentality owned and controlled by a foreign government
responsible for actions taken by that government
We disagree The language and history of the FSIA
clearly establish that the Act was not intended to affect the
substantive law determining the liability of a foreign state or
instrumentality, or the attribution of liability among instru
mentalities of a foreign state Section 1606 of the FSIA pro-
vides in relevant part that "[a]s to any claim for relief with
respect to which a foreign state is not entitled to immunity
, the foreign state shall be liable in the same manner and
to the same extent as a private individual under like circum
stances " The House Report on the FSIA states
"The bill is not intended to affect the substantive law
of liability Nor is it intended to affect the attribu
tion of responsibility between or among entities of a for-
eign state, for example, whether the proper entity of a
foreign state has been sued, or whether an entity sued is
7 In relevant part, 28 U S C § 1607 provides
"In any action brought by a foreign state in a court of the United
States or of a State, the foreign state shall not be accorded immunity with
respect to any counterclaim —
"(c) to the extent that the counterclaim does not seek relief exceeding in
amount or differing in kind from that sought by the foreign state "
As used in 28 U S C § 1607, a "foreign state" includes an "agency or
instrumentality of a foreign state " 28 U S C § 1603(a)
Section 1607(c) codifies our decision in National City Bank v Republw
of China, 348 U S 356(1955) See H R Rep No 94-1487, p 23(1976)
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 621
^ Opinion of the Court
hable in whole or in part for the claimed wrong " H R
Rep No 94-1487, p 12 (1976) 8
Thus, we conclude that the FSIA does not control the
determination of whether Citibank may set off the value of its
seized Cuban assets against Bancec's claim Nevertheless,
our resolution of that question is guided by the policies artic-
ulated by Congress in enacting the FSIA See infra, at
627-628
B
We must next decide which body of law determines the
effect to be given to Bancec's separate juridical status
Bancec contends that internationally recognized conflict-of-
law principles require the application of the law of the state
that establishes a government instrumentality — here Cuba —
to determine whether the instrumentality may be held liable
for actions taken by the sovereign
We cannot agree As a general matter, the law of the
state of incorporation normally determines issues relating to
the internal affairs of a corporation Application of that
body of law achieves the need for certainty and predictability
of result while generally protecting the justified expectations
of parties with interests in the corporation See Restate-
ment (Second) of Conflict of Laws § 302, Comments a and e
(1971) Cf Cort v Ash, 422 U S 66, 84 (1975) Different
conflicts principles apply, however, where the rights of third
parties external to the corporation are at issue See Re-
statement (Second) of Conflict of Laws, supra, § 301 9 To
8 See also id , at 28 (in deciding whether property in the United States of
a foreign state is immune from attachment and execution under 28 U S C
§ 161Q(a)(2), "[t]he courts will have to determine whether property 'in the
custody of an agency or instrumentality is property 'of the agency or
instrumentality, whether property held by one agency should be deemed
to be property of another, [and] whether property held by an agency is
property of the foreign state")
9 See also Hadari, The Choice of National Law Applicable to the Multi-
national Enterprise and the Nationality of Such Enterprises, 1974 Duke
L J 1, 15-19
622 OCTOBER TERM, 1982
Opinion of the Court 4@2 rr «
give conclusive effect to the law of the chartering state m
determining whether the separate juridical status of its in
strumentahty should be respected would permit the state to
violate with impunity the rights of third parties under inter
national law while effectively insulating itself from liability m
foreign courts 10 We decline to permit such a result ll
Bancec contends in the alternative that international law
must determine the resolution of the question presented
Citibank, on the other hand, suggests that federal common
law governs The expropriation claim against which Bancec
10 Cf Anderson v Abbott, 321 U S 349, 365 (1944) (declining to apply
the law of the State of incorporation to determine whether a banking cor
poration complied with the requirements of federal banking laws because
"no State may endow its corporate creatures with the power to place them
selves above the Congress of the United States and defeat the federal pol
icy concerning national banks which Congress has announced")
"Pointing out that 28 U S C § 1606, see supra, at 620, contains Ian
guage identical to the Federal Tort Claims Act (FTCA), 28 U S C § 2674,
Bancec also contends alternatively that the FSIA, like the FTCA, requires
application of the law of the forum State — here New York — including its
conflicts principles We disagree Section 1606 provides that "[a]s to any
claim for relief with respect to which a foreign state is not entitled to unmu
mty , the foreign state shall be liable in the same manner and to the
same extent as a private individual under like circumstances " Thus,
where state law provides a rule of liability governing private individuals,
the FSIA requires the application of that rule to foreign states in like cir
cumstances The statute is silent, however, concerning the rule govern
ing the attribution of liability among entities of a foreign state In Banco
Nacional de Cuba v Sabbatzno, 376 U S 398, 425 (1964), this Court de-
clined to apply the State of New York's act of state doctrine in a diversity
action between a United States national and an instrumentality of a foreign
state, concluding that matters bearing on the Nation's foreign relations
"should not be left to divergent and perhaps parochial state interpreta-
tions " When it enacted the FSIA, Congress expressly acknowledged
"the importance of developing a uniform body of law" concerning the
amenability of a foreign sovereign to suit in United States courts H R
Rep No 94-1487, p 32(1976) SeeVerhndenB V v Central B<mk of
Nigeria, 461 U S 480, 489 (1983) In our view, these same considerations
preclude the application of New York law here
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 623
/MJ Opinion of the Court
seeks to interpose its separate juridical status arises under
international law, which, as we have frequently reiterated,
"is part of our law " The Paquete Habana, 175 U S
677 700 (1900) As we set forth below, see infra, at 624-
630^ and nn 19, 20, the principles governing this case are
common to both international law and federal common law,
which in these circumstances is necessarily informed both by
international law principles and by articulated congressional
policies
III
A
Before examining the controlling principles, a preliminary
observation is appropriate The parties and amici have
repeatedly referred to the phrases that have tended to domi-
nate discussion about the independent status of separately
constituted juridical entities, debating whether "to pierce the
corporate veil," and whether Bancec is an "alter ego" or
a "mere instrumentality" of the Cuban Government In
Berkey v Third Avenue R Co , 244 N Y 84, 155 N E 58
(1926), Justice (then Judge) Cardozo warned in circumstances
similar to those presented here against permitting worn
epithets to substitute for rigorous analysis
"The whole problem of the relation between parent
and subsidiary corporations is one that is still enveloped
in the mists of metaphor Metaphors in law are to be
narrowly watched, for starting as devices to liberate
thought, they end often by enslaving it " Id , at 94, 155
N E , at 61
With this in mind, we examine briefly the nature of govern-
ment instrumentalities 12
^Although this Court has never been required to consider the separate
status of a foreign instrumentality, it has considered the legal status under
federal law of United States Government instrumentalities in a number of
contexts, none of which are relevant here See, e g , Keifer & Keifer v
Reconstruction Finance Corp , 306 U S 381 (1939) (determining that
624 OCTOBER TERM, 1982
Opinion of the Court 4g2 jj n
Increasingly during this century, governments throughout
the world have established separately constituted legal enti
ties to perform a variety of tasks 13 The organization and
control of these entities vary considerably, but many possess
a number of common features A typical government instru-
mentality, if one can be said to exist, is created by an
enabling statute that prescribes the powers and duties of
the instrumentality, and specifies that it is to be managed by
a board selected by the government in a manner consist-
ent with the enabling law The instrumentality is typically
established as a separate juridical entity, with the powers
to hold and sell property and to sue and be sued Except
for appropriations to provide capital or to cover losses, the
instrumentality is primarily responsible for its own finances
The instrumentality is run as a distinct economic enterprise,
often it is not subject to the same budgetary and per
sonnel requirements with which government agencies must
comply 14
These distinctive features permit government instrumen
tahties to manage their operations on an enterprise basis
while granting them a greater degree of flexibility and inde-
pendence from close political control than is generally en
Congress did not intend to endow corporations chartered by the Kecon
struction Finance Corporation with immunity from suit)
13 Friedmann, Government Enterprise A Comparative Analysis, m Gov
eminent Enterprise A Comparative Study 303, 306-307 (W Friedmann &
J Garner eds 1970) See D Coombes, State Enterprise Business or
Politics? (1971) (United Kingdom), Dallmayr, Public and Semi-Public Cor
porations in France, 26 Law & Contemp Prob 755 (1961), J Quigley, The
Soviet Foreign Trade Monopoly 48-49, 119-120 (1974), Seidman, Govern-
ment-sponsored Enterprise in the United States, in The New Political
Economy 83, 85 (B Smith ed 1975), Supranowitz, The Law of State-
Owned Enterprises in a Socialist State, 26 Law & Contemp Prob 794
(1961), United Nations, Department of Economic and Social Affairs, Orga
mzation, Management and Supervision of Public Enterprises in Developing
Countries 63-69 (1974) (hereinafter United Nations Study), A Walsh, The
Public's Business The Politics and Practices of Government Corporations
313-321 (1978) (Europe)
14 Friedmann, supra, at 334, United Nations Study 63-65
FIKST NAT CITY BANK v BANCO PARA EL COMERCIO 625
gjj Opinion of the Court
joyed by government agencies 16 These same features fre-
quently prompt governments in developing countries to
establish separate juridical entities as the vehicles through
which to obtain the financial resources needed to make large-
scale national investments
"[P]ublic enterprise, largely in the form of development
corporations, has become an essential instrument of eco-
nomic development in the economically backward coun-
tries which have insufficient private venture capital to
develop the utilities and industries which are given
priority in the national development plan Not infre-
quently, these public development corporations
directly or through subsidiaries, enter into partnerships
with national or foreign private enterprises, or they
offer shares to the public " Friedmann, Government
Enterprise A Comparative Analysis, in Government En-
terprise A Comparative Study 303, 333-334 (W Fried-
mann & J Garner eds 1970)
Separate legal personality has been described as "an
almost indispensable aspect of the public corporation " Id ,
at 314 Provisions in the corporate charter stating that the
instrumentality may sue and be sued have been construed
to waive the sovereign immunity accorded to many govern-
mental activities, thereby enabling third parties to deal with
the instrumentality knowing that they may seek relief in the
courts 16 Similarly, the instrumentality's assets and liabil-
ities must be treated as distinct from those of its sovereign in
15 President Franklin D Roosevelt described the Tennessee Valley Au-
thority, perhaps the best known of the American public corporations, as "a
corporation clothed with the power of Government but possessed of the
flexibility and initiative of a private enterprise " 77 Cong Rec 1423
(1933) See also J Thurston, Government Proprietary Corporations in
the English Speaking Countries 7 (1937)
16 Id , at 43-44 This principle has long been recognized in courts in
common law nations See Bank of United States v Planters' Bank of
Georgw, 9 Wheat 904 (1824), Tamhn v Hannaford, [1950] 1KB 18,
24(C A)
626 OCTOBER TERM, 1982
Opinion of the Court 462 jj n
order to facilitate credit transactions with third parties Id
at 315 Thus what the Court stated with respect to private
corporations in Anderson v Abbott, 321 U S 349 (1944) is
true also for governmental corporations
"Limited liability is the rule, not the exception, and
on that assumption large undertakings are rested, vast
enterprises are launched, and huge sums of capital
attracted " Id , at 362
Freely ignoring the separate status of government instru
mentalities would result in substantial uncertainty over
whether an instrumentality's assets would be diverted to sat
isfy a claim against the sovereign, and might thereby cause
third parties to hesitate before extending credit to a govern-
ment instrumentality without the government's guarantee 17
As a result, the efforts of sovereign nations to structure their
governmental activities in a manner deemed necessary to
promote economic development and efficient administration
would surely be frustrated Due respect for the actions
taken by foreign sovereigns and for principles of comity be-
tween nations, see falton v Guyot, 159 U S 113, 163-164
(1895), leads us to conclude — as the courts of Great Britain
have concluded in other circumstances18 — that government
17 See Posner, The Rights of Creditors of Affiliated Corporations, 43
U Chi L Rev 499, 516-517 (1976) (discussing private corporations)
18 The British courts, applying principles we have not embraced as urn
versally acceptable, have shown marked reluctance to attribute the acts of
a foreign government to an instrumentality owned by that government
In I Congreso del Partido, [1983] A C 244, a decision discussing the so-
called "restrictive" doctrine of sovereign immunity and its application to
three Cuban state-owned enterprises, including Cubazucar, Lord Wilber
force described the legal status of government instrumentalities
"State-controlled enterprises, with legal personality, ability to trade and to
enter into contracts of private law, though wholly subject to the control of
their state, are a well-known feature of the modern commercial scene
The distinction between them, and their governing state, may appear arfc
ficial but it is an accepted distinction m the law of England and other
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 627
611 Opinion of the Court
instrumentalities established as juridical entities distinct and
independent from their sovereign should normally be treated
as such
We find support for this conclusion in the legislative his-
tory of the FSIA During its deliberations, Congress clearly
expressed its intention that duly created instrumentalities of
a foreign state are to be accorded a presumption of independ-
ent status In its discussion of FSIA § 1610(b), the provision
dealing with the circumstances under which a judgment cred-
itor may execute upon the assets of an instrumentality of a
foreign government, the House Report states
"Section 1610(b) will not permit execution against the
property of one agency or instrumentality to satisfy a
states Quite different considerations apply to a state-controlled enter-
prise acting on government directions on the one hand, and a state, ex-
ercising sovereign functions, on the other " Id , at 258 (citation omitted)
Later in his opinion, Lord Wilberforce rejected the contention that com-
mercial transactions entered into by state-owned organizations could be
attributed to the Cuban Government "The status of these organisations
is familiar in our courts, and it has never been held that the relevant state
is in law answerable for their actions " Id , at 271 See also Trendtex
Trading Corp v Central Bank of Nigeria, [1977] Q B 529, in which the
Court of Appeal ruled that the Central Bank of Nigeria was not an "alter
ego or organ" of the Nigerian Government for the purpose of determining
whether it could assert sovereign immunity Id , at 559
InC CzamikowLtd v Rohmpex, [1979] A C 351, the House of Lords
affirmed a decision holding that Rohmpex, a Polish state trading enterprise
that sold Polish sugar overseas, could successfully assert a defense of force
mageure in an action for breach of a contract to sell sugar Rohmpex had
defended on the ground that the Polish Government had instituted a ban on
the foreign sale of Polish sugar Lord Wilberforce agreed with the conclu-
sion of the court below that, in the absence of "clear evidence and definite
findings" that the foreign government took the action "purely in order to
extricate a state enterprise from contractual liability," the enterprise can-
not be regarded as an organ of the state Rohmpex, he concluded, "is not
so closely connected with the government of Poland that it is precluded
from relying on the ban [on foreign sales] as government intervention
" Id, at 364
628 OCTOBER TERM, 1982
Opinion of the Court 462 rr
judgment against another, unrelated agency or instru
mentality There are compelling reasons for this If
U S law did not respect the separate juridical identities
of different agencies or instrumentalities, it might en
courage foreign jurisdictions to disregard the juridical
divisions between different U S corporations or be-
tween a U S corporation and its independent subsid
lary However, a court might find that property held
by one agency is really the property of another " H R
Rep No 94-1487, pp 29-30 (1976) (citation omitted)
Thus, the presumption that a foreign government's deter
nunation that its instrumentality is to be accorded separate
legal status is buttressed by this congressional determina
tion We next examine whether this presumption may be
overcome in certain circumstances
B
In discussing the legal status of private corporations,
courts in the United States 19 and abroad,20 have recognized
19 See 1 W Fletcher, Cyclopedia of the Law of Private Corporations §41
(rev perm ed 1983)
"[A] corporation will be looked upon as a legal entity as a general rule, and
until sufficient reason to the contrary appears, but, when the notion of legal
entity is used to defeat public convenience, justify wrong, protect fraud, or
defend crime, the law will regard the corporation as an association of
persons " Id , at 389 (footnote omitted)
See generally H Henn, Handbook of the Law of Corporations § 146 (2d ed
1970), I Wormser, Disregard of the Corporate Fiction and Allied Corpora
tion Problems 42-85 (1927)
20 In Case Concerning The Barcelona Traction, Light & Power Co , 1970
I C J 3, the International Court of Justice acknowledged that, as a
matter of international law, the separate status of an incorporated entity
may be disregarded in certain exceptional circumstances
"Forms of incorporation and their legal personality have sometimes not
been employed for the sole purposes they were originally intended to
serve, sometimes the corporate entity has been unable to protect the rights
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 629
0-Q Opinion of the Court
that an incorporated entity — described by Chief Justice Mar-
shall as "an artificial being, invisible, intangible, and existing
only in contemplation of law"21 — is not to be regarded as
legally separate from its owners in all circumstances Thus,
where a corporate entity is so extensively controlled by its
owner that a relationship of principal and agent is created,
we have held that one may be held liable for the actions of the
other See NLRB v Deena Artware, Inc , 361 U S 398,
402-404 (1960) In addition, our cases have long recognized
"the broader equitable principle that the doctrine of cor-
porate entity, recognized generally and for most purposes,
will not be regarded when to do so would work fraud or
injustice " Taylor v Standard Gas Co , 306 U S 307, 322
(1939) See Pepper v Litton, 308 U S 295, 310 (1939) In
of those who entrusted their financial resources to it, thus inevitably there
have arisen dangers of abuse, as in the case of many other institutions of
law Here, then, as elsewhere, the law, confronted with economic reali
ties, has had to provide protective measures and remedies in the interests
of those within the corporate entity as well as of those outside who have
dealings with it the law has recognized that the independent existence of
the legal entity cannot be treated as an absolute It is in this context that
the process of 'lifting the corporate veil' or 'disregarding the legal entity'
has been found justified and equitable in certain circumstances or for cer
tain purposes The wealth of practice already accumulated on the subject
in municipal law indicates that the veil is lifted, for instance, to prevent the
misuse of the privileges of legal personality, as in certain cases of fraud or
malfeasance, to protect third persons such as a creditor or purchaser, or to
prevent the evasion of legal requirements or of obligations
"In accordance with the principle expounded above, the process of lifting
the veil, being an exceptional one admitted by municipal law in respect of
an institution of its own making, is equally admissible to play a similar role
m international law " Id , at 38-39
On the application of these principles by European courts, see Conn &
Simitis, "Lifting the Veil" in the Company Laws of the European Conti
nent, 12 Int'l & Comp L Q 189 (1963), Hadari, The Structure of the Pri-
vate Multinational Enterprise, 71 Mich L Rev 729, 771, n 260 (1973)
21 Trustees of Dartmouth College v Woodward, 4 Wheat 518, 636 (1819)
630 OCTOBER TERM, 1982
Opinion of the Court 452 U S
particular, the Court has consistently refused to give effect
to the corporate form where it is interposed to defeat legis
lative policies E g , Anderson v Abbott, 321 U S , at
362-363 And in Bangor Punta Operations, Inc v Bangor
& Aroostook R Co , 417 U S 703 (1974), we concluded
"Although a corporation and its shareholders are deemed
separate entities for most purposes, the corporate form
may be disregarded in the interests of justice where it is
used to defeat an overriding public policy [W]here
equity would preclude the shareholders from maintain-
ing an action in their own right, the corporation would
also be precluded [T]he principal beneficiary of any
recovery and itself estopped from complaining of peti-
tioners' alleged wrongs, cannot avoid the command of
equity through the guise of proceeding in the name of
corporations which it owns and controls " Id , at
713 (citations omitted)
We conclude today that similar equitable principles must
be applied here In National City Bank v Republic of
China, 348 U S 356 (1955), the Court ruled that when a for-
eign sovereign asserts a claim in a United States court, "the
consideration of fair dealing" bars the state from asserting a
defense of sovereign immunity to defeat a setoff or counter-
claim Id , at 365 See 28 U S C § 1607(e) As a general
matter, therefore, the Cuban Government could not bring
suit in a United States court without also subjecting itself to
its adversary's counterclaim Here there is apparently no
dispute that, as the District Court found, and the Court of
Appeals apparently agreed, see 658 F 2d, at 916, n 4, 'the
devolution of [Bancec's] claim, however viewed, brings it
into the hands of the Ministry [of Foreign Trade], or Banco
Nacional," each a party that may be held liable for the expro-
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 631
61i Opinion of the Court
priation of Citibank's assets 505 F Supp , at 425 * See
Banco Nacional de Cuba v First National City Bank, 478
F 2d, at 194 Bancec was dissolved even before Citibank
filed its answer in this case, apparently in order to effect "the
consolidation and operation of the economic and social con-
quests of the Revolution," particularly the nationalization of
the banks ordered by Law No 891 ffl Thus, the Cuban Gov-
ernment and Banco Nacional, not any third parties that may
22 Pointing to the parties' failure to seek findings of fact in the District
Court concerning Bancec's dissolution and its aftermath, Bancec contends
that the District Court's order denying its motion to substitute Cubazucar
as plaintiff precludes further consideration of the effect of the dissolution
While it is true that the District Court did not hear evidence concerning
which agency or instrumentality of the Cuban Government, under Cuban
law, succeeded to Bancec's claim against Citibank on the letter of credit,
resolution of that question has no bearing on our inquiry We rely only on
the fact that Bancec was dissolved by the Cuban Government and its assets
transferred to entities that may be held liable on Citibank's counter-
claim— undisputed facts readily ascertamable from the statutes and orders
offered in the District Court by Bancec in support of its motion to substi-
tute Cubazucar
23 Law No 930, the law dissolving Bancec, contains the following
recitations
'WHEREAS, the measures adopted by the Revolutionary Government
in pursuance of the Program of the Revolution have resulted, within a
short time, in profound social changes and considerable institutional trans-
formations of the national economy
'WHEREAS, among these institutional transformations there is one
which is specially significant due to its transcendence in the economic and
financial fields, which is the nationalization of the banks ordered by Law
No 891, of October 13, 1960, by virtue of which the banking functions will
hereafter be the exclusive province of the Cuban Government
"WHEREAS, the consolidation and the operation of the economic and
social conquests of the Revolution require the restructuration into a sole
and centralized banking system, operated by the State, constituted by the
[Banco Nacional], which will foster the development and stimulation of all
productive activities of the Nation through the accumulation of the finan-
cial resources thereof, and their most economic and reasonable utilization "
App to Pet for Cert 14d-15d
632 OCTOBER TERM, 1982
Opinion of the Court 462 U S
have relied on Bancec's separate juridical identity, would be
the only beneficiaries of any recovery 24
In our view, this situation is similar to that in the Republic
of China case
"We have a foreign government invoking our law but
resisting a claim against it which fairly would curtail
its recovery It wants our law, like any other litigant,
but it wants our law free from the claims of justice "
348 U S , at 361-362 (footnote omitted) 25
Giving effect to Bancec's separate juridical status in these
circumstances, even though it has long been dissolved, would
permit the real beneficiary of such an action, the Government
of the Republic of Cuba, to obtain relief in our courts that it
could not obtain in its own right without waiving its sover-
eign immunity and answering for the seizure of Citibank's
assets — a seizure previously held by the Court of Appeals
to have violated international law 26 We decline to adhere
blindly to the corporate form where doing so would cause
such an injustice See Bangor Punta Operations, Inc v
Bangor & Aroostook R Co , supra, at 713
Respondent contends, however, that the transfer of
Bancec's assets from the Ministry of Foreign Trade or Banco
Nacional to Empresa and Cubazucar effectively insulates it
24 The parties agree that, under the Cuban Assets Control Regulations,
31 CFR pt 515 (1982), any judgment entered in favor of an instrumentality
of the Cuban Government would be frozen pending settlement of claims
between the United States and Cuba
26 See also First National City Bank v Banco Nacional de Cuba, 406
U S , at 770-773 (Douglas, J , concurring in result), Federal Republic of
Germany v Elicofon, 358 F Supp 747 (EDNY 1972), aff 'd, 478 F 2d 231
(CA2 1973), cert denied, 415 U S 931 (1974) In Ehcofon, the District
Court held that a separate juridical entity of a foreign state not recognized
by the United States may not appear in a United States court A contrary
holding, the court reasoned, "would permit non-recognized governments to
use our courts at will by creating 'juridical entities' whenever the need
arises " 358 F Supp , at 757
26 See Banco /, 478 F 2d, at 194
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 633
£, i Opinion of the Court
from Citibank's counterclaim We disagree Having dis-
solved Bancec and transferred its assets to entities that may
be held liable on Citibank's counterclaim, Cuba cannot escape
liability for acts in violation of international law simply by
retransfemng the assets to separate juridical entities To
hold otherwise would permit governments to avoid the re-
quirements of international law simply by creating juridical
entities whenever the need arises Cf Federal Republic of
Germany v Elicofon, 358 F Supp 747, 757 (EDNY 1972),
aff'd, 478 F 2d 231 (CA2 1973), cert denied, 415 U S 931
(1974) See n 25, supra We therefore hold that Citibank
may set off the value of its assets seized by the Cuban
Government against the amount sought by Bancec
IV
Our decision today announces no mechanical formula for
determining the circumstances under which the normally
separate juridical status of a government instrumentality is
to be disregarded 2T Instead, it is the product of the ap-
plication of internationally recognized equitable principles
to avoid the injustice that would result from permitting a
27 The District Court adopted, and both Citibank and the Solicitor Gen-
eral urge upon the Court, a standard in which the determination whether
or not to give effect to the separate juridical status of a government instru-
mentality turns m part on whether the instrumentality in question per-
formed a "governmental function " We decline to adopt such a standard in
this case, as our decision is based on other grounds We do observe that
the concept of a "usual" or a "proper" governmental function changes over
tune and varies from nation to nation Cf New York v United States, 326
U S 572, 580 (1946) (opinion of Frankfurter, J ) ("To rest the federal
taxing power on what is 'normally' conducted by private enterprise in con-
tradiction to the 'usual' governmental functions is too shifting a basis for
determining constitutional power and too entangled in expediency to serve
as a dependable legal criterion"), id , at 586 (Stone, C J , concurring), id ,
at 591 (Douglas, J , dissenting) See also Friedmann, The Legal Status
and Organization of the Public Corporation, 16 Law & Contemp Prob 576,
589-591 (1951)
634 OCTOBER TERM, 1982
Opinion of STEVENS, J 462 U s
foreign state to reap the benefits of our courts while avoiding
the obligations of international law ^
The District Court determined that the value of Citibank's
Cuban assets exceeded Bancec's claim Bancec challenged
this determination on appeal, but the Court of Appeals did
not reach the question It therefore remains open on re
mand The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent
with this opinion
It is so ordered
JUSTICE STEVENS, with whom JUSTICE BRENNAN and
JUSTICE BLACKMUN join, concurring in part and dissenting
in part
Today the Court correctly rejects the contention that
American courts should readily "pierce the corporate veils"
of separate juridical entities established by foreign govern
ments to perform governmental functions Accordingly, I
join Parts I, II, III-A, and III— B of the Court's opinion
But I respectfully dissent from Part III-C, in which the
Court endeavors to apply the general principles it has enunci-
ated Instead I would vacate the judgment and remand the
case to the Court of Appeals for further proceedings
As the Court acknowledges, the evidence presented to the
District Court did not focus on the factual issue that the
Court now determines to be dispositive Only a single wit
ness testified on matters relating to Bancec's legal status and
operational autonomy The record before the District Court
also included English translations of various Cuban statutes
and resolutions, but there was no expert testimony on the
28 Bancec does not suggest, and we do not believe, that the act of state
doctrine, see, e g , Banco Nacional de Cuba v Sabbat^no, 376 U S 398
(1964), precludes this Court from determining whether Citibank may set
off the value of its seized Cuban assets against Bancec's claim Bancec
does contend that the doctrine prohibits this Court from inquiring into the
motives of the Cuban Government for incorporating Bancec Brief for
Respondent 16-18 We need not reach this contention, however, because
our conclusion does not rest on any such assessment
FIRST NAT CITY BANK v BANCO PARA EL COMERCIO 635
611 Opinion of STEVENS, J
significance of those foreign legal documerts Finally, as the
Court notes, the record includes a July 1961 stipulation of the
parties and a May 1975 affidavit by counsel for respondent
Ante, Sit 616-617, n 3 It is clear to me that the materials of
record that have been made available to this Court are not
sufficient to enable us to determine the rights of the parties
The Court relies heavily on the District Court's statement
that "the devolution of [Bancec's] claim, however viewed,
brings it into the hands of the Ministry [of Foreign Trade], or
Banco Nacional " But that statement should not be given
dispositive significance, for the District Court made no in-
quiry into the capacity in which either entity might have
taken Bancec's claim If the Ministry of Foreign Trade held
the claim on its own account, arguably the Cuban Govern-
ment could be subject to Citibank's setoff But it is clear
that the Ministry held the claim for six days at most, during
the interval between the promulgation of Laws No 930 and
No 934 on February 23, 1961, and the issuance of Resolution
No 1 on March 1 It is thus possible that these legal docu-
ments reflected a single, integrated plan of corporate reorga-
nization carried out over a 6-day period, which resulted in the
vesting of specified assets of Bancec in a new, juridically
autonomous corporation, Empresa l Respondent argues
'Law No 930 provided, in part, that Bancec's "trade functions will be
assumed by the foreign trade enterprises or houses of the Ministry of For-
eign Trade," App to Pet for Cert 16d, App 104 Law No 934, cor-
respondingly, stated "All the functions of a mercantile character hereto-
fore assigned to said Foreign Trade Bank of Cuba are hereby transferred
and vested in the foreign trade enterprises or houses set up hereunder,
which are subrogated to the rights and obligations of said former Bank in
pursuance of the assignment of those functions ordered by the Minister "
App to Pet for Cert 24d The preamble of Resolution No 1 of 1961,
issued on March 1, 1961, explained that Law No 934 had provided "that all
functions of a commercial nature that were assigned to the former Cuban
Bank for Foreign Trade are attributed to the enterprises or foreign trade
houses which are subrogated in the rights and obligations of said Bank "
Nothing in the affidavit filed by respondent in May 1975 elucidates the pre-
cise nature of these transactions, or explains how Bancec's former trading
functions were exercised during the 6 day interval App 132-137
636 OCTOBER TERM, 1982
Opinion of STEVENS, J 462 TJ n
that the Ministry played the role of a trustee, "entrusted and
legally bound to transfer Bancec's assets to the new empresa
[foreign trade enterprise] The Republic having acted as
a trustee, there could be no counterclaim based upon its acts
in an individual capacity " Brief for Respondent 57
Of course, the Court may have reached a correct assess-
ment of the transactions at issue But I continue to believe
that the Court should not decide factual issues that can be
resolved more accurately and effectively by other federal
judges, particularly when the record presented to this Court
is so sparse and umnformative 2
2 Nor do I agree that a contrary result "would cause such an injustice "
Ante, at 632 Petitioner is only one of many American citizens whose
property was nationalized by the Cuban Government It seeks to mini
mize its losses by retaining $193,280 30 that a purchaser of Cuban sugar
had deposited with it for the purpose of paying for the merchandise, which
was delivered in due course Having won this lawsuit, petitioner will sun
ply retain that money If petitioner's contentions in this case had been
rejected, the money would be placed in a fund comprised of frozen Cuban
assets, to be distributed equitably among all the American victims of
Cuban nationalizations Ante, at 632, n 24 Even though petitioner has
suffered a serious injustice at the hands of the Cuban Government, no spe-
cial equities militate in favor of giving this petitioner a preference over all
other victims simply because of its participation in a discrete, completed,
commercial transaction involving the sale of a load of Cuban sugar
FLORIDA v CASAL 637
Per Curiam
FLORIDA v CASAL ET AL
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No 81-2318 Argued February 23, 1983 — Decided June 17, 1983
Certiorari dismissed Reported below 410 So 2d 152
Carolyn M Snurkowski, Assistant Attorney General of
Florida, argued the cause for petitioner With her on the
briefs was Jim Smith, Attorney General
Arthur F McCormick argued the cause and filed a brief
for respondents
PER CURIAM
The writ is dismissed as improvidently granted, it appear-
ing that the judgment of the court below rested on independ-
ent and adequate state grounds
CHIEF JUSTICE BURGER, concurring
The Court today concludes that the Florida Supreme Court
relied on independent and adequate state grounds when it
affirmed the suppression of over 100 pounds of marihuana
discovered aboard a fishing vessel — the evidence upon which
respondents' convictions for possession and importation of
marihuana were based The Florida Supreme Court did not
expressly declare that its holding rested on state grounds,
and the principal state case cited for the probable-cause
standard, Florida v Smith, 233 So 2d 396 (1970), is based
entirely upon this Court's interpretation of the Fourth
Amendment of the Federal Constitution I write not to
challenge today's determination that the state court relied on
independent and adequate state grounds, however, but
rather to emphasize that this Court has decided that Florida
law, and not federal law or any decision of this Court, is
responsible for the untoward result in this case
638 OCTOBER TERM, 1982
BURGER, C J , concurring 452 u g
The two bases of state law upon which the Florida
Supreme Court appears to have relied are Art I, § 12, of the
State Constitution and Fla Stat §371 58 (1977), currently
codified at Pla Stat §327 56 (1981) Article I, §12, of the
Florida Constitution is similar to the Fourth Amendment of
the Federal Constitution I question that anything in the
language of either the Fourth Amendment of the United
States Constitution or Art I, § 12, of the Florida Constitu-
tion required suppression of the drugs as evidence How-
ever, the Florida Supreme Court apparently concluded that
state law required suppression of the evidence, independent
of the Fourth Amendment of the United States Constitution
The people of Florida have since shown acute awareness of
the means to prevent such inconsistent interpretations of the
two constitutional provisions In the general election of
November 2, 1982, the people of Florida amended Art I,
§ 12, of the State Constitution That section now provides
"This right shall be construed in conformity with the 4th
Amendment to the United States Constitution, as inter-
preted by the United States Supreme Court Articles
or information obtained in violation of this right shall not
be admissible in evidence if such articles or information
would be inadmissible under decisions of the United
States Supreme Court construing the 4th Amendment to
the United States Constitution "
As amended, that section ensures that the Florida courts will
no longer be able to rely on the State Constitution to sup-
press evidence that would be admissible under the decisions
of the Supreme Court of the United States
In requiring suppression of the evidence, the Florida
Supreme Court also may have been relying upon Fla Stat
§37158 (1977), currently codified at Fla Stat §32756
(1981) That statute permits a state marine patrol officer to
board a vessel for a safety inspection only if there is consent
FLORIDA v CASAL 639
^ BURGER, C J , concurring
or probable cause to believe a crime is being committed *
The Florida Legislature enacted that statute, and the people
of Florida and their representatives have full responsibility
for the burden it places on the State's law enforcement
officers
With our dual system of state and federal laws, adminis-
tered by parallel state and federal courts, different standards
may arise in various areas But when state courts interpret
state law to require more than the Federal Constitution re-
quires, the citizens of the state must be aware that they have
the power to amend state law to ensure rational law enforce-
ment The people of Florida have now done so with respect
to Art I, § 12, of the State Constitution, they have it within
their power to do so with respect to Fla Stat § 327 56 (1981)
*In contrast, 19 U S C § 1581(a) provides "Any officer of the cus-
toms may at any time go on board of any vessel at any place m the
United States or within the customs waters and examine, inspect, and
search the vessel and every part thereof " See United States v
Villamonte Marquez, ante, p 579
640 OCTOBER TERM, 1982
Syllabus 462 y s
ILLINOIS v LAFAYETTE
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT '
No 81-1859 Argued April 20, 1983— Decided June 20, 1983
After respondent was arrested for disturbing the peace, he was taken to
the police station There, without obtaining a warrant and in the proc
ess of booking him and inventorying his possessions, the police removed
the contents of a shoulder bag respondent had been carrying and found
amphetamine pills Respondent was subsequently charged with violat
mg the Illinois Controlled Substances Act, and at a pretrial hearing the
trial court ordered suppression of the pills The Illinois Appellate Court
affirmed, holding that the shoulder bag search did not constitute a valid
search incident to a lawful arrest or a valid inventory search of respond
ent's belongings
Held The search of respondent's shoulder bag was a valid inventory
search Pp 643-648
(a) Consistent with the Fourth Amendment, it is reasonable for police
to search the personal effects of a person under lawful arrest as part of
the routine administrative procedure at a police station incident to book
ing and jailing the suspect The justification for such searches does not
rest on probable cause, and hence the absence of a warrant is immaterial
to the reasonableness of the search Here, every consideration of
orderly police administration — protection of a suspect's property, deter
rence of false claims of theft against the police, security, and identifica
tion of the suspect — benefiting both the police and the public points
toward the appropriateness of the examination of respondent's shoulder
bag Pp 643-647
(b) The fact that the protection of the public and of respondent's prop
erty might have been achieved by less intrusive means does not, in itself,
render the search unreasonable Even if some less intrusive means ex-
isted, it would be unreasonable to expect police officers in the everyday
course of business to make fine and subtle distinctions in deciding which
containers or items may be searched, and which must be sealed without
examination as a unit Pp 647-648
99 111 App 3d 830, 425 N E 2d 1883, reversed and remanded
BURGER, C J , delivered the opinion of the Court, in which WHITE,
BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ , joined
MARSHALL, J , filed an opinion concurring in the judgment, in which
BRENNAN, J , joined, post, p 649
ILLINOIS^ LAFAYETTE 641
g40 Opinion of the Court
Michael A Ficaro, Assistant Attorney General of Illinois,
argued the cause for petitioner With him on the briefs were
Neil F Hartigan, Attorney General, Tyrone C Fahner, for-
mer Attorney General, Paul P Biebel, Jr , First Assistant
Attorney General, and Steven F Molo, Assistant Attorney
General
Peter A Carusona argued the cause for respondent
With him on the brief were Robert Agostinelh and Frank
W Ralph *
CHIEF JUSTICE BURGER delivered the opinion of the
Court
The question presented is whether, at the time an arrested
person arrives at a police station, the police may, without
obtaining a warrant, search a shoulder bag carried by that
person
I
On September 1, 1980, at about 10 p m , Officer Maurice
Mietzner of the Kankakee City Police arrived at the Town
Cinema in Kankakee, 111 , in response to a call about a dis-
turbance There he found respondent involved in an alterca-
tion with the theater manager He arrested respondent for
disturbing the peace, handcuffed him, and took him to the
police station Respondent carried a purse-type shoulder
bag on the trip to the station
At the police station respondent was taken to the booking
room, there, Officer Mietzner removed the handcuffs from
respondent and ordered him to empty his pockets and place
*Briefs of amici cunae urging reversal were filed by Solicitor Gen-
eral Lee, Assistant Attorney General Jensen, Deputy Solicitor General
Frey, and Elliott Schulder for the United States, and by Fred E Inbau,
Wayne W Schmidt, James P Manak, Howard G Bemnger, Richard J
Brzeczek, David Crump, Courtney A Evans, Daniel B Hales, James A
Murphy, and Evelle J Younger for the Chicago Police Department et al
Qum Denmr and George L Schraer filed a brief for the California State
Public Defender as amicus curiae urging affirmance
642 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the contents on the counter After doing so, respondent
took a package of cigarettes from his shoulder bag and placed
the bag on the counter Mietzner then removed the contents
of the bag, and found 10 amphetamine pills inside the plastic
wrap of a cigarette package
Respondent was subsequently charged with violating
§ 402(b) of the Illinois Controlled Substances Act, 111 Rev
Stat , ch 56/2, H1402(b) (1981), on the basis of the controlled
substances found in his shoulder bag A pretnal suppression
hearing was held at which the State argued that the search of
the shoulder bag was a valid inventory search under South
Dakota v Opperman, 428 U S 364 (1976) Officer Mietz-
ner testified that he examined the bag's contents because it
was standard procedure to inventory "everything" in the pos-
session of an arrested person App 15, 16 He testified
that he was not seeking and did not expect to find drugs or
weapons when he searched the bag, and he conceded that the
shoulder bag was small enough that it could have been placed
and sealed in a bag, container, or locker for protective pur-
poses Id , at 15 After the hearing, but before any ruing,
the State submitted a brief in which it argued for the first
time that the search was valid as a delayed search incident to
arrest Thereafter, the trial court ordered the suppression
of the amphetamine pills Id , at 22
On appeal, the Illinois Appellate Court affirmed 99 111
App 3d 830, 425 N E 2d 1383 (3d Dist 1981) It first held
that the State had waived the argument that the search was
incident to a valid arrest by failing to raise that argument at
the suppression hearing Id , at 832, 425 N E 2d, at 1385
However, the court went on to discuss and reject the State's
argument "[E]ven assuming, arguendo, that the State has
not waived this argument, the stationhouse search of the
shoulder bag did not constitute a valid search incident to a
lawful arrest " Id , at 833, 425 N E 2d, at 1385
The state court also held that the search was not a vahd
inventory of respondent's belongings It purported to dis-
ILLINOIS v LAFAYETTE 643
40 Opinion of the Court
inguish South Dakota v Opperman, supra, on the basis that
here is a greater privacy interest m a purse-type shoulder
>ag than in an automobile, and that the State's legitimate m-
erests could have been met in a less intrusive manner, by
sealing [the shoulder bag] within a plastic bag or box and
ilacing it in a secured locker " 99 111 App 3d, at 834-835,
25 N E 2d, at 1386 The Illinois court concluded
"Therefore, the postponed warrantless search of the
[respondent's] shoulder bag was neither incident to his
lawful arrest nor a valid inventory of his belongings, and
thus, violated the fourth amendment " Id , at 835, 425
N E 2d, at 1386
The Illinois Supreme Court denied discretionary review
Lpp to Pet for Cert Ib We granted certiorari, 459 U S
S6 (1982), because of the frequency with which this ques-
ion confronts police and courts, and we reverse
II
The question here is whether, consistent with the Fourth
Amendment, it is reasonable for police to search the personal
ffects of a person under lawful arrest as part of the routine
dmimstrative procedure at a police station house incident to
looking and jailing the suspect The justification for such
earches does not rest on probable cause, and hence the ab-
ence of a warrant is immaterial to the reasonableness of the
earch Indeed, we have previously established that the
nventory search constitutes a well-defined exception to
he warrant requirement See South Dakota v Opperman,
upra The Illinois court and respondent rely on United
Hates v Chadwick, 433 U S 1 (1977), and Arkansas v
landers, 442 U S 753 (1979), in the former, we noted that
probable cause to search is irrelevant" in inventory searches
md went on to state
"This is so because the salutary functions of a warrant
simply have no application in that context, the constitu-
644 OCTOBER TERM, 1982
Opinion of the Court 462 u g
tional reasonableness of inventory searches must be de
terrmned on other bases " 433 U S , at 10, n 51
A so-called inventory search is not an independent legal con
cept but rather an incidental administrative step following
arrest and preceding incarceration To determine whether
the search of respondent's shoulder bag was unreasonable
we must "balanc[e] its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate
governmental interests " Delaware v Prouse, 440 U S
648, 654 (1979)
In order to see an inventory search in proper perspective,
it is necessary to study the evolution of interests along the
continuum from arrest to incarceration We have held that
immediately upon arrest an officer may lawfully search the
person of an arrestee, Umted States v Robinson, 414 U S
218 (1973), he may also search the area within the arrestee's
immediate control, Chimel v California, 395 U S 752
(1969) We explained the basis for this doctrine in United
States v Robinson, supra, where we said
"A police officer's determination as to how and where to
search the person of a suspect whom he has arrested is
necessarily a quick ad hoc judgment which the Fourth
Amendment does not require to be broken down in each
instance into an analysis of each step in the search The
authority to search the person incident to a lawful custo-
dial arrest, while based upon the need to disarm and to
discover evidence, does not depend on what a court may
later decide was the probability in a particular arrest
1 See also United States v Edwards, 415 U S 800 (1974) In that case
we addressed Cooper v California, 386 U S 58 (1967), where the Court
sustained a warrantless search of an automobile that occurred a week after
its owner had been arrested We explained Cooper in the following man
ner "It was no answer to say that the police could have obtained a search
warrant, for the Court held the test to be, not whether it was reasonable to
procure a search warrant, but whether the search itself was reasonable,
which it was " 415 U S , at 807 (emphasis added)
ILLINOIS *; LAFAYETTE 645
g40 Opinion of the Court
situation that weapons or evidence would in fact be
found upon the person of the suspect A custodial ar-
rest of a suspect based on probable cause is a reasonable
intrusion under the Fourth Amendment, that intrusion
being lawful, a search incident to the arrest requires no
additional justification It is the fact of the lawful arrest
which establishes the authority to search, and we hold
that in the case of a lawful custodial arrest a full search
of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a
'reasonable' search under that Amendment " 414 U S ,
at 235 (emphasis added)
An arrested person is not invariably taken to a police sta-
tion or confined, if an arrestee is taken to the police station,
that is no more than a continuation of the custody inherent
in the arrest status Nonetheless, the factors justifying a
search of the person and personal effects of an arrestee upon
reaching a police station but prior to being placed in confine-
ment are somewhat different from the factors justifying an
immediate search at the time and place of arrest
The governmental interests underlying a station-house
search of the arrestee's person and possessions may in
some circumstances be even greater than those supporting
a search immediately following arrest Consequently, the
scope of a station-house search will often vary from that
made at the time of arrest Police conduct that would be im-
practical or unreasonable — or embarrassingly intrusive — on
the street can more readily — and privately — be performed at
the station For example, the interests supporting a search
incident to arrest would hardly justify disrobing an arrestee
on the street, but the practical necessities of routine jail
administration may even justify taking a prisoner's clothes
before confining him, although that step would be rare This
was made clear in United States v Edwards, 415 U S 800,
804 (1974) 'With or without probable cause, the authorities
were entitled [at the station house] not only to search [the
646 OCTOBER TERM, 1982
Opinion of the Court 462 U a
arrestee's] clothing but also to take it from him and keep it in
official custody "2
At the station house, it is entirely proper for police to re
move and list or inventory property found on the person or m
the possession of an arrested person who is to be jailed A
range of governmental interests supports an inventory proc-
ess It is not unheard of for persons employed in police ac
tivities to steal property taken from arrested persons, sum
larly, arrested persons have been known to make false claims
regarding what was taken from their possession at the sta
tion house A standardized procedure for making a list or
inventory as soon as reasonable after reaching the station
house not only deters false claims but also inhibits theft or
careless handling of articles taken from the arrested person
Arrested persons have also been known to injure them
selves — or others — with belts, knives, drugs, or other items
on their person while being detained Dangerous instru
mentalities — such as razor blades, bombs, or weapons — can
be concealed in innocent-looking articles taken from the
arrestee's possession The bare recital of these mundane re-
alities justifies reasonable measures by police to limit these
risks — either while the items are in police possession or at
the time they are returned to the arrestee upon his release
Examining all the items removed from the arrestee's per
son or possession and listing or inventorying them is an en
tirely reasonable administrative procedure It is immaterial
whether the police actually fear any particular package or
container, the need to protect against such risks arises inde-
pendently of a particular officer's subjective concerns See
United States v Robinson, supra, at 235 Finally, inspec
tion of an arrestee's personal property may assist the police
in ascertaining or verifying his identity See 2 W LaFave,
Search and Seizure § 5 3, pp 306-307 (1978) In short,
2 We were not addressing m Edwards, and do not discuss here, the or
cumstances in which a strip search of an arrestee may or may not be
appropriate
ILLINOIS?; LAFAYETTE 647
540 Opinion of the Court
every consideration of orderly pohce administration benefit-
ing both pohce and the public points toward the appropriate-
ness of the examination of respondent's shoulder bag prior to
his incarceration
Our prior cases amply support this conclusion In South
Dakota v Opperman, 428 U S 364 (1976), we upheld a
search of the contents of the glove compartment of an aban-
doned automobile lawfully impounded by the pohce We
held that the search was reasonable because it served legiti-
mate governmental interests that outweighed the individ-
ual's privacy interests in the contents of his car Those
measures protected the owner's property while it was in the
custody of the pohce and protected pohce against possible
false claims of theft We found no need to consider the exist-
ence of less intrusive means of protecting the pohce and the
property in their custody — such as locking the car and
impounding it m safe storage under guard Similarly,
standardized inventory procedures are appropriate to serve
legitimate governmental interests at stake here
The Illinois court held that the search of respondent's
shoulder bag was unreasonable because "preservation of the
defendant's property and protection of pohce from claims of
lost or stolen property, 'could have been achieved in a less
intrusive manner ' For example, the defendant's shoul-
der bag could easily have been secured by sealing it within
a plastic bag or box and placing it in a secured locker "
99 111 App 3d, at 835, 425 N E 2d, at 1386 (citation
omitted) Perhaps so, but the real question is not what
"could have been achieved," but whether the Fourth Amend-
ment requires such steps, it is not our function to write a
manual on administering routine, neutral procedures of the
station house Our role is to assure against violations of
the Constitution
The reasonableness of any particular governmental activ-
ity does not necessarily or invariably turn on the existence of
alternative "less intrusive" means In Cady v Dombrowski,
413 U S 433 (1973), for example, we upheld the search of
648 OCTOBER TERM, 1982
Opinion of the Court 452 u g
the trunk of a car to find a revolver suspected of being there
We rejected the contention that the public could equally well
have been protected by the posting of a guard over the auto-
mobile In language equally applicable to this case, we held,
"[t]he fact that the protection of the public might, in the ath
stract, have been accomplished by less intrusive' means does
not, by itself, render the search unreasonable " Id , at 447
See also United States v Martmez-Fuerte, 428 U S 543,
557, n 12 (1976) We are hardly in a position to second-
guess police departments as to what practical administrative
method will best deter theft by and false claims against its
employees and preserve the security of the station house It
is evident that a station-house search of every item carried
on or by a person who has lawfully been taken into custody
by the police will amply serve the important and legitimate
governmental interests involved
Even if less intrusive means existed of protecting some
particular types of property, it would be unreasonable to
expect police officers in the everyday course of business to
make fine and subtle distinctions in deciding which containers
or items may be searched and which must be sealed as a unit
Only recently in New York v Belton, 453 U S 454 (1981),
we stated that " '[a] single familiar standard is essential to
guide police officers, who have only limited time and exper-
tise to reflect on and balance the social and individual inter-
ests involved in the specific circumstances they confront IW
Id , at 458, quoting Dunaway v New York, 442 U S 200,
213-214 (1979) See also United States v Ross, 456 U S
798, 821 (1982)
Applying these principles, we hold that it is not "unreason
able" for police, as part of the routine procedure incident to
incarcerating an arrested person, to search any container
or article in his possession, in accordance with established
inventory procedures 3
8 The record is unclear as to whether respondent was to have been incar-
cerated after being booked for disturbing the peace That is an appropn
ate inquiry on remand
ILLINOIS v LAFAYETTE 649
640 MARSHALL, J , concurring in judgment
The judgment of the Illinois Appellate Court is reversed,
and the case is remanded for proceedings not inconsistent
with this opinion
It is so ordered
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
concurring in the judgment
I agree that the police do not need a warrant or probable
cause to conduct an inventory search prior to incarcerating a
suspect, and I therefore concur in the judgment The practi-
cal necessities of securing persons and property in a jailhouse
setting justify an inventory search as part of the standard
procedure incident to incarceration
A very different case would be presented if the State had
rehed solely on the fact of arrest to justify the search of re-
spondent's shoulder bag A warrantless search incident to
arrest must be justified by a need to remove weapons or pre-
vent the destruction of evidence See United States v Rob-
inson, 414 U S 218, 251 (1973) (MARSHALL, J , dissenting),
Chimel v California, 395 U S 752, 763 (1969), United
States v Rabinowitz, 339 U S 56, 72 (1950) (Frankfurter,
J , dissenting) Officer Mietzner did not in fact deem it nec-
essary to search the bag when he arrested respondent, and I
seriously doubt that such a search would have been lawful
A search at the time of respondent's arrest could not have
been justified by a need to prevent the destruction of evi-
dence, for there is no evidence or fruits of the offense —
disturbing the peace — of which respondent was suspected
Moreover, although a concern about weapons might have
justified seizure of the bag, such a concern could not have
justified the further step of searching the bag following its
seizure Cf United States v Chadwick, 433 U S 1, 15
(1977), id , at 17, and n 2 (BRENNAN, J , concurring)
650 OCTOBER TERM, 1982
Syllabus 462 u g
CHARDON ET AL v FUMERO SOTO ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No 82-271 Argued March 23, 1983— Decided June 20, 1983
After petitioner Puerto Rican educational officials had demoted respondent
school employees and shortly before Puerto Rico's 1 year statute of kmi
tations would have expired, a class action was filed in Federal District
Court against petitioners on behalf of respondents, asserting claims
under 42 U S C § 1983 arising out of the demotions Subsequently,
the District Court denied class certification on the ground that the class
was insufficiently numerous Respondents then filed individual actions
under § 1983 asserting the same claims that had been asserted on their
behalf m the class action Each of the individual actions was filed more
than one year after the claims accrued, even excluding the period during
which the class action was pending, but less than one year after the de-
nial of class certification The individual actions were consolidated,
and the District Court entered judgment on the merits for respondents
The Court of Appeals, while modifying the remedy in some respects, re-
jected petitioners' argument that respondents' claims were barred by the
statute of limitations Because there was no federal statute of limita
tions applicable to § 1983 claims, the court looked to Puerto Rican law to
determine what the limitations period was, whether that period was
tolled, and the effect of the tolling The court concluded that, as a mat
ter of Puerto Rican law, the statute of limitations was tolled as to the
unnamed plaintiffs during the pendency of the class action, and that the
statute of limitations began to run anew when the tolling ceased upon the
denial of class certification
Held Respondents* individual actions were timely The parties agree
that the limitations period was tolled during the pendency of the class
action The Court of Appeals correctly held that the limitations period
began to run anew after the denial of class certification, as provided by
Puerto Rican law American Pipe & Construction Co v Utah, 414
U S 538 — which held that certain federal antitrust treble damages
claims were not time-barred under the statute of limitations prescribed
in the Clayton Act because the statute had been suspended during the
pendency of a related class action — did not establish a uniform federal
rule of decision that mandates suspension rather than renewal whenever
a federal class action tolls a statute of limitations In that case, a par
ticular federal statute provided the basis for deciding that the tolling had
CHARDON v FUMERO SOTO 651
550 Opinion of the Court
the effect of suspending the limitations period No question of state law
was presented In a § 1983 action, however, Congress in 42 U S C
§ 1988 has specifically directed the courts, in the absence of controlling
federal law, to apply state statutes of limitations and state tolling rules
unless they are "inconsistent with the Constitution and laws of the
United States " Here, the Court of Appeals turned to Puerto Rican law
to determine the tolling effect of the class action Its decision on this
issue is consistent with the rationale of both American Pipe and Board of
Regents v Tomamo, 446 U S 478, where it was held that a § 1983 claim
was barred by New York's statute of limitations, because New York law
did not provide for tolling of the statute during the pendency of a re-
lated, but independent, cause of action Since the application of the
Puerto Rican rule gave unnamed class members the same protection as if
they had filed actions in their own names which were subsequently dis
missed, the federal interest, set forth in American Pipe, in assuring the
efficiency and economy of the class action procedure is fully protected
Until Congress enacts a federal statute of limitations to govern § 1983
litigation, federal courts must continue the practice of "limitations bor-
rowing" outlined in Tomamo Pp 655-662
681 F 2d 42, affirmed
STEVENS, J , delivered the opinion of the Court, in which BURGER,
C J , and BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ , joined
REHNQUIST, J , filed a dissenting opinion, in which WHITE and POWELL,
JJ , joined, post, p 663
John G DeGooyer argued the cause for petitioners With
him on the briefs were K Martin Worthy, Stephen L Hum-
phrey, Hector Reichard De Cardona, and Eduardo Castillo
Blanco
Sheldon H Nahmod argued the cause for respondents
With him on the brief was Jaime R Nodal Arcelay
JUSTICE STEVENS delivered the opinion of the Court
Petitioners, Puerto Rican educational officials, demoted re-
spondents from nontenured supervisory positions to teaching
or lower-level administrative posts in the public school sys-
tem because of respondents7 political affiliations Shortly
before Puerto Rico's 1-year statute of limitations would have
expired, a class action was filed against petitioners on re-
652 OCTOBER TERM, 1982
Opinion of the Court 462 U S
spondents' behalf under 42 U S C § 1983 Subsequently
class certification was denied because the class was not suffi-
ciently numerous The parties agree that the statute of limi-
tations was tolled during the pendency of the § 1983 class
action, but they disagree as to the effect of the tolling 1 Did
the 1-year period begin to run anew when class certification
was denied, or was it merely suspended during the pendency
of the class action? We must decide whether the answer is
provided by Puerto Rican law or by federal law
On or after June 17, 1977, each of the 36 respondents2
received a written notice of demotion On Monday, June 19,
1978, Jose Ortiz Rivera, suing on behalf of respondents and
various other demoted and discharged employees, filed a
class action against petitioners asserting claims under 42
U S C § 1983 and under certain Puerto Rican statutes On
August 21, 1978, the District Court denied class certification
on the ground that the membership of the class was not so
numerous that joinder was impracticable App 16a-17a
In January 1979, the respondents and a number of other un
named class members filed individual actions under §1983
1 This opinion uses the word "tolling" to mean that, during the relevant
period, the statute of limitations ceases to run "Tolling effect" refers to
the method of calculating the amount of time available to file suit after toll
ing has ended The statute of limitations might merely be suspended, if
so, the plaintiff must file within the amount of time left in the limitations
period If the limitations period is renewed, then the plaintiff has the ben
efit of a new period as long as the original It is also possible to establish a
fixed period such as six months or one year during which the plaintiff may
file suit, without regard to the length of the original limitations period or
the amount of time left when tolling began
2 Thirty-seven respondents were named in the petition for writ of certio-
rari Questions 1 and 2 dealt with the status of 36 persons who had been
unnamed plaintiffs in the class action filed by Jose Ortiz Rivera Question
3 addressed the timeliness of Ortiz Rivera's filing This Court limited its
grant to Questions 1 and 2, 459 U S 987 (1982), which have no bearing on
Ortiz Rivera's subsequent individual action Since the petition was denied
as to Question 3, Ortiz Rivera is not a respondent at this stage of the case,
Brief for Petitioners 4, n 2, the Court of Appeals has issued its mandate
with respect to his case
CHARDON t, FUMERO SOTO 653
650 Opinion of the Court
asserting the same constitutional claim that Ortiz Rivera had
previously advanced on their behalf App 2ar-4a a Each of
respondents' individual actions was filed more than one year
after the claims accrued, even excluding the period during
which the class action was pending, but less than one year
after the denial of class certification Thus, if the running of
the limitations period was merely suspended by the class ac-
tion, then respondents' actions are time-barred If it began
to run anew, these actions are timely
Fifty-five individual actions were consolidated for trial on
the liability issue in January 1981 The jury found against
petitioners, and the District Court entered judgment order-
ing reinstatement with backpay 514 F Supp 339 (PR
1981), App 108a-llla, 114a-116a, 121a^l24a On appeal,
the Court of Appeals modified the remedy in some respects,
reversing the award of backpay on Eleventh Amendment
grounds and ordering some of the individual cases dismissed
as time-barred It rejected petitioners' argument that the
claims of the 36 respondents were barred by the statute of
limitations Rivera Fernandez v Chardon, 681 F 2d 42
(CA1 1982), App 158a 4
8 A number of companion cases, all involving plaintiffs who had received
notices of demotion or discharge prior to June 19, 1977, were abo filed m
January 1979 The District Court dismissed this group of complaints as
untimely, but the Court of Appeals reversed on the ground that their
causes of action had not accrued when they received notace, only when
their demotions or discharges became effective Rwera Fernandez v
Chardon, 648 F 2d 765 (CA1 1981) Hiat holding was, in turn, reversed
by this Court after the decision m Delaware State College v Rwk&, 449
U S 250 (1980) See Ckardon v Fernandez, 454 U S 6 (1981)
4 For 28 of the respondents, who received notice cm or after June 19,
1977, there is no dispute that the 1-year limitation period had not yet
expired when the class action was filed on Moiaday, June 19, 1978 The
other eight respondents received notice on June 17, 1977, a date mere than a
calendar year prior to June 19, 1978* In its initial jedgiaent, the Coort of
Appeals ordered dismissal of these eight cases Apfx 156a^l57a, On peti-
tion for modification of judgment, the respowte&ts argiied that, because
Saturday, June 17, and Sunday, June 18, 1978, are excluded fircm compita-
654 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Because there is no federal statute of limitations applicable
to § 1983 claims, the Court of Appeals looked to Puerto Rican
law to determine what the limitations period is, whether that
period was tolled, and the effect of the tolling The parties
do not dispute the court's conclusion that civil rights actions
are governed by the 1-year period specified in P R Laws
Ann , Tit 31, § 5298(2) (1968) Nor do petitioners challenge
the court's conclusion that the statute was tolled during the
pendency of the Rivera class action, although they do dis-
agree with the court's reasons
The Court of Appeals noted that in Puerto Rico it is well
settled that the filing of an action on behalf of a party tolls the
statute with regard to that party's identical causes of action
P R Laws Ann , Tit 31, § 5303 (1968) It recognized, how
ever, that the Supreme Court of Puerto Rico had not ruled on
the question whether a class action would toll the statute for
identical claims of the unnamed plaintiffs It noted that
Puerto Rico had modeled its class-action procedures after the
federal practice, and that in American Pipe & Construction
Co v Utah, 414 U S 538 (1974), this Court had interpreted
the Federal Rules of Civil Procedure to permit a federal stat
ute of limitations to be tolled between the filing of an asserted
class action and the denial of class certification It concluded
that, as a matter of Puerto Rican law, the Puerto Rican
Supreme Court would also hold that the statute of limitations
was tolled as to unnamed plaintiffs during the pendency of a
class action 681 F 2d, at 50 5
tion under Puerto Rican law, the filing of the class action on Monday, June
19, was timely for those eight respondents Id , at 158a The Court of
Appeals modified its judgment accordingly, and explained its denial of re-
hearing on that issue by referring to Rule 6(a) of the Federal Rules of Civil
Procedure App 161a Neither the source of applicable law nor the mer
its of the issue is before us for decision Tr of Oral Arg 4
5 The correctness of this interpretation of Puerto Rican law is not before
us Id , at 18 In any event, in "dealing with issues of state law that
enter into judgments of federal courts, we are hesitant to overrule dee
sions by federal courts skilled in the law of particular states unless their
CHARDON v FUMERO SOTO 655
550 Opinion of the Court
In deciding what effect the tolling would have, however,
the court did not apply the same rule as this Court had ap-
plied in American Pipe In that case the controlling limita-
tions period was established by a federal statute, the Clayton
Act, that expressly provided for suspension when the period
was tolled, 414 U S , at 560-561 In this § 1983 case, how-
ever, the Court of Appeals concluded that Puerto Rican law
determined the length of the applicable statute of limitations,
governed whether the limitations period would be tolled dur-
ing the pendency of the class action, and established the ef-
fect of the tolling Under the law of Puerto Rico the statute
of limitations begins to run anew when tolling ceases, the
plaintiff benefits from the full length of the applicable lim-
itations period See Feliciano v Puerto Rico Aqueduct &
Sewer Auth , 93 P R R 638, 644 (1966), Heirs ofGorbea v
Portilla, 46 P R R 279, 284 (1934) 6 Recognizing the dif-
ference between the common-law rule of suspension and the
Puerto Rican "runmng-anew rule," the Court of Appeals con-
cluded that applying the local rule would not violate any fed-
eral policy The court further reasoned that its conclusion
was consistent with the policies of repose and federalism that
this Court had identified in its decisions addressing statute of
limitations questions 681 F 2d, at 50 We granted certio-
rari 459 U S 987(1982)
I
The federal civil rights statutes do not provide for a spe-
cific statute of limitations, establish rules regarding the toll-
ing of the limitations period, or prescribe the effect of tolling
Under 42 U S C § 1988, the federal cause of action is gov-
erned by appropriate "laws of the United States," but if such
laws are unsuitable or inadequate, state-law rules are bor-
conclusions are shown to be unreasonable " Propper v Clark, 337 U S
472, 486-487 (1949), quoted in Bishop v Wood, 426 U S 341, 346, n 10
(1976)
6 Petitioners do not question this proposition of Puerto Rican law Tr of
OralArg 10
656 OCTOBER TERM, 1982
Opinion of the Court 4$2 U S
rowed unless a particular state rule is "inconsistent with the
Constitution and laws of the United States "7 Petitioners
argue that American Pipe & Construction Co v Utah,
supra, established a federal rule of decision that requires sus-
pension rather than renewal whenever a class action in fed-
eral court tolls the statute of limitations Accordingly, they
contend that neither § 1988 nor our recent decision in Board
of Regents v Tomanio, 446 U S 478 (1980), justified the
Court of Appeals' application of the Puerto Rican renewal
rule This argument, by reading more into our decision in
American Pipe than the Court actually decided, fails to give
full effect to Tomanio
We begin by restating briefly the principles set forth in
Board of Regents v Tomanio In that case the Court held
that the plaintiff's § 1983 claim was barred by New York's
3-year statute of limitations, because New York law did not
provide for tolling of the statute during the pendency of a re-
lated, but independent cause of action Indeed, "resolution
of that issue [was] virtually foreordained in favor of peti-
tioners by our prior cases " 446 U S , at 480 Under the
reasoning of Robertson v Wegmann, 436 U S 584 (1978),
Johnson v Railway Express Agency, Inc , 421 U S 454
(1975), and Monroe v Pape, 365 U S 167 (1961), the Court
explained, federal courts were "obligated not only to apply the
analogous New York statute of limitations to respondent's
federal constitutional claims, but also to apply the New York
7 Title 42 U S C § 1988 provides
"[The federal civil rights statutes] shall be exercised and enforced in con
formity with the laws of the United States, so far as such laws are suitable
to carry the same into effect, but in all cases where they are not adapted to
the object, or are deficient in the provisions necessary to furnish suitable
remedies and punish offenses against law, the common law, as modified
and changed by the constitution and statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is held, so far as the same
is not inconsistent with the Constitution and laws of the United States,
shall be extended to and govern the said courts in the trial and disposition
of the cause "
CHARDON v FUMERO SOTO 657
550 Opinion of the Court
rule for tolling that statute of limitations " 446 U S , at
483
We noted that in 42 U S C § 1988 Congress had plainly
instructed the federal courts to refer to state law when
federal law provides no rule of decision for actions brought
under § 1983, id , at 484 Because the "chronological length
of the limitation period is interrelated with provisions regard-
ing tolling/' we reasoned that the practice of "borrowing"
state statutes of Jimitations "logically mclude[s] rules of toll-
ing " Id , at 485 8 Finally, we concluded that no federal
policy — deterrence, compensation, uniformity, or federal-
xsrn — was offended by the application of state tolling rules
In light of Congress' willingness to rely on state statutes of
limitations in civil rights actions, we specifically rejected the
argument that the federal interest in uniformity justified dis-
placement of state tolling rules 9
8 We quoted the following passage from Johnson v Railway Express
Agency, Inc , 421 U S 454, 463-464 (1975)
"Any period of limitation is understood fully only in the context of the
various circumstances that suspend it from running against a particular
cause of action Although any statute of limitations is necessarily arbi
trary, the length of the period allowed for instituting suit inevitably re
fleets a value judgment concerning the point at which the interests in favor
of protecting valid claims are outweighed by the interests in prohibiting
the prosecution of stale ones In virtually all statutes of limitations the
chronological length of the limitation period is interrelated with provisions
regarding tolling, revival, and questions of application In borrowing a
state period of limitation for application to a federal cause of action, a fed
era! court is relying on the State's wisdom in setting a limit, and exceptions
thereto, on the prosecution of a closely analogous claim " 446 U S , at
485-486, see also id , at 487-488
9 We quoted the following passage from Robertson v Wegmann, 436
U S 584, 594, n 11 (1978)
"[WJhatever the value of nationwide uniformity in areas of civil rights
enforcement where Congress has not spoken, m the areas to which § 1988
is applicable Congress has provided direction, indicating that state law
will often provide the content of the federal remedial rule This statutory
rehance on state law obviously means that there will not be nationwide
uniformity on these issues " 446 U S , at 489
658 OCTOBER TERM, 1982
Opinion of the Court 4$> u g
II
It is true, as petitioners argue, that Tomanio did not
involve a class action, nor did it present any claim that an
established federal rule of decision governed the tolling of the
statute of limitations, making resort to state law unnec-
essary Petitioners contend that in American Pipe this
Court "established a uniform federal procedural rule appli-
cable to class actions brought in the federal courts " Brief
for Petitioners 13 In petitioners' view, that federal rule en
compasses two requirements (1) the statute of limitations is
tolled by the filing of an asserted class action, and (2) if class
certification is subsequently denied because the asserted
class is insufficiently numerous, then the limitations period
has merely been suspended, it does not begin to run anew
Petitioners, respondents, and the Court of Appeals all agree
that the statute of limitations was tolled during the period be-
tween the filing of Jose Ortiz Rivera's action on behalf of the
class on June 19, 1978, and the District Court's denial of class
certification on August 21, 1978 10 We must examine the
reasoning of American Pipe, however, to determine whether
that decision embodies the second requirement that peti
tioners urge us to recognize
In American Pipe the Court held that the antitrust treble-
damages claims asserted by a group of municipalities and
other public agencies in Utah were not time-barred Al
though the claims had arisen in the early 1960's, they were
not foreclosed by the 4-year period of limitations prescribed
m § 4B of the Clayton Act u because the statute had been
tolled on three successive occasions from March 10, 1964, to
June 19, 1964, while federal criminal charges were pending
10 Brief for Petitioners 12-15, Reply Brief for Petitioners 1-2, Brief for
Respondents 6-9, 17, 681 F 2d, at 49, see supra, at 654
11 Section 4B of the Clayton Act, 69 Stat 283, as amended, 15 U S C
§ 15b, provides in pertinent part as follows
"Any action to enforce any cause of action [under the antitrust laws] shall
be forever barred unless commenced within four years after the cause of
action accrued "
CHARDON v FUMERO SOTO 659
650 Opinion of the Court
against the defendants, from June 23, 1964, until May 24, 1968,
while a civil mjunctive proceeding filed by the Federal Gov-
ernment was pending, and from May 13, 1969, until December
4, 1969, while a class action brought by the State of Utah was
pending During the two earlier periods when Federal Gov-
ernment litigation was pending, and for one year thereafter,
the Clayton Act expressly provided for tolling of the uniform
federal statute of limitations 12 The Court held that the sub-
sequent class action had also tolled the statute for the claims
of the unnamed plaintiffs until class certification was denied
The Court reasoned that, under the circumstances, the un-
named plaintiffs should be treated as though they had been
named plaintiffs during the pendency of the class action
Otherwise, members of a class would have an incentive to
protect their interests by intervening in the class action as
named plaintiffs prior to the decision on class certification — a
"needless duplication of motions" that would "deprive Rule 23
class actions of the efficiency and economy of litigation which
is a principal purpose of the procedure " 414 U S , at
553-554, see id , at 555-556 The Court explained that toll-
ing the limitations period during the pendency of an antitrust
class action did not impair the policies underlying statutes of
limitations Id , at 554-555
In order to determine "the precise effect the commence-
ment of the class action had on the relevant limitation
period," the Court referred to the terms of the underlying
statute of limitations It stated that § 5(b) of the Clayton
Act suspends the statute of limitations during the pendency
of Federal Government antitrust litigation based on the same
subject matter By analogy, the Court concluded that sus-
12 Section 5(b) of the Clayton Act, 38 Stat 731, as amended, 15 U S C
§ 16<i), provides
"Whenever any civil or criminal proceeding is instituted by the United
States to prevent, restrain, or punish violations of any of the antitrust
laws, the running of the statute of limitations in respect to every pri-
vate or State right of action arising under said laws and based in whole or
in part on any matter complained of in said proceeding shall be suspended
during the pendency thereof and for one year thereafter "
660 OCTOBER TERM, 1982
Opinion of the Court 462 u o
pension would also be appropriate during the pendency of an
asserted federal class action prior to denial of certification
Id , at 560-561 Since suspension was adequate to preserve
all of the plaintiffs7 claims — they were filed only eight days
after the denial of class certification — there was no need to con
sider whether any different rule might have been appropriate B
In American Pipe, federal law defined the basic limitations
period, federal procedural policies supported the tolling of
13 Although some federal statutes provide for suspension, see post, at
666, and n 2, other statutes establish a variety of different tolling effects
See, e g , 12 U S C § 1728(c) (actions against Federal Savings and Loan
Insurance Corporation for payment of insurance claims, 3 year limitations
period from date of default, unless conservator of the insured institution
first recognizes and then denies the validity of a claim, in which event the
action may be brought within two years of denial), 15 U S C § 16(i), see
n 12, supra (private actions under antitrust laws), 15 U S C § 714b(c)(2)
(actions against Commodity Credit Corporation, 6-year limitations period,
unless the plaintiff has been under legal disability or beyond the seas at the
time the right accrued, in which case the suit must be brought within three
years after the disability ceases or within six years after the accrual of the
cause of action, whichever is longer), 15 U S C § 1691e(f ) (actions under
Equal Credit Opportunity Act, 2-year limitations period, except that if an
agency enforcement action or suit by the Attorney General is filed during
that period, any applicant who has been a victim of the alleged discrunina
tion may bring suit not later than one year after the commencement of that
action), 28 U S C § 2415(e) (various limitations periods for actions for
money damages and recovery of debts brought by the United States, if
any such action is timely filed and dismissed without prejudice, the action
may be recommenced within one year after such dismissal, regardless of
whether the action would otherwise then be time-barred), 46 U S C
§ 1292 (suits on claims for war risk insurance, 2-year limitations period, but
if an administrative claim is filed, the period is suspended until the claim is
administratively denied and for 60 days thereafter), 49 U S C §§16(3)(c),
(d) (actions against railroads for overcharges, 3-year limitations period, but
if claim for the overcharge has been presented in writing to the earner
within the limitations period, the period for bringing suit is extended to
include six months from the time the carrier gives notice in writing to the
claimant disallowing the claim, and if the carrier brings suit to recover
charges in respect of the same transportation service during the limitations
period, the limitations period is extended to include 90 days from the toe
such action is begun), 49 U S C §§ 908<f )(1)(C), (D) (same provision with
regard to common carriers by water)
CHARDON v FUMERO SOTO 661
$50 Opinion of the Court
the statute during the pendency of the class action, and a par-
ticular federal statute provided the basis for deciding that the
tolling had the effect of suspending the limitations period
No question of state law was presented In a § 1983 action,
however, Congress has specifically directed the courts, in the
absence of controlling federal law, to apply state statutes of
limitations and state tolling rules unless they are "incon-
sistent with the Constitution and laws of the United States "
42 U S C § 1988 American Pipe does not answer the
question whether, in a § 1983 case in which the filing of a class
action has tolled the statute of limitations until class certifi-
cation is denied, the tolling effect is suspension rather than
renewal or extension of the period American Pipe simply
asserts a federal interest in assuring the efficiency and econ-
omy of the class-action procedure After class certification
is denied, that federal interest is vindicated as long as each
unnamed plaintiff is given as much time to intervene or file a
separate action 14 as he would have under a state savings stat-
ute applicable to a party whose action has been dismissed for
reasons unrelated to the merits, or, in the absence of a stat-
ute, the time provided under the most closely analogous state
tolling statute
The reasoning of American Pipe is thus compatible with
the rationale of Tomamo, and the Court of Appeals' decision
on the tolling effect of the class action in this case is con-
sistent with both The Court of Appeals applied the Puerto
Rican rule that, after tolling comes to an end, the statute of
limitations begins to run anew Since the application of this
state-law rule gives unnamed class members the same pro-
tection as if they had filed actions in their own names which
were subsequently dismissed, the federal interest set forth in
American Pipe is fully protected 15
14 The benefit of tolling applies whether an unnamed plaintiff intervenes in
the named plaintiff's suit after denial of class certification or files his or
her own separate action Crown, Cork & Seal Co v Parker, ante, p 345
15 On the other hand, if a party received the benefit of Puerto Rico's
renewal rule only by intervening as a named plaintiff m the class action
662 OCTOBER TERM, 1982
Opinion of the Court 462 u g
The Court of Appeals correctly rejected the argument that
American Pipe establishes a uniform federal rule of decision
that mandates suspension rather than renewal whenever a
federal class action tolls a statute of limitations As we
wrote in Robertson v Wegmann, "§ 1988 quite clearly in-
structs us to refer to state statutes, it does not say that state
law is to be accepted or rejected based solely on which side is
advantaged thereby " 436 U S , at 593 Congress has de-
cided that § 1983 class actions brought in different States, like
individual actions under § 1983, will be governed by differing
statutes of limitations and differing rules regarding tolling
and tolling effect unless those state rules are inconsistent
with federal law Until Congress enacts a federal statute of
limitations to govern § 1983 litigation, comparable to the stat-
ute it ultimately enacted to solve the analogous problems
presented by borrowing state law in federal antitrust litiga
tion,16 federal courts must continue the practice of "lumta
tions borrowing" outlined in Tomamo
The judgment of the Court of Appeals is
Affirmed
before the court's decision whether to certify the class, but was limited to
suspension if he remained an unnamed class member, he would have an in
centive to protect his interests by creating the very multiplicity and need
less duplication against which the Court warned in American Pipe
16 Act of July 7, 1955, ch 283, §§ 1 and 2, 69 Stat 283 See H R Rep
No 422, 84th Cong , 1st Sess , 1 (1955) ("Heretofore, such actions have
been controlled by State law on the subject, leading to widespread varia
tions from jurisdiction to jurisdiction as to the time within which an injured
party may institute such a suit, as well as considerable confusion in
ascertaining the applicable State law"), S Rep No 619, 84th Cong , 1st
Sess , 5 (1955) ("It is one of the primary purposes of this bill to put an end
to the confusion and discrimination present under existing law where local
statutes of limitations are made applicable to rights granted under o«r
Federal laws"), id , at 7 (letter from Attorney General) ("Currently, pn
vate antitrust action is needlessly complicated by issues such as which
State's statute of limitations apply, the events from which such statute
run[s], and the circumstances under which it may be [tolled] Finally,
varying periods of limitation encourage 'forum-shopping' and seem iD
suited for enforcement of a uniform Federal policy")
CHARDONv FUMEROSOTO 668
650 REHNQUIST, J , dissenting
JUSTICE REHNQUIST, with whom JUSTICE WHITE and
JUSTICE POWELL join, dissenting
Title 42 U S C § 1988 embodies a congressional deter-
mination that the laws of the several States provide the most
suitable procedural and remedial rules for application in
actions brought under the federal civil rights laws In the
words of the statute, "in all cases [brought under the federal
civil rights laws] where [federal laws] are not adapted to the
object, or are deficient in the provisions necessary to furnish
suitable remedies and punish offenses against law, the com-
mon law, as modified and changed by the constitution and
statutes of the State wherein the court having jurisdiction of
such civil or criminal cause is held shall be extended to
and govern the said courts in the trial and disposition of the
cause "
We frequently have recognized "the generally interstitial
character of federal law," Richards v United States, 369
U S 1, 7 (1962) Because of this, federal courts frequently
must look to "the common law, as modified and changed by
the constitution and statutes of the State wherein the court"
is situated If, however, there is federal law "adapted to the
object" of the civil rights laws, § 1988 commands that federal
courts apply that law in § 1983 actions
The question in this case is whether there is any federal
rule of law applicable to the tolling of limitations periods dur-
ing the pendency of a class action brought under Federal
Rule of Civil Procedure 23 If there is, then we must depart
from the general rule of reference to state law in actions
brought under the civil rights laws This inquiry turns prin-
cipally on the meaning of our decision in American Pipe &
Construction Co v Utah, 414 U S 538 (1974) While the
Court adopts a plausible, albeit narrow, reading of the opin-
ion in that case, I believe the opinion is more fairly read in
a somewhat broader manner Adopting this construction, I
conclude that the decision recognizes a federal rule of tolling
applicable to class actions brought under Federal Rule of
664 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 4^ u g
Civil Procedure 23 , and that this rule is made applicable bv
§ 1988 to claims brought under § 1983
In American Pipe the Court rejected the claim that anti
trust claims brought by various Utah public agencies and
municipalities was barred by the 4-year limitations period of
§ 4B of the Clayton Act, reasoning that the running of this
period had been tolled on three occasions As to two of these
occasions, involving periods during which federal litigation
was pending, the Court's reasoning simply applied §5(b) of
the Clayton Act Section 5(b) explicitly addressed the effect
of pending federal litigation, stating unambiguously that
"[w]henever any civil or criminal proceeding is instituted by
the United States to prevent, restrain, or punish violations of
any of the antitrust laws, the running of the statute of
limitations in respect to every private right of action arising
under said laws shall be suspended during the pend
ency thereof and for one year thereafter " 38 Stat 731, as
amended, 15 U S C § 16(i) The first two periods in which
American Pipe held that § 4B had been tolled followed simply
from a straightforward application of § 5(b)
As to the third period in which the limitations period was
found to be tolled, however, the Clayton Act was utterly si-
lent The period in question was one in which a class action
brought by the State of Utah had been pending The ques
tion in American Pipe was whether the pendency of this class
action warranted tolling of the Clayton Act's limitations pe
nod as to unnamed plaintiffs in the class As noted previ-
ously, the Clayton Act provided not the slightest guidance on
the question whether the pendency of the class action should
have had a tolling effect
Despite the silence of the Clayton Act, the Court concluded
that § 4B had been tolled Since the Clayton Act plainly did
not address the question before it, and since the Court made
no reference at all to state law, the source of the tolling rule
applied by the Court was necessarily Rule 23 Any doubt as
to this fact is removed by the Court's lengthy discussion of
CHARDON v FUMERO SOTO 665
550 REHNQUIST, J , dissenting
the history, purposes, and intent of the Rule Likewise, our
subsequent decisions have reflected this understanding of the
basis for the Court's decision in American Pipe See, e g ,
Johnson v Railway Express Agency, Inc , 421 U S 454,
467, n 12 (1975) ("In the light of the history of Fed Rule Civ
Proc 23 and the purposes of litigatory efficiency served by
class actions, we concluded that the prior filing had a tolling
effect")
In interpreting Rule 23 to contain a rule that, during the
pendency of a class action, underlying statutes of limitations
would be tolled as to individual class members, the Court also
addressed the more general question of what effect a decision
that the class action could not properly be maintained would
have on the tolling of the limitations period Again, reflect-
ing the fact that it was fashioning a general federal tolling
rule grounded on Rule 23, the Court stated
'We are convinced that the rule most consistent with
federal class action procedure must be that the com-
mencement of a class action suspends the applicable stat-
ute of limitations as to all asserted members of the class
who would have been parties had the suit been per-
mitted to continue as a class action " 414 U S , at 554
(emphasis added)
There can be little question but that the Court fashioned a
rule "consistent with federal class action procedure'' requir-
ing suspension of periods of limitation during the pendency of
class actions To be sure, the Court alluded to the fact that
§5(b) of the Clayton Act provided for "suspension" of the
tolling period, rather than some other effect, but the Court
rightly did not rely solely on this provision — which admit-
tedly was entirely inapplicable in the case before it— in fash-
ioning its general rule of tolling under Rule 23 Rather, it
spoke more broadly, stating that the "concept" in §5(b) re-
quires the conclusion that a pending class action "suspend[s]
the running of the limitation period " Id , at 561 (emphasis
666 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 4^2 u g
added) Since there is a federal rule of tolling m the special
area of class actions, this rule should be applied
The Court today studiously ignores the foregoing state
ments from American Pipe, as well as the clear mapph
cabihty of § 5(b) to the question decided in American Pipe
Instead, it offers the argument that "[s]mce suspension was
adequate [in American Pipe] to preserve all of the plaintiffs'
claims there was no need to consider whether any differ
ent rule might have been appropriate " Ante, at 660 The
more orthodox inquiry, however, would seem to be what the
Court actually decided then, not what we now think it needed
to decide And, as the discussion above plainly demon
strates, American Pipe concluded that Rule 23 contains
a tolling rule that suspends (but does nothing more) the
running of limitations periods during the pendency of class
actions *
This determination that the federal rule under Rule 23 is
that the pendency of a class action simply suspends the run
rung of a statute of limitations is not the least bit unusual
Indeed, in many areas of federal law mere suspension is
the rule 2 Moreover, in areas aside from class actions, the
Court correctly recognizes that Board of Regents v Tomamo, 446
U S 478 (1980), is distinguishable That case did not involve a class
action, and thus the Court had no occasion to consider whether Rule 23
creates a federal tolling rule, or the character of that rule Hence, there
was "a void in federal statutory law," id , at 483, and state law was
called upon to fill the void Owing to American Pipe and its interprets
tion of Rule 23, there is no comparable void in this case, and federal law is
therefore applicable
2 See, e g , 5 U S C § 8122(d) (limitations period does not "run against
an incompetent individual while he is incompetent"), 19 U S C §1621
(time in which violator is outside Nation "shall not be reckoned within this
period of limitation"), 22 U S C § 8 17(c) (suspension of hmitations periods
in malpractice actions by certain federal employees during pendency of
specified suits), 28 U S C § 1498 (copyright claims by Government em-
ployees suspended during certain periods), 29 U S C § 255(d) (limitations
period of Portal-to-Portal Pay Act "shall be deemed suspended" in certain
instances), 45 U S C § 56 (period of limitations under Federal Employ
CHARDON v FUMERO SOTO 667
650 REHNQUIST, J , dissenting
Court has recognized that federal tolling rules apply to state
statutes of limitations See, e g , Holmberg v Armbrecht,
327 U S 392 (1946) (general federal principles of equity must
be applied by federal courts in actions involving federal claims,
even where state statutes of limitations are borrowed)
The Court is apparently well aware that by rejecting the
claim that Rule 23 reflects a uniform federal tolling rule it en-
courages needless litigation regarding what state tolling rule
applies Indeed, in this case the Court of Appeals frankly
admitted that "there is no discernible state rule" to be ap-
plied Fernandez v Chardon, 681 F 2d 42, 50 (CA1 1982)
In other situations, more than one state rule may seem appli-
cable It is scarcely a desirable state of affairs for federal
courts to spend their time deciding how state courts might
decide state tolling rules operate These concerns are par-
ticularly acute owing to the fact that the question at issue is
what statute of limitations ought to be applied Few areas
of the law stand in greater need of firmly defined, easily ap-
plied rules than does the subject of periods of limitations A
single, uniform federal rule of tolling would provide desir-
able certainty to both plaintiffs and defendants in § 1983 class
actions
Finally, it is useful to consider the application of the
Court's analysis in a situation not far removed from the
present case If the law of a particular State was that the
pendency of a class action did not toll the statute of limi-
tations as to unnamed class members, there seems little
question but that the federal rule of American Pipe would
nonetheless be applicable Having tolled the running of the
ers' Liability Act, Burnett v New York Central R Co , 380 U S 424
(1965)), 46 U S C §745 (limitations period suspended during pendency of
administrative actions, see Northern Metal Co v United States, 350 F 2d
833 (CA3 1965), Kinman v United States, 139 F Supp 925 (ND Cal
1956)), 50 U S C App § 33 (in computing expired time "there shall be ex-
cluded" time when specified actions were pending) Cf Hanger v Abbott,
6 Wall 532 (1868) (suspension of state statute of limitations)
66g OCTOBER TERM, 1982
REHNQUIST, J., dissenting 462 U. S.
applicable state statute of limitations, the federal court would
be required to decide what effect denial of class certification
would have. The logical source of law, of course, would be
the general federal rule, expressed in American Pipe and ap-
plied to toll the running of the period in the first place. The
Court, however, would apparently have the trial judge look
to state law. Such a course would obviously be more than a
little ironic— the inquiry would appear to be, if state law did
have a class-action tolling rule, which it does not, what would
state law say with respect to one aspect of that rule's effect?
Such an inquiry would be more appropriate in Alwe in Won-
derland than as a serious judicial undertaking.
Because the Court partially rejects a rule of law that
American Pipe plainly set forth, because it reaches a result
that can only encourage needless litigation and uncertainty,
and because its analysis leads to anomalous results, I respect-
fully dissent.
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 669
Syllabus
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO v
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No 82-411 Argued April 27, 1983— Decided June 20, 1983
Section 703(a)(l) of Title VII of the Civil Rights Act of 1964 makes it an
unlawful employment practice for an employer to discriminate against an
employee with respect to compensation, terms, conditions, or privileges
of employment, because of the employee's race, color, religion, sex, or
national origin Title VII was amended in 1978 by the Pregnancy Dis-
crimination Act to prohibit discrimination on the basis of pregnancy
Petitioner employer then amended its health insurance plan to provide
its female employees with hospitalization benefits for pregnancy-related
conditions to the same extent as for other medical conditions, but the
plan provided less extensive pregnancy benefits for spouses of male em-
ployees Petitioner filed an action in Federal District Court challenging
the EEOC's guidelines which indicated that the amended plan was un-
lawful, and the EEOC in turn filed an action against petitioner alleging
discrimination on the basis of sex against male employees in petitioner's
provision of hospitalization benefits The District Court upheld the law-
fulness of petitioner's amended plan and dismissed the EEOC's com-
plaint On a consolidated appeal, the Court of Appeals reversed
Held The pregnancy limitation in petitioner's amended health plan discrim-
inates against male employees in violation of § 703(a)(l) Pp 676-685
(a) Congress, by enacting the Pregnancy Discrimination Act, not only
overturned the holding of General Electric Co v Gilbert, 429 U S 125,
that the exclusion of disabilities caused by pregnancy from an employer's
disability plan providing general coverage did not constitute discrimina-
tion based on sex, but also rejected the reasoning employed in that case
that differential treatment of pregnancy is not gender-based discrimina-
tion because only women can become pregnant Pp 676-682
(b) The Pregnancy Discrimination Act makes it clear that it is discrim-
inatory to exclude pregnancy coverage from an otherwise inclusive bene-
fits plan Thus, petitioner's health plan unlawfully gives married male
employees a benefit package for their dependents that is less inclusive
than the dependency coverage provided to married female employees
Pp 682-684
(c) There is no merit to petitioner's argument that the prohibitions of
Title VII do not extend to pregnant spouses because the statute applies
only to discrimination in employment Since the Pregnancy Discrinuna-
670 OCTOBER TERM, 1982
Opinion of the Court 462 TJ o
tion Act makes it clear that discrimination based on pregnancy is, on its
face, discrimination based on sex, and since the spouse's sex is always
the opposite of the employee's sex, discrimination against female spouses
m the provision of fringe benefits is also discrimination against male
employees Pp 684-685
682 F 2d 113, affirmed
STEVENS, J , delivered the opinion of the Court, in which BURGER
C J , and BRENNAN, WHITE, MARSHALL, BLACKMUN, and O'CONNOR^
JJ , joined REHNQUIST, J , filed a dissenting opinion, in which POWELL'
J , joined, post, p 685
Andrew M Kramer argued the cause for petitioner With
him on the briefs were Gerald D Skomng and Deborah
Crandall
Harriet S Shapiro argned the cause for respondent
With her on the brief were Solicitor General Lee, Deputy
Solicitor General Wallace, Philip B Sklover, and Vella
M Fink *
JUSTICE STEVENS delivered the opinion of the Court
In 1978 Congress decided to overrule our decision in Gen
eral Electric Co v G^lbert, 429 U S 125 (1976), by amend
ing Title VII of the Civil Rights Act of 1964 "to prohibit sex
discrimination on the basis of pregnancy " 1 On the effective
*Bnefs of armci cunae urging reversal were filed by Stephen A Bokat
and Cynthia Wicker for the Chamber of Commerce of the United States,
by Frederick T Shea, Robert H McRoberts, Sr , John F Gibbons, and
Thomas C Walsh for Emerson Electric Co , by Benjamin W Boley and
Michael S Giannotto for the National Railway Labor Conference, and by
Robert E Williams, Douglas S McDowell, and Lorence L Kessler for the
Equal Employment Advisory Council
Briefs of amici cunae urging affirmance were filed by Lawrence B
Trygstad and Richard J Schwab for the United Teachers-Los Angeles, by
Judith L Lichtman and Judith E Schaeffer for the American Association
of University Women et al , and by J Albert Woll, Marsha S Berzort,
Laurence Gold, Bernard Kleiman, Carl Frankel, Carole W Wilson, and
Winn Newman for the American Federation of Labor and Congress of
Industrial Organizations et al
1 Pub L 95-555, 92 Stat 2076 (quoting title of 1978 Act) The new stat-
ute (the Pregnancy Discrimination Act) amended the "Definitions" sec-
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 671
$39 Opinion of the Court
date of the Act, petitioner amended its health insurance plan
to provide its female employees with hospitahzation benefits
for pregnancy-related conditions to the same extent as for
other medical conditions 2 The plan continued, however, to
provide less favorable pregnancy benefits for spouses of male
employees The question presented is whether the amended
plan complies with the amended statute
Petitioner's plan provides hospitahzation and medical-
surgical coverage for a defined category of employees 3 and a
defined category of dependents Dependents covered by the
plan include employees' spouses, unmarried children between
14 days and 19 years of age, and some older dependent
children 4 Prior to April 29, 1979, the scope of the plan's
coverage for eligible dependents was identical to its coverage
for employees 5 All covered males, whether employees or
turn of Title VII, 42 U S C § 2000e, to add a new subsection (k) reading in
pertinent part as follows
"The terms "because of sex* or 'on the basis of sex7 include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions, and women affected by pregnancy, childbirth, or re-
lated medical conditions shall be treated the same for all employment-
related purposes, including receipt of benefits under fringe benefit pro-
grams, as other persons not so affected but similar in their ability or
inability to work, and nothing in section 2000e-2(h) of this title shall be
interpreted to permit otherwise " § 2000e(k) (1976 ed , Supp V)
2 The amendment to Title VII became effective on the date of its enact-
ment, October 31, 1978, but its requirements did not apply to any then
existing fringe benefit program until 180 days after enactment — April 29,
1979 92 Stat 2076 The amendment to petitioner's plan became effec
tive on April 29, 1979
8 On the first day following three months of continuous service, every
active, full-time, production, maintenance, technical, and clerical area
bargaining unit employee becomes a plan participant App to Pet for
Cert 29a
4 For example, unmarried children up to age 23 who are full-time college
students solely dependent on an employee and certain mentally or physi-
cally handicapped children are also covered Id , at 30a
5 An amount payable under the plan for medical expenses incurred by a
dependent does, however, take into account any amounts payable for those
expenses by other group insurance plans An employee's personal cover-
672 OCTOBER TERM, 1982
Opinion of the Court 462 u s
dependents, were treated alike for purposes of hospitaliza-
tion coverage All covered females, whether employees or
dependents, also were treated alike Moreover, with one
relevant exception, the coverage for males and females was
identical The exception was a limitation on hospital cov-
erage for pregnancy that did not apply to any other hospital
confinement 6
After the plan was amended in 1979, it provided the same
hospitahzation coverage for male and female employees
themselves for all medical conditions, but it differentiated
between female employees and spouses of male employees in
its provision of pregnancy-related benefits 7 In a booklet
describing the plan, petitioner explained the amendment that
gave rise to this litigation in this way
"B Effective April 29, 1979, maternity benefits for
female employees will be paid the same as any other hos-
pital confinement as described in question 16 This
applies only to deliveries beginning on April 29, 1979
and thereafter
"C Maternity benefits for the wife of a male employee
will continue to be paid as described in part 'A' of this
question " App to Pet for Cert 37a
age is not affected by his or her spouse's participation in a group health
plan Id , at 34ar-36a
6 For hospitahzation caused by uncomplicated pregnancy, petitioner's
plan paid 100% of the reasonable and customary physicians' charges for de-
livery and anesthesiology, and up to $500 of other hospital charges For
all other hospital confinement, the plan paid in full for a seimprivate room
for up to 120 days and for surgical procedures, covered the first $750 of
reasonable and customary charges for hospital services (including general
nursing care, X-ray examinations, and drugs) and other necessary services
during hospitalization, and paid 80% of the charges exceeding $750 for such
services up to a maximum of 120 days Id , at 31a-32a (question 16), see
id , at 44a-45a (same differentiation for coverage after the employee's
termination)
7 Thus, as the Equal Employment Opportunity Commission found after
its investigation, "the record reveals that the present disparate impact on
male employees had its genesis in the gender-based distinction accorded to
female employees in the past " App 37
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 673
669 Opinion of the Court
In turn, Part A stated "The Basic Plan pays up to $500 of the
hospital charges and 100% of reasonable and customary for
delivery and anesthesiologist charges " Ibid As the Court
of Appeals observed "To the extent that the hospital charges
in connection with an uncomplicated delivery may exceed
$500, therefore, a male employee receives less complete cov-
erage of spousal disabilities than does a female employee "
667 F 2d 448, 449 (CA4 1982)
After the passage of the Pregnancy Discrimination Act,
and before the amendment to petitioner's plan became effec-
tive, the Equal Employment Opportunity Commission issued
"interpretive guidelines" in the form of questions and an-
swers 8 Two of those questions, numbers 21 and 22, made it
clear that the EEOC would consider petitioner's amended
plan unlawful Number 21 read as follows
"21 Q Must an employer provide health insurance
coverage for the medical expenses of pregnancy-related
conditions of the spouses of male employees? Of the
dependents of all employees?
"A Where an employer provides no coverage for de-
pendents, the employer is not required to institute such
coverage However, if an employer's insurance pro-
gram covers the medical expenses of spouses of female
employees, then it must equally cover the medical
expenses of spouses of male employees, including those
arising from pregnancy-related conditions
"But the insurance does not have to cover the preg-
nancy-related conditions of non-spouse dependents as
long as it excludes the pregnancy-related conditions of
8 Interim interpretive guidelines were published for comment in the Fed-
eral Register on March 9, 1979 44 Fed Reg 13278-13281 Final guide-
lines were published in the Federal Register on April 20, 1979 Id , at
23804-23808 The EEOC explained "It is the Commission's desire
that all interested parties be made aware of EEOC's view of their rights
and obligations in advance of April 29, 1979, so that they may be in compli-
ance by that date " Id , at 23804 The questions and answers are
reprinted as an appendix to 29 CFR § 1604 (1982)
674 OCTOBER TERM, 1982
Opinion of the Court 462 y «
such non-spouse dependents of male and female em
ployees equally " 44 Fed Reg 23807 (Apr 20, 1979) 9
On September 20, 1979, one of petitioner's male employees
filed a charge with the EEOC alleging that petitioner had
unlawfully refused to provide full insurance coverage for his
wife's hospitalization caused by pregnancy, a month later the
United Steelworkers filed a similar charge on behalf of other
individuals App 15-18 Petitioner then commenced an ac
tion in the United States District Court for the Eastern Dis
trict of Virginia, challenging the Commission's guidelines and
seeking both declaratory and mjunctive relief The com
plaint named the EEOC, the male employee, and the United
Steelworkers of America as defendants Id , at 5-14
Later the EEOC filed a civil action against petitioner alleging
discrimination on the basis of sex against male employees in
the company's provision of hospitalization benefits Id , at
28-31 Concluding that the benefits of the new Act ex
tended only to female employees, and not to spouses of male
employees, the District Court held that petitioner's plan was
lawful and enjoined enforcement of the EEOC guidelines
relating to pregnancy benefits for employees' spouses 510
9 Question 22 is equally clear It reads
"22 Q Must an employer provide the same level of health insurance cov
erage for the pregnancy-related medical conditions of the spouses of male
employees as it provides for its female employees?
"A No It is not necessary to provide the same level of coverage for the
pregnancy-related medical conditions of spouses of male employees as for
female employees However, where the employer provides coverage for
the medical conditions of the spouses of its employees, then the level of
coverage for pregnancy-related medical conditions of the spouses of male
employees must be the same as the level of coverage for all other medical
conditions of the spouses of female employees For example, if the
employer covers employees for 100 percent of reasonable and customary
expenses sustained for a medical condition, but only covers dependent
spouses for 50 percent of reasonable and customary expenses for then-
medical conditions, the pregnancy-related expenses of the male employee's
spouse must be covered at the 50 percent level " 44 Fed Reg , at
23807-23808
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 675
669 Opinion of the Court
F Supp 66 (1981) It also dismissed the EEOC's complaint
App to Pet for Cert 21a The two cases were consolidated
on appeal
A divided panel of the United States Court of Appeals for
the Fourth Circuit reversed, reasoning that since "the com-
pany's health insurance plan contains a distinction based on
pregnancy that results in less complete medical coverage for
male employees with spouses than for female employees with
spouses, it is impermissible under the statute " 667 F 2d,
at 451 After rehearing the case en bane, the court reaf-
firmed the conclusion of the panel over the dissent of three
judges who believed the statute was intended to protect
female employees "in their ability or inability to work," and
not to protect spouses of male employees 682 F 2d 113
(1982) Because the important question presented by the
case had been decided differently by the United States Court
of Appeals for the Ninth Circuit, EEOC v Lockheed Missiles
& Space Co , 680 F 2d 1243 (1982), we granted certiorari
459 U S 1069 (1982) 10
Ultimately the question we must decide is whether peti-
tioner has discriminated against its male employees with
respect to their compensation, terms, conditions, or privi-
leges of employment because of their sex within the meaning
of § 703(a)(l) of Title VII u Although the Pregnancy Dis-
10 Subsequently the Court of Appeals for the Seventh Circuit agreed with
the Ninth Circuit EEOC v Joslyn Mfg & Supply Co , 706 F 2d 1469
(1983)
11 Section 703(a), 42 U S C §2000e-2(a), provides in pertinent part
"It shall be an unlawful employment practice for an employer —
"(1) to fail or refuse to hire or discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin "
Although the 1978 Act makes clear that this language should be con
strued to prohibit discrimination against a female employee on the basis of
her own pregnancy, it did not remove or limit Title VIFs prohibition of dis-
crimination on the basis of the sex of the employee — male or female — which
676 OCTOBER TERM, 1982
Opinion of the Court 462 y g
crimination Act has clarified the meaning of certain terms in
this section, neither that Act nor the underlying statute
contains a definition of the word "discriminate " In order to
decide whether petitioner's plan discriminates against male
employees because of their sex, we must therefore go beyond
the bare statutory language Accordingly, we shall consider
whether Congress, by enacting the Pregnancy Discrimina-
tion Act, not only overturned the specific holding in General
Electric Co v Gilbert, 429 U S 125 (1976), but also rejected
the test of discrimination employed by the Court in that case
We believe it did Under the proper test petitioner's plan is
unlawful, because the protection it affords to married male
employees is less comprehensive than the protection it af-
fords to married female employees
I
At issue in General Electric Co v Gilbert was the legality
of a disability plan that provided the company's employ
ees with weekly compensation during periods of disability
resulting from nonoccupational causes Because the plan ex-
cluded disabilities arising from pregnancy, the District Court
and the Court of Appeals concluded that it discriminated
against female employees because of their sex This Court
reversed
After noting that Title VII does not define the term "dis-
crimination," the Court applied an analysis derived from
cases construing the Equal Protection Clause of the Four
teenth Amendment to the Constitution Id , at 133 The
Gilbert opinion quoted at length from a footnote in Geduldig
v Awllo, 417 U S 484 (1974), a case which had upheld the
constitutionality of excluding pregnancy coverage under Cali-
fornia's disability insurance plan l2 "Since it is a finding of
was already present in the Act As we explain infra, at 682-685, peti
turner's plan discriminates against male employees on the basis of their
sex
12 « <while it is true that only women can become pregnant, it does not
follow that every legislative classification concerning pregnancy is a sex
based classification like those considered in Reed [v Reed, 404 U S 71
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 677
$59 Opinion of the Court
sex-based discrimination that must trigger, m a case such as
this, the finding of an unlawful employment practice under
§703(a)(l)," the Court added, "Geduldig is precisely in point
in its holding that an exclusion of pregnancy from a disability-
benefits plan providing general coverage is not a gender-
based discrimination at all " 429 U S , at 136
The dissenters in Gilbert took issue with the majority's as-
sumption "that the Fourteenth Amendment standard of dis-
crimination is coterminous with that applicable to Title VII "
Id , at 154, n 6 (BRENNAN, J , dissenting), id , at 160-161
(STEVENS, J , dissenting) 1S As a matter of statutory inter-
pretation, the dissenters rejected the Court's holding that
the plan's exclusion of disabilities caused by pregnancy did
not constitute discrimination based on sex As JUSTICE
BRENNAN explained, it was facially discriminatory for the
company to devise "a policy that, but for pregnancy, offers
protection for all risks, even those that are 'unique to' men or
(1971)], and Frontiero [v Richardson, 411 U S 677 (1973)] Normal
pregnancy is an objectively identifiable physical condition with unique
characteristics Absent a showing that distinctions involving pregnancy
are mere pretexts designed to effect an invidious discrimination against
the members of one sex or the other, lawmakers are constitutionally free
to include or exclude pregnancy from the coverage of legislation such as
this on any reasonable basis, just as with respect to any other physical
condition
" "The lack of identity between the excluded disability and gender as such
under this insurance program becomes clear upon the most cursory analy-
sis The program divides potential recipients into two groups — pregnant
women and nonpregnant persons While the first group is exclusively
female, the second includes members of both sexes ' [417 U S ], at 496-
497, n 20 " 429 U S , at 134-185
The principal emphasis in the text of the Geduldig opinion, unlike the
quoted footnote, was on the reasonableness of the State's cost justifications
for the classification in its insurance piogram See n 13, infra
13 As the text of the Geduldig opinion makes clear, in evaluating the con-
stitutionality of California's insurance program, the Court focused on the
"non invidious" character of the State's legitimate fiscal interest in exclud-
ing pregnancy coverage 417 U S , at 496 This justification was not
relevant to the statutory issue presented in Gilbert See n 25, infra
678 OCTOBER TERM, 1982
Opinion of the Court 4§2 TT «
heavily male dominated " Id , at 160 It was inaccurate to
describe the program as dividing potential recipients into two
groups, pregnant women and nonpregnant persons, because
insurance programs "deal with future risks rather than his
tone facts " Rather, the appropriate classification was "be
tween persons who face a risk of pregnancy and those who do
not " Id , at 161-162, n 5 (STEVENS, J , dissenting) The
company's plan, which was intended to provide employees
with protection against the risk of uncompensated unemploy
ment caused by physical disability, discriminated on the basis
of sex by giving men protection for all categories of risk but
giving women only partial protection Thus, the dissenters
asserted that the statute had been violated because condi
tions of employment for females were less favorable than for
similarly situated males
When Congress amended Title VII in 1978, it unambigu
ously expressed its disapproval of both the holding and the
reasoning of the Court in the Gilbert decision It incorpo
rated a new subsection in the "definitions" applicable "[f]or
the purposes of this subchapter " 42 U S C §2000e (1976
ed , Supp V) The first clause of the Act states, quite sun
ply "The terms "because of sex' or 'on the basis of sex'
include, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical conditions "
§2000e-(k) 14 The House Report stated "It is the Commit
tee's view that the dissenting Justices correctly interpreted
the Act " 15 Similarly, the Senate Report quoted passages
from the two dissenting opinions, stating that they "correctly
express both the principle and the meaning of title VII "16
14 The meaning of the first clause is not limited by the specific language in
the second clause, which explains the application of the general principle to
women employees
15 H R Rep No 95-948, p 2 (1978), Legislative History of the Preg
nancy Discrimination Act of 1978 (Committee Print prepared for the Sen-
ate Committee on Labor and Human Resources), p 148 (1979) (hereinafter
Leg Hist )
16 S Rep No 95-331, pp 2-3 (1977), Leg Hist , at 39-40
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 679
669 Opinion of the Court
Proponents of the bill repeatedly emphasized that the
Supreme Court had erroneously interpreted congressional
intent and that amending legislation was necessary to re-
establish the principles of Title VII law as they had been
understood prior to the Gilbert decision Many of them
expressly agreed with the views of the dissenting Justices 17
As petitioner argues, congressional discussion focused on
the needs of female members of the work force rather than
spouses of male employees This does not create a "negative
inference" limiting the scope of the Act to the specific prob-
lem that motivated its enactment See United States v
17 Id , at 7-8 ("the bill is merely reestablishing the law as it was under-
stood prior to Gilbert by the EEOC and by the lower courts"), H R Rep
No 95-948, supra, at 8 (same), 123 Cong Rec 10581 (1977) (remarks of
Rep Hawkins) ("H R 5055 does not really add anything to title VII as I
and, I believe, most of my colleagues in Congress when title VII was en-
acted in 1964 and amended in 1972, understood the prohibition against sex
discrimination in employment For, it seems only commonsense, that
since only women can become pregnant, discrimination against pregnant
people is necessarily discrimination against women, and that forbidding
discrimination based on sex therefore clearly forbids discrimination based
on pregnancy"), id , at 29387 (remarks of Sen Javits) ("this bill is simply
corrective legislation, designed to restore the law with respect to pregnant
women employees to the point where it was last year, before the Supreme
Court's decision in Gilbert "), id , at 29647, id , at 29655 (remarks of
Sen Javits) (**What we are doing is leaving the situation the way it was
before the Supreme Court decided the Gilbert case last year"), 124 Cong
Rec 21436 (1978) (remarks of Rep Sarasin) ("This bill would restore the
interpretation of title VII prior to that decision")
For statements expressly approving the views of the dissenting Justices
that pregnancy discrimination is discrimination on the basis of sex, see
Leg Hist , at 18 (remarks of Sen Bayh, Mar 18, 1977, 123 Cong Rec
8144), 24 (remarks of Rep Hawkins, Apr 5, 1977, 123 Cong Rec 10582),
67 (remarks of Sen Javits, Sept 15, 1977, 123 Cong Rec 29387), 73 (re-
marks of Sen Bayh, Sept 16, 1977, 123 Cong Rec 29641), 134 (remarks of
Sen Mathias, Sept 16, 1977, 123 Cong Rec 29663-29664), 168 (remarks of
Rep Sarasin, July 18, 1978, 124 Cong Rec 21436) See also Discrimina-
tion on the Basis of Pregnancy, 1977, Hearings on S 995 before the Sub-
committee on Labor of the Senate Committee on Human Resources, 95th
Cong , 1st Sess , 13 (1977) (statement of Sen Bayh), id , at 37, 51 (state-
ment of Assistant Attorney General for Civil Rights Drew S Days)
680 OCTOBER TERM, 1982
Opinion of the Court 462 TJ o
Turkette, 452 U S 576, 591 (1981) Cf McDonald v Santa
Fe Trail Transp Co , 427 U S 273, 285-296 (1976) 18 Con
gress apparently assumed that existing plans that included
benefits for dependents typically provided no less pregnancy-
related coverage for the wives of male employees than they
did for female employees 19 When the question of differen
tial coverage for dependents was addressed in the Senate Re-
port, the Committee indicated that it should be resolved "on
the basis of existing title VII principles "20 The legislative
18 In McDonald, the Court held that 42 U S C § 1981, which gives "[a]ll
persons within the jurisdiction of the United States the same right in
every State and Territory to make and enforce contracts as is eiyoyed
by white citizens/' protects whites against discrimination on the basis of
race even though the "immediate impetus for the bill was the necessity for
further relief of the constitutionally emancipated former Negro slaves "
427 U S , at 289
19 This, of course, was true of petitioner's plan prior to the enactment of
the statute See supra, at 672 See S Rep No 95-331, supra n 16, at
6, Leg Hist , at 43 ("Presumably because plans which provide comprehen
sive medical coverage for spouses of women employees but not spouses of
male employees are rare, we are not aware of any Title VII litigation con
cermng such plans It is certainly not this committee's desire to encour
age the institution of such plans"), 123 Cong Rec 29663 (1977) (remarks of
Sen Cranston), Brief for Respondent 31-33, n 31
20 "Questions were raised in the committee's deliberations regarding how
this bill would affect medical coverage for dependents of employees, as op-
posed to employees themselves In this context it must be remembered
that the basic purpose of this bill is to protect women employees, it does
not alter the basic principles of title VII law as regards sex discrimination*
Rather, this legislation clarifies the definition of sex discrimination for title
VII purposes Therefore the question in regard to dependents' benefits
would be determined on the basis of existing title VII principles " S Rep
No 95-331, supra n 16, at 5-6, Leg Hist , at 42-43
This statement does not imply that the new statutory definition has no ap-
plicability, it merely acknowledges that the new definition does not itself
resolve the question
The dissent quotes extensive excerpts from an exchange on the Senate
floor between Senators Hatch and Williams Post, at 692-693 Taken in
context, this colloquy clearly deals only with the second clause of the bill, see
n 14, supra, and Senator Williams, the principal sponsor of the legislation,
addressed only the bill's effect on income maintenance plans Leg Hist,
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 681
$59 Opinion of the Court
context makes it clear that Congress was not thereby refer-
ring to the view of Title VII reflected in this Court's Gilbert
opinion Proponents of the legislation stressed throughout
the debates that Congress had always intended to protect all
individuals from sex discrimination in employment — includ-
ing but not limited to pregnant women workers 21 Against
at 80 Senator Williams first stated, in response to Senator Hatch "With
regard to more maintenance plans for pregnancy-related disabilities, I do
not see how this language could be misunderstood " Upon further inquiry
from Senator Hatch, he replied "If there is any ambiguity, with regard to
income maintenance plans, I cannot see it " At the end of the same re-
sponse, he stated "It is narrowly drawn and would not give any employee
the right to obtain income maintenance as a result of the pregnancy of
someone who is not an employee " Ibid These comments, which clearly
limited the scope of Senator Williams' responses, are omitted from the dis-
sent's lengthy quotation, post, at 692-693
Other omitted portions of the colloquy make clear that it was logical to
discuss the pregnancies of employees' spouses in connection with income
maintenance plans Senator Hatch asked, "what about the status of a
woman co worker who is not pregnant but rides with a pregnant woman and
cannot get to work once the pregnant female commences her maternity
leave or the employed mother who stays home to nurse her pregnant
daughter7" Leg Hist , at 80 The reference to spouses of male employ-
ees must be understood in light of these hypothetical questions, it seems to
address the situation in which a male employee wishes to take time off from
work because his wife is pregnant
21 See, e g , 123 Cong Rec 7539 (1977) (remarks of Sen Williams) ("the
Court has ignored the congressional intent in enacting title VII of the Civil
Rights Act — that intent was to protect all individuals from unjust employ-
ment discrimination, including pregnant workers"), id > at 29385, 29652
In light of statements such as these, it would be anomalous to hold that
Congress provided that an employee's pregnancy is sex-based, while a
spouse's pregnancy is gender neutral
During the course of the Senate debate on the Pregnancy Discrimination
Act, Senator Bayh and Senator Cranston both expressed the belief that the
new Act would prohibit the exclusion of pregnancy coverage for spouses if
spouses were otherwise fully covered by an insurance plan See id , at
29642, 29663 Because our holding relies on the 1978 legislation only to
the extent that it unequivocally rejected the Gilbert decision, and ulti-
mately we rely on our understanding of general Title VII principles, we
attach no more significance to these two statements than to the many other
682 OCTOBER TERM, 1982
Opinion of the Court 462 U S
this background we review the terms of the amended statute
to decide whether petitioner has unlawfully discriminated
against its male employees
II
Section 703(a) makes it an unlawful employment practice
for an employer to "discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, reli-
gion, sex, or national origin " 42 U S C §2000e-2(a)
(1) Health insurance and other fringe benefits are "com-
pensation, terms, conditions, or privileges of employment "
Male as well as female employees are protected against dis-
crimination Thus, if a private employer were to provide
complete health insurance coverage for the dependents of its
female employees, and no coverage at all for the dependents
of its male employees, it would violate Title VII ffi Such a
comments by both Senators and Congressmen disapproving the Court's
reasoning and conclusion in Gilbert See n 17, supra
22 Consistently since 1970 the EEOC has considered it unlawful under
Title VII for an employer to provide different insurance coverage for
spouses of male and female employees See Guidelines On Discrinuna
tion Because of Sex, 29 CFR § 1604 9(d) (1982), Commission Decision
No 70-510, CCH EEOC Decisions (1973) 116132 (1970) (accident and
sickness insurance), Commission Decision No 70-513, CCH EEOC Deci-
sions (1973) f 6114 (1970) (death benefits to surviving spouse), Commission
Decision No 70-660, CCH EEOC Decisions (1973) 116133 (1970) (health
insurance), Commission Decision No 71-1100, CCH EEOC Decisions
(1973) H6197 (1970) (group insurance)
Similarly, in our Equal Protection Clause cases we have repeatedly held
that, if the spouses of female employees receive less favorable treatment
in the provision of benefits, the practice discriminates not only against
the spouses but also against the female employees on the basis of sex
Frontiero v Richardson, 411 U S 677, 688 (1973) (opinion of BRENNAN,
J ) (increased quarters allowances and medical and dental benefits), id , at
691 (POWELL, J , concurring in judgment), Weinberger v Wiesenfeld, 4&)
U S 636, 645 (1975) (Social Security benefits for surviving spouses), see
also id , at 654-655 (POWELL, J , concurring), Cahfano v Goldfarb, 430
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 683
669 Opinion of the Court
practice would not pass the simple test of Title VII dis-
crimination that we enunciated in Los Angeles Dept of Water
& Power v Manhart, 435 U S 702, 711 (1978), for it would
treat a male employee with dependents " 'in a manner which
but for that person's sex would be different '"* The same
result would be reached even if the magnitude of the dis-
crimination were smaller For example, a plan that pro-
vided complete hospitalization coverage for the spouses of
female employees but did not cover spouses of male employ-
ees when they had broken bones would violate Title VII by
discriminating against male employees
Petitioner's practice is just as unlawful Its plan provides
limited pregnancy-related benefits for employees' wives, and
affords more extensive coverage for employees' spouses for
all other medical conditions requiring hospitalization Thus
U S 199, 207-208 (1977) (opinion of BRENNAN, J ) (Social Security bene-
fits for surviving spouses), Wengler v Druggists Mutual Ins Co , 446
U S 142, 147 (1980) (workers' compensation death benefits for surviving
spouses)
23 The Manhart case was decided several months before the Pregnancy
Discrimination Act was passed Although it was not expressly discussed
in the legislative history, it set forth some of the "existing title VII princi-
ples" on which Congress relied Cf Cannon v University of Chicago, 441
U S 677, 696-698 (1979) In Manhart the Court struck down the em-
ployer's policy of requiring female employees to make larger contributions
to its pension fund than male employees, because women as a class tend to
live longer than men
"An employment practice that requires 2,000 individuals to contribute
more money into a fund than 10,000 other employees simply because each
of them is a woman, rather than a man, is in direct conflict with both the
language and the policy of the Act Such a practice does not pass the sim-
ple test of whether the evidence shows 'treatment of a person m a manner
which but for that person's sex would be different ' It constitutes dis-
crimination and is unlawful unless exempted by the Equal Pay Act of 1963
or some other affirmative justification w 435 U S , at 711
The internal quotation was from Developments in the Law, Employment
Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv L
Rev 1109, 1170 (1971)
684 OCTOBER TERM, 1982
Opinion of the Court 4$2 u S
the husbands of female employees receive a specified level of
hospitalization coverage for all conditions, the wives of male
employees receive such coverage except for pregnancy-
related conditions * Although Gilbert concluded that an
otherwise inclusive plan that singled out pregnancy-related
benefits for exclusion was nondiscrimmatory on its face, be-
cause only women can become pregnant, Congress has un-
equivocally rejected that reasoning The 1978 Act makes
clear that it is discriminatory to treat pregnancy-related condi-
tions less favorably than other medical conditions Thus peti-
tioner's plan unlawfully gives married male employees a bene-
fit package for their dependents that is less inclusive than the
dependency coverage provided to married female employees
There is no merit to petitioner's argument that the prohi-
bitions of Title VII do not extend to discrimination against
pregnant spouses because the statute applies only to dis-
crimination in employment A two-step analysis demon-
strates the fallacy in this contention The Pregnancy Dis-
crimination Act has now made clear that, for all Title VII
purposes, discrimination based on a woman's pregnancy is,
on its face, discrimination because of her sex And since the
sex of the spouse is always the opposite of the sex of the
employee, it follows inexorably that discrimination against
female spouses in the provision of fringe benefits is also
discrimination against male employees Cf Wengler v
Druggists Mutual Ins Co , 446 U S 142, 147 (1980) » By
24 This policy is analogous to the exclusion of broken bones for the wives
of male employees, except that both employees' wives and employees' hus-
bands may suffer broken bones, but only employees' wives can become
pregnant
25 See n 22, supra This reasoning does not require that a medical insur
ance plan treat the pregnancies of employees' wives the same as the preg-
nancies of female employees For example, as the EEOC recognizes,
see n 9, supra (Question 22), an employer might provide full coverage for
employees and no coverage at all for dependents Similarly, a disability
plan covering employees' children may exclude or limit maternity benefits
Although the distinction between pregnancy and other conditions is, ae
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 685
669 REHNQUIST, J , dissenting
making clear that an employer could not discriminate on the
basis of an employee's pregnancy, Congress did not erase the
original prohibition against discrimination on the basis of an
employee's sex
In short, Congress' rejection of the premises of General
Electric Co v Gilbert forecloses any claim that an insurance
program excluding pregnancy coverage for female beneficiar-
ies and providing complete coverage to similarly situated
male beneficiaries does not discriminate on the basis of sex
Petitioner's plan is the mirror image of the plan at issue in
Gilbert The pregnancy limitation in this case violates Title
VII by discriminating against male employees *
The judgment of the Court of Appeals is
Affirmed
JUSTICE REHNQUIST, with whom JUSTICE POWELL joins,
dissenting
In General Electric Co v Gilbert, 429 U S 125 (1976), we
held that an exclusion of pregnancy from a disability-benefits
cording to the 1978 Act, discrimination "on the basis of sex," the exclusion
affects male and female employees equally since both may have pregnant
dependent daughters The EEOC's guidelines permit differential treat-
ment of the pregnancies of dependents who are not spouses See 44 Fed
Reg 28804, 23805, 23807 (1979)
86 Because the 1978 Act expressly states that exclusion of pregnancy cov-
erage is gender-based discrimination on its face, it eliminates any need to
consider the average monetary value of the plan's coverage to male and fe-
male employees Cf Gilbert, 429 U S , at 137-140
The cost of providing complete health insurance coverage for the depend-
ents of male employees, including pregnant wives, might exceed the cost of
providing such coverage for the dependents of female employees But al-
though that type of cost differential may properly be analyzed in passing on
the constitutionality of a State's health insurance plan, see GeduMig v
Aiello, 417 U S 484 (1974), no such justification is recognized under Title
VII once discrimination has been shown Manhart, 435 U S , at 716-717,
29 CFR § 1604 9(e) (1982) ("It shall not be a defense under Title VII to a
charge of sex discrimination in benefits that the cost of such benefits is
greater with respect to one sex than the other")
686 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 452 u S
plan is not discrimination "because of [an] individual's
sex" within the meaning of Title VII of the Civil Rights Act
of 1964, §703(a)(l), 78 Stat 255, 42 U S C § 2000e-2(a)(l) l
In our view, therefore, Title VII was not violated by an
employer's disability plan that provided all employees with
nonoccupational sickness and accident benefits, but excluded
from the plan's coverage disabilities arising from pregnancy
Under our decision in Gilbert, petitioner's otherwise inclusive
benefits plan that excludes pregnancy benefits for a male em-
ployee's spouse clearly would not violate Title VII For a
different result to obtain, Gilbert would have to be judicially
overruled by this Court or Congress would have to legisla-
tively overrule our decision in its entirety by amending Title
VII
Today, the Court purports to find the latter by relying on
the Pregnancy Discrimination Act of 1978, Pub L 95-555, 92
Stat 2076, 42 U S C § 2000e(k) (1976 ed , Supp V), a stat-
ute that plainly speaks only of female employees affected by
pregnancy and says nothing about spouses of male employ-
ees 2 Congress, of course, was free to legislatively overrule
Gilbert in whole or in part, and there is no question but what
the Pregnancy Discrimination Act manifests congressional
dissatisfaction with the result we reached in Gilbert But I
think the Court reads far more into the Pregnancy Dis-
crimination Act than Congress put there, and that therefore
it is the Court, and not Congress, which is now overruling
Gilbert
1 In Gilbert the Court did leave open the possibility of a violation where
there is a showing that " 'distinctions involving pregnancy are mere pre-
texts designed to effect an invidious discrimination against members of one
sex or the other > " 429 U S , at 135 (quoting Geduldig v Awllo, 417
U S 484, 496-497, n 20 (1974))
2 By referring to "female employees," I do not intend to imply that the
Pregnancy Discrimination Act does not also apply to "female applicants
for employment " I simply use the former reference as a matter of
convenience
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 687
669 REHNQUIST, J , dissenting
In a case presenting a relatively simple question of statu-
tory construction, the Court pays virtually no attention to
the language of the Pregnancy Discrimination Act or the
legislative history pertaining to that language The Act
provides in relevant part
"The terms 'because of sex' or 'on the basis of sex' in-
clude, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical conditions,
and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes, including receipt of bene-
fits under fringe benefit programs, as other persons not
so affected but similar in their ability or inability to
work " 42 U S C §2000e(k) (1976 ed , Supp V)
The Court recognizes that this provision is merely defini-
tional and that "[ultimately the question we must decide
is whether petitioner has discriminated against its male
employees because of their sex within the meaning of
§703(a)(l)" of Title VII Ante, at 675 Section 7GS(aXD
provides in part
"It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin
99 42 U S C §2000e-2(a)(l)
It is undisputed that in § 703(a)(l) the word "individual" re-
fers to an employee or applicant for employment As modi-
fied by the first clause of the definitional provision of the
Pregnancy Discrimination Act, the proscription in § 703{aXl)
is for discrimination "against any individual because of
indimd/aaVs pregnancy, childbirth, or related inedi-
688 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 452 u S
cal conditions " This can only be read as referring to the
pregnancy of an employee
That this result was not inadvertent on the part of Con-
gress is made very evident by the second clause of the Act,
language that the Court essentially ignores in its opinion
When Congress in this clause further explained the proscrip-
tion it was creating by saying that "women affected by preg-
nancy shall be treated the same as other persons not
so affected but similar in their ability or inability to work" it
could only have been referring to female employees The
Court of Appeals below stands alone in thinking otherwise 3
The Court concedes that this is a correct reading of the sec-
ond clause Ante, at 678, n 14 Then in an apparent effort
to escape the impact of this provision, the Court asserts that
"[t]he meaning of the first clause is not limited by the specific
language in the second clause " Ibid I do not disagree
But this conclusion does not help the Court, for as explained
above, when the definitional provision of the first clause is in-
serted in §703(a)(l), it says the very same thing the pro-
scription added to Title VII applies only to female employees
The plain language of the Pregnancy Discrimination Act
leaves little room for the Court's conclusion that the Act was
3 See EEOC v Joslyn Mfg & Supply Co , 706 F 2d 1469, 1476-1477
(CA7 1983), EEOC v Lockheed Missiles & Space Co , 680 F 2d 1243, 1245
(CA9 1982)
The Court of Appeals* majority, responding to the dissent's reliance on
this language, excused the import of the language by saying "The statu
tory reference to 'ability or inability to work* denotes disability and does
not suggest that the spouse must be an employee of the employer providing
the coverage In fact, the statute says 'as other persons not so affected', it
does not say 'as other employees not so affected ' " 667 F 2d 448, 450-
451 (CA4 1982) This conclusion obviously does not comport with a
common sense understanding of the language The logical explanation for
Congress' reference to "persons" rather than "employees" is that Con
gress intended that the amendment should also apply to applicants for
employment
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 689
669 REHNQUIST, J , dissenting
intended to extend beyond female employees The Court
concedes that "congressional discussion focused on the needs
of female members of the work force rather than spouses of
male employees " Ante, at 679 In fact, the singular focus
of discussion on the problems of the pregnant worker is
striking
When introducing the Senate Report on the bill that later
became the Pregnancy Discrimination Act, its principal spon-
sor, Senator Williams, explained
"Because of the Supreme Court's decision in the Gil-
bert case, this legislation is necessary to provide funda-
mental protection against sex discrimination for our
Nation's 42 million working women This protection will
go a long way toward insuring that American women are
permitted to assume their rightful place in our Nation's
economy
"In addition to providing protection to working women
with regard to fringe benefit programs, such as health
and disability insurance programs, this legislation will
prohibit other employment policies which adversely af-
fect pregnant workers " 124 Cong Rec 36817 (1978)
(emphasis added) 4
4 Reprinted in a Committee Print prepared for the Senate Committee on
Labor and Human Resources, 96th Cong , 2d Sess , Legislative History of
the Pregnancy Discrimination Act of 1978, pp 200-201 (1979) (hereinafter
referred to as Leg Hist ) In the foreword to the official printing of the
Act's legislative history, Senator Williams further described the purpose of
the Act, saying
"The Act provides an essential protection for working women The
number of women m the labor force has increased dramatically in recent
years Most of these women are working or seeking work because of the
economic need to support themselves or their families It is expected that
this trend of increasing participation by women in the workforce will con
tinue in the future and that an increasing proportion of working women will
be those who are mothers It is essential that these women and their chil-
dren be fully protected against the harmful effects of unjust employment
discrimination on the basis of pregnancy w Id , at III
690 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 452 u g
As indicated by the examples in the margin,5 the Congres-
sional Record is overflowing with similar statements by mdi
vidual Members of Congress expressing their intention to
ensure with the Pregnancy Discrimination Act that working
women are not treated differently because of pregnancy
Consistent with these views, all three Committee Reports on
the bills that led to the Pregnancy Discrimination Act ex-
5 See 123 Cong Rec 8145 (1977), Leg Hist , at 21 (remarks of Sen
Bayh) (bill will "help provide true equality for working women of this Na
turn"), 123 Cong Rec 29385 (1977), Leg Hist , at 62-63 (remarks of Sen
Williams) ("central purpose of the bill is to require that women workers be
treated equally with other employees on the basis of their ability or inabil
ity to work"), 124 Cong Rec 36818 (1978), Leg Hist , at 203 (remarks of
Sen Javits) ("bill represents only basic fairness for women employees"),
124 Cong Rec 36819 (1978), Leg Hist , at 204 (remarks of Sen Stafford)
(bill will end "major source of discrimination unjustly afflicting working
women in America"), 124 Cong Rec 21437 (1978), Leg Hist , at 172 (re-
marks of Rep Green) (bill "will provide rights workmgwomen should have
had years ago"), 124 Cong Rec 21439 (1978), Leg Hist , at 177 (remarks
of Rep Quie) (bill is "necessary in order for women employees to enjoy
equal treatment m fringe benefit programs"), 124 Cong Rec 21439 (1978),
Leg Hist , at 178 (remarks of Rep Akaka) ("bill simply requires that preg
nant workers be fairly and equally treated")
See also 123 Cong Rec 7541 (1977), Leg Hist , at 7 (remarks of Sen.
Brooke), 123 Cong Rec 7541, 29663 (1977), Leg Hist , at 8, 134 (re-
marks of Sen Mathias), 123 Cong Rec 29388 (1977), Leg Hist , at 71
(remarks of Sen Kennedy), 123 Cong Rec 29661 (1977), Leg Hist , at
126 (remarks of Sen Biden), 123 Cong Rec 29663 (1977), Leg Hist ,
at 132 (remarks of Sen Cranston), 123 Cong Rec 29663 (1977), Leg
Hist , at 132 (remarks of Sen Culver), 124 Cong Rec 21439 (1978),
Leg Hist , at 178 (remarks of Rep Corrada), 124 Cong Rec 21435, 38573
(1978), Leg Hist , at 168, 207 (remarks of Rep Hawkins), 124 Cong Rec
38574 (1978), Leg Hist , at 208-209 (remarks of Rep Sarasm), 124 Cong
Rec 21440 (1978), Leg Hist , at 180 (remarks of Rep Chisholm), 124
Cong Rec 21440 (1978), Leg Hist , at 181 (remarks of Rep LaFalce),
124 Cong Rec 21441 (1978), Leg Hist , at 182 (remarks of Rep Collins), 124
Cong Rec 21441 (1978), Leg Hist , at 184 (remarks of Rep Whalen),
124 Cong Rec 21442 (1978), Leg Hist , at 185 (remarks of Rep Burke), 124
Cong Rec 21442 (1978), Leg Hist , at 185 (remarks of Rep Tsongas)
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 691
669 REHNQUIST, J , dissenting
pressly state that the Act would require employers to treat
pregnant employees the same as "other employees "6
The Court trys to avoid the impact of this legislative his-
tory by saying that it "does not create a 'negative inference'
limiting the scope of the Act to the specific problem that mo-
tivated its enactment " Ante, at 679 This reasoning might
have some force if the legislative history was silent on an
arguably related issue But the legislative history is not
silent The Senate Report provides
"Questions were raised in the committee's delibera-
tions regarding how this bill would affect medical cover-
age for dependents of employees, as opposed to employ-
ees themselves In this context it must be remembered
that the basic purpose of this bill is to protect women em-
ployees, it does not alter the basic principles of title VII
law as regards sex discrimination [T]he question in
regard to dependents' benefits would be determined on
the basis of existing title VII principles [T]he ques-
tion of whether an employer who does cover dependents,
either with or without additional cost to the employee,
may exclude conditions related to pregnancy from that
coverage is a different matter Presumably because
plans which provide comprehensive medical coverage for
spouses of women employees but not spouses of male
employees are rare, we are not aware of any title VII
litigation concerning such plans It is certainly not this
committee's desire to encourage the institution of such
plans If such plans should be instituted in the future,
the question would remain whether, under title VII, the
affected employees were discriminated against on the
6 See Report of the Senate Committee on Human Resources, S Rep
No 95-331 (1977), Leg Hist , at 38-53, Report of the House Committee on
Education and Labor, H R Rep No 95-948 (1978), Leg Hist , at 147-
164, Report of the Committee of Conference, H R Conf Rep No 95-1786
(1978), Leg Hist , at 194-198
692 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 452 u g
basis of their sex as regards the extent of coverage for
their dependents " S Rep No 95-331, pp 5-6 (1977)
Leg Hist , at 42-43 (emphasis added)
This plainly disclaims any intention to deal with the issue
presented in this case Where Congress says that it would
not want "to encourage" plans such as petitioner's, it cannot
plausibly be argued that Congress has intended "to prohibit"
such plans Senator Williams was questioned on this point
by Senator Hatch during discussions on the floor and his
answers are to the same effect
"MR HATCH The phrase 'women affected by
pregnancy, childbirth or related medical conditions,'
appears to be overly broad, and is not limited in terms of
employment It does not even require that the person
so affected be pregnant
"Indeed under the present language of the bill, it is
arguable that spouses of male employees are covered
by this civil rights amendment
"Could the sponsors clarify exactly whom that phrase
intends to cover7
"MR WILLIAMS I do not see how one can read
into this any pregnancy other than that pregnancy that
relates to the employee, and if there is any ambiguity,
let it be clear here now that this is very precise It
deals with a woman, a woman who is an employee, an
employee in a work situation where all disabilities are
covered under a company plan that provides income
maintenance in the event of medical disability, that her
particular period of disability, when she cannot work
because of childbirth or anything related to childbirth is
excluded
"MR HATCH So the Senator is satisfied that,
though the committee language I brought up, 'woman
NEWPORT NEWS SHIPBUILDING & DRY DOCK v EEOC 693
669 REHNQUIST, J , dissenting
affected by pregnancy' seems to be ambiguous, what it
means is that this act only applies to the particular
woman who is actually pregnant, who is an employee
and has become pregnant after her employment^
"MR WILLIAMS Exactly " 123 Cong Rec 29643-
29644 (1977), Leg Hist , at 80 (emphasis added) 7
It seems to me that analysis of this case should end here
Under our decision in General Electric Co v Gilbert peti-
tioner's exclusion of pregnancy benefits for male employee's
spouses would not offend Title VII Nothing in the Preg-
nancy Discrimination Act was intended to reach beyond fe-
male employees Thus, Gilbert controls and requires that
we reverse the Court of Appeals But it is here, at what
7 The Court suggests that in this exchange Senator Williams is explaining
only that spouses of male employees will not be put on ''income mainte-
nance plans" while pregnant Ante, at 680, n 20 This is utterly illogical
Spouses of employees have no income from the relevant employer to be
maintained Senator Williams clearly says that the Act is limited to
female employees and as to such employees it will ensure income mainte-
nance where male employees would receive similar disability benefits
Senator Hatch's final question and Senator Williams' response could not be
clearer The Act was intended to affect only pregnant workers This is
exactly what the Senate Report said and Senator Williams confirmed that
this is exactly what Congress intended
The only indications arguably contrary to the views reflected in the Sen-
ate Report and the exchange between Senators Hatch and Williams are
found in two isolated remarks by Senators Bayh and Cranston 123 Cong
Rec 29642, 29663 (1977), Leg Hist , at 75, 131 These statements, how-
ever, concern these two Senators' views concerning Title VII sex dis-
crimination as it existed prior to the Pregnancy Discrimination Act Their
conclusions are completely at odds with our decision in General Electric
Co v Gilbert, 429 U S 125 (1976), and are not entitled to deference here
We have consistently said "The views of members of a later Congress, con-
cerning different [unamended] sections of Title VII are entitled to little
if any weight It is the intent of the Congress that enacted [Title VII] in
1964 that controls " Teamsters v Umted States, 431 U S 324, 354,
n 39 (1977) See also Southeastern Community College v Dams, 442
U S 397, 411, n 11 (1979)
694 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 452 u g
should be the stopping place, that the Court begins The
Court says
"Although the Pregnancy Discrimination Act has clari-
fied the meaning of certain terms in this section, neither
that Act nor the underlying statute contains a definition
of the word 'discriminate ' In order to decide whether
petitioner's plan discriminates against male employees
because of their sex, we must therefore go beyond the
bare statutory language Accordingly, we shall con-
sider whether Congress, by enacting the Pregnancy Dis-
crimination Act, not only overturned the specific holding
in General Electric v Gilbert, supra, but also rejected
the test of discrimination employed by the Court m that
case We believe it did " Ante, at 675-676
It would seem that the Court has refuted its own argument
by recognizing that the Pregnancy Discrimination Act only
clarifies the meaning of the phrases "because of sex" and "on
the basis of sex," and says nothing concerning the definition
of the word "discriminate "8 Instead the Court proceeds to
try to explain that while Congress said one thing, it did
another
The crux of the Court's reasoning is that even though the
Pregnancy Discrimination Act redefines the phrases "be-
cause of sex" and "on the basis of sex" only to include dis
crimination against female employees affected by pregnancy,
Congress also expressed its view that in Gilbert "the
Supreme Court erroneously interpreted congressional in-
tent " Ante, at 679 See also ante, at 684 Somehow the
Court then concludes that this renders all of Gilbert obsolete
In support of its argument, the Court points to a few pas
sages in congressional Reports and several statements by
8 The Court also concedes at one point that the Senate Report on the
Pregnancy Discrimination Act "acknowledges that the new definition [m
the Act] does not itself resolve the question" presented in this case Ante,
at 680, n 20
NEWPORT NEWS SHIPBUILDING & DRY DOCK v. EEOC 695
559 REHNQUIST, J., dissenting
various Members of the 95th Congress to the effect that the
Court in Gilbert had, when it construed Title VII, misper-
ceived the intent of the 88th Congress. Ante, at 679, n. 17.
The Court also points out that "[m]any of [the Members of
the 95th Congress] expressly agreed with the views of the
dissenting Justices." Ante, at 679. Certainly various
Members of Congress said as much. But the fact remains
that Congress as a body has not expressed these sweeping
views in the Pregnancy Discrimination Act.
Under our decision in General Electric Co. v. Gilbert, peti-
tioner's exclusion of pregnancy benefits for male employees'
spouses would not violate Title VII. Since nothing in the
Pregnancy Discrimination Act even arguably reaches beyond
female employees affected by pregnancy, Gilbert requires
that we reverse the Court of Appeals. Because the Court
concludes otherwise, I dissent.
696 OCTOBER TERM, 1982
Syllabus 462 U S
UNITED STATES v PLACE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No 81-1617 Argued March 2, 1983— Decided June 20, 1983
When respondent's behavior aroused the suspicion of law enforcement offi
cers as he waited in line at the Miami International Airport to purchase a
ticket to New York's La Guardia Airport, the officers approached re
spondent and requested and received identification Respondent con
sented to a search of the two suitcases he had checked, but because his
flight was about to depart the officers decided not to search the luggage
The officers then found some discrepancies in the address tags on the
luggage and called Drug Enforcement Administration (DE A) authorities
m New York to relay this information Upon respondent's arrival at La
Guardia Airport, two DEA agents approached him, said that they be-
lieved he might be carrying narcotics, and asked for and received iden
tification When respondent refused to consent to a search of his
luggage, one of the agents told him that they were going to take it to a
federal judge to obtain a search warrant The agents then took the lug
gage to Kennedy Airport where it was subjected to a "sniff test" by a
trained narcotics detection dog which reacted positively to one of the
suitcases At this point, 90 minutes had elapsed since the seizure of the
luggage Thereafter, the agents obtained a search warrant for that
suitcase and upon opening it discovered cocaine Respondent was in
dieted for possession of cocaine with intent to distribute, and the District
Court denied his motion to suppress the contents of the suitcase He
pleaded guilty to the charge and was convicted, but reserved the right to
appeal the denial of his motion to suppress The Court of Appeals
reversed, holding that the prolonged seizure of respondent's luggage
exceeded the limits of the type of investigative stop permitted by Terry
v Ohw> 392 U S 1, and hence amounted to a seizure without probable
cause in violation of the Fourth Amendment
Held Under the circumstances, the seizure of respondent's luggage vio-
lated the Fourth Amendment Accordingly, the evidence obtained from
the subsequent search of the luggage was inadmissible, and respondent's
conviction must be reversed Pp 700-710
(a) When an officer's observations lead him reasonably to believe that
a traveler is carrying luggage that contains narcotics, the principles of
Terry and its progeny permit the officer to detain the luggage temporar
ily to investigate the circumstances that aroused the officer's suspicion,
UNITED STATES v PLACE 697
696 Opinion of the Court
provided that the investigative detention is properly limited in scope
Pp 700-706
(b) The investigative procedure of subjecting luggage to a "sniff test"
by a well-trained narcotics detection dog does not constitute a "search"
within the meaning of the Fourth Amendment Pp 706-707
(c) When the police seize luggage from the suspect's custody, the limi-
tations applicable to investigative detentions of the person should define
the permissible scope of an investigative detention of the luggage on less
than probable cause Under this standard, the police conduct here ex-
ceeded the permissible limits of a Terry-type investigative stop The
length of the detention of respondent's luggage alone precludes the con-
clusion that the seizure was reasonable in the absence of probable cause
This Fourth Amendment violation was exacerbated by the DBA agents'
failure to inform respondent accurately of the place to which they were
transporting his luggage, of the length of time he might be dispossessed,
and of what arrangements would be made for return of the luggage if the
investigation dispelled the suspicion Pp 707-710
660 F 2d 44, affirmed
O'CONNOR, J , delivered the opinion of the Court, in which BURGER,
C J , and WHITE, POWELL, REHNQUIST, and STEVENS, JJ , joined
BRENNAN, J , filed an opinion concurring in the result, in which MAR-
SHALL, J , joined, post, p 710 BLACKMUN, J , filed an opinion concurring
in the judgment, in which MARSHALL, J , joined, post, p 720
Alan I Horowitz argued the cause for the United States
With him on the briefs were Solicitor General Lee, Assistant
Attorney General Jensen, Deputy Solicitor General Frey,
and John Fichter De Pue
James D Clark argued the cause and filed a brief for
respondent *
JUSTICE O'CONNOR delivered the opinion of the Court
This case presents the issue whether the Fourth Amend-
ment prohibits law enforcement authorities from temporarily
*Fred E Inbau, Wayne W Schmidt, James P Manak, Evelle J
Younger, and Howard G Bemnger filed a brief for Americans for Effec-
tive Law Enforcement, Inc , et al as amici cunae urging reversal
Richard Emery and Charles S Sims filed a brief for the American Civil
Liberties Union et al as amici cunae urging affirmance
698 OCTOBER TERM, 1982
Opinion of the Court 462 U S
detaining personal luggage for exposure to a trained narcot-
ics detection dog on the basis of reasonable suspicion that the
luggage contains narcotics Given the enforcement prob-
lems associated with the detection of narcotics trafficking and
the minimal intrusion that a properly limited detention would
entail, we conclude that the Fourth Amendment does not
prohibit such a detention On the facts of this case, how-
ever, we hold that the police conduct exceeded the bounds of
a permissible investigative detention of the luggage
Respondent Raymond J Place's behavior aroused the sus-
picions of law enforcement officers as he waited in line at the
Miami International Airport to purchase a ticket to New
York's La Guardia Airport As Place proceeded to the gate
for his flight, the agents approached him and requested his
airline ticket and some identification Place complied with
the request and consented to a search of the two suitcases he
had checked Because his flight was about to depart, how-
ever, the agents decided not to search the luggage
Prompted by Place's parting remark that he had recog-
nized that they were police, the agents inspected the address
tags on the checked luggage and noted discrepancies in the
two street addresses Further investigation revealed that
neither address existed and that the telephone number Place
had given the airline belonged to a third address on the same
street On the basis of their encounter with Place and this
information, the Miami agents called Drug Enforcement Ad-
ministration (DEA) authorities in New York to relay their
information about Place
Two DEA agents waited for Place at the arrival gate at
La Guardia Airport in New York There again, his behavior
aroused the suspicion of the agents After he had claimed
his two bags and called a limousine, the agents decided to ap-
proach him They identified themselves as federal narcotics
agents, to which Place responded that he knew they were
"cops" and had spotted them as soon as he had deplaned
UNITED STATES v PLACE 699
696 Opinion of the Court
One of the agents informed Place that, based on their own ob-
servations and information obtained from the Miami authori-
ties, they believed that he might be carrying narcotics
After identifying the bags as belonging to him, Place stated
that a number of police at the Miami Airport had surrounded
him and searched his baggage The agents responded that
their information was to the contrary The agents requested
and received identification from Place — a New Jersey driver's
license, on which the agents later ran a computer check that
disclosed no offenses, and his airline ticket receipt When
Place refused to consent to a search of his luggage, one of
the agents told him that they were going to take the luggage
to a federal judge to try to obtain a search warrant and
that Place was free to accompany them Place declined, but
obtained from one of the agents telephone numbers at which
the agents could be reached
The agents then took the bags to Kennedy Airport, where
they subjected the bags to a "sniff test" by a trained narcotics
detection dog The dog reacted positively to the smaller of
the two bags but ambiguously to the larger bag Approxi-
mately 90 minutes had elapsed since the seizure of respond-
ent's luggage Because it was late on a Friday afternoon,
the agents retained the luggage until Monday morning, when
they secured a search warrant from a Magistrate for the
smaller bag Upon opening that bag, the agents discovered
1,125 grams of cocaine
Place was indicted for possession of cocaine with intent to
distribute in violation of 21 U S C §841(a)(l) In the Dis-
trict Court, Place moved to suppress the contents of the lug-
gage seized from him at La Guardia Airport, claiming that
the warrantless seizure of the luggage violated his Fourth
Amendment rights 1 The District Court denied the motion
1 In support of his motion, respondent also contended that the detention
of his person at both the Miami and La Guardia Airports was not based on
reasonable suspicion and that the "sniff test" of his luggage was conducted
in a manner that tainted the dog's reaction 498 F Supp 1217, 1221, 1228
700 OCTOBER TERM, 1982
Opinion of the Court 462 u g
Applying the standard of Terry v Ohio, 392 U S 1 (1968), to
the detention of personal property, it concluded that de-
tention of the bags could be justified if based on reasonable
suspicion to believe that the bags contained narcotics Find-
ing reasonable suspicion, the District Court held that
Place's Fourth Amendment rights were not violated by sei-
zure of the bags by the DEA agents 498 F Supp 1217,
1228 (EDNY 1980) Place pleaded guilty to the possession
charge, reserving the right to appeal the denial of his motion
to suppress
On appeal of the conviction, the United States Court of Ap-
peals for the Second Circuit reversed 660 F 2d 44 (1981)
The majority assumed both that Terry principles could be
applied to justify a warrantless seizure of baggage on less
than probable cause and that reasonable suspicion existed to
justify the investigatory stop of Place The majority con-
cluded, however, that the prolonged seizure of Place's bag-
gage exceeded the permissible limits of a Terry-type investi-
gative stop and consequently amounted to a seizure without
probable cause in violation of the Fourth Amendment
We granted certioran, 457 US 1104 (1982), and now
affirm
II
The Fourth Amendment protects the "right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures " (Emphasis
added ) Although in the context of personal property, and
particularly containers, the Fourth Amendment challenge is
(EDNY 1980) The District Court rejected both contentions As to the
former, it concluded that the agents had reasonable suspicion to believe
that Place was engaged in criminal activity when he was detained at the
two airports and that the stops were therefore lawful Id , at 1225, 1226
On appeal, the Court of Appeals did not reach this issue, assuming the ex
istence of reasonable suspicion Respondent Place cross-petitioned in this
Court on the issue of reasonable suspicion, and we denied certioran
Place v United States, 457 U S 1106 (1982) We therefore have no occa-
sion to address the issue here
UNITED STATES v PLACE 701
696 Opinion of the Court
typically to the subsequent search of the container rather
than to its initial seizure by the authorities, our cases reveal
some general principles regarding seizures In the ordinary
case, the Court has viewed a seizure of personal property
as per se unreasonable within the meaning of the Fourth
Amendment unless it is accomplished pursuant to a judicial
warrant issued upon probable cause and particularly describ-
ing the items to be seized 2 See, e g , Marron v United
States, 275 U S 192, 196 (1927) Where law enforcement
authorities have probable cause to believe that a container
holds contraband or evidence of a crime, but have not secured
a warrant, the Court has interpreted the Amendment to per-
mit seizure of the property, pending issuance of a warrant to
examine its contents, if the exigencies of the circumstances
demand it or some other recognized exception to the warrant
requirement is present See, e g , Arkansas v Sanders,
442 U S 753, 761 (1979), Umted States v Chadwick, 433
U S 1 (1977), Coolidge v New Hampshire, 403 U S 443
(1971) 3 For example, "objects such as weapons or contra-
band found in a public place may be seized by the police with-
out a warrant/' Pay ton v New York, 445 U S 573, 587
(1980), because, under these circumstances, the risk of the
item's disappearance or use for its intended purpose before a
2 The Warrant Clause of the Fourth Amendment provides that "no War-
rants shall issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized "
8 In Sanders, the Court explained
"The police acted properly — indeed commendably — in apprehending re-
spondent and his luggage They had ample probable cause to believe that
respondent's green suitcase contained marihuana Having probable
cause to believe that contraband was being driven away in the taxi, the
police were justified in stopping the vehicle and seizing the suitcase
they suspected contained contraband " 442 U S , at 761
The Court went on to hold that the police violated the Fourth Amendment
in immediately searching the luggage rather than first obtaining a warrant
authorizing the search Id , at 766 That holding was not affected by our
recent decision in Umted States v .Ross, 456 U S 798, 824 (1982)
702 OCTOBER TERM, 1982
Opinion of the Court 462 u S
warrant may be obtained outweighs the interest in posses-
sion See also G M Leasing Corp v United States, 429
U S 338, 354 (1977)
In this case, the Government asks us to recognize the
reasonableness under the Fourth Amendment of warrantless
seizures of personal luggage from the custody of the owner on
the basis of less than probable cause, for the purpose of pur-
suing a limited course of investigation, short of opening the
luggage, that would quickly confirm or dispel the authorities'
suspicion Specifically, we are asked to apply the principles
of Terry v Ohio, supra, to permit such seizures on the basis
of reasonable, articulable suspicion, premised on objective
facts, that the luggage contains contraband or evidence of a
crime In our view, such application is appropriate
In Terry the Court first recognized "the narrow authority
of police officers who suspect criminal activity to make lim-
ited intrusions on an individual's personal security based on
less than probable cause " Michigan v Summers, 452 U S
692, 698 (1981) In approving the limited search for weap-
ons, or "frisk/' of an individual the police reasonably believed
to be armed and dangerous, the Court implicitly acknowl-
edged the authority of the police to make a forcible stop of a
person when the officer has reasonable, articulable suspicion
that the person has been, is, or is about to be engaged in
criminal activity 392 U S , at 22 4 That implicit proposi
tion was embraced openly in Adams v Williams, 407 U S
143, 146 (1972), where the Court relied on Terry to hold that
the police officer lawfully made a forcible stop of the suspect
to investigate an informant's tip that the suspect was carry-
4 In his concurring opinion in Terry, Justice Harlan made this logical un
derpmmng of the Court's Fourth Amendment holding clear
"In the first place, if the frisk is justified in order to protect the officer
during an encounter with a citizen, the officer must first have constitu
tional grounds to insist on an encounter, to make a forcible stop I
would make it perfectly clear that the right to frisk in this case depends
upon the reasonableness of a forcible stop to investigate a suspected
crime " 392 U S , at 32-33
UNITED STATES v PLACE 70S
696 Opinion of the Court
ing narcotics and a concealed weapon See also Michigan v
Summers, supra (limited detention of occupants while au-
thorities search premises pursuant to valid search warrant),
United States v Cortez, 449 U S 411 (1981) (stop near bor-
der of vehicle suspected of transporting illegal aliens), United
States v Brignom-Ponce, 422 U S 873 (1975) (brief investi-
gative stop near border for questioning about citizenship and
immigration status)
The exception to the probable-cause requirement for lim-
ited seizures of the person recognized in Terry and its prog-
eny rests on a balancing of the competing interests to deter-
mine the reasonableness of the type of seizure involved
within the meaning of "the Fourth Amendment's general pro-
scription against unreasonable searches and seizures " 392
U S , at 20 We must balance the nature and quality of the
intrusion on the individual's Fourth Amendment interests
against the importance of the governmental interests alleged
to justify the intrusion When the nature and extent of the
detention are minimally intrusive of the individual's Fourth
Amendment interests, the opposing law enforcement inter-
ests can support a seizure based on less than probable cause
We examine first the governmental interest offered as a
justification for a brief seizure of luggage from the suspect's
custody for the purpose of pursuing a limited course of inves-
tigation The Government contends that, where the au-
thorities possess specific and articulable facts warranting a
reasonable belief that a traveler's luggage contains narcotics,
the governmental interest in seizing the luggage briefly to
pursue further investigation is substantial We agree As
observed in United States v Mendenhall, 446 U S 544, 561
(1980) (opinion of POWELL, J ), "[t]he public has a compelling
interest in detecting those who would traffic in deadly drugs
for personal profit "
Respondent suggests that, absent some special law en-
forcement interest such as officer safety, a generalized inter-
est in law enforcement cannot justify an intrusion on an
individual's Fourth Amendment interests in the absence of
704 OCTOBER TERM, 1982
Opinion of the Court 462 u g
probable cause Our prior cases, however, do not support
this proposition In Terry, we described the governmental
interests supporting the initial seizure of the person as "effec-
tive crime prevention and detection, it is this interest which
underlies the recognition that a police officer may in appro-
priate circumstances and in an appropriate manner approach
a person for purposes of investigating possibly criminal be-
havior even though there is no probable cause to make an ar-
rest " 392 U S , at 22 Similarly, in Michigan v Summers
we identified three law enforcement interests that justified
limited detention of the occupants of the premises during
execution of a valid search warrant "preventing flight in the
event that incriminating evidence is found," "minimizing the
risk of harm" both to the officers and the occupants, and
"orderly completion of the search " 452 U S , at 702-703
Cf Florida v Royer, 460 U S 491, 500 (1983) (plurality
opinion) ("The predicate permitting seizures on suspicion
short of probable cause is that law enforcement interests
warrant a Limited intrusion on the personal security of the
suspect") The test is whether those interests are suffi-
ciently "substantial," 452 U S , at 699, not whether they are
independent of the interest in investigating crimes effectively
and apprehending suspects The context of a particular law
enforcement practice, of course, may affect the determina-
tion whether a brief intrusion on Fourth Amendment inter-
ests on less than probable cause is essential to effective
criminal investigation Because of the inherently transient
nature of drug courier activity at airports, allowing police to
make brief investigative stops of persons at airports on rea
sonable suspicion of drug-trafficking substantially enhances
the likelihood that police will be able to prevent the flow of
narcotics into distribution channels 5
5 Referring to the problem of intercepting drug couriers in the Nation's
airports, JUSTICE POWELL has observed
"Much of the drug traffic is highly organized and conducted by sophisti
cated criminal syndicates The profits are enormous And many drugs
may be easily concealed As a result, the obstacles to detection of
UNITED STATES v PLACE 705
696 Opinion of the Court
Against this strong governmental interest, we must weigh
the nature and extent of the intrusion upon the individual's
Fourth Amendment rights when the police briefly detain
luggage for limited investigative purposes On this point,
respondent Place urges that the rationale for a Terry stop
of the person is wholly inapplicable to investigative deten-
tions of personalty Specifically, the Terry exception to the
probable-cause requirement is premised on the notion that a
Terry-type stop of the person is substantially less intrusive of
a person's liberty interests than a formal arrest In the
property context, however, Place urges, there are no de-
grees of intrusion Once the owner's property is seized, the
dispossession is absolute
We disagree The intrusion on possessory interests occa-
sioned by a seizure of one's personal effects can vary both in
its nature and extent The seizure may be made after the
owner has relinquished control of the property to a third
party or, as here, from the immediate custody and control of
the owner 6 Moreover, the police may confine their investi-
illegal conduct may be unmatched in any other area of law enforcement "
United States v Mendenhall, 446 U S 544, 561-562 (1980)
See Florida v Royer, 460 U S 491, 519 (1983) (BLACKMUN, J , dissent
ing) ("The special need for flexibility in uncovering illicit drug couriers is
hardly debatable") (airport context)
6 One need only compare the facts of this case with those in Umted States
v Van Leeuwen, 397 U S 249 (1970) There the defendant had volun-
tarily relinquished two packages of coins to the postal authorities Sev
eral facts aroused the suspicion of the postal officials, who detained the
packages, without searching them, for about 29 hours while certain lines of
inquiry were pursued The information obtained during this time was suf-
ficient to give the authorities probable cause to believe that the packages
contained counterfeit coins After obtaining a warrant, the authorities
opened the packages, found counterfeit coins therein, resealed the pack
ages, and sent them on their way Expressly limiting its holding to the
facts of the case, the Court concluded that the 29-hour detention of the
packages on reasonable suspicion that they contained contraband did not
violate the Fourth Amendment Id , at 253
As one commentator has noted, "Van Leeuwen was an easy case for the
Court because the defendant was unable to show that the invasion intruded
706 OCTOBER TERM, 1982
Opinion of the Court 462 U S
gation to an on-the-spot inquiry — for example, immediate ex-
posure of the luggage to a trained narcotics detection dog7
or transport the property to another location Given the fact
that seizures of property can vary in intrusiveness, some
brief detentions of personal effects may be so minimally in-
trusive of Fourth Amendment interests that strong counter-
vailing governmental interests will justify a seizure based
only on specific articulable facts that the property contains
contraband or evidence of a crime
In sum, we conclude that when an officer's observations
lead him reasonably to believe that a traveler is carrying
luggage that contains narcotics, the principles of Terry and
its progeny would permit the officer to detain the luggage
briefly to investigate the circumstances that aroused his sus-
picion, provided that the investigative detention is properly
limited in scope
The purpose for which respondent's luggage was seized, of
course, was to arrange its exposure to a narcotics detection
dog Obviously, if this investigative procedure is itself a
search requiring probable cause, the initial seizure of re-
spondent's luggage for the purpose of subjecting it to the
sniff test — no matter how brief — could not be justified on less
than probable cause See Terry v Ohio, 392 U S , at 20,
Umted States v Cortez, 449 U S , at 421, United States v
Brignoni-Ponce, 422 U S , at 881-882, Adams v Williams,
407 U S , at 146
The Fourth Amendment "protects people from unreason-
able government intrusions into their legitimate expectations
upon either a privacy interest in the contents of the packages or a posses
sory interest in the packages themselves " 3 W LaFave, Search and Sei
zure § 9 6, p 71 (Supp 1982)
7 Cf Florida v Royer, supra, at 502 (plurality opinion) (<rWe agree with
the State that [the officers had] adequate grounds for suspecting Royer of
carrying drugs and for temporarily detaining him and his luggage while
they attempted to verify or dispel their suspicions in a manner that did not
exceed the limits of an investigative detention") (emphasis added)
UNITED STATES v PLACE 707
696 Opinion of the Court
of privacy " United States v Chadwick, 433 U S , at 7
We have affirmed that a person possesses a privacy interest
in the contents of personal luggage that is protected by the
Fourth Amendment Id , at 13 A "canine sniff" by a well-
trained narcotics detection dog, however, does not require
opening the luggage It does not expose noncontraband
items that otherwise would remain hidden from public view,
as does, for example, an officer's rummaging through the
contents of the luggage Thus, the manner in which in-
formation is obtained through this investigative technique is
much less intrusive than a typical search Moreover, the
sniff discloses only the presence or absence of narcotics, a
contraband item Thus, despite the fact that the sniff tells
the authorities something about the contents of the luggage,
the information obtained is limited This limited disclosure
also ensures that the owner of the property is not subjected
to the embarrassment and inconvenience entailed in less dis-
criminate and more intrusive investigative methods
In these respects, the canine sniff is sui generis We are
aware of no other investigative procedure that is so limited
both in the manner in which the information is obtained and
in the content of the information revealed by the procedure
Therefore, we conclude that the particular course of investi-
gation that the agents intended to pursue here — exposure of
respondent's luggage, which was located in a public place, to
a trained canine — did not constitute a "search" within the
meaning of the Fourth Amendment
III
There is no doubt that the agents made a "seizure" of
Place's luggage for purposes of the Fourth Amendment
when, following his refusal to consent to a search, the agent
told Place that he was going to take the luggage to a federal
judge to secure issuance of a warrant As we observed in
Terry, "[t]he manner in which the seizure [was] con-
708 OCTOBER TERM, 1982
Opinion of the Court 462 U g
ducted is, of course, as vital a part of the inquiry as whether
[it was] warranted at all " 392 U S , at 28 We therefore
examine whether the agents' conduct in this case was such as
to place the seizure within the general rule requiring proba-
ble cause for a seizure or within Terry's exception to that
rule
At the outset, we must reject the Government's suggestion
that the point at which probable cause for seizure of luggage
from the person's presence becomes necessary is more dis-
tant than in the case of a Terry stop of the person himself
The premise of the Government's argument is that seizures
of property are generally less intrusive than seizures of the
person While true in some circumstances, that premise is
faulty on the facts we address in this case The precise type
of detention we confront here is seizure of personal luggage
from the immediate possession of the suspect for the purpose
of arranging exposure to a narcotics detection dog Particu-
larly in the case of detention of luggage within the traveler's
immediate possession, the police conduct intrudes on both the
suspect's possessory interest in his luggage as well as his lib-
erty interest in proceeding with his itinerary The person
whose luggage is detained is technically still free to continue
his travels or carry out other personal activities pending
release of the luggage Moreover, he is not subjected to the
coercive atmosphere of a custodial confinement or to the pub-
he indignity of being personally detained Nevertheless,
such a seizure can effectively restrain the person since he is
subjected to the possible disruption of his travel plans in
order to remain with his luggage or to arrange for its
return 8 Therefore, when the police seize luggage from the
8 "At least when the authorities do not make it absolutely clear how they
plan to reunite the suspect and his possessions at some future time and
place, seizure of the object is tantamount to seizure of the person This is
because that person must either remain on the scene or else seemingly sur
render his effects permanently to the police " 3 W LaFave, Search and
Seizure § 9 6, p 72 (Supp 1982)
UNITED STATES v PLACE 709
696 Opinion of the Court
suspect's custody, we think the limitations applicable to in-
vestigative detentions of the person should define the per-
missible scope of an investigative detention of the person's
luggage on less than probable cause Under this standard, it
is clear that the police conduct here exceeded the permissible
limits of a Terry-type investigative stop
The length of the detention of respondent's luggage alone
precludes the conclusion that the seizure was reasonable in
the absence of probable cause Although we have recog-
nized the reasonableness of seizures longer than the momen-
tary ones involved in Terry, Adams, and Brignom-Ponce,
see Michigan v Summers, 452 U S 692 (1981), the brevity
of the invasion of the individual's Fourth Amendment inter-
ests is an important factor in determining whether the sei-
zure is so minimally intrusive as to be justifiable on reason-
able suspicion Moreover, in assessing the effect of the length
of the detention, we take into account whether the police
diligently pursue their investigation We note that here the
New York agents knew the time of Place's scheduled arrival
at La Guardia, had ample time to arrange for their additional
investigation at that location, and thereby could have mini-
mized the intrusion on respondent's Fourth Amendment
interests 9 Thus, although we decline to adopt any outside
time limitation for a permissible Terry stop,10 we have never
sCf Florida v Royer, 460 U S , at 506 (plurality opinion) ("If [trained
narcotics detection dogs] had been used, Royer and his luggage could have
been momentarily detained while this investigative procedure was carried
out") This course of conduct also would have avoided the further sub-
stantial intrusion on respondent's possessory interests caused by the re-
moval of his luggage to another location
1DCf ALI, Model Code of Pre-Arraignment Procedure § 110 2(1) (1975)
(recommending a maximum of 20 minutes for a Terry stop) We under-
stand the desirability of providing law enforcement authorities with a dear
rule to guide their conduct Nevertheless, we question the wisdom of a
rigid time limitation Such a limit would undermine the equally important
need to allow authorities to graduate their responses to the demands of any
particular situation
710 OCTOBER TERM, 1982
BRENNAN, J , concurring in result 4^2 u S
approved a seizure of the person for the prolonged 90-minute
period involved here and cannot do so on the facts presented
by this case See Dunaway v New York, 442 U S 200
(1979)
Although the 90-mmute detention of respondent's luggage
is sufficient to render the seizure unreasonable, the violation
was exacerbated by the failure of the agents to accurately in-
form respondent of the place to which they were transporting
his luggage, of the length of time he might be dispossessed,
and of what arrangements would be made for return of
the luggage if the investigation dispelled the suspicion In
short, we hold that the detention of respondent's luggage in
this case went beyond the narrow authority possessed by po-
lice to detain briefly luggage reasonably suspected to contain
narcotics
IV
We conclude that, under all of the circumstances of this
case, the seizure of respondent's luggage was unreasonable
under the Fourth Amendment Consequently, the evidence
obtained from the subsequent search of his luggage was inad-
missible, and Place's conviction must be reversed The
judgment of the Court of Appeals, accordingly, is affirmed
It is so ordered
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
concurring in the result
In this case, the Court of Appeals assumed both that the
officers had the "reasonable suspicion" necessary to justify an
"investigative" stop of respondent under Terry v Ohio, 392
U S 1 (1968), and its progeny, and that the principles of
Terry apply to seizures of property See 660 F 2d 44, 50
(CA2 1981), ante, at 700 The court held simply that "the
prolonged seizure of [respondent's] baggage went far beyond
a mere investigative stop and amounted to a violation of his
Fourth Amendment rights " 660 F 2d, at 50 See also id ,
UNITED STATES v PLACE 711
696 BRENNAN, J , concurring in result
at 52, 53 I would affirm the Court of Appeals' judgment on
this ground
Instead of simply affirming on this ground and putting an
end to the matter, the Court decides to reach, and purport-
edly to resolve, the constitutionality of the seizure of re-
spondent's luggage on less than probable cause and the expo-
sure of that luggage to a narcotics detection dog See ante,
at 706-707 Apparently, the Court finds itself unable to
"resist the pull to decide the constitutional issues involved
in this case on a broader basis than the record before [it]
imperatively requires " Street v New York, 394 U S 576,
581 (1969) Because the Court reaches issues unnecessary
to its judgment and because I cannot subscribe to the Court's
analysis of those issues, I concur only in the result
I have had occasion twice in recent months to discuss the
limited scope of the exception to the Fourth Amendment's
probable-cause requirement created by Terry and its prog-
eny See Florida v Royer, 460 U S 491, 509 (1983)
(BRENNAN, J , concurring in result), Kolender v Lawson,
461 U S 352, 362 (1983) (BRENNAN, J , concurring) Un-
fortunately, the unwarranted expansion of that exception
which the Court endorses today forces me to elaborate on my
previously expressed views
In Terry the Court expressly declined to address 'the con-
stitutional propriety of an investigative 'seizure' upon less
than probable cause for purposes of 'detention' and/or in-
terrogation " 392 U S , at 19, n 16 x The Court was con-
irThe "seizure" at issue in Terry v Ohio was the actual physical re-
straint imposed on the suspect 392 U S , at 19 The Court assumed
that the officer's initial approach and questioning of the suspect did not
amount to a "seizure " Id , at 19, n 16 The Court acknowledged, how-
ever, that "seizures" may occur irrespective of the imposition of actual
physical restraint The Court stated that "[i]t must be recognized that
whenever a police officer accosts an individual and restrains his freedom to
712 OCTOBER TERM, 1982
BRENNAN, J , concurring in result 462 U S
fronted with "the quite narrow question" of "whether it is al-
ways unreasonable for a policeman to seize a person and sub-
ject him to a limited search for weapons unless there is proba-
ble cause for an arrest " Id , at 15 In addressing this
question, the Court noted that it was dealing "with an entire
rubric of police conduct — necessarily swift action predicated
upon the on-the-spot observations of the officer on the beat
which historically has not been, and as a practical matter
could not be, subjected to the warrant procedure " Id , at
20 As a result, the conduct involved in the case had to be
"tested by the Fourth Amendment's general proscription
against unreasonable searches and seizures " Ibid (footnote
omitted) The Court's inquiry into the "reasonableness" of
the conduct at issue was based on a " 'balancing [of] the need
to search [or seize] against the invasion which the search [or
seizure] entails '" Id , at 21, quoting Camara v Municipal
Court, 387 U S 523, 537 (1967) The Court concluded that
the officer's conduct was reasonable and stated its holding as
follows
"We merely hold today that where a police officer ob-
serves unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is deal-
ing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself
as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others*
safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of
walk away, he has 'seized' that person " Id , at 16 See also id , at 19,
n 16 This standard, however, is easier to state than it is to apply Com
pare United States v Mendenhall, 446 U S 544, 550-557 (1980) (opinion
of Stewart, J ), with Florida v Royer, 460 U S 491, 511-512 (1983)
(BRENNAN, J , concurring in result)
UNITED STATES v PLACE 713
$96 BRENNAN, J , concurring in result
the outer clothing of such persons in an attempt to dis-
cover weapons which might be used to assault him "
392 U S , at 30
In Adams v Williams, 407 U S 143 (1972), the Court
relied on Terry to endorse "brief" investigative stops based
on reasonable suspicion 407 U S , at 145-146 In this re-
gard, the Court stated that "[a] brief stop of a suspicious indi-
vidual, m order to determine his identity or to maintain the
status quo momentarily while obtaining more information,
may be most reasonable in light of the facts known to the offi-
cer at the time " Id , at 146 The weapons search upheld in
Adams was very limited and was based on Terrtfs safety
rationale 407 U S , at 146 The Court stated that the
purpose of a "limited" weapons search "is not to discover
evidence of crime, but to allow the officer to pursue his
investigation without fear of violence " Ibid
In United States v Brignoni-Ponce, 422 U S 873 (1975),
the Court relied on Terry and Adams in holding that "when
an officer's observations lead him reasonably to suspect that
a particular vehicle may contain aliens who are illegally in the
country, he may stop the car briefly and investigate the cir-
cumstances that provoke suspicion " 422 U S , at 881 2
The Court based this relaxation of the traditional probable-
cause requirement on the importance of the governmental in-
terest in stemming the flow of illegal aliens, on the minimal
intrusion of a brief stop, and on the absence of practical alter-
natives for policing the border Ibid The Court noted the
limited holdings of Terry and Adams and while authorizing
the police to "question the driver and passengers about their
citizenship and immigration status, and ask them to
explain suspicious circumstances,7' the Court expressly stated
that "any further detention or search must be based on con-
sent or probable cause " 422 U S , at 881-882 See also
2 The stops " 'usually consume[d] no more than a minute 'n Untied
States v Bngnom Ponce, 422 U S , at 880
714 OCTOBER TERM, 1982
BRENNAN, J , concurring in result 462 U S
Ybarra v Illinois, 444 U S 85, 93 (1979) ("The Terry case
created an exception to the requirement of probable cause,
an exception whose 'narrow scope' this Court 'has been care-
ful to maintain'" (footnote omitted)), Dunaway v New York,
442 U S 200, 209-212 (1979) (discussing the narrow scope of
Terry and its progeny) 3
It is clear that Terry, and the cases that followed it, permit
only brief investigative stops and extremely limited searches
based on reasonable suspicion They do not provide the
police with a commission to employ whatever investigative
techmques they deem appropriate As I stated in Florida
v Royer, "[t]he SCope of a Terry -type 'investigative* stop
and any attendant search must be extremely limited or the
Terry exception would 'swallow the general rule that Fourth
Amendment seizures [and searches] are "reasonable" only if
based on probable cause ' " 460 U S , at 510 (concurring in
result), quoting Dunaway v New York, supra, at 213
II
In some respects the Court's opinion in this case can be
seen as the logical successor of the plurality opinion in Flor-
ida v Royer, supra The plurality opinion in Royer con-
tamed considerable language which was unnecessary to the
judgment, id , at 509 (BRENNAN, J , concurring in result),
regarding the permissible scope of Terry investigative stops
See 460 U S , at 501-507, and n 10 Even assuming,
however, that the Court finds some support in Royer for its
discussion of the scope of Terry stops, the Court today goes
3 In Michigan v Summers, 452 U S 692 (1981), the Court rehed on
Terry and its progeny to hold that "a warrant to search for contraband
founded on probable cause implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is conducted "
452 U S , at 705 (footnotes omitted) The Court also rehed on Terry in
Pennsylvania v Mimms, 434 U S 106 (1977), to uphold an officer's order
to an individual to get out of his car following a lawful stop of the vehicle
Both Summers and Mimms focused on seizures of people
UNITED STATES v PLACE 715
696 BRENNAN, J , concurring in result
well beyond Royer in endorsing the notion that the principles
of Terry permit "warrantless seizures of personal luggage
from the custody of the owner on the basis of less than proba-
ble cause, for the purpose of pursuing a limited course of in-
vestigation, short of opening the luggage, that would quickly
confirm or dispel the authorities' suspicion " Ante, at 702
See also ante, at 706 In addition to being unnecessary to
the Court's judgment, see supra, at 711, this suggestion
finds no support in Terry or its progeny and significantly
dilutes the Fourth Amendment's protections against govern-
ment interference with personal property In short, it rep-
resents a radical departure from settled Fourth Amendment
principles
As noted supra, at 711-712, Terry and the cases that fol-
lowed it authorize a brief "investigative" stop of an individual
based on reasonable suspicion and a limited search for weap-
ons if the officer reasonably suspects that the individual is
armed and presently dangerous The purpose of this brief
stop is "to determine [the individual's] identity or to maintain
the status quo momentarily while obtaining more informa-
tion " Adams v Williams, 407 U S , at 146 Any-
thing more than a brief stop "must be based on consent or
probable cause " United States v Bngnoni-Ponce, supra,
at 882 During the course of this stop, "the suspect must not
be moved or asked to move more than a short distance, physi-
cal searches are permitted only to the extent necessary to
protect the police officers involved during the encounter, and,
most importantly, the suspect must be free to leave after a
short time and to decline to answer the questions put to him "
Kolender v Lawson, 461 U S , at 366 (BRENNAN, J , con-
curring) It is true that Terry stops may involve seizures of
personal effects incidental to the seizure of the person in-
volved Obviously, an officer cannot seize a person without
also seizing the personal effects that the individual has m his
possession at the time But there is a difference between
716 OCTOBER TERM, 1982
BRENNAN, J , concurring in result 462 U S
incidental seizures of personal effects and seizures of prop-
erty independent of the seizure of the person
The Fourth Amendment protects "effects" as well as peo-
ple from unreasonable searches and seizures In this re-
gard, JUSTICE STEVENS pointed out in Texas v Brown, 460
U S 730 (1983), that "[t]he [Fourth] Amendment protects
two different interests of the citizen — the interest in retain-
ing possession of property and the interest in maintaining
personal privacy " Id , at 747 (opinion concurring in judg-
ment) "A seizure threatens the former, a search the lat-
ter " Ibid Even if an item is not searched, therefore, its
seizure implicates a protected Fourth Amendment interest
For this reason, seizures of property must be based on proba-
ble cause See Colorado v Bannister, 449 U S 1, 3 (1980),
Payton v New York, 445 U S 573, 587 (1980), G M Leas-
ing Corp v United States, 429 U S 338, 351 (1977),
Chambers v Maroney, 399 U S 42, 51-52 (1970), Warden
v Hayden, 387 U S 294, 309-310 (1967) See also Texas
v Brown, supra, at 747-748 (STEVENS, J , concurring in
judgment) Neither Terry nor its progeny changed this
rule
In this case, the officers' seizure of respondent and their
later independent seizure of his luggage implicated separate
Fourth Amendment interests First, respondent had a pro-
tected interest in maintaining his personal security and pri-
vacy Terry allows this interest to be overcome, and author-
izes a limited intrusion, if the officers have reason to suspect
that criminal activity is afoot Second, respondent had a
protected interest in retaining possession of his personal ef-
fects While Terry may authorize seizures of personal ef-
fects incident to a lawful seizure of the person, nothing in the
Terry line of cases authorizes the police to seize personal
property, such as luggage, independent of the seizure of the
person Such seizures significantly expand the scope of a
Terry stop and may not be effected on less than probable
UNITED STATES v PLACE 717
696 BRENNAN, J , concurring in result
cause 4 Obviously, they also significantly expand the scope
of the intrusion
The officers did not develop probable cause to arrest re-
spondent during their encounter with him See 660 F 2d,
at 50 Therefore, they had to let him go But despite the
absence of probable cause to arrest respondent, the officers
seized his luggage and deprived him of possession Re-
spondent, therefore, was subjected not only to an invasion of
his personal security and privacy, but also to an independent
dispossession of his personal effects based simply on reason-
able suspicion It is difficult to understand how this intru-
sion is not more severe than a brief stop for questioning or
even a limited, on-the-spot patdown search for weapons
In my view, as soon as the officers seized respondent's lug-
gage, independent of their seizure of him, they exceeded the
scope of a permissible Terry stop and violated respondent's
Fourth Amendment rights In addition, the officers' seizure
of respondent's luggage violated the established rule that sei-
zures of personal effects must be based on probable cause
Their actions, therefore, should not be upheld
The Court acknowledges that seizures of personal property
must be based on probable cause See ante, at 700-702
Despite this recognition, the Court employs a balancing test
drawn from Terry to conclude that personal effects may be
seized based on reasonable suspicion See ante, at 703-706 5
4 Putting aside the legality of the independent seizure of the luggage, the
Court correctly points out that the seizure of luggage "can effectively
restrain the person" beyond the initial stop "since he is subjected to the
possible disruption of his travel plans in order to remain with his luggage
or to arrange for its return " Ante, at 708 (footnote omitted)
6 To the extent that the Court relies on United States v Van Leeuwen,
397 U S 249 (1970), as support for its conclusion, see ante, at 705-706,
n 6, such reliance is misplaced As the Court itself points out, the holding
in Van Leeuwen was expressly limited to the facts of that case Ante, at
705, n 6 Moreover, the Court of Appeals more than adequately distin-
718 OCTOBER TERM, 1982
BRENNAN, J , concurring in result 452 U S
In Dunaway v New York, 442 U S 200 (1979), the Court
stated that "[t]he narrow intrusions involved in [Terry and its
progeny] were judged by a balancing test rather than by the
general principle that Fourth Amendment seizures must be
supported by the 'long-prevailing standards' of probable
cause only because these intrusions fell far short of the
kind of intrusion associated with an arrest " Id , at 212 As
Dunaway suggests, the use of a balancing test in this case is
inappropriate First, the intrusion involved in this case is no
longer the "narrow" one contemplated by the Terry line of
cases See supra, at 717 In addition, the intrusion in-
volved in this case involves not only the seizure of a person,
but also the seizure of property As noted, supra, at
711-712, Terry and its progeny did not address seizures of
property Those cases left unchanged the rule that seizures
of property must be based on probable cause See supra, at
716-717 The Terry balancing test should not be wrenched
from its factual and conceptual moorings
There are important reasons why balancing inquiries
should not be conducted except in the most limited circum-
stances Terry and the cases that followed it established
isolated exceptions to the general rule that the Fourth
Amendment itself has already performed the constitutional
balance between police objectives and personal privacy "
Michigan v Summers, 452 U S 692, 706 (1981) (Stewart,
J , dissenting) "[T]he protections intended by the Framers
could all too easily disappear in the consideration and balanc-
ing of the multifarious circumstances presented by different
cases, especially when that balancing may be done in the first
instance by police officers engaged in the "often competitive
enterprise of ferreting out crime ' " Dunaway v New York,
guished Van Leeuwen See 660 F 2d 44, 52-53 (C A2 1981) As the court
stated "Unlike the dispossession of hand baggage in a passenger's custody,
which constitutes a substantial intrusion, the mere detention of mail not m
his custody or control amounts to at most a minimal or technical interfer
ence with his person or effects, resulting in no personal deprivation at all M
Ibid
UNITED STATES v PLACE 719
696 BRENNAN, J , concurring in result
supra, at 213, quoting Johnson v United States, 333 U S
10, 14 (1948) The truth of this proposition is apparent when
one considers that the Court today has employed a balancing
test "to swallow the general rule that [seizures of property]
are 'reasonable' only if based on probable cause " 442 U S ,
at 213 JUSTICE BLACKMUN'S concern over "an emerging
tendency on the part of the Court to convert the Terry de-
cision into a general statement that the Fourth Amendment
requires only that any seizure be reasonable, " post, at 721
(BLACKMUN, J , concurring in judgment) (footnote omitted),
is certainly justified
III
The Court also suggests today, in a discussion unnecessary
to the judgment, that exposure of respondent's luggage to a
narcotics detection dog "did not constitute a 'search' within
the meaning of the Fourth Amendment " Ante, at 707 In
the District Court, respondent did "not contest the validity of
sniff searches per se " 498 F Supp 1217, 1228 (EDNY
1980) The Court of Appeals did not reach or discuss the
issue It was not briefed or argued in this Court In short,
I agree with JUSTICE BLACKMUN that the Court should not
address the issue See post, at 723-724 (BLACKMUN, J , con-
curring in judgment)
I also agree with JUSTICE BLACKMUN'S suggestion, ^b^d ,
that the issue is more complex than the Court's discussion
would lead one to believe As JUSTICE STEVENS suggested
in objecting to "unnecessarily broad dicta" in United States v
Knotts, 460 U S 276 (1983), the use of electronic detection
techniques that enhance human perception implicates "espe-
cially sensitive concerns " Id , at 288 (opinion concurring in
judgment) Obviously, a narcotics detection dog is not an
electronic detection device Unlike the electronic *Tbeeper"
in Knotts, however, a dog does more than merely allow the
police to do more efficiently what they could do using only
their own senses A dog adds a new and previously unob-
tainable dimension to human perception The use of dogs,
therefore, represents a greater intrusion into an individual's
720 OCTOBER TERM, 1982
BLACKMUN, J , concurring in judgment 462 U S
privacy Such use implicates concerns that are at least as
sensitive as those implicated by the use of certain electronic
detection devices Cf Katz v United States, 389 U S 347
(1967)
I have expressed the view that dog sniffs of people con-
stitute searches See Doe v Renfrow, 451 U S 1022, 1025-
1026 (1981) (BRENNAN, J , dissenting from denial of certio-
rari) In Doe, 1 suggested that sniffs of inanimate objects
might present a different case Id , at 1026, n 4 In any
event, I would leave the determination of whether dog sniffs
of luggage amount to searches, and the subsidiary question of
what standards should govern such intrusions, to a future
case providing an appropriate, and more informed, basis for
deciding these questions
IV
Justice Douglas was the only dissenter in Terry He
stated that "[t]here have been powerful hydraulic pressures
throughout our history that bear heavily on the Court to
water down constitutional guarantees and give the police the
upper hand " 392 U S , at 39 (dissenting opinion) Today,
the Court uses Terry as a justification for submitting to these
pressures Their strength is apparent, for even when the
Court finds that an individual's Fourth Amendment rights
have been violated it cannot resist the temptation to weaken
the protections the Amendment affords
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins,
concurring in the judgment
For me, the Court's analysis in Part III of its opinion is
quite sufficient to support its judgment I agree that on the
facts of this case, the detention of Place's luggage amounted
to, and was functionally identical with, a seizure of his per-
son My concern with the Court's opinion has to do (a) with
its general discussion in Part II of seizures of luggage under
the Terry v Ohio, 392 U S 1 (1968), exception to the war-
UNITED STATES v PLACE 721
696 BLACKMUN, J , concurring in judgment
rant and probable-cause requirements, and (b) with the
Court's haste to resolve the dog-sniff issue
In providing guidance to other courts, we often include in
our opinions material that, technically, constitutes dictum I
cannot fault the Court's desire to set guidelines for Terry
seizures of luggage based on reasonable suspicion I am con-
cerned, however, with what appears to me to be an emerging
tendency on the part of the Court to convert the Terry deci-
sion into a general statement that the Fourth Amendment
requires only that any seizure be reasonable l
I pointed out in dissent in Florida v Royer, 460 U S
491, 513 (1983), that our prior cases suggest a two-step
evaluation of seizures under the Fourth Amendment The
Amendment generally prohibits a seizure unless it is pursu-
ant to a judicial warrant issued upon probable cause and par-
ticularly describing the items to be seized See ante, at
701, Florida v Royer i, 460 U S , at 514 (dissenting opinion)
The Court correctly observes that a warrant may be dis-
pensed with if the officer has probable cause and if some
exception to the warrant requirement, such as exigent cir-
1 The Court states that the applicability of the Terry exception <4rests on
a balancing of the competing interests to determine the reasonableness of
the type of seizure involved within the meaning of the Fourth Amend
ment's general proscription against unreasonable searches and seizures ' "
Ante, at 703, quoting Terry, 392 U S , at 20 As the context of the quota
tion from Terry makes clear, however, this balancing to determine reason-
ableness occurs only under the exceptional circumstances that justify the
Terry exception
"But we deal here with an entire rubric of police conduct — necessarily swift
action predicated upon the on-the-spot observations of the officer on the
beat — which historically has not been, and as a practical matter could not
be, subjected to the warrant procedure Instead, the conduct involved in
this case must be tested by tte Fourth Amendment's general proscription
against unreasonable searches and seizures " Ibid
722 OCTOBER TERM, 1982
BLACKMUN, J , concurring in judgment 462 U S
cumstances, is applicable Ante, at 701 While the Fourth
Amendment speaks in terms of freedom from unreasonable
seizures, the Amendment does not leave the reasonableness
of most seizures to the judgment of courts or government
officers the Framers of the Amendment balanced the inter-
ests involved and decided that a seizure is reasonable only
if supported by a judicial warrant based on probable cause
See Texas v Brown, 460 U S 730, 744-745 (1983) (POWELL,
J , concurring), United States v Rabmowitz, 339 U S 56, 70
(1950) (Frankfurter, J , dissenting)
Terry v Ohio, however, teaches that in some circum-
stances a limited seizure that is less restrictive than a formal
arrest may constitutionally occur upon mere reasonable sus-
picion, if "supported by a special law enforcement need for
greater flexibility " Florida v Royer, 460 U S , at 514
(dissenting opinion) See Michigan v Summers, 452 U S
692, 700 (1981) When this exception to the Fourth Amend-
ment's warrant and probable-cause requirements is appli-
cable, a reviewing court must balance the individual's inter-
est in privacy against the government's law enforcement
interest and determine whether the seizure was reasonable
under the circumstances Id , at 699-701 Only in this lim-
ited context is a court entitled to engage in any balancing of
interests in determining the validity of a seizure
Because I agree with the Court that there is a significant
law enforcement interest in interdicting illegal drug traffic in
the Nation's airports, ante, at 704, see Florida v Royer, 460
U S , at 513, 519 (dissenting opinion), a limited intrusion
caused by a temporary seizure of luggage for investigative
purposes could fall within the Terry exception The critical
threshold issue is the intrusiveness of the seizure 2 In this
2 1 cannot agree with the Court's assertion that the diligence of the police
in acting on their suspicion is relevant to the extent of the intrusion on
Fourth Amendment interests See ante, at 709-710 It makes little dif
ference to a traveler whose luggage is seized whether the police conscien-
tiously followed a lead or bungled the investigation The duration and
intrusiveness of the seizure is not altered by the diligence the ponce ex
UNITED STATES v PLACE 723
696 BLACKMUN, J , concurring in judgment
case, the seizure went well beyond a minimal intrusion and
therefore cannot fall within the Terry exception
II
The Court's resolution of the status of dog sniffs under the
Fourth Amendment is troubling for a different reason The
District Court expressly observed that Place "does not con-
test the validity of sniff searches per se " 498 F Supp 1217,
1228 (EDNY 1980) 3 While Place may have possessed such a
claim, he chose not to raise it in that court The issue also
was not presented to or decided by the Court of Appeals
Moreover, contrary to the Court's apparent intimation, ante,
at 706, an answer to the question is not necessary to the deci-
sion For the purposes of this case, the precise nature of the
legitimate investigative activity is irrelevant Regardless of
the validity of a dog sniff under the Fourth Amendment, the
seizure was too intrusive The Court has no need to decide
the issue here
As a matter of prudence, decision of the issue is also un-
wise While the Court has adopted one plausible analysis of
the issue, there are others For example, a dog sniff may be
a search, but a minimally intrusive one that could be justified
in this situation under Terry upon mere reasonable suspicion
Neither party has had an opportunity to brief the issue, and
the Court grasps for the appropriate analysis of the problem
Although it is not essential that the Court ever adopt the
views of one of the parties, it should not decide an issue on
which neither party has expressed any opinion at all The
Court is certainly in no position to consider all the ramifica-
erase Of course, diligence may be relevant to a court's determination of
the reasonableness of the seizure once it is determined that the seizure is
sufficiently nomntrusive as to be eligible for the Terry exception
3 The District Court did hold that the dog sniff was not conducted in a
fashion that under the circumstances was "reasonably calculated to achieve
a tainted reaction from the dog " 498 F Supp , at 1228 This, however,
is a due process claim, not one under the Fourth Amendment Place ap-
parently did not raise this issue before the Court of Appeals
724 OCTOBER TERM, 1982
BLACKMUN, J., concurring in judgment 452 u S
tions of this important issue. Certiorari is currently pending
in two cases that present the issue directly. United States
v. Beale, No. 82-674; Waltzer v. United States, No. 82-5491
There is no reason to avoid a full airing of the issue in a
proper case.
For the foregoing reasons, I concur only in the judgment of
the Court.
KARCHER v DAGGETT 725
Syllabus
KARCHER, SPEAKER, NEW JERSEY ASSEMBLY, ET
AL v DAGGETT ET AL
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
No 81-2057 Argued March 2, 1983— Decided June 22, 1983
As a result of the 1980 census, the New Jersey Legislature reapportioned
the State's congressional districts The reapportionment plan contained
14 districts, with an average population per district of 526,059, each dis-
trict, on the average, differing from the "ideal" figure by 0 1384% The
largest district (Fourth District) had a population of 527,472, and the
smallest (Sixth District) had a population of 523,798, the difference be-
tween them being 0 6984% of the average district In a suit by a group
of individuals challenging the plan's validity, the District Court held that
the plan violated Art I, § 2, of the Constitution because the population
deviations among districts, although small, were not the result of a good-
faith effort to achieve population equality
Held
1 The "equal representation" standard of Art I, § 2, requires that
congressional districts be apportioned to achieve population equality as
nearly as is practicable Parties challenging apportionment legislation
bear the burden of proving that population differences among districts
could have been reduced or eliminated by a good-faith effort to draw
districts of equal population If the plaintiffs carry their burden, the
State must then bear the burden of proving that each significant vari-
ance between districts was necessary to achieve some legitimate goal
Cf Kirkpatrick v Preisler, 394 U S 526, White v Wetser, 412 U S
783 Pp 730-731
2 New Jersey's plan may not be regarded per se as the product of a
good-faith effort to achieve population equality merely because the maxi-
mum population deviation among districts is smaller than the predictable
undercount in available census data Pp 731-740
(a) The "as nearly as practicable" standard for apportioning con-
gressional districts "is inconsistent with adoption of fixed numerical
standards which excuse population variances without regard to the cir-
cumstances of each particular case " Kirkpatnck, supra, at 530 Only
the principle of population equality as developed in Kirkpatnck, supra,
and Wesberry v Sanders, 376 U S 1, reflects the aspirations of Art I,
§ 2 There are no de minimis population variations, which could practi-
726 OCTOBER TERM, 1982
Syllabus 462 U S
cably be avoided, that may be considered as meeting the standard of
Art I, §2, without justification Pp 731-734
(b) There is no merit to the contention that population deviation
from ideal district size should be considered to be the functional equiva
lent of zero as a matter of law where that deviation is less than the pre
dictable undercount in census figures Even assuming that the extent
to which the census system systematically undercounts actual population
can be precisely determined, it would not be relevant The census count
provides the only reliable — albeit less than perfect — indication of the dis-
tricts' 'Veal" relative population levels, and furnishes the only basis for
good faith attempts to achieve population equality Pp 735-738
(c) The population differences involved here could have been avoided
or significantly reduced with a good-faith effort to achieve population
equality Resort to the simple device of transferring entire political
subdivisions of known population between contiguous districts would
have produced districts much closer to numerical equality Thus the
District Court did not err in finding that the plaintiffs met their burden
of showing that the plan did not come as nearly as practicable to popula
tion equality Pp 738-740
3 The District Court properly found that the defendants did not meet
their burden of proving that the population deviations in the plan were
necessary to achieve a consistent, nondiscriminatory legislative policy
The State must show with specificity that a particular objective required
the specific deviations in its plan The primary justification asserted
was that of preserving the voting strength of racial minority groups, but
appellants failed to show that the specific population disparities were
necessary to preserve minority voting strength Pp 740—744
535 F Supp 978, affirmed
BBENNAN, J , delivered the opinion of the Court, in which MARSHALL,
BLACKMUN, STEVENS, and O'CONNOR, JJ , joined STEVENS, J , filed a
concurring opinion, post, p 744 WHITE, J , filed a dissenting opinion, in
which BURGER, C J , and POWELL and REHNQUIST, JJ , joined, post,
p 765 POWELL, J , filed a dissenting opinion, post, p 784
Kenneth J Guido, Jr , argued the cause for appellants
With him on the briefs were Harry R Sachse, Loftus E
Becker, Jr , Donald J Simon, Clive S Cummis, Charles
J Walsh, Jerald D Baranoff, Leon J Sokol, Michael D
Solomon, Lawrence T Mannan, and Robert A Farkas
KAECHER v DAGGETT 727
725 Opinion of the Court
Bernard Hellnng argued the cause for appellees With
him on the brief were Jonathan L Goldstein, Robert S
Raymar, and Stephen L Dreyfuss *
JUSTICE BRENNAN delivered the opinion of the Court
The question presented by this appeal is whether an appor-
tionment plan for congressional districts satisfies Art I, §2,
of the Constitution without need for further justification if
the population of the largest district is less than one percent
greater than the population of the smallest district A
three-judge District Court declared New Jersey's 1982 re-
apportionment plan unconstitutional on the authority of
Kirkpatnck v Preisler, 394 U S 526 (1969), and White v
Weiser, 412 U S 783 (1973), because the population devi-
ations among districts, although small, were not the result
of a good-faith effort to achieve population equality We
affirm
I
After the results of the 1980 decennial census had been tab-
ulated, the Clerk of the United States House of Represent-
atives notified the Governor of New Jersey that the number
of Representatives to which the State was entitled had de-
creased from 15 to 14 Accordingly, the New Jersey Legis-
lature was required to reapportion the State's congressional
districts The State's 199th Legislature passed two reappor-
tionment bills One was vetoed by the Governor, and the
second, although signed into law, occasioned significant dis-
satisfaction among those who felt it diluted minority voting
strength in the city of Newark SeeApp 83-84,86-90 In
response, the 200th Legislature returned to the problem of
apportioning congressional districts when it convened in Jan-
uary 1982, and it swiftly passed a bill (S-711) introduced by
Senator Feldman, President pro tern of the State Senate,
*Roger Allan Moore, Richard P Foelber, and Mwhael A Hess filed a
brief for the Republican National Committee as amtcus curiae urging
affirmance
728 OCTOBER TERM, 1982
Opinion of the Court 462 U S
which created the apportionment plan at issue in this case
The bill was signed by the Governor on January 19, 1982, be-
coming Pub L 1982, ch 1 (hereinafter Feldman Plan) A
map of the resulting apportionment is appended infra
Like every plan considered by the legislature, the Feldman
Plan contained 14 districts, with an average population per
district (as determined by the 1980 census) of 526,059 1
Each district did not have the same population On the
average, each district differed from the "ideal" figure by
0 1384%, or about 726 people The largest district, the
Fourth District, which includes Trenton, had a population of
527,472, and the smallest, the Sixth District, embracing most
of Middlesex County, a population of 523,798 The dif-
ference between them was 3,674 people, or 0 6984% of the
average district The populations of the other districts also
varied The Ninth District, including most of Bergen County,
in the northeastern corner of the State, had a population of
527,349, while the population of the Third District, along the
Atlantic shore, was only 524,825 App 124
The legislature had before it other plans with appreciably
smaller population deviations between the largest and small-
est districts The one receiving the most attention in the
District Court was designed by Dr Ernest Reock, Jr , a po-
litical science professor at Rutgers University and Director of
the Bureau of Government Research A version of the Reock
1 Three sets of census data are relevant to this case In early 1981, the
Bureau of the Census released preliminary figures showing that the total
population of New Jersey was 7,364,158 In October 1981 it released
corrected data, which increased the population of East Orange (and the
State as a whole) by 665 people Brief for Appellants 3, n 1 All calcula
tions in this opinion refer to the data available to the legislature — that is,
the October 1981 figures After the proceedings below had concluded, the
Bureau of the Census made an additional correction in the population of
East Orange, adding another 188 people, and bringing the total population
of the State to 7,365,011 Ibid Because this last correction was not
available to the legislature at the time it enacted the plan at issue, we need
not consider it
KARCHER v DAGGETT 729
725 Opinion of the Court
Plan introduced in the 200th Legislature by Assemblyman
Hard wick had a maximum population difference of 2,375, or
0 4514% of the average figure Id , at 133
Almost immediately after the Feldman Plan became law, a
group of individuals with varying interests, including all in-
cumbent Republican Members of Congress from New Jersey,
sought a declaration that the apportionment plan violated
Art I, § 2, of the Constitution2 and an injunction against pro-
ceeding with the primary election for United States Repre-
sentatives under the plan A three-judge District Court was
convened pursuant to 28 U S C §2284(a) The District
Court held a hearing on February 26, 1982, at which the par-
ties submitted a number of depositions and affidavits, moved
for summary judgment, and waived their right to introduce
farther evidence in the event the motions for summary judg-
ment were denied
Shortly thereafter, the District Court issued an opinion
and order declaring the Feldman Plan unconstitutional De-
nying the motions for summary judgment and resolving the
case on the record as a whole, the District Court held that the
population variances in the Feldman Plan were not '"unavoid-
able despite a good-faith effort to achieve absolute equality,"
see Kirkpatrick, supra, at 531 The court rejected appel-
lants' argument that a deviation lower than the statistical im-
precision of the decennial census was "the functional equiva-
lent of mathematical equality " Daggett v Kimmelman, 535
F Supp 978, 982-983 (NJ 1982) It also held that appellants
had failed to show that the population variances were justi-
fied by the legislature's purported goals of preserving minor-
2 In relevant part "The House of Representatives shall be composed
of Members chosen every second Year by the People of the several
States
"Representatives shall be apportioned among the several States
which may be included within this Union, according to their respective
Numbers "
730 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ity voting strength and anticipating shifts in population
Ibid The District Court enjoined appellants from conduct-
ing primary or general elections under the Feldman Plan, but
that order was stayed pending appeal to this Court, 455 U S
1303 (1982) (BRENNAN, J , in chambers), and we noted prob-
able jurisdiction, 457 U S 1131(1982)
II
Article I, §2, establishes a "high standard of justice and
common sense" for the apportionment of congressional dis-
tricts "equal representation for equal numbers of people "
Wesberry v Sanders, 376 U S 1, 18 (1964) Precise math-
ematical equality, however, may be impossible to achieve in
an imperfect world, therefore the "equal representation"
standard is enforced only to the extent of requiring that
districts be apportioned to achieve population equality "as
nearly as is practicable " See id , at 7-8, 18 As we ex-
plained further in Kirkpatnck v Preisler
"[T]he 'as nearly as practicable' standard requires that
the State make a good-faith effort to achieve precise
mathematical equality See Reynolds v Sims, 377
U S 533, 577 (1964) Unless population variances
among congressional districts are shown to have resulted
despite such effort, the State must justify each variance,
no matter how small " 394 U S , at 530-531
Article I, §2, therefore, "permits only the limited popula-
tion variances which are unavoidable despite a good-faith
effort to achieve absolute equality, or for which justification
is shown " Id , at 531 Accord, White v Weiser, 412 U S ,
at 790
Thus two basic questions shape litigation over population
deviations in state legislation apportioning congressional dis-
tricts First, the court must consider whether the popula-
tion differences among districts could have been reduced or
eliminated altogether by a good-faith effort to draw districts
of equal population Parties challenging apportionment leg-
KARCHER v DAGGETT 731
725 Opinion of the Court
islation must bear the burden of proof on this issue, and if
they fail to show that the differences could have been avoided
the apportionment scheme must be upheld If, however, the
plaintiffs can establish that the population differences were
not the result of a good-faith effort to achieve equality, the
State must bear the burden of proving that each significant
variance between districts was necessary to achieve some
legitimate goal Kirkpatnck, 394 U S , at 532, cf Swann
v Adams, 385 U S 440, 443-444 (1967)
III
Appellants' principal argument in this case is addressed to
the first question described above They contend that the
Feldman Plan should be regarded per se as the product of a
good-faith effort to achieve population equality because the
maximum population deviation among districts is smaller
than the predictable undercount in available census data
Kvrkpatrick squarely rejected a nearly identical argument
"The whole thrust of the 'as nearly as practicable' approach
is inconsistent with adoption of fixed numerical standards
which excuse population variances without regard to the
circumstances of each particular case " 394 U S , at 530,
see White v Weiser, supra, at 790, n 8, and 792-793
Adopting any standard other than population equality, using
the best census data available, see 394 U S , at 532, would
subtly erode the Constitution's ideal of equal representation
If state legislators knew that a certain de rmrwrnis level of
population differences was acceptable, they would doubtless
strive to achieve that level rather than equality s Id , at
8 There is some evidence in the record from which one could infer that
this is precisely what happened in New Jersey Alan Karch^r , Speaker of
the Assembly, testified that he had set one-percent maximum deviation as
the upper limit for any plans to be considered seriously by the legislature,
Record Doc No 41, pp 56-58 (Karcher deposition), but there is no evi-
732 OCTOBER TERM, 1982
Opinion of the Court 452 U S
531 Furthermore, choosing a different standard would im-
port a high degree of arbitrariness into the process of review-
ing apportionment plans Ibid In this case, appellants
argue that a maximum deviation of approximately 0 7% should
be considered de mimmis If we accept that argument, how
are we to regard deviations of 0 8%, 0 95%, 1%, or 1 1%?
Any standard, including absolute equality, involves a cer-
tain artificiality As appellants point out, even the census
data are not perfect, and the well-known restlessness of the
American people means that population counts for particular
localities are outdated long before they are completed Yet
problems with the data at hand apply equally to any pop-
ulation-based standard we could choose 4 As between two
standards — equality or something less than equality — only
the former reflects the aspirations of Art I, §2
To accept the legitimacy of unjustified, though small popu-
lation deviations in this case would mean to reject the basic
premise of Kirkpatnck and Wesberry We decline appel-
lants' invitation to go that far The unusual rigor of their
standard has been noted several times Because of that
rigor, we have required that absolute population equality be
the paramount objective of apportionment only in the case of
dence of any serious attempt to seek improvements below the one-percent
level
4 Such problems certainly apply to JUSTICE WHITE'S concededly arbi
trary five-percent solution, see post, at 782, apparently selected solely to
avoid the embarrassment of discarding the actual result in Kirkpatnek
along with its reasoning No de minimis line tied to actual population in
any way mitigates differences identified post, at 771-772, between the
number of adults or eligible, registered, or actual voters in any two dis
tricts As discussed below, see infra, at 736-738, unless some systematic
effort is made to correct the distortions inherent in census counts of total
population, deviations from the norm of population equality are far more
likely to exacerbate the differences between districts If a State does
attempt to use a measure other than total population or to "correct" the
census figures, it may not do so in a haphazard, inconsistent, or conjectural
manner Kirkpatmck, 394 U S , at 534-535, see infra, at 740-741
KARCHER v DAGGETT 733
725 Opinion of the Court
congressional districts, for which the command of Art I, §2,
as regards the National Legislature outweighs the local inter-
ests that a State may deem relevant in apportioning districts
for representatives to state and local legislatures, but we
have not questioned the population equality standard for con-
gressional districts See, e g , White v Weiser, 412 U S ,
at 793, White v Regester, 412 U S 755, 763 (1973), Mahan
v Howell, 410 U S 315, 321-323 (1973) The principle of
population equality for congressional districts has not proved
unjust or socially or economically harmful in experience
Cf Washington v Dawson & Co , 264 U S 219, 237 (1924)
(Brandeis, J , dissenting), B Cardozo, The Nature of the
Judicial Process 150 (1921) If anything, this standard
should cause less difficulty now for state legislatures than it
did when we adopted it in Wesberry The rapid advances in
computer technology and education during the last two dec-
ades make it relatively simple to draw contiguous districts of
equal population and at the same time to further whatever
secondary goals the State has 5 Finally, to abandon unnec-
essarily a clear and oft-confirmed constitutional interpreta-
tion would impair our authority in other cases, Florida Dept
of Health v Florida Nursing Home Assn , 450 U S 147,
153-154 (1981) (STEVENS, J , concurring), Pollock v Farm-
ers' Loan & Trust Co , 157 U S 429, 652 (1895) (White, J ,
dissenting), would implicitly open the door to a plethora of re-
quests that we reexamme other rules that some may consider
5 Note that many of the problems that the New Jersey Legislative en-
countered in drawing districts with equal population stemmed from the de-
cision, which appellees never challenged, not to divide any municipalities
between two congressional districts The entire State of New Jersey is
divided into 567 municipalities, with populations ranging from 329,248
(Newark) to 9 (Tavistock Borough) See Brief for Appellants 36, n 38
Preserving political subdivisions intact, however, while perfectly permissi-
ble as a secondary goal, is not a sufficient excuse for failing to achieve
population equality without the specific showing described infra, at
740-741 See Kirkpatmck v Preisler, supra, at 533-534, White v Weiser,
412 U S 783, 791 (1973)
734 OCTOBER TERM, 1982
Opinion of the Court 462 U S
burdensome, Cardozo, supra, at 149-150, and would preju-
dice those who have relied upon the rule of law in seeking an
equipopulous congressional apportionment in New Jersey,
see Florida Nursing Home Assn , supra, at 154 (STEVENS^
J , concurring) We thus reaffirm that there are no de
mimmis population variations, which could practicably be
avoided, but which nonetheless meet the standard of Art I,
§ 2, without justification 6
6 JUSTICE WHITE objects that "the rule of absolute equality is perfectly
compatible with 'gerrymandering' of the worst sort," Wells v Rockefeller,
394 U S 542, 551 (1969) (Harlan, J , dissenting) Post, at 776 That
may certainly be true to some extent beyond requiring States to justify
population deviations with explicit, precise reasons, which might be ex
pected to have some inhibitory effect, Kirkpatnck does little to prevent
what is known as gerrymandering See generally Backstrom, Robins, &
Eller, Issues in Gerrymandering An Exploratory Measure of Partisan
Gerrymandering Applied to Minnesota, 62 Minn L Rev 1121, 1144-1159
(1978), cf 394 U S , at 534, n 4 Kirkpatmck's object, achieving popula
tion equality, is far less ambitious than what would be required to address
gerrymandering on a constitutional level
In any event, the additional claim that Kvrkpatnck actually promotes
gerrymandering (as opposed to merely failing to stop it) is completely
empty A federal principle of population equality does not prevent any
State from taking steps to inhibit gerrymandering, so long as a good faith
effort is made to achieve population equality as well See, e g , Colo
Const Art V, § 47 (guidelines as to compactness, contiguity, boundaries
of political subdivisions, and communities of interest), Mass Const ,
Amended Art CI, § 1 (boundaries), N Y Elec Law § 4-100(2) (McKmney
1978) (compactness and boundaries)
JUSTICE WHITE further argues that the lack of a de mimmis rule encour-
ages litigation and intrusion by federal courts into state affairs Post, at
777-778 It cannot be gainsaid that the de mimmis rule he proposes would
have made litigation in this case unattractive But experience proves that
cases in which a federal court is called upon to invalidate an existing appor
tionment, and sometimes to substitute a court-ordered plan in its stead,
frequently arise not because a newly enacted apportionment plan fails to
meet the test of Kirkpatrick, but because partisan politics frustrate the
efforts of a state legislature to enact a new plan after a recent census has
shown that the existing plan is grossly malapportioned See, e g ,
Carstens v Lamm, 543 F Supp 68 (Colo 1982), Shayer v Kirkpatnck,
KARCHER v DAGGETT 735
725 Opinion of the Court
B
The sole difference between appellants' theory and the
argument we rejected in Kirkpatmck is that appellants have
proposed a de mimmis line that gives the illusion of rational-
ity and predictability the "inevitable statistical imprecision
of the census " They argue "Where, as here, the deviation
from ideal district size is less than the known imprecision of
the census figures, that variation is the functional equivalent
of zero " Brief for Appellants 18 There are two problems
with this approach First, appellants concentrate on the
extent to which the census systematically undercounts actual
population — a figure which is not known precisely and which,
even if it were known, would not be relevant to this case
Second, the mere existence of statistical imprecision does not
make small deviations among districts the functional equiva-
lent of equality
In the District Court and before this Court, appellants rely
exclusively on an affidavit of Dr James Trussell, a Princeton
University demographer See App 97-104 Dr TrusselTs
carefully worded statement reviews various studies of the
undercounts in the 1950, 1960, and 1970 decennial censuses,
and it draws three important conclusions (1) "the undercount
in the 1980 census is likely to be above one percent", (2) "all
the evidence to date indicates that all places are not under-
counted to the same extent, since the undercount rate has
been shown to depend on race, sex, age, income, and educa-
tion", and (3) "[t]he distribution of the undercount in New
Jersey is unknown, and I see no reason to believe that it
would be uniformly spread over all municipalities " Id , at
103-104 Assuming for purposes of argument that each of
541 F Supp 922 (WD Mo ), summarily aff 'd, 456 U S 966 (1982),
O'Sulhvan v Brier, 540 P Supp 1200 (Kan 1982), Donnelly v MeskiU,
345 F Supp 962 (Conn 1972), Damd v Cahill, 342 F Supp 463 (NJ
1972), Skolmck v State Electoral Board of Illinois, 336 F Supp 839 (ND
HI 1971)
736 OCTOBER TERM, 1982
Opinion of the Court 462 U S
these statements is correct, they do not support appellants'
argument
In essence, appellants' one-percent benchmark is little more
than an attempt to present an attractive de minimis line with
a patina of scientific authority Neither Dr Trussell's state-
ment nor any of appellants' other evidence specifies a precise
level for the undercount in New Jersey, and Dr Trussell's
discussion of the census makes clear that it is impossible to
develop reliable estimates of the undercount on anything but
a nationwide scale See id , at 98-101 His conclusion that
the 1980 undercount is "likely to be above one percent" seems
to be based on the undercounts in previous censuses and
a guess as to how well new procedures adopted in 1980 to
reduce the undercount would work Therefore, if we ac-
cepted appellants' theory that the national undercount level
sets a limit on our ability to use census data to tell the differ-
ence between the populations of congressional districts, we
might well be forced to set that level far above one percent
when final analyses of the 1980 census are completed 7
As Dr Trussell admits, id , at 103, the existence of a one-
percent undercount would be irrelevant to population devi-
ations among districts if the undercount were distributed
evenly among districts The undercount in the census af-
fects the accuracy of the deviations between districts only to
the extent that the undercount varies from district to dis-
trict For a one-percent undercount to explain a one-percent
deviation between the census populations of two districts, the
undercount in the smaller district would have to be approxi-
mately three times as large as the undercount in the larger
7 See generally J Passel, J Siegel, & 3 Robinson, Coverage of the Na-
tional Population in the 1980 Census, by Age, Sex, and Race Preliminary
Estimates by Demographic Analysis (Nov 1981) (Record Doc No 31)
(hereinafter Passel) Estimates for the national undercount in previous
censuses range from 2 5% to 3 3% See, e g , Panel on Decennial Census
Plans, Counting the People in 1980 An Appraisal of Census Plans 2 (Nat
Acad Sciences 1978)
KARCHER v DAGGETT 737
725 Opinion of the Court
district 8 It is highly unlikely, of course, that this condition
holds true, especially since appellants have utterly failed to
introduce evidence showing that the districts were designed
to compensate for the probable undercount Dr Trussell's
affidavit states that the rate of undercountmg may vary from
municipality to municipality, but it does not discuss by how
much it may vary, or to what extent those variations would
be reflected at the district level, with many municipalities
combined Nor does the affidavit indicate that the factors
associated with the rate of undercountmg — race, sex, age,
etc — vary from district to district, or (more importantly)
that the populations in the smaller districts reflect the rele-
vant factors more than the populations in the larger dis-
tricts 9 As Dr Trussell admits, the distribution of the
undercount in New Jersey is completely unknown Only by
bizarre coincidence could the systematic undercount in the
8 As an example, assume that in a hypothetical State with two congres-
sional districts District A has a population of 502,500, and District B has a
population of 497,500 The deviation between them is 5,000, or one per-
cent of the mean If the statewide undercount is also one percent, and it is
distributed evenly between the two districts, District A will have a *<reaF
population of 507,525, and District B will have a "real" population of
502,475 The deviation between them will remain one percent Only if
three-fourths of the uncounted people in the State live in District B will the
two districts have equal populations If three-fourths of the uncounted
people happen to live in District A, the deviation between the two districts
will increase to 1 98%
&For instance, it is accepted that the rate of undercount in the census for
black population on a nationwide basis is significantly higher than the rate
of undercount for white population See generally Passel 9-20 Yet the
census population of the districts in the Feldman Plan is unrelated to the
percentage of blacks in each district The Fourth District, for instance, is
the largest district in terms of population, 0 268% above the mean, it has a
17 3% black population, App 94 The First District is 14 6% black, id , at
96, and it is almost exactly average in overall population The undercount
in any particular district cannot be predicted only from the percentage of
blacks in the district, but to the extent that blacks are not counted, the
undercount would be more severe in the Fourth District than in the rela-
tively less populous First District
738 OCTOBER TERM, 1982
Opinion of the Court 462 u s
census bear some statistical relationship to the districts
drawn by the Feldman Plan
The census may systematically undercount population, and
the rate of undercounting may vary from place to place
Those facts, however, do not render meaningless the dif-
ferences in population between congressional districts, as
determined by uncorrected census counts To the contrary,
the census data provide the only reliable — albeit less than
perfect — indication of the districts' "real" relative population
levels Even if one cannot say with certainty that one dis-
trict is larger than another merely because it has a higher
census count, one can say with certainty that the district
with a larger census count is more likely to be larger than the
other district than it is to be smaller or the same size That
certainty is sufficient for decisionmakmg Cf City of New
ark v Blumenthal, 457 F Supp 30, 34 (DC 1978) Further-
more, because the census count represents the "best popula-
tion data available," see Kirkpatrick, 394 U S , at 528, it is
the only basis for good-faith attempts to achieve population
equality Attempts to explain population deviations on the
basis of flaws in census data must be supported with a preci-
sion not achieved here See id , at 535
Given that the census-based population deviations in the
Feldman Plan reflect real differences among the districts, it
is clear that they could have been avoided or significantly re-
duced with a good-faith effort to achieve population equality
For that reason alone, it would be inappropriate to accept the
Feldman Plan as "functionally equivalent" to a plan with dis-
tricts of equal population
The District Court found that several other plans intro-
duced in the 200th Legislature had smaller maximum devi-
ations than the Feldman Plan 535 F Supp , at 982
Cf White v Weiser, 412 U S , at 790, and n 9 Appellants
object that the alternative plans considered by the District
Court were not comparable to the Feldman Plan because
KARCHER v DAGGETT 739
725 Opinion of the Court
their political characters differed profoundly See, e g ,
App 93-96 (affidavit of S H Woodson, Jr ) (arguing that al-
ternative plans failed to protect the interests of black voters
in the Trenton and Camden areas) We have never denied
that apportionment is a political process, or that state legisla-
tures could pursue legitimate secondary objectives as long as
those objectives were consistent with a good-faith effort to
achieve population equality at the same time Neverthe-
less, the claim that political considerations require population
differences among congressional districts belongs more
properly to the second level of judicial inquiry in these cases,
see infra, at 740-741, in which the State bears the burden of
justifying the differences with particularity
In any event, it was unnecessary for the District Court to
rest its finding on the existence of alternative plans with rad-
ically different political effects As in Kirkpatmck, Resort
to the simple device of transferring entire political subdi-
visions of known population between contiguous districts
would have produced districts much closer to numerical
equality " 394 U S , at 532 Starting with the Feldman
Plan itself and the census data available to the legislature at
the time it was enacted, see App 23-34, one can reduce the
maximum population deviation of the plan merely by shifting
a handful of municipalities from one district to another 10
10 According to the population figures used by Dr Reock, the following
adjustments to the Feldman Plan as enacted in Pub L 1982, ch 1, would
reduce its maximum population variance to 0 449%, somewhat lower than
the version of the Reock Plan introduced in the legislature To the Fifth
District, add Oakland and Franklin Lakes (from the Eighth District), and
Hillsdale, Woodchff Lake, and Norwood (from the Ninth District) To the
Sixth District, add North Brunswick (from the Seventh District) To the
Seventh District, add Roosevelt (from the Fourth District), and South
Plamfield and Helmetta (from the Sixth District) To the Eighth District,
add Montville and Boonton Town (from the Fifth District) To the Ninth
District, add River Edge and Oradell (from the Fifth District)
Some of these changes are particularly obvious Shifting the small town
of Roosevelt from the Fourth to the Seventh District brings both apprecia-
bly closer to the mean, and the town is already nearly surrounded by the
740 OCTOBER TERM, 1982
Opinion of the Court 462 U g
See also Swann v Adams, 385 U S , at 445-446, n 4, supra
Thus the District Court did not err in finding that the plain
tiffs had met their burden of showing that the Feldman Plan
did not come as nearly as practicable to population equality
IV
By itself, the foregoing discussion does not establish that
the Feldman Plan is unconstitutional Rather, appellees'
success in proving that the Feldman Plan was not the product
of a good-faith effort to achieve population equality means
only that the burden shifted to the State to prove that the
population deviations in its plan were necessary to achieve
some legitimate state objective White v Weiser demon-
strates that we are willing to defer to state legislative poli-
cies, so long as they are consistent with constitutional norms,
even if they require small differences in the population of con-
gressional districts See 412 U S , at 795-797, cf Upham
v Seaman, 456 U S 37 (1982), Connor v Finch, 431 U S
407, 414-415 (1977) Any number of consistently applied
legislative policies might justify some variance, including, for
instance, making districts compact, respecting municipal
boundaries, preserving the cores of prior districts, and avoid-
ing contests between incumbent Representatives As long
as the criteria are nondiscriminatory, see Gomillion v Light-
foot, 364 U S 339 (1960), these are all legitimate objectives
that on a proper showing could justify minor population devi-
ations See, e g , West Virginia Civil Liberties Union v
Seventh District Similarly, River Edge, Oradell, Norwood, and Mont-
ville are barely contiguous with their present districts and almost com-
pletely surrounded by the new districts suggested above Further im
provement could doubtless be accomplished with the aid of a computer and
detailed census data See also n 5, supra
We do not, of course, prejudge the validity of a plan incorporating these
changes, nor do we indicate that a plan cannot represent a good faith effort
whenever a court can conceive of minor improvements We point them
out only to illustrate that further reductions could have been achieved
within the basic framework of the Feldman Plan
KARCHER v DAGGETT 741
725 Opinion of the Court
Rockefeller, 336 F Supp 395, 398-400 (SD W Va 1972) (ap-
proving plan with 0 78% maximum deviation as justified by
compactness provision m State Constitution), cf Reynolds
v Sims, 377 U S 533, 579 (1964), Burns v Richardson, 384
U S 73, 89, and n 16 (1966) The State must, however,
show with some specificity that a particular objective re-
quired the specific deviations in its plan, rather than simply
relying on general assertions The showing required to jus-
tify population deviations is flexible, depending on the size of
the deviations, the importance of the State's interests, the
consistency with which the plan as a whole reflects those
interests, and the availability of alternatives that might sub-
stantially vindicate those interests yet approximate popula-
tion equality more closely By necessity, whether devi-
ations are justified requires case-by-case attention to these
factors
The possibility that a State could justify small variations in
the census-based population of its congressional districts on
the basis of some legitimate, consistently applied policy was
recognized in Kirkpatrick itself In that case, Missouri ad-
vanced the theory, echoed by JUSTICE WHITE in dissent, see
post, at 771-772, that district-to-district differences m the
number of eligible voters, or projected population shifts, jus-
tified the population deviations in that case 394 U S , at
534-535 We rejected its arguments not because those fac-
tors were impermissible considerations in the apportionment
process, but rather because of the size of the resulting devi-
ations and because Missouri "[a]t best made haphazard
adjustments to a scheme based on total population," made
"no attempt" to account for the same factors in all districts,
and generally failed to document its findings thoroughly and
apply them "throughout the State in a systematic, not an ad
hoc, manner " Id , at 535 u
11 The very cases on which Kirkpatrick rehed made clear that the prina
pie of population equality did not entirely preclude small deviations caused
by adherence to consistent state policies See Swann v Adams, 385 U S
742 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The District Court properly found that appellants did not
justify the population deviations in this case At argument
before the District Court and on appeal in this Court, appel-
lants emphasized only one justification for the Feldman
Plan's population deviations — preserving the voting strength
of racial minority groups 12 They submitted affidavits from
440, 444 (1967), Reynolds v Sims, 377 U S 533, 579 (1964) District
Courts applying the Kirkpatnck standard have consistently recognized
that small deviations could be justified See, e g , Douhn v White, 528
F Supp 1323, 1330 (ED Ark 1982) (rejecting projected population shifts
as justification for plan with 1 87% maximum deviation because largest
district also had largest projected growth), West Virginia Civil Liber-
ties Union v Rockefeller, 336 F Supp 395, 398-400 (SD W Va 1972)
Furthermore, courts using the Kirkpatnck standard to evaluate proposed
remedies for unconstitutional apportionments have often, as in White v
Weiser, rejected the plan with the lowest population deviation in favor of
plans with slightly higher deviations that reflected consistent state poll
cies See, e g , David v Cahill, 342 F Supp 463 (NJ 1972), Skolnick v
State Electoral Board of Illinois, 336 F Supp , at 842-846 A number of
District Courts applying the Kirkpatnck test to apportionments of state
legislatures, before this Court disapproved the practice in Mahan v How
ell9 410 U S 315 (1973), also understood that justification of small devia
tions was a very real possibility E g , Kelly v Bumpers, 340 F Supp
568, 571 (ED Ark 1972), summarily aff 'd, 413 U S 901 (1973), Ferrell v
Oklahoma ex rel Hall, 339 F Supp 73, 84-85 (WD Okla ), summarily
aff 'd, 406 U S 939 (1972), Sewell v St Tammany Parish Police Jury, 338
F Supp 252, 255 (ED La 1971) The court in Graves v Barnes, 343
F Supp 704 (WD Tex 1972) — later reversed by this Court for applying
Kirkpatnck at all, White v Regester, 412 U S 755 (1973) — characterized
the inquiry required by Kirkpatnck as follows "The critical issue remains
the same Has the State justified any and all variances, however small, on
the basis of a consistent, rational State policy " 343 F Supp , at 713, see
id , at 713-716
12 At oral argument in this Court, appellants stated that the drafters of
the Feldman Plan were concerned with a number of other objectives as
well, namely "to preserve the cores of existing districts" and "to preserve
municipal boundaries " Tr of Oral Arg 4, 14 See also Answer and
Counterclaim on Behalf of Alan J Karcher 11 10 (Record Doc No 17)
Similarly, Speaker Karcher's affidavit suggests that the legislature was
concerned that the Ninth District should lie entirely within Bergen
County App 84 None of these justifications was presented to the Dis-
trict Court or this Court in any but the most general way, however, and
KARCHER v DAGGETT 743
725 Opinion of the Court
Mayors Kenneth Gibson of Newark and Thomas Cooke of
East Orange, discussing the importance of having a large ma-
jority of black voters in Newark's Tenth District, App 86-
92, as well as an affidavit from S Howard Woodson, Jr , a
candidate for Mayor of Trenton, comparing the Feldman
Plan's treatment of black voters in the Trenton and Camden
areas with that of the Reock Plan, id , at 93-96 See also
id , at 82-83 (affidavit of A Karcher) The District Court
found, however
"[Appellants] have not attempted to demonstrate, nor
can they demonstrate, any causal relationship between
the goal of preserving minority voting strength in the
Tenth District and the population variances in the other
districts We find that the goal of preserving minor-
ity voting strength in the Tenth District is not related in
any way to the population deviations in the Fourth and
Sixth Districts " 535 F Supp , at 982
Under the Feldman Plan, the largest districts are the
Fourth and Ninth Districts, and the smallest are the Third
and Sixth See supra, at 728 None of these districts bor-
ders on the Tenth, and only one — the Fourth — is even men-
tioned in appellants' discussions of preserving minority vot-
ing strength Nowhere do appellants suggest that the large
population of the Fourth District was necessary to preserve
minority voting strength, in fact, the deviation between the
Fourth District and other districts has the effect of dilut-
ing the votes of all residents of that district, including mem-
bers of racial minorities, as compared with other districts
with fewer minority voters The record is completely silent
on the relationship between preserving minority voting
the relevant question presented by appellants to this Court excludes them
'"Whether the legislative policy of preserving minority voting strength jus-
tifies small deviations from census population equality in a congressional
reapportionment plan " Brief for Appellants i Furthermore, several
plans before the legislature with significantly lower population deviations
kept municipalities intact and had an all-Bergen County Ninth District
See App 66-74
744 OCTOBER TERM, 1982
STEVENS, J , concurring 452 u S
strength and the small populations of the Third and Sixth
Districts Therefore, the District Court's findings easily
pass the "clearly erroneous" test
The District Court properly applied the two-part test of
farkpatrick v Preisler to New Jersey's 1982 apportionment
of districts for the United States House of Representatives
It correctly held that the population deviations in the plan
were not functionally equal as a matter of law, and it found
that the plan was not a good-faith effort to achieve population
equality using the best available census data It also cor-
rectly rejected appellants' attempt to justify the population
deviations as not supported by the evidence The judgment
of the District Court, therefore, is
Affirmed
[Map of New Jersey Congressional Districts follows this
page ]
JUSTICE STEVENS, concurring
As an alternative ground for affirmance, the appellees con-
tended at oral argument that the bizarre configuration of
New Jersey's congressional districts is sufficient to demon-
strate that the plan was not adopted in "good faith " This
argument, as I understand it, is a claim that the district
boundaries are unconstitutional because they are the product
of political gerrymandering Since my vote is decisive in
this case, it seems appropriate to explain how this argument
influences my analysis of the question that divides the Court
As I have previously pointed out, political gerrymandering is
one species of "vote dilution" that is proscribed by the Equal
Protection Clause 1 Because an adequate judicial analysis of
1 See Cousins v City Council of Chicago, 466 F 2d 830, 848-853 (CAT)
(Stevens, J , dissenting), cert denied, 409 U S 893 (1972), Mobile v
Bolden, 446 U S 55, 86-89 (1980) (STEVENS, J , concurring in judgment),
Rogers v Lodge, 458 U S 613, 652 (1982) (STEVENS, J , dissenting)
KARCHER v DAGGETT 745
725 STEVENS, J , concurring
a gerrymandering claim raises special problems, I shall com-
ment at some length on the legal basis for a gerrymandering
claim, the standards for judging such a claim, and their rele-
vance to the present case
I
Relying on Art I, § 2, of the Constitution, as interpreted in
Wesberry v Sanders, 376 U S 1 (1964), and subsequent
cases, appellees successfully challenged the congressional
districting plan adopted by the New Jersey Legislature
For the reasons stated in JUSTICE BRENNAN'S opinion for the
Court, which I join, the doctrine of stare decisis requires that
result It can be demonstrated, however, that the holding in
Wesberry, as well as our holding today, has firmer roots in
the Constitution than those provided by Art I, §2
The constitutional mandate contained in Art I, §2, con-
cerns the number of Representatives that shall be "appor-
tioned among the several States "2 The section says nothing
about the composition of congressional districts writim a
State 3 Indeed, the text of that section places no restriction
whatsoever on the power of any State to define the group of
persons within the State who may vote for particular candi-
dates If a State should divide its registered voters into
separate classes defined by the alphabetical order of their
initials, by their age, by their period of residence in the
State, or even by their political affiliation, such a classifica-
tion would not be barred by the text of Art I, § 2, even if the
classes contained widely different numbers of voters
2 Article I, §2, provides, in part
"Representatives and direct Taxes shall be apportioned among the sev-
eral States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other Persons "
U S Const , Art I, § 2, cl 3 (emphasis supplied)
3 During the first 50 years of our Nation's history, it was a widespread
practice to elect Members of the House of Representatives as a group on a
statewide basis Wesberry v Sanders, 376 U S 1, 8 (1964)
746 OCTOBER TERM, 1982
STEVENS, J , concurring 462 U S
As Justice Harlan pointed out in his dissenting opinion in
Wesberry, prior to the Civil War the principle of numerical
equality of representation was actually contradicted by the
text of Art I, § 2, which provided that the "whole Number of
free Persons" should be counted, that certain Indians should
be excluded, and that only "three-fifths of all other Persons"
should be added to the total 4 In analyzing the Constitution,
we cannot ignore the regrettable fact that, as originally
framed, it expressly tolerated the institution of slavery On
the other hand, neither can we ignore the basic changes
caused by the Civil War Amendments They planted the
roots that firmly support today's holding
The abolition of slavery and the guarantees of citizenship
and voting rights contained in the Thirteenth, Fourteenth,
and Fifteenth Amendments effectively repealed Art I, § 2's
requirement that some votes be given greater weight than
others It remains true, however, that Art I, § 2, does not
itself contain any guarantee of equality of representation
The source of that guarantee must be found elsewhere But
as Justice Clark perceptively noted in his partial concurrence
4 "Representatives were to be apportioned among the States on the basis
of free population plus three-fifths of the slave population Since no slave
voted, the inclusion of three fifths of their number in the basis of apportion
ment gave the favored States representation far in excess of their voting
population If, then, slaves were intended to be without representation,
Article I did exactly what the Court now says it prohibited it 'weighted'
the vote of voters in the slave States Alternatively, it might have been
thought that Representatives elected by free men of a State would speak
also for the slaves But since the slaves added to the representation only
of their own State, Representatives from the slave States could have been
thought to speak only for the slaves of their own States, indicating both
that the Convention believed it possible for a Representative elected by
one group to speak for another nonvoting group and that Representatives
were in large degree still thought of as speaking for the whole population
of a State " Id , at 27-28
Reading a "one person, one vote" requirement into Art I, § 2, is histori-
cally as well as textually unsound See Kelly, Clio and the Court An
Illicit Love Affair, 1965 S Ct Rev 119, 135-136
KARCHER v DAGGETT 747
725 STEVENS, J , concurring
in Wesberry — and as Justice Black had written earlier in his
dissent in Colegrove v Green, 328 U S 549, 569 (1946)— that
guarantee is firmly grounded in the Equal Protection Clause
of the Fourteenth Amendment 5 Even Justice Harlan's pow-
erful dissent m Wesberry could find no flaw in that analysis
In its review of state laws redefining congressional dis-
tricts subsequent to Wesberry v Sanders, the Court has not
found it necessary to rely on the Equal Protection Clause
That Clause has, however, provided the basis for apply-
ing the "one person, one vote" standard to other electoral
districts See, e g , Baker v Carr, 369 U S 186 (1962),
Reynolds v Sims, 377 U S 533 (1964), Avery v Midland
County, 390 U S 474 (1968) Even if Art I, §2, were
wholly disregarded, the "one person, one vote" rule would
unquestionably apply to action by state officials defining con-
gressional districts just as it does to state action defining
state legislative districts 6
5 That Clause "does not permit the States to pick out certain qualified cit-
izens or groups of citizens and deny them the right to vote at all No
one would deny that the equal protection clause would also prohibit a law
that would expressly give certain citizens a half-vote and others a full vote
The probable effect of the 1901 State Apportionment Act in the coming
election will be that certain citizens, and among them the appellants, will in
some instances have votes only one-ninth as effective in choosing repre-
sentatives to Congress as the votes of other citizens Such discriminatory
legislation seems to me exactly the kind that the equal protection clause
was intended to prohibit " Colegrove v Green, 328 U S , at 569 (Black,
J , dissenting), quoted in part in Wesberry v Sanders, supra, at 19 (Clark,
J , concurring in part and dissenting in part)
6 The "one person, one vote" rule, like the Equal Protection Clause in
which it is firmly grounded, provides protection against more than one
form of discrimination In the cases m which the rule was first developed,
district boundaries accorded significantly less weight to individual votes in
the most populous districts But it was also clear that those boundaries
maximized the political strength of rural voters and diluted the political
power of urban voters See A Hacker, Congressional Districting- The
Issue of Equal Representation 20-26 (1963), see generally Standards for
Congressional Districts (Apportionment), Hearings before Subcommittee
No 2 of the House Committee on the Judiciary on H R 73, H R 575,
748 OCTOBER TERM, 1982
STEVENS, J , concurring 4g2 U S
The Equal Protection Clause requires every State to gov-
ern impartially When a State adopts rules governing its
election machinery or defining electoral boundaries, those
rules must serve the interests of the entire community See
Reynolds v Sims, supra, at 565-566 If they serve no
purpose other than to favor one segment — whether racial,
ethnic, religious, economic, or political — that may occupy a
position of strength at a particular point in time, or to dis-
advantage a politically weak segment of the community, they
violate the constitutional guarantee of equal protection
In Gomilhon v Lightfoot, 364 U S 339, 340 (1960), the
Court invalidated a change in the city boundaries of Tuske-
gee, Alabama, "from a square to an uncouth twenty-eight
sided figure" excluding virtually all of the city's black voters
The Court's opinion identified the right that had been vio-
lated as a group right
"When a legislature thus singles out a readily isolated
segment of a racial minority for special discriminatory
treatment, it violates the Fifteenth Amendment In no
case involving unequal weight in voting distribution that
has come before the Court did the decision sanction a dif-
ferentiation on racial lines whereby approval was given
to unequivocal withdrawal of the vote solely from colored
citizens " Id , at 346
Although the Court explicitly rested its decision on the
Fifteenth Amendment, the analysis in Justice Whittaker's
concurring opinion — like Justice Clark's in Wesberry — is
equally coherent, see 364 U S , at 349 Moreover, the Court
has subsequently treated Gomilhon as though it had been
decided on equal protection grounds See Whitcomb v
Chaws, 403 U S 124, 149 (1971)
H R 8266, and H R 8473, 86th Cong , 1st Sess , 65-90 (1959) The pri
mary consequence of the rule has been its protection of the individual
voter, but it has also provided one mechanism for identifying and curtailing
discrimination against cognizable groups of voters
KARCHER v DAGGETT 749
725 STEVENS, J , concurring
Gomilhon involved complete geographical exclusion of a
racially identified group But in case after case arising
under the Equal Protection Clause the Court has suggested
that "dilution" of the voting strength of cognizable political
as well as racial groups may be unconstitutional Thus, the
question reserved in Fortson v Dorsey, 379 U S 433, 439
(1965), related to an apportionment scheme that might "oper-
ate to minimize or cancel out the voting strength of racial
or political elements of the voting population " See also
Gaffney v Cummings, 412 U S 735, 751, 754 (1973), White
v Regester, 412 U S 755, 765-770 (1973), Whitcomb v
Chaws, supra, at 143-144, Burns v Richardson, 384 U S
73, 88-89 (1966) In his separate opinion in Williams v
Rhodes, 393 U S 23, 39 (1968), Justice Douglas pointed out
that the Equal Protection Clause protects "voting rights and
political groups as well as economic units, racial commu-
nities, and other entities " And in Abate v Mundt, 403
U S 182, 187 (1971), the Court noted the absence of any
"built-in bias tending to favor particular political interests or
geographic areas " In his dissenting opinion today, JUSTICE
WHITE seems to agree that New Jersey's plan would violate
the Equal Protection Clause if it "invidiously discriminated
against a racial or political group " Post, at 783
There is only one Equal Protection Clause Since the
Clause does not make some groups of citizens more equal
than others, see Zobel v Williams, 457 U S 55, 71 (1982)
(BRENNAN, J , concurring), its protection against vote dilu-
tion cannot be confined to racial groups As long as it pro-
scribes gerrymandering against such groups, its proscription
must provide comparable protection for other cognizable
groups of voters as well As I have previously written
"In the line-drawing process, racial, religious, ethnic,
and economic gerrymanders are all species of political
gerrymanders
"From the standpoint of the groups of voters that are
affected by the line-drawing process, it is also important
750 OCTOBER TERM, 1982
STEVENS, J , concurring 452 u S
to recognize that it is the group's interest in gaining or
maintaining political power that is at stake The mere
fact that a number of citizens share a common ethnic,
racial, or rehgious background does not create the need
for protection against gerrymandering It is only when
their common interests are strong enough to be mani-
fested in political action that the need arises For the
political strength of a group is not a function of its ethnic,
racial, or rehgious composition, rather it is a function of
numbers — specifically the number of persons who will
vote in the same way " Mobile v Bolden, 446 U S 55,
88 (1980) (concurring in judgment)
See Cousins v City Council of Chicago, 466 F 2d 830, 851-
852 (CAT) (Stevens, J , dissenting), cert denied, 409 U S
893 (1972) 7
II
Like JUSTICE WHITE, I am convinced that judicial preoccu-
pation with the goal of perfect population equality is an inade-
quate method of judging the constitutionality of an apportion-
ment plan I would not hold that an obvious gerrymander is
wholly immune from attack simply because it comes closer to
perfect population equality than every competing plan On
the other hand, I do not find any virtue in the proposal to
relax the standard set forth in Wesberry and subsequent
cases, and to ignore population disparities after some arbi-
trarily defined threshold has been crossed 8 As one coin-
Similarly, the motivation for the gerrymander turns on the political
strength of members of the group, derived from cohesive voting patterns,
rather than on the source of their common interests 466 F 2d, at 852
8 The former would appear to be consistent with what the Court has writ
ten in this case, ante, at 734-735, n 6, the latter would be consistent
with what JUSTICE WHITE has written in dissent, post, at 780-783 Either
of these approaches would leave the door to unrestricted gerrymandering
wide open See Engstrom, The Supreme Court and Equipopulous Gerry
mandering A Remaining Obstacle in the Quest for Fair and Effective
Representation, 1976 Ariz State L J 277, 285-286, 296, Baker, Quantata
KARCHER v DAGGETT 751
725 STEVENS, J , concurring
mentator has written "Logic, as well as experience, tells us
that there can be no total sanctuaries in the political
thicket, else unfairness will simply shift from one form to
another"9 Rather, we should supplement the population
equality standard with additional criteria that are no less "judi-
cially manageable " In evaluating equal protection challenges
to districting plans, just as in resolving such attacks on other
forms of discriminatory action, I would consider whether the
plan has a significant adverse impact on an identifiable political
group, whether the plan has objective indicia of irregular-
ity, and then, whether the State is able to produce convincing
evidence that the plan nevertheless serves neutral, legitimate
interests of the community as a whole
Until two decades ago, constrained by its fear of entering a
standardless political thicket, the Court simply abstained
from any attempt to judge the constitutionality of legislative
apportionment plans, even when the districts varied in popu-
lation from 914,053 to 112,116 See Colegrove v Green, 328
U S , at 557 In Baker v Carr, 369 U S 186 (1962), and
Reynolds v Sims, 377 U S 533 (1964), the Court abandoned
that extreme form of judicial restraint and enunciated the
"one person, one vote" principle That standard is "judi-
cially manageable" because census data are concrete and rea-
sonably reliable and because judges can multiply and divide
Even as a basis for protecting voters in their individual ca-
pacity, the "one person, one vote" approach has its shortcom-
ings Although population disparities are easily quantified,
the standard provides no measure of the significance of any
numerical difference It is easy to recognize the element of
tive and Descriptive Guidelines to Minimize Gerrymandering, 219 Annals
N Y Acad Sci 200, 208 (1973) ("If more specific guidelines to minimize
gerrymandering are not forthcoming, then a great democratic principle —
one man, one vote — will have degenerated into a simplistic arithmetical
facade for discriminatory cartography on an extensive scale**)
"Dixon, The Court, the People, and "One Man, One Vote," in Reappor-
tionment in the 1970s, p 32 (N Polsby ed 1971)
752 OCTOBER TERM, 1982
STEVENS, J , concurring 4^2 u g
unfairness in allowing 112,116 voters to elect one Congress-
man while another is elected by 914,053 But how signifi-
cant is the difference between census counts of 527,472 and
523,798? Given the birth rate, the mortality rate, the tran
sient character of modern society, and the acknowledged
errors in the census, we all know that such differences may
vanish between the date of the census and the date of the
next election Absolute population equality is impossible to
achieve
More important, mere numerical equality is not a sufficient
guarantee of equal representation Although it directly pro
tects individuals, it protects groups only indirectly at best
See Reynolds v Sims, supra, at 561 A voter may chal-
lenge an apportionment scheme on the ground that it gives
his vote less weight than that of other voters, for that pur-
pose it does not matter whether the plaintiff is combined with
or separated from others who might share his group affili-
ation It is plainly unrealistic to assume that a smaller
numerical disparity will always produce a fairer districting
plan Indeed, as Justice Harlan correctly observed in Wells
v Rockefeller, 394 U S 542, 551 (1969), a standard "of abso-
lute equality is perfectly compatible with 'gerrymandering* of
the worst sort A computer may grind out district lines
which can totally frustrate the popular will on an overwhelm-
ing number of critical issues " Since Justice Harlan wrote,
developments in computer technology have made the task of
the gerrymanderer even easier See post, at 776 (WHITE,
J , dissenting) 10
10 Computers now make it possible to generate a large number of alterna
tive plans, consistent with equal population guidelines and various other
criteria, in a relatively short period of time, and to analyze the political
characteristics of each one in considerable detail In contrast, "[i]n the
1970Js round of reapportionment, some states were barely able to generate
a single reapportionment plan in the time allotted to the task " National
Conference of State Legislatures, Reapportionment Law and Technology
55 (June 1980), see also Engstrom, supra n 8, at 281-282
KARCHER-i; DAGGETT 753
725 STEVENS, J , concurring
The imperfections in the numerical standard do not, of
course, render it useless It provides one neutral criterion
for evaluating a districting plan Numerical disparities may
provide sufficient basis for shifting the burden of justification
to the State Moreover, if all other factors were in equi-
poise, it would be proper to conclude that the plan that most
nearly attains the goal of complete equality would be the
fairest plan The major shortcoming of the numerical stand-
ard is its failure to take account of other relevant — indeed,
more important — criteria relating to the fairness of group
participation in the political process To that extent, it may
indeed be counterproductive See Gaffney v Cummings,
412 U S , at 748-749 n
To a limited extent the Court has taken cognizance of dis-
criminatory treatment of groups of voters The path the
Court has sometimes used to enter this political thicket is
marked by the label "intent " A finding that the majority
deliberately sought to make it difficult for a minority group to
elect representatives may provide a sufficient basis for holding
that an objectively neutral electoral plan is unconstitutional
See Rogers v Lodge, 458 U S 613, 616-617 (1982) For rea-
sons that I have already set forth at length, this standard is
inadequate See id , at 642-650 (STEVENS, J , dissenting),
Mobile v Bolden, 446 U S , at 83 (STEVENS, J , concurring in
judgment) I would not condemn a legislature's districting
plan in the absence of discriminatory impact simply because
its proponents were motivated, in part, by partisanship or
group animus Legislators are, after all, politicians, it is un-
realistic to attempt to proscribe all political considerations in
the essentially political process of redistricting In the long
run, constitutional adjudication that is premised on a case-by-
case appraisal of the subjective intent of local decisionmakers
"See Edwards, The Gerrymander and "One Man, One Vote," 46
N Y U L Rev 879 (1971), Elliott, Prometheus, Proteus, Pandora, and
Procrustes Unbound The Political Consequences of Reapportionment, 37
U Chi L Rev 474, 483-488 (1970), Engstrom, supra n 8
754 OCTOBER TERM, 1982
STEVENS, J , concurring 452 u g
cannot possibly satisfy the requirement of impartial adminis-
tration of the law that is embodied in the Equal Protection
Clause of the Fourteenth Amendment On the other hand
if a plan has a significant adverse impact upon a defined
political group, an additional showing that it departs dramati-
cally from neutral criteria should suffice to shift the task of
justification to the state defendants
For a number of reasons, this is a burden that plaintiffs can
meet in relatively few cases As a threshold matter, plain-
tiffs must show that they are members of an identifiable
political group whose voting strength has been diluted They
must first prove that they belong to a politically salient class,
see supra, at 749-750, one whose geographical distribution is
sufficiently ascertamable that it could have been taken into
account in drawing district boundaries 12 Second, they must
prove that m the relevant district or districts or in the State
as a whole, their proportionate voting influence has been
adversely affected by the challenged scheme 13 Third, plain-
12 Identifiable groups will generally be based on political affiliation, race,
ethnic group, national origin, religion, or economic status, but other char
acteristics may become politically significant in a particular context See
Clinton, Further Explorations in the Political Thicket The Gerrymander
and the Constitution, 59 Iowa L Rev 1, 38-39 (1973) (cognizable interest
group with coherent and identifiable legislative policy), Comment, Political
Gerrymandering A Statutory Compactness Standard as an Antidote for
Judicial Impotence, 41 U Chi L Rev 398, 407-408 (1974) (clearly identifi
able and stable group)
18 The difficulty in making this showing stems from the existence of alter
native strategies of vote dilution Depending on the circumstances, vote
dilution may be demonstrated if a population concentration of group mem
bers has been fragmented among districts, or if members of the group have
been overconcentrated in a single district greatly in excess of the percent
age needed to elect a candidate of their choice See Mobile v Bolden, 446
U S , at 91, and n 13 (STEVENS, J , concurring in judgment), Hacker,
supra n 6, at 46-50, cf Note, Compensatory Racial Reapportionment, 25
Stan L Rev 84, 97-100 (1972) (pointing to the shortcomings of several
tests of political strength, including opportunity to cast swing votes and
opportunity to elect a representative of their own group)
In litigation under the Voting Rights Act, federal courts have developed
some familiarity with the problems of identifying and measuring dilution of
KARCHER v DAGGETT 755
725 STEVENS, J , concurring
tiffs must make a prima facie showing that raises a rebuttable
presumption of discrimination
One standard method by which members of a disadvan-
taged political group may establish a dilution of their voting
rights is by reliance on the "one person, one vote" principle,
which depends on a statewide statistical analysis But prima
facie evidence of gerrymandering can surely be presented in
other ways One obvious type of evidence is the shape of the
district configurations themselves One need not use Justice
Stewart's classic definition of obscenity — "I know it when I
see it" 14 — as an ultimate standard for judging the constitu-
tionality of a gerrymander to recognize that dramatically
irregular shapes may have sufficient probative force to call
for an explanation 15
Substantial divergences from a mathematical standard of
compactness may be symptoms of illegitimate gerrymander-
ing As Dr Ernest Reock, Jr , of Rutgers University has
written 'Without some requirement of compactness, the
boundaries of a district may twist and wind their way across
the map in fantastic fashion in order to absorb scattered
racial group voting strength Some of the concepts developed for statu-
tory purposes might be applied in adjudicating constitutional claims by
other types of political groups The threshold showing of harm may be
more difficult for adherents of a political party than for members of a racial
group, however, because there are a number of possible base-hne meas-
ures for a party's strength, including voter registration and past vote-
getting performance in one or more election contests See generally
Backstrom, Robins, & Eller, Issues in Gerrymandering An Exploratory
Measure of Partisan Gerrymandering Applied to Minnesota, 62 Minn L
Rev 1121, 1131-1139 (1978)
"Jacobellis v Oh%o, 378 U S 184, 197 (1964)
15 Professor Dixon quite properly warns against defining gerrymander-
ing in terms of odd shapes See R Dixon, Democratic Representation
Reapportionment in Law and Politics 459-460 (1968) At the same time,
however, he recognizes that a rule of compactness and contiguity, <cif used
merely to force an explanation for odd-shaped districts, can have much
merit " Id , at 460 See L Tribe, American Constitutional Law 760
(1978) (oddity of district's shape, coupled with racial distribution of the
population, should shift the burden of justification to the State)
756 OCTOBER TERM, 1982
STEVENS, J , concurring 462 U S
pockets of partisan support " 16 To some extent, geographi-
cal compactness serves independent values, it facilitates
political organization, electoral campaigning, and constituent
representation 17 A number of state statutes and Constitu-
tions require districts to be compact and contiguous These
standards have been of limited utility because they have not
been defined and applied with rigor and precision 18 Yet
Professor Reock and other scholars have set forth a number
of methods of measuring compactness that can be computed
with virtually the same degree of precision as a population
count 19 It is true, of course, that the significance of a par-
16 Reock, Measuring Compactness as a Requirement of Legislative Ap-
portionment, 5 Midwest J Pol Sci 70,71(1961) Cf Backstrom, Robins,
& Eller, supra n 13, at 1126, 1137 (compactness standard cannot eliminate
gerrymandering but may reduce the band of discretion available to those
drawing district boundaries) It is of course possible to dilute a group's
voting strength even if all districts are relatively compact Engstrom,
supra n 8, at 280
17 See Taylor, A New Shape Measure for Evaluating Electoral District
Patterns, 67 Am Pol Sci Rev 947, 948 (1973) Compactness is not to be
confused with physical area As we stated in Reynolds v Sims, 377 U S
533, 580 (1964) "Modern developments and improvements in transporta
tion and communications make rather hollow, in the mid-1960's, most
claims that deviations from population based representation can validly be
based solely on geographical considerations Arguments for allowing such
deviations in order to insure effective representation for sparsely settled
areas and to prevent legislative districts from becoming so large that the
availability of access of citizens to their representatives is impaired are
today, for the most part, unconvincing " Nevertheless, although low
population density may require geographically extensive districts, differ-
ent questions are presented by the creation of districts with distorted
shapes and irregular, indented boundaries
18 One state statute and 21 State Constitutions explicitly require that dis-
tricts be compact, two state statutes and 27 Constitutions explicitly pro-
vide that districts be formed of contiguous territory See Congressional
Research Service, State Constitutional and Statutory Provisions Concern
ing Congressional and State Legislative Redistricting (June 1981) But
see Clinton, supra n 12, at 2 (ineffective enforcement), Comment, swpra
n 12, at 412-413
19 The scholarly literature suggests a number of different mathematical
measures of compactness, each focusing on different variables One rela-
KARCHER v DAGGETT 757
725 STEVENS, J , concurring
ticular compactness measure may be difficult to evaluate, but
as the figures in this case demonstrate, the same may be said
of population disparities In addition, although some devi-
ations from compactness may be inescapable because of the
geographical configuration or uneven population density of a
particular State,20 the relative degrees of compactness of dif-
tively simple method is to measure the relationship between the area of the
district and the area of the smallest possible circumscribing circle See
Reock, supra n 16, at 71 This calculation is particularly sensitive to the
degree of elongation of a given shape Another simple method is to deter-
mine the ratio of a figure's perimeter to the circumference of the smallest
possible circumscribing circle, a measurement that is well suited to meas-
uring the degree of indentation See Schwartzberg, Reapportionment,
Gerrymanders, and the Notion of "Compactness," 50 Minn L Rev 443-
452 (1966) Other measures of compactness are based on the aggregate of
the distances from the district's geometrical or population-weighted cen-
ter of gravity to each of its points, see Kaiser, An Objective Method for
Establishing Legislative Districts, 10 Midwest J Pol Sci 200-223 (1966),
Weaver & Hess, A Procedure for Nonpartisan Districting* Development of
Computer Techniques, 73 Yale L J 288, 296-300 (1963), the degree of
indentation of the boundaries of a nonconvex district, see Taylor, supra
n 17, the aggregate length of district boundaries, see Common Cause,
Toward a System of "Fair and Effective Representation" 54-55 (1977),
Adams, Statute A Model State Apportionment Process The Continuing
Quest for "Fair and Effective Representation," 14 Harv J Legis 825,
875-876, and n 184 (1977), Edwards, supra n 11, at 894, Walker, One
Man-One Vote In Pursuit Of an Elusive Ideal, 3 Hastings Const L Q
453, 475 (1976), and the ratio of the maximum to the minimum diameters in
a district, R Morrill, Political Redistrictmg and Geographic Theory 22
(1981) In each case, the smaller the measurement, the more compact the
district or districts See also 1980 Iowa Acts, ch 1021, §4b(3)c (setting
forth alternative geometrical tests for determining relative compactness of
alternative districting plans the absolute value of the difference between
the length and width of the district, and the "ratio of the dispersion of
population about the population center of the district to the dispersion of
population about the geographic center of the district")
20 If a State's political subdivisions have oddly shaped boundaries, adher-
ing to these boundaries may detract from geographical compactness See
Colo Rev Stat §§2-2-105, 2-2-203 (1980) (legislative explanations that
variations from compactness were caused by "the shape of county bound-
ary lines, census enumeration lines, natural boundaries, population den-
758 OCTOBER TERM, 1982
STEVENS, J , concurring 4^2 u S
ferent district maps can always be compared As with the
numerical standard, it seems fair to conclude that drastic de-
partures from compactness are a signal that something may
be amiss
Extensive deviation from established political boundaries
is another possible basis for a prima facie showing of gerry-
mandering As we wrote in Reynolds v Sims "Indiscrimi-
nate districting, without any regard for political subdivision
or natural or historical boundary lines, may be little more
than an open invitation to partisan gerrymandering " 377
U S , at 578-579 21 Subdivision boundaries tend to remain
stable over time Residents of political units such as town-
ships, cities, and counties often develop a community of inter-
est, particularly when the subdivision plays an important role
in the provision of governmental services In addition, legis-
lative districts that do not cross subdivision boundaries are
administratively convenient and less likely to confuse the
voters ffl Although the significance of deviations from sub-
sity, and the need to retain compactness of adjacent districts"), Adams,
supra n 19, at 875-876, n 184
In addition, geographic compactness may differ from sociopolitical com
pactness Baker, supra n 8, at 205 As one geographer has noted
"In many regions, the population is uneven, perhaps strung out along roads
or railroads Travel may be easier and cheaper in some directions than in
others, such that an elongated district astride a major transport corridor
might in fact be the most compact in the sense of minimum travel time for a
representative to travel around the district If so, then a modified crite-
rion, the ratio of the maximum to the minimum travel tune, would be a
preferred measure " Morrill, supra n 19, at 22
21 In Kirkpatrick v Preisler, 394 U S 526, 534, n 4 (1969), the Court
correctly noted that adherence to subdivision boundaries could not prevent
gerrymandering But there it was concerned with the State's attempt to
justify population disparities by a policy of adhering to existing subdivision
boundaries My discussion here is directed toward partisan gerrymander
ing in a scheme with relatively equipopulous districts To the extent that
dicta in Kirkpatmck reject the notion that respecting subdivision boundaries
will not inhibit gerrymandering, I respectfully disagree See n 26, infra
l, supra n 19, at 25
KAECHER v DAGGETT 759
725 STEVENS, J , concurring
division boundaries will vary with the number of legislative
seats and the number, size, and shape of the State's sub-
divisions, the number can be counted23 and alternative plans
can be compared
A procedural standard, although obviously less precise,
may also be enlightening If the process for formulating and
adopting a plan excluded divergent viewpoints, openly re-
flected the use of partisan criteria, and provided no explana-
tion of the reasons for selecting one plan over another, it
would seem appropriate to conclude that an adversely af-
fected plaintiff group is entitled to have the majority explain
its action ^ On the other hand, if neutral decisionmakers de-
veloped the plan on the basis of neutral criteria, if there was
an adequate opportunity for the presentation and consider-
ation of differing points of view, and if the guidelines used
in selecting a plan were explained, a strong presumption of
validity should attach to whatever plan such a process
produced
Although a scheme in fact worsens the voting position of a
particular group,25 and though its geographic configuration or
23 See, e g , Mohan v Howell, 410 U S 315, 319, 323 (1973), Backstrom,
Robins, & Eller, supra n 13, at 1146, n 71, Morrill, supra n 19, at 25
The smaller the population of a subdivision relative to the average district
population, the more dubious it is to divide it among two or more districts
It is also particularly suspect to divide a particular political subdivision
among more than two districts which also contain territory in other
subdivisions
24 See, e g , Wright v Rockefeller, 376 U S 52, 73-74 (1964) (Goldberg,
J , dissenting), Edwards, supra n 11, at 881 (the 1961 New York congres-
sional redistricting plan was drawn up by majority party members of a leg-
islative committee and staff without participation by any member of the
opposition party, no public hearings were held, the plan was released to the
public the day before its adoption, it was approved by a straight party-line
vote in a single afternoon at an extraordinary session of the legislature, and
the Governor signed the bill the same day)
25 The State may defend on the grounds that this element has not been
adequately shown For example, if the plaintiffs' challenge is based on a
particular district or districts, the State may be able to show that the
760 OCTOBER TERM, 1982
STEVENS, J , concurring 452 u S
genesis is sufficiently irregular to violate one or more of the
criteria just discussed, it will nevertheless be constitutionally
valid if the State can demonstrate that the plan as a whole
embodies acceptable, neutral objectives The same kinds of
justification that the Court accepts as legitimate in the con-
text of population disparities would also be available when-
ever the criteria of shape, compactness, political boundaries,
or decisionmaking procedures have sent up warning flags
In order to overcome a prima facie case of invalidity, the
State may adduce "legitimate considerations incident to the
effectuation of a rational state policy," Reynolds v Sims, 377
U S , at 579, and may also
"show with some specificity that a particular objective
requires the specific deviations in its plan, rather than
simply relying on general assertions The showing
is flexible, depending on the size of the deviations,
the importance of the State's interests, the consistency
with which the plan as a whole reflects those interests,
and the availability of alternatives that might substan-
tially vindicate those interests yet approximate popula-
tion equality more closely " Ante, at 741 *
If a State is unable to respond to a plaintiff's prima facie
case by showing that its plan is supported by adequate neu-
tral criteria, I believe a court could properly conclude that
the challenged scheme is either totally irrational or entirely
group's voting strength is not diluted m the State as a whole Even if the
group's voting strength has in fact been reduced, the previous plan may
have been gerrymandered in its favor See generally Backstrom, Robins,
& Eller, supra n 13, at 1134-1137 (discussing possible standards of "fair
representation")
26 In determining whether the State has carried its burden of justifica
tion, I would give greater weight to the importance of the State's interests
and the consistency with which those interests are served than to the size
of the deviations Thus I do not share the perspective implied in the
Court's discussion of purported justifications in Kirkpatnck v Preisler,
394 U S , at 533-536
KARCHER v DAGGETT 761
725 STEVENS, J , concurring
motivated by a desire to curtail the political strength of the
affected political group This does not mean that federal
courts should invalidate or even review every apportionment
plan that may have been affected to some extent by partisan
legislative maneuvering CT But I am convinced that the Judi-
ciary is not powerless to provide a constitutional remedy in
egregious cases w
III
In this case it is not necessary to go beyond the reasoning
in the Court's opinions in Wesberry v Sanders, 376 U S 1
(1964), Kirkpatmck v Preisler, 394 U S 526 (1969), and
27 Given the large number of potentially affected political groups, even a
neutral, justifiable plan may well change the position of some groups for
the worse In addition, some "vote dilution" will inevitably result from
residential patterns, see Backstrom, Robins, & Eller, supra n 13, at 1127
Although the State may of course adduce this factor in defense of its plan,
the criteria for a prima facie case should be demanding enough that they
are not satisfied m the case of every apportionment plan See Mobile v
Bolden, 446 U S , at 90 (STEVENS, J , concurring in judgment) ("the
standard cannot condemn every adverse impact on one or more political
groups without spawning more dilution litigation than the judiciary can
manage"), id , at 93, n 15 (quoting opinion of Justice Frankfurter in Baker
v Carr, 369 U S 186, 267 (1962))
28 See Gomilhon v Lightfoot, 364 U S 339, 341 (1960) (noting that alle-
gations would "abundantly establish that Act 140 was not an ordinary
geographic redistrictmg measure even within familiar abuses of gerry-
mandering") If the Tuskegee map in Gomilhon had excluded virtually all
Republicans rather than blacks from the city limits, the Constitution would
also have been violated Professor Tribe gives a comparably egregious
numerical hypothetical
"For example, if a jurisdiction consisting of 540 Republicans and 460
Democrats were subdivided randomly into 10 districts, Republicans would
probably be elected in six or more districts However, if malevolent Item-
ocrats could draw district lines with precision, they might be able to isolate
100 Republicans in one district and win all the other district elections by a
margin of one or two votes, thus capturing 90% of the state legislature
while commanding only 46% of the popular vote " Tribe, supra EL 15, at
756, n 2
See Hacker, supra n 6, at 47-50
762 OCTOBER TERM, 1982
STEVENS, J , concurring 462 u S
White v Weiser, 412 U S 783 (1973), to reach the correct
result None of the additional criteria that I have mentioned
would cast any doubt on the propriety of the Court's hold-
ing in this case Although I need not decide whether the
plan's shortcomings regarding shape and compactness, sub-
division boundaries, and neutral decisionmakmg would estab-
lish a prima facie case, these factors certainly strengthen
my conclusion that the New Jersey plan violates the Equal
Protection Clause
A glance at the map, ante, following p 744, shows district
configurations well deserving the kind of descriptive adjec-
tives— "uncouth"29 and "bizarre"30 — that have traditionally
been used to describe acknowledged gerrymanders I have
not applied the mathematical measures of compactness to the
New Jersey map, but I think it likely that the plan would
not fare well In addition, while disregarding geographical
compactness, the redistrictmg scheme wantonly disregards
county boundaries For example, in the words of a com-
mentator "In a flight of cartographic fancy, the Legislature
packed North Jersey Republicans into a new district many
call 'the Swan ' Its long neck and twisted body stretch from
the New York suburbs to the rural upper reaches of the Dela-
ware River " That district, the Fifth, contains segments of
at least seven counties The same commentator described
the Seventh District, comprised of parts of five counties, as
tracing "a curving partisan path through industrial Eliza-
beth, liberal, academic Princeton and largely Jewish Marl-
**Gomilhon v Lightfoot, supra, at 339
30 Indeed, this very map was so described in a recent article entitled New
Jersey Map Imaginative Gerrymander, appearing in the Congressional
Quarterly "New Jersey's new congressional map is a four-star gerryman-
der that boasts some of the most bizarrely shaped districts to be found in
the nation " 40 Congressional Quarterly 1190 (1982) A quick glance at
congressional districting maps for the other 49 States lends credence to
this conclusion See 1983-1984 Official Congressional Directory 989-1039
(1983)
KARCHER v DAGGETT 763
725 STEVENS, J , concurring
boro in Monmouth County The resulting monstrosity was
called 'the Fishhook' by detractors " 40 Congressional Quar-
terly 1193-1195 (1982) 31
Such a map prompts an inquiry into the process that led to
its adoption The plan was sponsored by the leadership in
the Democratic Party, which controlled both houses of the
state legislature as well as the Governor's office, and was
signed into law the day before the inauguration of a Republi-
can Governor The legislators never formally explained the
guidelines used in formulating their plan or in selecting it
over other available plans Several of the rejected plans
contained districts that were more nearly equal in popula-
tion, more compact, and more consistent with subdivision
boundaries, including one submitted by a recognized expert,
Dr Ernest Reock, Jr , whose impartiality and academic cre-
dentials were not challenged The District Court found that
the Reock Plan "was rejected because it did not reflect the
leadership's partisan concerns " Daggett v Kvmmelman9
535 F Supp 978, 982 (NJ 1982) This conclusion, which
arises naturally from the absence of persuasive justifications
for the rejection of the Reock Plan, is buttressed by a letter
written to Dr Reock by the Democratic Speaker of the New
Jersey General Assembly This letter frankly explained the
importance to the Democrats of taking advantage of their
opportunity to control redistricting after the 1980 census
The Speaker justified his own overt partisanship by describ-
ing the political considerations that had motivated the Re-
publican majority in the adoption of district plans in New
31 The same commentator described the Thirteenth District in this man-
ner "In an effort to create a 'dumping ground' for Republican votes trou-
bling to Democrats Hughes and Howard, the Legislature established a
13th District that stretches all over the map, from the Philadelphia suburbs
in Camden County to the New York suburbs in Monmouth County " 40
Congressional Quarterly, at 1198 At oral argument, we observed the
likeness between the boundaries of yet another distnct-^the Fourth — and
the shape of a running back Tr of Oral Arg 21
764 OCTOBER TERM, 1982
STEVENS, J , concurring 452 u S
Jersey in the past — and in other States at the present 32 In
sum, the record indicates that the decisionmaking process
leading to adoption of the challenged plan was far from
neutral It was designed to increase the number of Demo-
crats, and to decrease the number of Republicans, that New
Jersey's voters would send to Congress in future years ffl
Finally, the record does not show any legitimate justifica-
tions for the irregularities in the New Jersey plan, although
concededly the case was tried on a different theory in the
District Court
Because I have not made a comparative study of other dis-
tricting plans, and because the State has not had the opportu-
32 "Congressional redistricting in New Jersey must also be viewed from
the more broad-based national perspective The Republican party is only
27 votes short of absolute control of Congress With a shift of population
and consequently Congressional seats from the traditionally Democratic
urban industrial states to the more Republican dominated sun-belt states
the redistricting process is viewed by Republicans as an opportunity to
close that 27 vote margin, or perhaps even overcome it entirely " 535
F Supp , at 991
Copies of the letter were sent to all Democratic legislators
33 Although Circuit Judge Gibbons disagreed with the holding of the Dis
trict Court in this case, the concluding paragraphs of his dissenting opinion
unambiguously imply that he would have no difficulty identifying this as a
case in which the district lines were drawn in order to disadvantage an
identifiable political group He wrote
"The apportionment map produced by P L 1982, c 1 leaves me, as a
citizen of New Jersey, disturbed It creates several districts which are
anything but compact, and at least one district which is contiguous only for
yachtsmen While municipal boundaries have been maintained, there has
been little effort to create districts having a community of interests In
some districts, for example, different television and radio stations, differ
ent newspapers, and different transportation systems serve the northern
and southern localities Moreover the harshly partisan tone of Speaker
Christopher Jackman's letter to Ernest C Reock, Jr is disedifying, to say
the least It is plain, as well, that partisanship produced artificial bulges
or appendages of two districts so as to place the residences of Congressmen
Smith and Courter in districts where they would be running against incum-
bents " Id , at 984
KARCHER v DAGGETT 765
725 WHITE, J , dissenting
nity to offer justifications specifically directed toward the
additional concerns I have discussed, I cannot conclude with
absolute certainty that the New Jersey plan was an unconsti-
tutional partisan gerrymander But I am in fiill agreement
with the Court's holding that, because the plan embodies de-
viations from population equality that have not been justified
by any neutral state objective, it cannot stand Further, if
population equality provides the only check on political gerry-
mandering, it would be virtually impossible to fashion a fair
and effective remedy in a case like this For if the shape of
legislative districts is entirely unconstrained, the dominant
majority could no doubt respond to an unfavorable judgment
by providing an even more grotesque-appearing map that
reflects acceptable numerical equality with even greater polit-
ical inequality If federal judges can prevent that conse-
quence by taking a hard look at the shape of things to come
in the remedy hearing, I believe they can also scrutinize the
original map with sufficient care to determine whether dis-
tortions have any rational basis in neutral criteria Other-
wise, the promise of Baker v Carr and Reynolds v Sims —
that judicially manageable standards can assure "[f ]ull and
effective participation by all citizens," 377 U S , at 565 — may
never be fulfilled
JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE
POWELL, and JUSTICE REHNQUIST join, dissenting
This case concerns the congressional reapportionment of
New Jersey The districting plan enacted by the New Jer-
sey Legislature and signed into law by the Governor on Janu-
ary 19, 1982, Pub L 1982, ch 1, reduced the number of con-
gressional districts m the State from 15 to 14 as required by
the 1980 census figures The 14 congressional districts cre-
ated by the legislature have an average deviation of 0 1384%
and a maximum deviation between the largest and smallest
districts of 0 6984% In other words, this case concerns a
766 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
maximum difference of 3,674 individuals in districts encom-
passing more than a half million people The New Jersey
plan was invalidated by a divided District Court because
these population variances were not " 'unavoidable despite a
good-faith effort to achieve absolute equality ' " Daggett v
Kimmelrnan, 535 F Supp 978, 982 (NJ 1982), quoting Kirk-
patnck v Preisler, 394 U S 526, 531 (1969) Today, the
Court affirms the District Court's decision thereby striking
for the first time in the Court's experience a legislative or
congressional districting plan with an average and maximum
population variance of under 1%
I respectfully dissent from the Court's unreasonable in-
sistence on an unattainable perfection in the equalizing of
congressional districts The Court's decision today is not
compelled by Kirkpatrick v Preisler, supra, and White v
Weiser, 412 U S 783 (1973), see Part I, infra, and if the
Court is convinced that our cases demand the result reached
today, the time has arrived to reconsider these precedents
In any event, an affirmance of the decision below is inconsist-
ent with the majority's own "modifications" of Kirkpatrick
and White which require, at a minimum, further consider-
ation of this case by the District Court See Part IV, infra
"[T]he achieving of fair and effective representation for all
citizens is concededly the basic aim of legislative apportion-
ment " Reynolds v Sims, 377 U S 533, 565-566 (1964)
One must suspend credulity to believe that the Court's draco-
man response to a trifling 0 6984% maximum deviation pro-
motes "fair and effective representation" for the people of
New Jersey The requirement that "as nearly as is practi-
cable one man's vote in a congressional election is to be worth
as much as another's," Wesberry v Sanders, 376 U S 1, 7-8
(1964), must be understood in light of the malapportion-
rnent in the States at the time Wesberry was decided The
plaintiffs in Wesberry were voters in a congressional district
(population 823,680) encompassing Atlanta that was three
KARCHER v DAGGETT 767
725 WHITE, J , dissenting
times larger than Georgia's smallest district (272,154) and
more than double the size of an average district Because
the State had not reapportioned for 30 years, the Atlanta
District possessing one-fifth of Georgia's population had only
one-tenth of the Congressmen Georgia was not atypical,
congressional districts throughout the country had not been
redrawn for decades and deviations of over 50% were the
rule 1 These substantial differences in district size dimin-
ished, in a real sense, the representativeness of congressional
elections The Court's invalidation of these profoundly un-
equal districts should not be read as a demand for precise
mathematical equality between the districts Indeed, the
Court sensibly observed that "it may not be possible [for the
States] to draw congressional districts with mathematical
precision " Id , at 18 In Reynolds v Sims, supra, at 577,
decided the same Term, the Court disavowed a requirement
of mathematical exactness for legislative districts in even
more explicit terms
'We realize that it is a practical impossibility to arrange
legislative districts so that each one has an identical
number of residents, or citizens, or voters Mathemati-
cal exactness or precision is hardly a workable constitu-
tional requirement "
The States responded to Wesberry by eliminating gross
disparities between congressional districts Nevertheless,
redistrictmg plans with far smaller variations were struck by
the Court five years later in Kirkpatrwk v Preisler, supra,
and its companion, Wells v Rockefeller, 394 U S 542 (1969)
The redistrictmg statutes before the Court contained total
percentage deviations of 5 97% and 13 1%, respectively
TBy 1962, 35 out of 42 States had variances among their districts of
over 100,000 Wesberry v Sanders, 376 U S 1, 20-21 (1964) (Harlan, J
dissenting) The Court has recognized the significance of the fact that
"enormous variations" in district size were at issue in the early legislative
apportionment cases Gaffney v Cummings, 412 U S 735, 744, and n 9
(1973)
768 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
But Wesberry's "as nearly as practicable" standard was read
to require "a good-faith effort to achieve precise numerical
equality " 394 U S , at 530-531 Over the objections of
four Justices, see id , at 536 (Fortas, J , concurring), id , at
549 (Harlan, J , joined by Stewart, J , dissenting), id , at 553
(WHITE, J , dissenting), Kirkpatnck rejected the argument
that there is a fixed numerical or percentage population vari-
ance small enough to be considered de minimis and to satisfy
the "as nearly as practicable" standard Kirkpatmck's rule
was applied by the Court in White v Weiser, supra, to in-
validate Texas' redistricting scheme which had a maximum
population variance of 4 13%
Just as Wesberry did not require Kirkpatnck , Kirkpatnck
does not meluctably lead to the Court's decision today Al-
though the Court stated that it could see "no nonarbitrary
way" to pick a de minimis point, the maximum deviation in
Kirkpatnck, while small, was more than eight times as large
as that posed here Moreover, the deviation in Kirkpatnck
was not argued to fall within the officially accepted range of
statistical imprecision of the census Interestingly enough,
the Missouri redistricting plan approved after Kirkpatnck
contained a deviation of 0 629% — virtually the same deviation
declared unconstitutional in this case Preisler v Secretary
of State of Missouri, 341 F Supp 1158, 1162 (WD Mo ), sum-
marily aff'd sub nom Danforth v Preisler, 407 U S 901
(1972) 2 Accordingly, I do not view the Court's decision today
as foreordained by Kirkpatnck and Weiser Apparently nei-
ther did JUSTICE BRENNAN who, in staying the District
Court's order, wrote
"The appeal would thus appear to present the important
question whether Kirkpatnck v Preisler requires adop-
tion of the plan that achieves the most precise math-
2 District Courts have upheld or selected plans with similar deviations
See, e g , Douhn v White, 535 F Supp 450, 451 (ED Ark 1982) (court
ordered implementation of plan with 0 78% deviation despite alternative
plan with deviation of 0 13%)
KARCHER v DAGGETT 769
725 WHITE, J , dissenting
ematical exactitude, or whether Kirkpatnck left some
latitude for the New Jersey Legislature to recognize the
considerations taken into account by it as a basis for
choosing among several plans, each with arguably 'sta-
tistically insignificant' variances from the constitutional
ideal of absolute precision " 455 U S 1303, 1305 (1982)
There can be little question but that the variances in the
New Jersey plan are ''statistically insignificant " Although
the Government strives to make the decennial census as ac-
curate as humanly possible, the Census Bureau has never
intimated that the results are a perfect count of the American
population The Bureau itself estimates the inexactitude in
the taking of the 1970 census at 2 3%,3 a figure which is con-
siderably larger than the 0 6984% maximum variance in the
New Jersey plan, and which dwarfs the 0 2470% difference
between the maximum deviations of the selected plan and the
leading alternative plan, that suggested by Professor Reoek
Because the amount of undercountmg differs from district to
district, there is no point for a court of law to act under an
unproved assumption that such tiny differences between re-
districting plans reflect actual differences in population As
Dr James Trussel, an expert in these matters, and whose
testimony the Court purports to accept, ante, at 735-736,
explained
"The distribution of the undercount in New Jersey is ob-
viously also unknown, and I see no reason to believe that
8 U S Bureau of the Census, Users' Guide, 1980 Census of Population
and Housing 100 (Mar 1982) The National Academy of Sciences has esti-
mated that the national undercount in the 1970 census was 2 5% Panel on
Decennial Census Plans, Counting the People in 1980 An Appraisal of Cen-
sus Plans 2 (1978) One estimate is that the undercount error in the 1980
census is likely to be more than 2 million people nationwide, App 103
(Dr Trussel), and may be as high as 5 million J Passel, J Siegel, &
J Robinson, Coverage of the National Population in the 1980 Census,
by Age, Sex, and Race Preliminary Estimates by Demographic Analysis
(Nov 1981) (Record Doc No 31)
770 OCTOBER TERM, 1982
WHITE, J , dissenting 452 u g
it would be uniformly spread over all municipalities
For these reasons, one cannot make congressional dis-
tricts of truly equal size if one relies on census counts
Nor is it meaningful to rank one redistricting plan as
superior to another when differences in district size are
small In my professional opinion, districts whose enu-
merated populations differ one from another by less than
one percent should be considered to be equal in size To
push for numerical equality beyond this point is an
exercise in illusion " App 103-104 4
4 The Court, after professing to "[a]ssum[e] for purposes of argument
that each of [Dr TrusseFs] statements is correct," ante, at 735-736, pro-
ceeds in the following paragraph to denigrate his calculation as guesswork
because the margin of statistical imprecision, i e , the undercounting of
persons, cannot be known precisely The failure to quantify uncertainty
exactly does not excuse pretending that it does not exist When the ques
tion is whether the range of error is 1% or 2% or 2 5% and the deviation at
hand is no larger than 0 6984%, the question is more academic than practi
cal Moreover, if a fixed benchmark were required, the margin of error
officially recognized by the Census Bureau — last estimated at 2 3% — could
easily be selected
The Court also makes much of the fact that the precise amount of varia
tion in undercounting among districts cannot be known with certainty
The relevant point, however, is that these district-to-district variances
make it impossible to determine with statistical confidence whether opting
for the plan with the smallest maximum deviation is ameliorating or ag
gravatmg actual equality of population among the districts In addition,
the count of individuals per district depends upon the Census Bureau's
selection of geographic boundaries by which to group data "Data from
the 1980 census have been compiled for congressional districts by equating
component census geographic areas to each district and summing all data
for areas coded to the district Where the smallest census geographic area
was split by a congressional district boundary, the census maps for the area
were reviewed to determine in which district the majority of the population
fell, and the entire area was coded to that district "US Bureau of Cen-
sus, Congressional Districts of the 98th Congress A-l (1983) (preliminary
draft) Thus, completely aside from undercounting effects, it is obvious
that even absolute numerical equality between the census figures for con-
gressional districts does not reflect districts of equal size
KARCHER v DAGGETT 771
725 WHITE, J , dissenting
Even if the 0 6984% deviation here is not encompassed
within the scope of the statistical imprecision of the census, it
is mimscule when compared with other variations among the
districts inherent in translating census numbers into citizens'
votes First, the census "is more of an event than a proc-
ess " Gaffney v Cummings, 412 U S 735, 746 (1973) "It
measures population at only a single instant in time Dis-
trict populations are constantly changing, often at different
rates in either direction, up or down " Ibid As the Court
admits, "the well-known restlessness of the American people
means that population counts for particular localities are out-
dated long before they are completed " Ante, at 732 5 Sec-
ond, far larger differences among districts are introduced
because a substantial percentage of the total population is too
Finally, the Court dismisses the entire concept of statistical error with
the sophistic comment that "[e]ven if one cannot say with certainty that
one district is larger than another merely because it has a higher census
count, one can say with certainty that the district with a larger census
count is more likely to be larger than the other district than it is to be
smaller or the same size " Ante, at 738 The degree of that certainty,
however, is speculative The relevant consideration is not whether Dis-
trict Four is larger than District Six, but how much larger, and, how much
less larger under the selected plan vis £ vis an alternative plan More-
over, variable undercountmg and differences between census units and dis-
trict lines may result in other districts having higher maximum deviations
The general point is that when the numbers become so small, it makes no
sense to concentrate on ever finer gradations when one cannot even be cer-
tain whether doing so increases or decreases actual population variances
6 In New Jersey, for example, population growth during the 197Q*s en-
larged some districts by up to 26%, while other congressional districts last
up to 8 7% of their 1970 population U S Bureau of Census, Congres-
sional Districts of the 98th Congress 32-3 (1983) See also Gaffney v
Cummings, 412 U S , at 746, n 11
JUSTICE STEVENS makes the same point
"Given the birth rate, the mortality rate, the transient character of mod-
ern society, and the acknowledged errors in the census, we all know that
such differences may vanish between the date of the census and the date of
the next election Absolute population equality is impossible to achieve "
Ante, at 752 (concurring opinion)
772 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
young to register or is disqualified by alienage 6 Third
census figures cannot account for the proportion of all those
otherwise eligible individuals who fail to register 7 The
differences in the number of eligible voters per district for
these reasons overwhelm the minimal variations attributable
to the districting plan itself 8
Accepting that the census, and the districting plans which
are based upon it, cannot be perfect represents no back-
sliding in our commitment to assuring fair and equal repre-
sentation in the election of Congress I agree with the views
of Judge Gibbons, who dissented in the District Court, that
Kirkpatnck should not be read as a "prohibition against
toleration of de mimmis population variances which have
no statistically relevant effect on relative representation "
Daggett v Kimmelman, 535 F Supp , at 984 A plus-minus
deviation of 0 6984% surely falls within this category
If today's decision simply produced an unjustified standard
with little practical import, it would be bad enough Unfor-
tunately, I fear that the Court's insistence that "there are no
de mimmis population variations, which could practicably be
avoided, but which nonetheless meet the standard of Art I,
§2, without justification/' ante, at 734, invites further liti-
gation of virtually every congressional redistrictmg plan in
6 In New Jersey, for example, the population 18 years old and over dif-
fers significantly among the congressional districts In 1978, District 10
had but 282,000 such individuals, while District 2 had 429,000 U S
Bureau of Census, State and Metropolitan Area Data Book 549 (1979)
See also Gaffney v Cummings, supra, at 747, n 13
'Throughout the Nation, approximately 71% of the voting age population
registers to vote U S Bureau of Census, State and Metropolitan Area
Data Book 567 (1982)
8 As a result of all these factors, as well as the failure of many registered
voters to cast ballots, the weight of a citizen's vote in one district is inev-
itably different from that in others For example, the total number of
votes cast in the 1982 New Jersey congressional races differed significantly
between districts, ranging from 92,852 in District 10 to 186,879 in Dis-
trict 9 41 Congressional Quarterly 391 (1983)
KARCHER v DAGGETT 773
725 WHITE, J , dissenting
the Nation At least 12 States which have completed re-
districting on the basis of the 1980 census have adopted plans
with a higher deviation than that presented here, and 4 oth-
ers have deviations quite similar to New Jersey's 9 Of
course, under the Court's rationale, even Rhode Island's
plan — whose two districts have a deviation of 0 02% or about
95 people — would be subject to constitutional attack
In all such cases, state legislatures will be hard pressed to
justify their preference for the selected plan A good-faith
effort to achieve population equality is not enough if the
population variances are not "unavoidable " The court must
consider whether the population differences could have been
further "reduced or eliminated altogether " Ante, at 730
With the assistance of computers, there will generally be a
plan with an even more minimal deviation from the math-
ematical ideal Then, "the State must bear the burden of
proving that each significant variance between districts was
necessary to achieve some legitimate goal " Ante, at 731
As this case illustrates, literally any variance between dis-
tricts will be considered "significant " 10 The State's burden
will not be easily met "the State bears the burden of justifying
9 States with larger deviations are Indiana (2 96%), Alabama (2 45%),
Tennessee (2 40%), Georgia (2 00%), Virginia (1 81%), North Carolina
(1 76%), New York (1 64%), Kentucky (1 39%), Washington (1 30%),
Massachusetts (1 09%), New Mexico (0 87%), Arkansas (0 78%) States
with similar maximum deviations are Ohio (0 68%), Nevada (0 60%), Okla-
homa (0 58%), West Virginia (0 49%) Council of State Governments &
National Conference of State Legislatures, 1 Reapportionment Informa-
tion Update 6-7 (Nov 12, 1982)
i0The Court's language suggests that not only must the maximum vari-
ance in a plan be supported, but that also every deviation from absolute
equality must be so justified Ante, at 740 Consider the staggering na-
ture of the burden imposed Each population difference between any two
districts in a State must be justified, apparently even if none of the plans
before the legislature or commission would have reduced the difference
See n 11, infra
774 OCTOBER TERM, 1982
WHITE, J , dissenting 452 u S
the differences with particularity " Ante, at 739 When the
State fails to sustain its burden, the result will generally be
that a court must select an alternative plan The choice will
often be disputed until the very eve of an election, see, e g ,
Upham v Seamon, 456 U S 37, 44 (1982) (per cumam),
leaving candidates and voters in a state of confiision
The only way a legislature or bipartisan commission can
hope to avoid litigation will be to dismiss all other legitimate
concerns and opt automatically for the districting plan with
the smallest deviation n Yet no one can seriously contend
that such an inflexible insistence upon mathematical exact-
ness will serve to promote "fair and effective representa-
tion " The more likely result of today's extension of Kirk
patnck is to move closer to fulfilling Justice Fortas' prophecy
that "a legislature might have to ignore the boundaries of
common sense, running the congressional district line down
the middle of the corridor of an apartment house or even
dividing the residents of a single-family house between two
districts " 394 U S , at 538 Such sterile and mecha-
nistic application only brings the principle of "one man, one
vote" into disrepute
II
One might expect the Court had strong reasons to force
this Sisyphean task upon the States Yet the Court offers
11 Even by choosing the plan with the smallest deviation, a legislature or
commission cannot be assured of avoiding constitutional challenge In this
case the Court does not find that the 0 6984% deviation was avoidable be-
cause there were other plans before the New Jersey Legislature with
smaller maximum variations Nor does the Court counter appellants'
position, supported by evidence in the record, that these alternative plans
had other disqualifying faults Instead, the Court tries its own hand at
redistricting New Jersey and concludes that by moving around 13 New
Jersey subdivisions, the maximum deviation could be reduced to 0 449%
Ante, at 739-740, n 10 The message for state legislatures is clear it is
not enough that the chosen plan be superior to any actual plans introduced
as alternatives, the plan must also be better than any conceivable alterna-
tive a federal judge can devise
KARCHER v DAGGETT 775
725 WHITE, J , dissenting
no positive virtues that will follow from its decision No pre-
tense is made that this case follows in the path of Reynolds
and Wesberry in insuring the "fair and effective representa-
tion" of citizens No effort is expended to show that Art I,
§ 2's requirement that Congressmen be elected "by the peo-
ple," Wesberry v Sanders, 376 U S 1 (1964), demands the
invalidation of population deviations at this level Any such
absolute requirement, if it did exist, would be irreconcilable
with the Court's recognition of certain justifications for popu-
lation variances See ante, at 740 Given no express con-
stitutional basis for the Court's holding, and no showing that
the objectives of fair representation are compromised by
these minimal disparities, the normal course would be to up-
hold the actions of the legislature in fulfilling its constitution-
ally delegated responsibility to prescribe the manner of hold-
ing elections for Senators and Representatives Art I, §4
Doing so would be in keeping with the Court's oft-expressed
recognition that apportionment is primarily a matter for leg-
islative judgment Upham v Seaman, supra, at 41, White
v Weiser, 412 U S , at 795, Reynolds v Sims, 377 U S ,
at 586 "[A] state legislature is the institution that is by
far the best situated to identify and then reconcile traditional
state policies within the constitutionally mandated frame-
work " Connor v Finch, 431 U S 407,414-415(1977)
Instead the Court is purely defensive in support of its
decision The Court refuses to adopt any fixed numerical
standard, below which the federal courts would not inter-
vene, asserting that "[t]he principle of population equality for
congressional districts has not proved uiyust or socially or
economically harmful in experience " Ante, at 733 Of
course, the principle of population equality is not unjust,
the unreasonable application of this principle is the rub
Leaving aside that the principle has never been applied with
the vengeance witnessed today, there are many, including
myself, who take issue with the Court's self-congratulatory
assumption that Kirkpatrick has been a success First, a
776 OCTOBER TERM, 1982
WHITE, J , dissenting 462 u s
decade of experience with Kirkpatnck has shown that "the
rule of absolute equality is perfectly compatible with 'gerry-
mandering' of the worst sort " Wells v Rockefeller, 394
U S , at 551 (Harlan, J , dissenting) With ever more so-
phisticated computers, legislators can draw countless plans
for absolute population equality, but each having its own
political ramifications Although neither a rule of absolute
equality nor one of substantial equality can alone prevent de-
liberate partisan gerrymandering, the former offers legisla-
tors a ready justification for disregarding geographical and
political boundaries I remain convinced of what I said in
dissent in Kirkpatnck and Wells "[Those] decisions
downgrade a restraint on a far greater potential threat to
equality of representation, the gerrymander Legislatures
intent on minimizing the representation of selected political
or racial groups are invited to ignore political boundaries and
compact districts so long as they adhere to population equal-
ity among districts using standards which we know and they
know are sometimes quite incorrect " 349 U S , at 555
There is now evidence that Justice Harlan was correct to pre-
dict that "[ejven more than in the past, district lines are
likely to be drawn to maximize the political advantage of the
party temporarily dominant in public affairs " Id , at 552 u
12 Unlike population deviations, political gerrymandering does not lend
itself to arithmetic proof Nevertheless, after reviewing the recent re-
districtmg throughout the country, one commentator offered the following
assessment
"The nobly aimed 'one-man, one-vote* principle is coming into increasing
use as a weapon for state legislators bent on partisan gerrymandering
From California to New Jersey and points in between, Republicans and
Democrats alike are justifying highly partisan remaps by demonstrating
respect for the 1964 Supreme Court mandate that population of congres
sional districts within states must be made as equal as possible Mean
while, other interests at stake in redistricting — such as the preservation of
community boundaries and the grouping of constituencies with similar con
cerns — are being brushed aside The emphasis on one-man, one vote
not only permits gerrymandering, it encourages it In many states it is
KARCHER v DAGGETT 777
725 WHITE, J , dissenting
In addition to providing a patina of respectability for the
equipopulous gerrymander, Kirkpatmck's regime assured
extensive intrusion of the judiciary into legislative business
impossible to approach population equality without crossing city, county
and township lines Once the legislature recognizes that move must be
made, it is only a short step further to the drawing of a line that dances
jaggedly through every region of the state Local interests, informed that
it is no longer legally permissible to draw a whole-county congressional
map in most states, are far less likely to object than they were m the
past The court's decision to reject a tiny deviation in favor of an
even smaller one may further encourage the hairsplitting numbers game
that has given rise to partisan gerrymanders all over the country " Con-
gressional Quarterly, Inc , State Politics and Redistricting 1-2 (1982)
See also Engstrom, The Supreme Court and Equipopulous Gerrymander-
ing A Remaining Obstacle in the Quest for Fair and Effective Representa
tion, 1976 Ariz State L J 277, 278 ("Not only has the Court failed to de-
velop effective checks on the practice of gerrymandering, but in pursuing
the goal of population equality to a point of satiety it has actually facilitated
that practice"), Baker, One Man, One Vote, and "Political Fairness," 23
Emory L J 701, 710 (1974) (hereafter Baker) ("Priority was typically
given to mimscule population variations at the expense of any recognition
of political subdivisions Charges of partisan gerrymandering were more
widespread than m past decades for two major reasons the extent of
redistricting activity among all fifty states, and the lack of emphasis on
former norms of compactness and adherence to local boundary lines")
In the eyes of some commentators, the experience of New York in the
aftermath of Wells v Rockefeller is instructive
"Subsequent congressional districting in New York became a possible
prototype for the 'equal-population gerrymander ' Whereas the former
district pattern nullified by the Supreme Court had been the result of
bipartisan compromise with each major party controlling one house, by
1970 the Republicans held both legislative houses as well as the governor-
ship The assistant counsel to the senate majority leader (and chief co-
ordinator of the redistricting) candidly remarked "The Supreme Court is
just making gerrymandering easier than it used to be ' Not only was New
York City subjected to major cartographic surgery, but upstate cities were
also fragmented, with portions being joined to suburban and rural areas in
an attempt to dilute concentrations of Democrats " Baker, at 712-713
Yet, under the new plan, no district deviated by more than than 490 per-
sons from the average, and the configuration of district boundaries re-
vealed generally compact and contiguous contours Baker, (Jerrymander-
778 OCTOBER TERM, 1982
WHITE, J , dissenting 4g2 u g
"[T]he [re]apportionment task, dealing as it must with funda
mental 'choices about the nature of representation,' Burns v
Richardson, 384 U S , at 92, is primarily a political and leg
islative process " Gaffney v Cummings, 412 U S , at 749
What we said in Gaffney with respect to legislative reappor
tionment is apropos here
"[T]he goal of fair and effective representation [is not]
furthered by making the standards of reapportionment
so difficult to satisfy that the reapportionment task is re-
cumngly removed from legislative hands and performed
by federal courts which themselves must make the pokti
cal decisions necessary to formulate a plan or accept
those made by reapportionment plaintiffs who may have
wholly different goals from those embodied in the official
plan " Ibid
More than a decade's experience with Kirkpatrick demon
strates that insistence on precise numerical equality only
invites those who lost in the political arena to refight their
battles in federal court Consequently, "[mjost estimates are
that between 25 percent and 35 percent of current house dis-
trict lines were drawn by the Courts " American Bar Asso-
ciation, Congressional Redistrictmg 20 (1981) As I have
already noted, by extending Kirkpatrick to deviations below
even the 1% level, the redistricting plan in every State with
more than a single Representative is rendered vulnerable
to af ter-the-fact attack by anyone with a complaint and a
calculator
The Court ultimately seeks refuge in stare decisis I do
not slight the respect that doctrine is due, see, e g , White v
ing Privileged Sanctuary or Next Judicial Target?, in Reapportionment in
the 1970s, p 138 (N Polsby ed 1971) Ironically, David Wells, the plain
tiff who successfully challenged the former district pattern, returned to
federal court m February 1970 to ask if the old plan could be restored.
See Dixon, "One Man, One Vote— What Happens Next?," 60 Nat Civic
Rev 259, 265 (1971)
KARCHER v DAGGETT 779
725 WHITE, J , dissenting
Weiser, 412 U S 783 (1973), but is it not at least ironic to
find stare decisis invoked to protect Kirkpatrick as the Court
itself proceeds to overrule other holdings in that very deci-
sion7 In Kirkpatmck, the Court squarely rejected the argu-
ment that slight variances in district size were proper in
order to avoid fragmenting political subdivisions
"[W]e do not find legally acceptable the argument that
variances are justified if they necessarily result from a
State's attempt to avoid fragmenting political subdi-
visions by drawing congressional district lines along
existing county, municipal, or other political subdivision
boundaries " 394 U S , at 533-534 13
Several pages later, the Court rejected in equally uncategon-
cal terms the idea that variances may be justified ui order to
make districts more compact Id , at 535-536 "A State's
preference for pleasingly shaped districts," the Court con-
cluded, "can hardly justify population variances " Id , at
536 In Justice Fortas* words, the Kirkpatrick Court "re-
ject[s], seriatim, every type of justification that has been —
possibly, every one that could be — advanced " Id , at 537
Yet today the Court — with no mention of the contrary
holdings in Kirkpatrick — opines "Any number of consist-
ently applied legislative policies might justify some variance,
including for instance, making districts compact, respecting
municipal boundaries, preserving the cores of prior districts,
and avoiding contests between incumbent Representatives "
13 See also Mahan v Howell, 410 U S 315, 341 (1973) (BRENNAN, J ,
concurring in part and dissenting in part) ("What our decisions have made
clear is that certain state interests that are pertinent to legislative re-
apportionment can have no possible relevance to congressional districting
Thus, the need to preserve the integrity of political subdivisions as political
subdivisions may, in some instances, justify small variations in the popula-
tion of districts from which state legislators are elected But that interest
can hardly be asserted in justification of malapportioned congressional dis-
tricts Kirkpatmck v Preisler, supra")
780 OCTOBER TERM, 1982
WHITE, J , dissenting 452 U S
Ante, at 740 I, of course, welcome the Court's overruling of
these ill-considered holdings of Kirkpatnck There should
be no question but that state legislatures may account for
political and geographic boundaries in order to preserve tra-
ditional subdivisions and achieve compact and contiguous
districts JUSTICE STEVENS recognizes that courts should
"give greater weight to the importance of the State's inter-
ests and the consistency with which those interests are
served than to the size of the deviations " Ante, at 760,
n 26 Thus, a majority of the Court appears ready to apply
this new standard "with a strong measure of deference to
the legitimate concerns of the State " Post, at 785, n 1
(POWELL, J , dissenting)
In order that legislatures have room to accommodate these
legitimate noncensus factors, a range of de mimrms popula-
tion deviation, like that permitted in the legislative reappor-
tionment cases, is required The Court's insistence that
every deviation, no matter how small, be justified with speci-
ficity discourages legislatures from considering these "legiti-
mate" factors in making their plans, lest the justification be
found wanting, the plan invalidated, and a judicially drawn
substitute put in its place Moreover, the requirement of
precise mathematical equality continues to invite those who
would bury their political opposition to employ equipopulous
gerrymanders A de mimrms range would not preclude
such gerrymanders but would at least force the political car-
tographer to justify his work on its own terms
III
Our cases dealing with state legislative apportionment
have taken a more sensible approach We have recognized
that certain small deviations do not, in themselves, ordinarily
constitute a prima facie constitutional violation Gaffney v
Cummings, 412 U S 735 (1973), White v Regester, 412
U S 755 (1973) Moreover, we have upheld plans with rea-
sonable variances that were necessary to account for political
KARCHER?; DAGGETT 781
725 WHITE, J , dissenting
subdivisions, Mohan v Howell, 410 U S 315 (1973), to pre-
serve the voting strength of minority groups, and to insure
political fairness, Gaffney v Cumrmngs, supra What we
held in Gaffney v Cummings for legislative apportionment is
fully applicable to congressional redistricting
" '[T]he achieving of fair and effective representation for
all citizens is' a vital and worthy goal, but surely its
attainment does not in any commonsense way depend
upon eliminating the insignificant population variations
involved in this case Fair and effective representation
may be destroyed by gross population variations among
districts, but it is apparent that such representation
does not depend solely on mathematical equality among
district populations An unrealistic overemphasis
on raw population figures, a mere nose count in the
districts, may submerge these other considerations and
itself furnish a ready tool for ignoring factors that in day-
to-day operation are important to an acceptable repre-
sentation and apportionment arrangement " 412 U S ,
at 748-749
Bringing together our state legislative and congressional
cases does not imply overlooking relevant differences be-
tween the two States normally draw a larger number of leg-
islative districts, which accordingly require a greater margin
to account for geographical and political boundaries "[C]on-
gressional districts are not so intertwined and freighted with
strictly local interests as are state legislative districts "
White v Weiser, 412 U S , at 793 Furthermore, because
congressional districts are generally much larger than state
legislative districts, each percentage point of variation repre-
sents a commensurately greater number of people But
these are differences of degree They suggest that the level
at which courts should entertain challenges to districting
plans, absent unusual circumstances, should be lower in the
782 OCTOBER TERM, 1982
WHITE, J , dissenting 462 u s
congressional cases, but not altogether nonexistent 14 Al
though I am not wedded to a precise figure, in light of the
current range of population deviations, a 5% cutoff appears
reasonable I would not entertain judicial challenges, absent
extraordinary circumstances, where the maximum deviation
is less than 5% Somewhat greater deviations, if rationally
related to an important state interest, may also be pernussi
ble 15 Certainly, the maintaining of compact, contiguous dis
tricts, the respecting of political subdivisions, and efforts to
assure political fairness, e g , Gaffney v Cumrmngs, supra,
constitute such interests
I would not hold up New Jersey's plan as a model reflection
of such interests Nevertheless, the deviation involved here
is de mimmis, and, regardless of what other infirmities the
14 As the law has developed, our congressional cases are rooted in Art I,
§ 2, of the Constitution while our legislative cases rely upon the Equal Pro-
tection Clause of the Fourteenth Amendment I am not aware, however,
of anything in the respective provisions which justifies, let alone requires,
the difference in treatment that has emerged between the two lines of dea
sions Our early cases were frequently cross-cited, and the formulation
"as nearly of equal population as is practicable" appears in Reynolds v
Sims, 377 U S , at 589, as well as in Wesberry v Sanders, 376 U S , at
7-8 The differing paths the cases have taken since Kirkpatrick must re-
sult from that decision's rejection of the legitimacy of considering nonpopu
lation factors in congressional redistrictmg See Mahan v Howell, 410
U S , at 341 (BRENNAN, J , concurring in part and dissenting in part)
With today's long-awaited overruling of that holding in Kirkpatnck, any
remaining justification disappears for such a marked difference in our ap-
proach to congressional and legislative reapportionment
15 Experience in the legislative apportionment field following our allow
ance of a range of de mmimis variance is convincing proof that we need not
fear that the goal of equal population in the districts will receive less than
its due JUSTICE BRENNAN'S prediction that tolerating de minimis popu
lation variances would "jeopardize the very substantial gains" made in
equalizing legislative districts, White v Regester, 412 U S 755, 781 (1973)
(concurring in part and dissenting in part), has not been proved, and, in
deed, the prediction is refuted by an analysis of the legislative redistrictmg
undertaken after the 1980 census See Council of State Governments &
National Conference of State Legislatures, 1 Reapportionment Informa-
tion Update 6 (Nov 12, 1982)
KARCHER v DAGGETT 783
725 WHITE, J , dissenting
plan may have, constitutional or otherwise, there is no viola-
tion of Art I, § 2 — the sole issue before us It would, of
course, be a different matter if appellees could demonstrate
that New Jersey's plan invidiously discriminated against a
racial or political group See White v Regester, supra,
Gaffney v Cummings, supra, at 751-754, Whitcomb v
Chaws, 403 U S 124 (1971), Gomilhon v Lightfoot, 364
U S 339(1960)
IV
Even if the Court's view of the law were correct, its dispo-
sition of the case is not At a minimum, the Court should
vacate the decision of the District Court and remand for fur-
ther consideration As previously indicated, the Court fi-
nally recognizes today that considerations such as respecting
political subdivisions and avoiding contests between incum-
bent Representatives might justify small population vari-
ances Indeed, the Court indicates that "any number of con-
sistently applied legislative policies" might do so Ante, at
740 There is evidence in the record to suggest that the
New Jersey Legislature was concerned with such consider-
ations 16 The Court itself notes "many of the problems that
the New Jersey Legislature encountered in drawing districts
with equal population stemmed from the decision not to
divide any municipalities between two congressional dis-
tricts " Ante, at 733, n 5 But even if there were no evi-
dence in the record, the State should be given a chance to de-
fend its plan on this basis Surely, the Court cannot rely on
the fact that appellants have advanced only one justification
for the plan's population deviations — preserving the voting
strength of racial minority groups Relying on Kirkpatrick
and White v Weiser, supra, appellants no doubt concluded
that other justifications were foreclosed and that the intro-
duction of such proof would be futile
16 See, e g , Feldman Deposition, at 91-94 (Kecord Doc No 39) (concern
with fairness to incumbents), Jackman Deposition, at 91-92 (Record Doc
No 40) (concern with preserving political subdivisions)
784 OCTOBER TERM, 1982
POWELL, J , dissenting 452 U S
JUSTICE POWELL, dissenting
I join JUSTICE WHITE'S excellent dissenting opinion, and
reaffirm my previously expressed doubt that "the Constitu-
tion— a vital and living charter after nearly two centuries
because of the wise flexibility of its key provisions — could be
read to require a rule of mathematical exactitude m legisla-
tive reapportionment " White v Weiser, 412 U S 783, 798
(1973) (concurring opinion) I write separately to express
some additional thoughts on gerrymandering and its relation
to apportionment factors that presumably were not thought
relevant under Kirkpatnck v Preisler, 394 U S 526 (1969)
The Court, following Kirkpatmck, today invalidates New
Jersey's redistricting plan solely because various alternative
plans, principally the one proposed by Professor Reock, had
what the Court views as "appreciably smaller population de-
viations between the largest and smallest districts " Ante,
at 728 Under all of the plans, the maximum population vari-
ances were under 1% I view these differences as neither
"appreciable" nor constitutionally significant As JUSTICE
WHITE demonstrates, ante, at 769-772 (dissenting opinion),
the Court's insistence on precise mathematical equality is self-
deluding, given the inherent inaccuracies of the census data
and the other difficulties in measuring the voting population
of a district that will exist for a period of 10 years See Kirk-
patmck, supra, at 538 (Fortas, J , concurring) (pursuit of pre-
cise equality "is a search for a will-o'-the-wisp") Moreover,
it has become clear that Kvrkpatnck leaves no room for proper
legislative consideration of other factors, such as preserva-
tion of political and geographic boundaries, that plainly are
relevant to rational reapportionment decisions,1 see Gaffney
1 The Court holds that "[a]ny number of consistently applied legislative
policies might justify some variance, including, for instance, making dis-
tricts compact, respecting municipal boundaries, preserving the cores of
KARCHER v DAGGETT 735
725 POWELL, J , dissenting
v Cummings, 412 U S 735, 749 (1973), Mahan v Hvwell,
410 U S 315, 329 (1973) As JUSTICE WHITE correctly
observes, ante, at 775-776, a decade of experience has con-
firmed the fears of the Kirkpatnck dissenters that an uncom-
promising emphasis on numerical equality would serve to
encourage and legitimate even the most outrageously parti-
san gerrymandering, see 394 U S , at 551-552 (Harlan, J ,
dissenting), id , at 555 (WHITE, J , dissenting) The plain
fact is that in the computer age, this type of political and
discriminatory gerrymandering can be accomplished entirely
consistently with districts of equal population 2
prior districts, and avoiding contests between incumbent Represent-
atives " Ante, at 740 Although it is remarkable that the Court thus
silently discards important features of Kirkpatnck while simultaneously
invoking stare decisis to defend the remainder of that decision, see ante, at
778-780 (WHITE, J , dissenting), I welcome this change in the law It is to
be hoped that this new standard will be applied with a strong measure of
deference to the legitimate concerns of the State See ante, at 760, n 26
(STEVENS, J , concurring) (recognizing that courts should "give greater
weight to the importance of the State's interests and the consistency with
which those interests are served than to the size of the deviations")
2 An illustration is the recent congressional redistrictmg in Illinois
After the Illinois Legislature had failed to enact a reapportionment plan, a
three judge District Court chose among four plans varying from 0 02851%
to 0 14797% in maximum deviation Following Kirkpatnck, the majority
of the court chose the plan with the smallest deviation, one that was a
"Democratic plan" designed to maximize Democratic voting strength at
the expense of Republicans See In re Illinois Congressional Districts
Reapportionment Cases, No 81-C-3915 (ND 111 1981), summarily aff ?d
sub nom Ryan v Otto, 454 U S 1130 (1982) A commentator noted
"The Democratic victory was due in part to a sophisticated computer
program that made possible the creation of districts having almost exactly
equal population The most populous district has only 171 more people
than the least populous one That accuracy seemed to impress the court,
which expressed no concern that the new district lines divided cities and
carved up counties all over the state " Illinois Map is Unpleasant Surprise
for the GOP, 40 Congressional Quarterly 573 (1982)
See also Carstens v Lamm, 543 F Supp 68, 73-74, and 84, n 39 (Colo
1982) (three-judge District Court reviewed five major redistrictmg plans,
786 OCTOBER TERM, 1982
POWELL, J , dissenting 452 u S
I therefore continue to believe that the Constitution per-
mits variations from "theoretical 'exactitude' in recognition of
the impracticality of applying the Kirkpatnck rule as well as
in deference to legitimate state interests " White v Weiser
supra, at 798 (POWELL, J , concurring) Certainly when a
State has adopted a districting plan with an average popula-
tion deviation of 0 1384%, and a maximum deviation of
0 6984%, it has complied with the Constitution's mandate
that population be apportioned equally among districts
II
The extraordinary map of the New Jersey congressional
districts, see ante, following p 744, prompts me to comment
on the separate question of gerrymandering — "the deliberate
and arbitrary distortion of district boundaries and populations
for partisan or personal political purposes," Kirkpatnck,
supra, at 538 (Fortas, J , concurring) I am in full agreement
with JUSTICE WHITE'S observation more than a decade ago
that gerrymandering presents "a far greater potential threat
to equality of representation" than a State's failure to achieve
including the Republican legislature's plan with a difference between larg
est and smallest districts of seven persons, i e , a maximum deviation of
0 0015%, and the Democratic Governor's plan with a 15-person difference,
1 e , a maximum deviation of 0 0031%), Of Sullivan v Brier, 540 F Supp
1200, 1202 (Kan 1982) (three-judge District Court asked to choose be
tween a Democratic plan with a 0 11% maximum deviation and a Repubh
can plan with a 0 09% maximum deviation)
These cases also illustrate an additional unfortunate side effect of Kirk
patrick the increasing tendency of state legislators and Governors—-
who have learned that any redistricting plan is "vulnerable to after the-
fact attack by anyone with a complaint and a calculator," ante, at 778
(WHITE, J , dissenting) — to spurn compromise in favor of simply drawing
up the most partisan plan that appears consistent with the population
equality criterion No longer do federal district courts merely review the
constitutionality of a State's redistricting plan Rather, in many cases
they are placed in the position of choosing a redistricting plan in the first
instance
KARCHERT; DAGGETT 737
725 POWELL, J , dissenting
"precise adherence to admittedly inexact census figures "
Wells v Rockefeller, 394 U S 542, 555 (1969) (dissenting
opinion) I also believe that the injuries that result from
gerrymandering may rise to constitutional dimensions As
JUSTICE STEVENS observes, if a State's electoral rules "serve
no purpose other than to favor one segment — whether racial,
ethnic, religious, economic, or political — that may occupy a
position of strength at a particular point in time, or to disad-
vantage a politically weak segment of the community, they
violate the constitutional guarantee of equal protection "
Ante, at 748 (concurring opinion) Moreover, most gerry-
mandering produces districts "without any regard for politi-
cal subdivision or natural or historical boundary lines," Reyn-
olds v Sims, 377 U S 533, 578-579 (1964), a result that is
profoundly destructive of the apportionment goal of "fair and
effective representation," id , at 565 A legislator cannot
represent his constituents properly — nor can voters from a
fragmented district exercise the ballot intelligently — when a
voting district is nothing more than an artificial unit divorced
from, and indeed often in conflict with, the various com-
munities established in the State 3 The map attached to
the Court's opinion illustrates this far better than words can
describe
I therefore am prepared to entertain constitutional chal-
lenges to partisan gerrymandering that reaches the level of
discrimination described by JUSTICE STEVENS See ante, at
748 (concurring opinion) I do not suggest that the shape of a
8 In Carstens v Lamm, supra, the three-judge District Court noted that
preserving an entire city as one voting district facilitated "voter identity"
"Most voters know what city and county they live in, but fewer are likely
to know what congressional district they live in if the districts split coun-
ties and cities If a voter knows his congressional district, he is more
likely to know who his representative is This presumably would lead to
more informed voting " 543 F Supp , at 98, n 78 It also is likely to lead
to a Representative who knows the needs of his district and is more
responsive to them
788 OCTOBER TERM, 1982
POWELL, J , dissenting 452 u S
districting map itself invariably is dispositive Some irregu-
larity in shape is inevitable, with the degree of irregularity
depending primarily on the geographic and political bound-
aries within the State, as well as the distribution of its
population Moreover, political considerations, even parti
san ones, are inherent in a democratic system A court
therefore, should not "attemp[t] the impossible task of extir-
pating politics from what are the essentially political proc
esses of the sovereign States " Gaffney, 412 U S , at 754
Finally, I do not suggest that a legislative reapportionment
plan is invalid whenever an alternative plan might be viewed
as less partisan or more in accord with various apportionment
criteria The state legislature necessarily must have discre
tion to accommodate competing considerations
I do believe, however, that the constitutional mandate of
"fair and effective representation," Reynolds, supra, at 565,
proscribes apportionment plans that have the purpose and
effect of substantially disenfranchising identifiable groups of
voters Generally, the presumptive existence of such uncon
stitutional discrimination will be indicated by a districting
plan the boundaries of which appear on their face to bear lit-
tle or no relationship to any legitimate state purpose As
JUSTICE STEVENS states, "dramatically irregular shapes may
have sufficient probative force to call for an explanation,"
ante, at 755 (concurring opinion), "drastic departures from
compactness are a signal that something may be amiss,"
ante, at 758, and "[e]xtensive deviation from established po-
litical boundaries is another possible basis for a prima facie
showing of gerrymandering," ibid In such circumstances, a
State should be required to provide a legitimate and nondis-
criminatory explanation for the districting lines it has drawn
See Reynolds, supra, at 568 (the apportionment "presented
little more than crazy quilts, completely lacking in rational-
ity, and could be found invalid on that basis alone")
In this case, one cannot rationally believe that the New
Jersey Legislature considered factors other than the most
KARCHER v DAGGETT 789
725 POWELL, J , dissenting
partisan political goals and population equality It hardly
could be suggested, for example, that the contorted Districts
3, 5, and 7 reflect any attempt to follow natural, historical, or
local political boundaries 4 Nor do these district lines reflect
any consideration of the likely effect on the quality of repre-
sentation when the boundaries are so artificial that they are
likely to confound the Congressmen themselves As Judge
Gibbons stated eloquently in his dissent below
"The apportionment map produced by P L 1982, c 1
leaves me, as a citizen of New Jersey, disturbed It cre-
ates several districts which are anything but compact,
and at least one district which is contiguous only for
yachtsmen While municipal boundaries have been
maintained, there has been little effort to create districts
having a community of interests In some districts, for
example, different television and radio stations, differ-
ent newspapers, and different transportation systems
serve the northern and southern localities Moreover
the harshly partisan tone of Speaker Christopher Jack-
man's letter to Ernest C Reock, Jr is disedifying, to say
the least It is plain, as well, that partisanship pro-
duced artificial bulges or appendages of two districts so
as to place the residences of Congressmen Smith and
Courter in districts where they would be running against
incumbents " Daggett v Kimmelman, 535 F Supp
978, 984 (NJ 1982)
This summary statement by Judge Gibbons, a resident of
New Jersey, is powerful and persuasive support for a con-
4 It may be noted, for example, that the plan adopted by New Jersey (the
Feldman Plan) divided the State's 21 counties into 55 fragments The plan
proposed by Professor Reock, introduced by Assemblyman Hardwick, cre-
ated 45 county fragments, and the existing congressional districts divided
the counties into 42 fragments See App 123 (Appendix A to Affidavit of
Samuel A Alito, Executive Director of the Office of Legislative Services of
the New Jersey Legislature)
MENNONITE BOARD OF MISSIONS v ADAMS 791
Syllabus
MENNONITE BOAKD OF MISSIONS v ADAMS
APPEAL FROM INDIANA COURT OF APPEALS
No 82-11 Argued March 30, 1983 — Decided June 22, 1983
An Indiana statute requires the county auditor to post notice in the county
courthouse of the sale of real property for nonpayment of property taxes
and to publish notice once each week for three consecutive weeks No-
tice by certified mail must be given to the property owner, but at the
time in question in this case there was no provision for notice by mail or
personal service to mortgagees of the property The purchaser at a tax
sale acquires a certificate of sale that constitutes a hen against the prop-
erty for the amount paid and is superior to all prior hens The tax sale is
followed by a 2-year period during which the owner or mortgagee may
redeem the property If no one redeems the property during this pe-
riod, the tax sale purchaser may apply for a deed to the property, but
before the deed is executed the county auditor must notify the former
owner that he is entitled to redeem the property If the property is not
redeemed within 30 days, the county auditor may then execute a deed to
the purchaser who then acquires an estate in fee simple, free and clear of
all hens, and may bring an action to quiet title Property on which ap-
pellant held a mortgage was sold to appellee for nonpayment of taxes
Appellant was not notified of the pending sale and did not learn of the
sale until more than two years later, by which time the redemption pe-
riod had run and the mortgagor still owed appellant money on the mort-
gage Appellee then filed suit m state court seeking to quiet title to the
property The court upheld the tax sale statute against appellant's con-
tention that it had not received constitutionally adequate notice of the
pending tax sale and of its opportunity to redeem the property after the
sale The Indiana Court of Appeals affirmed
Held The manner of notice provided to appellant did not meet the re-
quirements of the Due Process Clause of the Fourteenth Amendment
Pp 795-800
(a) Prior to an action that will affect an interest in life, liberty, or
property protected by the Due Process Clause, a State must provide
"notice reasonably calculated, under all the circumstances, to apprise in-
terested parties of the pendency of the action and afford them an oppor-
tunity to present then* objections * Midlane v Central Hanover Bank
& Trust Co , 339 U S 306, 314 Notice by publication is not reasonably
calculated to inform interested parties who can be notified by more effec-
tive means such as personal service or mailed notice Pp 795-797
792 OCTOBER TERM, 1982
Opinion of the Court 462 U S
(b) Since a mortgagee clearly has a legally protected property inter
est, he is entitled to notice reasonably calculated to apprise him of a
pending tax sale Constructive notice to a mortgagee who is identified
m the public record does not satisfy the due process requirement of
Mullane Neither notice by publication and posting nor mailed notice to
the property owner are means "such as one desirous of actually inform
ing the [mortgagee] might reasonably adopt to accomplish it " Mul
lane, supra, at 315 Personal service or notice by mail is required even
though sophisticated creditors have means at their disposal to discover
whether property taxes have not been paid and whether tax sale pro-
ceedings are therefore likely to be initiated Pp 798-800
427 N E 2d 686, reversed and remanded
MARSHALL, J , delivered the opinion of the Court, in which BURGER,
C J , and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ , joined
O'CONNOR, J , filed a dissenting opinion, in which POWELL and REHN
QUIST, JJ , joined, post, p 800
William J Cohen argued the cause for appellant With
him on the brief was C Whitney Slabaugh
Robert W Miller argued the cause and filed a brief for
appellee
JUSTICE MARSHALL delivered the opinion of the Court
This appeal raises the question whether notice by publica-
tion and posting provides a mortgagee of real property with
adequate notice of a proceeding to sell the mortgaged prop-
erty for nonpayment of taxes
I
To secure an obligation to pay $14,000, Alfred Jean Moore
executed a mortgage m favor of appellant Mennomte Board
of Missions (MBM) on property in Elkhart, Ind , that Moore
had purchased from MBM The mortgage was recorded in
the Elkhart County Recorder's Office on March 1, 1973
Under the terms of the agreement, Moore was responsible
for paying all of the property taxes Without MBM's knowl-
edge, however, she failed to pay taxes on the property
Indiana law provides for the annual sale of real property on
which payments of property taxes have been delinquent for
MENNONITE BOARD OF MISSIONS v ADAMS 793
791 Opinion of the Court
15 months or longer Ind Code § 6-1 1-24-1 et seq (1982)
Prior to the sale, the county auditor must post notice in the
county courthouse and publish notice once each week for
three consecutive weeks § 6-1 1-24-3 The owner of the
property is entitled to notice by certified mail to his last
known address § 6-1 1-24-4 l Until 1980, however, Indi-
ana law did not provide for notice by mail or personal service
to mortgagees of property that was to be sold for nonpay-
ment of taxes 2
After the required notice is provided, the county treasurer
holds a public auction at which the real property is sold to
the highest bidder § 6-1 1-24-5 The purchaser acquires a
certificate of sale which constitutes a lien against the real
property for the entire amount paid §6-1 1-24-9 This
hen is superior to all other hens against the property which
existed at the time the certificate was issued Ibid
The tax sale is followed by a 2-year redemption period dur-
ing which the "owner, occupant, lienholder, or other person
who has an interest in" the property may redeem the prop-
erty § 6-1 1-25-1 To redeem the property an individual
must pay the county treasurer a sum sufficient to cover the
purchase price of the property at the tax sale and the amount
of taxes and special assessments paid by the purchaser fol-
lowing the sale, plus an additional percentage specified in the
statute §6-1 1-25-2 The county in turn remits the
payment to the purchaser of the property at the tax sale
§6-1 1-25-3
because a mortgagee has no title to the mortgaged property under
Indiana law, the mortgagee is not considered an "owner" for purposes
of § 6-1 1-24-4 First Savings & Loan Assn of Central Indiana v Fur
nish, 174 Ind App 265, 272, n 14, 367 N E 2d 596, 600, n 14 (1977)
2 Indiana Code § 6-1 1-24-4 2 (1982), added in 1980, provides for notice
by certified mail to any mortgagee of real property which is subject to tax
sale proceedings, if the mortgagee has annually requested such notice and
has agreed to pay a fee, not to exceed $10, to cover the cost of sending
notice Because the events in question in this case occurred before the
1980 amendment, the constitutionality of the amendment is not before us
794 OCTOBER TERM, 1982
Opinion of the Court 462 U g
If no one redeems the property during the statutory re-
demption period, the purchaser may apply to the county au-
ditor for a deed to the property Before executing and deliv-
ering the deed, the county auditor must notify the former
owner that he is still entitled to redeem the property
§ 6-1 1-25-6 No notice to the mortgagee is required If
the property is not redeemed within 30 days, the county audi-
tor may then execute and deliver a deed for the property to
the purchaser, § 6-1 1-25-4, who thereby acquires "an estate
in fee simple absolute, free and clear of all liens and encum-
brances " §6-1 l-25-4(d)
After obtaining a deed, the purchaser may initiate an ac-
tion to quiet his title to the property § 6-1 1-25-14 The
previous owner, henholders, and others who claim to have an
interest in the property may no longer redeem the property
They may defeat the title conveyed by the tax deed only
by proving, inter alia, that the property had not been sub-
ject to, or assessed for, the taxes for which it was sold, that
the taxes had been paid before the sale, or that the prop-
erty was properly redeemed before the deed was executed
§6-1 1-25-16
In 1977, Elkhart County initiated proceedings to sell
Moore's property for nonpayment of taxes The county pro-
vided notice as required under the statute it posted and
published an announcement of the tax sale and mailed notice
to Moore by certified mail MBM was not informed of the
pending tax sale either by the County Auditor or by Moore
The property was sold for $1,167 75 to appellee Richard
Adams on August 8, 1977 Neither Moore nor MBM ap-
peared at the sale or took steps thereafter to redeem the
property Following the sale of her property, Moore contin-
ued to make payments each month to MBM, and as a result
MBM did not realize that the property had been sold On
August 16, 1979, MBM first learned of the tax sale By then
the redemption period had run and Moore still owed appel-
lant $8,237 19
MENNONITE BOARD OF MISSIONS v ADAMS 795
791 Opinion of the Court
In November 1979, Adams filed a suit in state court seek-
ing to quiet title to the property In opposition to Adams'
motion for summary judgment, MBM contended that it had
not received constitutionally adequate notice of the pending
tax sale and of the opportunity to redeem the property fol-
lowing the tax sale The trial court upheld the Indiana tax
sale statute against this constitutional challenge The Indi-
ana Court of Appeals affirmed 427 N E 2d 686 (1981)
We noted probable jurisdiction, 459 U S 903 (1982), and we
now reverse
II
In Mullane v Central Hanover Bank & Trust Co , 339
U S 306, 314 (1950), this Court recognized that prior to an
action which will affect an interest in life, liberty, or property
protected by the Due Process Clause of the Fourteenth
Amendment, a State must provide "notice reasonably calcu-
lated, under all the circumstances, to apprise interested par-
ties of the pendency of the action and afford them an opportu-
nity to present their objections " Invoking this "elementary
and fundamental requirement of due process," ibid , the
Court held that published notice of an action to settle the ac-
counts of a common trust fund was not sufficient to inform
beneficiaries of the trust whose names and addresses were
known The Court explained that notice by publication was
not reasonably calculated to provide actual notice of the
pending proceeding and was therefore inadequate to inform
those who could be notified by more effective means such as
personal service or mailed notice
"Chance alone brings to the attention of even a local resi-
dent an advertisement in small type inserted in the back
pages of a newspaper, and if he makes his home outside
the area of the newspaper's normal circulation the odds
that the information will never reach him are large in-
deed The chance of actual notice is further reduced
when, as here, the notice required does not even name
796 OCTOBER TERM, 1982
Opinion of the Court 462 u S
those whose attention it is supposed to attract, and does
not inform acquaintances who might call it to attention
In weighing its sufficiency on the basis of equivalence
with actual notice, we are unable to regard this as more
than a feint " Id , at 315 3
8 The decision m Mullane rejected one of the premises underlying this
Court's previous decisions concerning the requirements of notice in judicial
proceedings that due process rights may vary depending on whether ac
tions are in rem or in personam 339 U S , at 312 See Shaffer v
Heitner, 433 U S 186, 206 (1977) Traditionally, when a state court
based its jurisdiction upon its authority over the defendant's person, per
sonal service was considered essential for the court to bind individuals who
did not submit to its jurisdiction See, e g , Hamilton v Brown, 161
U S 256, 275 (1896), Arndt v Griggs, 134 U S 316, 320 (1890), Pennoyer
v Neff, 95 U S 714, 726, 733-734 (1878) ("[D]ue process of law would re-
quire appearance or personal service before the defendant could be person
ally bound by any judgment rendered") In Hess v Pawloski, 274 U S
352 (1927), the Court recognized for the first time that service by regis
tered mail, in place of personal service, may satisfy the requirements of
due process Constructive notice was never deemed sufficient to bind an
individual m an action in personam
In contrast, in in rem or quasi in rem proceedings in which jurisdiction
was based on the court's power over property within its territory, see gen
erally Shaffer v Heitner, supra, at 196-205, constructive notice to nonres-
idents was traditionally understood to satisfy the requirements of due
process In order to settle questions of title to property within its tern
tory, a state court was generally required to proceed by an in rem action
since the court could not otherwise bind nonresidents At one time con
structive service was considered the only means of notifying nonresidents
since it was believed that "[pjrocess from the tribunals of one State cannot
run into another State " Pennoyer v Neff , supra, at 727 See Bollard v
Hunter, 204 U S 241, 255 (1907) As a result, the nonresident acquired
the duty "to take measures that in some way he shall be represented when
his property is called into requisition " Id , at 262 If he "fail[ed] to get
notice by the ordinary publications which have been usually required in
such cases, it [was] his misfortune " Ibid
Rarely was a corresponding duty imposed on interested parties who re
sided within the State and whose identities were reasonably ascertainable
Even m actions in rem, such individuals were generally provided personal
service See, e g , Arndt v Griggs, supra, at 326-327 Where the iden-
MENNONITE BOARD OF MISSIONS v ADAMS 797
791 Opinion of the Court
In subsequent cases, this Court has adhered unwaveringly
to the principle announced in Mullane In Walker v City of
Hutchinson, 352 U S 112 (1956), for example, the Court
held that notice of condemnation proceedings published in a
local newspaper was an inadequate means of informing a
landowner whose name was known to the city and was on the
official records Similarly, in Schroeder v New York City,
371 U S 208 (1962), the Court concluded that publication in
a newspaper and posted notices were inadequate to apprise a
property owner of condemnation proceedings when his name
and address were readily ascertamable from both deed rec-
ords and tax rolls Most recently, in Greene v Lindsey,
456 U S 444 (1982), we held that posting a summons on the
door of a tenant's apartment was an inadequate means of pro-
viding notice of forcible entry and detainer actions See also
Memphis Light, Gas & Water Dw v Craft, 436 U S 1,
13-15 (1978), Eisen v Carlisle & Jacquehn, 417 U S 156,
174-175 (1974), Bank of Mann v England, 385 U S 99, 102
(1966), Covey v Town of Somers, 351 U S 141, 146-147
(1956), New York City v New York, N H & H R Co , 344
U S 293, 296-297 (1953)
tity of interested residents could not be ascertained after a reasonably dili-
gent inquiry, however, their interests in property could be affected by a
proceeding in rem as long as constructive notice was provided See Ham
ilton v Brown, supra, at 275, American Land Co v Zeiss, 219 U S 47,
61-62, 65-66 (1911)
Beginning with Mullane, this Court has recognized, contrary to the ear-
lier line of cases, that "an adverse judgment in rem directly affects the
property owner by divesting him of his rights in the property before the
court " Shaffer v Heitner, supra, at 206 In rejecting the traditional
justification for distinguishing between residents and nonresidents and be-
tween in rem and in personam actions, the Court has not left all interested
claimants to the vagaries of indirect notice Our cases have required the
State to make efforts to provide actual notice to all interested parties com-
parable to the efforts that were previously required only in in personam
actions See infra, this page
798 OCTOBER TERM, 1982
Opinion of the Court 462 U S
This case is controlled by the analysis in Mullane To
begin with, a mortgagee possesses a substantial property
interest that is significantly affected by a tax sale Under
Indiana law, a mortgagee acquires a lien on the owner's
property which may be conveyed together with the mortgag-
or's personal obligation to repay the debt secured by the
mortgage Ind Code §32-8-11-7 (1982) A mortgagee's
security interest generally has priority over subsequent
claims or hens attaching to the property, and a purchase-
money mortgage takes precedence over virtually all other
claims or liens including those which antedate the execution
of the mortgage §32-8-11-4 The tax sale immediately
and drastically diminishes the value of this security interest
by granting the tax-sale purchaser a hen with priority over
that of all other creditors Ultimately, the tax sale may
result in the complete nullification of the mortgagee's interest,
since the purchaser acquires title free of all hens and other
encumbrances at the conclusion of the redemption period
Since a mortgagee clearly has a legally protected property
interest, he is entitled to notice reasonably calculated to ap-
prise him of a pending tax sale Cf Wiswall v Sampson, 14
How 52, 67 (1853) When the mortgagee is identified in a
mortgage that is publicly recorded, constructive notice by
publication must be supplemented by notice mailed to the
mortgagee's last known available address, or by personal
service But unless the mortgagee is not reasonably identifi-
able, constructive notice alone does not satisfy the mandate
of Mullane 4
4 In this case, the mortgage on file with the County Recorder identified
the mortgagee only as "MENNONITE BOARD OF MISSIONS a corpora
tion, of Wayne County, in the State of Ohio " We assume that the mort
gagee's address could have been ascertained by reasonably diligent efforts
See Mullane v Central Hanover Bank & Trust Co , 339 U S , at 317
Simply mailing a letter to "Mennomte Board of Missions, Wayne County,
Ohio," quite likely would have provided actual notice, given "the well
known skill of postal officials and employes in making proper delivery
of letters defectively addressed " Grannis v Ordean, 234 U S 385,
397-398 (1914) We do not suggest, however, that a governmental body is
MENNONITE BOARD OF MISSIONS v ADAMS 799
791 Opinion of the Court
Neither notice by publication and posting, nor mailed no-
tice to the property owner, are means "such as one desirous
of actually informing the [mortgagee] might reasonably adopt
to accomplish it " Mullane, 339 U S , at 315 Because
they are designed primarily to attract prospective purchasers
to the tax sale, publication and posting are unlikely to reach
those who, although they have an interest in the property, do
not make special efforts to keep abreast of such notices
Walker v City of Hutchinson, supra, at 116, New York City
v New York, N H & H R Co , supra, at 296, Mullane,
supra, at 315 Notice to the property owner, who is not in
privity with his creditor and who has failed to take steps
necessary to preserve his own property interest, also can-
not be expected to lead to actual notice to the mortgagee
Cf Nelson v New York City, 352 U S 103, 107-109
(1956) The county's use of these less reliable forms of notice
is not reasonable where, as here, "an inexpensive and effi-
cient mechanism such as mail service is available " Greene
v Lindsey, supra, at 455
Personal service or mailed notice is required even though
sophisticated creditors have means at their disposal to
discover whether property taxes have not been paid and
whether tax-sale proceedings are therefore likely to be initi-
ated In the first place, a mortgage need not involve a com-
plex commercial transaction among knowledgeable parties,
and it may well be the least sophisticated creditor whose
security interest is threatened by a tax sale More impor-
tantly, a party's ability to take steps to safeguard its inter-
ests does not relieve the State of its constitutional obligation
It is true that particularly extensive efforts to provide notice
may often be required when the State is aware of a party's
inexperience or incompetence See, e g , Memphis Light,
Gas & Water Div v Craft, supra, at 13-15, Covey v Town of
Somers, supra But it does not follow that the State may
required to undertake extraordinary efforts to discover the identity and
whereabouts of a mortgagee whose identity is not in the public record
800 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 u g
forgo even the relatively modest administrative burden of
providing notice by mail to parties who are particularly re-
sourceful 5 Cf New York City v New York, N H & H R
Co , 344 U S , at 297 Notice by mail or other means as cer-
tain to ensure actual notice is a minimum constitutional pre-
condition to a proceeding which will adversely affect the lib-
erty or property interests of any party, whether unlettered
or well versed in commercial practice, if its name and address
are reasonably ascertamable Furthermore, a mortgagee's
knowledge of delinquency in the payment of taxes is not
equivalent to notice that a tax sale is pending The latter
"was the information which the [county] was constitutionally
obliged to give personally to the appellant — an obligation
which the mailing of a single letter would have discharged "
Schroeder v New York City, 371 U S , at 214
We therefore conclude that the manner of notice provided
to appellant did not meet the requirements of the Due Proc-
ess Clause of the Fourteenth Amendment 6 Accordingly,
the judgment of the Indiana Court of Appeals is reversed,
and the cause is remanded for further proceedings not incon-
sistent with this opinion
It is so ordered
JUSTICE O'CONNOR, with whom JUSTICE POWELL and
JUSTICE REHNQUIST join, dissenting
Today, the Court departs significantly from its prior deci-
sions and holds that before the State conducts any proceed-
ing that will affect the legally protected property interests of
5 Indeed, notice by mail to the mortgagee may ultimately relieve the
county of a more substantial administrative burden if the mortgagee ar
ranges for payment of the delinquent taxes prior to the tax sale
6 This appeal also presents the question whether, before the County Au-
ditor executes and delivers a deed to the tax sale purchaser, the mortgagee
is constitutionally entitled to notice of its right to redeem the property
Cf Griffin v Griffin, 327 U S 220, 229 (1946) Because we conclude that
the failure to give adequate notice of the tax-sale proceeding deprived
appellant of due process of law, we need not reach this question
MENNONITE BOARD OF MISSIONS v ADAMS 801
791 O'CONNOR, J , dissenting
any party, the State must provide notice to that party by
means certain to ensure actual notice as long as the party's
identity and location are "reasonably ascertainable " Ante,
Sit 800 Applying this novel and unjustified principle to the
present case, the Court decides that the mortgagee involved
deserved more than the notice by publication and posting
that were provided I dissent because the Court's approach
is unwarranted both as a general rule and as the rule of this
case
I
In Mullane v Central Hanover Bank & Trust Co , 339
U S 306, 314 (1950), the Court established that "[a]n ele-
mentary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reason-
ably calculated, under all the circumstances, to apprise inter-
ested parties of the pendency of the action and afford them an
opportunity to present their objections " We emphasized
that notice is constitutionally adequate when "the prac-
ticalities and peculiarities of the case are reasonably
met," id , at 314-315 See also Walker v City of Hutchin-
son, 352 U S 112, 115 (1956), Schroeder v New York City,
371 U S 208, 211-212 (1962), Greene v Lindsey, 456 U S
444, 449-450 (1982) The key focus is the "reasonableness"
of the means chosen by the State Mullane, 339 U S , at
315 Whether a particular method of notice is reasonable de-
pends on the outcome of the balance between the "interest of
the State" and "the individual interest sought to be protected
by the Fourteenth Amendment " Id , at 314 Of course,
"[i]t is not our responsibility to prescribe the form of service
that the [State] should adopt " Greene, supra, at 455, n 9
It is the primary responsibility of the State to strike this bal-
ance, and we will upset this process only when the State
strikes the balance in an irrational manner
From Mullane on, the Court has adamantly refused to
commit "itself to any formula achieving a balance between
these interests in a particular proceeding or determining
802 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
when constructive notice may be utihzed or what test it must
meet " 339 U S , at 314 Indeed, we have recognized "the
impossibility of setting up a rigid formula as to the kind of
notice that must be given, notice required will vary with cir-
cumstances and conditions " Walker, supra, at 115 (empha-
sis added) Our approach in these cases has always reflected
the general principle that "[t]he very nature of due process
negates any concept of inflexible procedures universally ap-
plicable to every imaginable situation " Cafeteria & Restau
rant Workers v McElroy, 367 U S 886, 895 (1961) See
also Mathews v Eldridge, 424 U S 319, 334-335 (1976)
Although the Court purports to apply these settled princi-
ples in this case, its decision today is squarely at odds with
the balancing approach that we have developed The Court
now holds that whenever a party has a legally protected prop-
erty interest, "[n]otice by mail or other means as certain to
ensure actual notice is a minimum constitutional precondition
to a proceeding which will adversely affect the liberty or
property interests if [the party's] name and address are
reasonably ascertainable " Ante, at 800 Without knowing
what state and individual interests will be at stake in future
cases, the Court espouses a general principle ostensibly ap-
plicable whenever any legally protected property interest
may be adversely affected This is a flat rejection of the
view that no "formula" can be devised that adequately evalu-
ates the constitutionality of a procedure created by a State to
provide notice in a certain class of cases Despite the fact
that Mullane itself accepted that constructive notice satisfied
the dictates of due process in certain circumstances,1 the
1 In Mullane v Central Hanover Bank & Trust Co , 339 U S , at 314,
we held that "[p]ersonal service has not in all circumstances been regarded
as indispensable to the process due to residents, and it has more often been
held unnecessary as to nonresidents "
MENNONITE BOARD OF MISSIONS v ADAMS 803
791 O'CONNOR, J , dissenting
Court, citing Mullane, now holds that constructive notice can
never suffice whenever there is a legally protected property
interest at stake
In seeking to justify this broad rule, the Court holds that
although a part/s inability to safeguard its interests may re-
sult in imposing greater notice burdens on the State, the fact
that a party may be more able "to safeguard its interests does
not relieve the State of its constitutional obligation " Ante,
at 799 Apart from ignoring the fact that it is the totality of
circumstances that determines the sufficiency of notice, the
Court also neglects to consider that the constitutional obliga-
tion imposed upon the State may itself be defined by the par-
ty's ability to protect its interest As recently as last Term,
the Court held that the focus of the due process inquiry has
always been the effect of a notice procedure on "a particular
class of cases " Greene, supra, at 451 (emphasis added) In
fashioning a broad rule for "the least sophisticated creditor,"
ante, at 799, the Court ignores the well-settled principle that
"procedural due process rules are shaped by the risk of error
inherent in the truthfindmg process as applied to the general-
ity of cases, not the rare exceptions " Mathews v Eldndge,
supra, at 344, see also Calif ano v Yamasaki, 442 U S 682,
696 (1979) If the members of a particular class generally
possess the ability to safeguard their interests, then this fact
must be taken into account when we consider the "totality of
circumstances," as required by Mullane Indeed, the crite-
rion established by Mullane " 'is not the possibility of con-
ceivable injury but the just and reasonable character of the
requirements, having reference to the subject with which the
statute deals '" 339 U S , at 315 (quoting American Land
Co v Zeiss, 219 U S 47, 67 (1911))
The Court also suggests that its broad rule has really been
the law ever since Mullane See ante, at 796-797, n 3
The Court reasons that before Mullane, the characteriza-
tion of proceedings as in personam or in rem was relevant to
804 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 452 u g
determining whether the notice given was constitutionally
sufficient,2 and that once Mullane held that the "power of the
State to resort to constructive service" no longer depended
upon the "historic antithesis" of in rem and in personam pro-
ceedings, 339 U S , at 312-313, constructive notice became
insufficient as to all proceedings
The plain language of Mullane is clear that the Court ex-
pressly refused to reject constructive notice as per se insuffi-
cient See id , at 312-314 Moreover, the Court errs in
thinking that the only justification for constructive notice is
the distinction between types of proceedings See ante, at
796-797, n 3 The historical justification for constructive
notice was that those with an interest in property were under
an obligation to act reasonably in keeping themselves in-
formed of proceedings that affected that property See,
e g , North Laramie Land Co v Hoffman, 268 U S 276,
283 (1925), Ballard v Hunter, 204 U S 241, 262 (1907) As
discussed in Part II of this dissent, Mullane expressly ac-
knowledged, and did not reject, the continued vitality of the
notion that property owners had some burden to protect
their property See 339 U S , at 316
B
The Court also holds that the condition for receiving notice
under its new approach is that the name and address of the
party must be "reasonably ascertainable " In applying this
requirement to the mortgagee in this case, the Court holds
that the State must exercise "reasonably diligent efforts" in
determining the address of the mortgagee, ante, at 798, n 4,
2 The Court is simply incorrect in asserting that before Mullane, con
structive notice was rarely deemed sufficient even as to in rem proceedings
when residents of the State were involved, ante, at 796-797, n 3 See,
e g , Longyear v Toolan, 209 U S 414, 417-418 (1908) See also Note,
The Constitutionality of Notice by Publication in Tax Sale Proceedings, 84
Yale L J 1505, 1507 (1975) ("This rule [permitting constructive notice]
was extended to all in rem proceedings, whether involving property
owned by nonresidents or residents")
MENNONITE BOARD OF MISSIONS v ADAMS 805
791 O'CONNOR, J , dissenting
and suggests that the State is required to make some effort
"to discover the identity and whereabouts of a mortgagee
whose identity is not in the public record " Ante, at 799,
n 4 Again, the Court departs from our prior cases In all
of the cases relied on by the Court in its analysis, the State
either actually knew the identity or incapacity of the party
seeking notice, or that identity was "very easily ascertain-
able " Schroeder, 371 U S , at 212-213 See also Mullane,
339 U S , at 318, Covey v Town ofSomers, 351 U S 141,
146 (1956), Walker, 352 U S , at 116, Eisen v Carlisle &
Jacquehn, 417 U S 156, 175 (1974) 3 Under the Court's de-
cision today, it is not clear how far the State must go in pro-
viding for reasonable efforts to ascertain the name and ad-
dress of an affected party Indeed, despite the fact that the
recorded mortgage failed to include the appellant's address,
see ante, at 798-799, n 4, the Court concludes that its where-
abouts were "reasonably identifiable " Ante, at 798 This
uncertainty becomes particularly ominous in the light of the
fact that the duty to ascertain identity and location, and to
notify by mail or other similar means, exists whenever any
legally protected interest is implicated
II
Once the Court effectively rejects Mullane and its progeny
by accepting a per se rule against constructive notice, it ap-
plies its rule and holds that the mortgagee in this case must
receive personal service or mailed notice because it has a le-
gally protected interest at stake, and because the mortgage
was publicly recorded See ante, at 798 If the Court had
8 In Mullane, the Court contrasted those parties whose identity and
whereabouts are known or "at hand" with those "whose interests or where-
abouts could not with due diligence be ascertained " 339 U S , at 318,
317 This language must be read in the hght of the facts of Mullane, in
which the identity and location of certain beneficiaries were actually
known In addition, the Court in Mullane expressly rejected the view
that a search "under ordinary standards of diligence" was required in that
case Id , at 317
806 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 432 u g
observed its prior decisions and engaged in the balancing
required by Mullane, it would have reached the opposite
result
It cannot be doubted that the State has a vital interest in
the collection of its tax revenues in whatever reasonable
manner that it chooses "In authorizing the proceedings to
enforce the payment of the taxes upon lands sold to a pur-
chaser at tax sale, the State is in exercise of its sovereign
power to raise revenue essential to carry on the affairs of
state and the due administration of the laws 'The proc-
ess of taxation does not require the same kind of notice as is
required in a suit at law, or even in proceedings for taking
private property under the power of eminent domain '"
Leigh v Green, 193 U S 79, 89 (1904) (quoting Bell's Gap
R Co v Pennsylvania, 134 U S 232, 239 (1890)) The
State has decided to accommodate its vital interest in this re-
spect through the sale of real property on which payments of
property taxes have been delinquent for a certain period of
time4
The State has an equally strong interest in avoiding the
burden imposed by the requirement that it must exercise
"reasonable" efforts to ascertain the identity and location of
any party with a legally protected interest In the instant
case, that burden is not limited to mailing notice Rather,
the State must have someone check the records and ascertain
with respect to each delinquent taxpayer whether there is a
mortgagee, perhaps whether the mortgage has been paid off,
and whether there is a dependable address
Against these vital interests of the State, we must weigh
the interest possessed by the relevant class — in this case,
4 The Court suggests that the notice that it requires "may ultimately re-
heve the county of a more substantial administrative burden if the mort
gagee arranges for payment of the delinquent taxes prior to the tax sale w
Ante, at 800, n 5 The Court neglects the fact that the State is a better
judge of how it wants to settle its tax debts than is this Court
MENNONITE BOARD OF MISSIONS v ADAMS 807
791 O'CONNOR, J , dissenting
mortgagees 5 Contrary to the Court's approach today, this
interest may not be evaluated simply by reference to the fact
that we have frequently found constructive notice to be inad-
equate since Mullane Rather, such interest "must be
judged in the light of its practical application to the affairs of
men as they are ordinarily conducted " North Laramie
Land Co , 268 U S , at 283
Chief Justice Marshall wrote long ago that "it is the part of
common prudence for all those who have any interest in
[property], to guard that interest by persons who are in a
situation to protect it " The Mary, 9 Cranch 126, 144 (1815)
We have never rejected this principle, and, indeed, we held
in Mullane that "[a] state may indulge" the assumption that a
property owner "usually arranges means to learn of any di-
rect attack upon his possessory or proprietary rights " 339
U S , at 316 When we have found constructive notice to be
inadequate, it has always been where an owner of property
is, for all purposes, unable to protect his interest because
there is no practical way for him to learn of state action that
threatens to affect his property interest In each case, the
adverse action was one that was completely unexpected by
the owner, and the owner would become aware of the action
only by the fortuitous occasion of reading "an advertisement
in small type inserted in the back pages of a newspaper [that
may] not even name those whose attention it is supposed
to attract, and does not inform acquaintances who might
call it to attention " Mullane, supra, at 315 In each case,
the individuals had no reason to expect that their property
interests were being affected
This is not the case as far as tax sales and mortgagees are
concerned Unlike condemnation or an unexpected account-
5 This is not to say that *he rule espoused must cover all conceivable
mortgagees in all conceivable circumstances The flexibility of due proc-
ess is sufficient to accommodate those atypical members of the class of
mortgagees
808 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 4^2 u S
ing, the assessment of taxes occurs with regularity and
predictability, and the state action in this case cannot reason-
ably be characterized as unexpected in any sense Unlike
the parties in our other cases, the Mennomte Board had a
regular event, the assessment of taxes, upon which to focus
in its effort to protect its interest Further, approximately
95% of the mortgage debt outstanding in the United States is
held by private institutional lenders and federally supported
agencies U S Dept of Commerce, Bureau of the Census,
Statistical Abstract of the United States 1982-1983, p 511
(103d ed ) 6 It is highly unlikely , if likely at all, that a sigmfi
cant number of mortgagees are unaware of the consequences
that ensue when their mortgagors fail to pay taxes assessed
on the mortgaged property Indeed, in this case, the Board
itself required that Moore pay all property taxes
There is no doubt that the Board could have safeguarded
its interest with a minimum amount of effort The county
auctions of property commence by statute on the second
Monday of each year Ind Code §6-1 1-24-2(5) (1982)
The county auditor is required to post notice in the county
courthouse at least three weeks before the date of sale
§ 6-1 l-24-3(a) The auditor is also required to publish no-
tice in two different newspapers once each week for three
weeks before the sale §§6-1 l-24-3(a), 6-1 l-22-4(b)
The Board could have supplemented the protection offered
by the State with the additional measures suggested by the
court below The Board could have required that Moore pro-
vide it with copies of paid tax assessments, or could have re-
6 The Court holds that "a mortgage need not involve a complex commer
cial transaction among knowledgeable parties " Ante, at 799 This
is certainly true, however, that does not change the fact that even if the
Board is not a professional moneylender, it voluntarily entered into a fairly
sophisticated transaction with Moore As the court below observed "The
State cannot reasonably be expected to assume the risk of its citizens' busi
ness ventures " 427 N E 2d 686, 690, n 9 (1981)
MENNONITE BOARD OF MISSIONS v. ADAMS 809
791 O'CONNOR, J., dissenting
quired that Moore deposit the tax moneys in an escrow ac-
count, or could have itself checked the public records to
determine whether the tax assessment had been paid. 427
N. E. 2d 686, 690, n. 9 (1981).
When a party is unreasonable in failing to protect its inter-
est despite its ability to do so, due process does not require
that the State save the party from its own lack of care. The
balance required by Mullane clearly weighs in favor of find-
ing that the Indiana statutes satisfied the requirements of
due process. Accordingly, I dissent.
810 OCTOBER TERM, 1982
Syllabus 462 U S
NATIONAL ASSOCIATION OF GREETING CARD
PUBLISHERS v UNITED STATES POSTAL
SERVICE ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No 81-1304 Argued December 1, 1982— Decided June 22, 1983*
Section 3622(b) of the Postal Reorganization Act (Act) provides that the
Postal Rate Commission shall recommend rates for the classes of mail in
accordance with nine factors, the third of which (§ 3622(b)(3)) is 'the re-
quirement that each class of mail or type of mail service bear the direct
and indirect postal costs attributable to that class or type plus that por-
tion of all other costs of the Postal Service reasonably assignable to such
class or type " In reviewing the ratemaking proceedings involved here,
the Court of Appeals for the Second Circuit — contrary to earlier deci
sions of the Court of Appeals for the District of Columbia Circuit in re-
viewing prior ratemaking proceedings — held that the Act does not re-
quire the maximum possible use of cost-of-service principles, including
allocation of costs on unverified inferences of causation, but permits use
of other approaches, including the Rate Commission's original two-tier
approach under which the rate floor for each class of mail was established
by first determining the portion of the Postal Service's total costs verifi
ably caused by ("attributable to") that class of mail, and then "reasonably
assigning" remaining costs to the various classes of mail on the basis of
the other noncost, discretionary factors set forth in § 3622(b)
Held
1 Although the Act divides ratemaking responsibility between the
Rate Commission and the Postal Service, the legislative history and the
Act's structure demonstrate that ratemaking authority was vested pn
marily in the Rate Commission Thus, its interpretation of § 3622(b) is
due deference Pp 820-821
2 In enacting the Act to divest itself of its previous control over set
ting postal rates, Congress was concerned about the influence of lobby-
ists and resulting discrimination in rates among classes of postal service,
but it did not intend to require maximum use of cost-of-service principles
or to eliminate the ratesetter's discretion as to the methods for assigning
Together with No 81-1381, United Parcel Service of America, Inc v
United States Postal Service et al , also on certiorari to the same court
NATIONAL ASSN OF GREETING CARD PUBS v USPS 811
810 Syllabus
costs, it simply removed the ratesetting function from the political arena
The legislative history does not suggest that Congress viewed the exer-
cise of discretion as an evil in itself Pp 821-823
3 The Rate Commission's two-tier approach is a reasonable construc-
tion of § 3622(b)(3) The two-tier approach — one tier based on causation
and the second tier based on other factors — is consistent with the statu-
tory language and is supported by the legislative history Pp 823-825
4 The statute requires attribution of any costs for which the source
can be identified, but leaves it to the Rate Commission, in the first in-
stance, to decide which methods provide reasonable assurance that costs
are the result of providing one class of service Pp 825-833
(a) The Act does not dictate a specific method for identifying causal
relationships between costs and classes of mail, but envisions consider-
ation of all appropriate costing approaches Pp 825-826
(b) The Rate Commission acted consistently with the statutory-
mandate and Congress' policy objectives in refusing to use accounting
principles lacking an established causal basis On its face, §3622(bX3)
does not deny to the expert ratesetting agency the authority to decide
which methods sufficiently identify the requisite causal connection be-
tween particular services and particular costs The legislative history
supports the Rate Commission's view that when causal analysis is lim-
ited by insufficient data, the statute envisions that the Rate Commission
will press for better data, rather than construct an "attribution" based
on unsupported inferences of causation Pp S26-&9
(c) Because the Rate Commission has decided that methods involv-
ing attribution of long-term and short-term variable costs reliably in-
dicate causal connections between classes and postal rates, the Act
requires that they be employed But the Act's language and legisla-
tive history support the Rate Commission's position that Congress did
not intend to bar the use of any reliable method of attributing costs
Pp 829-832
(d) A statement in the legislative history indicating that the rate
floor for each class of mail should consist of short-term variable costs
does not demonstrate that the Rate Commission's inclusion of long-term
variable costs, and consideration of other methods of identifying causa-
tion, are inconsistent with the statutory mandate or frustrate Congress'
policy The statute's plain language and prior legislative history indi-
cate that Congress' broad policy was to mandate a rate floor consisting of
all costs that could be identified, in the Rate Commission's view, as caus-
ally linked to a class of postal service Pp 832-833
663 F 2d 1186, affirmed and remanded
BLACKMUN, J , delivered the opinion for a unanimous Court.
812 OCTOBER TERM, 1982
Opinion of the Court 462 TJ g
Matthew S Perlman argued the cause for petitioner
in No 81-1304 With him on the briefs was Richard
J Webber Bernard G Segal argued the cause for petitioner
in No 81-1381 With him on the briefs were Robert L
Kendall, Jr , James D Crawford, and John E McKeever
John H Garvey argued the cause for respondents in both
cases With him on the brief for the United States Postal
Service were Solicitor General Lee and Deputy Solicitor Gen-
eral Getter Robert A Saltzstein, Stephen M Feldman,and
Joseph J Saunders filed a brief for respondent American
Business Press Dana T Ackerly and Charles Lister filed
briefs for respondent Direct Mail/Marketing Association, Inc
Raymond N Shibley, Michael F McBmde, and W Gilbert
Faulk, Jr , filed a brief for respondent Dow Jones & Co , Inc
David C Todd and Timothy J May filed a brief for respond-
ents Mail Order Association of America et al David Minton
filed a brief for respondent Magazine Publishers Association,
Inc Alan R Swendiman and William J Olson filed a brief
for respondents March of Dimes Birth Defects Foundation
et al Tom K Allen, Robert M Lichtman, and John M
Burzio filed a brief for respondents Newsweek, Inc , et al
Ian D Volner, Richard M Schmidt, Jr , and Mark L Pelesh
filed a brief for respondents Recording Industry Association
of America et al t
JUSTICE BLACKMUN delivered the opinion of the Court
These cases arise out of the most recent general postal
ratemakmg proceeding, the fifth under the Postal Reorga-
nization Act At issue is the extent to which the Act re-
quires the responsible federal agencies to base postal rates on
cost-of-service principles
, rr Terry Magmre, Pamela Riley, and Arthur B Sackler filed a brief
for the American Newspaper Pubhshers Association et al as amici curwe
urging affirmance
NATIONAL ASSN OF GREETING CARD PUBS v USPS 813
810 Opinion of the Court
I
A
When, in 1970, Congress enacted the Postal Reorganiza-
tion Act (Act), 39 U S C § 101 et seq , it divested itself of
the control it theretofore had exercised over the setting of
postal rates and fees The Act abolished the Post Office
Department, which since 1789 had administered the Na-
tion's mails See Act of Sept 22, 1789, ch 16, 1 Stat 70
In its place, the Act established the United States Postal
Service as an independent agency under the direction of an
11-member Board of Governors 39 U S C §§201, 202 l
The Act also established a five-member Postal Rate Commis-
sion (Rate Commission) as an agency independent of the
Postal Service § 3601
Basic to the Act is the principle that, to the extent "practi-
cable," the Postal Service's total revenue must equal its
costs § 3621 Guided by this principle, the Board of Gov-
ernors, when it deems it in the public interest, may request
the Rate Commission to recommend a new rate schedule
§3622 After receiving the request, the Rate Commission
holds hearings, §3624(a), and formulates a schedule, §3624
(d) Section 3622(b) provides that the Rate Commission
shall recommend rates for the classes of mail2 in accordance
with nine factors, the third of which is 'the requirement that
each class of mail or type of mail service bear the direct and
indirect postal costs attributable to that class or type plus
that portion of all other costs of the Postal Service rea-
1 All citations to statutes herein refer to provisions of Title 39 of the
United States Code
2 The Postal Service and Rate Commission classify the various types of
mail through a process similar to that governing ratesetting See §§ 3623,
3625 Presently, the four broad classes of mail are first class (letters, post
cards, and small sealed parcels), second class (newspapers, magazines, and
other periodicals), third class (single piece service for small parcels, cata-
logues, and other items, and certain bulk mail services), and fourth class
(primarily parcel post) See Brief for United States Postal Service 4, n 4
814 OCTOBER TERM, 1982
Opinion of the Court 4$2 U g
sonably assignable to such class or type "3 The Governors
may approve the recommended rate schedule, may allow it
under protest, may reject it, or, in limited circumstances,
may modify it §3625 The Governors' decision to order
new rates into effect may be appealed to any United States
court of appeals §3628
Questions confronting us in these cases are whether the
Rate Commission must follow a two-tier or a three-tier proc-
ess in setting rates, and the extent to which the Rate Com-
mission must base rates on estimates of the costs caused by
providing each class of mail service
B
In its first two ratemaking proceedings under the Act, the
Rate Commission determined that §3622(b) establishes a
8 Section 3622(b) provides in relevant part
"(b) Upon receiving a request [from the Postal Service], the [Rate]
Commission shall make a recommended decision in accordance with
the policies of this title and the following factors
"(1) the establishment and maintenance of a fair and equitable schedule,
"(2) the value of the mail service actually provided each class or type of
mail service to both the sender and the recipient, including but not limited
to the collection, mode of transportation, and priority of delivery,
"(3) the requirement that each class of mail or type of mail service bear
the direct and indirect postal costs attributable to that class or type plus
that portion of all other costs of the Postal Service reasonably assignable to
such class or type,
"(4) the effect of rate increases upon the general public, business mail
users, and enterprises in the private sector of the economy engaged in the
delivery of mail matter other than letters,
"(5) the available alternative means of sending and receiving letters and
other mail matter at reasonable costs,
"(6) the degree of preparation of mail for delivery into the postal system
performed by the mailer and its effect upon reducing costs to the Postal
Service,
"(7) simplicity of structure for the entire schedule and simple, identifi-
able relationships between the rates or fees charged the various classes of
mail for postal services,
"(8) the educational, cultural, scientific, and informational value to the
recipient of mail matter, and
"(9) such other factors as the Commission deems appropriate "
NATIONAL ASSN OF GREETING CARD PUBS v USPS 815
810 Opinion of the Court
two-tier approach to allocating the Postal Service's total rev-
enue requirement See Postal Rate Commission, Opinion
and Recommended Decision, Docket No R74-1, pp 4, 91-93
(1975), 4 PRC Op R71-1, pp 39-41 (1972) Under this ap-
proach, the Rate Commission first must determine the costs
caused by ("attributable to") each class of mail, §3622(b)(3),
and on that basis establish a rate floor for each class PRC
Op R74-1, pp 92, 93, 110 The Rate Commission then must
"reasonably assign/' see §3622(b)(3), the remaining costs to
the various classes of mail on the basis of the other factors set
forth in §3622(b) See PRC Op R74-1, pp 91-94
In the first proceeding, the Rate Commission concluded
that the Act does not dictate the use of any particular method
of identifying the costs caused by each class PRC
Op R71-1, pp 42-47 Without committing itself to any the-
ory for the future, it chose to attribute those costs shown to
vary with the volume of mail in each class over the "short
term" — the period of a single year 5 Although it considered
other methods, it found the short-term approach to be the
only feasible one, given the limited data developed by the
Postal Service Id , at 47-62
In the second proceeding, the Rate Commission again
viewed the choice of a costing system as within its discretion
PRC Op R74-1, pp 92-93, 127 Although the Postal Serv-
ice contended that short-term costs should again control
attribution, the Rate Commission determined that it could
reliably attribute more costs through a long-term variable
costing analysis That method attributes costs by identify-
ing cost variations associated with shifts in mail volume and
with shifts in the Postal Service's capacity to handle mail
4 Opinions and Recommended Decisions of the Rate Commission are cited
herein as "PRC Op ," followed by the docket number
6 In addition to variable costs, the Rate Commission consistently has at-
tributed fixed costs incurred for the benefit of a single dass See PRC
Op R74-1, p 76, PRC Op R80-1, App B, p 52 (1981) These "specific
fixed costs" constitute a small percentage of all costs See Brief for
United States Postal Service 6, n 9
816 OCTOBER TERM, 1982
Opinion of the Court 462 u g
over periods of time longer than one year Id , at 111-112
126-127 The Rate Commission did not go beyond attribut-
ing long-run variable costs, because the statute forbids
attribution based on guesswork, see id , at 110-111, and
because the Rate Commission was unable to find "any other
reliable principle of causality on [the] record," id , at 94
The Rate Commission urged the development of improved
data for future proceedings, so that it could identify more
causal relationships, and thereby attribute more costs Id ,
at 110-111 6
C
Reviewing the second proceeding, the United States Court
of Appeals for the District of Columbia Circuit rejected the
Rate Commission's approach National Assn of Greeting
Card Publishers v USPS, 186 U S App D C 331, 569 F
2d 570 (1976) (NAGCP I), vacated on other grounds, 434
U S 884 (1977) The court held that the Act's principal
goals of eliminating price discrimination among classes of
mail and curtailing discretion in ratesettmg, 186 U S App
D C , at 348-350, 569 F 2d, at 587-589, require the Rate
Commission "to employ cost-of-service principles to the
fullest extent possible " Id at 354, 569 F 2d, at 593, see id ,
at 348, 569 F 2d, at 587 Therefore, the court stated, the
Act mandates not only attribution of variable costs, but also
"extended attribution" of costs that, "although not measur-
ably variable," can reasonably be determined to result from
handling each class of mail Id , at 347, 569 F 2d, at 586
The court required the Rate Commission to allocate some
costs on the basis of "cost accounting principles " Id , at
344, 569 F 2d, at 583, see id , at 347, 352, 569 F 2d, at 586,
591 This involves apportioning costs on the basis of "distri
6 The Rate Commission attributed 50% of the Postal Service's total reve-
nue requirement in the first proceeding, see App 239a, and in the second
the data provided by the Postal Service had improved enough to support a
rate floor consisting of 52 5% of total postal costs See PRC Op R80-1,
App B, p 28
NATIONAL ASSN OF GREETING CARD PUBS v USFS 817
810 Opinion of the Court
bution keys," such as the weight or cubic volume of mail, not-
withstanding the lack of proof that such factors play a caus-
ative role Id , at 344, 352, 569 F 2d, at 583, 591 7
The Court of Appeals, citing the language and purposes of
the statute, also required the Rate Commission to follow a
three-tier, rather than a two-tier, procedure in setting rates
In the court's view, the first two tiers — attribution and as-
signment— are to proceed on a cost-of-service basis 8 Id , at
347, and n 59, 353-354, 569 F 2d, at 586, and n 59, 592-593
Only those "residual costs" that cannot be attributed or as-
signed on the basis of reasonable inferences of causation may
be distributed, in the third tier, among the classes of mail on
the basis of § 3622(b)'s noncost, discretionary factors Id , at
348, 569 F 2d, at 587
Despite its doubts about NAGCP /, PRC Op R77-1, p 9
(1978), the Rate Commission attempted to comply in the
fourth ratemaking proceeding 9 It adhered to its view that
variability is the key to attribution, because only with "some
showing of volume variability over the long run" could it have
reasonable confidence that particular costs were the conse-
quence of providing the service Id , at 84 Because the
data on long-run costs had improved, the Rate Commission
7 Such accounting principles are used in utility ratemaking proceedings
that employ 'fully allocated costing" systems Under such systems, a spe-
cific cause is assigned to every cost incurred by a utility The Post Office
employed such a system prior to the Act See infra, at 827, and n 22
8 The court said that attributable and assignable costs are distinguishable
in that "the latter concept permits a greater degree of estimation and con-
notes somewhat more judgment and discretion than the former " 186
U S App D C , at 348, n 59, 569 F 2d, at 588, n 59
9 Challenges to the third ratemaking proceeding, Docket No R76-1,
which was completed prior to the Court of Appeals' decision in NAGCP /,
see 186 U S App D C , at 339, n 21, 569 F 2d, at 578, n. 21, were dis-
missed as moot because they still were pending when the administrative
decisions in the fourth ratemaking proceeding were complete National
Asm of Greeting Card Publishers v USPS, No 76-1611 (CADC June 27,
1978) (NAGCP II) (order)
818 OCTOBER TERM, 1982
Opinion of the Court 462 u s
found that its long-run analysis satisfied NAGCP /'s require
ment of "extended attribution" without resort to mere "infer-
ences of causation " PRC Op R77-1, at 10, 85 10
Turning to the intermediate assignment tier created by
NAGCP 7, the Rate Commission found a group of nonvari-
able "Service Related Costs" to be reasonably assignable to
first-class and certain categories of second-class mail Serv-
ice Related Costs were defined as the fixed delivery costs in-
curred in maintaining the current 6-day-a-week delivery
schedule for those classes, rather than a hypothetical 3-day-a
week schedule " See PRC Op R77-1, at 87-124
D
The current controversy began on April 21, 1980, when the
Postal Service requested from the Rate Commission a fifth
increase in postal rates Following extensive hearings, the
Rate Commission recommended continued assignment of
Service Related Costs in order to comply with the Court
of Appeals' three- tier approach, see PRC Op R80-1,
pp 145-156, despite the Postal Service's rejection of the con
cept, see Decision of the Governors of the United States
Postal Service on Rates of Postage and Fees for Postal Serv-
ices, March 10, 1981, App to Pet for Cert 13b-14b (Decision
of the Governors) The Rate Commission also made clear that
while it did not consider variability analysis to be the sole
10 By this method, the Rate Commission attributed almost 65% of total
costs PRC Op R77-1, p 156 (table)
11 The Rate Commission concluded that these nonvariable costs const
tuted slightly over 7% of the Postal Service's total revenue requirement
On the assumption that the Postal Service and the Rate Commission
would continue to improve and extend their attribution and assignment
techniques, the District of Columbia Circuit affirmed the Governors' deci-
sion to put into effect the Rate Commission's recommendations See Na-
tional Assn of Greeting Card Publishers v USPS, 197 U S App D C
78, 82-104, 607 F 2d 392, 396-418 (1979) (opinion of Leventhal, J )
(NAGCP III), cert denied, 444 U S 1025 (1980)
NATIONAL ASSN OF GREETING CARD PUBS v USPS 819
810 Opinion of the Court
statutory basis for attribution, only long-run variability anal-
ysis had been shown to be accurate enough to permit attribu-
tion PRC Op R80-1, pp 129-131, 140, and n 2 12 The
Governors, under protest, permitted these rates to go into
effect 13
On petitions for review, the United States Court of
Appeals for the Second Circuit held that Congress had not
intended to require the maximum possible use of cost~of-
service principles in postal ratesettmg Newsweek, Inc v
USPS, 663 F 2d 1186 (1981) The Second Circuit stated
that although the Rate Commission is free to use the ap-
proach the District of Columbia Circuit had required, the Act
permits the use of other approaches as well, including the
Rate Commission's original two-tier approach to ratesettmg
Under the Second Circuit's construction, §3622(b)(3) re-
quires that the rate floor for each class consist of attributable
costs based, at a minimum, on short-term variability, reason-
able assignment may proceed on the basis of the other factors
set forth in § 3622(b) The court remanded to the agencies
for reconsideration
12 More than 64% of total costs were attributed by this method PEC
Op R80-1, p 222 (table)
18 Decision of the Governors, App to Pet for Cert Ib The Governors
also returned the matter to the Rate Commission for reconsideration
After the Rate Commission twice substantially reaffirmed its recommenda
tions, the Governors exercised their statutory authority to modify the deci-
sion, § 3625(d), by, among other changes, abandoning the Service Related
Costs concept See Decision of the Governors Under 39 U S C Section
3625 in the Matter of Proposed Changes in Postal Rates and Fees, Docket
No R80-1 Before the Postal Rate Commission (Sept 29, 1981) This
modification was appealed to the United States Court of Appeals for the
Second Circuit, which remanded to the Governors for further explanation
of their reasoning Time, Inc v USPS, 685 F 2d 760 (1982) The Gov
ernors complied with the remand, Further Explanation and Justification
Supporting the September 29, 1981 Decision of the Governors of the
United States Postal Service on Rates of Postage and Fees for Postal Serv-
ices (Dec 20, 1982), and the Second Circuit recently denied petitions for
review Time, Inc v USPS, Nos 81-4183, 81-4185, 81-4203, 81-4205,
and 81-6216 (June 8, 1983) These matters are not before us
820 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Because of the inconsistencies in the holdings of the Second
and District of Columbia Circuits, we granted certiorari
456 U S 925 (1982) 14
II
As a threshold matter, it is useful to set forth what is, and
what is not, at issue in this litigation Of the factors set
forth in § 3622(b), only subsection (b)(3) is styled a "require
ment " With the approval of both Courts of Appeals, the
Rate Commission has concluded that notwithstanding its
placement as the third of nine factors, this distinction dic-
tates that "attribution" and "assignment" define the frame-
work for ratesetting In addition, the Rate Commission
takes the view that "causation is both the statutory and the
logical basis for attribution " PRC Op R74-1, p 110 The
parties do not dispute these premises, and we see no reason
to question them
At issue is the Rate Commission's consistent position that
the Act establishes a two-tier structure for ratesetting, and
that the Act does not dictate or exclude the use of any
method of attributing costs, but requires that all costs reh
ably identifiable with a given class, by whatever method, be
attributed to that class 15 An agency's interpretation of its
14 The Governors' subsequent decision to modify the rates at issue, seen
13, supra, has not mooted the controversy Postal rates frequently are in
effect too briefly for litigation concerning them to be completed before they
are superseded See Reeves, Inc v Stake, 447 U S 429, 434, n 5 (1980)
Before judicial review of the second and third ratemaking proceedings
could be concluded, for example, new rates resulting from the third and
fourth ratemaking proceedings had gone into effect See NAGCP I, 186
U S App D C , at 339, n 21, 569 F 2d, at 578, n 21, NAGCP ///, 197
U S App D C , at 82, n 3, 607 F 2d, at 396, n 3 The questions before
the Court are certain to be central to future proceedings, and there is more
than a "reasonable expectation" that petitioners, who have taken part in
most or all of the challenges to prior rate schedules, will be affected by
these future proceedings See Weinstem v Bradford, 423 U S 147, 149
(1975), Reeves, Inc v Stake, 447 U S , at 434, n 5, Murphy v Hunt, 455
U S 478, 482 (1982)
15 The Rate Commission is not a party to this action We are informed
that the Rate Commission agrees with the Postal Service that the decision
NATIONAL ASSN OF GREETING CARD PUBS v USPS 821
810 Opinion of the Court
enabling statute must be upheld unless the interpretation is
contrary to the statutory mandate or frustrates Congress'
policy objectives FEC v Democratic Senatorial Cam-
paign Committee, 454 U S 27, 32 (1981) Although the
Postal Reorganization Act divides ratemaking responsibility
between two agencies, the legislative history demonstrates
"that ratemaking authority [was] vested primarily in
[the] Postal Rate Commission " S Rep No 91-912, p 4
(1970) (Senate Report), see Time, Inc v USPS, 685 F 2d
760, 771 (CA2 1982), Newsweek, Inc v USPS, 663 F 2d, at
1200-1201, NAGCP III, 197 U S App D C , at 87, 607 F
2d, at 401 The structure of the Act supports this view 1S
While the Postal Service has final responsibility for guaran-
teeing that total revenues equal total costs, the Rate Com-
mission determines the proportion of the revenue that should
be raised by each class of mail In so doing, the Rate Com-
mission applies the factors listed in § 3622(b) Its interpreta-
tion of that statute is due deference See Time, Inc v
USPS, 685 F 2d, at 771, United Parcel Service, Inc v
USPS, 604 F 2d 1370, 1381 (CA3 1979), cert denied, 446
U S 957(1980)
III
In NAGCP I, the Court of Appeals for the District of Co-
lumbia Circuit discerned in the Act an overriding purpose to
minimize the Rate Commission's discretion by maximizing
the use of cost-of-service principles According to the Court
of Appeals, the Rate Commission's failure to use "cost ac-
of the Second Circuit is correct and should be affirmed Brief for United
States Postal Service 49, n 46 We do not understand this statement to
indicate that the Rate Commission agrees with all the reasoning in the
Postal Service's brief, or that it has abandoned the consistent reading it has
given the Act in the first five ratemaking proceedings
16 It is the Rate Commission, not the Postal Service, that conducts exten-
sive hearings, § 3624, and applies the ratemaking factors enumerated in
§ 3622(b) The Postal Service may modify a Rate Commission recommen
dation only if the recommended rates will not produce revenues equal to
the Postal Service's estimated costs § 3625{d){2)
822 OCTOBER TERM, 1982
Opinion of the Court 452 U S
counting principles" to attribute costs, and its failure to "as-
sign" costs on the basis of extended inferences of causation as
a middle ratesetting tier, frustrated these congressional
goals Animating the court's view was the fact that Con-
gress, in passing the Act, was disturbed about the influence
of lobbyists on Congress' discretionary ratemaking and the
resulting discrimination in rates among classes of postal serv-
ice, in the Act, Congress sought to "get 'politics out of the
Post Office '" 186 U S App D C , at 349, 569 F 2d,
at 588 (quoting H R Rep No 91-1104, p 6 (1970) (House
Report))
Without doubt, Congress did have these problems in mind,
but we agree with the Second Circuit that the District of
Columbia Circuit misunderstood Congress' solution See
663 F 2d, at 1198 Congress did not eliminate the rate-
setter's discretion, it simply removed the ratesetting function
from the political arena by removing postal funding from the
budgetary process, see § 3621 (Postal Service is to be self-
supporting), and by removing the Postal Service's principal
officers from the President's direct control House Report,
at 6, 12, 13, 18-19, Senate Report, at 8 In addition, Con
gress recognized that the increasing economic, accounting,
and engineering complexity of ratemaking issues had caused
Members of Congress, "lacking the time, training, and staff
support for thorough analysis/' to place too much reliance on
lobbyists House Report, at 18 Consequently, it at
tempted to remove undue price discrimination and political
influence by placing ratesetting in the hands of a Rate Com-
mission, composed of "professional economists, trained rate
analysts, and the like," id , at 5, independent of Postal Serv-
ice management, id , at 13, and subject only to Congress'
"broad policy guidelines," id , at 12 Congress sought to en-
sure that the Postal Service would be managed "in a busi-
nesslike way " Id , at 5, see id , at 11-12 There is no sug-
gestion in the legislative history that Congress viewed the
exercise of discretion as an evil in itself Congress simply
NATIONAL ASSN OF GREETING CARD PUBS v USPS 823
810 Opinion of the Court
wished to substitute the educated and politically insulated
discretion of experts for its own
IV
We turn now to the narrower contentions about the mean-
ing of §3622(b)(3) In determining whether the Rate Com-
mission's two-tier approach to ratesettmg is contrary to the
mandate of the Act or frustrates its policies, we begin with
the statute's language See North Dakota v United States,
460 U S 300, 312 (1983), Dickers™ v New Banner Institute,
Inc , 460 U S 103, 110 (1983) Once the Rate Commission
has allocated all attributable costs, §3622(b)(3) directs that
each class must bear, in addition, "that portion of all other
costs reasonably assignable" to it While the verb
"attribute" primarily connotes causation, the verb "assign"
connotes distribution on any basis On its face, therefore,
the section suggests one ratemakmg tier based on causation,
and a second based on other factors We see no justification
for the interposition of an intermediate causation-based
assignment tier 17 The Rate Commission's two-tier approach
is consistent with the statutory language
Moreover, the legislative history supports the Rate Com-
mission's approach The report of the President's Commis-
sion on Postal Organization (Kappel Commission) found that
17 The District of Columbia Circuit read the statute to require an interme-
diate "assignment" tier that, like attribution, must be based on causation
principles The court believed that "Congress did not intend that all
postal costs be either attributed or assigned," because some unattnbutable
postal costs <<will exist but will not be 'reasonably assignable' to any par-
ticular class or type " NAGCP /, 186 U S App D C , at 348, 569 F 2d,
at 587 (emphasis in original) This followed, the court believed, from the
section's requirement that each class bear "only that portion of all other
costs reasonably assignable '" Ibid , quoting §3622(b)(3) (the Dis-
trict of Columbia Circuit's emphasis deleted) But §3622(b){3) does not
provide that only a portion of all other costs is to be assigned It says,
instead, that through the process of assignment each class of service will
receive its reasonable portion of all other costs
824 OCTOBER TERM, 1982
Opinion of the Court 452 u g
it would be unfair to require the users of one class of service
to pay for expenditures demonstrably related to another
class See Kappel Commission, Towards Postal Excellence
The Report of the President's Commission on Postal Orga
nization 130 (1968) (Kappel Commission Report) But, on
the basis of detailed studies of the Post Office, the report con
eluded that "[a] large segment of postal costs does not
result from handling a particular class of mail but is the cost
of maintaining the postal system itself " Id , at 30 The
Kappel Commission proposed a two-tier ratemakmg process,
very similar to the Rate Commission's approach,18 to allocate
among the classes of mail these two groups of costs
The House version of §3622(b)(3) closely followed the
Kappel Commission's proposal, see House Report, at 6, di-
recting the establishment of rates "so that at least those costs
demonstrably related to the class of service in question will
be borne by each such class and not by other classes of users
of postal services or by the mails generally " H R 17070,
91st Cong , 2d Sess , § 1201(c) (1970) Although the House
bill did not address the criteria that would govern distribu-
tion of the remaining costs among the various classes of mail,
there was no suggestion of a second, more attenuated, causa-
tion-based tier as required by the District of Columbia
Circuit
The Senate bill, although not expressly calling for a rate
floor for each class, required the Rate Commission to con
sider among other factors "operating costs, the amount of
overhead, and other institutional costs of the Postal Service
properly assignable to each class of mail " S 3842, 91st
Cong , 2d Sess , §3704(g)(3) (1970) The Senate bill's use of
the word "assignable," which the District of Columbia Circuit
believed mandated a causation-based "assignment" tier, see
NAGCP /, 186 U S App D C , at 347, n 59, 569 F 2d, at
18 First, rates for each class of mail "would cover the costs demonstrably
related to that class of service " Second, "[r]emammg institutional costs"
would be apportioned to the various classes on the basis of market factors,
not causation Kappel Commission Report, at 61-62, see id , at 130-132
NATIONAL ASSN OF GREETING CARD PUBS v USPS 825
810 Opinion of the Court
586, n 59, does not undercut the reasonableness of the Rate
Commission's construction There is no suggestion either in
this language or elsewhere in the legislative history that the
Senate envisioned a three-tier approach In fact, the Senate
Report accompanying the bill suggested a two-tier approach,
allocating some costs on cost-of-service principles, and allo-
cating other costs through consideration of the overall value
of the service provided and other factors See Senate Re-
port, at 11
As discussed above, the language of the compromise bill
enacted into law is fully consistent with a two-tier structure,
and there is no legislative history to the contrary We con-
clude that the Rate Commission's two-tier approach is a rea-
sonable construction of § 3622(b)(3) 19
We now turn to the nature of the first tier, the statutory
requirement of attribution
A
The Court has observed "Allocation of costs is not a
matter for the slide-rule It involves judgment on a myriad
of facts It has no claim to an exact science " Colorado In-
terstate Co v FPC, 324 U S 581, 589 (1945) Generally,
19 Petitioner National Association of Greeting Card Pubhshers and inter-
venor Direct Mail/Marketing Association question the legality of assign-
ing— or attributing — Service Related Costs We do not rule on this issue
The Rate Commission developed the concept of Service Related Costs only
to conform to the District of Columbia Circuit's erroneous view that "as-
signment" is an intermediate tier requiring attenuated inferences of causa-
tion <rWhen an administrative agency has made an error of law, the duty
of the Court is to 'correct the error , and after doing so to remand the
case to the [agency] so as to afford it the opportunity of examining the evi-
dence and finding the facts as required by law '" NLRB v Pipefitters,
429 U S 507, 522, n 9 (1977), quoting ICC v Clyde SS Co , 181 U S
29, 32-33 (1901) The Rate Commission also should assess the impact on
the Service Related Costs concept of Congress* recent prohibition of any
deviation from the present 6-day delivery schedule See Omnibus Budget
Reconciliation Act of 1981, § 1722, 95 Stat 759
826 OCTOBER TERM, 1982
Opinion of the Court 462 u S
the legislature leaves to the ratesettmg agency the choice
of methods by which to perform this allocation, see, e g ,
American Commercial Lines, Inc v Louisville & N R Co'
392 U S 571, 590-593 (1968), Colorado Interstate Co , 324
U S , at 589, although if the statute provides a formula, the
agency is bound to follow it Ibid
We agree with the Rate Commission's consistent position
that Congress did not dictate a specific method for identify-
ing causal relationships between costs and classes of mail, but
that the Act "envisions consideration of all appropriate cost
ing approaches " PRC Op R71-1, p 46, see PEG Op
R74-1, pp 92, 127, PRC Op R80-1, pp 129-133 The Rate
Commission has held that, regardless of method, the Act re-
quires the establishment of a sufficient causal nexus before
costs may be attributed The Rate Commission has vari-
ously described that requirement as demanding a "reliable
principle of causality/' PRC Op R74-1, p 94, or "reasonable
confidence" that costs are the consequence of providing a par-
ticular service, PRC Op 77-1, p 84, or a "reasoned analysis
of cost causation " PRC Op R80-1, p 131 Accordingly,
despite the District of Columbia Circuit's interpretation, the
Rate Commission has refused to use general "accounting
principles" based on distribution keys without an established
causal basis But the Rate Commission has gone beyond
short-terrn costs in each rate proceeding since the first *
B
Section 3622(b)(3) requires that all "attributable costs" be
borne by the responsible class In determining what costs
are "attributable," the Rate Commission is directed to look
20 In the first ratemaking proceeding, the Rate Commission used short
run variable costs "because that approach [was] the only viable costing
presentation before us " PRC Op K71-1, p 56 It stated that "long run
incremental costing (for example) 'remains theoretical and is unproven' on
this record " Id , at 56-57 Once long-run costing became feasible, the
Rate Commission adopted it
NATIONAL ASSN OF GREETING CARD PUBS v USPS 827
810 Opinion of the Court
to all costs of the Postal Service, both "direct" and "indi-
rect "21 In selecting the phrase "attributable costs," Con-
gress avoided the use of any term of art in law or accounting
In the normal sense of the word, an "attributable" cost is a
cost that may be considered to result from providing a par-
ticular class of service On its face, there is no reason to
suppose that §3622(b)(3) denies to the expert ratesetting
agency, exercising its reasonable judgment, the authority to
decide which methods sufficiently identify the requisite
causal connection between particular services and particular
costs
The legislative history supports the Rate Commission's
view that when causal analysis is limited by insufficient data,
the statute envisions that the Rate Commission will "press
for better data," rather than "construct an 'attribution' "
based on unsupported inferences of causation PRC Op
R74-1, pp 110-111 Before passage of the Act, Congress
had set rates based on the Post Office's ungainly "Cost As-
certainment System," which allocated — on the basis of "dis-
tribution keys" hke those advocated by the District of Colum-
bia Circuit — all postal expenses to one or another class of
mail ** The Kappel Commission determined that this ap-
proach was "arbitrary [and] uninformative " Kappel Com-
mission Report, at 30, see id , at 131 Many costs are insti-
tutional, and the inferences of causation supporting the Post
21 The study of postal ratesetting on which the Kappel Commission based
its recommendations defined direct costs as "[t]hose elements of cost which
can be unequivocally related to a particular product or output," and mdi
rect costs as "[t]hose elements of cost which cannot unequivocally be asso-
ciated with a particular output or product " Foster Associates, Inc ,
Rates and Rate-making A Report to the President's Commission on Postal
Organization, App A, pp m, iv, reprinted m Kappel Commission Report
Annex (1968) (Foster Associates Study)
22 See generally id , at 1-8 to 1-11, 2-8 to 2-12, 4-8 to 4-24, id , at App
B, Report on Post Office Department Relating to Survey of Postal Rates
Structure, Letter from Postmaster General Transmitting a Report on his
Survey of Postal Rates, H R Doc No 91-97(1969)
828 OCTOBER TERM, 1982
Opinion of the Court 462 u g
Office's allocation of costs to the different classes were simply
unsupported by the data Id , at 29-31, 132-135 In pro-
posing the two-tier approach, therefore, the Kappel Commis-
sion stated that each class of service would recover all costs
"demonstrably related" to it m order to avoid the inequity of
users of one class subsidizing users of another class, however,
the "[r]emammg institutional costs would not be apportioned
to the several classes of mail by rigid accounting formulas "
Id , at 61-62
The House bill tracked these recommendations, see gener-
ally House Report, at 6, and adopted a rate floor consisting of
"demonstrably related" costs, H R 17070, 91st Cong , 2d
Sess , § 1201(c) (1970), which it described as "identifiable
costs " House Report, at 10 ** The Senate bill did not ex-
plicitly include a causally based rate floor See 116 Cong
Rec 22053 (1970) (remarks of Sen Fannin) But the Senate
plainly rejected the notion of binding ratesetters to "account-
ing principles" akin to those used in the Cost Ascertainment
System The Senate Report stated that "no particular cost
accounting system is recommended and no particular classifi-
cation of mail is required to recover a designated portion of
its cost beyond its incremental cost " Senate Report, at 17
The conference bill enacted into law incorporated the rate
floor contained in the House version, but replaced the phrase
"demonstrably related" costs with "attributable" costs De-
bate on the ratemaking aspects of the conference bill was
28 The House was aware of the deficiencies of the Cost Ascertainment
System since it had held hearings on the subject See Hearings on Post
Office Cost Ascertainment System before the Subcommittee on Postal
Rates of the House Committee on Post Office and Civil Service, 91st
Cong 1st Sess , 72 (1969) (testimony of James W Hargrove, Assistant
Postmaster General) The following year, the Subcommittee, through its
Chairman, expressed its approval of the Post Office's recent decision "to
abolish the cost ascertainment system and supply postal figures based on
demonstrably related costs " Hearings on Postal Rates and Revenue and
Cost Analysis before the Subcommittee on Postal Rates of the House Com
mittee on Post Office and Civil Service, 91st Cong , 2d Sess , 1 (1970) (re
marks of Rep Olsen)
NATIONAL ASSN OF GREETING CARD PUBS v USPS 829
810 Opinion of the Court
sparse On the floor of the House, one conferee defined
"attributable" costs as "capable of objective determination
and proof either by empirical observation or deductive analy-
sis " 116 Cong Rec 27606 (1970) (remarks of Rep Udall)
On the Senate floor, the Act's sponsor explained that attrib-
utable costs were "actual postal costs " Id , at 26954 (re-
marks of Sen McGee) Neither explanation suggests that
the conference bill resurrected accounting principles like
those used in the discredited Cost Ascertainment System
The Rate Commission, therefore, acted consistently with the
statutory mandate and Congress' policy objectives in refus-
ing to use distribution keys or other accounting principles
lacking an established causal basis M
C
The Postal Service contends that Congress intended long-
term and short-term variable costs to be attributed, but that
24 Petitioner United Parcel Service argues that extended use of cost-of-
service principles is necessary to avoid subsidization of those classes of mail
for which the Postal Service has competition, such as parcel post, by other
classes of mail for which the Postal Service enjoys a statutory monopoly,
such as first class Brief for Petitioner United Parcel Service of America,
Inc , 39-42 Congress' concern about such cross-subsidies, of course, was
one motive for including the rate floor established in §3d22(b)(3) But
Congress adopted the Kappel Commission's conclusion that, unless a reli-
able connection is established between a class of service and a cost, alloca-
tion of costs on cost-of-service principles is entirely arbitrary Beyond re-
quiring the attribution of all costs for which a reliable connection can be
established, Congress intended to prevent undue imposition on users of
monopolized classes, and to prevent unfair competition, in two ways
First, by making the Rate Commission independent of operating manage-
ment, Congress meant to minimize the temptation to solve fiscal problems
by concentrating rate increases on first-class mail, which is by far the
major source of postal revenue Senate Report, at 13 Second, § 3622(b)
requires the Rate Commission to consider, in "assigning" costs remaining
above the rate floor, "the effect of rate increases upon the general public
and enterprises in the private sector of the economy engaged in the
delivery of mail matter other than letters," § 3622(b)<4), and "the available
alternative means of sending and receiving letters and other mail matter at
reasonable costs," § 3622(b)(5)
830 OCTOBER TERM, 1982
Opinion of the Court 462 u S
Congress did not direct attribution of costs, apart from fixed
costs incurred by a particular class, that do not vary directly
or indirectly with volume We agree that, because the Rate
Commission has decided that these methods reliably indicate
causal connections between classes of mail and postal rates,
the Act requires that they be employed But the Act's lan-
guage and legislative history support the Rate Commission's
position that Congress did not intend to bar the use of any
reliable method of attributing costs See PRC Op R7H,
pp 42-46
The record before Congress in 1970 indicated that identify
ing which classes cause specific costs was a "most difficult"
task, Foster Associates Study, at 1-5, and that a long-run
variable cost approach was "the best available measure" of
cost causation Id , at 1—6 The Kappel Commission conse
quently recommended that each class bear, "as a minimum,"
all "demonstrably related" capital and operating costs — "[i]n
economic terms the long-run variable costs ascribable to
it " Kappel Commission Report, at 131 25 Although the
House bill adopted the Kappel Commission's requirement
that each class bear its "demonstrably related costs," we do
not believe that in so doing it intended to limit attribution to
the long-run variable approach The Kappel Commission did
not emphasize technical matters, focusing instead on the need
for nonarbitrary demonstrations of causation M Postmaster
26 The study underlying the Kappel Commission Report rejected a short
term approach as likely to generate widely fluctuating rates Foster As
sociates Study, at 1-5 to 1-6 It recommended measuring variability not
just with respect to units of output, but with respect to other variables as
well, such as the capacity necessary to produce that output Id , at 3-33
to 3-34
28 The Kappel Commission explained the rate floor in these terms
"[T]o avoid undue discrimination every class of service should, as a mini
mum, pay for all of those costs which it alone causes Thus each
class of mail should pay for those added costs of processing and delivery
which it causes the Post Office to incur It makes no difference whether
these costs are capital costs or operating costs, nor should the inquiry be
confined to what costs the class has generated historically, but should ex
NATIONAL ASSN OF GREETING CARD PUBS v USES 831
810 Opinion of the Court
General Blount informed the House that the phrase "de-
monstrably related costs" was employed to avoid the confu-
sion generated by the use of terms of art such as "marginal"
or "incremental" costs "Demonstrably related costs," he
explained, "are those costs which can be traced directly to
the class of service in question [W]e believe that the
legislative history has made amply clear what the term
means, without shackling future generations to any particu-
lar economic theory " Hearings on Post Office Reorganiza-
tion before the House Committee on Post Office and Civil
Service, 91st Cong , 1st Sess , 1273 (1969) (Post Office Re-
sponse to Memoranda Submitted by J Edward Day)
The House Report did not mention any particular costing
technique In defining the rate floor established by the
House bill, it explained only that each class would be re-
quired to bear "at least its own identifiable costs " House
Report, at 10 Given the House Report's repeated state-
ments that Members of Congress are ill-equipped to deal
with the highly technical economic, accounting, and engineer-
ing questions lying at the heart of the ratemaking process, it
is implausible to suppose that the House intended to pre-
scribe for the experts appointed to resolve this problem a for-
mula for identifying causal relationships It is also unlikely
that the House intended to limit the Postal Service forever to
accounting methods current at the time the bill was enacted OT
tend to include what costs it will cause in the foreseeable future " Kappel
Commission Report, at 131 (emphasis in original), see id , at 61-62
27 At one point, the Senate Report states, without elaboration, that "no
particular cost accounting system is recommended and no particular classi-
fication of mail is required to recover a designated portion of its cost be-
yond its incremental cost " Senate Report, at 17 Arguably, this state-
ment suggests, as a minimum, the use of some form of variability analysis
As the Foster Associates Study explained, incremental costs" may mean
short-run costs, excluding overhead, or may mean long-run costs, including
capacity costs and other overhead Foster Associates Study, App A, at
iv, and n 1 Whatever the Senate Report meant by "incremental costs,"
the quoted passage itself leaves open the possibility that the Rate Commis-
sion may find that other "accounting methods" are appropriate Like the
832 OCTOBER TERM, 1982
Opinion of the Court 462 u S
The Conference Committee abandoned the phrase "de-
monstrably related costs" m favor of "attributable" costs, a
phrase that connotes the use of judgment and has no tech-
nical meaning or significant antecedent legislative history
It also retained the House bill's explicit requirement of a rate
floor In so doing, the conferees ensured that identification
of causal relationships would not be limited to those methods
discussed in the Kappel Commission Report, but would en-
compass all postal costs, whether "direct or indirect," that
the experts, on whatever reasoned basis, found to be attrib-
utable to a particular class of mail
D
The Second Circuit found controlling the definition of
"attributable" costs contained in the Statement of the Manag
ers on the Part of the House, appended to the Conference Re
port on the Act, H R Conf Rep No 91-1363, pp 79-90
(1970) Newsweek, Inc v USPS, 663 F 2d, at 1199-1200 »
The House Managers stated that the conference substitute
established a rate floor for each class of mail "equal to costs
that vary over the short term in response to changes in
House, the Senate believed that Congress should be taken out of the
ratemaking process and the task put m the hands of an "expert cominis
sion," which would allocate costs "on a scientific or quasi-scientific basis "
Senate Report, at 11 The bill initially passed by the Senate spoke of as
signing any type of postal cost, including overhead costs, wherever proper
S 3842, 91st Cong , 2d Sess , § 3704(g)(3) (1970)
28 The Second Circuit apparently believed that the Managers' Statement
was the Report of the entire Conference Committee 663 F 2d, at 1200
Were this the case, its definition would be due great weight The Confer
ence Report, however, contained only the text of the Act There is no dis
pute that the House Managers' Statement became available only after the
Senate had completed its consideration of the Conference Report See
PRC Op R80-1, App B, p 11 Thus, while certainly significant, this
statement does not have the status of a conference report, or even a report
of a single House available to both Houses See Vaughn v Rosen, 173
U S App D C 187, 193, 523 F 2d 1136, 1142 (1975), K Davis, Adimms
trative Law Treatise § 3A 31, p 175 (1970 Supp )
NATIONAL ASSN OF GREETING CARD PUBS v USPS 833
810 Opinion of the Court
volume of a particular class or, even though fixed rather than
variable, are the consequence of providing the specific serv-
ice involved " H R Conf Rep No 91-1363, at 87 (empha-
sis supplied) The Rate Commission specifically addressed
and rejected this argument when it was advanced by the
Postal Service in the first two ratemakmg proceedings, see
PRC Op R74-1, pp 101-102, 126-127, PRO Op R71-1,
pp 42-46, and even the Postal Service since has abandoned
it The statute's plain language and prior legislative history,
discussed above, indicate that Congress' broad policy was to
mandate a rate floor consisting of all costs that could be iden-
tified, in the view of the expert Rate Commission, as causally
linked to a class of postal service We cannot say that the
House Managers' Statement alone demonstrates that the
Rate Commission's view is "inconsistent with the statutory
mandate or frustrate^] the policy that Congress sought
to implement " FEC v Democratic Senatorial Campaign
Committee, 454 U S , at 32
VI
We hold that the Rate Commission has reasonably con-
strued the Act as establishing a two-tier ratesettmg struc-
ture First, all costs that in the judgment of the Rate Com-
mission are the consequence of providing a particular class of
service must be borne by that class The statute requires
attribution of any cost for which the source can be identified,
but leaves it to the Commissioners, in the first instance, to
decide which methods provide reasonable assurance that
costs are the result of providing one class of service
For this function to be performed, the Postal Service must
seek to improve the data on which causal relationships may
be identified29 as the Rate Commission remains open to the
29 The Rate Commission constantly has stressed the importance to its
ratesettmg function of receiving more comprehensive and more detailed
data from the Postal Service See PRC Op R80-1, pp 107, 111-112,
209-211, PRC Op R77-1, pp 85-87, PRC Op R76-1, pp 83-87, and App
834 OCTOBER TERM, 1982
Opinion of the Court 462 u g
use of any method that reliably identifies causal relation-
ships In our view, the Rate Commission conscientiously
has attempted to find causal connections between classes
of service and all postal costs — both operating costs and
"overhead" or "capacity" costs — where the data are suffi-
cient PRO Op R74-1, pp 126-127, see PRO Op R80-1,
pp 129-131 The Rate Commission is to assign remaining
costs reasonably on the basis of the other eight factors set
forth by §3622(b)
Inasmuch as the rates at issue were established according
to the District of Columbia Circuit's erroneous view of the
Act, we agree with the Second Circuit that this matter must
be remanded to the agencies While we do not agree with all
that the Second Circuit said in its opinion, we affirm its judg
ment in remanding the cases The remand will be for fur-
ther proceedings consistent with this opinion
It is so ordered
E, PRO Op R74-1, pp 110-111, 123-127, PRC Op R71-1, pp 48-57
The importance of a detailed data base was emphasized in the Foster Asso-
ciates Study, at 5-21, and in the Kappel Commission Report, at 62 The
Senate Report recognized that achievement of the Act's ambitious goals
would depend on cooperation between the two agencies Senate Report, at
13 The Postal Service, which "alone takes in the full scope of Postal Serv
ice operations [and] alone is in a position to influence the Postal Serv
ice's day-to day accounting procedures and record keeping/' Association of
American Publishers, Inc v Governors of United States Postal Service,
157 U S App D C 397, 408, 485 F 2d 768, 779 (1973) (concurring opin-
ion), must constantly seek to aid the Commission in fulfilling § 3622(b)'s re-
quirement that all costs capable of being considered the result of providing
a particular class of service are identified, and borne by that class
BROWN v THOMSON 335
Syllabus
BROWN ET AL v THOMSON, SECRETARY OF STATE
OF WYOMING, ET AL
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF WYOMING
No 82-65 Argued March 21, 1983— Decided June 22, 1983
The Wyoming Legislature consists of a Senate and a House of Represent-
atives The State Constitution provides that each of the State's 23
counties shall constitute a senatorial and representative district and shall
have at least one senator and one representative, and requires the sena-
tors and representatives to be apportioned among the counties "as
nearly as may be according to the number of their inhabitants " A 1981
Wyoming statute reapportioned the House of Representatives and pro-
vided for 64 representatives Based on the 1980 census placing Wyo-
ming's population at 469,557, the ideal apportionment would have been
7,337 persons per representative But the reapportionment resulted in
an average deviation from population equality of 16% and a maximum
deviation of 89% Niobrara County, the State's least populous county,
was given one representative, even though its population was only 2,924,
the legislature having provided that a county would have a represent
ative even if the statutory formula rounded the county's population to
zero The legislature also provided that if Niobrara County's represen-
tation were held unconstitutional, it would be combined with a neighbor
mg county in a single district so that the House would consist of 63 repre-
sentatives Appellants (members of the League of Women Voters and
residents of seven counties m which the population per representative is
greater than the state average) filed an action in Federal District Court,
alleging that granting Niobrara County a representative diluted the
voting privileges of appellants and other voters similarly situated in
violation of the Fourteenth Amendment, and seeking declaratory and
injunctive relief The District Court upheld the constitutionality of
the reapportionment statute
Held Wyoming has not violated the Equal Protection Clause of the Four-
teenth Amendment by permitting Niobrara County to have its own
representative Pp 842-848
(a) Some deviations from population equality may be necessary to
permit the States to pursue other legitimate objectives such as ''maintain-
[ing] the integrity of various political subdivisions" and "provid[ing] for
compact districts of contiguous territory " Reynolds v Sims, 377 U S
533, 578 But an apportionment plan with population disparities larger
836 OCTOBER TERM, 1982
Syllabus 462 y g
than 10% creates a prima facie case of discrimination and therefore must
be justified by the State, the ultimate inquiry being whether the plan
may reasonably be said to advance a rational state policy and, if so
whether the population disparities resulting from the plan exceed con'
stitutional limits Pp 842-843
(b) This case presents an unusually strong example of an apportion
ment plan the population variations of which are entirely the result of the
consistent and nondiscrimmatory application of a legitimate state policy
Wyoming, since statehood, has followed a constitutional policy of using
counties as representative districts and ensuring that each county has
one representative Moreover, Wyoming has applied the factor of pre
serving political subdivisions free from any taint of arbitrariness or dis
crimination Pp 843-846
(c) Wyoming's policy of preserving county boundaries justifies the ad
ditional deviations from population equality resulting from the provision
of representation for Niobrara County Considerable population varia
tions would remain even if Niobrara County's representative were elinii
nated Under the 63-member plan, the average deviation per repre-
sentative would be 13% and the maximum deviation would be 66%
These statistics make it clear that the grant of a representative to
Niobrara County is not a significant cause of the population deviations in
Wyoming Moreover, the differences between the two plans are justi
fied on the basis of the above policy of preserving county boundaries
By enacting the 64-member plan, the State ensured that this policy ap-
plies nondiscrimmatorily, whereas the effect of the 63-member plan
would be to deprive Niobrara County voters of their own representative
Pp 846-848
536 F Supp 780, affirmed
POWELL, J , delivered the opinion of the Court, in which BURGER, C J ,
and REHNQUIST, STEVENS, and O'CONNOR, JJ , joined O'CONNOR, J ,
filed a concurring opinion, in which STEVENS, J , joined, post, p 848
BRENNAN, J , filed a dissenting opinion, in which WHITE, MARSHALL, and
BLACKMUN, JJ , joined, post, p 850
Sue Davidson argued the cause and filed a brief for
appellants
Randall T Cox, Assistant Attorney General of Wyoming,
argued the cause pro hac vice for appellees Thyra Thomson
et al With him on the brief were A G McClintock, Attor
ney General, and Peter J Mulvaney, Deputy Attorney Gen
eral Richard Barrett filed a brief for appellees James L
Thomson et al
BROWN v THOMSON 837
835 Opinion of the Court
JUSTICE POWELL delivered the opinion of the Court
The issue is whether the State of Wyoming violated the
Equal Protection Clause by allocating one of the 64 seats in
its House of Representatives to a county the population of
which is considerably lower than the average population per
state representative
I
Since Wyoming became a State in 1890, its legislature has
consisted of a Senate and a House of Representatives The
State's Constitution provides that each of the State's counties
"shall constitute a senatorial and representative district" and
that "[e]ach county shall have at least one senator and one
representative " The senators and representatives are re-
quired to be "apportioned among the said counties as nearly
as may be according to the number of their inhabitants "
Wyo Const , Art 3, § 3 l The State has had 23 counties
since 1922 Because the apportionment of the Wyoming
House has been challenged three times in the past 20 years,
some background is helpful
In 1963 voters from the six most populous counties filed
suit in the District Court for the District of Wyoming chal-
lenging the apportionment of the State's 25 senators and 61
representatives The three-judge District Court held that
the apportionment of the Senate — one senator allocated to
each of the State's 23 counties, with the two largest counties
having two senators — so far departed from the principle of
population equality that it was unconstitutional Schaefer v
Thomson, 240 F Supp 247, 251-252 (Wyo 1964), supple-
1 Article 3, § 3, of the Wyoming Constitution provides in relevant part
"Each county shall constitute a senatorial and representative district, the
senate and house of representatives shall be composed of members elected
by the legal voters of the counties respectively, every two (2) years They
shall be apportioned among the said counties as nearly as may be according
to the number of their inhabitants Each county shall have at least one
senator and one representative, but at no time shall the number of mem-
bers of the house of representatives be less than twice nor greater than
three times the number of members of the senate "
838 OCTOBER TERM, 1982
Opinion of the Court 452 u g
mented, 251 F Supp 450 (1965), aff'd sub nom Harrison v
Schaefer, 383 U S 269 (1966) 2 But the court upheld the
apportionment of the State House of Representatives The
State's constitutional requirement that each county shall
have at least one representative had produced deviations
from population equality the average deviation from the
ideal number of residents per representative was 16%, while
the maximum percentage deviation between largest and
smallest number of residents per representative was 90%
See 1 App Exhibits 16 The District Court held that these
population disparities were justifiable as "the result of an
honest attempt, based on legitimate considerations, to effec-
tuate a rational and practical policy for the house of repre
sentatives under conditions as they exist in Wyoming " 240
F Supp , at 251
The 1971 reapportionment of the House was similar to that
in 1963, with an average deviation of 15% and a maximum de-
viation of 86% 1 App Exhibits 18 Another constitutional
challenge was brought in the District Court The three
judge court again upheld the apportionment of the House, ob-
serving that only "five minimal adjustments" had been made
since 1963, with three districts gaming a representative and
two districts losing a representative because of population
shifts Thompson v Thomson, 344 F Supp 1378, 1380
(Wyo 1972)
The present case is a challenge to Wyoming's 1981 statute
reapportiomng its House of Representatives in accordance
with the requirements of Art 3, § 3, of the State Constitu
tion Wyo Stat § 28-2-109 (Supp 1983) 3 The 1980 census
2 An example of the disparity in population was that Laramie County, the
most populous county in the State, had two senators for its 60,149 people,
whereas Teton County, the least populous county in the State, had one sen-
ator for its 3,062 people See Schaefer v Thomson, 240 F Supp , at 250,
n 3
3 Wyoming Stat §28-2-109 (Supp 1982) provides in relevant part
"(a) The ratios for the apportionment of senators and representatives are
fixed as follows
BROWNE THOMSON 339
835 Opinion of the Court
placed Wyoming's population at 469,557 The statute pro-
vided for 64 representatives, meaning that the ideal appor-
tionment would be 7,337 persons per representative Each
county was given one representative, including the six coun-
ties the population of which fell below 7,337 The deviations
from population equality were similar to those in prior dec-
ades, with an average deviation of 16% and a maximum devi-
ation of 89% See 1 App Exhibits 19-20
The issue in this case concerns only Niobrara County, the
State's least populous county Its population of 2,924 is less
than half of the ideal district of 7,337 Accordingly, the gen-
eral statutory formula would have dictated that its population
for purposes of representation be rounded down to zero
See §28-2-109(a)(u) This would have deprived Niobrara
County of its own representative for the first time since it be-
came a county in 1913 The state legislature found, how-
ever, that "the opportunity for oppression of the people of
this state or any of them is greater if any county is deprived a
representative in the legislature than if each is guaranteed at
least one (1) representative "4 It therefore followed the
"(u) The ratio for the apportionment of the representatives is the small-
est number of people per representative which when divided into the popu-
lation in each representative district as shown by the official results of the
1980 federal decennial census with fractions rounded to the nearest whole
number results in a house with sixty-three (63) representatives,
"(ui) If the number of representatives for any county is rounded to zero
(0) under the formula in paragraph (a)(u) of this section, that county shall
be given one (1) representative which is in addition to the sixty-three (63)
representatives provided by paragraph (a)(u) of this section,
"(iv) If the provisions of paragraph (a)(iu) of this section are found to be
unconstitutional or have an unconstitutional result, then Niobrara county
shall be joined to Goshen county in a single representative district and the
house of representatives shall be apportioned as provided by paragraph
(a)(u) of this section "
4 The legislature made the following findings
"It is hereby declared the policy of this state is to preserve the integrity
of county boundaries as election districts for the house of representatives
The legislature has considered the present population, needs, and other
840 OCTOBER TERM, 1982
Opinion of the Court 462 U S
State Constitution's requirement and expressly provided
that a county would receive a representative even if the stat-
utory formula rounded the county's population to zero
§ 28-2-109(a)(iu) Niobrara County thus was given one seat
in a 64-seat House The legislature also provided that if this
representation for Niobrara County were held unconstitu-
tional, it would be combined with a neighboring county m a
single representative district The House then would con-
sist of 63 representatives § 28-2-1 09(a)(iv)
Appellants, members of the state League of Women Vot-
ers and residents of seven counties in which the population
per representative is greater than the state average, filed
this lawsuit in the District Court for the District of Wyoming
They alleged that "[b]y granting Niobrara County a repre-
sentative to which it is not statutonly entitled, the voting
privileges of Plaintiffs and other citizens and electors of Wyo-
ming similarly situated have been improperly and illegally di-
luted in violation of the 14th Amendment " App 3-4
They sought declaratory and injunctive relief that would pre-
vent the State from giving a separate representative to Nio-
characteristics of each county The legislature finds that the needs of each
county are unique and the interests of each county must be guaranteed a
voice m the legislature The legislature therefore, will utilize the provi
sions of article 3, section 3, of the Wyoming constitution as the determining
standard m the reapportionment of the Wyoming house of representatives
which guarantees each county at least one (1) representative The legisla
ture finds that the opportunity for oppression of the people of this state or
any of them is greater if any county is deprived a representative in the leg
islature than if each is guaranteed at least one (1) representative The leg
islature finds that the dilution of the power of counties which join together
in making these declarations is trivial when weighed against the need to
maintain the integrity of county boundaries The legislature also finds
that it is not practical or necessary to increase the size of the legislature
beyond the provisions of this act in order to meet its obligations to appor
tion in accordance with constitutional requirements consistent with this
declaration " 1981 Wyo Sess Laws, ch 76, § 3
BROWN v THOMSON 841
835 Opinion of the Court
brara County, thus implementing the alternative plan calling
for 63 representatives
The three-judge District Court upheld the constitutionality
of the statute 536 F Supp 780 (1982) The court noted
that the narrow issue presented was the alleged discrimina-
tory effect of a single county's representative, and concluded,
citing expert testimony, that "the 'dilution* of the plaintiffs'
votes is de mimmis when Niobrara County has its own repre-
sentative " Id , at 783 The court also found that Wyo-
ming's policy of granting a representative to each county was
rational and, indeed, particularly well suited to the special
needs of Wyoming Id , at 784 5
We noted probable jurisdiction, 459 U S 819 (1982), and
now affirm
5 The District Court stated
"Wyoming as a state is unique among her sister states A small popula-
tion is encompassed by a large area Counties have always been a major
form of government in the State Each county has its own special eco-
nomic and social needs The needs of the people are different and distinc-
tive Given the fact that the representatives from the combined counties
of Niobrara and Goshen would probably come from the larger county, i e ,
Goshen, the interests of the people of Niobrara County would be virtually
unprotected
"The people within each county have many interests in common such as
public facilities, government administration, and work and personal prob-
lems Under the facts of this action, to deny these people their own repre-
sentative borders on abridging their right to be represented in the deter-
mination of their futures
"In Wyoming, the counties are the primary administrative agencies of
the State government It has historically been the policy of the State that
counties remain in this position
"The taxing powers of counties are limited by the Constitution and some
State statutes Supplemental monies are distributed to the counties in ac-
cordance with appropriations designated by the State Legislature It
comes as no surprise that the financial requirements of each county are dif-
ferent Without representation of their own in the State House of Repre-
sentatives, the people of Niobrara County could well be forgotten " 536
F Supp , at 784
842 OCTOBER TERM, 1982
Opinion of the Court 4^2 u g
II
A
In Reynolds v Sims, 377 U S 533, 568 (1964), the Court
held that "the Equal Protection Clause requires that the
seats in both houses of a bicameral state legislature must be
apportioned on a population basis " This holding requires
only "that a State make an honest and good faith effort to
construct districts as nearly of equal population as is
practicable," for "it is a practical impossibility to arrange leg
islative districts so that each one has an identical number of
residents, or citizens, or voters " Id , at 577 See Gaffney
v Cummings, 412 U S 735, 745-748 (1973) (describing van
ous difficulties in measurement of population)
We have recognized that some deviations from population
equality may be necessary to permit the States to pursue
other legitimate objectives such as "maintaining] the mteg
rity of various political subdivisions" and "providing] for
compact districts of contiguous territory " Reynolds,
supra, at 578 As the Court stated in Gaffney, "[a]n unre
alistic overemphasis on raw population figures, a mere nose
count in the districts, may submerge these other consider
ations and itself furnish a ready tool for ignoring factors that
in day-to-day operation are important to an acceptable repre-
sentation and apportionment arrangement " 412 U S , at
749
In view of these considerations, we have held that "minor
deviations from mathematical equality among state legisla-
tive districts are insufficient to make out a prima facie case
of invidious discrimination under the Fourteenth Amend
ment so as to require justification by the State " Id , at 745
Our decisions have established, as a general matter, that an
apportionment plan with a maximum population deviation
under 10% falls within this category of minor deviations
See, e g , Connor v Finch, 431 U S 407, 418 (1977), White
v Regester, 412 U S 755, 764 (1973) A plan with larger
BROWN v THOMSON 848
835 Opinion of the Court
disparities in population, however, creates a prima facie case
of discrimination and therefore must be justified by the
State See Swann v Adams, 385 U S 440, 444 (1967) ("De
mimmis deviations are unavoidable, but variations of 30%
among senate districts and 40% among house districts can
hardly be deemed de mimmis and none of our cases suggests
that differences of this magnitude will be approved without a
satisfactory explanation grounded on acceptable state pol-
icy") The ultimate inquiry, therefore, is whether the legis-
lature's plan "may reasonably be said to advance [a] rational
state policy" and, if so, "whether the population disparities
among the districts that have resulted from the pursuit of
this plan exceed constitutional limits " Mohan v Howell,
410 U S 315, 328 (1973)
B
In this case there is no question that Niobrara County's de-
viation from population equality — 60% below the mean — is
more than minor There also can be no question that Wyo-
ming's constitutional policy — followed since statehood — of us-
ing counties as representative districts and ensuring that
each county has one representative is supported by substan-
tial and legitimate state concerns In Abate v Mundt, 403
U S 182, 185 (1971), the Court held that "a desire to pre-
serve the integrity of political subdivisions may justify an
apportionment plan which departs from numerical equality "
See Mahan v Howell, supra, at 329 Indeed, the Court in
Reynolds v Sims, supra, singled out preservation of political
subdivisions as a clearly legitimate policy See 377 U S , at
580-581
Moreover, it is undisputed that Wyoming has applied this
factor in a manner "free from any taint of arbitrariness or dis-
crimination " Roman v Smcock, 377 U S 695, 710 (1964)
The State's policy of preserving county boundaries is based
on the State Constitution, has been followed for decades, and
has been applied consistently throughout the State As the
844 OCTOBER TERM, 1982
Opinion of the Court 462 U S
District Court found, this policy has particular force, given
the peculiar size and population of the State and the nature of
its governmental structure See n 5, supra, 536 F Supp ,
at 784 In addition, population equality is the sole other cri-
terion used, and the State's apportionment formula ensures
that population deviations are no greater than necessary to
preserve counties as representative districts See Mohan v
Howell, supra, at 326 (evidence is clear that the plan "'pro
duces the minimum deviation above and below the norm,
keeping intact political boundaries' ") Finally, there is no
evidence of "a built-m bias tending to favor particular politi-
cal interests or geographic areas " Abate v Mundt, supra,
at 187 As Judge Doyle stated below
"[T]here is not the slightest sign of any group of people
being discriminated against here There is no indication
that the larger cities or towns are being discriminated
against, on the contrary, Cheyenne, Laramie, Casper,
Sheridan, are not shown to have suffered in the slightest
degree There has been no preference for the
cattle-raising or agricultural areas as such " 536 F
Supp , at 788 (specially concurring)
In short, this case presents an unusually strong example of
an apportionment plan the population variations of which are
entirely the result of the consistent and nondiscrinnnatory
application of a legitimate state policy 6 This does not mean
6 In contrast, many of our prior decisions invalidating state apportion
ment plans were based on the lack of proof that deviations from population
equality were the result of a good-faith application of legitimate districting
criteria See, e g , Chapman v Meier, 420 U S 1, 25 (1975) ("It is far
from apparent that North Dakota policy currently requires or favors strict
adherence to political lines Furthermore, a plan devised by [the Spe-
cial Master] demonstrates that the policy of maintaining township lines
[does not] preven[t] attaining a significantly lower population variance"),
Kilgarhn v Hill, 386 U S 120, 124 (1967) (per curiam) (District Court
did not "demonstrate why or how respect for the integrity of county lines
required the particular deviations" or "articulate any satisfactory grounds
for rejecting at least two other plans presented to the court, which re-
BROWNE THOMSON 845
335 Opinion of the Court
that population deviations of any magnitude necessarily are
acceptable Even a neutral and consistently applied crite-
rion such as use of counties as representative districts can
frustrate Reynolds' mandate of fair and effective represen-
tation if the population disparities are excessively high 7
"[A] State's policy urged in justification of disparity in dis-
trict population, however rational, cannot constitutionally be
permitted to emasculate the goal of substantial equality "
Mahan v Howell, supra, at 326 It remains true, however,
as the Court in Reynolds noted, that consideration must be
given "to the character as well as the degree of deviations
from a strict population basis " 377 U S , at 581 The con-
sistency of application and the neutrality of effect of the
spected county lines but which produced substantially smaller deviations"),
Swann v Adams, 385 U S 440, 445-446 (1967) (no evidence presented
that would justify the population disparities)
7 As the Reynolds Court explained
"Carried too far, a scheme of giving at least one seat in one house to each
political subdivision (for example, to each county) could easily result, in
many States, in a total subversion of the equal protection principle in that
legislative body This would be especially true in a State where the num-
ber of counties is large and many of them are sparsely populated, and the
number of seats in the legislative body being apportioned does not signifi-
cantly exceed the number of counties " 377 U S , at 581
See also Connor v Finch, 431 U S 407, 419 (1977) ("[T]he policy against
breaking county boundary lines is virtually impossible of accomplishment
in a State where population is unevenly distributed among 82 counties,
from which 52 Senators and 122 House members are to be elected")
This discussion in Reynolds is illustrated by the senatorial districts in
Wyoming that were invalidated in 1963 Each county in the State had one
senator, while the two largest counties had two Because county popula-
tion varied substantially, extremely large disparities in population per sen
ator resulted The six most populous counties, with approximately 65% of
the State's population, had eight senators, whereas the sax least populous
counties, with approximately 8% of the population, had six senators See
Schaefer v Thomson, 240 F Supp , at 251, n 5 The Wyoming House of
Representatives presents a different case because the number of repre-
sentatives is substantially larger than the number of counties
846 OCTOBER TERM, 1982
Opinion of the Court 462 U S
nonpopulation criteria must be considered along with the size
of the population disparities in determining whether a state
legislative apportionment plan contravenes the Equal Protec
tion Clause
C
Here we are not required to decide whether Wyoming's
nondiscrimmatory adherence to county boundaries justifies
the population deviations that exist throughout Wyoming's
representative districts Appellants deliberately have km
ited their challenge to the alleged dilution of their voting
power resulting from the one representative given to Nio
brara County 8 The issue therefore is not whether a 16% av
erage deviation and an 89% maximum deviation, considering
the state apportionment plan as a whole, are constitutionally
permissible Rather, the issue is whether Wyoming's policy
of preserving county boundaries justifies the additional devi
ations from population equality resulting from the provision
of representation to Niobrara County 9
8 Counsel for appellants, who represent the state League of Women Vot
ers, explained at oral argument "[A] referendum had been passed by the
League of Women Voters which authorized the attack of only that one par
tion of the reapportionment plan It was felt by the membership or by the
leadership of that group that no broader authority would ever be given be-
cause of the political ramifications and arguments that would be presented
by the membership in attacking or considering that broader author
ity" Tr ofOralArg 8
9 The dissent suggests that we are required to pass upon the constitution
ality of the apportionment of the entire Wyoming House of Represent
atives See post, at 857-859 (BRENNAN, J , dissenting) Although in
some prior cases challenging the apportionment of one legislative house the
Court has addressed the constitutionality of the other house's apportion-
ment as well, we never have held that a court is required to do so For
example, in Goffney v Cummings, 412 U S 735 (1973), we considered
only the apportionment of the Connecticut General Assembly, noting ex
pressly that the "Senate plan was not challenged in the District Court" and
that "[a]ppellees do not challenge the Senate districts on the ground of
their population deviations " Id , at 739, n 5 In this case, we see no
reason why appellants should not be bound by the choices they made when
filing this lawsuit
BROWN v THOMSON 847
335 Opinion of the Court
It scarcely can be denied that in terms of actual effect
on appellants' voting power, it matters little whether the
63-member or 64-member House is used The District Court
noted, for example, that the seven counties in which appel-
lants reside will elect 28 representatives under either plan
The only difference, therefore, is whether they elect 43 75%
of the legislature (28 of 64 members) or 44 44% of the legisla-
ture (28 of 63 members) 536 F Supp , at 783 10 The Dis-
trict Court aptly described this difference as "de minmus "
Ibid
We do not suggest that a State is free to create and allocate
an additional representative seat in any way it chooses sim-
ply because that additional seat will have little or no effect on
the remainder of the State's voters The allocation of a rep-
resentative to a particular political subdivision still may vio-
late the Equal Protection Clause if it greatly exceeds the
population variations existing m the rest of the State and if
the State provides no legitimate justifications for the creation
of that seat Here, however, considerable population varia-
tions will remain even if Niobrara County's representative is
eliminated Under the 63-member plan, the average devi-
ation per representative would be 13% and the maximum de-
viation would be 66% See 1 App Exhibits 22 These sta-
tistics make clear that the grant of a representative to
Niobrara County is not a significant cause of the population
deviations that exist in Wyoming
Moreover, we believe that the differences between the two
plans are justified on the basis of Wyoming's longstanding
and legitimate policy of preserving county boundaries See
supra, at 841, n 5, and 843-844 Particularly where there is
no "taint of arbitrariness or discrimination/' Roman v
Sincock, 377 U S , at 710, substantial deference is to be ac-
corded the political decisions of the people of a State acting
10 Similarly, appellees note that under the 64-member plan, 46 65% of the
State's voters theoretically could elect 51 56% of the representatives
Under the 63-member plan, 46 65% of the population could elect 50 79% of
the representatives See 1 App Exhibits 32-33
848 OCTOBER TERM, 1982
O'CONNOR, J , concurring 432 u S
through their elected representatives Here it is notewor-
thy that by enacting the 64-member plan the State ensured
that its policy of preserving county boundaries apphes
nondiscrimmatorily The effect of the 63-member plan
would be to deprive the voters of Niobrara County of their
own representative, even though the remainder of the House
of Representatives would be constituted so as to facilitate
representation of the interests of each county See 536 F
Supp , at 784, id , at 786 (Doyle, J , specially concurring)
In these circumstances, we are not persuaded that Wyoming
has violated the Fourteenth Amendment by permitting Nio-
brara County to have its own representative
The judgment of the District Court is
Affirmed
JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins,
concurring
By its decisions today in this case and in Karcher v
Daggett, ante, p 725, the Court upholds, in the former, the
allocation of one representative to a county in a state legisla
tive plan with an 89% maximum deviation from population
equality and strikes down, in the latter, a congressional re-
apportionment plan for the State of New Jersey where the
maximum deviation is 0 6984% As a Member of the major
ity in both cases, I feel compelled to explain the reasons for
my joinder in these apparently divergent decisions
In my view, the "one-person, one-vote" principle is the
guiding ideal in evaluating both congressional and legislative
redistrictmg schemes In both situations, however, ensur-
ing equal representation is not simply a matter of numbers
There must be flexibility in assessing the size of the deviation
against the importance, consistency, and neutrality of the
state policies alleged to require the population disparities
Both opinions recognize this need for flexibility in examin-
ing the asserted state policies 1 In Karcher, New Jersey
1 As the Court notes in this case "[Consideration must be given to the
character as well as the degree of deviations from a strict population
BROWN?; THOMSON 849
835 O'CONNOR, J , concurring
has not demonstrated that the population variances in con-
gressional districts were necessary to preserve minority vot-
ing strength — the only justification offered by the State
Ante, at 742-744 Here, by contrast, there can be no doubt
that the population deviation resulting from the provision of
one representative to Niobrara County is the product of the
consistent and nondiscrimmatory application of Wyoming's
longstanding policy of preserving county boundaries
In addition, as the Court emphasizes, in this case we are
not required to decide whether, and do not suggest that,
'^Wyoming's nondiscrimmatory adherence to county bound-
aries justifies the population deviations that exist throughout
Wyoming's representative districts " Ante, at 846 Thus,
the relevant percentage in this case is not the 89% maximum
deviation when the State of Wyoming is viewed as a whole,
but the additional deviation from equality produced by the
allocation of one representative to Niobrara County Ibid
In this regard, I would emphasize a point acknowledged by
the maj ority See ante, at 844-845 Although the maximum
deviation figure is not the controlling element in an apportion-
ment challenge, even the consistent and nondiscrimmatory
application of a legitimate state policy cannot justify substan-
tial population deviations throughout the State where the ef-
fect would be to eviscerate the one-person, one-vote princi-
ple In short, as the Court observes, ibid , there is clearly
basis ' The consistency of application and the neutrality of effect of the
nonpopulation criteria must be considered along with the size of the popula-
tion disparities in determining whether a state legislative apportionment
plan contravenes the Equal Protection Clause " Ante, at 845-846 Sum
larly, in Karcher, the Court observes
"The showing required to justify population deviations is flexible, depend-
ing on the size of the deviations, the importance of the State's interests,
the consistency with which the plan as a whole reflects those interests, and
the availability of alternatives that might substantially vindicate those in-
terests yet approximate population equality more closely By necessity,
whether deviations are justified requires case-by-case attention to these
factors " Ante, at 741
850 OCTOBER TERM, 1982
BRENNAN, J , dissenting 452 u s
some outer limit to the magnitude of the deviation that is
constitutionally permissible even in the face of the strongest
justifications
In the past, this Court has recognized that a state legisla
tive apportionment scheme with a maximum population devi
ation exceeding 10% creates a prima lacie case of discrimina
tion See, e g , Connor v Finch, 431 U S 407, 418 (1977)
Moreover, in Mohan v Howell, 410 U S 315, 329 (1973), we
suggested that a 16 4% maximum deviation "may well ap-
proach tolerable limits " 2 I have the gravest doubts that a
statewide legislative plan with an 89% maximum deviation
could survive constitutional scrutiny despite the presence of
the State's strong interest in preserving county boundaries
I join the Court's opinion on the understanding that nothing
in it suggests that this Court would uphold such a scheme
JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE
MARSHALL, and JUSTICE BLACKMUN join, dissenting
The Court today upholds a reapportionment scheme for a
state legislature featuring an 89% maximum deviation and a
16% average deviation from population equality I cannot
agree
I
Although I disagree with today's holding, it is worth
stressing how extraordinarily narrow it is, and how empty of
likely precedential value The Court goes out of its way
to make clear that because appellants have chosen to at
tack only one small feature of Wyoming's reapportionment
scheme, the Court weighs only the marginal unequalizing ef
feet of that one feature, and not the overall constitutionality
of the entire scheme Ante, at 846, and nn 8, 9, see ante,
2 The Court has recognized that States enjoy a somewhat greater degree
of latitude as to population disparities in a state legislative apportionment
scheme, which is tested under Equal Protection Clause standards, than in
a congressional redistrictmg scheme, for which the Court has held that
Art I, § 2, of the Constitution provides the governing standard Whxto v
Regester, 412 U S 755, 763 (1973)
BROWN v THOMSON 851
835 BRENNAN, J , dissenting
at 849 (O'CONNOR, J , concurring) Hence, although in my
view the Court reaches the wrong result in the case at hand,
it is unlikely that any future plaintiffs challenging a state re-
apportionment scheme as unconstitutional will be so unwise
as to limit their challenge to the scheme's single most objec-
tionable feature Whether this will be a good thing for the
speed and cost of constitutional litigation remains to be seen
But at least plaintiffs henceforth will know better than to
exercise moderation or restraint in mounting constitutional
attacks on state apportionment statutes, lest they forfeit their
small claim by omitting to assert a big one
II
A
The Equal Protection Clause of the Fourteenth Amend-
ment requires that a State, in apportioning its legislature,
"make an honest and good faith effort to construct districts
as nearly of equal population as is practicable " Reyn-
olds v Sims, 377 U S 533, 577 (1964) Under certain
conditions the Constitution permits small deviations from
absolute equality in state legislative districts,1 but we have
carefully circumscribed the range of permissible deviations as
to both degree and kind What is required is "a faithful
adherence to a plan of population-based representation, with
such minor deviations only as may occur in recognizing cer-
tain factors that are free from any taint of arbitrariness
or discrimination " Roman v Smcock, 377 U S 695, 710
(1964) "[T]he overriding objective must be substantial
equality of population among the various districts, so that the
vote of any citizen is approximately equal in weight to that of
any other citizen in the State " Reynolds, supra, at 579
'As the Court notes, of course, we have been substantially more de-
manding with respect to apportionment of federal congressional districts
Mahan v Howell, 410 U S 315, 320-325 (1973) See generally Karcher
v Daggett, ante, p 725, White v Weiser, 412 U S 783 (1973), Kirkpatnck
v Preisler, 394 U S 526 (1969)
852 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
Our cases since Reynolds have clarified the structure of
constitutional inquiry into state legislative apportionments
setting up what amounts to a four-step test First, a plain-
tiff must show that the deviations at issue are sufficiently
large to make out a prima facie case of discrimination We
have come to establish a rough threshold of 10% maximum
deviation from equality (adding together the deviations from
average district size of the most underrepresented and most
overrepresented districts), below that level, deviations will
ordinarily be considered de minimis Ante, at 842-843,
Connor v Finch, 431 U S 407, 418 (1977), White v
Regester, 412 U S 755, 763-764 (1973) Second, a court
must consider the quality of the reasons advanced by the
State to explain the deviations Acceptable reasons must be
"legitimate considerations incident to the effectuation of a
rational state policy," Reynolds, supra, at 579, and must
be "free from any taint of arbitrariness or discrimination/'
Roman, supra, at 710 See Mahan v Howell, 410 U S
315, 325-326 (1973) Third, the State must show that "the
state policy urged to justify the divergences is, in-
deed, furthered by the plan," id , at 326 This necessarily
requires a showing that any deviations from equality are not
significantly greater than is necessary to serve the State's
asserted policy, if another plan could serve that policy sub-
stantially as well while providing smaller deviations from
equality, it can hardly be said that the larger deviations
advance the policy See, e g , Kilgarlin v Hill, 386 U S
120, 123-124 (1967), Mahan, supra, at 319-320, 326, Connor,
supra, at 420-421 Fourth, even if the State succeeds in
showing that the deviations in its plan are justified by their
furtherance of a rational state policy, the court must never
theless consider whether they are small enough to be con
stitutionally tolerable "For a State's policy urged in justifi-
cation of disparity in district population, however rational,
cannot constitutionally be permitted to emasculate the goal of
substantial population equality " Mahan, supra, at 326
BROWN v THOMSON 853
835 BRENNAN, J , dissenting
B
It takes little effort to show that Wyoming's 1981 House of
Representatives apportionment is manifestly unconstitu-
tional under the test established by our cases, whether one
considers the instance of Niobrara County alone or in com-
bination with the large deviations present in the rest of the
scheme
It is conceded all around, of course, that appellants have
shown a prima facie case of discrimination Wyoming's 89%
maximum deviation greatly exceeds our "under 10%" thresh-
old, indeed, so great is the inequality in this plan that even its
16% average deviation from ideal district size exceeds the
threshold we have set for maximum deviations On the
other hand, one might reasonably concede that the State has
met the second and third steps Wyoming's longstanding
policy of using counties as the basic units of representation is
a rational one, found by the District Court to be untainted by
arbitrariness or discrimination It appears as well that the
deviations at issue could not be reduced (at least not without
substantially increasing the size of the House of Represent-
atives) consistently with Wyoming's goals of using county
lines and assuring each county at least one representative
It cannot plausibly be argued, however, that Wyoming's plan
passes the fourth test — that its deviations, even if justified
by state policy, be within the constitutionally tolerable range
of size
We have warned that although maintenance of county or
other political boundaries can justify small deviations, it can-
not be allowed to negate the fundamental principle of one
person, one vote E g , Connor, supra, at 419 Likewise,
we have recognized that it may not always be feasible, within
constitutional constraints, to guarantee each county or sub-
division a representative of its own "Carried too far, a
scheme of giving at least one seat in one house to each poli-
tical subdivision (for example, to each county) could easily
result, in many States, in a total subversion of the equal-
854 OCTOBER TERM, 1982
BRENNAN, J , dissenting 4^2 u g
population principle in that legislative body " Reynolds, 377
U S , at 581 (footnote omitted), see Mahan, supra, at*349
n 11 (BRENNAN, J , concurring in part and dissenting in
part) And we have unambiguously rejected reliance on the
very factor the State urges as the reason for its plan, stating
that sparseness of population, far from excusing deviations
from equality, actually increases the need for equality among
districts
"[S]parse population is not a legitimate basis for a depar-
ture from the goal of equality A State with a sparse
population may face problems different from those faced
by one with a concentrated population, but that, without
more, does not permit a substantial deviation from the
average Indeed, in a State with a small population,
each individual vote may be more important to the result
of an election than in a highly populated State Thus,
particular emphasis should be placed on establishing
districts with as exact population equality as possible "
Chapman v Meier, 420 U S 1, 24-25 (1975) (emphasis
added)
Accord, Connor, supra, at 418-419, n 18, see Reynolds,
supra, at 580
As the Court implicitly acknowledges, ante, at 843, Nio-
brara County's overrepresentation — 60% compared to the
ideal district size — cannot be considered "the kind of 'minor'
variatio[n] which Reynolds v Sims indicated might be justi-
fied by local policies counseling the maintenance of established
political subdivisions in apportionment plans " Kilgarhn,
386 U S , at 123 In Kilgarhn, we expressed strong doubt
that the 26% maximum deviation there could ever be per
nutted, ibid In Mahan, we warned that a 16 4% maximum
deviation, even though fully justified by state policy, "may
well approach tolerable limits " 410 U S , at 329 See also
Abate v Mundt, 403 U S 182, 187 (1971) Here, by con-
trast, Niobrara County voters are given more than two and a
half times the voting strength of the average Wyoming voter,
BROWN v THOMSON 855
835 BRENNAN, J , dissenting
and more than triple the voting strength of voters in some
counties 2 "[I]f a State should provide that the votes of citi-
zens in one part of the State should be given two times, or
five times, or 10 times the weight of votes of citizens in an-
other part of the State, it could hardly be contended that the
right to vote of those residing in the disfavored areas had not
been effectively diluted " Reynolds, supra, at 562 The
creation of this district represents not a deviation from the
principle of population equality, but an absolute disregard of
it Niobrara County, alone in the State, has been allocated a
seat "on a basis wholly unrelated to population " WMCA,
Inc v Lomenzo, 377 U S 633, 645 (1964) This hardly con-
stitutes "a faithful adherence to a plan of population-based
representation " Roman, 377 U S , at 710
If the rest of the State is considered as well, the picture
becomes even worse The scheme's treatment of Niobrara
County is not a single, isolated abuse, but merely the worst
of many objectionable features Of Wyoming's 23 counties,
only 9 are within as much as 10% of population proportional-
ity The populations per representative of Sublette and
Crook Counties are, respectively, 38% and 28% below the
statewide average, those of Washakie and Teton Counties are
29% and 28%, respectively, above that figure The average
deviation from ideal district size is 16% The figures could
be spun out further, but it is unnecessary It is not surpris-
ing, then, that the Court makes no effort to uphold the plan
as a whole On the contrary, at least two Members of the
majority express their "gravest doubts that a statewide legis-
lative plan with an 89% maximum deviation could survive
2 The ideal district size— statewide population divided by number of
seats— is 7,337, Niobrara County's population is 2,924 Thus, the average
representative represents 2 59 times as many constituents as Niobrara
County's representative Similarly, the populations of Washakie and
Teton Counties are, respectively, 3 25 and 3 19 times as large as the popu-
lation of Niobrara County, yet all three counties are given one represent-
ative each 1 App Exhibits 19-20
856 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u s
constitutional scrutiny despite the presence of the State's
strong interest m preserving county boundaries " Ante, at
850 (O'CONNOR, J , joined by STEVENS, J , concurring)
C
The Court attempts to escape these stark facts through
two lines of reasoning, each relying on an unspoken legal
premise Neither withstands examination
First, the Court apparently assumes that the only aspect
of unequal representation that matters is the degree of vote
dilution suffered by any one individual voter See ante, at
847 The Court is mistaken Severe dilution of the votes
of a relatively small number of voters is perhaps the most
disturbing result that may attend invalid apportionments,
because those unfortunate victims may be virtually disfran-
chised It is not the sole evil to be combated, however It
is equally illegal to enact a scheme under which a small group
is greatly owrrepresented, at the expense of all other voters
in the State Such a "rotten borough" 3 plan does tend to
yield small figures supposedly measuring the harm to single
individuals, as the Court's opinion illustrates, but that analy-
sis overlooks the fact that very large numbers of persons are
adversely affected 4 It is the principle of equal representa-
tion, as well as the votes of individual plaintiffs, that a State
may not dilute Reynolds, supra, at 578 Just as the Equal
Protection Clause does not permit a small class of voters to
be deprived of fair and equal voting power, so does it forbid
the elevation of a small class of "supervoters" granted an ex-
traordinarily powerful franchise We would not permit Wyo-
ming, in its legislative elections, to grant a double- or triple-
counted vote to 2,924 voters because they were named Jones,
or because they were licensed to practice law — even though
such an enactment would, by the Court's reasoning, have
8 See generally Reynolds v Sims, 377 U S 533, 567-568, n 44 (1964),
Baker v Carr, 369 U S 186, 302-307 (1962) (Frankfurter, J , dissenting)
4Cf Swann v Adams, 385 U S 440, 443 (1967)
BROWN v THOMSON 357
835 BRENNAN, J , dissenting
only a de minimis effect on the rights of the rest of Wyo-
ming's voters Why, then, is it permissible to create such an
exalted class based on location of residence?
The Court relies more directly on its unspoken assumption
that we may judge the constitutionality of Niobrara County's
representation by first severing that feature from the rest of
the scheme, and then weighing it only by its incremental
effect in increasing the degree of inequality present in the
system as a whole
"Appellants deliberately have limited their challenge to
the alleged dilution of their voting power resulting from
the one representative given to Niobrara County The
issue therefore is not whether a 16% average deviation
and an 89% maximum deviation, considering the state
apportionment plan as a whole, are constitutionally per-
missible Rather, the issue is whether Wyoming's pol-
icy of preserving county boundaries justifies the addi-
tional deviations from population equality resulting from
the provision of representation to Niobrara County "
Ante, at 846 (footnotes omitted)
The first leg of this logic — that the Niobrara problem is
legally severable from the rest of the plan — is contradicted
by our prior decisions The second leg — that we should
examine only the marginal unequahzing effect — leads to ex-
ceptionally perverse results
We confronted an analogous situation in Maryland Com-
mittee for Fair Representation v Tawes, 377 U S 656
(1964) The State argued in Tawes that since the plaintiffs
had allegedly conceded that one house of the Maryland Legis-
lature was constitutionally apportioned, and the courts below
had passed only on the apportionment of the other house, this
Court was required to limit its consideration to the appor-
tionment of the challenged house We flatly rejected the
argument
"Regardless of possible concessions made by the par-
ties and the scope of the consideration of the courts
858 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 u s
below, in reviewing a state legislative apportionment
case this Court must of necessity consider the challenged
scheme as a whole in determining whether the particular
State's apportionment plan, in its entirety, meets federal
constitutional requisites It is simply impossible to de-
cide upon the validity of the apportionment of one house
of a bicameral legislature in the abstract, without also
evaluating the actual scheme of representation employed
with respect to the other house Rather, the proper,
and indeed indispensable, subject for judicial focus in a
legislative apportionment controversy is the overall
representation accorded to the State's voters, in both
houses of a bicameral state legislature We therefore
reject [the State's] contention that the Court is pre-
cluded from considering the validity of the apportion-
ment of the Maryland House of Delegates " Id , at 673
Accord, Lucas v Colorado General Assembly, 377 U S 713,
735, n 27 (1964) 5
Although we have not invariably adhered to this rule with
regard to the two houses of a legislature, the concerns that
led us in Tawes to examine both houses, despite the scope of
the plaintiffs' complaint, forbid us to consider the allocation of
one seat without also examining the remainder of Wyoming's
apportionment of its House of Representatives A plan with
only a single deviation — a good deal smaller than this one,
6 "[In] Maryland Committee for Fair Representation v Tawes> we
discussed the need for considering the apportionment of seats in both
houses of a bicameral state legislature in evaluating the constitutionality of
a state legislative apportionment scheme, regardless of what matters were
raised by the parties and decided by the court below Consistent with this
approach, in determining whether a good faith effort to establish districts
substantially equal m population has been made, a court must necessarily
consider a State's legislative apportionment scheme as a whole Only
after evaluation of an apportionment plan in its totality can a court deter
mine whether there has been sufficient compliance with the requisites of the
Equal Protection Clause " 377 U S , at 735, n 27 (emphasis added)
See also Burns v Richardson, 384 U S 73, 83 (1966)
BROWN v THOMSON 359
335 BRENNAN, J , dissenting
and necessary to carry out a rational state policy— might well
be tolerated, even though in the same situation a greater
number of substantial deviations would be unacceptable as
too much of a departure from the goal of equality See
Lucas, supra, at 735, n 27 Where that greater number of
deviations is present, as in this case, common sense as well as
Tawes and Lucas require us to consider the plan as a whole
The inequality created by Niobrara County's representation —
a 23% increase in the maximum deviation from equality— is
necessarily cumulative with the inequality imposed in the rest
of the system It is playing artificial tricks to assert that the
fairness of the allocation of one seat in a legislative body can or
should be considered as though it had no connection to the other
seats, or to the fairness of their allocation Indeed, the Court's
own method contradicts its suggestion that the Niobrara prob-
lem is severable The Court is fully willing to consider the
system's other inequalities in this case, and even to give them
controlling weight — only it wishes to consider those inequal-
ities as weighing in favor o/the plan See infra, this page
and 860 I agree with the Court that we may not consider
Niobrara County in a vacuum, it seems to me, however, that
the existence of numerous instances of inequality ought to be
considered an undesirable feature in an apportionment plan,
not a saving one Only by examining the plan "in its totality,"
Lucas, supra, at 735, n 27, may we judge whether the alloca-
tion of any seat in the House is constitutional This Court is
not bound by a referendum of the League of Women Voters
See ante, at 846, n 8
Here, Wyoming's error in granting Niobrara County vot-
ers a vote worth double or triple the votes of other Wyoming
voters is compounded by the impermissibly large disparities
in voting power existing in the rest of the apportionment
plan Supra, at 855 Yet, astonishingly, the Court man-
ages to turn that damning fact to the State's favor
"The allocation of a representative to a particular politi-
cal subdivision still may violate the Equal Protection
Clause if it greatly exceeds the population variations ex-
860 OCTOBER TERM, 1982
BRENNAN, J , dissenting 462 U S
istmg in the rest of the State and if the State provides no
legitimate justifications for the creation of that seat
Here, however, considerable population variations will
remain even if Niobrara County's representative is elim-
inated These statistics make clear that the grant of
a representative to Niobrara County is not a significant
cause of the population deviations that exist in Wyo-
ming " Ante, Sit 847
Under this reasoning, the further Wyoming's apportionment
plan departs from substantial equality, the more likely it is to
withstand constitutional attack It is senseless to create a
rule whereby a single instance of gross inequality is uncon-
stitutional if it occurs in a plan otherwise letter-perfect, but
constitutional if it occurs in a plan that, even without that fea-
ture, flagrantly violates the Constitution That, however, is
precisely what the Court does today 6
6 This case also presents an issue as to what relief should be accorded
At an absolute minimum, the District Court should have granted the rehef
requested by appellants — the combination of Niobrara and Goshen Coun
ties into one district, as provided by the Wyoming Legislature in case its
first plan was found unconstitutional See ante, at 840 That would have
yielded a combined district of virtually perfect size, and would have re-
duced the plan's maximum deviation from 89% to 66% This improvement
alone — 23% — is larger than any maximum deviation we have ever ap-
proved, with or without justification See supra, at 854
In my view, however, the District Court should have required Wyoming
to devise an apportionment plan constitutional in its entirety In Whitr
comb v Chaws, 403 U S 124 (1971), the plaintiffs' complaint attacked
Indiana's apportionment statute only as to one county Id , at 137 We
reversed the District Court's judgment that that county was uncon
stitutionally apportioned Nevertheless, we expressly approved the Dis
trict Court's decision to expand the rehef granted to include reapportion
ment of the entire State "After determining that Marion County
required reapportionment, the court concluded that *it becomes clear
beyond question that the evidence adduced in this case and the addi
tional apportionment requirements set forth by the Supreme Court call
for a redistrictmg of the entire state as to both houses of the General
BROWN v THOMSON 861
835 BRENNAN, J , dissenting
D
JUSTICE O'CONNOR, joined by JUSTICE STEVENS, states
that she has "the gravest doubts that a statewide legislative
plan with an 89% maximum deviation could survive constitu-
tional scrutiny " Ante, at 850 (concurring opinion)
But the Court today holds that just such a plan does survive
constitutional scrutiny I dissent
Assembly '" Id , at 161 (plurality opinion), quoting 305 F Supp 1364,
1391 (SD Ind 1969), see 403 U S , at 172-173, 179-180 (Douglas, J , con-
curring in result in part) See also suprat at 857-859, and n 5, Fed Rule
Civ Proc 54(c)
862 OCTOBER TERM, 1982
Syllabus 462 U S
ZANT, WARDEN v STEPHENS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No 81-89 Argued February 24, 1982— Question certified May 3, 1982—
Decided June 22, 1983
In a bifurcated trial in a Georgia state court, a jury found respondent guilty
of murder and imposed the death penalty At the sentencing phase of
the trial, the judge instructed the jury that it was authorized to consider
all of the evidence received during the guilt phase of the trial as well as
all facts and circumstances presented in mitigation or aggravation during
the sentencing proceeding, and that it must find and designate in writing
the existence of one or more specified statutory aggravating circum-
stances in order to impose the death penalty The jury stated in writing
that it found the statutory aggravating circumstances that respondent
had a prior conviction of a capital felony, that he had "a substantial his-
tory of serious assaultive criminal convictions," and that the murder was
committed by an escapee While respondent's appeal was pending, the
Georgia Supreme Court held in another case that one of the aggravating
circumstances — "substantial history of serious assaultive criminal con
victions" — was unconstitutionally vague In respondent's case, the
Georgia Supreme Court held that the two other aggravating circum
stances adequately supported the sentence After the Federal District
Court denied respondent's petition for habeas corpus, the Court of Ap-
peals held that respondent's death penalty was invalid In response to
this Court's certified question, Zant v Stephens, 456 U S 410, the Geor
gia Supreme Court explained the state-law premises for its view that the
failure of one aggravating circumstance does not invalidate a death sen
tence that is otherwise adequately supported by other aggravating or
cumstances Under Georgia law the finding of a statutory aggravating
circumstance serves a limited purpose — it identifies those members of the
class of persons convicted of murder who are eligible for the death penalty,
without furnishing any further guidance to the jury in the exercise of its
discretion in determining whether the death penalty should be imposed
Held
1 The limited function served by the jury's finding of a statutory ag-
gravating circumstance does not render Georgia's statutory scheme
invalid under the holding in Furman v Georgw, 408 U S 238 Under
Georgia's scheme, the jury is required to find and identify in writing at
least one valid statutory aggravating circumstance, an individualized
ZANT v STEPHENS 863
862 Syllabus
determination must be made on the basis of the defendant's character
and the circumstances of the crime, and the State Supreme Court re-
views the record of every death penalty proceeding to determine whether
the sentence was arbitrary or disproportionate The narrowing func
tion of statutory aggravating circumstances was properly achieved in
this case by the two valid aggravating circumstances upheld by the
Georgia Supreme Court, because these two findings adequately differen-
tiate this case in an objective, evenhanded, and substantively rational
way from the many Georgia murder cases in which the death penalty
may not be imposed Moreover, the Georgia Supreme Court reviewed
respondent's death sentence to determine whether it was arbitrary,
excessive, or disproportionate Thus the Georgia capital sentencing
statute is not invalid as applied here Pp 873-880
2 Stromberg v California, 283 U S 359, does not require that re-
spondent's death sentence be vacated Stromberg requires that a gen-
eral guilty verdict be set aside if the jury was instructed that it could
rely on any of two or more independent grounds, and one of those
grounds is insufficient, because the verdict may have rested exclusively
on the insufficient ground In this case, however, the jury did not
merely return a general verdict stating that it had found at least one ag-
gravating circumstance, but instead expressly found two aggravating
circumstances that were valid and legally sufficient to support the death
penalty Nor is a second rule derived from Stromberg— requiring that a
general guilty verdict on a single count indictment or information be set
aside where it rests on both a constitutional and an unconstitutional
ground — applicable here There is no suggestion that any of the ag-
gravating circumstances involved any conduct protected by the Con-
stitution Pp 880-884
3 Respondent's death sentence was not impaired on the asserted
ground that the jury instruction with regard to the invalid statutory ag-
gravating circumstance may have unduly affected the jury's delibera-
tions Although the aggravating circumstance was struck down by the
Georgia Supreme Court because it failed to provide an adequate basis for
distinguishing a murder case in which the death penalty may be imposed
from those cases in which such a penalty may not be imposed, the under-
lying evidence as to respondent's history of serious assaultive criminal
convictions was fully admissible under Georgia law at the sentencing
phase of the trial Pp 884-891
631 F 2d 397 and 648 F 2d 446, reversed
STEVENS, J , delivered the opinion of the Court, in whrch BURGEK,
C J , and BLACKMUN, POWELL, and O'CONNOR, JJ , joined WHITE, J ,
an opinion concurring in part and concurring in the judgment,
864 OCTOBER TERM, 1982
Opinion of the Court 462 U S
post, p 891 REHNQUIST, J , filed an opinion concurring in the judg
ment, post, p 893 MARSHALL, J , filed a dissenting opinion, in which
BRENNAN, J , joined, post, p 904
After the Georgia Supreme Court's response to the certi
fied question, supplemental briefs were filed by Michael J
Bowers, Attorney General of Georgia, William B Hill, Jr ,
Senior Assistant Attorney General, Robert S Stubbs II, Ex-
ecutive Assistant Attorney General, and Marion O Gordon,
First Assistant Attorney General, for petitioner, and by
James C Bonner, Jr , Jack Greenberg, James M Nabnt
///, Joel Berger, John Charles Boger, Deborah Fins, and
Anthony G Amsterdam for respondent
JUSTICE STEVENS delivered the opinion of the Court
The question presented is whether respondent's death pen
alty must be vacated because one of the three statutory ag
gravating circumstances found by the jury was subsequently
held to be invalid by the Supreme Court of Georgia, although
the other two aggravating circumstances were specifically
upheld The answer depends on the function of the jury's
finding of an aggravating circumstance under Georgia's capi
tal sentencing statute, and on the reasons that the aggravat
ing circumstance at issue in this particular case was found to
be invalid
In January 1975 a jury in Bleckley County, Georgia, con
victed respondent of the murder of Roy Asbell and sentenced
him to death The evidence received at the guilt phase of his
trial, which included his confessions and the testimony of a
number of witnesses, described these events On August 19,
1974, while respondent was serving sentences for several
burglary convictions and was also awaiting trial for escape,
he again escaped from the Houston County Jail In the next
two days he committed two auto thefts, an armed robbery,
and several burglaries On August 21st, Roy Asbell inter
rupted respondent and an accomplice in the course of bur
glarizmg the home of Asbell's son in Twiggs County Re-
ZANTv STEPHENS 865
862 Opinion of the Court
spondent beat Asbell, robbed him, and, with the aid of the
accomplice, drove him in his own vehicle a short distance into
Bleckley County There they killed Asbell by shooting him
twice through the ear at point blank range
At the sentencing phase of the trial the State relied on the
evidence adduced at the guilt phase and also established that
respondent's prior criminal record included convictions on
two counts of armed robbery, five counts of burglary, and
one count of murder Respondent testified that he was
"sorry" and knew he deserved to be punished, that his accom-
plice actually shot Asbell, and that they had both been
"pretty high" on drugs The State requested the jury to
impose the death penalty and argued that the evidence
established the aggravating circumstances identified in
subparagraphs (b)(l), (b)(7), and (b)(9) of the Georgia capital
sentencing statute 1
The trial judge instructed the jury that under the law of
Georgia "every person [found] guilty of Murder shall be pun-
ished by death or by imprisonment for life, the sentence to be
fixed by the jury trying the case " App 18 He explained
that the jury was authorized to consider all of the evidence
1 Georgia Code §27-2534 l(b) (1978) provided, in part
"In all cases of other offenses for which the death penalty may be author-
ized, the judge shall consider, or he shall include in his instructions to the
jury for it to consider, any mitigating circumstances or aggravating cir-
cumstances otherwise authorized by law and any of the following statutory
aggravating circumstances which may be supported by the evidence
"(1) The offense of murder, rape, armed robbery, or kidnapping was
committed by a person with a prior record of conviction for a capital felony,
or the offense of murder was committed by a person who has a substantial
history of serious assaultive criminal convictions
"(7) The offense of murder, rape, armed robbery, or kidnapping was
outrageously or wantonly vile, horrible or inhuman in that it involved tor-
ture, depravity of mind, or an aggravated battery to the victim
"(9) The offense of murder was committed by a person in, or who has
escaped from, the lawful custody of a peace officer or place of lawf
confinement "
866 OCTOBER TERM, 1982
Opinion of the Court 462 U S
received during the trial as well as all facts and circumstances
presented in extenuation, mitigation, or aggravation during
the sentencing proceeding He then stated
"You may consider any of the following statutory ag-
gravating circumstances which you find are supported
by the evidence One, the offense of Murder was com-
mitted by a person with a prior record of conviction for a
Capital felony, or the offense of Murder was committed
by a person who has a substantial history of serious as-
saultive criminal convictions Two, the offense of Mur-
der was outrageously or wantonly vile, horrible or inhu-
man in that it involved torture, depravity of mind or an
aggravated battery to the victim Three, the offense of
Murder was committed by a person who has escaped
from the lawful custody of a peace officer or place of
lawful confinement These possible statutory circum-
stances are stated in writing and will be out with you
during your deliberations on the sentencing phase of this
case They are in writing here, and I shall send this out
with you If the jury verdict on sentencing fixes pun-
ishment at death by electrocution you shall designate in
writing, signed by the foreman, the aggravating circum-
stances or circumstance which you found to have been
proven beyond a reasonable doubt Unless one or more
of these statutory aggravating circumstances are proven
beyond a reasonable doubt you will not be authorized to
fix punishment at death "2
The jury followed the court's instruction and imposed the
death penalty It designated in writing that it had found the
aggravating circumstances described as "One" and "Three" in
the judge's instruction 3 It made no such finding with re-
2 The instruction to the sentencing jury, App 18-19, is quoted in full in
our opinion in Zant v Stephens, 456 U S 410, 412-413, n 1 (1982)
8 The jury made the following special findings
"(1) The offense of Murder was committed by a person with a prior record
of conviction for a capital felony The offense of Murder was committed by
ZANT v STEPHENS 867
862 Opinion of the Court
spect to "Two " 4 It should be noted that the jury's finding
under "One" encompassed both alternatives identified in the
judge's instructions and in subsection (b)(l) of the statute
that respondent had a prior conviction of a capital felony and
that he had a substantial history of serious assaultive con-
victions These two alternatives and the finding that the
murder was committed by an escapee are described by the
parties as the three aggravating circumstances found by
the jury, but they may also be viewed as two statutory aggra-
vating circumstances, one of which rested on two grounds
In his direct appeal to the Supreme Court of Georgia re-
spondent did not challenge the sufficiency of the evidence
supporting the aggravating circumstances found by the jury
Nor did he argue that there was any infirmity in the statu-
tory definition of those circumstances While his appeal was
pending, however, the Georgia Supreme Court held in
Arnold v State, 236 Ga 534, 539-542, 224 S E 2d 386,
391-392 (1976), that the aggravating circumstance described
in the second clause of (b)(l) — "a substantial history of seri-
ous assaultive criminal convictions" — was unconstitutionally
vague 5 Because such a finding had been made by the jury
in this case, the Georgia Supreme Court, on its own motion,
a person who has a substantial history of serious assaultive criminal con
victions (2) The offense of Murder was committed by a person who
has escaped from the lawful custody of a peace officer and place of lawful
confinement " App 23
4 Thus, this case does not implicate our holding in Godfrey v Georgia, 446
U S 420 (1980), that the (b)(7) aggravating circumstance as construed by
the Georgia Supreme Court was unconstitutionally broad and vague
5 The defendant in Arnold had been sentenced to death by a jury which
found no other aggravating circumstance On appeal, he contended that
the language of the clause "does not provide the sufficiently 'clear and ob-
jeetive standards' necessary to control the jury's discretion in imposing the
death penalty Coley v State, [231 Ga 829, 834, 204 S E 2d 612, 615
(1974)], Furman v Georgia, 408 U S 238 (1971) " The Georgia Supreme
Court agreed that the statutory language was too vague and nonspecific to
be applied evenhandedly by a jury 236 Ga , at 540-542, 224 S E 2d, at
391-392
868 OCTOBER TERM, 1982
Opinion of the Court 4gg u g
considered whether it impaired respondent's death sentence
It concluded that the two other aggravating circumstances
adequately supported the sentence Stephens v State 237
Ga 259, 261-262, 227 S E 2d 261, 263, cert denied,' 429
U S 986 (1976) The state court reaffirmed this conclusion
in a subsequent appeal from the denial of state habeas corpus
relief Stephens v Hopper, 241 Ga 596, 603-604, 247 S E
2d 92, 97-98, cert denied, 439 U S 991 (1978) 6
After the Federal District Court had denied a petition for
habeas corpus, the United States Court of Appeals for the
Fifth Circuit considered two constitutional challenges to re-
spondent's death sentence 631 F 2d 397 (1980) That
court first rejected his contention that the jury was not ade
quately instructed that it was permitted to impose life
imprisonment rather than the death penalty even if it found
an aggravating circumstance 7 The court then held, how
ever, that the death penalty was invalid because one of the
aggravating circumstances found by the jury was later held
unconstitutional
The Court of Appeals gave two reasons for that conclu
sion First, it read Stromberg v California, 283 U S 359
(1931), as requiring that a jury verdict based on multiple
grounds be set aside if the reviewing court cannot ascertain
6 In his state habeas petition, respondent unsuccessfully challenged the
aggravating circumstance that he had a prior conviction for a capital fel
ony He was admittedly under such a conviction at the time of his trial in
this case, but not at the time of the murder The Supreme Court of Geor
gia interpreted the statute, Ga Code § 27-2534 l(b)(l) (1978), as referring
to the defendant's record at the time of sentencing Accordingly, respond
ent's contention was rejected 241 Ga , at 602-603, 247 S E 2d, at 96-97
Respondent renewed his challenge to that aggravating circumstance in his
federal habeas petition, but the Court of Appeals correctly recognized that
it had no authority to question the Georgia Supreme Court's interpretation
of state law 631 F 2d 397, 405 (CAS 1980) The contention is not re-
newed here
7/d , at 404-405 This aspect of the Court of Appeals' decision is not
before us
ZANTv STEPHENS 869
862 Opinion of the Court
whether the jury rehed on an unconstitutional ground The
court concluded
"It is impossible for a reviewing court to determine
satisfactorily that the verdict in this case was not deci-
sively affected by an unconstitutional statutory aggra-
vating circumstance The jury had the authority to
return a life sentence even if it found statutory aggravat-
ing circumstances It is possible that even if the jurors
believed that the other aggravating circumstances were
established, they would not have recommended the
death penalty but for the decision that the offense was
committed by one having a substantial history of serious
assaultive criminal convictions, an invalid ground " 631
F 2d, at 406
Second, it believed that the presence of the invalid circum-
stance "made it possible for the jury to consider several prior
convictions of [respondent] which otherwise would not have
been before it " Ibid
In a petition for rehearing, the State pointed out that the
evidence of respondent's prior convictions would have been
admissible at the sentencing hearing even if it had not rehed
on the invalid circumstance 8 The Court of Appeals then
modified its opinion by deleting its reference to the possibil-
ity that the jury had rehed on inadmissible evidence 648 F
2d 446 (1981) It maintained, however, that the reference in
the instructions to the invalid circumstance "may have un-
duly directed the jury's attention to his prior convictions "
Ibid The court concluded "It cannot be determined with
the degree of certainty required in capital cases that the
instruction did not make a critical difference in the jury's
decision to impose the death penalty " Ibid
8Ga Code §27-2503(a) (1978), 241 Ga , at 603-604, 247 S E 2d, at
97-98, see infra, at 886-887
870 OCTOBER TERM, 1982
Opinion of the Court 452 U S
We granted Warden Zant's petition for certioran, 454
U S 814 (1981) The briefs on the merits revealed that dif
ferent state appellate courts have reached varying conclu
sions concerning the significance of the invalidation of one of
multiple aggravating circumstances considered by a jury in a
capital case 9 Although the Georgia Supreme Court had con
sistently stated that the failure of one aggravating circum
stance does not invalidate a death sentence that is otherwise
adequately supported,10 we concluded that an exposition of
the state-law premises for that view would assist in framing
the precise federal constitutional issues presented by the
Court of Appeals' holding We therefore sought guidance
from the Georgia Supreme Court pursuant to Georgia's statu
tory certification procedure Ga Code §24-4536 (Supp
1980) Zant v Stephens, 456 U S 410 (1982) »
In its response to our certified question, the Georgia Su
preme Court first distinguished Stromberg as a case in which
the jury might have relied exclusively on a single invalid
ground, noting that the jury in this case had expressly relied
on valid and sufficient grounds for its verdict The court
then explained the state-law premises for its treatment
of aggravating circumstances by analogizing the entire
body of Georgia law governing homicides to a pyramid It
explained
"All cases of homicide of every category are contained
within the pyramid The consequences flowing to the
9 Brief for Respondent 40-45, Brief for State of Alabama et al as Amu
Cunae 13-15
10 456 U S , at 414, cf Gregg v Georgia, 428 U S 153, 201, n 53 (1976)
(noting cases m which the Georgia Supreme Court had not explicitly relied
on one of several aggravating circumstances when it upheld the death
sentence)
11 We certified the following question
"What are the premises of state law that support the conclusion that the
death sentence m this case is not impaired by the invalidity of one of the
statutory aggravating circumstances found by the jury7 " 456 U S , at
416-417
ZANTv STEPHENS 871
862 Opinion of the Court
perpetrator increase in severity as the cases proceed
from the base to the apex, with the death penalty apply-
ing only to those few cases which are contained in the
space just beneath the apex To reach that category a
case must pass through three planes of division between
the base and the apex
"The first plane of division above the base separates
from all homicide cases those which fall into the category
of murder This plane is established by the legislature
in statutes defining terms such as murder, voluntary
manslaughter, involuntary manslaughter, and justifiable
homicide In deciding whether a given case falls above
or below this plane, the function of the trier of facts is
limited to finding facts The plane remains fixed unless
moved by legislative act
"The second plane separates from all murder cases
those in which the penalty of death is a possible punish-
ment This plane is established by statutory definitions
of aggravating circumstances The function of the
factfinder is again limited to making a determination of
whether certain facts have been established Except
where there is treason or aircraft hijacking, a given case
may not move above this second plane unless at least one
statutory aggravating circumstance exists Code Ann
§27-2534 l(c)
"The third plane separates, from all cases in which a
penalty of death may be imposed, those cases in which it
shall be imposed There is an absolute discretion in the
factfinder to place any given case below the plane and
not impose death The plane itself is established by the
factfinder In establishing the plane, the factfinder
considers all evidence in extenuation, mitigation and
aggravation of punishment Code Ann § 27-2503 and
§ 27-2534 1 There is a final limitation on the imposition
of the death penalty resting in the automatic appeal pro-
cedure This court determines whether the penalty of
death was imposed under the influence of passion, preju-
872 OCTOBER TERM, 1982
Opinion of the Court 452 u S
dice, or any other arbitrary factor, whether the statu
tory aggravating circumstances are supported by the ev
idence, and whether the sentence of death is excessive or
disproportionate to the penalty imposed m similar cases
Code Ann § 27-2537 Performance of this function may
cause this court to remove a case from the death penalty
category but can never have the opposite result
"The purpose of the statutory aggravating circum
stances is to limit to a large degree, but not completely,
the factfinder's discretion Unless at least one of the
ten statutory aggravating circumstances exists, the death
penalty may not be imposed in any event If there exists
at least one statutory aggravating circumstance, the death
penalty may be imposed but the factfinder has a discre
tion to decline to do so without giving any reason Waters
v State, 248 Ga 355, 369, 283 S E 2d 238 (1981),
Hawes v State, 240 Ga 327, 334, 240 S E 2d 833
(1977), Fleming v State, 240 Ga 142, 240 S E 2d
37 1977) In making the decision as to the penalty, the
factfinder takes into consideration all circumstances be
fore it from both the guilt innocence and the sentence
phases of the trial These circumstances relate both to
the offense and the defendant
"A case may not pass the second plane into that area in
which the death penalty is authorized unless at least one
statutory aggravating circumstance is found However,
this plane is passed regardless of the number of statu
tory aggravating circumstances found, so long as there is
at least one Once beyond this plane, the case enters
the area of the factfinder's discretion, in which all the
facts and circumstances of the case determine, in terms
of our metaphor, whether or not the case passes the
third plane and into the area in which the death penalty
is imposed " 250 Ga 97, 99-100, 297 S E 2d 1, 3-4
(1982)
ZANT v STEPHENS 873
862 Opinion of the Court
The Georgia Supreme Court then explained why the failure
of the second ground of the (b)(l) statutory aggravating cir-
cumstance did not invalidate respondent's death sentence
It first noted that the evidence of respondent's prior convic-
tions had been properly received and could properly have
been considered by the jury The court expressed the opin-
ion that the mere fact that such evidence was improperly des-
ignated "statutory" had an "inconsequential impact" on the
jury's death penalty decision Finally, the court noted that a
different result might be reached if the failed circumstance
had been supported by evidence not otherwise admissible or
if there was reason to believe that, because of the failure, the
sentence was imposed under the influence of an arbitrary fac-
tor Id , at 100, 297 S E 2d, at 4
We are indebted to the Georgia Supreme Court for its
helpful response to our certified question That response
makes it clear that we must confront three separate issues in
order to decide this case First, does the hmited purpose
served by the finding of a statutory aggravating circum-
stance in Georgia allow the jury a measure of discretion that
is forbidden by Furman v Georgia, 408 U S 238 (1972), and
subsequent cases7 Second, has the rule of Stromberg v
California, 283 U S 359 (1931), been violated? Third, in
this case, even though respondent's prior criminal record was
properly admitted, does the possibility that the reference to
the invalid statutory aggravating circumstance in the judge's
instruction affected the jury's deliberations require that the
death sentence be set aside7 We discuss these issues in
turn
I
In Georgia, unlike some other States,12 the jury is not in-
structed to give any special weight to any aggravating crr-
12 See, e g , Williams v State, 274 Ark 9, 10, 621 S W 2d 686, 687
(1981), State v Irwin, 304 N C 93, 107-108, 282 S E 2d 439, 448-449
874 OCTOBER TERM, 1982
Opinion of the Court 452 u g
cumstance, to consider multiple aggravating circumstances
any more significant than a single such circumstance, or to
balance aggravating against mitigating circumstances pursu
ant to any special standard Thus, in Georgia, the finding of
an aggravating circumstance does not play any role in guid
ing the sentencing body in the exercise of its discretion, apart
from its function of narrowing the class of persons convicted
of murder who are eligible for the death penalty For this
reason, respondent argues that Georgia's statutory scheme is
invalid under the holding in Furman v Georgia
A fair statement of the consensus expressed by the Court
in Furman is that "where discretion is afforded a sentencing
body on a matter so grave as the determination of whether a
human life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action " Gregg v Georgia,
428 U S 153, 189 (1976) (opinion of Stewart, POWELL, and
STEVENS, JJ ) After thus summarizing the central man
date of Furman, the joint opinion in Gregg set forth a general
exposition of sentencing procedures that would satisfy the
concerns of Furman 428 U S , at 189-195 But it ex-
pressly stated "We do not intend to suggest that only the
above-described procedures would be permissible under Fur
man or that any sentencing system constructed along these
(1981), State v Moore, 614 S W 2d 348, 351-352 (Tenn 1981), Hopkinson
v State, 632 P 2d 79, 90, n 1, 171-172 (Wyo 1981) In each of these
cases, the State Supreme Court set aside a death sentence based on both
valid and invalid aggravating circumstances Respondent advances these
cases in support of his contention that a similar result is required here
However, examination of the relevant state statutes shows that in each of
these States, not only must the jury find at least one aggravating circum
stance in order to have the power to impose the death sentence, in addi
tion, the law requires the jury to weigh the aggravating circumstances
against the mitigating circumstances when it decides whether or not the
death penalty should be imposed See Ark Stat Ann § 41-1302(1) (1977),
N C Gen Stat § 15A-2000(b) (1978), Tenn Code Ann §39-2-203(g)
(1982), Wyo Stat §6-2-102(d)(i) (1988)
ZANTv STEPHENS 875
862 Opinion of the Court
general lines would inevitably satisfy the concerns of Fur-
man, for each distinct system must be examined on an indi-
vidual basis " Id , at 195 The opinion then turned to spe-
cific consideration of the constitutionality of Georgia's capital
sentencing procedures Id , at 196-207
Georgia's scheme includes two important features which
the joint opinion described in its general discussion of sen-
tencing procedures that would guide and channel the exercise
of discretion Georgia has a bifurcated procedure, see id , at
190-191, and its statute also mandates meaningful appellate
review of every death sentence, see id , at 195 The statute
does not, however, follow the Model Penal Code's recommen-
dation that the jury's discretion in weighing aggravating and
mitigating circumstances against each other should be gov-
erned by specific standards See id , at 193 Instead, as
the Georgia Supreme Court has unambiguously advised us,
the aggravating circumstance merely performs the function
of narrowing the category of persons convicted of murder
who are eligible for the death penalty
Respondent argues that the mandate of Furman is vio-
lated by a scheme that permits the jury to exercise unbridled
discretion in determining whether the death penalty should
be imposed after it has found that the defendant is a member
of the class made eligible for that penalty by statute But
that argument could not be accepted without overruling our
specific holding in Gregg For the Court approved Georgia's
capital sentencing statute even though it clearly did not chan-
nel the jury's discretion by enunciating specific standards to
guide the jury's consideration of aggravating and mitigating
circumstances 13
13 The joint opinion specifically described the Georgia scheme in these
terms
"Georgia did act, however, to narrow the class of murderers subject to
capital punishment by specifying 10 statutory aggravating circumstances,
one of which must be found by the jury to exist beyond a reasonable doubt
before a death sentence can ever be imposed In addition, the jury is au-
876 OCTOBER TERM, 1982
Opinion of the Court 452 U S
The approval of Georgia's capital sentencing procedure
rested primarily on two features of the scheme that the jury
was required to find at least one valid statutory aggravating
circumstance and to identify it in writing, and that the State
Supreme Court reviewed the record of every death penalty
proceeding to determine whether the sentence was arbitrary
or disproportionate These elements, the opinion concluded,
adequately protected against the wanton and freakish imposi-
tion of the death penalty 14 This conclusion rested, of course,
on the fundamental requirement that each statutory aggra-
vating circumstance must satisfy a constitutional standard
derived from the principles of Furman itself For a sys-
thorized to consider any other appropriate aggravating or mitigating or
cumstances § 27-2534 l(b) (Supp 1975) The jury is not required to find
any mitigating circumstance in order to make a recommendation of mercy
that is binding on the trial court, see § 27-2302 (Supp 1975), but it must
find a statutory aggravating circumstance before recommending a sentence
of death " 428 U S , at 196-197, see also id , at 161, 165, 206-207 Cf
id , at 208, 218, 222 (opinion of WHITE, J , concurring in judgment)
The joint opinion issued the same day in Jurek v Texas, 428 U S 262
(1976), makes clear that specific standards for balancing aggravating
against mitigating circumstances are not constitutionally required In
Jurek we held that the State's action in "narrowing the categories of mur
ders for which a death sentence may ever be imposed" served much the
same purpose as the lists of statutory aggravating circumstances that
Georgia and Florida had adopted Id , at 270 We also held that one of
the three questions presented to the sentencing jury permitted the defend
ant to bring mitigating circumstances to the jury's attention Id , at
273-274 Thus, in Texas, aggravating and mitigating circumstances were
not considered at the same stage of the criminal prosecution and certainly
were not explicitly balanced against each other
14 "While the jury is permitted to consider any aggravating or mitigating
circumstances, it must find and identify at least one statutory aggravating
factor before it may impose a penalty of death In this way the jury's dis
cretion is channeled No longer can a jury wantonly and freakishly impose
the death sentence, it is always circumscribed by the legislative guidelines
In addition, the review function of the Supreme Court of Georgia affords
additional assurance that the concerns that prompted our decision in
Furman are not present to any significant degree in the Georgia procedure
applied here " 428 U S , at 206-207
ZANT*; STEPHENS 877
862 Opinion of the Court
tern "could have standards so vague that they would fail ade-
quately to channel the sentencing decision patterns of juries
with the result that a pattern of arbitrary and capricious sen-
tencing like that found unconstitutional in Furman could
occur " 428 U S , at 195, n 46 To avoid this constitu-
tional flaw, an aggravating circumstance must genuinely nar-
row the class of persons eligible for the death penalty and
must reasonably justify the imposition of a more severe sen-
tence on the defendant compared to others found guilty of
murder 15
15 These standards for statutory aggravating circumstances address the
concerns voiced by several of the opinions in Furman v Georgia See 408
U S , at 248, n 11 (Douglas, J , concurring), id , at 294 (BRENNAN, J ,
concurring) ("it is highly implausible that only the worst criminals or the
criminals who commit the worst crimes are selected for this punishment"),
id , at 309-310 (Stewart, J , concurring) ("of all the people convicted of
rapes and murders in 1967 and 1968, many just as reprehensible as these,
the petitioners are among a capriciously selected random handful upon
whom the sentence of death has in fact been imposed"), id , at 313 (WHITE,
J , concurring) ("there is no meaningful basis for distinguishing the few
cases in which it is imposed from the many cases in which it is not")
In Gregg, the joint opinion again recognized the need for legislative crite-
ria to limit the death penalty to certain crimes "[T]he decision that capital
punishment may be the appropriate sanction in extreme cases is an expres-
sion of the community's belief that certain crimes are themselves so griev-
ous an affront to humanity that the only adequate response may be the
penalty of death " 428 U S , at 184 The opinion also noted with ap-
proval the efforts of legislatures to "define those crimes and those criminals
for which capital punishment is most probably an effective deterrent "
Id , at 186 The opinion of JUSTICE WHITE concurring in the judgment in
Gregg asserted that, over time, as the aggravating circumstance require-
ment was applied, "the types of murders for which the death penalty may
be imposed [would] become more narrowly defined and [would be] limited
to those which are particularly serious or for which the death penalty is
peculiarly appropriate " Id , at 222 Cf Roberts (Harry) v Louisiana,
431 U S 633, 636 (1977) (the State may consider as an aggravating circum
stance the fact that the murder victim was a peace officer performing his
regular duties, because there is "a special interest in affording protection
to those public servants who regularly must risk their lives in order to
guard the safety of other persons and property")
878 OCTOBER TERM, 1982
Opinion of the Court 452 u g
Thus in Godfrey v Georgia, 446 U S 420 (1980), the Court
struck down an aggravating circumstance that failed to nar
row the class of persons eligible for the death penalty Jus
tice Stewart's opinion for the plurality concluded that the ag
gravating circumstance described in subsection (b)(7) of the
Georgia statute, as construed by the Georgia Supreme Court,
failed to create any "inherent restraint on the arbitrary and
capricious infliction of the death sentence," because a person
of ordinary sensibility could find that almost every murder fit
the stated criteria Id , at 428-429 16 Moreover, the facts of
the case itself did not distinguish the murder from any other
murder The plurality concluded that there was "no princi
pled way to distinguish this case, in which the death penalty
was imposed, from the many in which it was not " Id , at
433
Our cases indicate, then, that statutory aggravating cir
cumstances play a constitutionally necessary function at the
stage of legislative definition they circumscribe the class of
persons eligible for the death penalty But the Constitution
does not require the jury to ignore other possible aggravat
ing factors in the process of selecting, from among that class,
those defendants who will actually be sentenced to death 17
16 This Court's conclusion in Godfrey was analogous to the Georgia
Supreme Court's holding in Arnold v State that the second clause of the
(b)(l) aggravating circumstance, which is at issue in this case, was "too
vague and nonspecific to be applied evenhandedly by a jury " 236 Ga , at
541, 224 S E 2d, at 391 The defendant in that case, who had two prior
convictions, had been sentenced to death by the jury solely on a finding
that he had a " 'substantial history* of 'serious assaultive criminal convic-
tions ' " The court concluded that the words "substantial history" were so
highly subjective as to be unconstitutional Id , at 542, 224 S E 2d, at
392, see n 5, supra That aggravating circumstance, in the view of the
Georgia Supreme Court, did not provide a principled basis for distinguish
ing Arnold's case from the many other murder cases in which the death
penalty was not imposed under the statute
17 See Gregg, 428 U S , at 164, 196-197, 206, Proffitt v Florida, 428
U S 242, 256-257, n 14 (1976) (opinion of Stewart, POWELL, and STE
YENS, JJ ) Similarly, the Model Penal Code draft discussed in " ""
ZANTv STEPHENS 879
862 Opinion of the Court
What is important at the selection stage is an individualized
determination on the basis of the character of the individual
and the circumstances of the crime See Eddings v Okla-
homa, 455 U S 104, 110-112 (1982), Lockett v Ohio, 438
U S 586, 601-605 (1978) (plurality opinion), Roberts (Harry)
v Louisiana, 431 U S 633, 636-637 (1977), Gregg, 428
U S , at 197 (opinion of Stewart, POWELL, and STEVENS,
JJ ), Proffitt v Florida, 428 U S , at 251-252 (opinion of
Stewart, POWELL, and STEVENS, JJ ), Woodson v North
Carolina, 428 U S 280, 303-304 (1976) (plurality opinion) *
The Georgia scheme provides for categorical narrowing at
the definition stage, and for individualized determination and
appellate review at the selection stage We therefore re-
main convinced, as we were in 1976, that the structure of the
statute is constitutional Moreover, the narrowing function
has been properly achieved m this case by the two valid
aggravating circumstances upheld by the Georgia Supreme
Court — that respondent had escaped from lawful confine-
ment, and that he had a prior record of conviction for a capi-
tal felony These two findings adequately differentiate this
case in an objective, evenhanded, and substantively rational
way from the many Georgia murder cases in which the death
penalty may not be imposed Moreover, the Georgia
Supreme Court in this case reviewed the death sentence to
determine whether it was arbitrary, excessive, or dispropor-
supra, at 192-195, sets forth lists of aggravating and mitigating circum-
stances but also provides that the sentencer "shall take into account
any other facts that it deems relevant " ALI, Model Penal Code
§201 6 (Prop Off Draft, 1962)
A State is, of course, free to decide as a matter of state law to limit the
evidence of aggravating factors that the prosecution may offer at the
sentencing hearing A number of States do not permit the sentencer to
consider aggravating circumstances other than those enumerated in the
statute See GiUers, Deciding Who Dies, 129 U Pa L Rev 1, 101-119
(1980), see, e g , Ark Stat Ann §41-1301(4) (1977), 42 Pa Cons Stat
§9711(a)(2)(1980)
18 See Cillers, supra n 17, at 26-27
880 OCTOBER TERM, 1982
Opinion of the Court 452 U S
tionate 19 Thus the absence of legislative or court-imposed
standards to govern the jury in weighing the significance of
either or both of those aggravating circumstances does not
render the Georgia capital sentencing statute invalid as ap-
plied in this case
II
Respondent contends that under the rule of Stromberg v
California, 283 U S 359 (1931), and subsequent cases, the
invalidity of one of the statutory aggravating circumstances
underlying the jury's sentencing verdict requires that its en-
tire death sentence be set aside In order to evaluate this
contention, it is necessary to identify two related but differ-
ent rules that have their source in the Stromberg case
In Stromberg, a member of the Communist Party was con-
victed of displaying a red flag in violation of the California
Penal Code The California statute prohibited such a display
(1) as a "sign, symbol or emblem" of opposition to organized
government, (2) as an invitation or stimulus to anarchistic ac-
tion, or (3) as an aid to seditious propaganda This Court
held that the first clause of the statute was repugnant to the
Federal Constitution and found it unnecessary to pass on the
validity of the other two clauses because the jury's guilty ver-
dict might have rested exclusively on a conclusion that
Stromberg had violated the first The Court explained
19 The Georgia Supreme Court conducts an independent review of the
propriety of the sentence even when the defendant has not specifically
raised objections at trial See Stephens v State, 237 Ga 259, 260, 227
S E 2d 261, 262, cert denied, 429 U S 986 (1976) In this case, the
Georgia Supreme Court explained
"In performing the sentence comparison required by Code Ann
§ 27-2537(c)(3), this court uses for comparison purposes not only similar
cases in which death was imposed, but similar cases in which death was not
imposed " 237 Ga , at 262, 227 S E 2d, at 263
As an appendix to the opinion it provided a list of the similar cases it had
considered, as the statute requires Id , at 263, 227 S E 2d, at 264 See
also Ross v State, 233 Ga 361, 364-367, 211 S E 2d 356, 358-360 (1974),
Tucker v State, 245 Ga 68, 74, 263 S E 2d 109, 113 (1980)
ZANT v STEPHENS 881
862 Opinion of the Court
"The verdict against the appellant was a general one
It did not specify the ground upon which it rested As
there were three purposes set forth m the statute, and
the jury were instructed that their verdict might be
given with respect to any one of them, independently
considered, it is impossible to say under which clause of
the statute the conviction was obtained If any one of
these clauses, which the state court has held to be sepa-
rable, was invalid, it cannot be determined upon this
record that the appellant was not convicted under that
clause " Id , at 367-368
"The first clause of the statute being invalid upon its
face, the conviction of the appellant, which so far as the
record discloses may have rested upon that clause exclu-
sively, must be set aside " Id , at 369-370
One rule derived from the Stromberg case is that a general
verdict must be set aside if the jury was instructed that it
could rely on any of two or more independent grounds, and
one of those grounds is insufficient, because the verdict may
have rested exclusively on the insufficient ground The
cases in which this rule has been applied all involved general
verdicts based on a record that left the reviewing court un-
certain as to the actual ground on which the jury's decision
rested See, e g , Williams v North Carolina, 317 U S
287, 292 (1942), Cramer v United States, 325 U S 1, 36,
n 45 (1945), Terminiello v Chicago, 337 U S 1, 5-6 (1949),
Yates v United States, 354 U S 298, 311-312 (1957) This
rule does not require that respondent's death sentence be
vacated, because the jury did not merely return a general
verdict stating that it had found at least one aggravating cir-
cumstance The jury expressly found aggravating circum-
stances that were valid and legally sufficient to support the
death penalty
The second rule derived from the Stromberg case is illus-
trated by Thomas v Collins, 323 U S 516, 528-529 (1945),
and Street v New York, 394 U S 576, 586-590 (1969) In
882 OCTOBER TERM, 1982
Opinion of the Court 452 u S
those cases we made clear that the reasoning of Stromberg
encompasses a situation in which the general verdict on a
single-count indictment or information rested on both a con-
stitutional and an unconstitutional ground In Thomas v
Collins, a labor organizer's contempt citation was predicated
both upon a speech expressing a general invitation to a group
of nonunion workers, which the Court held to be constitution-
ally protected speech, and upon solicitation of a single indi
vidual The Court declined to consider the State's conten-
tion that the judgment could be sustained on the basis of the
individual solicitation alone,20 for the record showed that the
penalty had been imposed on account of both solicitations
"The judgment therefore must be affirmed as to both or as to
neither " 323 U S , at 529 Similarly, in Street, the record
indicated that petitioner's conviction on a single-count indict
ment could have been based on his protected words as well
as on his arguably unprotected conduct, flag burning We
stated that, "unless the record negates the possibility that
the conviction was based on both alleged violations," the
judgment could not be affirmed unless both were valid 394
U S , at 588
The Court's opinion in Street explained
"We take the rationale of Thomas to be that when a
single-count indictment or information charges the com
mission of a crime by virtue of the defendant's having
done both a constitutionally protected act and one which
may be unprotected, and a guilty verdict ensues without
elucidation, there is an unacceptable danger that the
trier of fact will have regarded the two acts as 'inter-
twined' and have rested the conviction on both together
See 323 U S , at 528-529, 540-541 There is no com-
20 The State neither conceded nor unequivocally denied that the sentence
was imposed on account of both acts "Nevertheless the State maintains
that the invitation to O'Sulhvan in itself is sufficient to sustain the judg
ment and sentence and that nothing more need be considered to support
them " 323 U S , at 528, n 14
ZANT v STEPHENS 883
862 Opinion of the Court
parable hazard when the indictment or information is in
several counts and the conviction is explicitly declared to
rest on findings of guilt on certain of these counts, for in
such instances there is positive evidence that the trier of
fact considered each count on its own merits and sepa-
rately from the others " Ibid (footnote omitted)
The rationale of Thomas and Street applies to cases in
which there is no uncertainty about the multiple grounds on
which a general verdict rests If, under the instructions to
the jury, one way of committing the offense charged is to per-
form an act protected by the Constitution, the rule of these
cases requires that a general verdict of guilt be set aside even
if the defendant's unprotected conduct, considered sepa-
rately, would support the verdict It is a difficult theoretical
question whether the rule of Thomas and Street applies to the
Georgia death penalty scheme The jury's imposition of the
death sentence after finding more than one aggravating cir-
cumstance is not precisely the same as the jury's verdict of
guilty on a single-count indictment after finding that the de-
fendant has engaged in more than one type of conduct encom-
passed by the same criminal charge, because a wider range of
considerations enters into the former determination On the
other hand, it is also not precisely the same as the imposition
of a single sentence of imprisonment after guilty verdicts on
each of several separate counts in a multiple-count indict-
ment,21 because the qualitatively different sentence of death
is imposed only after a channeled sentencing procedure We
need not answer this question here The second rule de-
rived from Stromberg, embodied in Thomas and Street, ap-
plies only in cases in which the State has based its prosecu-
21 In this situation the Court has held that the single sentence may stand,
even if one or more of the counts is invahd, as long as one of the counts is
valid and the sentence is within the range authorized by law See
Claassen v United States, 142 U S 140 (1891), Pinkerton v United
States, 328 U S 640 (1946), Barenblatt v United States, 360 U S 109
(1959)
884 OCTOBER TERM, 1982
Opinion of the Court 452 U S
tion, at least in part, on a charge that constitutionally pro-
tected activity is unlawful No such charge was made in re-
spondent's sentencing proceeding
In Stromberg, Thomas, and Street, the trial courts' judg-
ments rested, m part, on the fact that the defendant had been
found guilty of expressive activity protected by the First
Amendment In contrast, in this case there is no suggestion
that any of the aggravating circumstances involved any con-
duct protected by the First Amendment or by any other pro-
vision of the Constitution Accordingly, even if the Strom
berg rules may sometimes apply in the sentencing context, a
death sentence supported by at least one valid aggravating
circumstance need not be set aside under the second Strom-
berg rule simply because another aggravating circumstance is
"invalid" in the sense that it is insufficient by itself to support
the death penalty In this case, the jury's finding that re-
spondent was a person who has a "substantial history of seri-
ous assaultive criminal convictions" did not provide a suffi-
cient basis for imposing the death sentence But it raised
none of the concerns underlying the holdings in Stromberg,
Thomas, and Street, for it did not treat constitutionally pro-
tected conduct as an aggravating circumstance
III
Two themes have been reiterated in our opinions discuss-
ing the procedures required by the Constitution in capital
sentencing determinations On the one hand, as the general
comments in the Gregg joint opinion indicated, 428 U S , at
192-195, and as THE CHIEF JUSTICE explicitly noted in
Lockett v Ohio, 438 U S , at 605 (plurality opinion), there
can be "no perfect procedure for deciding in which cases gov
ernmental authority should be used to impose death " See
also Beck v Alabama, 447 U S 625, 638, n 13 (1980) On
the other hand, because there is a qualitative difference be
tween death and any other permissible form of punishment,
"there is a corresponding difference in the need for reliability
ZANTv STEPHENS 885
862 Opinion of the Court
in the determination that death is the appropriate punish-
ment in a specific case " Woodson v North Carolina, 428
U S , at 305 "It is of vital importance to the defendant and
to the community that any decision to impose the death sen-
tence be, and appear to be, based on reason rather than ca-
price or emotion " Gardner v Florida, 430 U S 349, 358
(1977) Thus, although not every imperfection in the delib-
erative process is sufficient, even in a capital case, to set
aside a state-court judgment, the severity of the sentence
mandates careful scrutiny in the review of any colorable
claim of error
Respondent contends that the death sentence was im-
paired because the judge instructed the jury with regard to
an invalid statutory aggravating circumstance, a "substantial
history of serious assaultive criminal convictions," for these
instructions may have affected the jury's deliberations In
analyzing this contention it is essential to keep in mind the
sense in which that aggravating circumstance is "invalid "
It is not invalid because it authorizes a jury to draw adverse
inferences from conduct that is constitutionally protected
Georgia has not, for example, sought to characterize the dis-
play of a red flag, cf Stromberg v California, the expression
of unpopular political views, cf Terminiello v Chicago, 337
U S 1 (1949), or the request for trial by jury, cf United
States v Jackson, 390 U S 570 (1968), as an aggravating
circumstance Nor has Georgia attached the "aggravating"
label to factors that are constitutionally impermissible or to-
tally irrelevant to the sentencing process, such as for exam-
ple the race, religion, or political affiliation of the defendant,
cf Herndon v Lowry, 301 U S 242 (1937), or to conduct
that actually should militate in favor of a lesser penalty, such
as perhaps the defendant's mental illness Cf Miller v
Florida, 373 So 2d 882, 885-886 (Fla 1979) If the ag-
gravating circumstance at issue in this case had been invalid
for reasons such as these, due process of law would require
that the jury's decision to impose death be set aside
886 OCTOBER TERM, 1982
Opinion of the Court 462 u S
But the invalid aggravating circumstance found by the jury
in this case was struck down in Arnold because the Georgia
Supreme Court concluded that it fails to provide an adequate
basis for distinguishing a murder case in which the death pen-
alty may be imposed from those cases in which such a penalty
may not be imposed See nn 5 and 16, supra The under-
lying evidence is nevertheless fully admissible at the sentenc-
ing phase As we noted in Gregg, 428 U S , at 163, the
Georgia statute provides that, at the sentencing hearing, the
judge or jury
"'shall hear additional evidence in extenuation, mitiga-
tion, and aggravation of punishment, including the
record of any prior criminal convictions and pleas of
guilty or pleas of nolo contendere of the defendant, or
the absence of any prior conviction and pleas Provided,
however, that only such evidence in aggravation as the
State has made known to the defendant prior to his trial
shall be admissible '" Ga Code §27-2503 (1975) (em
phasis supplied) m
We expressly rejected petitioner's objection to the wide
scope of evidence and argument allowed at presentence
hearings
"We think that the Georgia court wisely has chosen not
to impose unnecessary restrictions on the evidence that
can be offered at such a hearing and to approve open and
far-ranging argument So long as the evidence in-
troduced and the arguments made at the presentence
hearing do not prejudice a defendant, it is preferable not
to impose restrictions We think it desirable for the
jury to have as much information before it as possible
22 See Fair v State, 245 Ga 868, 873, 268 S E 2d 316, 321 (1980) ("Any
lawful evidence which tends to show the motive of the defendant, his lack
of remorse, his general moral character, and his predisposition to commit
other crimes is admissible in aggravation, subject to the notice provisions
of the statute")
ZANT v STEPHENS 887
862 Opinion of the Court
when it makes the sentencing decision " 428 U S , at
203-204
See id , at 206-207, see also n 17, supra
Thus, any evidence on which the jury might have rehed in
this case to find that respondent had previously been con-
victed of a substantial number of serious assaultive offenses,
as he concedes he had been, was properly adduced at the sen-
tencing hearing and was ftdly subject to explanation by the
defendant ** Cf Gardner v Florida, supra (requiring that
the defendant have the opportunity to rebut evidence and
State's theory in sentencing proceeding), Presnell v Geor-
gia, 439 U S 14, 16, n 3 (1978) (same) * This case involves
a statutory aggravating circumstance, invalidated by the
State Supreme Court on grounds of vagueness, whose terms
plausibly described aspects of the defendant's background
that were properly before the jury and whose accuracy was
unchallenged Hence the erroneous instruction does not rm-
28 "The purpose of Code Ann §27-2503(a) is to allow a defendant to ex-
amine his record to determine if the convictions are in fact his, if he was
represented by counsel, and any other defect which would render such doc-
uments inadmissible during the pre-sentencing phase of the trial " Her
ring v State, 238 Ga 288, 290, 232 S E 2d 826, 828 (1977) See Franklin
v State, 245 Ga 141, 149-150, 263 S E 2d 666, 671-672 (1980) As we
held in United States v Twker, 404 U S 443, 447-449 (1972), even in a
noncapital sentencing proceeding, the sentence must be set aside if the
trial court rehed at least in part on ''misinformation of constitutional magni-
tude" such as prior uncounseled convictions that were unconstitutionally
imposed See Townsend v Burke, 334 U S 736, 740-741 (1948) (revers-
ing a sentence imposed on uncounseled defendant because it was based on
"extensively and materially false" assumptions concerning the defendant's
prior criminal record)
24 Petitioner acknowledges that, if an invalid statutory aggravating cir-
cumstance were supported by material evidence not properly before the
jury, a different case would be presented Brief for Petitioner 13, Supple-
mental Memorandum for Petitioner 18, Tr of Oral Arg 14, 18-20 We
need not decide in this case whether the death sentence would be unpaired
in other circumstances, for example, if the jury's finding of an aggravating
circumstance rehed on materially inaccurate or misleading information
888 OCTOBER TERM, 1982
Opinion of the Court 462 U S
plicate our repeated recognition that the "qualitative differ
ence between death and other penalties calls for a greater de
gree of reliability when the death sentence is imposed "
Lockett v Ohio, 438 U S , at 604 (opinion of BURGER, C J )
Although the Court of Appeals acknowledged on rehearing
that the evidence was admissible, it expressed the concern
that the trial court's instructions "may have unduly directed
the jury's attention to his prior conviction " 648 F 2d, at
446 But, assuming that the instruction did induce the jury
to place greater emphasis upon the respondent's prior cruni
nal record than it would otherwise have done, the question
remains whether that emphasis violated any constitutional
right In answering this question, it is appropriate to com
pare the instruction that was actually given, see supra, at
866, with an instruction on the same subject that would have
been unobjectionable Cf Henderson v Kibbe, 431 U S
145, 154-157 (1977) Nothing in the United States Constitu
tion prohibits a trial judge from instructing a jury that it
would be appropriate to take account of a defendant's prior
criminal record in making its sentencing determination, see
n 17, supra, even though the defendant's prior history of
noncapital convictions could not by itself provide sufficient
justification for imposing the death sentence There would
have been no constitutional infirmity in an instruction stat
mg, in substance "If you find beyond a reasonable doubt that
the defendant is a person who has previously been convicted
of a capital felony, or that he has escaped from lawful confine
ment, you will be authorized to impose the death sentence,
and in deciding whether or not that sentence is appropriate
you may consider the remainder of his prior criminal record "
The effect the erroneous instruction may have had on
the jury is therefore merely a consequence of the statutory
label "aggravating circumstance " That label arguably
might have caused the jury to give somewhat greater weight
to respondent's prior criminal record than it otherwise would
have given But we do not think the Georgia Supreme
ZANTv STEPHENS 889
862 Opinion of the Court
Court erred in its conclusion that the "mere fact that some of
the aggravating circumstances presented were improperly
designated "statutory" " had "an inconsequential impact on the
jury's decision regarding the death penalty " 250 Ga , at
100, 297 S E 2d, at 4 The instructions, see supra, at 866,
did not place particular emphasis on the role of statutory ag-
gravating circumstances in the jury's ultimate decision In-
stead the trial court instructed the jury to "consider all of the
evidence received m court throughout the trial before you"
and to "consider all facts and circumstances presented m
extinuation [sic]9 mitigation and aggravation of punishment
as well as such arguments as have been presented for the
State and for the Defense " App 18 More importantly,
for the reasons discussed above, any possible impact cannot
fairly be regarded as a constitutional defect in the sentencing
process ffi
25 The Georgia Supreme Court's affirmance of this case on direct appeal
implicitly approves the jury instructions as an accurate reflection of state
law Moreover, the instructions are entirely consistent with the explana-
tion of Georgia's statutory scheme given in the Georgia Supreme Court's
response to our certified question According to the response, see supra,
at 872,"[u]nless at least one of the ten statutory aggravating circum-
stances exists, the death penalty may not be imposed in any event If
there exists at least one statutory aggravating circumstance, the death
penalty may be imposed but the factfinder has a discretion to decline to do
so without giving any reason In making the decision as to the penalty,
the factfinder takes into consideration all circumstances before it from both
the guilt-innocence and the sentence phases of the trial " 250 Ga , at 100,
297 S E 2d, at 3-4 This is precisely what the trial court told the juiy
"Now in arriving at your determinations in this regard you are authorized
to consider all of the evidence received in court throughout the trial before
you You are further authorized to consider all facts and circumstances
presented in extinuation [sic], mitigation and aggravation of punishment
as well as such arguments as have been presented for the State and for the
Defense Unless one or more of these statutory aggravating circum-
stances are proven beyond a reasonable doubt you will not be authorized to
fix punishment at death If you fix punishment at death by electro-
cution you would recite in the exact words which I have given you the
one or more circumstances you found to be proven beyond a reasonable
890 OCTOBER TERM, 1982
Opinion of the Court 462 u g
Our decision in this case depends in part on the existence of
an important procedural safeguard, the mandatory appellate
review of each death sentence by the Georgia Supreme Court
to avoid arbitrariness and to assure proportionality26 We
accept that court's view that the subsequent invalidation of
one of several statutory aggravating circumstances does not
automatically require reversal of the death penalty, having
been assured that a death sentence will be set aside if the
invalidation of an aggravating circumstance makes the pen-
alty arbitrary or capricious 250 Ga , at 101, 297 S E 2d, at
4 The Georgia Supreme Court, in its response to our certi-
fied question, expressly stated "A different result might be
reached m a case where evidence was submitted in support of
a statutory aggravating circumstance which was not other
wise admissible, and thereafter the circumstance failed"
Ibid As we noted in Gregg, 428 U S , at 204-205, we have
also been assured that a death sentence will be vacated if it is
excessive or substantially disproportionate to the penalties
that have been imposed under similar circumstances
Finally, we note that in deciding this case we do not
express any opinion concerning the possible significance
of a holding that a particular aggravating circumstance is
"invalid" under a statutory scheme in which the judge or jury
is specifically instructed to weigh statutory aggravating and
mitigating circumstances in exercising its discretion whether
to impose the death penalty See n 12, supra As we have
discussed, see supra, at 873-880, the Constitution does not
require a State to adopt specific standards for instructing the
jury m its consideration of aggravating and mitigating cir
cumstances, and Georgia has not adopted such a system
doubt [If you recommend life imprisonment] it would not be necessary
for you to recite any mitigating or aggravating circumstances as you may
find, and you would simply state in your verdict, We fix punishment at life
in prison " App 18-19 See Zant v Stephens, 456 U S , at 411-412,
n 1
28 See n 19, supra
ZANTv STEPHENS 891
862 Opinion of WHITE, J
Under Georgia's sentencing scheme, and under the trial
judge's instructions in this case, no suggestion is made that
the presence of more than one aggravating circumstance
should be given special weight Whether or not the jury had
concluded that respondent's prior record of criminal convic-
tions merited the label "substantial" or the label "assaultive,"
the jury was plainly entitled to consider that record, together
with all of the other evidence before it, in making its sentenc-
ing determination
The judgment of the Court of Appeals is
Reversed
JUSTICE WHITE, concurring m part and concurring in the
judgment
In Claassen v United States, 142 U S 140 (1891), the de-
fendant in a criminal case was found guilty on 5 of 11 counts
on which the jury was instructed The verdict was a general
one and one 6-year sentence was imposed On writ of error,
this Court affirmed the conviction and sentence, saying that
the first "count and the verdict of guilty returned upon
it being sufficient to support the judgment and sentence,
the question of the sufficiency of the other counts need
not be considered " Id , at 146 Similarly, in Barenblatt v
United States, 360 U S 109 (1959), a defendant was con-
victed on each of five counts, and a general sentence was im-
posed The Court said, id , at 115 "Since this sentence was
less than the maximum punishment authorized by the statute
for conviction under any one Count, the judgment below
must be upheld if the conviction upon any of the Counts
is sustainable" (footnote omitted) Pinkerton v United
States, 328 U S 640, 641, n 1 (1946), Whitfield v Ohio, 297
U S 431, 438 (1936), Abrams v United States, 250 U S
616, 619 (1919), and Evans v United States, 153 U S 584,
595 (1894), were similar holdings It is therefore clear that
in cases such as Claassen and Barenblatt, there is no
Stromberg, Thomas, or Street problem
892 OCTOBER TERM, 1982
Opinion of WHITE, J 452 u S
Here, the jury imposing the sentence found three ag-
gravating circumstances and based on all the evidence im-
posed the death sentence One of the aggravating circum-
stances was found invalid on an intervening appeal in another
case, and the claim is that under Stromberg, Thomas, and
Street, the death sentence must be set aside I agree with
the Court that there is no such problem since the evidence
supporting the invalid aggravating circumstance was prop-
erly before the jury The Court, however, suggests that if
the evidence had been inadmissible under the Federal Con-
stitution, there might be a Stromberg, Thomas, or Street
problem The Court says, ante, at 883 "The jury's im-
position of the death sentence after finding more than one
aggravating circumstance is also not precisely the
same as the imposition of a single sentence of imprisonment
after guilty verdicts on each of several separate counts in a
multiple-count indictment, because the qualitatively different
sentence of death is imposed only after a channeled sentenc-
ing procedure" (footnote omitted) The Court thus suggests
that the Claassen-Barenblatt line of cases may not be appli-
cable to sentencing proceedings in capital punishment cases
I fail to grasp the distinction, however, between those cases
and the sentencing procedures involved here In Claassen
and Barenblatt, there was only one sentence on several
counts and one could be no surer there than here that the
sentence did or did not rest on any one of the counts Those
cases, however, would sustain the sentence if it was author-
ized under any of the valid counts Stromberg, Thomas, and
Street should no more invalidate the single sentence in this
case
Thus in my view there would be no Stromberg -Thomas-
Street problem, as such, if the invalid count had rested on
constitutionally inadmissible evidence But since the jury is
instructed to take into account all the evidence, there would
remain the question whether the inadmissible evidence in-
validates the sentence Perhaps it would, but at least there
ZANTv STEPHENS 893
REHNQUIST, J , concurring in judgment
would be room for the application of the harmless-error rule,
which would not be the case, it seems to me, under the per se
rule of Stromberg, Street, and Thomas
Except for the foregoing, I join the Court's opinion and its
judgment as well
JUSTICE REHNQUIST, concurring in the judgment
While agreeing with the Court's judgment, I write sepa-
rately to make clear my understanding of the application of
the Eighth and Fourteenth Amendments to the capital sen-
tencing procedures used in this case I agree with the
Court's treatment of the factual and procedural background
of the case, and with its characterization of the questions pre-
sented for review In brief, we must decide whether the
procedure by which Georgia imposes the death sentence com-
ports with the Eighth and Fourteenth Amendments,
whether, in this case, imposition of the death sentence vio-
lates the rule of Stromberg v California, 283 U S 359
(1931), and whether the erroneous presentation to a jury of
an invalid aggravating circumstance requires vacating the
death sentence imposed by that jury
The Georgia death sentencing procedure is comprehen-
sively detailed in the statutes of the State, decisions of the
Georgia courts, the opinion issued by the Georgia Supreme
Court in response to the question certified by this Court,
Zant v Stephens, 456 U S 410 (1982), and the jury instruc-
tions in this case As these materials reveal, two separate
proceedings are necessary to imposition of the death sentence
in Georgia The first stage is simply a traditional criminal
trial on the question of guilt or innocence If the defendant
is found guilty of a capital offense, a separate sentencing pro-
ceeding is then conducted
At this second proceeding, the State and the defendant are
permitted to introduce a wide range of evidence in "extenua-
tion, mitigation, and aggravation of punishment " Ga Code
894 OCTOBER TERM, 1982
REHNQUIST, J , concurring m judgment 462 U S
§27-2503 (1978) The sentencing body is then directed to
make two separate decisions First, it decides whether any
of a number of specific, statutorily defined aggravating cir-
cumstances have been proved beyond a reasonable doubt
Ga Code §27-2534 l(b) (1978) In addition, the jury is in-
structed that, if it finds one or more of the statutory ag-
gravating circumstances, it is to make the further judgment
whether the defendant deserves the death sentence In
making this second decision, statutory aggravating circum-
stances found by the sentencer are considered together with
all the other evidence in mitigation and aggravation The
sentencer is not, however, instructed to formally "weigh"
the aggravating circumstances against the mitigating cir-
cumstances If a death sentence is imposed, then the case
receives both conventional appellate consideration and ex-
pedited direct review by the Supreme Court of Georgia
Respondent challenges the Georgia death sentencing sys-
tem as violative of the Eighth Amendment, on the grounds
that it fails adequately to channel the discretion of the sen-
tencing body In particular, respondent urges that the
absence of an instruction that the sentencer must balance
statutory aggravating circumstances against mitigating cir-
cumstances before imposing the death sentence renders the
scheme unconstitutional under the reasoning in Furman v
Georgia, 408 U S 238 (1972) Respondent's claim is, in my
opinion, completely foreclosed by this Court's precedents
Except in minor detail, Georgia's current system is identi-
cal to the sentencing procedure we held constitutional in
Gregg v Georgia, 428 U S 153 (1976) (opinion of Stewart,
POWELL, and STEVENS, JJ ), id , at 207 (WHITE, J , concur-
ring in judgment) The joint opinion in Gregg fully recog-
nized that the Georgia scheme did not direct the sentencing
body that statutory aggravating and mitigating circum-
stances were to be weighed against each other in any formal
sense This is evident from its careful description of the
Georgia scheme, id , at 196-197, and its treatment of the
ZANTv STEPHENS 895
862 REHNQUISJL, J , concurring m judgment
Model Penal Code's proposed system, id , at 193, where the
fact that the sentencing body is formally instructed to weigh
aggravating and mitigating circumstances was specifically
noted Notwithstanding the lack of an explicit "balancing"
directive, the joint opinion upheld the statutory scheme,
since, taken as a whole, it provided the sentencing authority
with sufficient guidance to prevent the "freakish" imposition
of death barred in Furman Likewise, in JUSTICE WHITE'S
concurrence, 428 U S , at 211, the role of aggravating cir-
cumstances was squarely discussed, and approved To ac-
cept respondent's contention that the sentencing body must
be specifically instructed to balance statutory aggravating
circumstances against mitigating circumstances would re-
quire rejecting the judgment in Gregg that the Georgia stat-
ute provided the sentencing body with adequate guidance to
permit it to impose death 1
II
Respondent next contends that Stromberg v California,
283 U S 359 (1931), requires that his death sentence be set
aside Respondent's argument rests on the fact that one of
the three aggravating circumstances specified by the jury in
1 In Jurek v Texas, 428 U S 262 (1976), we approved a death penalty
statute providing even less explicitly for the type of "weighing" that re-
spondent claims is necessary In Texas, persons convicted of five types of
homicide faced a second proceeding in which the jury was required to an-
swer three questions — whether the defendant's acts were committed delib-
erately and with the reasonable expectation that they would result in
death, whether there was a probability that the defendant would commit
violent acts constituting a continuing threat to society, and whether the de-
fendant's acts were in response to some sort of provocation As the joint
opinion recognized, the sole function of the "aggravating circumstances" in
the Texas system was to "narro[w] the categories of murders for which a
death sentence may ever be imposed," id , at 270 Since these "aggravat-
ing circumstances" were only considered at the guilt determination phase
of trial, not at sentencing, the system could not contain a requirement that
the jury "balance" these circumstances against mitigating circumstances —
as respondent contends is constitutionally required in this case
896 OCTOBER TERM, 1982
REHNQUIST, J , concurring m judgment 462 U S
his case was later found invahd under a state-court decision
holding the statutory definition of the circumstance im-
permissibly vague under the United States Constitution
Arnold v State, 236 Ga 534, 224 S E 2d 386 (1976) 2
Respondent reasons that Stromberg establishes a rule requir-
ing that any general verdict returned by a factfinder be set
aside if it is based, even in part, upon "an invahd factor "
Supplemental Brief for Respondent 8 According to re-
spondent, because one of the aggravating circumstances
found by the jury was invalid, the general verdict of death
returned by the jury fails the Stromberg test
Careful examination of Stromberg, cases following that de-
cision, and the role of aggravating circumstances in a jury's
imposition of the death penalty compels rejection of respond-
ent's claim Stromberg presented a straightforward case
The defendant was convicted for violating a California statute
prohibiting the display of a red flag for any of three separate
purposes At trial the jury was instructed that the defend
ant should be convicted if he acted with any one of the
proscribed purposes, it returned a general verdict of guilty
without indicating which purpose it believed motivated the
defendant This Court concluded that the first of the clauses
of the statute detailing impermissible purposes was uncon
stitutional, and held that it was unnecessary to decide the va
hdity of the remaining two clauses The Court observed
that the prosecutor had "emphatically urged upon the jury
that they could convict the appellant under the first clause
alone, without regard to the other clauses " 283 U S , at
368 It concluded that it was "impossible to say under which
clause of the statute the conviction was obtained," ibid , and
that, given this complete uncertainty, the conviction could
not stand See also Williams v North Carolina, 317 U S
2 1 assume, for purposes of this decision, that Arnold was correctly de-
cided and that it was properly apphed to respondent's case I express no
view as to the correctness of that decision or its application
ZANT v STEPHENS 897
862 REHNQUIST, J , concurring m judgment
287, 292 (1942), Cramer v United States, 325 U S 1, 36,
n 45 (1945), Terminiello v Chicago, 337 U S 1, 5-6 (1949),
Yates v United States, 354 U S 298, 311-312 (1957) Of
course, if the jury does indicate which statutory elements
supported its verdict, and if these are vahd, then Stromberg
is inapplicable
As the Court points out, the Stromberg doctrine subse-
quently was extended — albeit without lengthy analysis In
Street v New York, 394 U S 576, 586-590 (1969), the Court
vacated a conviction, based on a single-count indictment, for
casting contempt on the United States flag The statute
under which petitioner was convicted criminalized casting
contempt upon the flag by "words or act " Id , at 578 The
information filed against petitioner alleged that he violated
this statute because he both burned the flag and shouted
derogatory statements about it Likewise, the State intro-
duced evidence at the bench trial of both the petitioner's act
and his speech The Court concluded that petitioner's con-
stitutional rights would have been violated had he been pun-
ished for his speech It thought, moreover, that the trial
judge might have rested his finding solely on petitioner's
speech, which presented a situation similar to that in
Stromberg
In addition, however, the Court believed that, on the
record of the case, there was an "unacceptable danger that
the trier of fact regarded the two acts as 'intertwined'
and rested the conviction on both together " 394 U S ,
at 588 In short, when an element of a crime is defined to
include constitutionally protected actions, and when the
State alleges, argues, and offers proof that the defendant's
protected conduct satisfied the element, then a general ver-
dict of guilty must be set aside, even if the State also alleged
and proved another course of conduct that could have satis-
fied the element As in Stromberg, however, the Court also
noted that when the record indicates that the jury's verdict
did not rest on an "intertwined" combination of protected and
898 OCTOBER TERM, 1982
REHNQUIST, J , concurring in judgment 462 U S
unprotected conduct, but instead rested sufficiently on un-
protected conduct, then the verdict would stand
Neither the Stromberg line of cases nor Street provides re-
spondent with appreciable support I agree with the Court
that the Stromberg rule is plainly distinguishable, since the
jury explicitly returned two concededly valid aggravating cir-
cumstances, thereby conclusively negating the inference that
it rested solely on the invalid circumstance Likewise, I
conclude that the analysis in Street is inapposite 3 It is help-
ful in explaining why this is the case to discuss separately the
two decisions made by the sentencing body during the Geor-
gia death penalty proceedings I initially consider the ap-
plicability of Street to the jury's first decision, that is, the
finding of statutory aggravating circumstances
As indicated above, Street explicitly stated that its rule re-
garding the treatment of aggravating circumstances is inap-
plicable "when the indictment or information is in several
counts and the conviction is explicitly declared to rest on find-
ings of guilt on certain of those counts, for in such instances
there is positive evidence that the trier of fact considered
each count on its own merits and separately from the others "
394 U S , at 588 (footnote omitted) This exception to the
Street rule extends to the jury's determination in this case
that certain specified aggravating circumstances existed
The jury received separate instructions as to each of several
aggravating circumstances, and returned a verdict form sep
arately listing three circumstances The fact that one of
these subsequently proved to be invalid does not affect the
validity of the remaining two jury findings, just as the rever
sal on appeal of one of several convictions returned to sepa
8 As the Court points out, Street properly has been confined to situations
where there is a substantial risk that the jury has imposed criminal punish
ment because of activity protected by the Constitution Respondent's his
tory of violent conduct, on which the invalid aggravating circumstance was
based, plainly falls outside this category, and Street therefore is mapplica
ble to this case
ZANTt; STEPHENS 899
862 REHNQUIST, J , concurring in judgment
rate counts does not affect the remaining convictions There
was "positive evidence" that Stephens' jury considered each
aggravating circumstance "on its own merits and separately
from the others " Ibid Because of this, Street provides no
basis for questioning the jury's first decision, which, if sup-
ported, permitted it to go further and consider whether Ste-
phens deserved the death sentence
Streets logic is even less applicable to a Georgia death
jury's second decision, namely, that the defendant deserved
the death sentence Under respondent's theory, the jury's
verdict of death was based in part on an aggravating cir-
cumstance that later proved invalid, and which, according to
respondent must thus fall under the rule of Street Whatever
its proper application elsewhere, Streets rule cannot fairly be
extended to the sentencing context As discussed below,
the significant differences between the role of aggravating
circumstances in the jury's decision to impose the death
sentence and the role played by instructions or allegations
in a jury's determination of guilt preclude applying Street to
the sentencing context
The rule relied upon by respondent was developed in a
situation where a factfinder returns a verdict of guilty on a
specific criminal charge In returning this verdict, the jury
decides whether the defendant committed a specific set of
defined acts with a particular mental state These elements,
each of which is necessary to the verdict of guilty, are specifi-
cally and carefully enumerated and defined in the indictment
or information and the instructions to the jury Only evi-
dence relevant to the particular elements alleged by the
State is admissible, and, even then, subject to exclusion of
prejudicial evidence which might distract the jury from the
specific factfinding task it performs Based on this evidence
the jury decides whether each of the elements constituting
the offense was proved beyond a reasonable doubt The
Court's observation in Williams v New York, 337 U S 241,
246-247 (1949), accurately captures the character of the pro-
900 OCTOBER TERM, 1982
REHNQUIST, J , concurring in judgment 462 U S
cedure leading to a criminal conviction "In a trial before
verdict the issue is whether a defendant is guilty of having
engaged in certain criminal conduct of which he has
been specifically accused Rules of evidence have been fash-
ioned for criminal trials narrowly confin[ing] the trial
contest "
The decision by a Georgia death jury at the final stage of
its deliberations to impose death is a significantly different
decision from the model just described A wide range of evi-
dence is admissible on literally countless subjects <rWe have
long recognized that '[f ]or the determination of sentences,
justice generally requires that there be taken into ac-
count the circumstances of the offense together with the
character and propensities of the offender " Gregg, 428
U S , at 189 (emphasis added) In considering this evi-
dence, the jury does not attempt to decide whether particular
elements have been proved, but instead makes a unique, indi-
vidualized judgment regarding the punishment that a par-
ticular person deserves See Lockett v Ohio, 438 U S 586,
602-605 (1978)
The role of aggravating circumstances in making this judg-
ment is substantially more limited than the role played by
jury instructions or allegations in an indictment in an ordi-
nary trial In Georgia, aggravating circumstances serve
principally to restrict the class of defendants subject to the
death sentence, once a single aggravating circumstance is
specified, the jury then considers all the evidence in aggrava-
tion-mitigation in deciding whether to impose the death pen-
alty, see Part I, supra An aggravating circumstance in this
latter stage is simply one of the countless considerations
weighed by the jury in seeking to judge the punishment ap-
propriate to the individual defendant
If an aggravating circumstance is revealed to be invalid,
the probable effect of this fact alone on the jury's second deci-
sion— whether the death sentence is appropriate — is mini-
mal If one of the few theories of guilt presented to the jury
ZANTv STEPHENS 901
862 REHNQUIST, J , concurring in judgment
in the trial judge's instructions, or the indictment, proves
invalid, there is a substantial risk that the jury may have
based its verdict on an improper theory This follows from
the necessarily limited number of theories presented to the
jury, and from the fact that the jury's decisionmaking is care-
fully routed along paths specifically set out in the instruc-
tions When an aggravating circumstance proves invalid,
however, the effect ordinarily is only to diminish the proba-
tive value of one of literally countless factors that the jury
considered The inference that this diminution would alter
the result reached by the jury is all but nonexistent Given
this, the rule developed in Street simply cannot be applied
sensibly to sentencing decisions resulting from proceedings
involving aggravating circumstances Instead, as developed
in the following Part, a different analysis has been applied to
the question whether to set aside sentencing decisions based
in part upon invalid factors
III
Respondent contends next that, even if Street is inapplica-
ble, the erroneous submission to the jury of an instruction
which we are bound to regard as unconstitutionally vague,
see n 3, supra, must have had sufficient effect on the jury's
deliberations to require vacating its verdict Although our
prior decisions are not completely consistent regarding the
effect of constitutional error in sentencing proceedings on the
sentence imposed on the defendant, in general sentencing de-
cisions are accorded far greater finality than convictions
Ordinarily, a sentence within statutory limits is beyond ap-
pellate review Gore v Umted States, 357 U S 386, 393
;i958) In Street, 394 U S , at 588, n 9, we cited with ap-
proval to several of a long line of sentencing decisions In
Olaassen v Umted States, 142 U S 140 (1891), Pinkerton v
Umted States, 328 U S 640 (1946), and Barenblatt v Umted
States, 360 U S 109 (1959), defendants were convicted on
^everal separate counts and received "general sentences/'
902 OCTOBER TERM, 1982
REHNQUIST, J , concurring in judgment 462 U S
not linked to any one or combination of the counts The de-
fendants then challenged all their convictions on writ of error
or appeal The Court, following a well-settled rule, stated in
Barenblatt "Since this sentence was less than the maximum
punishment authorized by the statute for conviction under
any one Count, the judgment below must be upheld if the
conviction upon any of the Counts is sustainable " Id , at
115 (footnote omitted) In Claassen we said "[I]t is settled
law in this court, and in this country generally, that in any
criminal case a general verdict and judgment on an indict-
ment or information containing several counts cannot be re-
versed on error, if any one of the counts is good and warrants
the judgment, because, m the absence of anything in the
record to show the contrary, the presumption of law is that
the court awarded sentence on the good count only " 142
U S , at 146-147
The practical basis for the rules articulated in Gore and the
Claassen line of cases is clear As indicated above, sentenc-
ing decisions rest on a far-reaching inquiry into countless
facts and circumstances and not on the type of proof of par-
ticular elements that returning a conviction does The fact
that one of the countless considerations that the sentencer
would have taken into account was erroneous, misleading, or
otherwise improperly before him, ordinarily can be assumed
not to have been a necessary basis for his decision None-
theless, in limited cases, noncapital sentencing decisions are
vacated for resentencing
In United States v Tucker, 404 U S 443 (1972), two
uncounseled — and therefore unconstitutionally obtained—
convictions were introduced against the defendant m the sen
tencing proceeding The Court observed that the sentenc
ing judge gave "explicit" and "specific" attention, id , at 444,
447, to these convictions Moreover, it noted that the de
fendant would have "appeared m a dramatically different
light" had the true character of the unconstitutional comae
tions been known the judge would have been dealing with a
ZANTv STEPHENS 903
862 REHNQUIST, J , concurring in judgment
man unconstitutionally imprisoned, beginning at age 17, for
more than 10 years, including 5% years on a chain gang Id ,
at 448 Finally, the Court reemphasized the unconstitu-
tional character of the respondent's prior convictions, and
opined that to permit his sentence to stand would "erode" the
rule in Gideon v Wainwright, 372 U S 335 (1963) Given
all this, respondent's sentence was held improper, and the
case was remanded for resentencing
Similarly, in Townsend v Burke, 334 U S 736 (1948), an
uncounseled defendant was sentenced following a proceeding
in which the trial judge explicitly and repeatedly relied upon
the incorrect assumption that the defendant had been con-
victed of several crimes The Court observed that "[i]t is
not the duration or severity of this sentence that renders it
constitutionally invalid, it is the careless or designed pro-
nouncement of sentence on a foundation so extensively and
materially false, which the prisoner had no opportunity to
correct by the services which counsel would provide, that
renders the proceedings lacking in due process " Id , at 741
The approach taken in Tucker, Townsend, and the
Claassen line of cases begins with the presumption that,
since the sentencer's judgment rested on countless variables,
an error made in one portion of the sentencing proceeding or-
dinarily should not affect the sentence This presumption is
most plainly revealed by the Claassen line of cases, where a
sentence will stand even if it turns out that the crimes for
which the defendant was sentenced had not all been commit-
ted Nonetheless, the defendant may adduce evidence that
the sentencing body likely would have acted differently had
the error not occurred In order to prevail on such a claim,
however, we have required a convincing showing that the in-
troduction of specific constitutionally infirm evidence had an
ascertamable and "dramatic" impact on the sentencing au-
thority See United States v Tucker, supra, Townsend v
Burke, supra Of course, a more careful application of this
standard is appropriate in capital cases
904 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
In the present case, however, the erroneous submission to
the jury of an invalid aggravating circumstance simply cannot
satisfy whatever standard may plausibly be based on the
cases discussed above As the Court points out, the only
real impact resulting from the error was that evidence prop-
erly before the jury was capable of being fit within a category
that the judge's instructions labeled "aggravating " The evi-
dence in question — respondent's prior convictions — plainly
was an aggravating factor, which, as we held in Gregg, the
jury was free to consider The fact that the instruction gave
added weight to this no doubt played some role in the delib-
erations of some jurors Yet, the Georgia Supreme Court
was plainly right in saying that the "mere fact that some of
the aggravating circumstances presented were improperly
designated 'statutory* " had "an inconsequential impact on the
jury's decision regarding the death penalty " 250 Ga 97,
100, 297 S E 2d 1, 4 (1982) The plurality recognized in
Lockett v Ohio, 438 U S , at 605, that there can be "no per-
fect procedure for deciding in which cases governmental au-
thority should be used to impose death " Whatever a de-
fendant must show to set aside a death sentence, the present
case involved only a remote possibility that the error had any
effect on the jury's judgment, the Eighth Amendment did not
therefore require that the defendant's sentence be vacated
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting
Even if I accepted the prevailing view that the death pen-
alty may constitutionally be imposed under certain circum-
stances, I could scarcely join in upholding a death sentence
based in part upon a statutory aggravating circumstance so
vague that its application turns solely on the "whim" of the
jury Arnold v State, 236 Ga 534, 541, 224 S E 2d 386,
391 (1976)
The submission of the unconstitutional statutory aggravat-
ing circumstance to the jury cannot be deemed harmless
error on the theory that "in Georgia, the finding of an ag-
ZANTv STEPHENS 905
862 MARSHALL, J , dissenting
gravating circumstance does not play any role in guiding the
sentencing body in the exercise of its discretion, apart from
its function of narrowing the class of persons convicted of
murder who are eligible for the death penalty " Ante, at 874
(emphasis added) If the trial judge's instructions had ap-
prised the jury of this theory, it might have been proper to
assume that the unconstitutional statutory factor did not af-
fect the jury's verdict But such instructions would have
suffered from an even more fundamental constitutional de-
fect— a failure to provide any standards whatsoever to guide
the jury's actual sentencing decision If this Court's deci-
sions concerning the death penalty establish anything, it is
that a capital sentencing scheme based on "standardless jury
discretion" violates the Eighth and Fourteenth Amend-
ments Gregg v Georgia, 428 U S 153, 195, n 47 (1976)
(opinion of Stewart, POWELL, and STEVENS, JJ ), citing Fur-
man v Georgia, 408 U S 238 (1972)
In any event, the jury that sentenced respondent to death
was never informed of this 'threshold" theory, which was in-
vented for the first time by the Georgia Supreme Court more
than seven years later Under the instructions actually
given, a juror might reasonably have concluded, as has this
Court in construing essentially identical instructions, that
any aggravating circumstances, including statutory ag-
gravating circumstances, should be balanced against any
mitigating circumstances in the determination of the defend-
ant's sentence There is no way of knowing whether the
jury would have sentenced respondent to death if its atten-
tion had not been drawn to the unconstitutional statutory
factor
I
I continue to adhere to my view that the death penalty is
in all circumstances cruel and unusual punishment forbid-
den by the Eighth and Fourteenth Amendments See Gregg
v Georgia, supra, at 231 (MARSHALL, J , dissenting), Fur-
man v Georgia, supra, at 314 (MARSHALL, J , concurring)
906 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
II
Today the Court upholds a death sentence that was based
in part on a statutory aggravating circumstance which the
State concedes was so amorphous that it invited "subjective
decision-making without minimal, objective guidelines
for its application " Arnold v State, supra, at 541, 224
S E 2d, at 391 In order to reach this surprising result, the
Court embraces the theory, which it infers from the Georgia
Supreme Court's response to this Court's certified question,1
that the only function of statutory aggravating circumstances
in Georgia is to screen out at the threshold defendants to
whom none of the 10 circumstances applies According to
this theory, once 1 of the 10 statutory factors has been found,
they drop out of the picture entirely and play no part in the
jury's decision whether to sentence the defendant to death
Relying on this "threshold" theory, the Court concludes that
1 Although the Court asserts that "the Georgia Supreme Court has unam
biguously advised us" that the finding of one or more of the statutory ag
gravating circumstances "merely performs the function of narrowing the
category of persons convicted of murder who are eligible for the death pen
alty" and serves no other function, ante, at 875, the Georgia Supreme
Court's answer to our certified question is in fact far from clear The an
swer states only that the threshold "is passed regardless of the number of
statutory aggravating circumstances found, so long as there is at least
one," and that thereafter the sentencer may consider "all the facts and cir
cumstancesofthecase" 250 Ga 97,100,2978 E 2d 1,4(1982) To say
that all aggravating circumstances, statutory and nonstatutory, may be
considered once one statutory circumstance has been found, is not to say
that "the finding of an aggravating circumstance does not play any role in
guiding the sentencing body in the exercise of its discretion, apart from its
function of narrowing the class of persons convicted of murder who are eli-
gible for the death penalty " Ante, at 874 (emphasis added) There is
nothing in the Georgia Supreme Court's opinion to suggest that jurors are
not to give special attention to statutory aggravating circumstances
throughout their deliberations, rather than simply in making the threshold
determination whether any such circumstances apply
Nonetheless, for the purposes of this opinion I wiU assume that the ma
jority has correctly characterized the Georgia Supreme Court's explanation
of the Georgia capital sentencing procedure
ZANTv STEPHENS 907
862 MARSHALL, J , dissenting
the submission of the unconstitutional statutory factor did
not prejudice respondent
If the jury instructions given some eight years ago were
consistent with this new theory, we could assume that the
jury did not focus on the vague statutory aggravating circum-
stance in making its actual sentencing decision But if the
jury had been so instructed, the instructions would have been
constitutionally defective for a more basic reason, since they
would have left the jury totally without guidance once it
found a single statutory aggravating circumstance
Until this Court's decision in Furman v Georgia in 1972,
the capital sentencing procedures in most States delegated to
judges and juries plenary authority to decide when a death
sentence should be imposed The sentencer was given
"practically untrammeled discretion to let an accused live or
insist that he die " Furman v Georgia, supra, at 248
(Douglas, J , concurring) (footnote omitted)
In Furman this Court held that the system of capital pun-
ishment then in existence in this country was incompatible
with the Eighth and Fourteenth Amendments As was later
recognized in Gregg v Georgia, Furman established one basic
proposition if it established nothing else "where the ulti-
mate punishment of death is at issue a system of stand-
ardless jury discretion violates the Eighth and Fourteenth
Amendments " 428 U S , at 195, n 47 (opinion of Stewart,
POWELL, and STEVENS, JJ ) The basic teaching of Furman
is that a State may not leave the decision whether a defend-
ant lives or dies to the unfettered discretion of the jury,
since such a scheme is "pregnant with discrimination, " 408
U S , at 257 (Douglas, J , concurring), and inevitably re-
sults in death sentences which are Wantonly and freak-
ishly imposed," id , at 310 (Stewart, J , concurring), and for
which "there is no meaningftd basis for distinguishing the few
cases in which [the death penalty] is imposed from the many
908 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
cases in which it is not " Id , at 313 (WHITE, J , concur-
ring) 2 See Gregg v Georgia, 428 U S , at 195, n 47 (noting
that Furman "ruled that death sentences imposed under
statutes that left juries with untrammeled discretion to im-
pose or withhold the death penalty violated the Eighth and
Fourteenth Amendments")
Four years after Furman was decided, this Court upheld
the capital sentencing statutes of Georgia, Florida, and Texas
against constitutional attack, concluding that those statutes
contained safeguards that promised to eliminate the constitu-
tional deficiencies found in Furman See Gregg v Georgia,
Proffitt v Florida, 428 U S 242 (1976), Jurek v Texas, 428
U S 262 (1976) The Court's conclusion was based on the
premise that the statutes ensured that sentencers would be
"given guidance regarding the factors about the crime and
the defendant that the State, representing organized society,
deems particularly relevant to the sentencing decision "
Gregg v Georgia, 428 U S , at 192 (opinion of Stewart, POW-
ELL, and STEVENS, JJ ) 3 The Court assumed that the iden-
2 JUSTICE BRENNAN and I were the other two Members of the Furman
majority We concluded that the death penalty is in all circumstances
cruel and unusual punishment 408 U S , at 257 (BRENNAN, J , concur
ring), id , at 314 (MARSHALL, J , concurring)
3 See Gregg v Georgia, 428 U S , at 221 (WHITE, J , joined by BURGER,
C J , and REHNQUIST, J , concurring in judgment) ("The Georgia Legis
lature has made an effort to identify those aggravating factors which it
considers necessary and relevant to the question whether a defendant
convicted of capital murder should be be sentenced to death") (emphasis
added, footnote omitted), Proffitt v Florida, 428 U S 242, 251 (1976)
(opinion of Stewart, POWELL, and STEVENS, JJ ) ("The sentencing author
ity in Florida, the trial judge, is directed to weigh eight aggravating fac
tors against seven mitigating factors to determine whether the death pen
alty shall be imposed"), id , at 260 (WHITE, J , joined by BURGER, C J ,
and REHNQUIST, J , concurring m judgment) ("although the statutory ag
gravating and mitigating circumstances are not susceptible of mechanical
application, they are by no means so vague and overbroad as to leave the
discretion of the sentencing authority unfettered"), Jurek v Texas, 428
U S 262, 273-274 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ )
ZANTv STEPHENS 909
862 MARSHALL, J , dissenting
tification of specific statutory aggravating circumstances
would put an end to standardless sentencing discretion
"These procedures require the jury to consider the cir-
cumstances of the crime and the criminal before it rec-
ommends sentence No longer can a Georgia jury do as
Furman's jury did reach a finding of the defendant's
guilt and then, without guidance or direction, decide
whether he should live or die Instead, the jury's atten-
tion is directed to the specific circumstances of the
crime Was it committed in the course of another capital
felony? Was it committed for money? Was it commit-
ted upon a peace officer or judicial officer? Was it com-
mitted in a particularly heinous way or in a manner that
endangered the lives of many persons? In addition, the
jury's attention is focused on the characteristics of the
person who committed the crime Does he have a record
of prior convictions for capital offenses? Are there any
special facts about this defendant that mitigate against
imposing capital punishment As a result, while
some jury discretion still exists, 'the discretion to be ex-
ercised is controlled by clear and objective standards so
as to produce non-discriminatory application ' " Id , at
197-198 (opinion of Stewart, POWELL, and STEVENS,
JJ ) (emphasis added, footnote and citation omitted)
In Godfrey v Georgia, 446 U S 420 (1980), the Court reit-
erated that a State "must channel the sentencer's discretion
by 'clear and objective standards' that provide 'specific and
detailed guidance ' " Id , at 428 (plurality opinion) (citations
("It appears that the Texas capital-sentencing procedure guides
and focuses the jury's objective consideration of the particularized circum
stances of the individual offense and the individual offender before it can
impose a sentence of death"), id , at 279 (WHITE, J , joined by BURGER,
C J , and REHNQUIST, J , concurring in judgment) ("the Texas capital
punishment statute limits the imposition of the death penalty to a narrowly
defined group of the most brutal crimes and aims at limiting its imposition
to similar offenses occurring under similar circumstances'*)
910 OCTOBER TERM, 1982
MARSHALL, J , dissenting 432 u S
omitted) The Court reaffirmed the teaching ofFurman and
Gregg that "the penalty of death may not be imposed under
sentencing procedures that create a substantial risk that the
punishment will be inflicted in an arbitrary and capricious
manner " 446 U S , at 427 "[I]f a State wishes to author
ize capital punishment it has a constitutional responsibility to
tailor and apply its law in a manner that avoids the arbitrary
and capricious infliction of the death penalty " Id , at 428
B
Today we learn for the first time that the Court did not
mean what it said in Gregg v Georgia We now learn that
the actual decision whether a defendant lives or dies may still
be left to the unfettered discretion of the jury Although we
were assured in Gregg that sentencing discretion was " 'to be
exercised by clear and objective standards/" 428 U S ,
at 198 (opinion of Stewart, POWELL, and STEVENS, JJ ), we
are now told that the State need do nothing whatsoever to
guide the jury's ultimate decision whether to sentence a de
fendant to death or spare his life
Under today's decision all the State has to do is require the
jury to make some threshold finding Once that finding is
made, the jurors can be left completely at large, with nothing
to guide them but their whims and prejudices They need
not even consider any statutory aggravating circumstances
that they have found to be applicable Their sentencing de
cision is to be the product of their discretion and of nothing
else
If this is not a scheme based on "standardless jury discre
tion," Gregg v Georgia, 428 U S , at 195, n 47 (opinion of
Stewart, POWELL, and STEVENS, JJ ), I do not know what is
Today's decision makes an absolute mockery of this Court's
precedents concerning capital sentencing procedures There
is no point in requiring state legislatures to identify specific
aggravating circumstances if sentencers are to be left free to
ignore them in deciding which defendants are to die If this
is all Gregg v Georgia stands for, the States may as well be
ZANT v STEPHENS 911
862 MARSHALL, J , dissenting
permitted to reenact the statutes that were on the books be-
fore Furman
The system of discretionary sentencing that the Court
approves today differs only in form from the capital sentenc-
ing procedures that this Court held unconstitutional more
than a decade ago The only difference between Georgia's
pre-Furman capital sentencing scheme and the "threshold"
theory that the Court embraces today is that the unchecked
discretion previously conferred in all cases of murder is now
conferred m cases of murder with one statutory aggravating
circumstance But merely circumscribing the category of
cases eligible for the death penalty cannot remove from con-
stitutional scrutiny the procedure by which those actually
sentenced to death are selected
More than a decade ago this Court struck down an Ohio
statute that permitted a death sentence only if the jury found
that the victim of the murder was a police officer, but gave
the jury unbridled discretion once that aggravating factor
was found Duhng v Ohio, 408 U S 936 (1972), summarily
rev'g 21 Ohio St 2d 13, 254 N E 2d 670 (1970) See Ohio
Rev Code Ann §2901 04 (1953) There is no difference of
any consequence between the Ohio scheme held impermissi-
ble in Duhng and the "threshold" scheme that the Court en-
dorses today If, as Duhng establishes, the Constitution
prohibits a State from defining a crime (such as murder of a
police officer) and then leaving the decision whether to im-
pose the death sentence to the unchecked discretion of the
jury, it must also prohibit a State from defining a lesser crime
(such as murder) and then permitting the jury to make a
standardless sentencing decision once it has found a single
aggravating factor (such as that the victim was a police offi-
cer) In both cases the ultimate decision whether the de-
fendant will be killed is left to the discretion of the sentencer,
unguided by any legislative standards 4 Whether a particu-
4 This remains true whether or not the aggravating factor satisfies the
Court's requirement that it "genuinely narrow the class of persons ehgible
912 OCTOBER TERM, 1982
MARSHALL, J , dissenting 4^2 u g
lar preliminary finding was made at the guilt phase of the
trial or at the sentencing phase is irrelevant, a requirement
that the finding be made at the sentencing phase in no way
channels the sentencer's discretion once that finding has been
made 5 If the Constitution forbids one form of standardless
discretion, it must forbid the other as well
III
A
In any event, the jury that sentenced respondent to death
was never apprised of the "threshold" theory relied upon by
the Court There is no basis for the Court's assumption,
for the death penalty and reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of mur
der " Ante, at 877
6 This Court has repeatedly recognized that a capital sentencing statute
does not satisfy the Constitution simply because it requires a bifurcated
trial and permits presentation at the penalty phase of evidence concerning
the circumstances of the crime, the defendant's background and history,
and other factors in aggravation and mitigation of punishment E g ,
Delgado v Connecticut, 408 U S 940 (1972), summarily rev'g 161 Conn
536, 290 A 2d 338 (1971) (see Conn Gen Stat § 53-10 (1968)), Moore v
Illinois, 408 U S 786 (1972) (see 111 Rev Stat , ch 38, § 1-7 (1963)),
Scoleri v Pennsylvania, 408 U S 934 (1972), summarily rev'g 432 Pa
571, 248 A 2d 295 (1968) (see Pa Stat Ann , Tit 18, §4701 (1963)) Al
though the creation of a separate sentencing proceeding permits the exclu
sion from the guilt phase of information that is relevant only to sentencing
and that might prejudice the determination of guilt, merely bifurcating the
trial obviously does nothing to guide the discretion of the sentencer See
Gregg v Georgia, 428 U S , at 192 (opinion of Stewart, POWELL, and STE
VENS, JJ )
Nor is mandatory appellate review a substitute for legislatively defined
criteria to guide the jury in imposing sentence Ante, at 890 Al
though appellate review may serve to reduce arbitrariness and caprice
"[wjhere the sentencing authority is required to specify the factors it relied
upon in reaching its decision," Gregg v Georgia, supra, at 195 (opinion of
Stewart, POWELL, and STEVENS, JJ ), appellate review cannot serve this
function where statutory aggravating circumstances play only a threshold
role and an appellate court therefore has no means of ascertaining the fac
tors underlying the jury's ultimate sentencing decision
ZANT v STEPHENS 913
862 MARSHALL, J , dissenting
ante, at 891, that the jury did not attribute special signifi-
cance to the statutory aggravating circumstances and did not
weigh them, along with any other evidence in aggravation,
against the evidence offered by respondent in mitigation
In the first place,
"everything about the judge's charge highlighted the im-
portance of the aggravating circumstances Not only
were the circumstances submitted to the jury in writing,
but also the jury was in turn required to write down each
and every aggravating circumstance that it found to be
established beyond a reasonable doubt The jury in-
structions provide absolutely no indication that, after
carefully considering each of the statutory aggravating
circumstances submitted by the trial judge, the jury
should, or even could, discard the list of officially sanc-
tioned grounds for imposing the death penalty in decid-
ing whether to actually sentence respondent to death "
Zant v Stephens, 456 U S 410, 427 (1982) (MARSHALL,
J , dissenting)
In deciding whether respondent deserved to die, the jurors
might well have deemed his prior assaults unimportant if the
judge had not specifically focused on them in his charge
Second, the Court's assertion that "in Georgia, the finding
of an aggravating circumstance does not play any role in
guiding the sentencing body in the exercise of its discretion,"
ante, at 874, is flatly inconsistent with this Court's own previ-
ous characterizations of the function of statutory aggravating
circumstances in the Georgia scheme In Gregg v Georgia,
where the jury instructions were essentially identical to
those given here,6 the joint opinion of Justices Stewart,
6 The instructions given in this case are set forth in the Court's opinion
last Term certifying a question to the Georgia Supreme Court See Zant
v Stephens, 456 U S 410, 411-412, n 1 (1982) The instructions given in
Gregg are quoted in JUSTICE WHITE'S opinion concurring in the judgment
in that case See 428 U S , at 217-218
914 OCTOBER TERM, 1982
MARSHALL, J , dissenting 4^2 u g
POWELL, and STEVENS took great pains to point out that the
statutory aggravating circumstances served to apprise the
sentencer "of the information relevant to the imposition of
sentence and [to] provid[e] standards to guide its use of the
information " 428 U S , at 195 There was not the slight
est hint that the statutory factors are relevant only to the
threshold determination of whether the defendant is eligible
to receive the death penalty On the contrary, the joint
opinion emphasized that they informed the sentencer of "the
factors that the State deems particularly relevant
to the sentencing decision " Id , at 192 (emphasis added)
If it had been thought that statutory aggravating crrcum
stances were to play only a threshold role in the sentencing
process, it would have made no sense at all to say that a
jury's verdict identifying one or more of those circumstances
served to apprise appellate courts of "the factors it relied
upon in reaching its decision " Id , at 195 (emphasis added)
The very premise of the "threshold" theory adopted today is
that statutory aggravating circumstances are not relied upon
by the jury in reaching its ultimate sentencing decision, but
are considered only in deciding whether the defendant is eh
gible to receive the death penalty
The Court's assumption that respondent's jury did not bal
ance aggravating circumstances against mitigating circum
stances is also inconsistent with this Court's characterization
of the almost identical instructions given in Coker v Georgia,
433 U S 584 (1977) (plurality opinion) See App in Coker
v Georgia, O T 1976, No 75-5444, pp 298-302 In Coker,
as in this case, the jury was not expressly instructed to weigh
aggravating against mitigating circumstances, but the plural
ity opinion sensibly recognized that such a weighing is inher
ent in any determination of whether mitigating circum
stances warrant a life sentence notwithstanding the existence
of aggravating circumstances
"The jury was instructed that it could consider as
aggravating circumstances whether the rape had been
committed by a person with a prior record of conviction
ZANT v STEPHENS 915
862 MARSHALL, J , dissenting
for a capital felony and whether the rape had been com-
mitted in the course of committing another capital fel-
ony, namely, the armed robbery of Allen Carver The
court also instructed, pursuant to statute, that even if
aggravating circumstances were present, the death pen-
alty need not be imposed if the jury found they were out-
weighed by mitigating circumstances " 433 U S ,
at 587-590 (emphasis added)
I would like to know how the jury that sentenced respond-
ent to death in 1975 could have known that statutory ag-
gravating circumstances were to play only a threshold role
in their deliberations, when this Court itself has interpreted
essentially identical instructions to require a weighing of
aggravating and mitigating circumstances and as recently
as last Term found it necessary to ask the Georgia Supreme
Court to clarify what the instructions in this case meant
We are presented with "different and conflicting theories re-
garding a charge designed to guide the jury , and yet we
are asked to sustain the [death sentence] on the assumption
that the jury was properly guided " Bollenbach v United
States, 326 U S 607, 613 (1946) For my part, I believe
that a death sentence "ought not to rest on an equivocal di-
rection to the jury on a basic issue " Ibid It is patently
unfair to assume that the jury that sentenced respondent
somehow understood that statutory aggravating circum-
stances were to receive no special weight and were not to be
balanced against mitigating circumstances Respondent is
"entitled to have the validity of PUS sentence] appraised on
consideration of the case as it was tried and as the issues
were determined in the trial court," Cole v Arkansas, 333
U S 196, 202 (1948), see Presnell v Georgia, 439 U S 14,
16 (1978), not on a theory that has been adopted for the first
time after the fact
B
Once it is recognized that respondent's jury may well have
assumed that statutory aggravating circumstances deserve
916 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 u S
special weight, the injustice of today's decision becomes ap-
parent Under the Georgia capital sentencing procedure,
the sentencer always has discretion not to impose a death
sentence regardless of whether there is proof of one or
more statutory aggravating circumstances, and regardless of
whether there are any mitigating circumstances
There is simply no way for this Court to know whether the
jury would have sentenced respondent to death if the uncon-
stitutional statutory aggravating circumstance had not been
included in the judge's charge If it is important for the
State to authorize and for the prosecution to request the sub-
mission of a particular statutory aggravating circumstance to
the jury, "we must assume that in some cases [that circum-
stance] will be decisive in the [jury's] choice between a life
sentence and a death sentence " Gardner v Florida, 430
U S 349, 359 (1977) (opinion of STEVENS, J )
As Justice Stewart pointed out in a similar case, "under
Georgia's capital punishment scheme, only the trial judge or
jury can know and determine what to do when upon appellate
review it has been concluded that a particular aggravating
circumstance should not have been considered in sentencing
the defendant to death " Drake v Zant, 449 U S 999, 1001
(1980) (dissenting from denial of certiorari) (emphasis added)
Although the Court labors mightily in an effort to demon-
strate that submission of the unconstitutional statutory ag-
gravating circumstance did not affect the jury's verdict,
there is no escape from the conclusion — reached by JUSTICE
POWELL only last Term — that respondent was sentenced to
death "under instructions that could have misled the jury "
Zant v Stephens, 456 U S , at 429 (POWELL, J , dissent-
ing) 7 Where a man's life is at stake, this inconvenient fact
should not be simply swept under the rug
7 Although JUSTICE POWELL stated in his dissent that he would leave it
to the Georgia Supreme Court to decide "whether it has authority to find
that the instruction was harmless error beyond a reasonable doubt," 456
ZANT v STEPHENS 917
862 MARSHALL, J , dissenting
C
As I read the Court's opinion, the Court does not deny that
respondent might have received only a life sentence if the
unconstitutional aggravating circumstance had not been
submitted to the jury Rather, the Court assumes that 'the
instruction did induce the jury to place greater emphasis
upon the respondent's prior criminal record than it would
otherwise have done " Ante, at 888 The Court concludes,
however, that the submission of this unconstitutional statu-
tory factor does not amount to "a constitutional defect in the
sentencing process," ante, at 889, because the jury could
properly have been instructed to decide whether either of the
other two statutory factors applied and told in addition that
"in deciding whether or not [a death] sentence is appropriate
you may consider the remainder of [the defendant's] prior
criminal record," ante, at 888 The Court finds no constitu-
tional difference between this charge and the charge actually
given
Even assuming that it is proper to sustain a death sentence
by reference to a hypothetical instruction that might have
been given but was not, the Court errs in assuming that the
hypothetical instruction would satisfy the Constitution As
elaborated in Part II above, this Court's decisions establish
that the actual determination whether a defendant shall live
or die — and not merely the threshold decision whether he is
eligible for a death sentence — must be guided by clear and
objective standards The focus of the sentencer's attention
must be directed to specific factors whose existence or
nonexistence can be determined with reasonable certainty
Since the hypothetical instruction would fail to channel the
U S , at 429, the per curiam opinion rejected this approach and asked the
Georgia Supreme Court only to clarify the state-law premises underlying
its decision to sustain respondent's death sentence The Georgia Supreme
Court was not asked to conduct, and it did not conduct, a review of the
evidence to determine whether the instruction was harmless error beyond
a reasonable doubt
918 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 u g
sentencer's discretion in this fashion, the Court's assumption
that it would be constitutional is unwarranted 8
IV
For the foregoing reasons, I would vacate respondent's
death sentence
8 Even if the hypothetical instruction were permissible, it would not fol
low that there was no constitutional defect in the instructions given in this
case There is nothing particularly vague about the phrase "prior criminal
record", it would be reasonably clear to any juror of ordinary intelligence
that a defendant's prior criminal record consists of his past convictions
By contrast, it is common ground in this case that the statutory aggravat
ing circumstance "substantial history of serious assaultive criminal con
victions" is so vague that no two juries could be expected to agree as to
whether a particular defendant had such a history
It is one thing to bring to the jury's attention a readily identifiable factor
such as the defendant's prior criminal record, and leave it to the jury to
decide what weight that factor should receive It is quite another thing to
ask the jury to determine the applicability of a statutory factor that no
group of individuals of ordinary intelligence can be expected to apply in any
objective way, and then, if the issue is resolved against the defendant, to
take that factor into account in imposing sentence Both instructions in
vite the exercise of discretion as to the weight to be given to the statutory
factor, but the instruction given here has the further vice of requiring an
arbitrary determination that can only be made in a haphazard way It is
as if the jurors were asked to flip a com and weigh the result in their sen
tencing decision Even if the hypothetical charge cited by the Court were
proper, the charge given in this case would still be impermissible because it
injected an arbitrary determination into the sentencing process
INS v CHADHA 919
Syllabus
IMMIGRATION AND NATURALIZATION SERVICE v
CHADHA ET AL
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No 80-1832 Argued February 22, 1982— Reargued December 7, 1982—
Decided June 23, 1983*
Section 244(c)(2) of the Immigration and Nationality Act (Act) authorizes
either House of Congress, by resolution, to invalidate the decision of the
Executive Branch, pursuant to authority delegated by Congress to the
Attorney General, to allow a particular deportable alien to remain in the
United States Appellee-respondent Chadha, an alien who had been
lawfully admitted to the United States on a nonimmigrant student visa,
remained in the United States after his visa had expired ami was ordered
by the Immigration and Naturalization Service (INS) to show cause why
he should not be deported He then applied for suspension of the de-
portation, and, after a hearing, an Immigration Judge, acting pursuant
to § 244(a)(l) of the Act, which authorizes the Attorney General, in his
discretion, to suspend deportation, ordered the suspension, and reported
the suspension to Congress as required by § 244(cXl) Thereafter, the
House of Representatives passed a resolution pursuant to § 244(cX2) ve-
toing the suspension, and the Immigration Judge reopened the deporta-
tion proceedings Chadha moved to terminate the proceedings on the
ground that § 244(c)(2) is unconstitutional, but the judge held that he had
no authority to rule on its constitutionality and ordered Chadha deported
pursuant to the House Resolution Chadha's appeal to the Board of Im-
migration Appeals was dismissed, the Board also holding that it had no
power to declare § 244(c){2) unconstitutional Chadha then filed a peti-
tion for review of the deportation order in the Court of Appeals, and the
INS joined him in arguing that §244(c)(2) is unconstitutional The
Court of Appeals held that § 244(cX2) violates the constitutional doctrine
of separation of powers, and accordingly directed the Attorney General
to cease taking any steps to deport Chadha based upon the House
Resolution
Together with No 80-2170, United States House of Representatives
v Immigration and Naturalization Service et al , and No 80-2171,
United States Senate v Immigration and Naturalization Service et al ,
on certiorari to the same court
920 OCTOBER TERM, 1982
Syllabus 462 u g
Held
1 This Court has jurisdiction to entertain the INS's appeal in
No 80-1832 under 28 U S C § 1252, which provides that "[a]ny party"
may appeal to the Supreme Court from a judgment of "any court of the
United States" holding an Act of Congress unconstitutional in "any civil
action, suit, or proceeding" to which the United States or any of its agen
cies is a party A court of appeals is "a court of the United States" for
purposes of § 1252, the proceeding below was a "civil action, suit, or pro
ceeding," the INS is an agency of the United States and was a party to
the proceeding below, and the judgment below held an Act of Congress
unconstitutional Moreover, for purposes of deciding whether the INS
was "any party" within the grant of appellate jurisdiction in § 1252, the
INS was sufficiently aggrieved by the Court of Appeals' decision pro-
hibiting it from taking action it would otherwise take An agency's
status as an aggrieved party under § 1252 is not altered by the fact that
the Executive may agree with the holding that the statute in question is
unconstitutional Pp 929-931
2 Section 244(c)(2) is severable from the remainder of § 244 Section
406 of the Act provides that if any particular provision of the Act is held
invalid, the remainder of the Act shall not be affected This gives rise
to a presumption that Congress did not intend the validity of the Act as a
whole, or any part thereof, to depend upon whether the veto clause of
§ 244(c)(2) was invalid This presumption is supported by § 244's legisla
tive history Moreover, a provision is further presumed severable if
what remains after severance is fully operative as a law Here, § 244
can survive as a "fully operative" and workable administrative media
msm without the one-House veto Pp 931-935
3 Chadha has standing to challenge the constitutionality of § 244(c)(2)
since he has demonstrated "injury in fact and a substantial likelihood
that the judicial relief requested will prevent or redress the claimed in
jury " Duke Power Co v Carolina Environmental Study Group, Inc ,
438 U S 59, 79 Pp 935-936
4 The fact that Chadha may have other statutory relief available
to him does not preclude him from challenging the constitutionality
of § 244(c)(2), especially where the other avenues of relief are at most
speculative Pp 936-937
5 The Court of Appeals had jurisdiction under § 106(a) of the Act,
which provides that a petition for review in a court of appeals "shall be
the sole and exclusive procedure for the judicial review of all final orders
of deportation made against aliens within the United States pursu
ant to administrative proceedings" under § 242(b) of the Act Section
106(a) includes all matters on which the final deportation order is contin
gent, rather than only those determinations made at the deportation
INS v CHADHA 921
919 Syllabus
hearing Here, Chadha's deportation stands or falls on the validity of
the challenged veto, the final deportation order having been entered only
to implement that veto Pp 937-939
6 A case or controversy is presented by these cases From the time
of the House's formal intervention, there was concrete adverseness, and
prior to such intervention, there was adequate Art III adverseness
even though the only parties were the INS and Chadha The INS's
agreement with Chadha's position does not alter the fact that the INS
would have deported him absent the Court of Appeals' judgment
Moreover, Congress is the proper party to defend the validity of a stat-
ute when a Government agency, as a defendant charged with enforcing
the statute, agrees with plaintiffs that the statute is unconstitutional
Pp 939-940
7 These cases do not present a nonjusticiable political question on the
asserted ground that Chadha is merely challenging Congress' authority
under the Naturalization and Necessary and Proper Clauses of the Con-
stitution The presence of constitutional issues with significant political
overtones does not automatically invoke the political question doctrine
Resolution of litigation challenging the constitutional authority of one of
the three branches cannot be evaded by the courts simply because the
issues have political implications Pp 940-943
8 The congressional veto provision in § 244(c)(2) is unconstitutional
Pp 944-959
(a) The prescription for legislative action in Art I, § 1 — requiring
all legislative powers to be vested in a Congress consisting of a Senate
and a House of Representatives — and § 7 — requiring every bill passed by
the House and Senate, before becoming law, to be presented to the Pres-
ident, and, if he disapproves, to be repassed by two-thirds of the Senate
and House — represents the Framers' decision that the legislative power
of the Federal Government be exercised in accord with a single, finely
wrought and exhaustively considered procedure This procedure is an
integral part of the constitutional design for the separation of powers
Pp 944-951
Ob) Here, the action taken by the House pursuant to § 244(cX2) was
essentially legislative in purpose and effect and thus was subject to the
procedural requirements of Art I, § 7, for leg^slat^ve action passage by
a majority of both Houses and presentation to the President The one-
House veto operated to overrule the Attorney General and mandate
Chadha's deportation The veto's legislative character is confirmed by
the character of the congressional action it supplants, t e , absent the
veto provision of § 244(c)(2), neither the House nor the Senate, or both
acting together, could effectively require the Attorney General to deport
an alien once the Attorney General, in the exercise of legislatively
922 OCTOBER TERM, 1982
Syllabus 462 U S
delegated authority, had determined that the alien should remain in
the United States Without the veto provision, this could have been
achieved only by legislation requiring deportation A veto by one
House under § 244(c)(2) cannot be justified as an attempt at amending
the standards set out in § 244(a)(l), or as a repeal of § 244 as applied to
Chadha The nature of the decision implemented by the one-House veto
further manifests its legislative character Congress must abide by its
delegation of authority to the Attorney General until that delegation is
legislatively altered or revoked Finally, the veto's legislative charac
ter is confirmed by the fact that when the Framers intended to authorize
either House of Congress to act alone and outside of its prescribed bi
cameral legislative role, they narrowly and precisely defined the proce
dure for such action in the Constitution Pp 951-959
634 F 2d 408, affirmed
BURGER, C J , delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ , joined POWELL,
J , filed an opinion concurring in the judgment, post, p 959 WHITE, J ,
filed a dissenting opinion, post, p 967 REHNQUIST, J , filed a dissenting
opinion, in which WHITE, J , joined, post, p 1013
Eugene Gressman reargued the cause for petitioner in
No 80-2170 With him on the briefs was Stanley M Brand
Michael Davidson reargued the cause for petitioner in
No 80-2171 With him on the briefs were M Elizabeth
Culbreth and Charles Tiefer
Solicitor General Lee reargued the cause for the Immigra-
tion and Naturalization Service in all cases With him on the
briefs were Assistant Attorney General Olson, Deputy Solic-
itor General Getter, Deputy Assistant Attorney General
Simms, Edwin S Kneedler, David A Strauss, and Thomas
O Sargentich
Alan B Morrison reargued the cause for Jagdish Rai
Chadha in all cases With him on the brief was John Gary
Sims t
^Antornn Scalw, Richard B Smith, and David Ryne Brink filed a brief
for the American Bar Association as amwus curwe urging affirmance
Briefs of amici curiae were filed by Robert C Eckhardt for Certain
Members of the United States House of Representatives, and by Paul
C Rosenthal for the Counsel on Administrative Law of the Federal Bar
Association
INSv CHADHA 923
919 Opinion of the Court
CHIEF JUSTICE BURGER delivered the opinion of the Court
We granted certiorari in Nos 80-2170 and 80-2171, and
postponed consideration of the question of jurisdiction in
No 80-1832 Each presents a challenge to the constitution-
ality of the provision in § 244(c)(2) of the Immigration and
Nationality Act, 66 Stat 216, as amended, 8 U S C
§ 1254(c)(2), authorizing one House of Congress, by resolu-
tion, to invalidate the decision of the Executive Branch, pur-
suant to authority delegated by Congress to the Attorney
General of the United States, to allow a particular deportable
alien to remain in the United States
Chadha is an East Indian who was born in Kenya and holds
a British passport He was lawfully admitted to the United
States in 1966 on a nonimmigrant student visa His visa
expired on June 30, 1972 On October 11, 1973, the District
Director of the Immigration and Naturalization Service or-
dered Chadha to show cause why he should not be deported
for having "remained in the United States for a longer time
than permitted " App 6 Pursuant to § 242(b) of the Immi-
gration and Nationality Act (Act), 8 U S C §1252(b), a
deportation hearing was held before an Immigration Judge
on January 11, 1974 Chadha conceded that he was deport-
able for overstaying his visa and the hearing was adjourned
to enable him to file an application for suspension of depor-
tation under §244(a)(l) of the Act, 8 U S C §1254(a)(l)
Section 244(a)(l), at the time in question, provided
"As hereinafter prescribed in this section, the Attor-
ney General may, in his discretion, suspend deportation
and adjust the status to that of an alien lawfully admitted
for permanent residence, in the case of an alien who
applies to the Attorney General for suspension of depor-
tation and —
"(1) is deportable under any law of the United States
except the provisions specified in paragraph (2) of this
subsection, has been physically present in the United
924 OCTOBER TERM, 1982
Opinion of the Court 462 U S
States for a continuous period of not less than seven
years immediately preceding the date of such applica-
tion, and proves that during all of such period he was and
is a person of good moral character, and is a person
whose deportation would, in the opinion of the Attor-
ney General, result in extreme hardship to the alien or
to his spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for perma-
nent residence " 1
After Chadha submitted his application for suspension of
deportation, the deportation hearing was resumed on Febru-
ary 7, 1974 On the basis of evidence adduced at the hear-
ing, affidavits submitted with the application, and the results
of a character investigation conducted by the INS, the Immi-
gration Judge, on June 25, 1974, ordered that Chadha's de-
portation be suspended The Immigration Judge found that
Chadha met the requirements of § 244(a)(l) he had resided
continuously in the United States for over seven years, was
of good moral character, and would suffer "extreme hard-
ship" if deported
Pursuant to §244(c)(l) of the Act, 8 U S C §1254(c)(l),
the Immigration Judge suspended Chadha's deportation and
a report of the suspension was transmitted to Congress
Section 244(c)(l) provides
"Upon application by any alien who is found by the At-
torney General to meet the requirements of subsection
(a) of this section the Attorney General may in his discre-
tion suspend deportation of such alien If the deporta-
tion of any alien is suspended under the provisions of this
subsection, a complete and detailed statement of the
Congress delegated the major responsibilities for enforcement of the
Immigration and Nationality Act to the Attorney General 8 U S C
§ 1103(a) The Attorney General discharges his responsibilities through
the Immigration and Naturalization Service, a division of the Department
of Justice Ibid
INS v CHADHA 925
919 Opinion of the Court
facts and pertinent provisions of law in the case shall be
reported to the Congress with the reasons for such sus-
pension Such reports shall be submitted on the first
day of each calendar month in which Congress is in
session "
Once the Attorney General's recommendation for suspen-
sion of Chadha's deportation was conveyed to Congress, Con-
gress had the power under § 244(c)(2) of the Act, 8 U S C
§1254(c)(2), to veto2 the Attorney General's determination
that Chadha should not be deported Section 244(c)(2)
provides
"(2) In the case of an alien specified in paragraph (1) of
subsection (a) of this subsection —
'^if during the session of the Congress at which a case
is reported, or prior to the close of the session of the
Congress next following the session at which a case is
reported, either the Senate or the House of Represent-
atives passes a resolution stating in substance that it
does not favor the suspension of such deportation, the
Attorney General shall thereupon deport such alien or
authorize the alien's voluntary departure at his own
expense under the order of deportation in the manner
provided by law If, within the time above specified,
neither the Senate nor the House of Representatives
shall pass such a resolution, the Attorney General shall
cancel deportation proceedings "
2 In constitutional terms, "veto" is used to describe the President's power
under Art I, § 7, of the Constitution See Black's Law Dictionary 1403
(5th ed 1979) It appears, however, that congressional devices of the
type authorized by § 244(c)(2) have come to be commonly referred to as a
"veto " See, e g , Martin, The Legislative Veto and the Responsible Ex-
ercise of Congressional Power, 68 Va L Rev 253 (1982), Miller & Knapp,
The Congressional Veto Preserving the Constitutional Framework, 52
Ind L J 367 (1977) We refer to the congressional "resolution" author-
ized by § 244(c)(2) as a "one-House veto" of the Attorney General's decision
to allow a particular deportable alien to remain in the United States
926 OCTOBER TERM, 1982
Opinion of the Court 462 U S
The June 25, 1974, order of the Immigration Judge sus-
pending Chadha's deportation remained outstanding as a
vahd order for a year and a half For reasons not disclosed
by the record, Congress did not exercise the veto authority
reserved to it under § 244(c)(2) until the first session of the
94th Congress This was the final session in which Con-
gress, pursuant to §244(c)(2), could act to veto the Attorney
General's determination that Chadha should not be deported
The session ended on December 19, 1975 121 Cong Rec
42014, 42277 (1975) Absent congressional action, Chadha's
deportation proceedings would have been canceled after this
date and his status adjusted to that of a permanent resident
alien See 8 U S C §1254(d)
On December 12, 1975, Representative Eilberg, Chairman
of the Judiciary Subcommittee on Immigration, Citizenship,
and International Law, introduced a resolution opposing "the
granting of permanent residence in the United States to [six]
aliens," including Chadha H Res 926, 94th Cong , 1st
Sess , 121 Cong Rec 40247 (1975) The resolution was re-
ferred to the House Committee on the Judiciary On De-
cember 16, 1975, the resolution was discharged from further
consideration by the House Committee on the Judiciary and
submitted to the House of Representatives for a vote 121
Cong Rec 40800 The resolution had not been printed and
was not made available to other Members of the House prior
to or at the time it was voted on Ibid So far as the record
before us shows, the House consideration of the resolution
was based on Representative Eilberg's statement from the
floor that
"[i]t was the feeling of the committee, after reviewing
340 cases, that the aliens contained in the resolution
[Chadha and five others] did not meet these statutory re-
quirements, particularly as it relates to hardship, and it
is the opinion of the committee that their deportation
should not be suspended " Ibid
INSv CHADHA 927
919 Opinion of the Court
The resolution was passed without debate or recorded vote 3
Since the House action was pursuant to §244(c)(2), the reso-
lution was not treated as an Art I legislative act, it was not
3 It is not at all clear whether the House generally, or Subcommittee
Chairman Eilberg in particular, correctly understood the relationship
between H Res 926 and the Attorney General's decision to suspend
Chadha's deportation Exactly one year previous to the House veto of the
Attorney General's decision in this case, Representative Eilberg intro-
duced a similar resolution disapproving the Attorney General's suspension
of deportation in the case of six other aliens H Res 1518, 93d Cong , 2d
Sess (1974) The following colloquy occurred on the floor of the House
"Mr WYLIE Mr Speaker, further reserving the right to object, is this
procedure to expedite the ongoing operations of the Department of Justice,
as far as these people are concerned Is it in any way contrary to what-
ever action the Attorney General has taken on the question of deportation,
does the gentleman know9
"Mr EILBERG Mr Speaker, the answer is no to the gentleman's final
question These aliens have been found to be deportable and the Special
Inquiry Officer's decision denying suspension of deportation has been
reversed by the Board of Immigration Appeals We are complying with
the law since all of these decisions have been referred to us for approval or
disapproval, and there are hundreds of cases in this category In these
six cases however, we believe it would be grossly improper to allow these
people to acquire the status of permanent resident aliens
"Mr WYLIE In other words, the gentleman has been working with the
Attorney General's office7
"Mr EILBERG Yes
"Mr WYLIE This bill then is in fact a confirmation of what the Attor-
ney General intends to do?
"Mr EILBERG The gentleman is correct insofar as it relates to the
determination of deportabikty which has been made by the Department of
Justice in each of these cases
"Mr WYLIE Mr Speaker, I withdraw my reservation of objection "
120 Cong Rec 41412(1974)
Clearly, this was an obfuscation of the effect of a veto under § 244(c)(2)
Such a veto in no way constitutes "a confirmation of what the Attorney
General intends to do " To the contrary, such a resolution was meant to
overrule and set aside, or "veto," the Attorney General's determination
that, in a particular case, cancellation of deportation would be appropriate
under the standards set forth in § 244(a)(l)
928 OCTOBER TERM, 1982
Opinion of the Court 462 U S
submitted to the Senate or presented to the President for his
action
After the House veto of the Attorney General's decision to
allow Chadha to remain in the United States, the Immigra-
tion Judge reopened the deportation proceedings to imple-
ment the House order deporting Chadha Chadha moved
to terminate the proceedings on the ground that § 244(c)(2)
is unconstitutional The Immigration Judge held that he
had no authority to rule on the constitutional validity of
§244(c)(2) On November 8, 1976, Chadha was ordered de-
ported pursuant to the House action
Chadha appealed the deportation order to the Board of Im-
migration Appeals, again contending that § 244(c)(2) is uncon-
stitutional The Board held that it had "no power to declare
unconstitutional an act of Congress" and Chadha's appeal was
dismissed App 55-56
Pursuant to §106(a) of the Act, 8 U S C §1105a(a),
Chadha filed a petition for review of the deportation order in
the United States Court of Appeals for the Ninth Circuit
The Immigration and Naturalization Service agreed with
Chadha's position before the Court of Appeals and joined him
in arguing that § 244(c)(2) is unconstitutional In light of the
importance of the question, the Court of Appeals invited both
the Senate and the House of Representatives to file briefs
amici cunae
After fiill briefing and oral argument, the Court of Appeals
held that the House was without constitutional authority to
order Chadha's deportation, accordingly it directed the At-
torney General "to cease and desist from taking any steps to
deport this alien based upon the resolution enacted by the
House of Representatives" 634 F 2d 408, 436 (1980) The
essence of its holding was that § 244(c)(2) violates the con-
stitutional doctrine of separation of powers
We granted certioran in Nos 80-2170 and 80-2171, and
postponed consideration of our jurisdiction over the appeal in
No 80-1832, 454 U S 812 (1981), and we now affirm
INS v CHADHA 929
919 Opinion of the Court
II
Before we address the important question of the constitu-
tionality of the one-House veto provision of §244(c)(2), we
first consider several challenges to the authority of this Court
to resolve the issue raised
A
Appellate Jurisdiction
Both Houses of Congress4 contend that we are without
jurisdiction under 28 U S C §1252 to entertain the INS
appeal in No 80-1832 Section 1252 provides
"Any party may appeal to the Supreme Court from an
interlocutory or final judgment, decree or order of any
court of the United States, the United States District
Court for the District of the Canal Zone, the District
Court of Guam and the District Court of the Virgin
Islands and any court of record of Puerto Rico, holding
an Act of Congress unconstitutional in any civil action,
suit, or proceeding to which the United States or any
of its agencies, or any officer or employee thereof, as
such officer or employee, is a party "
Parker v Levy, 417 U S 733, 742, n 10 (1974), makes
clear that a court of appeals is a "court of the United States"
for purposes of § 1252 It is likewise clear that the proceed-
ing below was a "civil action, suit, or proceeding," that the
INS is an agency of the United States and was a party
to the proceeding below, and that that proceeding held an
Act of Congress — namely, the one-House veto provision in
§ 244(c)(2) — unconstitutional The express requisites for an
appeal under § 1252, therefore, have been met
4 Nine Members of the House of Representatives disagree with the posi-
tion taken in the briefs filed by the Senate and the House of Represent-
atives and have filed a brief amici cunae urging that the decision of the
Court of Appeals be affirmed in this case
930 OCTOBER TERM, 1982
Opinion of the Court 462 U S
In motions to dismiss the INS appeal, the congressional
parties5 direct attention, however, to our statement that "[a]
party who receives all that he has sought generally is not
aggrieved by the judgment affording the relief and cannot
appeal from it " Deposit Guaranty National Bank v Roper,
445 U S 326, 333 (1980) Here, the INS sought the invali-
dation of §244(c)(2), and the Court of Appeals granted that
relief Both Houses contend that the INS has already
received what it sought from the Court of Appeals, is not an
aggrieved party, and therefore cannot appeal from the deci-
sion of the Court of Appeals We cannot agree
The INS was ordered by one House of Congress to deport
Chadha As we have set out more fully, supra, at 928, the
INS concluded that it had no power to rule on the constitu-
tionality of that order and accordingly proceeded to imple-
ment it Chadha's appeal challenged that decision and the
INS presented the Executive's views on the constitutionality
of the House action to the Court of Appeals But the INS
brief to the Court of Appeals did not alter the agency's deci-
sion to comply with the House action ordering deportation of
Chadha The Court of Appeals set aside the deportation
proceedings and ordered the Attorney General to cease and
desist from taking any steps to deport Chadha, steps that the
Attorney General would have taken were it not for that
decision
At least for purposes of deciding whether the INS is "any
party" within the grant of appellate jurisdiction in § 1252, we
hold that the INS was sufficiently aggrieved by the Court of
Appeals decision prohibiting it from taking action it would
otherwise take It is apparent that Congress intended that
5 The Senate and House authorized intervention in this case, S Res 40
and H R Res 49, 97th Cong , 1st Seas (1981), and, on February 3, 1981,
filed motions to intervene and petitioned for rehearing The Court of
Appeals granted the motions to intervene Both Houses are therefore
proper "parties" within the meaning of that term in 28 U S C §1254(1)
See BaUerton v Francis, 432 U S 416, 424, n 7 (1977)
INSv CHADHA 931
919 Opinion of the Court
this Court take notice of cases that meet the technical prereq-
uisites of § 1252, in other cases where an Act of Congress is
held unconstitutional by a federal court, review in this Court
is available only by writ of certiorari When an agency of
the United States is a party to a case in which the Act of Con-
gress it administers is held unconstitutional, it is an ag-
grieved party for purposes of taking an appeal under § 1252
The agency's status as an aggrieved party under § 1252 is not
altered by the fact that the Executive may agree with the
holding that the statute in question is unconstitutional The
appeal in No 80-1832 is therefore properly before us 6
B
Severabihty
Congress also contends that the provision for the one-
House veto in § 244(c)(2) cannot be severed from §244 Con-
gress argues that if the provision for the one-House veto is
held unconstitutional, all of § 244 must fall If § 244 in its
entirety is violative of the Constitution, it follows that the
Attorney General has no authority to suspend Chadha's
deportation under § 244(a)(l) and Chadha would be deported
From this, Congress argues that Chadha lacks standing to
challenge the constitutionality of the one-House veto provi-
sion because he could receive no relief even if his constitu-
tional challenge proves successful 7
Only recently this Court reaffirmed that the invalid por-
tions of a statute are to be severed "*[u]nless it is evident that
6 In addition to meeting the statutory requisites of § 1252, of course, an
appeal must present a justiciable case or controversy under Art III
Such a controversy clearly exists in No 80-1832, as in the other two cases,
because of the presence of the two Houses of Congress as adverse parties
See infra, at 939, see also Director, OWCP v Penni North River Asso-
ciates, 459 U S 297, 302-305 (1982)
7 In this case we deem it appropriate to address questions of severabihty
first But see Buckley v Valeo, 424 U S 1, 108-109 (1976), United
States v Jackson, 390 U S 570, 585 (1968)
932 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the Legislature would not have enacted those provisions
which are within its power, independently of that which is
not'" Buckley v Valeo, 424 U S 1, 108 (1976), quoting
Champhn Refimng Co v Corporation Comm'n of Okla-
homa, 286 U S 210, 234 (1932) Here, however, we need
not embark on that elusive inquiry since Congress itself has
provided the answer to the question of severabihty in §406
of the Immigration and Nationality Act, note following
8 U S C § 1101, which provides
"If any particular provision of this Act, or the applica-
tion thereof to any person or circumstance, is held
invalid, the remainder of the Act and the application of
such provision to other persons or circumstances shall
not be affected thereby " (Emphasis added )
This language is unambiguous and gives rise to a presump-
tion that Congress did not intend the validity of the Act as a
whole, or of any part of the Act, to depend upon whether the
veto clause of § 244(c)(2) was invalid The one-House veto
provision in §244(c)(2) is clearly a "particular provision" of
the Act as that language is used in the severabihty clause
Congress clearly intended "the remainder of the Act" to
stand if "any particular provision" were held invalid Con-
gress could not have more plainly authorized the presumption
that the provision for a one-House veto in § 244(c)(2) is sever-
able from the remainder of § 244 and the Act of which it is a
part See Electric Bond & Share Co v SEC, 303 U S 419,
434 (1938)
The presumption as to the severabihty of the one-House
veto provision in §244(c)(2) is supported by the legislative
history of § 244 That section and its precursors supplanted
the long-established pattern of dealing with deportations like
Chadha's on a case-by-case basis through private bills Al-
though it may be that Congress was reluctant to delegate
final authority over cancellation of deportations, such reluc-
tance is not sufficient to overcome the presumption of sever-
abihty raised by §406
INS v CHADHA 933
919 Opinion of the Court
The Immigration Act of 1924, eh 190, § 14, 43 Stat 162,
required the Secretary of Labor to deport any ahen who en-
tered or remained in the United States unlawfully The only
means by which a deportable ahen could lawfully remain in
the United States was to have his status altered by a private
bill enacted by both Houses and presented to the President
pursuant to the procedures set out in Art I, § 7, of the Con-
stitution These private bills were found intolerable by Con-
gress In the debate on a 1937 bill introduced by Represent-
ative Dies to authorize the Secretary to grant permanent
residence in "meritorious" cases, Dies stated
"It was my original thought that the way to handle all
these meritorious cases was through special bills I am
absolutely convinced as a result of what has occurred in
this House that it is impossible to deal with this situation
through special bills We had a demonstration of that
fact not long ago when 15 special bills were before this
House The House consumed 5/4 hours considering four
bills and made no disposition of any of the bills " 81
Cong Rec 5542(1937)
Representative Dies' bill passed the House, id , at 5574,
but did not come to a vote in the Senate 83 Cong Rec
8992-8996 (1938)
Congress first authorized the Attorney General to suspend
the deportation of certain aliens in the Ahen Registration Act
of 1940, ch 439, §20, 54 Stat 671 That Act provided that
an ahen was to be deported, despite the Attorney General's
decision to the contrary, if both Houses, by concurrent reso-
lution, disapproved the suspension
In 1948, Congress amended the Act to broaden the cate-
gory of aliens eligible for suspension of deportation In addi-
tion, however, Congress limited the authority of the Attor-
ney General to suspend deportations by providing that the
Attorney General could not cancel a deportation unless both
Houses affirmatively voted by concurrent resolution to ap-
prove the Attorney General's action Act of July 1, 1948,
934 OCTOBER TERM, 1982
Opinion of the Court 462 U S
ch 783, 62 Stat 1206 The provision for approval by con-
current resolution in the 1948 Act proved almost as burden-
some as private bills Just one year later, the House Judi-
ciary Committee, in support of the predecessor to §244(c)(2),
stated in a Report
"In the light of experience of the last several months,
the committee came to the conclusion that the require-
ment of affirmative action by both Houses of the Con-
gress in many thousands of individual cases which are
submitted by the Attorney General every year, is not
workable and places upon the Congress and particularly
on the Committee on the Judiciary responsibilities which
it cannot assume The new responsibilities placed upon
the Committee on the Judiciary [by the concurrent reso-
lution mechanism] are of purely administrative nature
and they seriously interfere with the legislative work of
the Committee on the Judiciary and would, in time, in-
terfere with the legislative work of the House " H R
Rep No 362, 81st Cong , 1st Sess , 2 (1949)
The proposal to permit one House of Congress to veto the
Attorney General's suspension of an alien's deportation was
incorporated in the Immigration and Nationality Act of 1952,
Pub L 414, §244(a), 66 Stat 214 Plainly, Congress' desire
to retain a veto in this area cannot be considered in isolation
but must be viewed in the context of Congress' irritation with
the burden of private immigration bills This legislative his-
tory is not sufficient to rebut the presumption of severabihty
raised by §406 because there is insufficient evidence that
Congress would have continued to subject itself to the oner-
ous burdens of private bills had it known that §244(c)(2)
would be held unconstitutional
A provision is further presumed severable if what remains
after severance "is fully operative as a law " Ckamphn Re
fining Co v Corporation Comm'n, supra, at 234 There
can be no doubt that § 244 is "fully operative" and workable
administrative machinery without the veto provision in
§ 244(c)(2) Entirely independent of the one-House veto, the
INS v CHADHA 935
919 Opinion of the Court
administrative process enacted by Congress authorizes the
Attorney General to suspend an aken's deportation under
§ 244(a) Congress7 oversight of the exercise of this dele-
gated authority is preserved since all such suspensions will
continue to be reported to it under § 244(c)(l) Absent the
passage of a bill to the contrary,8 deportation proceedings will
be canceled when the period specified in §244(c)(2) has ex-
pired 9 Clearly, § 244 survives as a workable administrative
mechanism without the one-House veto
C
Standing
We must also reject the contention that Chadha lacks
standing because a consequence of his prevailing will advance
8 Without the provision for one-House veto, Congress would presumably
retain the power, during the time allotted in § 244(c)(2), to enact a law, in
accordance with the requirements of Art I of the Constitution, mandating
a particular alien's deportation, unless, of course, other constitutional prin-
ciples place substantive limitations on such action Cf Attorney General
Jackson's attack on H R 9766, 76th Cong , 3d Sess (1940), a bill to re-
quire the Attorney General to deport an individual alien The Attorney
General called the bill "an historical departure from an unbroken American
practice and tradition It would be the first time that an act of Congress
singled out a named individual for deportation " S Rep No 2031, 76th
Cong , 3d Sess , pt 1, p 9 (1940) (reprinting Jackson's letter of June 18,
1940) See n 17, infra
9 Without the one-House veto, § 244 resembles the "report and wait" pro-
vision approved by the Court in Sibbach v Wilson & Co , 312 U S 1
(1941) The statute examined in Sibbach provided that the newly promul-
gated Federal Rules of Civil Procedure "shall not take effect until they
shall have been reported to Congress by the Attorney General at the be-
ginning of a regular session thereof and until after the close of such ses-
sion " Act of June 19, 1934, ch 651, §2, 48 Stat 1064 This statute did
not provide that Congress could unilaterally veto the Federal Rules
Rather, it gave Congress the opportunity to review the Rules before they
became effective and to pass legislation barring their effectiveness if the
Rules were found objectionable This technique was used by Congress
when it acted in 1973 to stay, and ultimately to revise, the proposed Rules
of Evidence Compare Act of Mar 30, 1973, Pub L 93-12, 87 Stat 9,
with Act of Jan 2, 1975, Pub L 93-595, 88 Stat 1926
936 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the interests of the Executive Branch in a separation-of
powers dispute with Congress, rather than simply Chadha's
private interests Chadha has demonstrated "injury in fact
and a substantial likelihood that the judicial relief requested
will prevent or redress the claimed injury " Duke
Power Co v Carolina Environmental Study Group, Inc ,
438 U S 59, 79 (1978) If the veto provision violates the
Constitution, and is severable, the deportation order against
Chadha will be canceled Chadha therefore has standing to
challenge the order of the Executive mandated by the House
veto
D
Alternative Relief
It is contended that the Court should decline to decide the
constitutional question presented by these cases because
Chadha may have other statutory relief available to him It
is argued that since Chadha married a United States citizen
on August 10, 1980, it is possible that other avenues of rehef
may be open under §§201(b), 204, and 245 of the Act, 8
U S C §§ 1151(b), 1154, and 1255 It is true that Chadha
may be eligible for classification as an "immediate relative"
and, as such, could lawfully be accorded permanent resi-
dence Moreover, in March 1980, just prior to the decision
of the Court of Appeals in these cases, Congress enacted the
Refugee Act of 1980, Pub L 96-212, 94 Stat 102, under
which the Attorney General is authorized to grant asylum,
and then permanent residence, to any alien who is unable to
return to his country of nationality because of "a well-
founded fear of persecution on account of race "
It is urged that these two intervening factors constitute a
prudential bar to our consideration of the constitutional ques-
tion presented in these cases See Ashwander v TVA, 297
U S 288, 346 (1936) (Brandeis, J , concurring) If we could
perceive merit in this contention we might well seek to avoid
deciding the constitutional claim advanced But at most
INS v CHADHA 937
919 Opinion of the Court
these other avenues of rehef are speculative It is by no
means certain, for example, that Chadha's classification as
an immediate relative would result in the adjustment of
Chadha's status from nonimmigrant to permanent resident
See Menezes v INS, 601 F 2d 1028 (CA9 1979) If Chadha
is successful in his present challenge he will not be deported
and will automatically become eligible to apply for citi-
zenship 10 A person threatened with deportation cannot be
denied the right to challenge the constitutional validity of
the process which led to his status merely on the basis of
speculation over the availability of other forms of rehef
E
Jurisdiction
It is contended that the Court of Appeals lacked jurisdic-
tion under §106(a) of the Act, 8 U S C §1105a(a) That
section provides that a petition for review in the Court of
Appeals "shall be the sole and exclusive procedure for the
judicial review of all final orders of deportation made
against aliens within the United States pursuant to admin-
istrative proceedings under section 242(b) of this Act "
Congress argues that the one-House veto authorized by
§ 244(c)(2) takes place outside the administrative proceedings
conducted under §242(b), and that the jurisdictional grant
contained in § 106(a) does not encompass Chadha's constitu-
tional challenge
In Cheng Fan Kwok v INS, 392 U S 206, 216 (1968),
this Court held that "§ 106(a) embrace[s] only those determi-
10 Depending on how the INS interprets its statutory duty under §244
apart from the challenged portion of §244(cX2), Chadha's status may be
retroactively adjusted to that of a permanent resident as of December 19,
1975 — the last session in which Congress could have attempted to stop the
suspension of Chadha's deportation from ripening into cancellation of
deportation See 8 U S C § 1254(d) In that event, Chadha's 5-year
waiting period to become a citizen under § 316(a) of the Act, 8 U S C
§ 1427(a), would have elapsed
938 OCTOBER TERM, 1982
Opinion of the Court 462 U S
nations made during a proceeding conducted under §242(b),
including those determinations made incident to a motion to
reopen such proceedings " It is true that one court has read
Cheng Fan Kwok to preclude appeals similar to Chadha's
See Dastmalchi v INS, 660 F 2d 880 (CAS 1981) u How-
ever, we agree with the Court of Appeals in these cases that
the term "final orders" in § 106(a) "includes all matters on
which the validity of the final order is contingent, rather than
only those determinations actually made at the hearing " 634
F 2d, at 412 Here, Chadha's deportation stands or falls
on the validity of the challenged veto, the final order of
deportation was entered against Chadha only to implement
the action of the House of Representatives Although the
Attorney General was satisfied that the House action was
invalid and that it should not have any effect on his decision
to suspend deportation, he appropriately let the controversy
take its course through the courts
This Court's decision in Cheng Fan Kwok, supra, does not
bar Chadha's appeal There, after an order of deportation
had been entered, the affected alien requested the INS to
stay the execution of that order When that request was de-
nied, the alien sought review in the Court of Appeals under
§ 106(a) This Court's holding that the Court of Appeals
lacked jurisdiction was based on the fact that the alien "did
not 'attack the deportation order itself but instead [sought]
relief not inconsistent with it ' " 392 U S , at 213, quoting
11 Under the Third Circuit's reasoning, judicial review under §106(a)
would not extend to the constitutionality of § 244(c)(2) because that issue
could not have been tested during the administrative deportation proceed
mgs conducted under § 242(b) The facts in Dastmalchi are distinguish-
able, however In Dastmalchi, Iranian aliens who had entered the United
States on nonimmigrant student visas challenged a regulation that re
quired them to report to the District Director of the INS during the Ira
man hostage crisis The ahens reported and were ordered deported after
a § 242(b) proceeding The ahens in Dastmalchi could have been deported
irrespective of the challenged regulation Here, in contrast, Chadha's de
portation would have been canceled but for § 244(c)(2)
INS v CHADHA 939
919 Opinion of the Court
Mm v Esperdy, 371 F 2d 772, 777 (CA2 1966) Here, in
contrast, Chadha directly attacks the deportation order it-
self, and the relief he seeks — cancellation of deportation — is
plainly inconsistent with the deportation order Accord-
ingly, the Court of Appeals had jurisdiction under § 106(a) to
decide these cases
F
Case or Controversy
It is also contended that this is not a genuine controversy
but "a friendly, non-adversary, proceeding," Ashwander v
TV A, 297 U S , at 346 (Brandeis, J , concurring), upon
which the Court should not pass This argument rests on
the fact that Chadha and the INS take the same position on
the constitutionality of the one-House veto But it would be
a curious result if, in the administration of justice, a person
could be denied access to the courts because the Attorney
General of the United States agreed with the legal argu-
ments asserted by the individual
A case or controversy is presented by these cases First,
from the time of Congress' formal intervention, see n 5,
supra, the concrete adverseness is beyond doubt Con-
gress is both a proper party to defend the constitutional-
ity of § 244(c)(2) and a proper petitioner under 28 U S C
§1254(1) Second, prior to Congress' intervention, there
was adequate Art III adverseness even though the only par-
ties were the INS and Chadha We have already held that
the INS's agreement with the Court of Appeals' decision that
§244(c)(2) is unconstitutional does not affect that agency's
"aggrieved" status for purposes of appealing that decision
under 28 U S C § 1252, see supra, at 929-931 For similar
reasons, the INS's agreement with Chadha's position does
not alter the fact that the INS would have deported Chadha
absent the Court of Appeals' judgment We agree with the
Court of Appeals that "Chadha has asserted a concrete con-
troversy, and our decision will have real meaning if we rule
for Chadha, he will not be deported, if we uphold §244(c)(2),
940 OCTOBER TERM, 1982
Opinion of the Court 462 U S
the INS will execute its order and deport him " 634 F 2d,
at 419 12
Of course, there may be prudential, as opposed to Art III,
concerns about sanctioning the adjudication of these cases in
the absence of any participant supporting the validity of
§244(c)(2) The Court of Appeals properly dispelled any
such concerns by inviting and accepting briefs from both
Houses of Congress We have long held that Congress is the
proper party to defend the validity of a statute when an
agency of government, as a defendant charged with enforcing
the statute, agrees with plaintiffs that the statute is inappli-
cable or unconstitutional See Cheng Fan Kwok v INS,
392 U S , at 210, n 9, United States v Lovett, 328 U S
303 (1946)
G
Political Question
It is also argued that these cases present a nonjusti-
ciable political question because Chadha is merely challeng-
ing Congress' authority under the Naturalization Clause,
U S Const , Art I, §8, cl 4, and the Necessary and Proper
Clause, U S Const , Art I, §8, cl 18 It is argued that
Congress' Art I power "To establish an uniform Rule of
Naturalization," combined with the Necessary and Proper
Clause, grants it unreviewable authority over the regulation
of aliens The plenary authority of Congress over aliens
under Art I, §8, cl 4, is not open to question, but what is
12 A relevant parallel can be found in our recent decision in Bob Jones
University v United States, 461 U S 574 (1983) There, the United
States agreed with Bob Jones University and Goldsboro Christian Schools
that certain Revenue Rulings denying tax-exempt status to schools that
discriminated on the basis of race were invalid Despite its agreement
with the schools, however, the United States was complying with a court
order enjoining it from granting tax-exempt status to any school that dis
criminated on the basis of race Even though the Government largely
agreed with the opposing party on the merits of the controversy, we found
an adequate basis for jurisdiction in the fact that the Government intended
to enforce the challenged law against that party See id , at 585, n 9
INS v CHADHA 941
919 Opinion of the Court
challenged here is whether Congress has chosen a constitu-
tionally permissible means of implementing that power As
we made clear in Buckley v Valeo, 424 U S 1 (1976) "Con-
gress has plenary authority in all cases in which it has sub-
stantive legislative jurisdiction, McCulloeh v Maryland, 4
Wheat 316 (1819), so long as the exercise of that authority
does not offend some other constitutional restriction " Id ,
at 132
A brief review of those factors which may indicate the
presence of a nonjusticiable political question satisfies us that
our assertion of jurisdiction over these cases does no violence
to the political question doctrine As identified in Baker v
Carr, 369 U S 186, 217 (1962), a political question may arise
when any one of the following circumstances is present
"a textually demonstrable constitutional commitment of
the issue to a coordinate political department, or a lack of
judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for nonju-
dicial discretion, or the impossibility of a court's under-
taking independent resolution without expressing lack of
the respect due coordinate branches of government, or an
unusual need for unquestioning adherence to a political
decision already made, or the potentiality of embarrass-
ment from multifarious pronouncements by various de-
partments on one question "
Congress apparently directs its assertion of nonjusticiabil-
ity to the first of the Baker factors by asserting that Chadha's
claim is "an assault on the legislative authority to enact Sec-
tion 244(c)(2) " Brief for Petitioner in No 80-2170, p 48
But if this turns the question into a political question virtu-
ally every challenge to the constitutionality of a statute
would be a political question Chadha indeed argues that
one House of Congress cannot constitutionally veto the At-
torney General's decision to allow him to remain in this coun-
try No policy underlying the political question doctrine
942 OCTOBER TERM, 1982
Opinion of the Court 462 U S
suggests that Congress or the Executive, or both acting in
concert and in comphance with Art I, can decide the con-
stitutionality of a statute, that is a decision for the courts 13
Other Baker factors are likewise inapplicable to this case
As we discuss more fully below, Art I provides the "judi-
cially discoverable and manageable standards" of Baker for
resolving the question presented by these cases Those
standards forestall reliance by this Court on nonjudicial "pol-
icy determinations" or any showing of disrespect for a coordi-
nate branch Similarly, if Chadha's arguments are accepted,
§244(c)(2) cannot stand, and, since the constitutionality of
that statute is for this Court to resolve, there is no possibility
of "multifarious pronouncements" on this question
It is correct that this controversy may, in a sense, be
termed "political " But the presence of constitutional issues
with significant political overtones does not automatically in-
18 The suggestion is made that §244(c)(2) is somehow immunized from
constitutional scrutiny because the Act containing § 244(c)(2) was passed
by Congress and approved by the President Marbury v Madison, 1
Cranch 137 (1803), resolved that question The assent of the Executive to
a bill which contains a provision contrary to the Constitution does not
shield it from judicial review See Smith v Maryland, 442 U S 735, 740,
n 5 (1979), National League of Cities v Usery, 426 U S 833, 841, n 12
(1976), Buckley v Valeo, 424 U S 1 (1976), Myers v United States, 272
U S 52 (1926) See also n 22, infra In any event, 11 Presidents, from
Mr Wilson through Mr Reagan, who have been presented with this issue
have gone on record at some point to challenge congressional vetoes as
unconstitutional See Henry, The Legislative Veto In Search of Con-
stitutional Limits, 16 Harv J Legis 735, 737-738, n 7 (1979) (collecting
citations to Presidential statements) Perhaps the earliest Executive
expression on the constitutionality of the congressional veto is found in At-
torney General William D Mitchell's opinion of January 24, 1933, to Presi-
dent Hoover 37 Op Atty Gen 56 Furthermore, it is not uncommon
for Presidents to approve legislation containing parts which are objection-
able on constitutional grounds For example, after President Roosevelt
signed the Lend-Lease Act of 1941, Attorney General Jackson released a
memorandum explaining the President's view that the provision allowing
the Act's authorization to be terminated by concurrent resolution was un
constitutional Jackson, A Presidential Legal Opinion, 66 Harv L Rev
1353 (1953)
INS v CHADHA 943
919 Opinion of the Court
voke the political question doctrine Resolution of litigation
challenging the constitutional authority of one of the three
branches cannot be evaded by courts because the issues have
political implications in the sense urged by Congress Mar-
bury v Madison, 1 Cranch 137 (1803), was also a "political"
case, involving as it did claims under a judicial commission
alleged to have been duly signed by the President but not
delivered But "courts cannot reject as 'no law suit' a bona
fide controversy as to whether some action denominated
"political* exceeds constitutional authority " Baker v Carr,
supra, at 217
In Field v Clark, 143 U S 649 (1892), this Court ad-
dressed and resolved the question whether
"a bill signed by the Speaker of the House of Represent-
atives and by the President of the Senate, presented to
and approved by the President of the United States, and
delivered by the latter to the Secretary of State, as an
act passed by Congress, does not become a law of
the United States if it had not in fact been passed by
Congress
" We recognize, on one hand, the duty of this court,
from the performance of which it may not shrink, to give
full effect to the provisions of the Constitution relating to
the enactment of laws that are to operate wherever the
authority and jurisdiction of the United States extend
On the other hand, we cannot be unmindful of the conse-
quences that must result if this court should feel obliged,
in fidelity to the Constitution, to declare that an enrolled
bill, on which depend public and private interests of vast
magnitude, and which has been deposited in the
public archives, as an act of Congress, did not
become a law " Id , at 669-670 (emphasis in original)
H
The contentions on standing and justiciabihty have been
fully examined, and we are satisfied the parties are properly
before us The important issues have been fully briefed and
944 OCTOBER TERM, 1982
Opinion of the Court 462 U S
twice argued, see 458 U S 1120 (1982) The Court's duty in
these cases, as Chief Justice Marshall declared in Cohens v
Virginia, 6 Wheat 264, 404 (1821), is clear
"Questions may occur which we would gladly avoid, but
we cannot avoid them All we can do is, to exercise our
best judgment, and conscientiously to perform our
duty "
III
A
We turn now to the question whether action of one House
of Congress under § 244(c)(2) violates strictures of the Con-
stitution We begin, of course, with the presumption that
the challenged statute is valid Its wisdom is not the con-
cern of the courts, if a challenged action does not violate the
Constitution, it must be sustained
"Once the meaning of an enactment is discerned and its
constitutionality determined, the judicial process comes
to an end We do not sit as a committee of review, nor
are we vested with the power of veto " TV A v Hill,
437 U S 153, 194-195 (1978)
By the same token, the fact that a given law or procedure
is efficient, convenient, and useful in facilitating functions of
government, standing alone, will not save it if it is contrary
to the Constitution Convenience and efficiency are not the
primary objectives — or the hallmarks — of democratic govern-
ment and our inquiry is sharpened rather than blunted by the
fact that congressional veto provisions are appearing with in-
creasing frequency in statutes which delegate authority to
executive and independent agencies
"Since 1932, when the first veto provision was enacted
into law, 295 congressional veto-type procedures have
been inserted in 196 different statutes as follows from
1932 to 1939, five statutes were affected, from 1940-49,
nineteen statutes, between 1950-59, thirty-four statutes,
and from 1960-69, forty-nine From the year 1970
through 1975, at least one hundred sixty-three such pro-
INS v CHADHA 945
919 Opinion of the Court
visions were included in eighty-nine laws " Abourezk,
The Congressional Veto A Contemporary Response to
Executive Encroachment on Legislative Prerogatives,
52 Ind L Rev 323, 324 (1977)
See also Appendix to JUSTICE WHITE'S dissent, post, at 1003
JUSTICE WHITE undertakes to make a case for the proposi-
tion that the one-House veto is a useful "political invention,"
post, at 972, and we need not challenge that assertion We
can even concede this utilitarian argument although the long-
range political wisdom of this "invention" is arguable It has
been vigorously debated, and it is instructive to compare the
views of the protagonists See, e g , Javits & Klein, Con-
gressional Oversight and the Legislative Veto A Constitu-
tional Analysis, 52 N Y U L Rev 455 (1977), and Martin,
The Legislative Veto and the Responsible Exercise of Con-
gressional Power, 68 Va L Rev 253 (1982) But policy
arguments supporting even useful "political inventions" are
subject to the demands of the Constitution which defines
powers and, with respect to this subject, sets out just how
those powers are to be exercised
Explicit and unambiguous provisions of the Constitution
prescribe and define the respective functions of the Congress
and of the Executive in the legislative process Since the
precise terms of those familiar provisions are critical to the
resolution of these cases, we set them out verbatim Article
I provides
"All legislative Powers herein granted shall be vested
in a Congress of the United States, which shall consist of
a Senate and House of Representatives " Art I, § 1
(Emphasis added )
"Every Bill which shall have passed the House of Rep-
resentatives and the Senate, shall, before it becomes
a law, be presented to the President of the United
States " Art I, §7, cl 2 (Emphasis added )
"Every Order, Resolution, or Vote to which the Con-
currence of the Senate and House of Representatives
may be necessary (except on a question of Adjournment)
946 OCTOBER TERM, 1982
Opinion of the Court 462 U S
shall be presented to the President of the United States,
and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed
by two thirds of the Senate and House of Repre-
sentatives, according to the Rules and Limitations
prescribed in the Case of a Bill " Art I, §7, cl 3
(Emphasis added )
These provisions of Art I are integral parts of the con-
stitutional design for the separation of powers We have re-
cently noted that "[t]he principle of separation of powers was
not simply an abstract generalization in the minds of the
Framers it was woven into the document that they drafted
in Philadelphia in the summer of 1787 " Buckley v Valeo,
424 U S , at 124 Just as we relied on the textual provision
of Art II, § 2, cl 2, to vindicate the principle of separation of
powers in Buckley, we see that the purposes underlying the
Presentment Clauses, Art I, §7, els 2, 3, and the bicameral
requirement of Art I, § 1, and § 7, cl 2, guide our resolu-
tion of the important question presented in these cases
The very structure of the Articles delegating and separating
powers under Arts I, II, and III exemplifies the concept of
separation of powers, and we now turn to Art I
B
The Presentment Clauses
The records of the Constitutional Convention reveal that
the requirement that all legislation be presented to the Presi-
dent before becoming law was uniformly accepted by the
Framers u Presentment to the President and the Presiden-
14 The widespread approval of the delegates was commented on by
Joseph Story
"In the convention there does not seem to have been much diversity of
opinion on the subject of the propriety of giving to the president a negative
on the laws The principal points of discussion seem to have been,
whether the negative should be absolute, or qualified, and if the latter, by
what number of each house the bill should subsequently be passed, in order
to become a law, and whether the negative should in either case be exclu-
INS v CHADHA 947
919 Opinion of the Court
tial veto were considered so imperative that the draftsmen
took special pains to assure that these requirements could not
be circumvented During the final debate on Art I, §7,
cl 2, James Madison expressed concern that it might easily
be evaded by the simple expedient of calling a proposed
law a "resolution" or "vote" rather than a "bill " 2 Farrand
301-302 As a consequence, Art I, § 7, cl 3, supra, at 945-
946, was added 2 Farrand 304-305
The decision to provide the President with a limited and
qualified power to nullify proposed legislation by veto was
based on the profound conviction of the Framers that the
powers conferred on Congress were the powers to be most
carefully circumscribed It is beyond doubt that lawmaking
was a power to be shared by both Houses and the President
In The Federalist No 73 (H Lodge ed 1888), Hamilton
focused on the President's role in making laws
"If even no propensity had ever discovered itself in the
legislative body to invade the rights of the Executive,
the rules of just reasoning and theoretic propriety would
of themselves teach us that the one ought not to be left
to the mercy of the other, but ought to possess a con-
stitutional and effectual power of self-defence " Id , at
458
See also The Federalist No 51 In his Commentaries on
the Constitution, Joseph Story makes the same point
1 J Story, Commentaries on the Constitution of the United
States 614-615 (3d ed 1858)
The President's role in the lawmaking process also reflects
the Framers' careful efforts to check whatever propensity a
particular Congress might have to enact oppressive, improvi-
sively vested in the president alone, or in him jointly with some other de-
partment of the government " 1 J Story, Commentaries on the Constitu-
tion of the United States 611 (3d ed 1858)
See 1 M Farrand, The Records of the Federal Convention of 1787, pp 21,
97-104, 138-140 (1911) (hereinafter Farrand), id , at 73-80, 181, 298,
301-305
948 OCTOBER TERM, 1982
Opinion of the Court 462 U S
dent, or ill-considered measures The President's veto role
m the legislative process was described later during public
debate on ratification
"It establishes a salutary check upon the legislative
body, calculated to guard the community against the
effects of faction, precipitancy, or of any impulse un-
friendly to the public good, which may happen to influ-
ence a majority of that body
" The primary inducement to conferring the power
in question upon the Executive is, to enable him to
defend himself, the secondary one is to increase the
chances in favor of the community against the passing of
bad laws, through haste, inadvertence, or design " The
Federalist No 73, supra, at 458 (A Hamilton)
See also The Pocket Veto Case, 279 U S 655, 678 (1929),
Myers v United States, 272 U S 52, 123 (1926) The Court
also has observed that the Presentment Clauses serve the
important purpose of assuring that a "national" perspective is
grafted on the legislative process
"The President is a representative of the people just as
the members of the Senate and of the House are, and it
may be, at some times, on some subjects, that the Presi-
dent elected by all the people is rather more represent-
ative of them all than are the members of either body of
the Legislature whose constituencies are local and not
countrywide " Myers v United States, supra, at
123
C
Bicameralism
The bicameral requirement of Art I, §§1, 7, was of
scarcely less concern to the Framers than was the Presiden-
tial veto and indeed the two concepts are interdependent
By providing that no law could take effect without the con-
currence of the prescribed majority of the Members of both
Houses, the Framers reemphasized their belief, already re-
INS v CHADHA 949
919 Opinion of the Court
marked upon in connection with the Presentment Clauses,
that legislation should not be enacted unless it has been care-
fully and fully considered by the Nation's elected officials
In the Constitutional Convention debates on the need for
a bicameral legislature, James Wilson, later to become a
Justice of this Court, commented
"Despotism comes on mankind in different shapes
sometimes in an Executive, sometimes in a military,
one Is there danger of a Legislative despotism?
Theory & practice both proclaim it If the Legislative
authority be not restrained, there can be neither liberty
nor stability, and it can only be restrained by dividing it
within itself, into distinct and independent branches In
a single house there is no check, but the inadequate one,
of the virtue & good sense of those who compose it "
1 Farrand 254
Hamilton argued that a Congress comprised of a single
House was antithetical to the very purposes of the Constitu-
tion Were the Nation to adopt a Constitution providing for
only one legislative organ, he warned
"[W]e shall finally accumulate, in a single body, all the
most important prerogatives of sovereignty, and thus
entail upon our posterity one of the most execrable forms
of government that human infatuation ever contrived
Thus we should create m reality that very tyranny which
the adversaries of the new Constitution either are, or af-
fect to be, solicitous to avert " The Federalist No 22,
p 135 (H Lodge ed 1888)
This view was rooted in a general skepticism regarding the
fallibility of human nature later commented on by Joseph
Story
"Public bodies, like private persons, are occasionally
under the dominion of strong passions and excitements,
impatient, irritable, and impetuous If [a legislature]
950 OCTOBER TERM, 1982
Opinion of the Court 462 U S
feels no check but its own will, it rarely has the firmness
to insist upon holding a question long enough under its
own view, to see and mark it in all its bearings and rela-
tions on society " 1 Story, supra, at 383-384
These observations are consistent with what many of the
Framers expressed, none more cogently than Madison in
pointing up the need to divide and disperse power in order to
protect liberty
"In republican government, the legislative authority nec-
essarily predominates The remedy for this inconve-
mency is to divide the legislature into different branches,
and to render them, by different modes of election and
different principles of action, as little connected with
each other as the nature of their common functions and
their common dependence on the society will admit "
The Federalist No 51, p 324 (H Lodge ed 1888) (some-
times attributed to "Hamilton or Madison" but now gen-
erally attributed to Madison)
See also The Federalist No 62
However familiar, it is useful to recall that apart from their
fear that special interests could be favored at the expense of
public needs, the Framers were also concerned, although not
of one mind, over the apprehensions of the smaller states
Those states feared a commonality of interest among the
larger states would work to their disadvantage, represent-
atives of the larger states, on the other hand, were skeptical
of a legislature that could pass laws favoring a minority of the
people See 1 Farrand 176-177, 484-491 It need hardly be
repeated here that the Great Compromise, under which one
House was viewed as representing the people and the other the
states, allayed the fears of both the large and small states 16
16 The Great Compromise was considered so important by the Framers that
they inserted a special provision to ensure that it could not be altered, even
by constitutional amendment, except with the consent of the states affected
SeeU S Const ,ArtV
INS v CHADHA 95!
919 Opinion of the Court
We see therefore that the Framers were acutely conscious
that the bicameral requirement and the Presentment Clauses
would serve essential constitutional functions The Presi-
dent's participation in the legislative process was to protect
the Executive Branch from Congress and to protect the
whole people from improvident laws The division of the
Congress into two distinctive bodies assures that the legisla-
tive power would be exercised only after opportunity for full
study and debate in separate settings The President's uni-
lateral veto power, in turn, was limited by the power of two-
thirds of both Houses of Congress to overrule a veto thereby
precluding final arbitrary action of one person See id , at
99-104 It emerges clearly that the prescription for legisla-
tive action in Art I, §§1, 7, represents the Framers' decision
that the legislative power of the Federal Government be ex-
ercised in accord with a single, finely wrought and exhaus-
tively considered, procedure
IV
The Constitution sought to divide the delegated powers of
the new Federal Government into three defined categories,
Legislative, Executive, and Judicial, to assure, as nearly as
possible, that each branch of government would confine itself
to its assigned responsibility The hydraulic pressure inher-
ent within each of the separate Branches to exceed the outer
limits of its power, even to accomplish desirable objectives,
must be resisted
Although not '"hermetically" sealed from one another,
Buckley v Valeo, 424 U S , at 121, the powers delegated to
the three Branches are functionally identifiable When any
Branch acts, it is presumptively exercising the power the
Constitution has delegated to it See J W Hampton & Co
v United States, 276 U S 394, 406 (1928) When the Exec-
utive acts, he presumptively acts in an executive or adminis-
trative capacity as defined in Art II And when, as here,
952 OCTOBER TERM, 1982
Opinion of the Court 462 U S
one House of Congress purports to act, it is presumptively
acting within its assigned sphere
Beginning with this presumption, we must nevertheless
establish that the challenged action under § 244(c)(2) is of the
kind to which the procedural requirements of Art I, §7,
apply Not every action taken by either House is subject to
the bicameralism and presentment requirements of Art I
See infra, at 955, and nn 20, 21 Whether actions taken by
either House are, in law and fact, an exercise of legislative
power depends not on their form but upon "whether they
contain matter which is properly to be regarded as legislative
in its character and effect " S Rep No 1335, 54th Cong ,
2d Sess , 8 (1897)
Examination of the action taken here by one House pursu-
ant to § 244(c)(2) reveals that it was essentially legislative in
purpose and effect In purporting to exercise power defined
in Art I, §8, cl 4, to "establish an uniform Rule of Natural-
ization," the House took action that had the purpose and
effect of altering the legal rights, duties, and relations of
persons, including the Attorney General, Executive Branch
officials and Chadha, all outside the Legislative Branch
Section 244(c)(2) purports to authorize one House of Con-
gress to require the Attorney General to deport an individual
alien whose deportation otherwise would be canceled under
§ 244 The one-House veto operated in these cases to over-
rule the Attorney General and mandate Chadha's deporta-
tion, absent the House action, Chadha would remain in the
United States Congress has acted and its action has altered
Chadha's status
The legislative character of the one-House veto in these
cases is confirmed by the character of the congressional ac-
tion it supplants Neither the House of Representatives nor
the Senate contends that, absent the veto provision in
§244(c)(2), either of them, or both of them acting together,
could effectively require the Attorney General to deport an
alien once the Attorney General, in the exercise of legisla-
INS v CHADHA 953
919 Opinion of the Court
tively delegated authority,16 had determined the alien should
remain in the United States Without the challenged provi-
sion in § 244(c)(2), this could have been achieved, if at all, only
16 Congress protests that affirming the Court of Appeals m these cases
will sanction "lawmaking by the Attorney General Why is the Attor
ney General exempt from submitting his proposed changes in the la\* to the
full bicameral process7" Brief for Petitioner in No 80-2170, p 40 To be
sure, some administrative agency action — rulemaking, for example — may
resemble "lawmaking " See 5 U S C § 551(4), which defines an agency's
"rule" as 'the whole or part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or pre-
scribe law or policy " This Court has referred to agency activity as
being "quasi-legislative" in character Humphrey's Executor v United
States, 295 U S 602, 628 (1935) Clearly, however, "[i]n the framework
of our Constitution, the President's power to see that the laws are faith
fully executed refutes the idea that he is to be a lawmaker " Youngstown
Sheet & Tube Co v Sawyer, 343 U S 579, 587 (1952) See Buckley v
Valeo, 424 U S , at 123 When the Attorney General performs his duties
pursuant to § 244, he does not exercise "legislative" power See Ernst &
Ernst v Hochfelder, 425 U S 185, 213-214 (1976) The bicameral proc
ess is not necessary as a check on the Executive's administration of the
laws because his administrative activity cannot reach beyond the limits of
the statute that created it — a statute duly enacted pursuant to Art I,
§§1,7 The constitutionality of the Attorney General's execution of the
authority delegated to him by § 244 involves only a question of delegation
doctrine The courts, when a case or controversy arises, can always "as-
certain whether the will of Congress has been obeyed," Yakus v United
States, 321 U S 414, 425 (1944), and can enforce adherence to statutory
standards See Youngstown Sheet & Tube Co v Sawyer, supra, at 585,
Ethyl Corp v EPA, 176 U S App D C 373, 440, 541 F 2d 1, 68 (en
bane) (separate statement of Leventhal, J ), cert denied, 426 U S 941
(1976), L Jaffe, Judicial Control of Administrative Action 320 (1965) It is
clear, therefore, that the Attorney General acts in his presumptively Art
II capacity when he administers the Immigration and Nationality Act
Executive action under legislatively delegated authority that might resem-
ble "legislative" action in some respects is not subject to the approval of
both Houses of Congress and the President for the reason that the Con
stitution does not so require That kind of Executive action is always sub-
ject to check by the terms of the legislation that authorized it, and if that
authority is exceeded it is open to judicial review as well as the power of
954 OCTOBER TERM, 1982
Opinion of the Court 462 U S
by legislation requiring deportation 17 Similarly, a veto by
one House of Congress under § 244(c)(2) cannot be justified as
an attempt at amending the standards set out in § 244(a)(l),
or as a repeal of §244 as applied to Chadha Amendment
and repeal of statutes, no less than enactment, must conform
with Art I 18
The nature of the decision implemented by the one-House
veto in these cases further manifests its legislative character
After long experience with the clumsy, time-consuming pri-
vate bill procedure, Congress made a deliberate choice to
delegate to the Executive Branch, and specifically to the
Attorney General, the authority to allow deportable aliens to
remain in this country in certain specified circumstances It
is not disputed that this choice to delegate authority is pre-
cisely the kind of decision that can be implemented only in
accordance with the procedures set out in Art I Dis-
agreement with the Attorney General's decision on Chadha's
deportation — that is, Congress' decision to deport Chadha —
no less than Congress' original choice to delegate to the At-
torney General the authority to make that decision, involves
determinations of policy that Congress can implement in only
one way, bicameral passage followed by presentment to the
Congress to modify or revoke the authority entirely A one-House veto is
clearly legislative in both character and effect and is not so checked, the
need for the check provided by Art I, §§ 1, 7, is therefore clear Con
gress' authority to delegate portions of its power to administrative agen
cies provides no support for the argument that Congress can constitution
ally control administration of the laws by way of a congressional veto
17 We express no opinion as to whether such legislation would violate any
constitutional provision See n 8, supra
18 During the Convention of 1787, the application of the President's veto
to repeals of statutes was addressed, and the Framers were apparently
content with Madison's comment that "[a]s to the difficulty of repeals, it
was probable that in doubtful cases the policy would soon take place of
limiting the duration of laws as to require renewal instead of repeal " 2
Farrand 587 See Gmnane, The Control of Federal Administration by
Congressional Resolutions and Committees, 66 Harv L Rev 569, 587-
599 (1953) There is no provision allowing Congress to repeal or amend
laws by other than legislative means pursuant to Art I
INS v CHADHA 955
919 Opinion of the Court
President Congress must abide by its delegation of author-
ity until that delegation is legislatively altered or revoked l9
Finally, we see that when the Framers intended to author-
ize either House of Congress to act alone and outside of its
prescribed bicameral legislative role, they narrowly and pre-
cisely defined the procedure for such action There are four
provisions in the Constitution,20 explicit and unambiguous, by
which one House may act alone with the unreviewable force
of law, not subject to the President's veto
(a) The House of Representatives alone was given the
power to initiate impeachments Art I, §2, cl 5,
(b) The Senate alone was given the power to conduct trials
following impeachment on charges initiated by the House and
to convict following trial Art I, § 3, cl 6,
(c) The Senate alone was given final unreviewable power
to approve or to disapprove Presidential appointments
Art II, §2, cl 2,
(d) The Senate alone was given unreviewable power to rat-
ify treaties negotiated by the President Art II, §2, cl 2
Clearly, when the Draftsmen sought to confer special pow-
ers on one House, independent of the other House, or of
the President, they did so in explicit, unambiguous terms 21
19 This does not mean that Congress is required to capitulate to 'the ac-
cretion of policy control by forces outside its chambers " Javits & Klein,
Congressional Oversight and the Legislative Veto A Constitutional Analy-
sis, 52 N Y U L Rev 455, 462 (1977) The Constitution provides
Congress with abundant means to oversee and control its administrative
creatures Beyond the obvious fact that Congress ultimately controls ad-
ministrative agencies in the legislation that creates them, other means of
control, such as durational limits on authorizations and formal reporting
requirements, he well within Congress* constitutional power See id , at
460-461, Kaiser, Congressional Action to Overturn Agency Rules Alterna-
tives to the "Legislative Veto," 32 Ad L Rev 667 (1980) See also n 9,
supra
20 See also U S Const , Art II, § 1, and Amdt 12
21 An exception from the Presentment Clauses was ratified in Hoi
hngsworth v Virginw, 3 Dall 378 (1798) There the Court held Presi-
dential approval was unnecessary for a proposed constitutional amendment
956 OCTOBER TERM, 1982
Opinion of the Court 462 U S
These carefully defined exceptions from presentment and bi-
camerahsm underscore the difference between the legislative
functions of Congress and other unilateral but important and
binding one-House acts provided for in the Constitution
These exceptions are narrow, explicit, and separately justi-
fied, none of them authorize the action challenged here On
the contrary, they provide further support for the conclusion
that congressional authority is not to be implied and for the
conclusion that the veto provided for in §244(c)(2) is not
authorized by the constitutional design of the powers of the
Legislative Branch
Since it is clear that the action by the House under
§ 244(c)(2) was not within any of the express constitutional
exceptions authorizing one House to act alone, and equally
which had passed both Houses of Congress by the requisite two-thirds
majority See U S Const , Art V
One might also include another "exception" to the rule that congressional
action having the force of law be subject to the bicameral requirement and
the Presentment Clauses Each House has the power to act alone in
determining specified internal matters Art I, § 7, els 2, 3, and § 5, cl 2
However, this "exception" only empowers Congress to bind itself and is
noteworthy only insofar as it further indicates the Framers' intent that
Congress not act m any legally binding manner outside a closely circum
scribed legislative arena, except in specific and enumerated instances
Although the bicameral check was not provided for in any of these pro-
visions for independent congressional action, precautionary alternative
checks are evident For example, Art II, § 2, requires that two-thirds of
the Senators present concur in the Senate's consent to a treaty, rather than
the simple majority required for passage of legislation See The Federal
ist No 64 (J Jay), The Federalist No 66 (A Hamilton), The Federalist
No 75 (A Hamilton) Similarly, the Framers adopted an alternative pro
tection, in the stead of Presidential veto and bicamerahsm, by requiring
the concurrence of two thirds of the Senators present for a conviction of
impeachment Art I, § 3 We also note that the Court's holding in
Holhngsworth, supra, that a resolution proposing an amendment to the
Constitution need not be presented to the President, is subject to two al
ternative protections First, a constitutional amendment must command
the votes of two-thirds of each House Second, three-fourths of the states
must ratify any amendment
INSv CHADHA 957
919 Opinion of the Court
clear that it was an exercise of legislative power, that action
was subject to the standards prescribed in Art I a The
bicameral requirement, the Presentment Clauses, the Presi-
dent's veto, and Congress' power to override a veto were
intended to erect enduring checks on each Branch and to
protect the people from the improvident exercise of power by
mandating certain prescribed steps To preserve those
22 JUSTICE POWELL'S position is that the one-House veto in this case is a
judicial act and therefore unconstitutional as beyond the authority vested
in Congress by the Constitution We agree that there is a sense in which
one House action pursuant to § 244(c)(2) has a judicial cast, since it pur-
ports to "review" Executive action In this case, for example, the sponsor
of the resolution vetoing the suspension of Chadha's deportation argued
that Chadha "did not meet [the] statutory requirements" for suspension of
deportation Supra, at 926 To be sure, it is normally up to the courts to
decide whether an agency has complied with its statutory mandate See
n 16, supra But the attempted analogy between judicial action and the
one-House veto is less than perfect Federal courts do not eiyoy a roving
mandate to correct alleged excesses of administrative agencies, we are lim-
ited by Art III to hearing cases and controversies and no justiciable case
or controversy was presented by the Attorney General's decision to allow
Chadha to remain in this country We are aware of no decision, and JUS-
TICE POWELL has cited none, where a federal court has reviewed a decision
of the Attorney General suspending deportation of an alien pursuant to the
standards set out in § 244(a)(l) This is not surprising, given that no party
to such action has either the motivation or the right to appeal from it As
JUSTICE WHITE correctly notes, post, at 1001-1002, "the courts have not
been given the authority to review whether an alien should be given per-
manent status, review is limited to whether the Attorney General has
properly applied the statutory standards for" denying a request for sus-
pension of deportation Foti v INS, 375 U S 217 (1963), relied on by
JUSTICE POWELL, addressed only "whether a refusal by the Attorney Gen-
eral to grant a suspension of deportation is one of those final orders of de-
portation' of whicn direct review by Courts of Appeals is authorized under
§ 106(a) of the Act " Id , at 221 Thus, JUSTICE POWELL'S statement
that the one-House veto in this case is "clearly adjudicatory," post, at 964,
simply is not supported by his accompanying assertion that the House has
"assumed a function ordinarily entrusted to the federal courts " Post, at
965 We are satisfied that the one-House veto is legislative in purpose and
effect and subject to the procedures set out in Art I
958 OCTOBER TERM, 1982
Opinion of the Court 462 U S
checks, and maintain the separation of powers, the carefully
defined limits on the power of each Branch must not be
eroded To accomplish what has been attempted by one
House of Congress in this case requires action in conformity
with the express procedures of the Constitution's prescrip-
tion for legislative action passage by a majority of both
Houses and presentment to the President M
The veto authorized by §244(c)(2) doubtless has been in
many respects a convenient shortcut, the "sharing" with the
Executive by Congress of its authority over aliens in this
manner is, on its face, an appealing compromise In purely
practical terms, it is obviously easier for action to be taken by
one House without submission to the President, but it is crys-
28 Neither can we accept the suggestion that the one-House veto provi-
sion in § 244(c)(2) either removes or modifies the bicamerahsm and presen
tation requirements for the enactment of future legislation affecting aliens
See Atkins v United States, 214 Ct Cl 186, 250-251, 556 F 2d 1028,
1063-1064 (1977), cert denied, 434 U S 1009 (1978), Brief for Petitioner in
No 80-2170, p 40 The explicit prescription for legislative action con
tained in Art I cannot be amended by legislation See n 13, supra
JUSTICE WHITE suggests that the Attorney General's action under
§ 244(c)(l) suspending deportation is equivalent to a proposal for legisla
tion and that because congressional approval is indicated "by the failure to
veto, the one-House veto satisfies the requirement of bicameral approval "
Post, at 997 However, as the Court of Appeals noted, that approach
"would analogize the effect of the one house disapproval to the failure of
one house to vote affirmatively on a private bill " 634 F 2d 408, 435
(1980) Even if it were clear that Congress entertained such an arcane
theory when it enacted § 244(c)(2), which JUSTICE WHITE does not sug
gest, this would amount to nothing less than an amending of Art I The
legislative steps outlined in Art I are not empty formalities, they were de-
signed to assure that both Houses of Congress and the President partici-
pate m the exercise of lawrnakmg authority This does not mean that leg
islation must always be preceded by debate, on the contrary, we have said
that it is not necessary for a legislative body to "articulate its reasons for
enacting a statute " United States Railroad Retirement Board v Fritz,
449 U S 166, 179 (1980) But the steps required by Art I, §§ 1, 7, make
certain that there is an opportunity for deliberation and debate To allow
Congress to evade the strictures of the Constitution and m effect enact Ex
ecutive proposals into law by mere silence cannot be squared with Art I
INSv CHADHA 959
919 POWELL, J , concurring in judgment
tal clear from the records of the Convention, contemporane-
ous writings and debates, that the Framers ranked other val-
ues higher than efficiency The records of the Convention
and debates in the states preceding ratification underscore
the common desire to define and limit the exercise of the
newly created federal powers affecting the states and the
people There is unmistakable expression of a determina-
tion that legislation by the national Congress be a step-by-
step, deliberate and deliberative process
The choices we discern as having been made in the
Constitutional Convention impose burdens on governmental
processes that often seem clumsy, inefficient, even unwork-
able, but those hard choices were consciously made by men
who had lived under a form of government that permitted
arbitrary governmental acts to go unchecked There is no
support in the Constitution or decisions of this Court for the
proposition that the cumbersomeness and delays often en-
countered in complying with explicit constitutional standards
may be avoided, either by the Congress or by the President
See Youngstown Sheet & Tube Co v Sawyer, 343 U S 579
(1952) With all the obvious flaws of delay, untidiness, and
potential for abuse, we have not yet found a better way
to preserve freedom than by making the exercise of power
subject to the carefully crafted restraints spelled out in the
Constitution
V
We hold that the congressional veto provision in § 244(c)(2)
is severable from the Act and that it is unconstitutional Ac-
cordingly, the judgment of the Court of Appeals is
Affirmed
JUSTICE POWELL, concurring in the judgment
The Court's decision, based on the Presentment Clauses,
Art I, § 7, els 2 and 3, apparently will invalidate every use of
the legislative veto The breadth of this holding gives one
pause Congress has included the veto in literally hundreds
960 OCTOBER TERM, 1982
POWELL, J , concurring in judgment 462 U S
of statutes, dating back to the 1930's Congress clearly
views this procedure as essential to controlling the delegation
of power to administrative agencies 1 One reasonably may
disagree with Congress' assessment of the veto's utility,2 but
the respect due its judgment as a coordinate branch of Gov-
ernment cautions that our holding should be no more exten-
sive than necessary to decide these cases In my view, the
cases may be decided on a narrower ground When Con-
gress finds that a particular person does not satisfy the statu-
tory criteria for permanent residence in this country it has
assumed a judicial function in violation of the principle of
separation of powers Accordingly, I concur only in the
judgment
I
The Framers perceived that "[t]he accumulation of all
powers legislative, executive and judiciary in the same
hands, whether of one, a few or many, and whether heredi-
tary, self appointed, or elective, may justly be pronounced the
very definition of tyranny " The Federalist No 47, p 324
(J Cooke ed 1961) (J Madison) Theirs was not a baseless
fear Under British rule, the Colonies suffered the abuses of
unchecked executive power that were attributed, at least
popularly, to a hereditary monarchy See Levi, Some As-
pects of Separation of Powers, 76 Colum L Rev 369, 374
(1976), The Federalist No 48 During the Confederation,
'As JUSTICE WHITE'S dissenting opinion explains, the legislative veto
has been included in a wide variety of statutes, ranging from bills for exec
utive reorganization to the War Powers Resolution See post, at 968-972
Whether the veto complies with the Presentment Clauses may well turn on
the particular context in which it is exercised, and I would be hesitant to
conclude that every veto is unconstitutional on the basis of the unusual ex-
ample presented by this litigation
2 See Martin, The Legislative Veto and the Responsible Exercise of Con-
gressional Power, 68 Va L Rev 253 (1982), Consumer Energy Council of
America v FERC, 218 U S App D C 34, 84, 673 F 2d 425, 475 (1982)
INSv CHADHA 95!
919 POWELL, J , concurring in judgment
the States reacted by removing power from the executive
and placing it in the hands of elected legislators But many
legislators proved to be little better than the Crown "The
supremacy of legislatures came to be recognize^ as the su-
premacy of faction and the tyranny of shifting majorities
The legislatures confiscated property, erected paper money
schemes, [and] suspended the ordinary means of collecting
debts " Levi, supra, at 374-375
One abuse that was prevalent during the Confederation
was the exercise of judicial power by the state legislatures
The Framers were well acquainted with the danger of sub-
jecting the determination of the rights of one person to the
"tyranny of shifting majorities " Jefferson observed that
members of the General Assembly in his native Virginia
had not been prevented from assuming judicial power, and
"Tt]hey have accordingly in many instances decided rights
which should have been left to judiciary controversy *"3
The Federalist No 48, supra, at 336 (emphasis in original)
(quoting T Jefferson, Notes on the State of Virginia 196
(London ed 1787)) The same concern also was evident in
the reports of the Council of the Censors, a body that was
charged with determining whether the Pennsylvania Legisla-
ture had complied with the State Constitution The Council
found that during this period "[t]he constitutional trial by
jury had been violated, and powers assumed, which had not
been delegated by the Constitution [C]ases belonging
3 Jefferson later questioned the degree to which the Constitution insu-
lates the judiciary SeeD Malone, Jefferson the President Second Term,
1805-1809, pp 304-305 (1974) In response to Chief Justice Marshall's
rulings during Aaron Burr's trial, Jefferson stated that the judiciary had
favored Burr — whom Jefferson viewed as clearly guilty of treason — at the
expense of the country He predicted that the people " *wdl see then and
amend the error in our Constitution, which makes any branch independent
of the nation '" Id , at 305 (quoting Jefferson's letter to William Giles)
The very controversy that attended Burr's trial, however, demonstrates
the wisdom in providing a neutral forum, removed from political pressure,
for the determination of one person's rights
962 OCTOBER TERM, 1982
POWELL, J , concurring in judgment 462 U S
to the judiciary department, frequently [had been] drawn
within legislative cognizance and determination " The Fed-
eralist No 48, at 336-337
It was to prevent the recurrence of such abuses that the
Framers vested the executive, legislative, and judicial pow-
ers in separate branches Their concern that a legislature
should not be able unilaterally to impose a substantial depri-
vation on one person was expressed not only m this general
allocation of power, but also in more specific provisions, such
as the Bill of Attainder Clause, Art I, §9, cl 3 As the
Court recognized in United States v Brown, 381 U S 437,
442 (1965), "the Bill of Attainder Clause was intended not
as a narrow, technical prohibition, but rather as an
implementation of the separation of powers, a general safe-
guard against legislative exercise of the judicial function, or
more simply — trial by legislature " This Clause, and the
separation-of-powers doctrine generally, reflect the Framers'
concern that trial by a legislature lacks the safeguards neces-
sary to prevent the abuse of power
B
The Constitution does not establish three branches with
precisely defined boundaries See Buckley v Valeo, 424
U S 1, 121 (1976) (per cumam) Rather, as Justice Jackson
wrote "While the Constitution diffuses power the better to
secure liberty, it also contemplates that practice will inte-
grate the dispersed powers into a workable government It
enjoins upon its branches separateness but interdependence,
autonomy but reciprocity " Youngstown Sheet & Tube Co
v Sauiyer, 343 U S 579, 635 (1952) (concurring in judg-
ment) The Court thus has been mindful that the boundaries
between each branch should be fixed "according to common
sense and the inherent necessities of the governmental co-
ordination " / W Hampton & Co v United States, 276
U S 394, 406 (1928) But where one branch has impaired
or sought to assume a power central to another branch, the
INS v CHADHA 953
919 POWELL, J , concurring in judgment
Court has not hesitated to enforce the doctrine See Buck-
ley v Valeo, supra, at 123
Functionally, the doctrine may be violated in two ways
One branch may interfere rnipermissibly with the other's
performance of its constitutionally assigned function See
Nixon v Administrator of General Services, 438 U S 425,
433 (1977), United States v Nixon, 418 U S 683 (1974) Al-
ternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to an-
other See Youngstown Sheet & Tube Co v Sawyer, supra,
at 587, Springer v Philippine Islands, 277 U S 189, 203
(1928) These cases present the latter situation 4
II
Before considering whether Congress unpermissibly as-
sumed a judicial function, it is helpful to recount briefly
Congress' actions Jagdish Rai Chadha, a citizen of Kenya,
stayed in this country after his student visa expired Al-
though he was scheduled to be deported, he requested
the Immigration and Naturalization Service to suspend his
deportation because he met the statutory criteria for per-
manent residence in this country After a hearing,6 the
Service granted Chadha's request and sent — as required by
4 The House and the Senate argue that the legislative veto does not pre-
vent the executive from exercising its constitutionally assigned function
Even assuming this argument is correct, it does not address the concern
that the Congress is exercising unchecked judicial power at the expense of
individual liberties It was precisely to prevent such arbitrary action that
the Framers adopted the doctrine of separation of powers See, e g ,
Myers v United States, 272 U S 52, 293 (1926) (Brandeis, J , dissenting)
6 The Immigration and Naturalization Service, a division of the Depart-
ment of Justice, administers the Immigration and Nationality Act on behalf
of the Attorney General, who has primary responsibhty for the Act's
enforcement See 8 U S C §1103 The Act establishes a detailed
administrative procedure for determining when a specific person is to be
deported, see § 1252(b), and provides for judicial review of this decision,
see § 1105a, Foti v INS, 375 U S 217 (1963)
964 OCTOBER TERM, 1982
POWELL, J , concurring in judgment 462 U S
the reservation of the veto right — a report of its action to
Congress
In addition to the report on Chadha, Congress had before it
the names of 339 other persons whose deportations also had
been suspended by the Service The House Committee on
the Judiciary decided that six of these persons, including
Chadha, should not be allowed to remain in this country
Accordingly, it submitted a resolution to the House, which
stated simply that "the House of Representatives does not
approve the granting of permanent residence in the United
States to the aliens hereinafter named " 121 Cong Rec
40800 (1975) The resolution was not distributed prior to the
vote,6 but the Chairman of the Judiciary Subcommittee on
Immigration, Citizenship, and International Law explained
to the House
"It was the feeling of the committee, after reviewing
340 cases, that the aliens contained in the resolution did
not meet [the] statutory requirements, particularly as it
relates to hardship, and it is the opinion of the committee
that their deportation should not be suspended " Ibid
(remarks of Rep Eilberg)
Without further explanation and without a recorded vote, the
House rejected the Service's determination that these six
people met the statutory criteria
On its face, the House's action appears clearly adjudica-
tory 7 The House did not enact a general rule, rather it
6 Normally the House would have distributed the resolution before acting
on it, see 121 Cong Rec 40800 (1975), but the statute providing for the
legislative veto limits the time in which Congress may veto the Service's
determination that deportation should be suspended See 8 U S C
§ 1254(c)(2) In this case Congress had Chadha's report before it for ap-
proximately a year and a half, but failed to act on it until three days before
the end of the limitations period Accordingly, it was required to abandon
its normal procedures for considering resolutions, thereby increasing the
danger of arbitrary and ill-considered action
7 The Court concludes that Congress' action was legislative in character
because each branch "presumptively act[s] within its assigned sphere "
Ante, at 952 The Court's presumption provide^ a useful starting point,
INS v CHADHA 955
919 POWELL, J , concurring in judgment
made its own determination that six specific persons did not
comply with certain statutory criteria It thus undertook
the type of decision that traditionally has been left to other
branches Even if the House did not make a de novo deter-
mination, but simply reviewed the Immigration and Nat-
uralization Service's findings, it still assumed a function
ordinarily entrusted to the federal courts 8 See 5 U S C
§704 (providing generally for judicial review of final agency
action), cf Fotx v INS, 375 U S 217 (1963) (holding that
courts of appeals have jurisdiction to review INS decisions
denying suspension of deportation) Where, as here, Con-
gress has exercised a power "that cannot possibly be re-
garded as merely in aid of the legislative function of Con-
but does not conclude the inquiry Nor does the fact that the House's
action alters an individual's legal status indicate, as the Court reasons,
see ante, at 952-954, that the action is legislative rather than acjjudicative
in nature In determining whether one branch unconstitutionally has as-
sumed a power central to another branch, the traditional characterization
of the assumed power as legislative, executive, or judicial may provide
some guidance See Springer v Philippine Islands, 277 U S 189, 203
(1928) But reasonable minds may disagree over the character of an act,
and the more helpful inquiry, in my view, is whether the act in question
raises the dangers the Framers sought to avoid
8 The Court reasons in response to this argument that the one-House
veto exercised in this case was not judicial in nature because the decision of
the Immigration and Naturalization Service did not present a justiciable
issue that could have been reviewed by a court on appeal See ante, at
957, n 22 The Court notes that since the administrative agency de-
cided the case in favor of Chadha, there was no aggrieved party who could
appeal Reliance by the Court on this fact misses the point Even if
review of the particular decision to suspend deportation is not committed
to the courts, the House of Representatives assumed a function that gener-
ally is entrusted to an impartial tribunual In my view, the Legislative
Branch in effect acted as an appellate court by overruling the Service's
application of established law to Chadha And unlike a court or an admin-
istrative agency, it did not provide Chadha with the right to counsel or a
hearing before acting Although the parallel is not entirely complete, the
effect on Chadha's personal rights would not have been different in princi-
ple had he been acquitted of a federal crime and thereafter found by one
House of Congress to have been guilty
966 OCTOBER TERM, 1982
POWELL, J , concurring in judgment 462 U S
gress," Buckley v Valeo, 424 U S , at 138, the decisions of
this Court have held that Congress impermissibly assumed a
function that the Constitution entrusted to another branch,
see id , at 138-141, cf Springer v Philippine Islands, 277
U S , at 202
The impropriety of the House's assumption of this function
is confirmed by the fact that its action raises the very danger
the Framers sought to avoid — the exercise of unchecked
power In deciding whether Chadha deserves to be de-
ported, Congress is not subject to any internal constraints
that prevent it from arbitrarily depriving him of the right to
remain m this country 9 Unlike the judiciary or an adminis-
trative agency, Congress is not bound by established sub-
stantive rules Nor is it subject to the procedural safe-
guards, such as the right to counsel and a hearing before
an impartial tribunal, that are present when a court or an
agency10 adjudicates individual rights The only effective
constraint on Congress' power is political, but Congress is
most accountable politically when it prescribes rules of gen-
eral applicability When it decides rights of specific per-
sons, those rights are subject to "the tyranny of a shifting
majority "
9 When Congress grants particular individuals relief or benefits under its
spending power, the danger of oppressive aetion that the separation of
powers was designed to avoid is not implicated Similarly, Congress may
authorize the admission of individual aliens by special Acts, but it does not
follow that Congress unilaterally may make a judgment that a particular
alien has no legal right to remain in this country See Memorandum Con
cermng H R 9766 Entitled "An Act to Direct the Deportation of Harry
Renton Bridges/' reprinted m S Rep No 2031, 76th Cong , 3d Sess ,
pt 1, p 8 (1940) As Attorney General Robert Jackson remarked, such a
practice "would be an historical departure from an unbroken American
practice and tradition " Id , at 9
10 We have recognized that independent regulatory agencies and depart
ments of the Executive Branch often exercise authority that is "judicial in
nature " Buckley v Valeo, 424 U S 1, 140-141 (1976) This function,
however, forms part of the agencies' execution of public law and is subject to
the procedural safeguards, including judicial review, provided by the Admin
istrative Procedure Act, see 5 U S C § 551 et seq See also n 5, supra
INS v CHADHA 967
919 WHITE, J , dissenting
Chief Justice Marshall observed "It is the peculiar prov-
ince of the legislature to prescribe general rules for the
government of society, the application of those rules to in-
dividuals in society would seem to be the duty of other
departments " Fletcher v Peck, 6 Cranch 87, 136 (1810)
In my view, when Congress undertook to apply its rules to
Chadha, it exceeded the scope of its constitutionally pre-
scribed authority I would not reach the broader question
whether legislative vetoes are invalid under the Presentment
Clauses
JUSTICE WHITE, dissenting
Today the Court not only invalidates §244(c)(2) of the
Immigration and Nationality Act, but also sounds the death
knell for nearly 200 other statutory provisions in which Con-
gress has reserved a "legislative veto " For this reason, the
Court's decision is of surpassing importance And it is for
this reason that the Court would have been well advised to
decide the cases, if possible, on the narrower grounds of
separation of powers, leaving for full consideration the con-
stitutionality of other congressional review statutes oper-
ating on such varied matters as war powers and agency
rulemaking, some of which concern the independent regula-
tory agencies 1
The prominence of the legislative veto mechanism in our
contemporary political system and its importance to Con-
gress can hardly be overstated It has become a central
1 As JUSTICE POWELL observes in his separate opinion, 'the respect due
[Congress'] judgment as a coordinate branch of Government cautions that
our holding should be no more extensive than necessary to decide these
cases " Ante, at 960 The Court of Appeals for the Ninth Circuit also
recognized that "we are not here faced with a situation in which the
unforeseeabihty of future circumstances or the broad scope and complexity
of the subject matter of an agency's rulemaking authority preclude the ar-
ticulation of specific criteria in the governing statute itself Such factors
might present considerations different from those we find here, both as to
the question of separation of powers and the legitimacy of the umcameral
device " 634 F 2d 408, 433 (1980) (footnote omitted)
968 OCTOBER TERM, 1982
WHITE, J , dissenting 462 u g
means by which Congress secures the accountability of exec-
utive and independent agencies Without the legislative
veto, Congress is faced with a Hobson's choice either to re-
frain from delegating the necessary authority, leaving itself
with a hopeless task of writing laws with the requisite speci-
ficity to cover endless special circumstances across the entire
policy landscape, or in the alternative, to abdicate its law-
making function to the Executive Branch and independent
agencies To choose the former leaves major national prob-
lems unresolved, to opt for the latter risks unaccountable
policymaking by those not elected to fill that role Accord-
ingly, over the past five decades, the legislative veto has
been placed in nearly 200 statutes 2 The device is known in
every field of governmental concern reorganization, budgets,
foreign affairs, war powers, and regulation of trade, safety,
energy, the environment, and the economy
The legislative veto developed initially in response to the
problems of reorganizing the sprawling Government struc-
ture created in response to the Depression The Reorga-
nization Acts established the chief model for the legislative
veto When President Hoover requested authority to reor-
ganize the Government in 1929, he coupled his request that
the "Congress be willing to delegate its authority over the
problem (subject to defined principles) to the Executive"
with a proposal for legislative review He proposed that the
Executive "should act upon approval of a joint committee of
Congress or with the reservation of power of revision by
Congress within some limited period adequate for its consid-
eration " Public Papers of the Presidents, Herbert Hoover,
1929, p 432 (1974) Congress followed President Hoover's
and authorized reorganization subject to legisla-
2 A selected list and brief description of these provisions is appended to
this opinion
INS v CHADHA 959
919 WHITE, J , dissenting
tive review Act of June 30, 1932, §407, 47 Stat 414 Al-
though the reorganization authority reenacted in 1933 did not
contain a legislative veto provision, the provision returned
during the Roosevelt administration and has since been re-
newed numerous times Over the years, the provision was
used extensively Presidents submitted 115 Reorganization
Plans to Congress of which 23 were disapproved by Congress
pursuant to legislative veto provisions See App A to Brief
for United States Senate on Reargument
Shortly after adoption of the Reorganization Act of 1939,
53 Stat 561, Congress and the President applied the legisla-
tive veto procedure to resolve the delegation problem for na-
tional security and foreign affairs World War II occasioned
the need to transfer greater authority to the President in
these areas The legislative veto offered the means by
which Congress could confer additional authority while pre-
serving its own constitutional role During World War II,
Congress enacted over 30 statutes conferring powers on
the Executive with legislative veto provisions 3 President
Roosevelt accepted the veto as the necessary price for ob-
taining exceptional authority 4
Over the quarter century following World War II, Presi-
dents continued to accept legislative vetoes by one or both
Houses as constitutional, while regularly denouncing provi-
sions by which congressional Committees reviewed Execu-
tive activity 5 The legislative veto balanced delegations of
3 Watson, Congress Steps Out A Look at Congressional Control of the
Executive, 63 Calif L Rev 983, 1089-1090 (1975) (listing statutes)
4 The Roosevelt administration submitted proposed legislation containing
veto provisions and defended their constitutionality See, e g , General
Counsel to the Office of Price Administration, Statement on Constitutional
ity of Concurrent Resolution Provision of Proposed Price Control Bill
(H R 5479), reprinted in Price-Control Bill Hearings on H R 5479
before the House Committee on Banking and Currency, 77th Cong , 1st
Sess , pt 1, p 983 (1941)
5 Presidential objections to the veto, until the veto by President Nixon of
the War Powers Resolution, principally concerned bills authorizing Com-
970 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
statutory authority in new areas of governmental involve-
ment the space program, international agreements on nu-
clear energy, tariff arrangements, and adjustment of federal
pay rates 6
During the 1970?s the legislative veto was important in re-
solving a series of major constitutional disputes between the
President and Congress over claims of the President to broad
impoundment, war, and national emergency powers The
mittee vetoes As the Senate Subcommittee on Separation of Powers
found in 1969, "an accommodation was reached years ago on legislative ve
toes exercised by the entire Congress or by one House, [while] disputes
have continued to arise over the committee form of the veto " S Rep
No 91-549, p 14 (1969) Presidents Kennedy and Johnson proposed en
actment of statutes with legislative veto provisions See National Wilder
ness Preservation Act Hearings on S 4 before the Senate Committee on
Interior and Insular Affairs, 88th Cong , 1st Sess , 4 (1963) (President
Kennedy's proposals for withdrawal of wilderness areas), President's Mes
sage to the Congress Transmitting the Budget for Fiscal Year 1970,
5 Weekly Comp Pres Doc 70, 73 (1969) (President Johnson's proposals
allowing legislative veto of tax surcharge) The administration of Presi
dent Kennedy submitted a memorandum supporting the constitutionality
of the legislative veto See General Counsel of the Department of Agricul
ture, Constitutionality of Title I of H R 6400, 87th Cong , 1st Session
(1961), reprinted in Legislative Policy of the Bureau of the Budget Hear
mg before the Subcommittee on Conservation and Credit of the House
Committee on Agriculture, 89th Cong , 2d Sess , 27, 31-32 (1966) During
the administration of President Johnson, the Department of Justice again
defended the constitutionality of the legislative veto provision of the Re
organization Act, as contrasted with provisions for a Committee veto
See Separation of Powers Hearings before the Subcommittee on Separa
tion of Powers of the Senate Committee on the Judiciary, 90th Cong , 1st
Sess , 206 (1967) (testimony of Frank M Wozencraf t, Assistant Attorney
General for the Office of Legal Counsel)
6 National Aeronautics and Space Act of 1958, Pub L 85-568, § 302, 72
Stat 433 (space program), Atomic Energy Act Amendments of 1958, Pub
L 85-479, § 4, 72 Stat 277 (cooperative nuclear agreements), Trade Ex-
pansion Act of 1962, Pub L 87-794, §351, 76 Stat 899, 19 U S C §1981
(tariff recommended by International Trade Commission may be imposed
by concurrent resolution of approval), Postal Revenue and Federal Salary
Act of 1967, Pub L 90-206, § 255(i)(l), 81 Stat 644
INS v CHADHA 97!
919 WHITE, J , dissenting
key provision of the War Powers Resolution, 50 U S C
§ 1544(c), authorizes the termination by concurrent resolution
of the use of armed forces in hostilities A similar measure
resolved the problem posed by Presidential claims of inherent
power to impound appropriations Congressional Budget
and Impoundment Control Act of 1974, 31 U S C § 1403
In conference, a compromise was achieved under which per-
manent impoundments, termed "rescissions," would require
approval through enactment of legislation In contrast, tem-
porary impoundments, or "deferrals," would become effec-
tive unless disapproved by one House This compromise
provided the President with flexibility, while preserving ulti-
mate congressional control over the budget 7 Although the
War Powers Resolution was enacted over President Nixon's
veto, the Impoundment Control Act was enacted with the
President's approval These statutes were followed by oth-
ers resolving similar problems the National Emergencies
Act, §202, 90 Stat 1255, 50 U S C §1622, resolving the
longstanding problems with unchecked Executive emergency
power, the International Security Assistance and Arms Ex-
port Control Act, §211, 90 Stat 740, 22 U S C §2776(b),
resolving the problem of foreign arms sales, and the Nuclear
Non-Proliferation Act of 1978, §§303(a), 304(a), 306, 307, 401,
92 Stat 130, 134, 137, 138, 144-145, 42 U S C §§2160(f),
2155(b), 2157(b), 2158, 2153(d) (1976 ed , Supp V), resolving
the problem of exports of nuclear technology
In the energy field, the legislative veto served to balance
broad delegations in legislation emerging from the energy
crisis of the 1970's 8 In the educational field, it was found
7 The Impoundment Control Act's provision for legislative review has
been used extensively Presidents have submitted hundreds of proposed
budget deferrals, of which 65 have been disapproved by resolutions of the
House or Senate with no protest by the Executive See App B to Brief
for United States Senate on Reargument
8 The veto appears in a host of broad statutory delegations concerning
energy rationing, contingency plans, strategic oil reserves, allocation of
972 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
that fragmented and narrow grant programs "inevitably lead
to Executive-Legislative confrontations" because they in-
aptly limited the Commissioner of Education's authority
S Rep No 93-763, p 69(1974) The response was to grant
the Commissioner of Education rulemaking authority, sub-
ject to a legislative veto In the trade regulation area, the
veto preserved congressional authority over the Federal
Trade Commission's broad mandate to make rules to prevent
businesses from engaging m "unfair or deceptive acts or prac-
tices in commerce "9
Even this brief review suffices to demonstrate that the leg-
islative veto is more than "efficient, convenient, and useful "
Ante, at 944 It is an important if not indispensable political
invention that allows the President and Congress to resolve
major constitutional and policy differences, assures the
accountability of independent regulatory agencies, and pre-
energy production materials, oil exports, and naval petroleum reserve pro
duction Naval Petroleum Reserves Production Act of 1976, Pub L
94-258, § 201(3), 90 Stat 309, 10 U S C § 7422(c)(2)(C), Energy Policy
and Conservation Act, Pub L 94-163, §§ 159, 201, 401(a), and 455, 89
Stat 886, 890, 941, and 950, 42 U S C §§6239 and 6261, 15 U S C
§§ 757 and 760a (strategic oil reserves, rationing and contingency plans, oil
price controls and product allocation), Federal Nonnuclear Energy Re
search and Development Act of 1974, Pub L 93-577, §12, 88 Stat
1892-1893, 42 U S C § 5911 (allocation of energy production materials),
Act of Nov 16, 1973, Pub L 93-153, § 101, 87 Stat 582, 30 U S C
§ 185(u) (oil exports)
9 Congress found that under the agency's
"very broad authority to prohibit conduct which is 'unfair or deceptive*
the FTC can regulate virtually every aspect of America's commercial
life The FTC's rules are not merely narrow interpretations of a
tightly drawn statute, instead, they are broad policy pronouncements
which Congress has an obligation to study and review " 124 Cong Rec
5012 (1978) (statement by Rep Broyhill)
A two House legislative veto was added to constrain that broad delegation
Federal Trade Commission Improvements Act of 1980, §21(a), 94 Stat
393, 15 U S C § 57ar-l(a) (1976 ed , Supp V) The constitutionality of
that provision is presently pending before us Umted States Senate v
Federal Trade Commission, No 82-935, United States House of Repre
sentatwes v Federal Trade Commission, No 82-1044
v CHADHA 973
919 WHITE, J , dissenting
serves Congress' control over lawmakmg Perhaps there
are other means of accommodation and accountability, but
the increasing reliance of Congress upon the legislative Veto
suggests that the alternatives to which Congress must now
turn are not entirely satisfactory 10
10 While Congress could write certain statutes with greater specificity, it
is unlikely that this is a realistic or even desirable substitute for the legisla-
tive veto The controversial nature of many issues would prevent Con-
gress from reaching agreement on many major problems if specificity were
required in their enactments Fuchs, Administrative Agencies and the
Energy Problem, 47 Ind L J 606, 608 (1972), Stewart, Reformation of
American Administrative Law, 88 Harv L Rev 1667, 1695-1696 (1975)
For example, in the deportation context, the solution is not for Congress to
create more refined categorizations of the deportable aliens whose status
should be subject to change In 1979, the Immigration and Naturalization
Service proposed regulations setting forth factors to be considered in the
exercise of discretion under numerous provisions of the Act, but not includ-
ing § 244, to ensure "fair and uniform" adjudication "under appropriate dis-
cretionary criteria " 44 Fed Reg 36187 (1979) The proposed rule was
canceled in 1981, because "[t]here is an inherent failure in any attempt to
list those factors which should be considered in the exercise of discretion
It is impossible to list or foresee all of the adverse or favorable factors
which may be present in a given set of circumstances " 46 Fed Reg 9119
(1981)
Oversight hearings and congressional investigations have their purpose,
but unless Congress is to be rendered a think tank or debating society,
they are no substitute for the exercise of actual authority The "delaying"
procedure approved in Sibbach v Wilson & Co , 312 US 1, 15 (1941),
while satisfactory for certain measures, has its own shortcomings Be-
cause a new law must be passed to restrain administrative action, Con-
gress must delegate authority without the certain ability of being able to
check its exercise
Finally, the passage of corrective legislation after agency regulations
take effect or Executive Branch officials have acted entails the drawbacks
endemic to a retroactive response "Post hoc substantive revision of legis-
lation, the only available corrective mechanism in the absence of postenact-
ment review could have serious prejudicial consequences, if Congress ret-
roactively tampered with a price control system after prices have been set,
the economy could be damaged and private rights seriously impaired, if
Congress rescinded the sale of arms to a foreign country, our relations with
that country would be severely strained, and if Congress reshuffled the bu-
reaucracy after a President's reorganization proposal had taken effect, the
974 OCTOBER TERM, 1982
WHITE, J , dissenting 452 u S
The history of the legislative veto also makes clear that it
has not been a sword with which Congress has struck out to
aggrandize itself at the expense of the other branches the
concerns of Madison and Hamilton Rather, the veto has
been a means of defense, a reservation of ultimate authority
necessary if Congress is to fulfill its designated role under
Art I as the Nation's lawmaker While the President has
often objected to particular legislative vetoes, generally
those left in the hands of congressional Committees, the Ex-
ecutive has more often agreed to legislative review as the
price for a broad delegation of authority To be sure, the
President may have preferred unrestricted power, but that
could be precisely why Congress thought it essential to retain
a check on the exercise of delegated authority
II
For all these reasons, the apparent sweep of the Court's
decision today is regretable The Court's Art I analysis ap-
pears to invalidate all legislative vetoes irrespective of form
or subject Because the legislative veto is commonly found
as a check upon rulemaking by administrative agencies and
upon broad-based policy decisions of the Executive Branch, it
is particularly unfortunate that the Court reaches its decision
in cases involving the exercise of a veto over deportation
decisions regarding particular individuals Courts should
always be wary of striking statutes as unconstitutional, to
strike an entire class of statutes based on consideration of a
somewhat atypical and more readily indictable exemplar of
the class is irresponsible It was for cases such as these that
Justice Brandeis wrote
"The Court has frequently called attention to the 'great
gravity and delicacy' of its function in passing upon the
validity of an act of Congress
results could be chaotic " Javits & Klein, Congressional Oversight and
the Legislative Veto A Constitutional Analysis, 52 N Y U L Rev 455,
464 (1977) (footnote omitted)
INS v CHADHA 975
919 WHITE, J , dissenting
"The Court will not 'formulate a rule of constitutional
law broader than is required by the precise facts to
which it is to be apphed ' Liverpool, N Y & P S S
Co v Emigration Commissioners, [113 US 33, 39
(1885)] " Ashwander v TV A, 297 U S 288, 345/347
(1936) (concurring opinion)
Unfortunately, today's holding is not so limited "
11 Perhaps I am wrong and the Court remains open to consider whether
certain forms of the legislative veto are reconcilable with the Art I re-
quirements One possibility for the Court and Congress is to accept that
a resolution of disapproval cannot be given legal effect in its own right,
but may serve as a guide in the interpretation of a delegation of law-
making authority The exercise of the veto could be read as a manifesta-
tion of legislative intent, which, unless itself contrary to the authorizing
statute, serves as the definitive construction of the statute Therefore, an
agency rule vetoed by Congress would not be enforced in the courts be-
cause the veto indicates that the agency action departs from the congres-
sional intent
This limited role for a redefined legislative veto follows in the steps of
the longstanding practice of giving some weight to subsequent legislative
reaction to administrative rulemakmg The silence of Congress after con-
sideration of a practice by the Executive may be equivalent to acquiescence
and consent that the practice be continued until the power exercised be re-
voked United States v Midwest Oil Co , 236 U S 459, 472-473 (1915)
See also Zemel v Rusk, 381 U S 1, 11-12 (1965) (relying on congressional
failure to repeal administration interpretation), Haig v Agee, 453 U S
280 (1981) (same), Bob Jones University v United States, 461 U S 574
(1983) (same), Merrill Lynch, Pierce, Fenner & Smith, Inc v Curran, 456
U S 353, 384 (1982) (relying on failure to disturb judicial decision in later
revision of law)
Reliance on subsequent legislative reaction has been limited by the fear
of overturning the intent of the original Congress and the unrekabihty
of discerning the views of a subsequent Congress Consumer Product
Safety Comm'n v GTE Sylvama, Inc , 447 U S 102, 117-118 (1980),
United States v Price, 361 U S 304, 313 (1960) These concerns are not
forceful when the original statute authorizes subsequent legislative review
The presence of the review provision constitutes an express authorization
for a subsequent Congress to participate in defining the meaning of the
law Second, the disapproval resolution allows for a reliable determina
tion of congressional intent Without the review mechanism, uncertainty
over the inferences to draw from subsequent congressional action is under-
976 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U s
If the legislative veto were as plainly unconstitutional as
the Court strives to suggest, its broad ruling today would be
more comprehensible But, the constitutionality of the leg-
islative veto is anything but clear-cut The issue divides
scholars,12 courts,13 Attorneys General,14 and the two other
standable The refusal to pass an amendment, for example, may indicate
opposition to that position but could mean that Congress believes the
amendment is redundant with the statute as written By contrast, the ex
ercise of a legislative veto is an unmistakable indication that the agency or
Executive decision at issue is disfavored This is not to suggest that the
failure to pass a veto resolution should be given any weight whatever
12 For commentary generally favorable to the legislative veto, see Abou
rezk, Congressional Veto A Contemporary Response to Executive En
croachment on Legislative Prerogatives, 52 Ind L J 323 (1977), Cooper
& Cooper, The Legislative Veto and the Constitution, 30 Geo Wash
L Rev 467 (1962), Dry, The Congressional Veto and the Constitutional
Separation of Powers, in The Presidency in the Constitutional Order 195
(J Bessette & J Tuhs eds 1981), Javits & Klein, supra n 10, at 455,
Miller & Knapp, The Congressional Veto Preserving the Constitutional
Framework, 52 Ind L J 367 (1977), Nathanson, Separation of Powers and
Administrative Law Delegation, the Legislative Veto, and the "Inde-
pendent" Agencies, 75 Nw U L Rev 1064 (1981), Newman & Keaton,
Congress and the Faithful Execution of Laws — Should Legislators Super
vise Administrators?, 41 Calif L Rev 565 (1953), Pearson, Oversight A
Vital Yet Neglected Congressional Function, 23 Kan L Rev 277 (1975),
Rodino, Congressional Review of Executive Action, 5 Seton Hall L Rev
489 (1974), Schwartz, Legislative Veto and the Constitution — A Reexami
nation, 46 Geo Wash L Rev 351 (1978), Schwartz, Legislative Control of
Administrative Rules and Regulations I The American Experience, 30
N Y U L Rev 1031 (1955), Stewart, Constitutionality of the Legislative
Veto, 13 Harv J Legis 593 (1976)
For commentary generally unfavorable to the legislative veto, see
J Bolton, The Legislative Veto Unseparating the Powers (1977), Bruff
& Gellhorn, Congressional Control of Administrative Regulation A Study
of Legislative Vetoes, 90 Harv L Rev 1369 (1977), Dixon, The Congres
sional Veto and Separation of Powers The Executive On a Leash?, 56
N C L Rev 423 (1978), FitzGerald, Congressional Oversight or Con
gressional Foresight Guidelines From the Founding Fathers, 28 Ad L
Rev 429 (1976), Gmnane, The Control of Federal Administration by Con
gressional Resolutions and Committees, 66 Harv L Rev 569 (1953),
[Footnotes 13 and 14 are on p 977]
INSv CHADHA 977
919 WHITE, J , dissenting
branches of the National Government If the veto devices so
flagrantly disregarded the requirements of Art I as the
Court today suggests, I find it incomprehensible that Con-
gress, whose Members are bound by oath to uphold the Con-
stitution, would have placed these mechanisms in nearly 200
separate laws over a period of 50 years
The reality of the situation is that the constitutional ques-
tion posed today is one of immense difficulty over which
the Executive and Legislative Branches — as well as scholars
and judges — have understandably disagreed That disagree-
ment stems from the silence of the Constitution on the pre-
cise question The Constitution does not directly authorize or
prohibit the legislative veto Thus, our task should be to de-
termine whether the legislative veto is consistent with the
purposes of Art I and the principles of separation of powers
which are reflected in that Article and throughout the Con-
Henry, The Legislative Veto In Search of Constitutional Limits, 16 Harv
J Legis 735 (1979), Martin, The Legislative Veto and the Responsible
Exercise of Congressional Power, 68 Va L Rev 253 (1982), Scaha, The
Legislative Veto A False Remedy For System Overload, 3 Regulation 19
(Nov-Dec 1979), Watson, supran 3, at 983, Comment, Congressional Over
sight of Administrative Discretion Defining the Proper Role of the Legusla
tive Veto, 26 Am U L Rev 1018 (1977), Note, Congressional Veto of Ad
mimstrative Action The Probable Response to a Constitutional Challenge,
1976 Duke L J 285, Recent Developments, The Legislative Veto in the
Arms Export Control Act of 1976, 9 Law & Pol'y Int'l Bus 1029 (1977)
18 Compare Atkins v United States, 214 Ct Cl 186, 556 F 2d 1028
(1977) (upholding legislative veto provision in Federal Salary Act, 2
U S C § 351 et seq ), cert denied, 434 U S 1009 (1978), with Consumer
Energy Council of America v FERC, 218 U S App D C 34, 673 F 2d
425 (1982) (holding unconstitutional the legislative veto provision in the
Natural Gas Policy Act of 1978, 15 U S C §§ 3301-3342 (1976 ed , Supp
V)), appeals docketed, Nos 81-2008, 81-2020, 81-2151, and 81-2171, and
cert pending, Nos 82-177 and 82-209
14 See, e g , 6 Op Atty Gen 680, 683 (1854), Dept of Justice, Memoran-
dum re Constitutionality of Provisions in Proposed Reorganization Bills
Now Pending in Congress, reprinted in S Rep No 232, 81st Cong , 1st
Sess , 19-20 (1949), Jackson, A Presidential Legal Opinion, 66 Harv L
Rev 1353 (1953), 43 Op Atty Gen No 10, p 2 (1977)
978 OCTOBER TERM, 1982
WHITE, J , dissenting 462 u S
stitution 15 We should not find the lack of a specific constitu-
tional authorization for the legislative veto surprising, and
I would not infer disapproval of the mechanism from its
absence From the summer of 1787 to the present the Gov-
ernment of the United States has become an endeavor far
beyond the contemplation of the Framers Only within the
last half century has the complexity and size of the Federal
Government's responsibilities grown so greatly that the
Congress must rely on the legislative veto as the most effec-
tive if not the only means to insure its role as the Nation's
lawmaker But the wisdom of the Framers was to anticipate
that the Nation would grow and new problems of governance
would require different solutions Accordingly, our Federal
Government was intentionally chartered with the flexibility
to respond to contemporary needs without losing sight of
fundamental democratic principles This was the spirit in
which Justice Jackson penned his influential concurrence in
the Steel Seizure Case
"The actual art of governing under our Constitution
does not and cannot conform to judicial definitions of the
power of any of its branches based on isolated clauses or
even single Articles torn from context While the Con-
stitution diffuses power the better to secure liberty, it
also contemplates that practice will integrate the dis
persed powers into a workable government " Youngs
town Sheet & Tube Co v Sawyer, 343 U S 579, 635
(1952)
This is the perspective from which we should approach the
novel constitutional questions presented by the legislative
veto In my view, neither Art I of the Constitution nor the
doctrine of separation of powers is violated by this mecha-
16 1 limit my concern here to those legislative vetoes which require either
one or both Houses of Congress to pass resolutions of approval or dis
approval, and leave aside the questions arising from the exercise of such
powers by Committees of Congress
INSv CHADHA 979
919 WHITE, J , dissenting
nism by which our elected Representatives preserve then-
voice in the governance of the Nation
III
The Court holds that the disapproval of a suspension of
deportation by the resolution of one House of Congress is an
exercise of legislative power without compliance with the
prerequisites for lawinalang set forth in Art I of the Consti-
tution Specifically, the Court maintains that the provisions
of § 244(c)(2) are inconsistent with the requirement of bicam-
eral approval, implicit in Art I, § 1, and the requirement that
all bills and resolutions that require the concurrence of both
Houses be presented to the President, Art I, §7, els 2
and 316
I do not dispute the Court's truismatic exposition of these
Clauses There is no question that a bill does not become a law
until it is approved by both the House and the Senate, and
presented to the President Similarly, I would not hesitate
to strike an action of Congress in the form of a con-
current resolution which constituted an exercise of original
lawmaking authority I agree with the Court that the Presi-
16 1 agree with JUSTICE REHNQUIST that Congress did not intend the one-
House veto provision of § 244(c)(2) to be severable Although the general
rule is that the presence of a saving clause creates a presumption of divisi-
bility, Champhn Refining Co v Corporation Comm'n of Oklahoma, 286
U S 210, 235 (1932), I read the saving clause contained in §406 of the Im
migration and Nationality Act as primarily pertaining to the severability of
major parts of the Act from one another, not the divisibility of different
provisions within a single section Surely, Congress would want the natu-
ralization provisions of the Act to be severable from the deportation sec-
tions But this does not support preserving § 244 without the legislative
veto any more than a saving provision would justify preserving immigra-
tion authority without quota limits
More relevant is the fact that for 40 years Congress has insisted on
retaining a voice on individual suspension cases — it has frequently re-
jected bills which would place final authority in the Executive Branch It
is clear that Congress believed its retention crucial Given this history,
the Court's rewriting of the Act flouts the will of Congress
980 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
dent's qualified veto power is a critical element in the distri-
bution of powers under the Constitution, widely endorsed
among the Framers, and intended to serve the President as
a defense against legislative encroachment and to check
the "passing of bad laws, through haste, inadvertence, or
design " The Federalist No 73, p 458 (H Lodge ed 1888)
(A Hamilton) The records of the Convention reveal that it
is the first purpose which figured most prominently but I
acknowledge the vitality of the second Id , at 443 I also
agree that the bicameral approval required by Art I, §§ 1, 7,
"was of scarcely less concern to the Framers than was the
Presidential veto," ante, at 948, and that the need to divide
and disperse legislative power figures significantly in our
scheme of Government All of this, Part III of the Court's
opinion, is entirely unexceptionable
It does not, however, answer the constitutional question
before us The power to exercise a legislative veto is not the
power to write new law without bicameral approval or Presi-
dential consideration The veto must be authorized by stat-
ute and may only negative what an Executive department or
independent agency has proposed On its face, the legisla-
tive veto no more allows one House of Congress to make law
than does the Presidential veto confer such power upon the
President Accordingly, the Court properly recognizes that
it "must nevertheless establish that the challenged action
under § 244(c)(2) is of the kind to which the procedural re-
quirements of Art I, § 7, apply" and admits that "[n]ot every
action taken by either House is subject to the bicameralism
and presentation requirements of Art I " Ante, at 952
The terms of the Presentment Clauses suggest only that
bills and their equivalent are subject to the requirements of
bicameral passage and presentment to the President Arti-
cle I, §7, cl 2, stipulates only that "Every Bill which shall
have passed the House of Representatives and the Senate,
INSv CHADHA 93!
919 WHITE, J , dissenting
shall, before it becomes a law, be presented to the President"
for approval or disapproval, his disapproval then subject to
being overridden by a two-thirds vote of both Houses Sec-
tion 7, cl 3, goes further
"Every Order, Resolution, or Vote to which the Con-
cunence of the Senate and House of Representatives
may be necessary (except on a question of Adjournment)
shall be presented to the President of the United States,
and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed
by two-thirds of the Senate and House of Represent-
atives, according to the Rules and Limitations pre-
scribed in the Case of a Bill "
Although the Clause does not specify the actions for which
the concurrence of both Houses is "necessary," the proceed-
ings at the Philadelphia Convention suggest its purpose was
to prevent Congress from circumventing the presentation re-
quirement in the making of new legislation James Madison
observed that if the President's veto was confined to bills, it
could be evaded by calling a proposed law a "resolution" or
"vote" rather than a "bill " Accordingly, he proposed that
"or resolve" should be added after "bill" in what is now
Clause 2 of § 7 2 M Farrand, The Records of the Federal
Convention of 1787, pp 301-302 (1911) After a short dis-
cussion on the subject, the amendment was rejected On the
following day, however, Randolph renewed the proposal in
the substantial form as it now appears, and the motion
passed Id , at 304-305, 5 J Elliot, Debates on the Federal
Constitution 431 (1845) The chosen language, Madison's
comment, and the brevity of the Convention's consideration,
all suggest a modest role was intended for the Clause and no
broad restraint on congressional authority was contemplated
See Stewart, Constitutionality of the Legislative Veto, 13
Harv J Legis 593,609-611(1976) This reading is consist-
ent with the historical background of the Presentment Clause
itself which reveals only that the Framers were concerned
982 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
with limiting the methods for enacting new legislation The
Framers were aware of the experience in Pennsylvania
where the legislature had evaded the requirements attached
to the passing of legislation by the use of "resolves," and the
criticisms directed at this practice by the Council of Cen-
sors 17 There is no record that the Convention contem-
plated, let alone intended, that these Art I requirements
would someday be invoked to restrain the scope of congres-
sional authority pursuant to duly enacted law 18
17 The Pennsylvania Constitution required that all "bills of [a] public na
ture" had to be printed after being introduced and had to lie over until the
following session of the legislature before adoption Pa Const , § 15
(1776) These printing and layover requirements applied only to "bills "
At the time, measures could also be enacted as a resolve, which was al
lowed by the Constitution as "urgent temporary legislation" without such
requirements A Nevins, The American States During and After the
Revolution 152 (1969) Using this method, the Pennsylvania Legislature
routinely evaded printing and layover requirements through adoption of
resolves Ibid
A 1784 report of a committee of the Council of Censors, a state body
responsible for periodically reviewing the state government's adherence to
its Constitution, charged that the procedures for enacting legislation had
been evaded though the adoption of resolves instead of bills Report of
the Committee of the Council of Censors 13 (1784) See Nevins, supra, at
190 When three years later the federal Constitutional Convention assem
bled in Philadelphia, the delegates were reminded, in the course of discuss
ing the President's veto, of the dangers pointed out by the Council of Cen
sors Report 5 J Elliot, Debates on the Federal Constitution 430 (1845)
Furthermore, Madison, who made the motion that led to the Presentment
Clause, knew of the Council of Censors Report, The Federalist No 50,
p 319 (H Lodge ed 1888), and was aware of the Pennsylvania experience
See The Federalist No 48, supra, at 311-312 We have previously recog
mzed the relevance of the Council of Censors Report in interpreting the
Constitution See Powell v McCormack, 395 U S 486, 529-530 (1969)
18 Although the legislative veto was not a feature of congressional enact
ments until the 20th century, the practices of the first Congresses demon
strate that the constraints of Art I were not envisioned as a constitutional
straitjacket The First Congress, for example, began the practice of
arming its Committees with broad investigatory powers without the pas
sage of legislation See A Josephy, On the Hill A History of the Amen-
INSv CHADHA 933
919 WHITE, J , dissenting
When the Convention did turn its attention to the scope of
Congress' lawmaking power, the Pramers were expansive
The Necessary and Proper Clause, Art I, §8, cl 18, vests
can Congress 81-83 (1979) More directly pertinent is the First Congress'
treatment of the Northwest Territories Ordinance of 1787 The Ordi-
nance, initially drafted under the Articles of Confederation on July 13,
1787, was the document which governed the territory of the United States
northwest of the Ohio River The Ordinance authorized the Territories to
adopt laws, subject to disapproval in Congress
"The governor and judges, or a majority of them, shall adopt and publish
in the district, such laws of the original states, criminal and civil, as may be
necessary, and best suited to the circumstances of the district, and report
them to Congress, from time to time, which laws shall be in force HI the
district until the organization of the general assembly therein, unless dis
approved of by Congress, but afterwards the legislature shall have author-
ity to alter them as they shall think fit" (emphasis added)
After the Constitution was ratified, the Ordinance was reenacted to con-
form to the requirements of the Constitution Act of Aug 7, 1789, ch 8,
1 Stat 50-51 Certain provisions, such as one relating to appointment of
officials by Congress, were changed because of constitutional concerns, but
the language allowing disapproval by Congress was retained Subsequent
provisions for territorial laws contained similar language See, e g , 48
USC §1478
Although at times Congress disapproved of territorial actions by passing
legislation, see, e g , Act of Mar 3, 1807, ch 44, 2 Stat 444, on at least
two occasions one House of Congress passed resolutions to disapprove ter-
ritorial laws, only to have the other House fail to pass the measure for rea-
sons pertaining to the subject matter of the bills First, on February 16,
1795, the House of Representatives passed a concurrent resolution disap-
proving in one sweep all but one of the laws that the Governors and judges
of the Northwest Territory had passed at a legislative session on August 1,
1792 4 Annals of Cong 1227 The Senate, however, refused to concur
Id , at 830 See B Bond, The Civilization of the Old Northwest 70-71
(1934) Second, on May 9, 1800, the House passed a resolution to disap-
prove of a Mississippi territorial law imposing a license fee on taverns
H R Jour , 6th Cong , 1st Sess , 706 (1826 ed ) The Senate unsuccess-
fully attempted to amend the resolution to strike down all laws of the Mis-
sissippi Territory enacted since June 30, 1799 5 C Carter, Territorial
Papers of the United States— Mississippi 94-95 (1937) The histories of
the Territories, the correspondence of the era, and the congressional Re-
ports contain no indication that such resolutions disapproving of territorial
laws were to be presented to the President or that the authorization for
984 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
Congress with the power "[t]o make all Laws which shall be
necessary and proper for carrying into Execution the fore-
going Powers [the enumerated powers of § 8] and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof " It
is long settled that Congress may "exercise its best judgment
in the selection of measures, to carry into execution the
constitutional powers of the government," and "avail itself
of experience, to exercise its reason, and to accommodate its
legislation to circumstances " McCulloch v Maryland, 4
Wheat 316, 415-416, 420 (1819)
B
The Court heeded this counsel in approving the modern
administrative state The Court's holding today that all
legislative-type action must be enacted through the law-
making process ignores that legislative authority is routinely
delegated to the Executive Branch, to the independent
regulatory agencies, and to private individuals and groups
"The rise of administrative bodies probably has been
the most significant legal trend of the last century
They have become a veritable fourth branch of the Gov-
ernment, which has deranged our three-branch legal the-
ories " FTC v Ruberoid Co , 343 U S 470, 487
(1952) (Jackson, J dissenting)
such a "congressional veto" in the Act of Aug 7, 1789, was of doubtful
constitutionality
The practices of the First Congress are not so clear as to be dispositive of
the constitutional question now before us But it is surely significant that
this body, largely composed of the same men who authored Art I and se
cured ratification of the Constitution, did not view the Constitution as for
bidding a precursor of the modern day legislative veto SeeJ W Hamp
ton & Co v United States, 276 U S 394, 412 (1928) ("In this first
Congress sat many members of the Constitutional Convention of 1787
This Court has repeatedly laid down the principle that a contemporaneous
legislative exposition of the Constitution when the founders of our gov
ernment and framers of our Constitution were actively participating in
public affairs, long acquiesced in, fixes the construction to be given its
provisions")
INS v CHADHA 9g5
919 WHITE, J , dissenting
This Court's decisions sanctioning such delegations make
clear that Art I does not require all action with the effect of
legislation to be passed as a law
Theoretically, agencies and officials were asked only to "fill
up the details," and the rule was that "Congress cannot dele-
gate any part of its legislative power except under the limita-
tion of a prescribed standard " United States v Chicago,
M , St P &P R Co , 282 U S 311, 324 (1931) Chief Jus-
tice Taf t elaborated the standard in J W Hampton & Co v
United States, 276 U S 394, 409 (1928) "If Congress shaU
lay down by legislative act an intelligible principle to which
the person or body authorized to fix such rates is directed to
conform, such legislative action is not a forbidden delegation
of legislative power " In practice, however, restrictions on
the scope of the power that could be delegated diminished
and all but disappeared In only two instances did the Court
find an unconstitutional delegation Panama Refining Co
v Ryan, 293 U S 388 (1935), ALA Schechter Poultry
Corp v United States, 295 U S 495 (1935) In other cases,
the "intelligible principle" through which agencies have at-
tained enormous control over the economic affairs of the
country was held to include such formulations as "just and
reasonable," Tagg Bros & Moorhead v United States, 280
U S 420 (1930), "public interest," New York Central Securi-
ties Corp v United States, 287 U S 12 (1932), "public con-
venience, interest, or necessity," Federal Radio Comm'n v
Nelson Bros Bond & Mortgage Co , 289 U S 266, 285
(1933), and "unfair methods of competition " FTC v Gratz,
253 U S 421 (1920)
The wisdom and the constitutionality of these broad dele-
gations are matters that still have not been put to rest But
for present purposes, these cases establish that by virtue of
congressional delegation, legislative power can be exercised
by independent agencies and Executive departments without
the passage of new legislation For some time, the sheer
amount of law — the substantive rules that regulate private
conduct and direct the operation of government— made by
986 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
the agencies has far outnumbered the lawmaking engaged in
by Congress through the traditional process There is no
question but that agency rulemaking is lawmaking in any
functional or realistic sense of the term The Administrative
Procedure Act, 5 U S C §551(4), provides that a "rule" is
an agency statement "designed to implement, interpret, or
prescribe law or policy " When agencies are authorized to
prescribe law through substantive rulemaking, the adminis-
trator's regulation is not only due deference, but is accorded
"legislative effect " See, e g , Schweiker v Gray Panthers,
453 U S 34, 43-44 (1981), Batterton v Francis, 432 U S
416 (1977) 19 These regulations bind courts and officers of
the Federal Government, may pre-empt state law, see, e g ,
Fidelity Federal Savings & Loan Assn v De la Cuesta, 458
U S 141 (1982), and grant rights to and impose obligations
on the public In sum, they have the force of law
If Congress may delegate lawmaking power to independ-
ent and Executive agencies, it is most difficult to understand
Art I as prohibiting Congress from also reserving a check on
legislative power for itself Absent the veto, the agencies
receiving delegations of legislative or quasi-legislative power
may issue regulations having the force of law without bicam-
19 "Legislative, or substantive, regulations are 'issued by an agency pur
suant to statutory authority and implement the statute, as, for exam
pie, the proxy rules issued by the Securities and Exchange Commission
Such rules have the force and effect of law ' U S Dept of Jus
tice, Attorney General's Manual on the Administrative Procedure Act 30,
n 3 (1947) " Batterton v Francis, 432 U S , at 425, n 9
Substantive agency regulations are clearly exercises of lawmaking au-
thority, agency interpretations of their statutes are only arguably so But
as Henry Monaghan has observed "Judicial deference to agency 'interpre-
tation' of law is simply one way of recognizing a delegation of lawmaking
authority to an agency " Monaghan, Marbury and the Administrative
State, 83 Colum L Rev 1, 26 (1983) (emphasis deleted) See, e g ,
NLRB v Hearst Publications, Inc , 322 U S 111 (1944), NLRB v
Hendricks County Rural Electric Membership Corp ,454 U S 170(1981)
INS v CHADHA 937
919 WHITE, J , dissenting
eral approval and without the President's signature It is
thus not apparent why the reservation of a veto over the
exercise of that legislative power must be subject to a more
exacting test In both cases, it is enough that the initial stat-
utory authorizations comply with the Art I requirements
Nor are there strict limits on the agents that may receive
such delegations of legislative authority so that it might be
said that the Legislature can delegate authority to others but
not to itself While most authority to issue rules and regula-
tions is given to the Executive Branch and the independent
regulatory agencies, statutory delegations to private persons
have also passed this Court's scrutiny In Cumn v Wai-
lace, 306 U S 1 (1939), the statute provided that restrictions
upon the production or marketing of agricultural commodities
was to become effective only upon the favorable vote by a
prescribed majority of the affected farmers United States
v Rock Royal Co-operative, Inc , 307 U S 533, 577 (1939),
upheld an Act which gave producers of specified commodities
the right to veto marketing orders issued by the Secretary
of Agriculture Assuming Cumn and Rock Royal Co-
operative remain sound law, the Court's decision today sug-
gests that Congress may place a "veto" power over suspensions
of deportation in private hands or in the hands of an independ-
ent agency, but is forbidden to reserve such authority for
itself Perhaps this odd result could be justified on other
constitutional grounds, such as the separation of powers,
but certainly it cannot be defended as consistent with the
Court's view of the Art I presentment and bicameralism
commands ^
20 As the Court acknowledges, the "provisions of Art I are integral parts
of the constitutional design for the separation of powers " Ante, at 946
But these separation-of-powers concerns are that legislative power be ex
ercised by Congress, executive power by the President, and judicial power
by the Courts A scheme which allows delegation of legislative power to
the President and the departments under his control, but forbids a check
on its exercise by Congress itself obviously denigrates the separation
988 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
The Court's opinion in the present cases comes closest to
facing the reality of administrative lawmakmg in considering
the contention that the Attorney General's action in suspend-
ing deportation under § 244 is itself a legislative act The
Court posits that the Attorney General is acting in an Art II
enforcement capacity under § 244 This characterization is
at odds with Mahler v Eby, 264 U S 32, 40 (1924), where
the power conferred on the Executive to deport aliens was
considered a delegation of legislative power The Court sug-
gests, however, that the Attorney General acts in an Art II
capacity because "[t]he courts, when a case or controversy
arises, can always 'ascertain whether the will of Congress has
been obeyed/ Yakus v United States, 321 U S 414, 425
(1944), and can enforce adherence to statutory standards "
Ante, at 953, n 16 This assumption is simply wrong, as the
Court itself points out "We are aware of no decision
where a federal court has reviewed a decision of the Attorney
General suspending deportation of an alien pursuant to the
standards set out in § 244(a)(l) This is not surprising, given
that no party to such action has either the motivation or the
right to appeal from it " Ante, at 957, n 22 It is perhaps
on the erroneous premise that judicial review may check
abuses of the §244 power that the Court also submits that
"[t]he bicameral process is not necessary as a check on the
Executive's administration of the laws because his adminis-
trative activity cannot reach beyond the limits of the statute
that created it — a statute duly enacted pursuant to Art !,§§!,
7 " Ante, at 953, n 16 On the other hand, the Court's
reasoning does persuasively explain why a resolution of dis-
of-powers concerns underlying Art I To be sure, the doctrine of separa-
tion of powers is also concerned with checking each branch's exercise of its
characteristic authority Section 244(c)(2) is fully consistent with the need
for checks upon congressional authority, infra, at 994-996, and the legisla
tive veto mechanism, more generally is an important check upon Executive
authority, supra, at 967-974
INS v CHADHA 939
919 WHITE, J , dissenting
approval under §244(c)(2) need not again be subject to the
bicameral process Because it serves only to check the
Attorney General's exercise of the suspension authority
granted by § 244, the disapproval resolution— unlike the At-
torney General's action— "cannot reach beyond the limits of
the statute that created it — a statute duly enacted pursuant
to Art I"
More fundamentally, even if the Court correctly charac-
terizes the Attorney GeneraPs authority under §244 as an
Art II Executive power, the Court concedes that certain ad-
ministrative agency action, such as rulemakmg, "may resem-
ble lawmakmg" and recognizes that "[tjhis Court has referred
to agency activity as being 'quasi-legislative' in character
Humphrey's Executor v United States, 295 U S 602, 628
(1935) " Ante, at 953, n 16 Such rules and adjudications
by the agencies meet the Court's own definition of legislative
action for they "alte[r] the legal rights, duties, and relations
of persons outside the Legislative Branch," ante, at 952,
and involve "determinations of policy," ante, at 954 Under
the Court's analysis, the Executive Branch and the independ-
ent agencies may make rules with the effect of law while Con-
gress, in whom the Framers confided the legislative power,
Art I, § 1, may not exercise a veto which precludes such
rules from having operative force If the effective function-
ing of a complex modern government requires the delegation
of vast authority which, by virtue of its breadth, is legisla-
tive or "quasi-legislative" in character, I cannot accept that
Art I — which is, after all, the source of the nondelegation
doctrine — should forbid Congress to qualify that grant with a
legislative veto 21
21 The Court's other reasons for holding the legislative veto subject to the
presentment and bicameral passage requirements require but brief discus-
sion First, the Court posits that the resolution of disapproval should be
considered equivalent to new legislation because absent the veto authority
of § 244(c)(2) neither House could, short of legislation, effectively require
the Attorney General to deport an alien once the Attorney General has
990 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
c
The Court also takes no account of perhaps the most rel-
evant consideration However resolutions of disapproval
under §244(c)(2) are formally characterized, in reality, a de-
parture from the status quo occurs only upon the concurrence
of opinion among the House, Senate, and President Res-
ervations of legislative authority to be exercised by Congress
should be upheld if the exercise of such reserved authority is
consistent with the distribution of and limits upon legislative
power that Art I provides
1
As its history reveals, § 244(c)(2) withstands this analysis
Until 1917, Congress had not broadly provided for the de-
portation of aliens Act of Feb 5, 1917, § 19, 39 Stat
889 The Immigration Act of 1924 enlarged the categories of
determined that the ahen should remain in the United States Ante, at
952-954 The statement is neither accurate nor meaningful The Attor
ney General's power under the Act is only to "suspend" the order of
deportation, the "suspension" does not cancel the deportation or adjust the
alien's status to that of a permanent resident alien Cancellation of
deportation and adjustment of status must await favorable action by Con
gress More important, the question is whether § 244(c)(2) as written is
constitutional, and no law is amended or repealed by the resolution of dis
approval which is, of course, expressly authorized by that section
The Court also argues that the legislative character of the challenged
action of one House is confirmed by the fact that "when the Framers in
tended to authorize either House of Congress to act alone and outside of its
prescribed bicameral legislative role, they narrowly and precisely defined
the procedure for such action " Ante, at 955 Leaving aside again the
above refuted premise that all action with a legislative character requires
passage in a law, the short answer is that all of these carefully defined ex
ceptions to the presentment and bicamerahsm strictures do not involve
action of the Congress pursuant to a duly enacted statute Indeed, for the
most part these powers — those of impeachment, review of appointments,
and treaty ratification— are not legislative powers at all The fact that it
was essential for the Constitution to stipulate that Congress has the power
to impeach and try the President hardly demonstrates a limit upon Con-
gress* authority to reserve itself a legislative veto, through statutes, over
subjects within its lawmaking authority
INSv CHADHA 99!
919 WHITE, J , dissenting
aliens subject to mandatory deportation, and substantially in-
creased the likelihood of hardships to individuals by abolish-
ing in most cases the previous time limitation of three years
within which deportation proceedings had to be commenced
Immigration Act of 1924, ch 190, 43 Stat 153 Thousands
of persons, who either had entered the country in more le-
nient times or had been smuggled in as children, or had over-
stayed their permits, faced the prospect of deportation En-
forcement of the Act grew more rigorous over the years with
the deportation of thousands of aliens without regard to the
mitigating circumstances of particular cases See Mansfield,
The Legislative Veto and the Deportation of Aliens, 1 Public
Administration Review 281 (1941) Congress provided relief
in certain cases through the passage of private bills
In 1933, when deportations reached their zenith, the Secre-
tary of Labor temporarily suspended numerous deportations
on grounds of hardship, 78 Cong Rec 11783 (1934), and pro-
posed legislation to allow certain deportable aliens to remain
in the country H R 9725, 73d Cong , 2d Sess (1934)
The Labor Department bill was opposed, however, as "grant-
ting] too much discretionary authority," 78 Cong Rec 11790
(1934) (remarks of Rep Dirksen), and it failed decisively
Id , at 11791
The following year, the administration proposed bills to au-
thorize an interdepartmental committee to grant permanent
residence to deportable aliens who had lived in the United
States for 10 years or who had close relatives here S 2969
and H R 8163, 74th Cong , 1st Sess (1935) These bills
were also attacked as an "abandonment of congressional con-
trol over the deportation of undesirable aliens," H R Rep
No 1110, 74th Cong , 1st Sess , pt 2, p 2 (1935), and were
not enacted A similar fate awaited a bill introduced in the
75th Congress that would have authorized the Secretary to
grant permanent residence to up to 8,000 deportable aliens
The measure passed the House, but did not come to a vote in
the Senate H R 6391, 75th Cong , 1st Sess , 83 Cong
Rec 8992-8996 (1938)
992 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
The succeeding Congress again attempted to find a leg-
islative solution to the deportation problem The initial
House bill required congressional action to cancel individual
deportations, 84 Cong Rec 10455 (1939), but the Senate
amended the legislation to provide that deportable aliens
should not be deported unless the Congress by Act or resolu-
tion rejected the recommendation of the Secretary H R
5138, § 10, as reported with amendments by S Rep No 1721,
76th Cong , 3d Sess , 2 (1940) The compromise solution,
the immediate predecessor to §244(c), allowed the Attor-
ney General to suspend the deportation of qualified aliens
Their deportation would be canceled and permanent resi-
dence granted if the House and Senate did not adopt a con-
current resolution of disapproval S Rep No 1796, 76th
Cong , 3d Sess , 5-6 (1940) The Executive Branch played
a major role in fashioning this compromise, see 86 Cong
Rec 8345 (1940), and President Roosevelt approved the leg-
islation, which became the Alien Registration Act of 1940,
ch 439, 54 Stat 670
In 1947, the Department of Justice requested legislation
authorizing the Attorney General to cancel deportations
without congressional review H R 2933, 80th Cong , 1st
Sess (1947) The purpose of the proposal was to "save
time and energy of everyone concerned " Regulating
Powers of the Attorney General to Suspend Deportation of
Aliens Hearings on H R 245, H R 674, H R 1115, and
H R 2933 before the Subcommittee on Immigration of the
House Committee on the Judiciary, 80th Cong , 1st Sess , 34
(1947) The Senate Judiciary Committee objected, stating
that "affirmative action by the Congress in all suspension
cases should be required before deportation proceedings may
be canceled " S Rep No 1204, 80th Cong , 2d Sess , 4
(1948) See also H R Rep No 647, 80th Cong , 1st Sess ,
2 (1947) Congress not only rejected the Department's re-
quest for final authority but also amended the Immigration
Act to require that cancellation of deportation be approved
INS v CHADHA 993
919 WHITE, J , dissenting
by a concurrent resolution of the Congress President Tru-
man signed the bill without objection Act of July 1 1948
ch 783, 62 Stat 1206 '
Practice over the ensuing several years convinced Con-
gress that the requirement of affirmative approval was "not
workable and would, in time, interfere with the legis-
lative work of the House " House Judiciary Committee,
H R Rep No 362, 81st Cong , 1st Sess , 2 (1949) In pre-
paring the comprehensive Immigration and Nationality Act
of 1952, the Senate Judiciary Committee recommended that
for certain classes of aliens the adjustment of status be sub-
ject to the disapproval of either House, but deportation of an
alien "who is of the criminal, subversive, or immoral classes
or who overstays his period of admission," would be can-
celed only upon a concurrent resolution disapproving the
deportation S Rep No 1515, 81st Cong , 2d Sess , 610
(1950) Legislation reflecting this change was passed by both
Houses, and enacted into law as part of the Immigration and
Nationality Act of 1952 over President Truman's veto, which
was not predicated on the presence of a legislative veto
Pub L 414, §244(a), 66 Stat 214 In subsequent years, the
Congress refused further requests that the Attorney General
be given final authority to grant discretionary relief for speci-
fied categories of aliens, and §244 remained intact to the
present
Section 244(a)(l) authorizes the Attorney General, in his
discretion, to suspend the deportation of certain aliens who
are otherwise deportable and, upon Congress' approval, to
adjust their status to that of aliens lawfully admitted for per-
manent residence In order to be eligible for this relief, an
alien must have been physically present in the United States
for a continuous period of not less than seven years, must
prove he is of good moral character, and must prove that he
or his immediate family would suffer "extreme hardship" if
he is deported Judicial review of a denial of relief may be
sought Thus, the suspension proceeding "has two phases a
994 OCTOBER TERM, 1982
WHITE, J , dissenting 462 u S
determination whether the statutory conditions have been
met, which generally involves a question of law, and a deter-
mination whether relief shall be granted, which [ultimately]
is confided to the sound discretion of the Attorney General
[and his delegates] " 2 C Gordon & H Rosenfield, Immi-
gration Law and Procedure § 7 9a(5), p 7-134 (rev ed 1983)
There is also a third phase to the process Under § 244(c)
(1) the Attorney General must report all such suspensions,
with a detailed statement of facts and reasons, to the Con-
gress Either House may then act, in that session or the
next, to block the suspension of deportation by passing a
resolution of disapproval *? 244(c)(2) Upon congressional
approval of the suspension — by its silence — the alien's per-
manent status is adjusted to that of a lawful resident alien
The history of the Immigration and Nationality Act makes
clear that §244(c)(2) did not alter the division of actual au-
thority between Congress and the Executive At all times,
whether through private bills, or through affirmative concur-
rent resolutions, or through the present one-House veto, a
permanent change m a deportable alien's status could be ac-
complished only with the agreement of the Attorney General,
the House, and the Senate
2
The central concern of the presentment and bicameralism
requirements of Art I is that when a departure from the
legal status quo is undertaken, it is done with the approval of
the President and both Houses of Congress — or, in the event
of a Presidential veto, a two-thirds majority in both Houses
This interest is fully satisfied by the operation of § 244(c)(2)
The President's approval is found in the Attorney General's
action in recommending to Congress that the deportation
order for a given alien be suspended The House and the
Senate indicate their approval of the Executive's action by
not passing a resolution of disapproval within the statutory
period Thus, a change in the legal status quo — the deport-
ability of the alien — is consummated only with the approval
INS v CHADHA 995
919 WHITE, J , dissenting
of each of the three relevant actors The disagreement of
any one of the three maintains the alien's pre-existing status
the Executive may choose not to recommend suspension, the
House and Senate may each veto the recommendation The
effect on the rights and obligations of the affected individuals
and upon the legislative system is precisely the same as if a
private bill were introduced but failed to receive the neces-
sary approval "The President and the two Houses enjoy
exactly the same say in what the law is to be as would have
been true for each without the presence of the one-House
veto, and nothing in the law is changed absent the concur-
rence of the President and a majority in each House "
Atkins v United States, 214 Ct Cl 186, 250, 556 F 2d 1028,
1064 (1977), cert denied, 434 U S 1009 (1978)
This very construction of the Presentment Clauses which
the Executive Branch now rejects was the basis upon which
the Executive Branch defended the constitutionality of the
Reorganization Act, 5 U S C § 906(a) (1982 ed ), which pro-
vides that the President's proposed reorganization plans take
effect only if not vetoed by either House When the Depart-
ment of Justice advised the Senate on the constitutionality of
congressional review in reorganization legislation in 1949, it
stated "In this procedure there is no question involved of the
Congress taking legislative action beyond its initial passage
of the Reorganization Act " S Rep No 232, 81st Cong ,
1st Sess , 20 (1949) (Dept of Justice Memorandum) This
also represents the position of the Attorney General more
recently ^
22 In his opinion on the constitutionality of the legislative review provi-
sions of the most recent reorganization statute, 5 U S C § 906(a) (19&2
ed ), Attorney General Bell stated that 'the statement in Article I, §7, of
the procedural steps to be followed in the enactment of legislation does not
exclude other forms of action by Congress The procedures prescribed
in Article I § 7, for congressional action are not exclusive " 43 Op Atty
Gen No 10, pp 2-3 (1977) "[I]f the procedures provided in a given stat-
ute have no effect on the constitutional distribution of power between
996 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
Thus understood, § 244(c)(2) fully effectuates the purposes
of the bicamerahsm and presentment requirements I now
briefly consider possible objections to the analysis
First, it may be asserted that Chadha's status before legis-
lative disapproval is one of nondeportation and that the exer-
cise of the veto, unlike the failure of a private bill, works a
change in the status quo This position plainly ignores the
statutory language At no place in § 244 has Congress dele-
gated to the Attorney General any final power to determine
which aliens shall be allowed to remain in the United States
Congress has retained the ultimate power to pass on such
changes in deportable status By its own terms, §244(a)
states that whatever power the Attorney General has been
delegated to suspend deportation and adjust status is to be
exercisable only "[a]s hereinafter prescribed in this section "
Subsection (c) is part of that section A grant of "suspen-
sion" does not cancel the alien's deportation or adjust the
alien's status to that of a permanent resident alien A
suspension order is merely a "deferment of deportation,"
McGrath v Knstensen, 340 U S 162, 168 (1950), which can
mature into a cancellation of deportation and adjustment of
status only upon the approval of Congress — by way of si-
lence— under § 244(c)(2) Only then does the statute author-
ize the Attorney General to "cancel deportation proceed-
ings," §244(c)(2), and "record the alien's lawful admission for
permanent residence " § 244(d) The Immigration and
Naturalization Service's action, on behalf of the Attorney
General, "cannot become effective without ratification by
Congress " 2 C Gordon & H Rosenfield, Immigration Law
the legislature and the executive," then the statute is constitutional Id ,
at 3 In the case of the reorganization statute, the power of the President
to refuse to submit a plan, combined with the power of either House of
Congress to reject a submitted plan, suffices under the standard to make
the statute constitutional Although the Attorney General sought to limit
his opinion to the reorganization statute, and the Executive opposes the
instant statute, I see no Art I basis to distinguish between the two
INS v CHADHA 997
919 WHITE, J , dissenting
and Procedure §8 14, p 8-121 (rev ed 1983) Until that
ratification occurs, the Executive's action is simply a recom-
mendation that Congress finalize the suspension in itself, it
works no legal change
Second, it may be said that this approach leads to the
incongruity that the two-House veto is more suspect than
its one-House brother Although the idea may be initially
counterintuitive, on close analysis, it is not at all unusual that
the one-House veto is of more certain constitutionality than
the two-House version If the Attorney General's action is a
proposal for legislation, then the disapproval of but a single
House is all that is required to prevent its passage Because
approval is indicated by the failure to veto, the one-House
veto satisfies the requirement of bicameral approval The
two-House version may present a different question The
concept that "neither branch of Congress, when acting sepa-
rately, can lawfully exercise more power than is conferred by
the Constitution on the whole body," Kilbourn v Thompson,
103 U S 168, 182 (1881), is fully observed »
Third, it may be objected that Congress cannot indicate *,_
approval of legislative change by inaction In the Court dl
Appeals' view, inaction by Congress "could equally imply
endorsement, acquiescence, passivity, indecision, or indiffer-
ence," 634 F 2d 408, 435 (1980), and the Court appears to
echo this concern, ante, at 958, n 23 This objection appears
more properly directed at the wisdom of the legislative veto
than its constitutionality The Constitution does not and
cannot guarantee that legislators will carefully scrutinize leg-
islation and deliberate before acting In a democracy it is
the electorate that holds the legislators accountable for the
wisdom of their choices It is hard to maintain that a private
bill receives any greater individualized scrutiny than a reso-
23 Of course, when the authorizing legislation requires approval to be ex
pressed by a positive vote, then the two-House veto would clearly comply
with the bicamerahsm requirement under any analysis
998 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U s
lution of disapproval under § 244(c)(2) Certainly the legisla-
tive veto is no more susceptible to this attack than the
Court's increasingly common practice of according weight to
the failure of Congress to disturb an Executive or independ-
ent agency's action See n 11, supra Earlier this Term,
the Court found it important that Congress failed to act on
bills proposed to overturn the Internal Revenue Service's in-
terpretation of the requirements for tax-exempt status under
§501(c)(3) of the Internal Revenue Code Bob Jones Uni-
versity v United States, 461 U S 574, 600-601 (1983) If
Congress may be said to have ratifed the Internal Revenue
Service's interpretation without passing new legislation,
Congress may also be said to approve a suspension of de-
portation by the Attorney General when it fails to exercise its
veto authority M The requirements of Art I are not compro-
mised by the congressional scheme
IV
The Court of Appeals struck § 244(c)(2) as violative of the
constitutional principle of separation of powers It is true
that the purpose of separating the authority of Government
is to prevent unnecessary and dangerous concentration of
power in one branch For that reason, the Framers saw fit
to divide and balance the powers of Government so that each
branch would be checked by the others Virtually every
part of our constitutional system bears the mark of this
judgment
24 The Court's doubts that Congress entertained this "arcane" theory
when it enacted §244(c)(2) disregards the fact that this is the historical
basis upon which the legislative vetoes contained in the Reorganization
Acts have been defended, n 22, supra, and that the Reorganization Acts
then provided the precedent articulated in support of other legislative veto
provisions See, e g , 87 Cong Rec 735 (1941) (Rep Dirksen) (citing Re-
organization Act in support of proposal to include a legislative veto in
Lend-Lease Act), H R Rep No 93-658, p 42 (1973) (citing Reorganiza-
tion Act as "sufficient precedent" for legislative veto provision for Im
poundment Control Act)
CHADHA 999
919 WHITE, J , dissenting
But the history of the separation-of-powers doctrine is also
a history of accommodation and practicality Apprehensions
of an overly powerful branch have not led to undue prophy-
lactic measures that handicap the effective working of the
National Government as a whole The Constitution does not
contemplate total separation of the three branches of Govern-
ment Buckley v Valeo, 424 U S 1, 121 (1976) "[A] her-
metic sealing off of the three branches of Government from
one another would preclude the establishment of a Nation
capable of governing itself effectively " Ibid **
Our decisions reflect this judgment As already noted,
the Court, recognizing that modern government must address
a formidable agenda of complex policy issues, countenanced
the delegation of extensive legislative authority to Exec-
utive and independent agencies / W Hampton & Co v
United States, 276 U S 394, 406 (1928) The separation-
of-powers doctrine has heretofore led to the invalidation of
Government action only when the challenged action violated
some express provision in the Constitution In Buckley
v Valeo, supra, at 118-124 (per curiam), and Myers v
United States, 272 U S 52 (1926), congressional action com-
promised the appointment power of the President See also
Springer v Philippine Islands, 277 U S 189, 200-201
(1928) In United States v Klein, 13 WaU 128 (1872), an
Act of Congress was struck for encroaching upon judicial
26 Madison emphasized that the principle of separation of powers is pri-
marily violated "where the whole power of one department is exercised by
the same hands which possess the whole power of another department "
The Federalist No 47, pp 325-3P6 (J Cooke ed 1961) Madison noted
that the oracle of the separation doctrine, Montesquieu, in writing that the
legislative, executive, and judicial powers should not be united "in the
same person or body of magistrates," did not mean "that these depart-
ments ought to have no partial agency in, or control over the acts of each
other " Id , at 325 (emphasis in original) Indeed, according to Montes-
quieu, the legislature is uniquely fit to exercise an additional function "to
examine in what manner the laws that it has made have been executed "
W Gwyn, The Meaning of Separation of Powers 102 (1965)
1000 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U S
power, but the Court found that the Act also impinged upon
the Executive's exclusive pardon power Art II, §2 Be-
cause we must have a workable efficient Government, this is
as it should be
This is the teaching of Nixon v Administrator of Gen-
eral Services, 433 U S 425 (1977), which, in rejecting a
separation-of-powers objection to a law requiring that the
Administrator take custody of certain Presidential papers,
set forth a framework for evaluating such claims
"[I]n determining whether the Act disrupts the proper
balance between the coordinate branches, the proper
inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitution-
ally assigned functions United States v Nixon, 418
U S , at 711-712 Only where the potential for dis-
ruption is present must we then determine whether that
impact is justified by an overriding need to promote
objectives within the constitutional authority of Con-
gress " Id , at 443
Section 244(c)(2) survives this test The legislative veto
provision does not "preven[t] the Executive Branch from
accomplishing its constitutionally assigned functions " First,
it is clear that the Executive Branch has no "constitutionally
assigned" function of suspending the deportation of aliens
"'[O]ver no conceivable subject is the legislative power of
Congress more complete than it is over' the admission of
aliens " Klemdienst v Mandel, 408 U S 753, 766 (1972),
quoting Oceanic Steam Navigation Co v Stranahan, 214
U S 320, 339 (1909) Nor can it be said that the inher-
ent function of the Executive Branch in executing the law is
involved The Steel Seizure Case resolved that the Art II
mandate for the President to execute the law is a directive to
enforce the law which Congress has written Youngstown
Sheet & Tube Co v Sawyer, 343 U S 579 (1952) "The
duty of the President to see that the laws be executed is a
INS v CHADHA 1001
919 WHITE, J , dissenting
duty that does not go beyond the laws or require him to
achieve more than Congress sees fit to leave within his
power " Myers v United States, 272 U S , at 177 (Holmes,
J , dissenting), id , at 247 (Brandeis, J , dissenting) Here|
§244 grants the Executive only a qualified suspension au-
thority, and it is only that authority which the President is
constitutionally authorized to execute
Moreover, the Court believes that the legislative veto we
consider today is best characterized as an exercise of legisla-
tive or quasi-legislative authority Under this characteriza-
tion, the practice does not, even on the surface, constitute an
infringement of executive or judicial prerogative The At-
torney General's suspension of deportation is equivalent to a
proposal for legislation The nature of the Attorney Gen-
eral's role as recommendatory is not altered because §244
provides for congressional action through disapproval rather
than by ratification In comparison to private bills, which
must be initiated m the Congress and which allow a Presiden-
tial veto to be ovemden by a two-thirds majority in both
Houses of Congress, §244 augments rather than reduces the
Executive Branch's authority So understood, congressional
review does not undermine, as the Court of Appeals thought,
the "weight and dignity" that attends the decisions of the
Executive Branch
Nor does § 244 infringe on the judicial power, as JUSTICE
POWELL would hold Section 244 makes clear that Congress
has reserved its own judgment as part of the statutory proc-
ess Congressional action does not substitute for judicial re-
view of the Attorney General's decisions The Act provides
for judicial review of the refusal of the Attorney General to
suspend a deportation and to transmit a recommendation to
Congress INS v Jong Ha Wang, 450 U S 139 (1981) (per
cunam) But the courts have not been given the authority
to review whether an alien should be given permanent status,
review is limited to whether the Attorney General has prop-
1002 OCTOBER TERM, 1982
WHITE, J , dissenting 462 U s
erly applied the statutory standards for essentially denying
the alien a recommendation that his deportable status be
changed by the Congress Moreover, there is no constitu-
tional obligation to provide any judicial review whatever for a
failure to suspend deportation "The power of Congress,
therefore, to expel, like the power to exclude aliens, or any
specified class of aliens, from the country, may be exercised
entirely through executive officers, or Congress may call in
the aid of the judiciary to ascertain any contested facts on
which an alien's right to be in the country has been made by
Congress to depend " Fong Yue Ting v United States, 149
U S 698, 713-714 (1893) See also Tutun v United States,
270 U S 568, 576 (1926), Ludecke v Watkins, 335 U S 160,
171-172 (1948), Hansiades v ShaiAghnessy , 342 U S 580,
590 (1952)
I do not suggest that all legislative vetoes are necessarily
consistent with separation-of-powers principles A legisla-
tive check on an inherently executive function, for example,
that of initiating prosecutions, poses an entirely different
question But the legislative veto device here — and in many
other settings — is far from an instance of legislative tyranny
over the Executive It is a necessary check on the unavoid-
ably expanding power of the agencies, both Executive and in-
dependent, as they engage in exercising authority delegated
by Congress
V
I regret that I am m disagreement with my colleagues on
the fundamental questions that these cases present But
even more I regret the destructive scope of the Court's hold-
ing It reflects a profoundly different conception of the Con-
stitution than that held by the courts which sanctioned the
modern adminstrative state Today's decision strikes down
in one fell swoop provisions in more laws enacted by Con-
gress than the Court has cumulatively invalidated in its his-
tory I fear it will now be more difficult to "msur[e] that the
fundamental policy decisions in our society will be made not
INS v CHADHA 1003
919 Appendix to opinion of WHITE, J , dissenting
by an appointed official but by the body immediately respon-
sible to the people," Arizona v California, 373 U S 546,
626 (1963) (Harlan, J , dissenting in part) I must dissent'
APPENDIX TO OPINION OF WHITE, J , DISSENTING
STATUTES WITH PROVISIONS AUTHORIZING
CONGRESSIONAL REVIEW
This compilation, reprinted from the Brief for the United
States Senate, identifies and describes briefly current statu-
tory provisions for a legislative veto by one or both Houses of
Congress Statutory provisions for a veto by Committees of
the Congress and provisions which require legislation (i e ,
passage of a joint resolution) are not included The 55 stat-
utes in the compilation (some of which contain more than one
provision for legislative review) are divided into six broad
categories foreign affairs and national security, budget, in-
ternational trade, energy, rulemakmg and miscellaneous
"A
"FOREIGN AFFAIRS AND NATIONAL SECURITY
"1 Act for International Development of 1961, Pub L
No 87-195, §617, 75 Stat 424, 444, [as amended,] 22
USC 2367 [(1976 ed , Supp V)] (Funds made available for
foreign assistance under the Act may be terminated by con-
current resolution)
"2 War Powers Resolution, Pub L No 93-148, §5, 87
Stat 555, 556-557 (1973), [as amended,] 50 U S C 1544
[(1976 ed and Supp V)] (Absent declaration of war, Presi-
dent may be directed by concurrent resolution to remove
United States armed forces engaged in foreign hostilities )
"3 Department of Defense Appropriation Authorization
Act, 1974, Pub L No 93-155, §807, 87 Stat 605,615(1973),
50 U S C 1431 (National defense contracts obligating the
United States for any amount in excess of $25,000,000 may be
disapproved by resolution of either House)
1004 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J , dissenting 462 U S
"4 Department of Defense Appropriation Authorization
Act, 1975, Pub L No 93-365, §709(c), 88 Stat 399, 408
(1974), [as amended,] 50 U S C app 2403-l(c) [(1976 ed ,
Supp V)] (Applications for export of defense goods, tech-
nology or techniques may be disapproved by concurrent
resolution)
"5 H R J Res 683, Pub L No 94-110, § 1, 89 Stat 572
(1975), 22 U S C 2441 note (Assignment of civilian person-
nel to Sinai may be disapproved by concurrent resolution)
"6 International Development and Food Assistance Act
of 1975, Pub L No 94-161, §310, 89 Stat 849, 860, [as
amended,] 22 U S C 2151n [(1976 ed , Supp V)] (Foreign
assistance to countries not meeting human rights standards
may be terminated by concurrent resolution)
"7 International Security Assistance and Arms [Export]
Control Act of 1976, Pub L No 94-329, § [211(a)], 90 Stat
729, 743, [as amended,] 22 U S C 2776(b) [(1976 ed and
Supp V)] (President's letter of offer to sell major defense
equipment may be disapproved by concurrent resolution)
"8 National Emergencies Act, Pub L No 94-412, §202,
90 Stat 1255 (1976), 50 U S C 1622 (Presidentially de-
clared national emergency may be terminated by concurrent
resolution)
"9 International Navigational Rules Act of 1977, Pub L
No 95-75, §3(d), 91 Stat 308, 33 U S C §1602(d) [(1976
ed , Supp V)] (Presidential proclamation of International
Regulations for Preventing Collisions at Sea may be disap-
proved by concurrent resolution)
"10 International Security Assistance Act of 1977, Pub
L No 95-92, §16, 91 Stat 614, 622, 22 U S C §2753(d)(2)
(President's proposed transfer of arms to a third country may
be disapproved by concurrent resolution)
"11 Act of December [28], 1977, Pub L No 95-223,
§ [207(b)], 91 Stat 1625, 1628, 50 U S C 1706(b) [(1976 ed ,
Supp V)] (Presidentially declared national emergency and
exercise of conditional powers may be terminated by concur-
rent resolution)
INS v CHADHA
919 Appendix to opinion of WHITE, J , dissenting
"12 Nuclear Non-Proliferation Act of 1978, Pub L No 95-
242, §§[303(a), 304(a)], 306, 307, 401, 92 Stat 120, 130
134, 137-38, 139, 144, 42 U S C §§2160(f),2165(b),2157(b/
[2158] 2153(d) [(1976 ed , Supp V)] (Cooperative agreements
concerning storage and disposition of spent nuclear fuel, pro-
posed export of nuclear facilities, materials or technology and
proposed agreements for international cooperation in nuclear
reactor development may be disapproved by concurrent
resolution)
"B
"BUDGET
"13 Congressional Budget and Impoundment Control Act
of 1974, Pub L No 93-344, § 1013, 88 Stat 297, 334-35, 31
USC 1403 (The proposed deferral of budget authority
provided for a specific project or purpose may be disapproved
by an impoundment resolution by either House)
"C
"INTERNATIONAL TRADE
"14 Trade Expansion Act of 1962, Pub L No 87-794,
§351, 76 Stat 872, 899, 19 U S C 1981(a) (Tariff or duty
recommended by Tariff Commission may be imposed by con-
current resolution of approval)
"15 Trade Act of 1974, Pub L No 93-618, §§203(c),
302(b), 402(d), 407, 88 Stat 1978, 2016, 2043, 2057-60,
2063-64, [as amended,] 19 U S C 2253(c), 2412(b), 2432,
[2437 (1976 ed and Supp V)] (Proposed Presidential actions
on import relief and actions concerning certain countries may
be disapproved by concurrent resolution, various Presiden-
tial proposals for waiver extensions and for extension of non-
discriminatory treatment to products of foreign countries
may be disapproved by simple (either House) or concurrent
resolutions)
"16 Export-Import Bank Amendments of 1974, Pub L
No 93-646, §8, 88 Stat 2333, 2336, 12 U S C [635e(b)]
(Presidentially proposed limitation for exports to USSR in
1006 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J , dissenting 462 U S
excess of $300,000,000 must be approved by concurrent
resolution)
"D
"ENERGY
"17 Act of November 16, 1973, Pub L No 93-153, §101,
87 Stat 576, 582, 30 U S C 185(u) (Continuation of oil ex-
ports being made pursuant to President's finding that such
exports are in the national interest may be disapproved by
concurrent resolution)
"18 Federal Nonnuclear Energy Research and Devel-
opment Act of 1974, Pub L No 93-577, §12, 88 Stat
1878, 1892-1893, 42 U S C 5911 (Rules or orders proposed
by the President concerning allocation or acquisition of es-
sential materials may be disapproved by resolution of either
House)
"19 Energy Policy and Conservation Act, Pub L No 94-
163, §551, 89 Stat 871, 965 (1975), 42 U S C 6421(c) (Cer-
tain Presidentially proposed 'energy actions' involving fuel
economy and pricing may be disapproved by resolution of
either House)
"20 Naval Petroleum Reserves Production Act of 1976,
Pub L No 94-258, § [201(3)], 90 Stat 303, 309, 10 U S C
7422(c)(2)(C) (President's extension of production period for
naval petroleum reserves may be disapproved by resolution
of either House)
"22 Department of Energy Act of 1978 — Civilian Applica-
tions, Pub L No 95-238, §§ 107, 207(b), 92 Stat 47, 55, 70,
22 U S C 3224a, 42 U S C 5919(m) [(1976 ed , Supp V)]
(International agreements and expenditures by Secretary of
Energy of appropriations for foreign spent nuclear fuel stor-
age must be approved by concurrent resolution, if not con-
sented to by legislation,) (plans for such use of appropriated
funds may be disapproved by either House,) (financing in
excess of $50,000,000 for demonstration facilities must be
approved by resolution in both Houses)
INS v CHADHA 1007
919 Appendix to opinion of WHITE, J , dissenting
"23 Outer Continental Shelf Lands Act Amendments of
1978, Pub L No 95-372, §§205(a), 208, 92 Stat 629, 641,
668, 43 U S C §§ 1337(a), 1354(c) [(1976 ed , Supp V)]
(Establishment by Secretary of Energy of oil and gas lease
bidding system may be disapproved by resolution of either
House,) (export of oil and gas may be disapproved by concur-
rent resolution)
"24 Natural Gas Policy Act of 1978, Pub L No 95-621,
§§ 122(c)(l) and (2), 202(c), 206(d)(2), 507, 92 Stat 3350, 3370,
3371, 3372, 3380, 3406, 15 U S C 3332, 3342(c), 3346(d)(2),
3417 [(1976 ed , Supp V)] (Presidential reirnposition of natu-
ral gas price controls may be disapproved by concurrent reso-
lution,) (Congress may reimpose natural gas price controls by
concurrent resolution,) (Federal Energy Regulatory Com-
mission (FERC) amendment to pass through incremental
costs of natural gas, and exemptions therefrom, may be dis-
approved by resolution of either House,) (procedure for con-
gressional review established)
"25 Export Administration Act of 1979, Pub L No 96-
72, §[7(d)(2)(B)] 7(g)(3), 93 Stat 503, 518, 520, 50 U S C
app 2406(d)(2)(B), 2406(g)(3) [(1976 ed , Supp V)] (Presi-
dent's proposal to [export] domestically produce[d] crude oil
must be approved by concurrent resolution,) (action by
Secretary of Commerce to prohibit or curtail export of
agricultural commodities may be disapproved by concurrent
resolution)
"26 Energy Security Act, Pub L No 96-294, §§ 104
(b)(3), 104(e), 126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133
(a)(3), 137(b)(5), 141(d), 179(a), 803, 94 Stat 611, 618, 619,
620, 623-26, 628-29, 649, 650-52, 659, 660, 664, 666, 679, 776
(1980) 50 U S C app 2091-93, 2095, 2096, 2097, 42
USC 8722, 8724, 8725, 8732, 8733, 8737, 8741, 8779, 6240
[(1976 ed , Supp V)] (Loan guarantees by Departments of
Defense, Energy and Commerce in excess of specified
amounts may be disapproved by resolution of either House,)
(President's proposal to provide loans or guarantees in excess
1008 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J , dissenting 462 U S
of established amounts may be disapproved by resolution of
either House,) (proposed award by President of individual
contracts for purchase of more than 75,000 barrels per day of
crude oil may be disapproved by resolution of either House,)
(President's proposals to overcome energy shortage through
synthetic fuels development, and individual contracts to pur-
chase more than 75,000 barrels per day, including use of loans
or guarantees, may be disapproved by resolution of either
House,) (procedures for either House to disapprove proposals
made under Act are established,) (request by Synthetic Fuels
Corporation (SFC) for additional time to submit its compre-
hensive strategy may be disapproved by resolution of either
House,) (proposed amendment to comprehensive strategy by
SFC Board of Directors may be disapproved by concurrent
resolution of either House or by failure of both Houses to
pass concurrent resolution of approval,) (procedure for either
House to disapprove certain proposed actions of SFC is es-
tablished,) (procedure for both Houses to approve by concur-
rent resolution or either House to reject concurrent resolu-
tion for proposed amendments to comprehensive strategy of
SFC is established,) (proposed loans and loan guarantees by
SFC may be disapproved by resolution of either House,) (ac-
quisition by SFC of a synthetic fuels project which is receiv-
ing financial assistance may be disapproved by resolution of
either House,) (SFC contract renegotiations exceeding initial
cost estimates by 175% may be disapproved by resolution of
either House,) (proposed financial assistance to synthetic fuel
projects in Western Hemisphere outside United States may
be disapproved by resolution of either House,) (President's
request to suspend provisions requiring build up of reserves
and limiting sale or disposal of certain crude oil reserves must
be approved by resolution of both Houses)
"E
"RULEMAKING
"27 Education Amendments of 1974, Pub L No 93-380,
§ [509(a)], 88 Stat 484, 567, 20 U S C 1282(d)(l) [(1976 ed ,
INS v CHADHA 100g
919 Appendix to opinion of WHITE, J , dissenting
Supp V)] (Department of Education regulations may be dis-
approved by concurrent resolution)
"28 Federal Education Campaign Act Amendments of
1979, Pub L No 96-187, §109, 93 Stat 1339, 1364, 2
USC 438(d)(2) [(1976 ed , Supp V)] (Proposed rules and
regulations of the Federal Election Commission may be dis-
approved by resolution of either House)
"29 Act of January 2, 1975, Pub L No 93-595,
§ [2(a)(l>], 88 Stat 1926, 1948, 28 U S C 2076 (Proposed
amendments by Supreme Court of Federal Rules of Evidence
may be disapproved by resolution of either House)
"30 Act of August 9, 1975, Pub L No 94-88, §208, 89
Stat 433, 436-37, 42 U S C 602 note (Social Security
standards proposed by Secretary of Health and Human Serv-
ices may be disapproved by either House)
"31 Airhne Deregulation Act of 1978, Pub L No 95-504,
§48(f)(3), 92 Stat 1705, 1752, 49 U S C 1552(f ) [(1976 ed ,
Supp V)] (Rules or regulations governing employee protec-
tion program may be disapproved by resolution of either
House)
"32 Education Amendments of 1978, Pub L No 95-561,
§§1138, [212(b)], 1409, 92 Stat 2143, 2327, 2341, 2369, 25
USC 2018, 20 U S C [927], 1221-3(e) [(1976 ed , Supp
V)] (Rules and regulations proposed under the Act may be
disapproved by concurrent resolution)
"33 Civil Rights of Institutionalized Persons Act, Pub L
No 96-247, §7(b)(l), 94 Stat 349, 352-353 (1980) 42 U S C
1997e [(1976 ed , Supp V)] (Attorney General's proposed
standards for resolution of grievances of adults confined m
correctional facilities may be disapproved by resolution of
either House)
"34 Federal Trade Commission Improvements Act of
1980, Pub L No 96-252, §21(a), 94 Stat 374, 393, 15
USC 57a-l [(1976 ed , Supp V)] (Federal Trade Commis-
sion rules may be disapproved by concurrent resolution)
"35 Department of Education Organization Act, Pub L
No 96-88, §414(b), 93 Stat 668, 685 (1979), 20 U S C 3474
1010 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J , dissenting 462 U S
[(1976 ed , Supp V)] (Rules and regulations promulgated with
respect to the various functions, programs and responsibili-
ties transferred by this Act, may be disapproved by concur-
rent resolution)
"36 Multiemployer Pension Plan Amendments Act of 1980,
Pub L No 96-364, § 102, 94 Stat 1208, 1213, 29 U S G'
1322a [(1976 ed , Supp V)] (Schedules proposed by Pension
Benefit Guaranty Corporation (PBGC) which requires an in-
crease in premiums must be approved by concurrent resolu-
tion,) (revised premium schedules for voluntary supplemental
coverage proposed by PBGC may be disapproved by concur-
rent resolution)
"37 Farm Credit Act Amendments of 1980, Pub L
No 96-592, §508, 94 Stat 3437, 3450, 12 U S C [2252
(1976 ed , Supp V)] (Certain Farm Credit Administration
regulations may be disapproved by concurrent resolution or
delayed by resolution of either House )
"38 Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, Pub L No 96-510, §305, 94
Stat 2767, 2809, 42 U S C 9655 [(1976 ed , Supp V)]
(Environmental Protection Agency regulations concerning
hazardous substances releases, liability and compensation
may be disapproved by concurrent resolution or by the adop-
tion of either House of a concurrent resolution which is not
disapproved by the other House)
"39 National Historic Preservation Act Amendments of
1980, Pub L No 96-515, §501, 94 Stat 2987, 3004, 16
USC 470w-6 [(1976 ed , Supp V)] (Regulation proposed
by the Secretary of the Interior may be disapproved by con-
current resolution)
"40 Coastal Zone Management Improvement Act of 1980,
Pub L No 96-464, § 12, 94 Stat 2060, 2067, 16 U S C
1463a [(1976 ed , Supp V)] (Rules proposed by the Secretary
of Commerce may be disapproved by concurrent resolution)
"41 Act of December 17, 1980, Pub L No 96-539, §4,94
Stat 3194, 3195, 7 U S C 136w [(1976 ed , Supp V)] (Rules
or regulations promulgated by the Administrator of the Envi-
INSv CHADHA 1011
919 Appendix to opinion of WHITE, J , dissenting
ronmental Protection Agency under the Federal Insecticide,
Fungicide and Rodenticide Act may be disapproved by con-
current resolution)
"42 Omnibus Budget Reconciliation Act of 1981 Pub L
No 97-35, §§533(a)(2), 1107(d), 1142, 1183(a)(2)/1207 95
Stat 357, 453, 626, 654, 659, 695, 718-20, 20 U S C
1089, 23 U S C 402Q), 45 U S C 761, 767, 564(c)(3), 15
USC 2083, 1276, 1204 [(1976 ed , Supp V)] (Secretary of
Education's schedule of expected family contributions for Pell
Grant recipients may be disapproved by resolution of either
House,) (rules promulgated by Secretary of Transportation
for programs to reduce accidents, injuries and deaths may be
disapproved by resolution of either House,) (Secretary of
Transportation's plan for the sale of government's common
stock in rail system may be disapproved by concurrent reso-
lution,) (Secretary of Transportation's approval of freight
transfer agreements may be disapproved by resolution of
either House,) (amendments to Amtrak's Route and Service
Criteria may be disapproved by resolution of either House,)
(Consumer Product Safety Commission regulations may be
disapproved by concurrent resolution of both Houses, or by
concurrent resolution of disapproval by either House if such
resolution is not disapproved by the other House)
"MISCELLANEOUS
"43 Federal Civil Defense Act of 1950, Pub L No 81-
920, §201, 64 Stat 1245, 1248, [as amended,] 50 app
USC 2281(g) [(1976 ed , Supp V)] (Interstate civil
defense compacts may be disapproved by concurrent
resolution)
"44 National Aeronautics and Space Act of 1958, Pub L
No 85-568, § [302(c)], 72 Stat 426, 433, 42 U S C 2453
(President's transfer to National Air and Space Administra-
tion of functions of other departments and agencies may be
disapproved by concurrent resolution)
1012 OCTOBER TERM, 1982
Appendix to opinion of WHITE, J , dissenting 462 U S
"45 Federal Pay Comparability Act of 1970, Pub L
No 91-656, §3, 84 Stat 1946, 1949, 5 U S C 5305 (Presi-
dent's alternative pay plan may be disapproved by resolution
of either House)
"46 Act of October 19, 1973, Pub L No 93-134, §5, 87
Stat 466, 468, 25 U S C 1405 (Plan for use and distribution
of funds paid in satisfaction of judgment of Indian Claims
Commission or Court of Claims may be disapproved by reso-
lution of either House)
"47 Menommee Restoration Act, Pub L No 93-197, § 6,
87 Stat 770, 773 (1973), 25 U S C 903d(b) (Plan by Sec-
retary of the Interior for assumption of the assets [of] the
Menommee Indian corporation may be disapproved by reso-
lution of either House)
"48 District of Columbia Self-Government and Govern-
mental Reorganization Act, Pub L No 93-198, §§303,
602(c)(l) and (2), 87 Stat 774, 784, 814 (1973) (District of Co-
lumbia Charter amendments ratified by electors must be ap-
proved by concurrent resolution,) (acts of District of Colum-
bia Council may be disapproved by concurrent resolution,)
(acts of District of Columbia Council under certain titles
of D C Code may be disapproved by resolution of either
House)
"49 Act of December 31, 1975, Pub L No 94-200, §102,
89 Stat 1124, 12 U S C 461 note (Federal Reserve System
Board of Governors may not eliminate or reduce interest rate
differentials between banks insured by Federal Deposit In-
surance Corporation and associations insured by Federal
Savings and Loan Insurance Corporations without concur-
rent resolution of approval)
"50 Veterans' Education and Employment Assistance Act
of 1976, Pub L No 94-502, §408, 90 Stat 2383, 2397-98, 38
USC 1621 note (President's recommendation for contin-
ued enrollment period in Armed Forces educational assist-
ance program may be disapproved by resolution of either
House)
INS v CHADHA 1013
919 REHNQUIST, J , dissenting
"51 Federal Land Policy and Management Act of 1976
Pub L No 94-579, §§203(c), 204(c)(l), 90 Stat 2743 2750
2752, 43 U S C 1713(c), 1714 (Sale of public lands in excess
of two thousand five hundred acres and withdrawal of public
lands aggregating five thousand acres or more may be disap-
proved by concurrent resolution)
"52 Emergency Unemployment Compensation Extension
Act of 1977, Pub L No 95-19, §[401(a)] 91 Stat 39, 45, 2
U S C 359 [(1976 ed , Supp V)] (President's recommenda-
tions regarding rates of salary payment may be disapproved
by resolution of either House)
"53 Civil Service Reform Act of 1978, Pub L No 95-454,
§415, 92 Stat 1111, 1179, 5 U S C 3131 note [(1976 ed ,
Supp V)] (Continuation of Senior Executive Service may be
disapproved by concurrent resolution)
"54 Full Employment and Balanced Growth Act of 1978,
Pub L No 95-523, §304(b), 92 Stat 1887, 1906, 31 U S C
1322 [(1976 ed , Supp V)] (Presidential timetable for re-
ducing unemployment may be superseded by concurrent
resolution)
"55 District of Columbia Retirement Reform Act, Pub L
No 96-122, § 164, 93 Stat 866, 891-92 (1979) (Required re-
ports to Congress on the District of Columbia retirement pro-
gram may be rejected by resolution of either House)
"56 Act of August 29, 1980, Pub L No 96-332, §2, 94
Stat 1057, 1058, 16 U S C 1432 [(1976 ed , Supp V)] (Des-
ignation of marine sanctuary by the Secretary of Commerce
may be disapproved by concurrent resolution) "
JUSTICE REHNQUIST, with whom JUSTICE WHITE joins,
dissenting
A severabihty clause creates a presumption that Con-
gress intended the valid portion of the statute to remain in
force when one part is found to be invalid Carter v Carter
Coal Co , 298 U S 238, 312 (1936), Champhn Refining Co
v Corporation Comm'n of Oklahoma, 286 U S 210, 235
1014 OCTOBER TERM, 1982
REHNQUIST, J , dissenting 462 U S
(1932) A severabihty clause does not, however, conclu-
sively resolve the issue "[T]he determination, m the end, is
reached by" asking "[wjhat was the intent of the lawmakers,"
Carter, supra, at 312, and "will rarely turn on the presence
or absence of such a clause " United States v Jackson,
390 U S 570, 585, n 27 (1968) Because I believe that
Congress did not intend the one-House veto provision of
§ 244(c)(2) to be severable, I dissent
Section 244(c)(2) is an exception to the general rule that an
alien's deportation shall be suspended when the Attorney
General finds that statutory criteria are met It is severable
only if Congress would have intended to permit the Attorney
General to suspend deportations without it This Court has
held several times over the years that exceptions such as this
are not severable because
"by rejecting the exceptions intended by the legislature
the statute is made to enact what confessedly the
legislature never meant It confers upon the statute
a positive operation beyond the legislative intent, and
beyond what anyone can say it would have enacted in
view of the illegality of the exceptions " Spraigue v
Thompson, 118 U S 90, 95 (1886)
By severing §244(c)(2), the Court permits suspension of
deportation in a class of cases where Congress never stated
that suspension was appropriate I do not believe we should
expand the statute in this way without some clear indication
that Congress intended such an expansion As the Court
said in Dams v Wallace, 257 U S 478, 484-485 (1922)
"Where an excepting provision in a statute is found
unconstitutional, courts very generally hold that this
does not work an enlargement of the scope or operation
of other provisions with which that provision was en-
acted and which was intended to qualify or restrain
The reasoning on which the decisions proceed is illus-
trated m State ex rel McNeal v Dombdugh^ 20 Ohio St
167, 174 In dealing with a contention that a statute
INS v CHADHA 1015
919 REHNQUIST, J , dissenting
containing an unconstitutional provision should be con-
strued as if the remainder stood alone, the court there
said This would be to mutilate the section and garble its
meaning The legislative intention must not be con-
founded with their power to carry that intention into
effect To refuse to give force and vitality to a provision
of law is one thing, and to refuse to read it is a very dif-
ferent thing It is by a mere figure of speech that we
say an unconstitutional provision of a statute is "stricken
out " For all the purposes of construction it is to be
regarded as part of the act The meaning of the legisla-
ture must be gathered from all that they have said, as
well from that which is ineffectual for want of power, as
from that which is authorized by law *
"Here the excepting provision was in the statute when
it was enacted, and there can be no doubt that the legis-
lature intended that the meaning of the other provisions
should be taken as restricted accordingly Only with
that restricted meaning did they receive the legislative
sanction which was essential to make them part of the
statute law of the State, and no other authority is compe-
tent to give them a larger application "
See also Frost v Corporation Comm'n of Oklahoma, 278
U S 515, 525 (1929)
The Court finds that the legislative history of § 244 shows
that Congress intended §244(c)(2) to be severable because
Congress wanted to relieve itself of the burden of private
bills But the history elucidated by the Court shows that
Congress was unwilling to give the Executive Branch per-
mission to suspend deportation on its own Over the years,
Congress consistently rejected requests from the Executive
for complete discretion in this area Congress always in-
sisted on retaining ultimate control, whether by concurrent
resolution, as in the 1948 Act, or by one-House veto, as in the
present Act Congress has never indicated that it would be
willing to permit suspensions of deportation unless it could
retain some sort of veto
1016 OCTOBER TERM, 1982
REHNQUIST, J., dissenting 462 u g
It is doubtless true that Congress has the power to provide
for suspensions of deportation without a one-House veto
But the Court has failed to identify any evidence that Con-
gress intended to exercise that power. On the contrary
Congress' continued insistence on retaining control of the
suspension process indicates that it has never been disposed
to give the Executive Branch a free hand. By severing
§244(c)(2) the Court has "'confounded'" Congress' "Inten-
tion"' to permit suspensions of deportation "'with their
power to carry that intention into effect.' " Dams, supra, at
484, quoting State ex rel. McNeal v. Dombaugh, 20 Ohio St
167, 174 (1870).
Because I do not believe that §244(c)(2) is severable, I
would reverse the judgment of the Court of Appeals.
IDAHO EX REL EVANS v OREGON 1017
Syllabus
IDAHO EX REL EVANS, GOVERNOR OF IDAHO, ET AL
v OREGON ETAL
ON EXCEPTIONS TO FINAL REPORT OF SPECIAL MASTER
No 67, Orig Argued March 23, 1983— -Decided June 23, 1983
Since 1938, several dams have been constructed along the Columbia-Snake
River system, severely reducing the number of anadromous fish that mi-
grate between the Pacific Ocean and their spawning grounds in those
rivers and their tributaries Fishing is another factor depleting the
anadromous fish population In 1976, this Court granted Idaho leave to
file its complaint requesting an equitable apportionment against Oregon
and Washington of the anadromous fish in the Columbia-Snake River
system A Special Master was appointed, and after trial and oral argu-
ment he entered the report involved here, recommending that the action
be dismissed without prejudice Idaho filed exceptions to the report
Held The Special Master's recommendation is adopted, and the action is
dismissed without prejudice to Idaho's right to bring new proceedings
whenever it shall appear that it is being deprived of its equitable share of
anadromous fish Pp 1024-1029
(a) The doctrine of equitable apportionment is applicable here Al-
though that doctrine has its roots in water rights litigation, the natural
resource of anadromous fish is sufficiently similar to make equitable
apportionment an appropriate mechanism for resolving allocative dis-
putes The doctrine is neither dependent on nor bound by existing legal
rights to the resource being apportioned Thus, the fact that no State
has a pre-existing legal right of ownership in the fish does not prevent an
equitable apportionment Pp 1024-1025
(b) Because apportioment is based on broad and flexible equitable con-
cerns rather than on precise legal entitlements, a decree is not intended
to compensate for prior legal wrongs Instead, it prospectively ensures
that a State obtains its equitable share of a resource Although a decree
may not always be mathematically precise or based on definite present
and future conditions, uncertainties about the future do not provide a
basis for declining to fashion a decree The Special Master erred to the
extent that he found that the formulation of a workable decree is impos-
sible in this case If Idaho suffers from the iiyury it alleges, there is no
reason why that injury could not be remedied by an equitable decree
Pp 1025-1027
(c) However, a State seeking equitable apportionment under this
Court's original jurisdiction must prove by clear and convincing evidence
some real and substantial injury or damage The Special Master, in
1018 OCTOBER TEEM, 1982
Opinion of the Court 462 u S
finding that Idaho has not demonstrated sufficient injury to justify an
equitable decree, properly based his finding on present conditions and
properly focused on the most recent time period, 1975-1980, during
which all the dams and various conservation programs were in operation
The evidence does not demonstrate that Oregon and Washington are
now injuring Idaho by overfishmg or that they will do so in the future
Moreover, Idaho has not proved that Oregon and Washington have mis
managed the resource and will continue to mismanage Pp 1027-1029
Action dismissed
BLACKMUN, J , delivered the opinion of the Court, in which BURGER,
C J , and WHITE, MARSHALL, POWELL, and REHNQUIST, JJ , joined'
O'CONNOR, J , filed a dissenting opinion, in which BRENNAN and STEVENS,
JJ , joined, post, p 1029
Jim Jones, Attorney General of Idaho, argued the cause
for plaintiffs With him on the briefs were David H Leroy,
former Attorney General, Stephen V Goddard, Deputy At-
torney General, and Don Olowinski
Edward B MacKie, Chief Deputy Attorney General, ar-
gued the cause for defendant State of Washington With
him on the brief were Kenneth O Eikenberry, Attorney
General, and James Johnson, Senior Assistant Attorney
General
JUSTICE BLACKMUN delivered the opinion of the Court
In this action invoking the Court's original jurisdiction, the
State of Idaho seeks an equitable apportionment against the
States of Oregon and Washington of the anadromous fish that
migrate between the Pacific Ocean and spawning grounds in
Idaho The Special Master has filed his final report on the
merits and recommends that the action be dismissed without
prejudice We have before us Idaho's exceptions to that
report
I
Although somewhat repetitive of the Court's prior writings
m this litigation, 444 U S 380 (1980), we feel it worthwhile
to outline once again the facts of the case and the Court's
prior rulings The dispute concerns fish, one of the valuable
IDAHO EX REL EVANS v OREGON 1019
1017 Opinion of the Court
natural resources of the Columbia-Snake River system in the
Pacific Northwest That system covers portions of Wyo-
ming, Idaho, Washington, Oregon, and British Columbia
From its origin in northwest Wyoming, the Snake River
flows westerly across southern Idaho until it reaches the
Idaho and Oregon border At that point, the river winds
northward to form the border between those States for
approximately 165 miles, and then the border between
Washington and Idaho for another 30 miles Next, it turns
abruptly westward and flows through eastern Washington
for approximately 100 miles, finally joining the Columbia
River The Columbia, before this rendezvous, flows south-
ward from British Columbia through eastern Washington
After it is supplemented by the Snake, the Columbia contin-
ues westward 270 miles to the Pacific Ocean For most of
the distance, it forms the boundary between Washington and
Oregon
A
Among the various species of fish that thrive in the Colum-
bia-Snake River system, anadromous fish — in this case, chi-
nook salmon and steelhead trout — lead remarkable and not
completely understood lives These fish begin life in the up-
stream gravel bars of the Columbia and Snake and their re-
spective tributaries Shortly after hatching, the fish emerge
from the bars as fry and begin to forage around their hatch
areas for food They grow into fingerhngs and then into
smolt, the latter generally are at least six inches long and
weigh no more than a tenth of a pound The period the
young fish spend in the hatching areas varies with the species
and can last from six months to well over a year
At the end of this period, the smolts swim down river
toward the Pacific 1 In the estuary of the Columbia, the
'The smolts, apparently, prefer not to swim They face upstream,
open their mouths, and permit the current to carry them downstream
Should they come upon a quiet spot, they turn around and swim
A Netboy, The Columbia River Salmon and Steelhead Trout 44 (1980)
1020 OCTOBER TERM, 1982
Opinion of the Court 462 U S
young fish linger for a time m order to grow accustomed to
the chemical cues of the water A Netboy, The Columbia
River Salmon and Steelhead Trout 44 (1980) It is believed
that they pick up the river's scent so that in their twilight
years they can return to their original home Tr of Oral
Arg 19 Even under the best of conditions, only a small
fraction of the smolts that set out from the gravel bars ever
reach the ocean
Once in the ocean, the smolts grow into adults, averag-
ing between 12 and 17 pounds They spend several years
traveling on precise, and possibly genetically predetermined,
routes See A Netboy, supra, at 46-49 At the end of
their ocean ventures, the mature fish ascend the river
They travel in groups called runs, distinguishable both by
species and by the time of year All the fish return to their
original hatching area, where they spawn and then die At
issue in this case are the runs of spring chinook between
February and May, the runs of summer chinook in June and
July, and the runs of summer steelhead trout in August and
September
B
Since 1938, the already arduous voyages of these fish have
been complicated by the construction of eight dams on the
Columbia and Snake Rivers 2 First, interdicting the flow of
the Snake River in Washington are the Lower Granite (con-
structed in 1969), the Little Goose (1968), and the Lower
Monumental (1967) Dams The Ice Harbor Dam (1961) sits
astride the Snake just above its confluence with the Colum-
bia Four more dams interrupt the Columbia on its way to
the Pacific the McNary (1953), the John Day (1968), the
Dalles (1957), and the original dam, the Bonneville (1938)
2 Three dams m Idaho— the Brownlee (constructed in 1958), the Oxbow
(1961), and the Hells Canyon (1967) Dams — have closed off the upper
Snake River entirely to this piscean traffic This renders unusable much
good spawning area
IDAHO EX REL EVANS v OREGON iQ2l
1017 Opinion of the Court
In order to produce electrical power, these dams divert a
flow of water through large turbines that have devastating
effect on young smolts descending to the Pacific Spillways
have been constructed to permit the smolts to detour around
the turbines 3 The dams also present great obstacles to the
adults Fish ladders — water-covered steps — enable the re-
turning adults to climb over the dams, in addition, the lad-
ders provide an opportunity for compiling statistics 4 Vary-
ing water conditions and the demand for power can increase
the mortality of both descending smolts and ascending adults
The mortality rate for oceanbound smolts averages approxi-
mately 95% Report of Special Master 7 Their adult coun-
terparts die at a rate of 15% at each dam Only 25% to 30%
of the adults passing over the first dam, the Bonneville, suc-
ceed in running the gauntlet to traverse the Lower Granite
Dam and enter Idaho Ibid 5
3 Most dams are also equipped with screens that divert the smolts away
from the turbines and into the spillways Since 1969, however, the num
ber of turbines operating on the dams has increased from 3 to 24, causing
more water to be directed through turbines and reducing the water flow
down the spillways This has increased smolt mortality dramatically
There is an experimental plan to place smolts in tanks and **bus" them
around all the dams for release below the Bonneville Dam See Tr of Oral
Arg 15, Idaho's Exceptions to Master's Final Report on Merits 102-108
(Idaho's Exceptions)
4 At each fish ladder, the Army Corps of Engineers has constructed ob-
servation windows from which it counts and records the number of ascend-
ing fish and notes their variety This count must be adjusted for the phe-
nomenon of "fall back" often adult fish that have been counted are swept
back over the dam or down the ladder by strong currents In addition to
the effect this phenomenon has on the complexity of the count, the Ml over
the dam causes nitrogen supersaturation, making the fish slightly giddy
and disoriented, and serving to increase adult mortality
5 Apparently, the John Day Dam, constructed ui 1968, is "the big killer"
of ascending adults See Tr of Oral Arg 16 To mitigate the effects of
the high mortality rate caused by all the dams, hatchery programs hatch
and nurture millions of smolts and release them into the Snake River The
Idaho Power Company finances several Idaho hatcheries, pursuant to a
condition imposed by the Federal Energy Kegulatory Commission in
1022 OCTOBER TERM, 1982
Opinion of the Court 462 U S
Another factor depleting the anadromous fish population
is fishing, sometimes referred to as "harvesting " In 1918,
Oregon and Washington, with the consent of Congress, Act
of Apr 8, 1918, ch 47, 40 Stat 515, formed the Oregon-
Washington Columbia River Fish Compact to ensure uniform-
ity in state regulation of Columbia River anadromous fish
Idaho has sought entry into the Compact on several occasions,
but has been rebuffed Under the Compact, Oregon and
Washington have divided the lower Columbia into six commer-
cial fishery zones zones one through five cover the Columbia
from its mouth to the Bonneville Dam, zone six stretches
from the Bonneville Dam to the McNary Dam below the con-
fluence with the Snake Each year, authorities from both
States estimate the size of the runs to determine the length of
a fishing season the runs can support The States do not
permit commercial harvests of chinook salmon or steelhead
trout in any of their Columbia River tributaries, they do,
however, permit sport fishing in most locations
Pursuant to treaties ratified in 1859, several Indian Tribes
have "the right of taking fish at all usual and accustomed
places " Sohappy v Smith, 302 F Supp 899, 904 (Ore
1969) In 1977, after lengthy litigation over Indian treaty
rights,6 Oregon and Washington agreed with the Indians to
preserve zone six solely for Indian fishing They also agreed
granting the company's application for a license to construct dams along
the upper portions of the Snake Report of Special Master 9, see n 3,
supra In addition, the parties have agreed to construct 10 hatcheries, 6
in Idaho, to compensate for losses caused by the four dams on the lower
Snake River
6 The Sohappy District Court in 1974 held that the Indians were entitled
to 50% of the fish destined to pass over the Bonneville See Sohappy v
Smith, 529 F 2d 570, 572 (CA9 1976), cf Washington v Fishing Vessel
Assn , 443 U S 658, 685-689 (1979) (approving similar 50% allocation to
Indians) The Court of Appeals for the Ninth Circuit vacated the order
and remanded the case to the District Court for consideration of other fac
tors bearing on the apportionment 529 F 2d, at 573-574 The parties
reached the agreement described m the text before any further District
Court action
IDAHO EX REL EVANS v OREGON 1023
1017 Opinion of the Court
to limit commercial harvests in zones one through five to an
amount that permits sufficient numbers of fish to pass over
the Bonneville Dam to provide an equitable share for the In-
dians and to leave enough fish to replenish the runs Under
the plan, escapement goals — the number of fish passing the
Bonneville — are set for each run When the estimated size
of the run exceeds the escapement goal by a specified
amount, the surplus is allocated between non-Indian fishers
below the Bonneville and Indian fishers above that dam
Two Indian Tribes recently have withdrawn from the agree-
ment, however, casting its future effectiveness into doubt
Although the parties disagree as to the causes, runs of all
the relevant species since 1973 have been significantly lower
See Report of Special Master 46-51 (tables) Since that
year, Oregon and Washington have not permitted commer-
cial harvests of summer chinook, in both States, steelhead
trout are now designated game fish and may not be harvested
commercially Harvests of spring chinook have been per-
mitted only in 1974 and 1977 In the years since 1973, there
has been some sport fishing of all three runs
In 1976, the Court granted Idaho leave to file its complaint
requesting an equitable apportionment of anadromous fish in
the Columbia-Snake River system 429 U S 163 The
matter was referred to a Special Master, the Honorable Jean
S Breitenstem, Senior Judge for the United States Court of
Appeals for the Tenth Circuit See 431 U S 952 (1977)
The Special Master initially recommended that the suit be
dismissed without prejudice for failure to join an indispen-
sable party, the United States That recommendation was
not accepted, and the case was remanded for trial 444
U S 380 (1980) The Court stated that Idaho "must shoul-
der the burden of proving that the [non-Indian] fisheries in
[Oregon and Washington] have adversely and unfairly af-
fected the number of fish arriving in Idaho " Id , at 392
1024 OCTOBER TERM, 1982
Opinion of the Court 462 U S
After trial and oral argument, the Special Master issued
his final report on the merits He has recommended that the
action be dismissed without prejudice, apparently for two
distinct reasons First, he found that Idaho has not demon-
strated that it has suffered any injury at the hands of Oregon
and Washington Second, even assuming that it has suf-
fered such an injury, he found it impossible to fashion a de-
cree to apportion the fish fairly among the parties Idaho
has filed exceptions to the report 7
II
A
As an initial matter, the Special Master correctly con-
cluded that the doctrine of equitable apportionment is appli-
cable to this dispute Although that doctrine has its roots in
water rights litigation, see Kansas v Colorado, 206 U S 46,
98 (1907), the natural resource of anadrornous fish is suffi-
ciently similar to make equitable apportionment an appropri-
ate mechanism for resolving allocative disputes 8 The anad-
romous fish at issue travel through several States during
their lifetime Much as in a water dispute, a State that over-
fishes a run downstream deprives an upstream State of the
fish it otherwise would receive A dispute over the water
flowing through the Columbia-Snake River system would be
resolved by the equitable apportionment doctrine, we see no
reason to accord different treatment to a controversy over a
similar natural resource of that system
7 Washington filed no exceptions of its own, but has responded to those of
Idaho Oregon did not participate m our review of the Special Master's
report
8 The Court in Kansas v Colorado said
"[WJhenever the action of one State reaches through the agency of nat
ural laws into the territory of another State, the question of the extent and
the limitations of the rights of the two States becomes a matter of justi-
ciable dispute between them, and this court is called upon to settle that
dispute in such a way as will recognize the equal rights of both and at the
same time establish justice between them " 206 U S , at 97-98
IDAHO EX REL EVANS v OREGON 1025
1017 Opinion of the Court
The doctrine of equitable apportionment is neither depend-
ent on nor bound by existing legal rights to the resource
being apportioned The fact that no State has a pre-existing
legal right of ownership in the fish, Hughes v Oklahoma 441
U S 322, 329-336 (1979), does not prevent an equitable
apportionment Conversely, although existing legal entitle-
ments are important factors in formulating an equitable de-
cree, such legal rights must give way in some circumstances
to broader equitable considerations See Colorado v New
Mexico, 459 U S 176, 184 (1982), id , at 195 (O'CONNOR,
J , concurring), Nebraska v Wyoming, 325 U S 589, 618
(1945), Connecticut v Massachusetts, 282 U S 660 670-671
(1931)
At the root of the doctrine is the same principle that ani-
mates many of the Court's Commerce Clause cases a State
may not preserve solely for its own inhabitants natural re-
sources located within its borders See Philadelphia v New
Jersey, 437 U S 617, 627 (1978), see also New England
Power Co v New Hampshire, 455 U S 331, 338 (1982),
Hughes v Oklahoma, 441 U S , at 330 Consistent with
this principle, States have an affirmative duty under the doc-
trine of equitable apportionment to take reasonable steps to
conserve and even to augment the natural resources within
their borders for the benefit of other States Colorado v
New Mexico, 459 U S , at 185, Wyoming v Colorado, 259
U S 419, 484 (1922) Even though Idaho has no legal right
to the anadromous fish hatched in its waters, it has an equita-
ble right to a fair distribution of this important resource
B
Because apportionment is based on broad and flexible
equitable concerns rather than on precise legal entitlements,
see Colorado v New Mexico, 459 U S , at 183, Nebraska v
Wyoming, 325 U S , at 618, a decree is not intended to com-
pensate for prior legal wrongs Rather, a decree prospec-
tively ensures that a State obtains its equitable share of a re-
1026 OCTOBER TERM, 1982
Opinion of the Court 462 U S
source A decree may not always be mathematically precise
or based on definite present and future conditions Uncer-
tainties about the future, however, do not provide a basis for
declining to fashion a decree Reliance on reasonable predic-
tions of future conditions is necessary to protect the equitable
rights of a State
To the extent that the Special Master found that the for-
mulation of a workable decree is impossible, we must dis-
agree See Washington v Fishing Vessel Assn , 443 U S
658, 663 (1979) (regular habits of anadromous fish make it
possible to forecast size of runs) Idaho's proposed formula
for apportioning the fish is one possible basis for a decree 9
It relies on the number of jaekfish — reproductively preco-
cious male fish, which return a year ahead of other members
of their age group — passing over the Bonneville and the Ice
Harbor Dams to predict the size of the run the following year
and the percentage of fish in the run that originate m Idaho 10
9 Oregon and Washington authorities employ a similar formula in es-
timating the size of runs and in setting Bonneville Dam escapement goals
pursuant to the Indian treaty rights settlement agreement In addition to
the apportionment formula, Idaho's plan would require Oregon and Wash-
ington (1) to continue the same primary management techniques they have
been using, (2) to estimate the size of future runs and dam mortality rates,
(3) to meet the escapement requirements they have set for the last five
years, (4) to determine the number of fish in each run that originated in
Idaho, (5) to determine the harvestable surplus of Idaho-origin fish, (6) to
allot to Idaho a share of that surplus (after subtracting Indian fisheries)
equal to the percentage that Idaho-origin fish are of the total Columbia
River run, and (7) to make up any shortfall in Idaho's allocated harvest out
of the next year's harvest
10 The latter prediction is possible because most fish that surmount the
Ice Harbor Dam are headed for spawning grounds in Idaho We express
no view on the appropriateness of Idaho's proposed formula We note that
it apportions fish solely on the basis of their origin Flexibility is the linch-
pin m equitable apportionment cases, and, m our prior decisions, we have
based apportionment on the consideration of many factors to ensure a fair
and equitable allocation See Colorado v New Mexico, 459 U S 176, 183
(1982)
IDAHO EX REL EVANS v OREGON 1027
1017 Opinion of the Court
Although the computation is complicated and somewhat tech-
nical, that fact does not prevent the issuance of an equitable
decree See 444 U S , at 390, Nebraska v Wyoming, 325
U S , at 616-617 Nothing in the record undermines the as-
sumption supporting Idaho's formula that there is a definite
relationship between the number of jackfish and the total
number of fish in a particular run the following year Thus,
if Idaho suffers from the injury it alleges, we see no reason
why that injury could not be remedied by an equitable
decree
C
The Special Master also found, however, that Idaho has
not demonstrated sufficient injury to justify an equitable de-
cree A State seeking equitable apportionment under our
original jurisdiction must prove by clear and convincing evi-
dence some real and substantial injury or damage Colorado
v New Mexico, 459 U S , at 187-188, n 13, Connecticut v
Massachusetts, 282 U S , at 672, see New Jersey v New
York, 283 U S 336,344-345(1931) In reaching his conclu-
sion, the Special Master stated that the determination should
be based on present conditions Report of Special Master
25-26 He therefore focused on the most recent time period,
1975 through 1980, during which all the dams and various
conservation programs were in operation
We approve this approach The Special Master found
that, due to the operation of the dams, the fish runs have
been depressed since 1970 Id , at 26, 34 It is highly un-
likely that the dams will be removed or the number of deadly
turbines reduced, all parties must live with these conditions
in the determinable future n Although Oregon and Wash-
11 Idaho accepts, as it must, see 444 U S , at 388, the continued operate
of the dams and their adverse impact on the runs See Idaho's Exceptio*
46, 87 Its argument that the parties must share that adverse unpas*
equally, id , at 87, is relevant to the fashioning of an equitable decree* fe$k
not to the existence of a cognizable injury
1028 OCTOBER TERM, 1982
Opinion of the Court 462 U S
mgton may have harvested a disproportionate share of anad-
romous fish over the long run,12 Idaho took 58 72% of the total
harvest in the period from 1975 through 1980 Id , at 44
Equitable apportionment is directed at ameliorating present
harm and preventing future injuries to the complaining
State, not at compensating that State for prior injury We
agree with the Special Master that these figures do not dem-
onstrate that Oregon and Washington are now injuring Idaho
by overfishing the Columbia or that they will do so in the
future
Moreover, Idaho has not proved that Oregon and Wash-
ington have mismanaged the resource and will continue to
mismanage The two States in 1974 did permit some over-
12 Idahu claims that from 1962 through 1980, when spring chmook that
originated in Idaho constituted 50% of the total runs, Oregon and Washing-
ton took 83% of the Idaho spring chmook According to Idaho, they also
harvested 75% of the Idaho-origin summer chmook, which during the
period constituted 40% of all summer chmook runs As to steelhead
trout, Idaho asserts that Oregon and Washington took 58% of the harvest
of Idaho-origin fish, which was 48% of the total steelhead runs Id , at
49-50
Of course, these figures presume, as does Idaho's entire argument, that
Idaho is entitled to those fish that originate m its waters After Hughes v
Oklahoma, 441 U S 322 (1979), however, Idaho cannot claim legal owner-
ship of the fish While the origin of the fish may be a factor in the fashion-
ing of an equitable decree, it cannot by itself establish the need for a
decree Instead, the Court must look to factors such as disproportionate
reductions in Idaho's normal harvest, or reductions m the total fish m the
runs caused by mismanagement or overfishing by Washington and Oregon
As a historical matter, Idaho's own tables demonstrate that its proportion
of the harvest of Idaho-origin spring chmook increased from 13 5% in 1962
through 1967 to 45 5% m 1975 through 1980, and its percentage of the har-
vest of Idaho origin steelhead trout increased in the same period from
35 1% to 90 7% Idaho's harvest percentage of Idaho-origin summer chi-
nook did decrease between the two periods, but only 192 fish from that run
were caught m the latter period, a de rmmmis number Idaho's Excep-
tions 53-54 (tables 6, 7, and 8) Although we reject the assumption of
entitlement underlying Idaho's comparisons, even under that assumption,
Idaho's portion of the harvest has been increasing
IDAHO EX REL EVANS v OREGON 1029
1017 O'CONNOR, J , dissenting
fishing of the Columbia 13 Idaho, however, has produced no
concrete evidence of other mismanagement, and the Special
Master concluded that «[t]he record shows no repetition' or
threatened repetition of [prior mismanagement] " 14 Id at
32 Although it is possible that Washington and Oregon roll
mismanage this resource in the future, Idaho has not carried
its burden of demonstrating a substantial likelihood of injury
III
For the foregoing reasons, we adopt the Special Master's
recommendation and dismiss the action without prejudice to
the right of Idaho to bring new proceedings whenever it shall
appear that it is being deprived of its equitable share of anad-
romous fish
It is so ordered
JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and
JUSTICE STEVENS join, dissenting
The Special Master reasoned that Idaho was entitled to a
"fair share" of the anadromous fish that are the subject of this
dispute Without quantifying that share, however, he re-
jected the claim that Washington and Oregon had misman-
aged the fishery, Report of Special Master 30-34, conclud-
ing instead that they had acted in good faith, yd , at 35,
and that the relief requested by Idaho was unworkable, ibid
18 The Special Master found that the last incident of mismanagement oc-
curred m 1974 when, despite the recommendation of experts, Oregon and
Washington permitted a limited harvest They overestimated the Bonne-
ville count by failing to consider the fall back phenomenon, and under-
estimated the Indian fishery for the year The overfishmg reduced the
number of fish returning to spawn Report of Special Master 32
14 Moreover, despite Idaho's claim that Oregon and Washington managed
only for minimum escapements over the Bonneville, the Special Master
found that Idaho had never requested those States to increase the escape-
ment goal Id , at 31 In fact, Idaho seems quite content with the cur-
rent escapement goals, its plan requires that Oregon and Washington
"manage to meet the same spawning escapements they have been manag-
ing for over the last five years " Idaho's Exceptions 82
1030 OCTOBER TERM, 1982
0 CONNOR, J , dissenting 462 U S
In reaching that conclusion, he refused to consider any evi-
dence pertaining to years earlier than 1975 or to future devel-
opments Id , at 25-26, 27
The Court today overrules the exceptions to the report of
the Special Master I see substantial merit to several of the
points raised by Idaho and am persuaded that they require a
remand to the Special Master for further proceedings Ac-
cordingly, I dissent
I
The Master properly concluded that "Idaho is entitled to
its fair share of the fish " Id , at 25 No one owns an indi-
vidual fish until he reduces that fish to possession, Pierson v
Post, 2 Am Dec 264 (N Y 1805), and, indeed, even the
States do not have full-fledged "property" interests in the
wildlife within their boundaries, see, e g , Douglas v Sea-
coast Products, Inc , 431 U S 265, 284 (1977), Missouri v
Holland, 252 U S 416, 434 (1920) Nonetheless, courts
have long recognized the opportunity to fish as an interest of
sufficient dignity and importance to warrant certain protec-
tions See, e g , Union Oil Co v Oppen, 501 F 2d 558
(CA9 1974), Louisiana ex rel Guste v M/V Testbank, 524
F Supp 1170 (ED La 1981), Weld v Hornby, 1 East 195
(K B 1806), J Gould, Law of Waters §§ 186, 187 (1883),
3 J Kent, Commentaries 411 (5th ed 1844), cf New Jersey
v New York, 283 U S 336, 345 (1931) (considering the ef-
fect on oysterbeds in apportioning water), Douglas, supra, at
287-288 (REHNQUIST, J , concurring in part and dissenting in
part) (although State has no ownership in wildlife in the con-
ventional sense, it has a "substantial proprietary interest")
See generally United States v Washington, 520 F 2d 676
(CA9 1975), cert denied, 423 U S 1086 (1976) Indeed, in
recent years, as the runs of anadromous fish have diminished
and no longer satisfy fully the demands of all fishermen, the
federal courts frequently find themselves confronted with
disputes over the management and conservation of the
resource Faced with these problems, the courts, includ-
IDAHO EX REL EVANS v OREGON 1031
1017 O'CONNOR, J , dissenting
ing this Court, have not hesitated to recognize that various
claimants do possess protective rights in the runs of fish
whether or not those claimants ultimately manage to land
and reduce particular specimens to possession and full owner-
ship See, e g , Washington Game Dept v Puyallup Tribe
414 U S 44 (1973), Sohappy v Smith, 529 F 2d 570 (CA9
1976) (per curiam), United States v Washington, supra,
Sohappy v Smith, 302 F Supp 899 (Ore 1969) When
States enter the fray, this Court must be prepared to under-
take the admittedly difficult task of assessing the claim of
each and arriving at an equitable resolution that protects the
interests of each, for, as we held long ago in a leading case on
our original jurisdiction
"[Whenever the action of one State reaches through
the agency of natural laws into the territory of another
State, the question of the extent and the limitations of
the rights of the two States becomes a matter of justi-
ciable dispute between them, and this court is called
upon to settle that dispute in such a way as will recognize
the equal rights of both and at the same time establish
justice between them " Kansas v Colorado, 206 U S
46, 97-98 (1907) 1
1 This controversy, like disputes over the waters of interstate streams, is
one particularly appropriate for resolution by this Court in the exercise of
its original jurisdiction The original jurisdiction was "conferred by the
Constitution as a substitute for the diplomatic settlement of controversies
between sovereigns and a possible resort to force," North Dakota v Mm
nesota, 263 U S 365, 372-373 (1923) See generally 2 Waters and Water
Rights § 132 2(A) (R Clark ed 1967) Disputes between sovereigns over
migratory wildlife typically give rise to diplomatic solutions See, e g ,
Missouri v Holland, 252 U S 416 (1920) (treaty between United States
and Canada concerning migratory birds) Such solutions reflect the recog-
nition by the international community that each sovereign whose territory
temporarily shelters such wildlife has a legitimate and protectible interest
in that wildlife In our federal system, we recognize similar interests, but
the original jurisdiction of this Court or interstate compacts substitute for
interstate diplomatic processes
1032 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
Having reached the correct conclusion that Idaho has a
right to a fair share of the anadromous fish of the Columbia
and Snake Rivers, though, the Master adopted procedures
that denied Idaho an opportunity to effectuate that right It
is the approval of the limitations placed on Idaho's establish-
ment of its rights with which I disagree
II
In spite of his recognition that Idaho was entitled to a fair
share of the runs of anadromous fish, the Master found that
there was no injury to Idaho I am at a loss to understand
how he reached that conclusion without specifying the nature
and extent of Idaho's entitlement 2 The Master excluded
from consideration any evidence of past conditions or proba-
ble future conditions, focusing instead solely on the evidence
for the period 1975-1980 Report of Special Master 25-26,
27 3 During those years, the harvests were negligible, so, in
2 The failure to specify Idaho's rights also seems to me to represent
a poor use of judicial resources, inviting future litigation, rather than
settling questions properly presented now Cf Comment, Sohappy v
Smith Eight Years of Litigation over Indian Fishing Rights, 56 Ore L
Rev 680, 693 (1977) (although court's initial order declared that the Indi
ans had a right to a "fair share" of fish, "[u]nfortunately, the court did not
provide any guidelines for determining what a 'fair share' is, and conse-
quently, the parties have been back m court to argue about the application
of Sohappy")
8 The Master did permit Idaho to create a record, at least of evidence of
past conditions and practices, see Exceptions of Idaho 101, but he refused
to consider that evidence, effectively excluding it See Report of Special
Master 25-26, 27
In support of this decision, the Master cited Nebraska v Wyoming, 325
U S 589, 620 (1945), where the Court stated "[T]he decree which is
entered must deal with conditions as they obtain today " In setting out
the general principle m that case, the Court had explained " '[A]ll of the
factors which create equities in favor of one State or the other must
be weighed as of the date when the controversy is mooted/" id , at 618,
quoting Kansas v Colorado, 320 U S 383, 394 (1943) "Conditions as
they obtain today" include all current "equities," which, as elaborated
further below, turn on past, present, and future realities
IDAHO EX REL EVANS v OREGON 1033
1017 O'CONNOR, J , dissenting
the Master's view, Idaho's rights were similarly negligible
and Idaho could not show the "substantial injury3' necessary
to obtain relief from this Court in the exercise of its original
jurisdiction, see, e g , Kansas v Colorado, 320 U S 383
393 (1943), Connecticut v Massachusetts, 282 U S 660, 669
(1931) Of course, as the Court recognizes, ante, at 1027,
the Master properly required a showing by clear' and con-
vincing evidence that Idaho sustained a substantial injury
Nonetheless, two basic problems flaw the Master's approach
First, it assumes that Idaho's only concern is with its share
of the harvest and that, in the absence of a harvestable
surplus,4 Idaho's interest in the runs vanishes Second, it
excludes evidence relevant in explaining the current state of
the runs and in determining what types of management will
best conserve and increase the resource for the benefit of all
The first problem with the Master's approach requires
little elaboration Even if there is absolutely no harvestable
surplus for a year or for several years, Idaho has a right
to seek to maintain and eventually increase the runs by re-
quiring the defendants to refrain from practices that prevent
fish from returning to their spawning grounds in numbers
sufficient to perpetuate the species in this river system
Cf Colorado v New Mexico, 459 U S 176 (1982) (recogniz-
ing duty to conserve common water supply), Wyoming v
Colorado, 259 U S 419, 484 (1922) (same) The allegations
of mismanagement over the period leading up to this law-
suit— in particular the allegation that the defendants made a
practice of closing fishing seasons only after it became clear
that they would not meet the goal of a minimum spawning es-
capement, Exceptions of Idaho 65, Pretnal Order 7, Admit-
ted Fact 30 — if true, may show the existence of a threat to
Idaho's interest m the maintenance of the runs Indeed, the
4 "Harvestable surplus" refers to the number of fish in the run that re-
main after the escapement ordered for the preservation of the runs and
after the Indian Tribes have exercised their treaty rights
1034 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
very paucity of the harvest in 1975-1980 that the Master re-
lied upon in denying Idaho any relief suggests that there may
be some merit m Idaho's contention that the runs have not
been properly managed in the past
Further, the need for relief in such a situation is compel-
ling Techniques are available that may aid significantly in
maintaining or increasing the runs ' But Idaho is unlikely to
devote substantial resources to projects designed to maintain
and increase the runs if the defendants are free to engage in
mismanagement downstream that will negate Idaho's efforts
The Master should not have concluded that, simply because
Idaho shared equally m the failure of the harvest in 1975-
1980, it had no further interest in promoting the conserva-
tion of the species and the eventual restoration of the runs,
neither of which could occur without proper management
practices on the part of the defendants
B
In my view, the Master erred also m excluding the evi-
dence of the past practices of the defendants, of the past con-
ditions on the river system, and of the probable conditions in
the future Consideration of Idaho's interest in maintaining
the runs has already illustrated one way m which evidence of
the past conditions and practices and of probable future con-
ditions was indeed relevant in this action Moreover, the
Master's limitations place Idaho in an untenable position
Although harvests were minimal from 1975 to 1980, condi-
tions were different when Idaho sought leave to file its com-
plaint in this action on March 31, 1975 In 1974, Washington
and Oregon had harvested some 22,400 spring chmook and
9,500 summer steelhead Report of Special Master 18-19
5 For instance, hatcheries supplement the natural reproduction of the
fish See Report of Special Master 9 Also, fish may be transported
around dams to reduce mortality m passage, Exceptions of Idaho 102-103,
see ante, at 1021, n 3 Finally, the States can continue investment and ef
forts to maintain proper conditions for spawning, Report of Special Master 8
IDAHO EX REL EVANS v OREGON 1035
1017 O'CONNOR, J , dissenting
Indeed, even with the negligible harvests for the latter half
of the decade, during the 1970's, Washington and Oregon
harvested an annual average of 27,320 upriver spring chi-
nook, 2,260 upriver summer chmook, and 12,360 upnver
summer steelhead, compared with Idaho's average harvests
of 3,150 upriver spring chinook, no upriver summer chinook,
and 8,550 upriver summer steelhead Id , at 13, 15, 17
Assuming Idaho's allegations to be true, substantial portions
of the fish harvested by Washington and Oregon rightfully
should have returned to Idaho This period did not reflect a
pristine and irretrievably lost state of nature On the con-
trary, all the dams were in place before 1970, see ante, at
1020 But the Master refused to consider these figures,
looking only to figures for harvests taking place after Idaho
sought relief Under this approach, to vindicate its rights,
Idaho will have to wait until the runs regenerate — relying on
the goodwill of the defendants to maintain and increase them
Then, once there is a harvest available, Idaho will have to
hope that the runs survive any mismanagement long enough
to establish a new record of fishing on harvests rightfully be-
longing to Idaho and that both the runs and the mismanage-
ment will persist throughout the time necessary to complete
litigation I would not place such hurdles in the way of a
State seeking to preserve its natural resources
III
The proper approach m this case, in my view, would
require the Master to determine whether Idaho has a
protectible interest in the preservation of the runs and
what Idaho's proper share is, expressed as a proportion of
the harvestable surplus In making that determination, the
Master should have a broad range of flexibility, drawing
guidance from our previous cases reconciling conflicting
claims of States to natural resources by equitable apportion-
ment The classic statement of the considerations governing
equitable apportionment of interstate streams emphasizes
1036 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
the breadth of the inquiry and the importance of all relevant
factors 6
"Apportionment calls for the exercise of an informed
judgment on a consideration of many factors Priority
of appropriation is the guiding principle But physical
and climatic conditions, the consumptive use of water in
the several sections of the river, the character and rate
of return flows, the extent of established uses, the avail-
ability of storage water, the practical effect of wasteful
uses on downstream areas, the damage to upstream
areas as compared to the benefits to downstream areas if
a limitation is imposed on the former — these are all rele-
vant factors They are merely an illustrative, not an
exhaustive catalogue They indicate the nature of the
problem of apportionment and the delicate adjustment of
interests which must be made " Nebraska v Wyoming,
325 U S 589, 618 (1945)
See Colorado v New Mexico, 459 U S , at 183, Connecticut
v Massachusetts, 282 U S , at 671, 2 Waters and Water
6 In this regard, I think that the Master properly rejected Idaho's pro-
posed quantification of its right, relying solely on its role as the State of
origin As Idaho explains its position "[Idaho's] share of the harvestable
surplus of Idaho origin fish should equal Idaho's percentage contribution to
the entire run " Exceptions of Idaho 47 This proposal would require the
Master to base the apportionment on one factor alone The most glaring
problem with this formulation is that it takes no account of the relative
benefits and burdens to each State of dividing the resource To allow one
fish to reach Idaho, Oregon and Washington must allow some significantly
larger number, the exact value of which is the subject of some dispute, see
Response of Washington 14-15, 43-45, Reply Brief for Idaho 7-9, to pass
by the downstream fisheries These other fish will be lost in passage, and
no one will benefit Considerations of relative benefits and burdens im-
posed by a given division are at the core of equitable apportionment See,
e g , Colorado v New Mexico, 459 U S 176 (1982), Kansas v Colorado,
206 U S 46, 109 (1907), cf Colorado v New Mexico, supra, at 181, n 8
(rejecting argument that State that is the source of water is automatically
entitled to any share)
IDAHO EX REL EVANS v OREGON 1037
1017 O'CONNOR, J , dissenting
Rights § 132 5(B) (R Clark ed 1967) Of course, the rele-
vant considerations stated in cases concerning rights to water
must be adapted to this new context Nevertheless, the
general principles apply I would direct the Master to' con-
sider a range of factors including, but not limited to, the harm
that must be incurred by Oregon and Washington in terms of
harvest forgone in order to allow a given number of fish to
reach Idaho, cf Nebraska v Wyoming, supra (considering
the loss of water in transit), the contribution of each State
to preservation of the habitat necessary for spawning, the
contribution of each State to the preservation of the proper
habitat necessary for the survival and development of fish
during passage, the investment of each State in programs
to mitigate losses and enhance the runs, such as hatcheries
and transportation programs, see n 5, supra, 7 and the rela-
tive values of the types of fishery — commercial or sport —
operated by the defendants and by Idaho, cf Connecticut v
Massachusetts, supra, at 673 ("Drinking and other domestic
purposes are the highest uses of water")
Only after making this initial determination can we decide
whether Idaho has been wrongfully deprived of fish If the
depletion of the runs is attributable to mismanagement by
Oregon and Washington, we should grant relief The Mas-
ter suggested that relief is unworkable because of the diffi-
culties of estimating the runs and apportioning them The
task is indeed a complicated one, as we recognized when we
stated in Puyallup "Only an expert could fairly estimate
what degree of net fishing plus fishing by hook and line would
allow the escapement of fish necessary for perpetuation of
the species " 414 U S , at 48 Nevertheless, it is a task
that we have recognized as possible, Washington v Wash-
7 The Master's report suggests that the source of revenue used for in-
vestment by the State — fishing license fees as opposed to general taxes— is
somehow relevant See Report of Special Master 30 Although tttt
proper range of considerations is quite broad, I fail to see the relevance^f
that consideration
1038 OCTOBER TERM, 1982
O'CONNOR, J , dissenting 462 U S
ington State Commercial Passenger Fishing Vessel Assn ,
443 U S 658, 662-664 (1979), and the difficulty of providing
equitable relief has never provided an excuse for shirking
the duty imposed on us by the Constitution Idaho ex rel
Evans v Oregon, 444 U S 380, 390, n 7 (1980), Nebraska v
Wyoming, supra, at 616 The lower federal courts have
proved able to grant appropriate relief, e g , Sohappy v
Smith, 529 F 2d, at 572-573, United States v Washington,
520 F 2d 676 (CA9 1975), so we too should be able to over-
come the difficulties 8 Moreover, a statement of relative
rights may induce the parties to cooperate in devising a plan
to accommodate not only the rights of all but also the difficul-
ties of management, as the defendants here did when sued by
the Indians for enforcement of treaty fishing rights See
Report of Special Master 34-35 (discussing Five- Year Plan
entered by parties to Sohappy v Smith) 9
IV
Since the Master failed to quantify Idaho's right in the
anadromous fish, he was unable to determine whether Idaho
suffered any injury entitling it to a remedy I would remand
to allow the Master to apply our precedents on equitable
apportionment to determine the extent of Idaho's rights, and,
if appropriate, to devise a remedy protecting those rights
8 The Master's dismissal of Idaho's calculations reflects an undue skepti
cism where statistics are concerned The linear least squares regression
method that the Master concluded was "of little value in making predic
tions," id , at 41, for instance, can indeed have predictive value, if used
properly See, e g , W Hays, Statistics § 10 4 (3d ed 1981) Courts can
rely on the same sort of calculations that agencies charged by the States
with management of fisheries perform
9 The Five- Year Plan of the parties to the Sohappy litigation expired m
1982, see Report of Special Master 11 The Plan had required the defend
ants to take certain actions that tended to preserve the runs Id , at 35
Although the Plan was never adequate to protect Idaho, since it was not a
party to the Plan, id , at 10, the expiration makes the need for relief, if
there has been an injury, even more urgent
OREGON v BRADSHAW im
Syllabus
OREGON v BRADSHAW
CERTIORARI TO THE COURT OF APPEALS OF OREGON
No 81-1857 Argued March 28, 198a~-Decided June 23, 1983
During the investigation of the death of a person whose body had been
found in his wrecked pickup truck, respondent was questioned at the
police station, where he was advised of his Miranda rights, and later
arrested for furnishing liquor to the victim, a minor, and again advised of
his Miranda rights Respondent denied his involvement and asked for
an attorney Subsequently, while being transferred from the police sta
tion to a jail, respondent inquired of a police officer, "Well, what is going
to happen to me now?" The officer answered that respondent did not
have to talk to him and respondent said he understood There followed
a discussion between respondent and the officer as to where respondent
was being taken and the offense with which he would be charged The
officer suggested that respondent take a polygraph examination, which
he did, after another reading of his Miranda rights When the exam
mer told respondent that he did not believe respondent was telling the
truth, respondent recanted his earlier story and admitted that he had
been driving the truck in question and that he had consumed a consider
able amount of alcohol and had passed out at the wheel of the truck
before it left the highway Respondent was charged with first-degree
manslaughter, driving while under the influence of intoxicants, and driv
mg while his license was revoked His motion to suppress his state
ments admitting his involvement was denied, and he was found guilty
after a bench trial The Oregon Court of Appeals reversed, holding that
the inquiry respondent made of the police officer while being transferred
to jail did not "initiate" a conversation with the officer and that there-
fore the statements growing out of this conversation should have been
excluded from evidence under Edwards v Arizona, 451 U S 477
Held The judgment is reversed, and the case is remanded
54 Ore App 949, 636 P 2d 1011, reversed and remanded
JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE O'CONNOR, concluded that respondent's Fifth Amendment
rights were not violated Pp 1044-1047
(a) The Oregon Court of Appeals misapprehended the test laid down in
Edwards, where it was held that, after the right to counsel has been as-
serted by an accused, further interrogation should not take place "unless
the accused himself initiates further communication, exchanges, or con-
1040 OCTOBER TERM, 1982
Opinion of REHNQUIST, J 462 U S
versations with the police " 451 U S , at 485 It was not held m that
case that the "initiation" of a conversation by an accused such as re-
spondent would amount to a waiver of a previously invoked right to
counsel The Oregon court erred in thinking that an "initiation" of a
conversation by an accused not only satisfies the Edwards rule, but ex
propno vigore suffices to show a waiver of the previously asserted right
to counsel Pp 1044-1045
(b) Here, m asking "Well, what is going to happen to me now?" re-
spondent "initiated" further conversation His statement evinced a
willingness and a desire for a generalized discussion about the investiga
tion and was not merely a necessary inquiry arising out of the incidents
of the custodial relationship Pp 1045-1046
(c) Since there was no violation of the Edwards rule in this case the
next inquiry is whether, in light of the totality of the circumstances, re
spondent made a knowing and intelligent waiver of his right to have
counsel present The trial court, based on its firsthand observation of
the witnesses, found a waiver, there is no reason to dispute that finding
Pp 1046-1047
JUSTICE POWELL concluded that a two-step analysis is unnecessary
In the circumstances of the case, it is sufficient that respondent know
mgiy and intelligently waived his right to counsel Pp 1050-1051
REHNQUIST, J , announced the judgment of the Court and delivered an
opinion, m which BURGER, C J , and WHITE and O'CONNOR, JJ , joined
POWELL, J , filed an opinion concurring in the judgment, post, p 1047
MARSHALL, J , filed a dissenting opinion, in which BRENNAN, BLACKMUN,
and STEVENS, JJ , joined, post, p 1051
Dave Frohnmayer, Attorney General of Oregon, argued
the cause for petitioner With him on the briefs were Wil-
liam F Gary, Sohcitor General, James E Mountain, Jr ,
Deputy Solicitor General, and Robert E Barton, Thomas
H Denney, and Stephen G Peifer, Assistant Attorneys
General
Gary D Babcock argued the cause for respondent With
him on the brief was John Daugvrda
JUSTICE REHNQUIST announced the judgment of the Court
and delivered an opinion, m which THE CHIEF JUSTICE,
JUSTICE WHITE, and JUSTICE O'CONNOR joined
After a bench trial in an Oregon trial court, respondent
James Edward Bradshaw was convicted of the offenses of
OREGON v BRADSHAW 1041
1039 Opinion of REHNQUIST, J
first-degree manslaughter, driving while under the influence
of intoxicants, and driving while his license was revoked
The Oregon Court of Appeals reversed his conviction, hold-
ing that an inquiry he made of a police officer at the time he
was in custody did not "initiate" a conversation with the offi-
cer, and that therefore statements by the respondent grow-
ing out of that conversation should have been excluded from
evidence under Edwards v Arizona, 451 U S 477 (1981)
We granted certioran to review this determination 459
U S 966 (1982)
In September 1980, Oregon police were investigating the
death of one Lowell Reynolds in Tillamook County Reyn-
olds' body had been found in his wrecked pickup truck, in
which he appeared to have been a passenger at the time the
vehicle left the roadway, struck a tree and an embankment,
and finally came to rest on its side in a shallow creek Reyn-
olds had died from traumatic injury, coupled with asphyxia
by drowning During the investigation of Reynolds' death,
respondent was asked to accompany a police officer to the
Rockaway Police Station for questioning
Once at the station, respondent was advised of his rights as
required by Miranda v Arizona, 384 U S 436 (1966) Re-
spondent then repeated to the police his earlier account of the
events of the evening of Reynolds' death, admitting that he
had provided Reynolds and others with liquor for a party
at Reynolds' house, but denying involvement in the traffic
accident that apparently killed Reynolds Respondent sug-
gested that Reynolds might have met with foul play at the
hands of the assailant whom respondent alleged had struck
him at the party
At this point, respondent was placed under arrest for fur-
nishing liquor to Reynolds, a minor, and again advised of his
Miranda rights A police officer then told respondent the
officer's theory of how the traffic accident that killed Reyn-
olds occurred, a theory which placed respondent behind the
wheel of the vehicle Respondent again denied his involve-
ment, and said "I do want an attorney before it goes very
1042 OCTOBER TERM, 1982
Opinion of REHNQUIST, J 462 U S
much further " App 72 The officer immediately termi-
nated the conversation
Sometime later respondent was transferred from the Rock-
away Police Station to the Tillamook County Jail, a distance
of some 10 or 15 miles Either just before, or during, his
trip from Rockaway to Tillamook, respondent inquired of a
police officer, "Well, what is going to happen to me now?"
The officer answered by saying "You do not have to talk to
me You have requested an attorney and I don't want you
talking to me unless you so desire because anything you
say — because — since you have requested an attorney, you
know, it has to be at your own free will " Id , at 16 See
54 Ore App 949, 951, 636 P 2d 1011, 1011-1012 (1981)
Respondent said he understood There followed a discus-
sion between respondent and the officer concerning where
respondent was being taken and the offense with which he
would be charged The officer suggested that respondent
might help himself by taking a polygraph examination Re-
spondent agreed to take such an examination, saying that he
was willing to do whatever he could to clear up the matter
The next day, following another reading to respondent
of his Miranda rights, and respondent's signing a written
waiver of those rights, the polygraph was administered At
its conclusion, the examiner told respondent that he did not
believe respondent was telling the truth Respondent then
recanted his earlier story, admitting that he had been at the
wheel of the vehicle m which Reynolds was killed, that he had
consumed a considerable amount of alcohol, and that he had
passed out at the wheel before the vehicle left the roadway
and came to rest in the creek
Respondent was charged with first-degree manslaughter,
driving while under the influence of intoxicants, and driving
while his license was revoked His motion to suppress the
statements described above was denied, and he was found
guilty after a bench trial The Oregon Court of Appeals,
relying on our decision in Edwards v Arizona, supra, re-
OREGON v BRADSHAW 1043
1039 Opinion of REHNQUIST, J
versed, concluding that the statements had been obtained in
violation of respondent's Fifth Amendment rights 54 Ore
App 949, 636 P 2d 1011 (1981) We now conclude that
the Oregon Court of Appeals misapplied our decision in
Edwards
In Edwards the defendant had voluntarily submitted to
questioning but later stated that he wished an attorney be-
fore the discussions continued The following day detectives
accosted the defendant in the county jail, and when he re-
fused to speak with them he was told that "he had" to talk
We held that subsequent incriminating statements made
without his attorney present violated the rights secured to
the defendant by the Fifth and Fourteenth Amendments to
the United States Constitution In our opinion, we stated
"[AJlthough we have held that after initially being
advised of his Miranda rights, the accused may himself
validly waive his rights and respond to interrogation,
see North Carolina v Butler, [441 U S 369, 372-376
(1979)], the Court has strongly indicated that additional
safeguards are necessary when the accused asks for
counsel, and we now hold that when an accused has in-
voked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further
police-initiated custodial interrogation even if he has
been advised of his rights We further hold that an
accused, such as [the defendant], having expressed his
desire to deal with the police only through counsel, is
not subject to further interrogation by the authorities
until counsel has been made available to him, unless ik&
accused himself initiates further communication,
changes, or conversations with the police " 451 U
at 484-485 (footnote omitted) (emphasis added)
Respondent's question in the present case, 'Well,
going to happen to me now?", admittedly was asked prior
1044 OCTOBER TERM, 1982
Opinion of REHNQUIST, J 462 U S
respondent's being "subjected] to further interrogation by
the authorities " Id , at 484 The Oregon Court of Appeals
stated that it did not "construe defendant's question about
what was going to happen to him to have been a waiver of his
right to counsel, invoked only minutes before " 54 Ore
App , at 953, 636 P 2d, at 1013 The Court of Appeals, after
quoting relevant language from Edwards, concluded that
"under the reasoning enunciated in Edwards, defendant did
not make a valid waiver of his Fifth Amendment rights, and
his statements were inadmissible " Ibid
We think the Oregon Court of Appeals misapprehended
the test laid down in Edwards We did not there hold that
the "initiation" of a conversation by a defendant such as
respondent would amount to a waiver of a previously invoked
right to counsel, we held that after the right to counsel had
been asserted by an accused, further interrogation of the
accused should not take place "unless the accused himself
initiates farther communication, exchanges, or conversations
with the police " 451 U S , at 485 This was in effect a
prophylactic rule, designed to protect an accused in police
custody from being badgered by police officers m the manner
in which the defendant m Edwards was We recently
restated the requirement in Wynck v Fields, 459 U S 42,
46 (1982) (per cunarn), to be that before a suspect in cus-
tody can be subjected to further interrogation after he re-
quests an attorney there must be a showing that the "suspect
himself initiates dialogue with the authorities "
But even if a conversation taking place after the accused
has "expressed his desire to deal with the police only through
counsel," is initiated by the accused, where remterrogation
follows, the burden remains upon the prosecution to show
that subsequent events indicated a waiver of the Fifth
Amendment right to have counsel present during the interro-
gation This is made clear in the following footnote to our
Edwards opinion
"If, as frequently would occur m the course of a meet-
ing initiated by the accused, the conversation is not
OREGON v BRADSHAW 1045
1039 Opinion of REHNQUIST, J
wholly one-sided, it is likely that the officers will sav or
do something that clearly would be 'interrogation ' In
that event, the question would be whether a valid waiver
of the right to counsel and the right to silence had
occurred, that is, whether the purported waiver ims
knowing and intelligent and found to be so under the
totality of the circumstances, including the necessary
fact that the accused, not the police, reopened the dia-
logue with the authorities " 451 U S , at 486, n 9
(emphasis added)
This rule was reaffirmed earlier this Term in Wynck v
Fields, supra
Thus, the Oregon Court of Appeals was wrong m thinking
that an "initiation" of a conversation or discussion by an
accused not only satisfied the Edwards rule, bat ex proprio
vigore sufficed to show a waiver of the previously asserted
right to counsel The inquiries are separate, and clarity of
application is not gained by melding them together
There can be no doubt in this case that in asking, 'Well,
what is going to happen to me now?", respondent "initiated"
further conversation m the ordinary dictionary sense of that
word While we doubt that it would be desirable to build a
superstructure of legal refinements around the word "initi-
ate" in this context, there are undoubtedly situations where a
bare inquiry by either a defendant or by a police officer
should not be held to "initiate" any conversation or dialogue
There are some inquiries, such as a request for a drink of
water or a request to use a telephone, that are so routine that
they cannot be fairly said to represent a desire on the part of
an accused to open up a more generalized discussion relating
directly or indirectly to the investigation Such inquiries or
statements, by either an accused or a police officer, relating
to routine incidents of the custodial relationship, will not gen-
erally "initiate" a conversation in the sense in which that
word was used in Edwards
Although ambiguous, the respondent's question in this case
as to what was going to happen to him evinced a willingness
1046 OCTOBER TERM 1982
Opinion of RFHNQUIST, J 462 U S
and a desire for a genei ahzed discussion about the investiga-
tion, it was not mei ely a necebsa* y mquii y arising out of the
incidents of the custodial relationship It could reasonably
have been interpreted by the office* as relating generally to
the investigation That the police officer so understood it is
apparent from the fact that he immediately reminded the
accused that "[y]ou do not have to talk to me/' and only after
the accused told him that he "unclei stood" did they have a
generalized conversation 54 Oie App , at 951, 636 P 2d, at
1011—1012 On these factb we believe that there was not a
violation of the Edwatds iule
Since there was no violation of the Edivcnd^ rule in this
case, the next inquiry was "whether a valid waiver of the
right to counsel and the i ight to bilence had occuned, that is,
whether the purported waiver was knowing and intelligent
and found to be so undei the totality of the circumstances,
including the necessary fact that the accused, not the police,
reopened the dialogue with the authorities " Edwards v
Arizona, 451 U S , at 486, n 9 As we have said many
times before, this determination depends upon " 'the particu-
lar facts and circumstances surrounding [the] case, including
the background, experience, and conduct of the accused '"
North Carolina v Butley, 441 U S 369, 374-375 (1979)
(quoting Johnson v Zerfot, 304 U S 458, 464 (1938)) See
also Edwards v Arizona, supra, at 482-483
The state trial court made this inquiry and, in the words of
the Oregon Court of Appealb, "found that the police made no
threats, promises or inducements to talk, that defendant was
properly advised of his rights and understood them and that
within a short time after requesting an attorney he changed
his mind without any impropriety on the part of the police
The court held that the statements made to the polygraph ex-
aminer were voluntary and the result of a knowing waiver of
his right to remain silent " 54 Ore App , at 952, 636 P 2d,
at 1012
We have no reason to dispute these conclusions, based as
they are upon the trial court's firsthand observation of the
OREGON i BRADSHAW 1047
1039 POWELL, J , concurring in judgment
witnesses to the events in\ olved The judgment of the Ore-
gon Court of Appeals is therefore reversed, and the cause is
remanded for further proceedings
It is so ordered
JUSTICE POWELL, concurring m the judgment
The Court's recent decision in Edwards v Arizona, 451
U S 477 (1981), has resulted in disagreement as to whether
it announced a new per se rule l My hope had been that this
case would afford an opportunity to clarify the confusion
As evidenced by the differing readings of Edwards bj JUS-
TICES MARSHALL and REHNQUIST in their respectrve opin-
ions, my hope has not been fully realized JUSTICE MAR-
SHALL, and the three Justices who join his opinion, \vould
affirm the Oregon Court of Appeals because it "properly
applied Edwards " Post, at 1053 JUSTICE REHNQUIST,
and the three Justices who join him, would "conclude that the
Oregon Court of Appeals misapplied our decision in Edwards "
Ante, at 1043 In view of the disagreement here, it is not sur-
1 Compare Fields v Wynck, 682 F 2d 154, 158 (CAS) (Edwards "ere-
at[ed] a per se rule"), rev'd and remanded, 459 U S 42 (1982) (per
cunam), United States v Thwrman, 678 F 2d 1331, 1338 (CA9 1982)
(Wallace, J , dissenting) (reading Edwards as applying per se rule), State
v Willie, 410 So 2d 1019, 1028 (La 1982) (recognizing per se rule m
Edwards), State v McCloskey, 90 N J 18, 25, 446 A 2d 1201 1205 (1982)
("Edwards established a per se rule"), Giacomazzi v State, 633 P 2d 218,
226 (Alaska 1981) (Rabmowitz, C J , dissenting) (Edwards Court fash
loned a per se rule"), with Richardson \ State, 274 Ark 473, 477-478 625
S W 2d 504, 506-507 (1981) (applying "totality of the circumstances ' test
rather than per se rule), State v Acquin, 187 Conn 647, 671, 448 A 2d
163, 175 (1982) ("we do not read Edwards to prescribe a per se rule"),
Leuschner v State, 49 Md App 490, 497, 433 A 2d 1195, 1199 (1981)
(Edwards does not create per se rule), State v Scott, 626 S W 2d 25, 29
(Tenn Crim App 1981) (applying "totality of the circumstances" test
rather than per se rule) See also Wilson v Zant, 249 Ga 373, 376, 290
S E 2d 442, 446 ("[accepting that [Edwards] established a per se exclu-
sionary rule," but expressing reservation), cert denied, 459 U S
(1982) Leuschner, supra, at 497, 433 A 2d, at 1199 (recognizing
tamty whether Edwards created per se rule)
1048 OCTOBER TERM 1982
POWELL, J , concun ing in judgment 462 U S
prising that courts have differed as to whether Edwards
announced a per se rule, and if so what rule I joined the
judgment in Edwards because on the facts "it [was] clear
that Edwards [had been] taken from his cell against his will
and [improperly] subjected to lenewed interrogation " 451
U S , at 490 (opinion concurring in result) I did not join
the Court's opinion because I was "not sure what it mean[t] "
Id , at 488
The opinions today reflect the ambiguity of some of the
Edwards language, particularly on the meaning of "initia-
tion " JUSTICE MARSHALL reads Edwatds as requiring not
only that the accused initiate further communication, but also
that the communication be "about the subject matter of the
criminal investigation " Post, at 1053 (emphasis in orig-
inal) JUSTICE REHNQUIST, however, would require only
that the suspect "evinc[e] a willingness and a desire for a
generalized discussion about the investigation " Ante, at
1045-1046 This formulation would include an "initiation" of
conversation "in the ordinary dictionary sense" of the word,
ante, at 1045, excluding "inquiries that are so routine
that they cannot be fairly said to represent a desire to
open up a more generalized discussion relating directly or
indirectly to the investigation," ibid
Both Justices agree in one respect They view the "initia-
tion" question as the first step of a two-step analysis, the
second step being the application of the Zerbst standard that
requires examination of the "totality of the circumstances "
Johnson v Zerbst, 304 U S 458, 464 (1938) JUSTICE MAR-
SHALL puts it this way
"If an accused has himself initiated further communica-
tion with the police, it is still necessary to establish as a
separate matter the existence of a knowing and intelli-
gent waiver under Johnson v Zerbst " Post, at
1055, n 2
JUSTICE REHNQUIST'S opinion observes that the initiation
and the voluntarmess of the waiver under Zerbst "are sepa-
OREGON v BRADSHAW 1049
1039 POWELL, J , concurring in judgment
rate, and clarity of application is not gamed b\ melding them
together " Ante, at 1045
This bifurcating of the Zerbst standard is not compelled by
Edwards or any of our other cases The inquiry in Edivards
did focus on the reopening of communication with the accused
by the police — a reopening that properly uas held to be coer-
cive As there were no other significant facts or circum-
stances bearing upon the waiver question, there was no occa-
sion for the Court to consider whether a two-step analysis is
required in the more customary case ° An incarcerated per-
son, accused of crime, does not remain silent and speak only
when conversation is initiated by others, whether by fellow
prisoners, guards, or law enforcement officers Jail or
prison confinements prior to indictment or trial may extend
over days and weeks, and numerous conversations cus-
tomarily occur, often accompanied by collateral facts and
circumstances Rarely can a court properly focus on a par-
ticular conversation, and intelligently base a judgment on
the simplistic inquiry as to who spoke first
In this case, for example, Bradshaw's initiating ques-
tion ("what is going to happen to me now?") was not an iso-
lated event It was immediately followed by a renewal of
Miranda warnings and additional conversation The follow-
ing day there was farther conversation, a third reading of
Miranda rights, and finally Bradshaw's signing of a written
waiver of those rights Only then did he confess JUSTICE
MARSHALL would hold that there can be no waiver of the
right to counsel unless the accused himself opens a dialogue
"about the subject matter of the criminal investigation "
Post, at 1054, see also post, at 1053, 1055-1056 He states
that "unless the accused himself initiates further communica-
Perhaps what has caused some confusion is a failure to recognize that
the only new element in Edwards was the emphasis on the prosecution's
burden of proof in cases where — m the absence of relevant subsequent
facts — the critical question of waiver focuses on whether the initial commu
nication by the police was proper
1050 OCTOBER TERM 1982
POWELL J concunmg in judgment 462 U S
tion with the police, a valid waiver of the i ight to counsel can-
not be established " Post, at 1055, n 2 Under this view of
the two-step analysis, a court nevei gets to the second step —
however relevant subsequent facts and circumstances may be
to a waiver — unless the accused was the first to speak and to
say the right thing This is illustrated by the reasoning in
the dissenting opinion in this case Since JUSTICE MAR-
SHALL concludes that Bradshaw had not initiated the dia-
logue, he does not consider the subsequent facts and circum-
stances that weie found by the trial court to satisfy the
Zerbst standard JUSTICE REHNQUIST, however, moves
from the first to the second step to conclude that the facts
and circumstances, when viewed in their entirety, clearly es-
tablish a valid waiver of the right to counsel To this extent,
I agree with his plurality opinion
My concern is that a two-step analysis could confound the
confusion evident from the differing views expressed by
other courts, see n 1, supra, and indeed evidenced by the
conflicting reading of Edwatd<> by JUSTICES MARSHALL and
REHNQUIST { The Zerb^t standard is one that is widely un-
derstood and followed It also comports with common sense
Fragmenting the standard into a novel two-step analysis — if
followed literally — often would frustrate justice as well as
* We recently found it necessary to clai ify uncertainty that had resulted
from decisions of this Court that had undertaken, in P ourth Amendment
cases, to draw hnets that were too refined to be applied consistently Last
Term m United States v #06sT 456 U S 798 (1982), the Court considered
it necessary to "reject the precise holding" m Rabbins v California, 453
U S 420 (1981), and some of the language m Arkansas v Sanders, 442
U S 753 (1979) 456 U S , at 824 In my concurring opinion m Ross, I
said it was "essential to have a Court opinion that provides 'specific
guidance to police and courts in this i ecurrmg situation ' " Id , at 826
(quoting Robbing, supra, at 435 (POWELL, J , concurring in judgment))
The needed clarification and guidance were undertaken, successfully I
think, m JUSTICE STEVENS' opinion foi the Court If the opinions today,
when read together, do not provide reasonable clarification for law enforce-
ment officers and courts, we have a duty — one that I think is compelling —
to provide more specific guidance, much as we did in Ro&<$
OREGON i BRADSHAW 1051
1039 MARSHALL, J , dissenting
common sense 4 Courts should engage in more substantne
inquiries than "who said what first " The holding of the
Court in Edwards cannot in my \iew fairly be reduced to
this
We are unanimous in agreeing in this case, as in Eduards,
that "the right to counsel [is] a prime example of those rights
requiring the special protection of the knowing and intelli-
gent waiver standard " Edwards, 451 U S , at 483 We
also agree that once the accused has requested counsel this
right requires additional safeguards, particularly against anj
coercive form of custodial interrogation But the question of
whether a suspect has waived this important right to counsel
is uniquely one of fact, and usually must and should be left to
the judgment of the trial court that has had the benefit of
hearing the evidence and assessing the weight and credibility
of testimony In the circumstances of this case, I agree that
Bradshaw knowingly and intelligently waived his right to
counsel, and that the judgment below therefore should be
reversed
JUSTICE MARSHALL, with whom JUSTICE BRENNAN,
JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting
Because in my view the plurality has misapplied Edwards
v Arizona, 451 U S 477 (1981), I respectfully dissent
I
In Miranda v Arizona, 384 U S 436 (1966), this Court
recognized that "[ii]nless adequate protective devices are
employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can
truly be the product of his free choice " Id , at 458 Access
to counsel was held essential to secure the Fifth Amendment
privilege against self-incrmunation "If the individual states
4 1 therefore prefer to read JUSTICE REHNQUIST'S opinion merely as an
analytical framework that — except in a case like Edwards — ^ould not in-
hibit courts from a full examination of all relevant facts and circumstances
1052 OCTOBER TERM 1982
MARSHALL, J , dissenting 462 U S
that he wants an attorney, the interrogation must cease until
an attorney is present " Id , at 474 (emphasis added)
Miranda thus created a "rigid rule that an accused's request
for an attorney is pei se an invocation of his Fifth Amend-
ment rights, requn mg that all interrogation cease " Fare v
Michael C , 442 U S 707, 719 (1979)
The significance of the invocation of the right to counsel is
premised in part on a lawyer's "unique ability to protect the
Fifth Amendment rights of a client undergoing custodial in-
terrogation " Ibid As JUSTICE WHITE has written
"[T]he reasons to keep the lines of communication be-
tween the authorities and the accused open when the
accused has chosen to make his own decisions are not
present when he indicates instead that he wishes legal
advice with respect thereto The authorities may then
communicate with him through an attorney More to
the point, the accused having expressed his own view
that he is not competent to deal with the authorities
without legal advice, a later decision at the authorities'
insistence to make a statement without counsel's pres-
ence may properly be viewed with skepticism " Michi-
gan v Motley, 423 U S 96, 110, n 2 (1975) (concurring
m result)
Although an accused may waive his various Miranda
rights and submit to interrogation, the Court has recognized
that "additional safeguards are necessary when the accused
asks for counsel " Edwards v Arizona, 451 U S , at 484
Edwards held that a valid waiver of the right to counsel
cannot be established by showing only that the accused
responded to further police-initiated custodial interrogation,
even if he had again been advised of his rights Ibid An
accused who invokes his right to counsel is not subject to fur-
ther interrogation until counsel has been made available, "un-
less the accused himself initiates further communication, ex-
changes, or conversations with the police " Id , at 484-485
OREGON v BRADSHAW 1053
1039 MARSHALL, J , dissenting
To establish a waiver, it would thus be a "necessary fact that
the accused, not the police, reopened the dialogue with the
authorities " Id , at 486, n 9 (emphasis added)
In this case, respondent invoked his right to have counsel
during custodial interrogation Shortly thereafter, he asked
a police officer, "Well, what is going to happen to me now9"
The Oregon Court of Appeals concluded that respondent's
question was not "a waiver of his right to counsel, invoked
only minutes before, or anything other than a normal reac-
tion to being taken from the police station and placed m a
police car, obviously for transport to some destination " 54
Ore App 949, 953, 636 P 2d 1011, 1013 (1981) Relying on
Edwards, the Oregon court held that respondent had not ini-
tiated the subsequent interrogation
The Oregon Court of Appeals properly applied Edwards 1
When this Court in Edwards spoke of "initiating] further
communication" with the police and "reopen[mg] the dialogue
with the authorities," it obviously had in mind communication
or dialogue about the subject matter of the criminal inves-
tigation The rule announced in Edwards was designed to
ensure that any interrogation subsequent to an invocation of
the right to counsel be at the instance of the accused, not the
authorities 451 U S , at 485 Thus, a question or state-
1 In rebuking the Oregon Court of Appeals for failing to distinguish be-
tween the initiation of a conversation and a vahd waiver of the right to
counsel, ante, at 1044, the plurality is attacking a straw man Because it
concluded that respondent had not initiated any conversation, the Oregon
court never even undertook the distinct inquiry into the existence of a
knowing and intelligent waiver Edwards makes clear that, in the ab-
sence of "initiation" by an accused, there can be no vahd waiver regardless
of whatever else the accused may say or do 451 U S , at 484 Having
concluded that respondent did not initiate further conversation, the Oregon
court thus stated that there was no vahd waiver in this case This conclu-
sion is entirely consistent with Edwards Indeed, the Oregon court s deci-
sion contains lengthy quotations from Edwards Unless we are to assume
that the state court did not read the very portions of Edwards that it
quotes, the plurality's attack is completely unjustified
1054 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
ment which does not invite further interrogation before
an attorney is present cannot qualify as "initiation" under
Edwards To hold otherwise would drastically undermine
the safeguards that Miranda and Edwards carefully erected
around the right to counsel in the custodial setting
The safeguards identified in Edwaids hardly pose an insur-
mountable obstacle to an accubed who truly wishes to waive
his rights after invoking his right to counsel A waiver can
be established, however, only when the accused himself re-
opens the dialogue about the subject matter of the criminal
investigation Since our decision m Edwatd<>9 the lower
courts have had no difficulty in identifying such situations
See, e g , McCree v Housewiight, 689 F 2d 797 (CAS 1982)
(defendant initiated remterrogation by knocking on cell door
and telling police officer that he wanted to make a state-
ment), United States v Gordon, 655 F 2d 478 (CA2 1981)
(defendant reopened dialogue by expressing a desire to pro-
vide information about someone else who should also be ar-
rested), State v Brezee, 66 Haw 163, 657 P 2d 1044 (1983)
(defendant asked detective to come back to his cell and then
expressed desire to make a statement), Payne v State, 424
So 2d 722 (Ala Grim App 1982) (defendant asked for a
meeting with police at which statements were made), People
v Thomas, 98 111 App 3d 852, 424 N E 2d 985 (1981) (de-
fendant initiated further communication by inquiring about
accomplice's statements linking him to the crime), cert
denied, 456 U S 993 (1982), State v Pittman, 210 Neb
117, 313 N W 2d 252 (1981) (defendant initiated further
conversation by stating that he was being "railroaded" by his
codefendants) *
In his opinion concurring m the judgment, JUSTICE POWELL suggests
that there is confusion as to whether Edwards announced a per se rule
Ante, at 1047 In my view, Edwards unambiguoubly established such a
rule See 451 U S , at 484-486, and n 9 In any event, no confusion on
this point can remain after today's decision for eight Justices manifestly
agree
OREGON v BRADSHAW 1035
1039 MARSHALL, J , dissenting
II
I agree with the plurality that, in order to constitute "initi-
ation" under Edwards, an accused's inquiry must demon-
strate a desire to discuss the subject matter of the criminal
investigation Cf ante, at 1045 I am baffled, howe\er
at the plurality's application of that standard to the facts of
this case The plurality asserts that respondent's question,
"[W]hat is going to happen to me now?", evinced both "a will-
ingness and a desire for a generalized discussion about the in-
vestigation " Ante, at 1045-1046 If respondent's question
had been posed by Jean-Paul Sartre before a class of philos-
ophy students, it might well have evinced a desire for a "gen-
eralized" discussion But under the circumstances of this
case, it is plain that respondent's only "desire" was to find out
where the police were going to take him As the Oregon Court
of Appeals stated, respondent's query came only minutes after
his invocation of the right to counsel and was simply "a normal
reaction to being taken from the police station and placed in
a police car, obviously for transport to some destination "
54 Ore App , at 953, 636 P 2d, at 1013 3 On these facts, I
that Edwards did create a per se rule The plurality explicitly refers to
the "prophylactic rule" of Edwards Ante, at 1044 See also ante, at
1044-1045 (discussing the "Edwards rule") The rule is simply stated
unless the accused himself initiates further communication with the police
a valid waiver of the right to counsel cannot be established If an accused
has himself initiated further communication with the police, it is still neces
sary to establish as a separate matter the existence of a knowing and mtel
hgent waiver under Johnson v Zerbst, 304 U S 458, 464 (1938) The
only dispute between the plurality and the dissent in this case concerns the
meaning of "initiation" for purposes of Edwards' per se rule
3 The plurality seems to place some reliance on the police officer's re-
action to respondent's question The officer described his response as
follows
"I says, 'You do not have to talk to me You have requested an attorney
and I don't want you talking to me unless you so desire because anything
you say — because — since you have requested an attorney, you know, it has
to be at your own free will ' I says, 'I can't prevent you from talking, but
1056 OCTOBER TERM, 1982
MARSHALL, J , dissenting 462 U S
fail to see how respondent's question can be considered "initi-
ation" of a conversation about the subject matter of the
criminal investigation
To hold that respondent's question in this case opened a di-
alogue with the authorities flies in the face of the basic pur-
pose of the Miranda safeguards When someone in custody
asks, "What is going to happen to me now7", he is surely re-
sponding to his custodial surroundings The very essence of
custody is the loss of control over one's freedom of move-
ment The authorities exercise virtually unfettered control
over the accused To allow the authorities to recommence
an interrogation based on such a question is to permit them to
capitalize on the custodial setting Yet Miranda 's proce-
dural protections were adopted precisely m order "to dispel
the compulsion inherent in custodial surroundings " 384
U S , at 458
Accordingly, I dissent
you understand where your place — you know, where your standing is
here7' and he agreed He says 'I understand '"
As the officer's testimony indicates, respondent's statement was at best
ambiguous In any event, as the Oregon Court of Appeals noted, the offi-
cer clearly took advantage of respondent's inquiry to commence once again
his questioning — a practice squarely at odds with Edwards See 54 Ore
App , at 953, 636 P 2d, at 1013
REPORTER'S NOTE
The next page is purposely numbered 1101. The numbers between
and 1101 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.
ORDER-- FROM Jt \E h THRO! (,H
JUNE 2<»
JINE t>
\pptah D >•// -^i" if
\u 82-1212 GlLLO t McGlLL ET l\ 4.ppt-al fn»m
Cn Ct Fairfax C ount\ \a d^mi^ed for want of jurisdit-
tion Ti eating the papers w hereon the appeal was taken a>
a petition for \\rit of certioran certiorari denied THE
CHIEF JL STICK, JLSTICE REHNQLIST and JLSTK E 0 Cos.
NOR would award appellees damage*, pursuant tu this. Court -
Rule 49 2
Xo S2-166S ^OLNG i TOWN OF ATLANTIC BEACH
Appeal from Sup Ct N C dibmissed for v» ant of substantial
federal question Reported below 307 N C 422 29b b E
2d teb
Ctttiuitu i Granted—Vacated and R€» andt <1
No bl-1249 EIDE ET L\ t SEGLIN C A 9th Cir
Certiorari granted, judgment vacated and ease remanded
for further consideration in light of rtntfd State* \ $<* <*ji>,
4bl U S 555(1983) Reported below 645 F 2d 804
Xo 82-452 UNITED STATES i VON NELMANN C \
9th Cir Certiorari granted judgment \acated and ea*e
lemanded for further consideration m light of Unittd States
\ ^ A J«, 461 U S 555(1983) Reported below bfoU F 2d
1319
Xo 82-1113 DLNCANSON-HARRELSON Co ET \L t
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PRO-
GRAMS DEPARTMENT OF LABOR, ET AL C A 9th Cir
Certiorari granted, judgment \aeated, and case remanded
for further consideration in light of Momson-Knudsen
Construction Co v Director, OWCP, 461 U S 624 (1983)
Reported below 686 F 2d 1336
1101
1102 OCTOBER TERM, 1982
June 6, 1983 462 U S
Certioran Granted — Reversed (See No 82-1408, ante,
p HI)
Miscellaneous Orders
No A-910 WASSALL v RYAN, JUDGE, CIRCUIT COURT
OF THE CITY OF ST Louis, ET AL C A 8th Cir Applica-
tion for stay, addressed to JUSTICE STEVENS and referred to
the Court, denied
No A-949 CHRISTINO v UNITED STATES D C C D
Cal Application for stay or bail, addressed to JUSTICE
POWELL and referred to the Court, denied
No D-318 IN RE DISBARMENT OF KOPS Disbarment
entered [For earlier order herein, see 460 U S 1008 ]
No D-321 IN RE DISBARMENT OF FRIEDLAND Disbar-
ment entered [For earlier order herein, see 460 U S
1009 ]
No D-323 IN RE DISBARMENT OF SHERMAN Disbar-
ment entered [For earlier order herein, see 460 U S
1009]
No D-331 IN RE DISBARMENT OF BISHOP Disbarment
entered [For earlier order herein, see 460 U S 1065 ]
No D-351 IN RE DISBARMENT OF HOFF It is ordered
that Vera L Hoff, of San Jose, Cal , be suspended from the
practice of law in this Court and that a rule issue, returnable
within 40 days, requiring her to show cause why she should
not be disbarred from the practice of law in this Court
No D-352 IN RE DISBARMENT OF ROSENBERG It is
ordered that Theodore Rosenberg, of Brooklyn, N Y , be
suspended from the practice of law in this Court and that a
rule issue, returnable within 40 days, requiring him to show
cause why he should not be disbarred from the practice of law
m this Court
ORDERS
462 L S June 6 1983
No D-353 IN RE DISBARMENT OF GREENE It ^ or-
deied that Raymond T Greene, of Coconut Grove, Fla be
suspended from the practice of la\\ m this Court and that a
rule issue, returnable within 40 da\s, requiring him to j^htm
cause why he should not be disbarred from the practice of lavt
in this Court
No D-354 IN RE DISBARMENT OF CONNOLIA It i> or-
dered that Robert John Connolly , of East Meadow , N \ , be
suspended from the practice of la\\ in this Court and that a
rule issue, returnable within 40 dajsf requiring him to b
cause \vhy he should not be disbarred from the practice
in this Court
No D-355 IN RE DISBARMENT OF GELB It is ordered
that Joseph Gelb, of Hewlett Bay Park, N Y , be suspended
from the practice of la\\ in this Court and that a rule issue,
returnable within 40 days, requiring him to sho1^ cause uh>
he should not be disbarred from the practice of lav^ in this
Court
No D-356 IN RE DISBARMENT OF GORDON It is or-
dered that James Allen Gordon, Jr , of Los Angeles, Cal , be
suspended from the practice of law in this Court and that a
rule issue, returnable within 40 da>s, requiring him to sho^
cause why he should not be disbarred from the practice of la\v
in this Court
No D-357 IN RE DISBARMENT OF HARTHLN It is or-
dered that Carl Louis Harthun, of Denver, Colo , be sus-
pended from the practice of la\* in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause
why he should not be disbarred from the practice of law in
this Court
No D-358 IN RE DISBARMENT OF SHEEHAN It is or-
dered that John Vincent Sheehan, of New York, N Y , be
suspended from the practice of law in this Court and that a
rule issue, returnable within 40 days, requiring him to show
1104 OCTOBER TERM, 1982
June 6 1983 462 U S
cause why he should not be disbarred from the practice of law
in this Court
No D-359 IN RE DISBARMENT OF McCoMB It is or-
dered that Henry G McComb, of Buffalo, N Y , be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause
why he should not be disbarred from the practice of law in
this Court
No 81-2245 NEVADA v UNITED STATES ET AL ,
No 81-2276 TRUCKEE-CARSON IRRIGATION DISTRICT v
UNITED STATES ET AL , and
No 82-38 PYRAMID LAKE PAIUTE TRIBE OF INDIANS v
TRUCKEE-CARSON IRRIGATION DISTRICT ET AL C A 9th
Cir [Certiorari granted, 459 U S 904 ] Motion of peti-
tioners in No 82-38 for leave to file a supplemental memo-
randum after argument granted
No 82-898 MINNESOTA STATE BOARD FOR COMMUNITY
COLLEGES v KNIGHT ET AL , and
No 82-977 MINNESOTA COMMUNITY COLLEGE FAC-
ULTY ASSN ET AL v KNIGHT ET AL DC Minn [Proba-
ble jurisdiction noted, 460 U S 1050 ] Motion of appellants
in No 82-977 to expand the record and enlarge the questions
presented for review granted
No 82-1256 LYNCH, MAYOR OF PAWTUCKET, ET AL v
DONNELLY ET AL C A 1st Cir [Certiorari granted, 460
U S 1080 ] Motion of Anne Neamon for leave to proceed
pro se for the purpose of filing a brief as amicus cunae
denied
No 82-1678 FULTON ET AL v PLUMBERS &
STEAMFITTERS, LOCAL 598, ET AL C A 9th Cir The So-
licitor General is invited to file a brief in this case expressing
the views of the United States
ORDERS H05
462 U S June 6, 1983
No 82-1669 IN RE WRIGHT Petition for writ of prohi-
bition denied
Probable Jurisdiction Noted
No 82-1684 DONOVAN, SECRETARY OF LABOR, ET AL
v LONE STEER, INC Appeal from D C N D Probable
jurisdiction noted Reported below 565 F Supp 229
Certioran Granted
No 82-206 FIREFIGHTERS LOCAL UNION No 1784 v
STOTTS ET AL , and
No 82-229 MEMPHIS FIRE DEPARTMENT ET AL v
STOTTS ET AL C A 6th Cir Certioran granted, cases
consolidated, and a total of one hour allotted for oral argu-
ment Reported below 679 F 2d 541
No 82-1554 STRICKLAND, SUPERINTENDENT, FLORIDA
STATE PRISON, ET AL v WASHINGTON C A llth Cir
Motion of respondent for leave to proceed in forma pauperis
and certioran granted Reported below 693 F 2d 1243
Certioran Denied (See also No 82-1212, supra )
No 81-1637 ERNESTO ZARAGOZA Y v UNITED STATES
ET AL C A 6th Cir Certioran denied Reported below
667 F 2d502
No 82-583 HETTLEMAN, SECRETARY, DEPARTMENT
OF HUMAN RESOURCES, ET AL v BLOCK, SECRETARY OF
AGRICULTURE, ET AL C A 4th Cir Certioran denied
Reported below 685 F 2d 430
No 82-1231 BROOKS ET AL v WALKER COUNTY HOSPI-
TAL DISTRICT ET AL C A 5th Cir Certioran denied
Reported below 688 F 2d 334
No 82-1413 WOLKENSTEIN ET AL V REVILLE ET AL
C A 2d Cir Certioran denied Reported below 694 F
2d35
1106 OCTOBER TERM, 1982
June 6, 1983 462 U S
No 82-1428 DAIRYMEN, INC v FEDERAL TRADE COM-
MISSION ET AL C A 6th Cir Certiorari denied Re-
ported below 684 F 2d 376
No 82-1431 CLARKE v SOUTH CAROLINA Sup Ct
S C Certiorari denied
No 82-1434 NEW YORK v KNAPP Ct App N Y
Certiorari denied Reported below 57 N Y 2d 161, 441
N E 2d 1057
No 82-1442 WILLIAMS v UNITED STATES C A 6th
Cir Certiorari denied Reported below 708 F 2d 730
No 82-1446 LIFETIME COMMUNITIES, INC v ADMINIS-
TRATIVE OFFICE OF THE UNITED STATES COURTS C A
2d Cir Certiorari denied Reported below 690 F 2d 35
No 82-1461 JONES v UNITED STATES C A 7th Cir
Certiorari denied Reported below 696 F 2d 479
No 82-1508 AMERICAN DENTAL ASSN ET AL v
MYERS C A 3d Cir Certiorari denied Reported
below 695 F 2d 716
No 82-1524 BROUNTAS ET ux v COMMISSIONER OF
INTERNAL REVENUE C A 1st Cir Certiorari denied
Reported below 692 F 2d 152
No 82-1525 CRC CORP v COMMISSIONER OF INTER-
NAL REVENUE C A 3d Cir Certiorari denied Re-
ported below 693 F 2d 281
No 82-1528 TISDALE v DIRECTOR, OFFICE OF WORK-
ERS' COMPENSATION PROGRAMS, U S DEPARTMENT OF
LABOR, ET AL C A 9th Cir Certiorari denied Re-
ported below 698 F 2d 1233
No 82-1536 LITTON SYSTEMS, INC v CHASTAIN, AD-
MINISTRATOR OF THE ESTATE OF CHASTAIN C A 4th Cir
Certiorari denied Reported below 694 F 2d 957
No 82-1656 MCKENDRICK^ PENNSYLVANIA Sup Ct
Pa Certiorari denied Reported below 499 Pa 320, 453
A 2d328
ORDERS 1107
462 U S June 6, 1983
No 82-1658 PUBLIC SERVICE COMMISSION OF THE DIS-
TRICT OF COLUMBIA v WASHINGTON GAS LIGHT Co ET AL
Ct App D C Certioran denied Reported below 452 A
2d375
No 82-1660 BEAVER v GRIGGS, WARDEN C A 9th
Cir Certioran denied Reported below 698 F 2d 1228
No 82-1661 WARD v WARD Ct App Okla Certio-
ran denied
No 82-1662 WOOLRIDGE v REVELL C A 6th Cir
Certioran denied Reported below 708 F 2d 731
No 82-1672 USM CORP v SPS TECHNOLOGIES, INC
C A 7th Cir Certioran denied Reported below 694 F
2d505
No 82-1673 BRODIE ET AL v BOARD OF MEDICAL
EXAMINERS FOR THE STATE OF NEW JERSEY C A 3d
Cir Certiorari denied Reported below 707 F 2d 1389
No 82-1677 DROLET v VAN LINDT, CHAIRMAN, NEW
YORK STATE RACING AND WAGERING BOARD, DIVISION OF
HARNESS RACING, ET AL App Div , Sup Ct N Y , 1st
Jud Dept Certiorari denied Reported below 92 App
Div 2d 751, 459 N Y S 2d 341
No 82-1681 BIO/BASICS INTERNATIONAL CORP v
ORTHO PHARMACEUTICAL CORP C A 2d Cir Certiorari
denied Reported below 718 F 2d 1084
No 82-1709 WAGSHAL v MASSACHUSETTS ET AL
C A D C Cir Certiorari denied Reported below 225
U S App D C 51, 696 F 2d 133
No 82-1716 GROSSMAN v FOLEY, JUDGE, UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF NEVADA
C A 9th Cir Certiorari denied
No 82-1730 VOGEL v ALABAMA Sup Ct Ala Cer-
tiorari denied Reported below 426 So 2d 882
1108 OCTOBER TERM, 1982
June 6, 1983 462 U S
No 82-1743 MOONEY v LOUISIANA Sup Ct La
Certioran denied Reported below 426 So 2d 188
No 82-1753 HUSTLER MAGAZINE, INC , ET AL v EAST-
MAN KODAK Co C A 9th Cir Certioran denied Re-
ported below 692 F 2d 763
No 82-1791 MONT v UNITED STATES, and
No 82-6696 THOMAS v UNITED STATES C A 2d Cir
Certioran denied Reported below 702 F 2d 351
No 82-1796 SIMPSON v UNITED STATES C A 8th
Cir Certiorari denied Reported below 709 F 2d 17
No 82-1801 PEREZ v UNITED STATES C A 2d Cir
Certiorari denied Reported below 702 F 2d 33
No 82-1813 IMPROTO v UNITED STATES C A 3d
Cir Certiorari denied Reported below 707 F 2d 1396
No 82-1819 ARDT v UNITED STATES C A 7th Cir
Certiorari denied Reported below 698 F 2d 1226
No 82-5683 WILLIAMS v TEXAS Ct Cnm App Tex
Certiorari denied Reported below 637 S W 2d 943
No 82-6052 MADDICKS v NEW YORK Ct App N Y
Certiorari denied Reported below 57 N Y 2d 960, 443
N E 2d958
No 82-6163 ADAMS v WAINWRIGHT, SECRETARY, DE-
PARTMENT OF CORRECTIONS Sup Ct Fla Certiorari
denied Reported below 426 So 2d 25
No 82-6241 SHUMAN v UNITED STATES C A 9th
Cir Certioran denied Reported below 692 F 2d 766
No 82-6250 MEDINA-MARTINEZ v UNITED STATES
C A 9th Cir Certiorari denied Reported below 698 F
2d 1234
No 82-6321 ALEXANDER v UNITED STATES C A
9th Cir Certiorari denied Reported below 695 F 2d398
ORDERS 1109
462 U S June 6, 1983
No 82-6525 MCAFEE v CALIFORNIA Ct App Cal ,
1st App Dist Certiorari denied
No 82-6534 DUVALLON v FLORIDA C A llth Cir
Certiorari denied Reported below 694 F 2d 725
No 82-6535 MAHO v UNITED STATES, and
No 82-6536 YELLOWMAN v UNITED STATES C A
9th Cir Certiorari denied Reported below 698 F 2d
1234
No 82-6539 SCHARNHORST v INDEPENDENT SCHOOL
DISTRICT #710 C A 8th Cir Certiorari denied Re-
ported below 686 F 2d 637
No 82-6541 LARSON v WASHINGTON ET AL C A 9th
Cir Certiorari denied
No 82-6543 ATKINS?; INDIANA Ct App Ind Cer-
tiorari denied Reported below 437 N E 2d 114
No 82-6546 LINDSEY v BUFORD, JUDGE, CIRCUIT
COURT, CARTER COUNTY, ET AL Sup Ct Mo Certiorari
denied
No 82-6551 WILLIAMS v COLAVITO, WARDEN C A
2d Cir Certiorari denied
No 82-6553 KIBERT v BLANKENSHIP, WARDEN,
BLAND CORRECTIONAL CENTER C A 4th Cir Certiorari
denied Reported below 701 F 2d 165
No 82-6554 LIN v NEW YORK CITY DEPARTMENT OF
CULTURAL AFFAIRS ET AL C A 2d Cir Certiorari de-
nied Reported below 714 F 2d 114
No 82-6557 KOURKENE v TAVLIAN ET AL Sup Ct
Cal Certiorari denied
No 82-6559 MINTZ v PITCHESS, SHERIFF OF Los AN-
GELES COUNTY, ET AL C A 9th Cir Certiorari denied
Reported below 701 F 2d 185
1110 OCTOBER TERM, 1982
June 6, 1983 462 U S
No 82-6568 DENBY v TEXAS Ct Grim App Tex
Certiorari denied
No 82-6573 WASKO v PULLEY, WARDEN C A 9th
Cir Certiorari denied
No 82-6576 MEZHBEIN v CALIFORNIA Ct App Gal ,
1st App Dist Certiorari denied
No 82-6581 EVANS v ALABAMA Sup Ct Ala Cer-
tiorari denied Reported below 432 So 2d 463
No 82-6588 FORD v KENTUCKY Sup Ct Ky Cer-
tiorari denied
No 82-6659 HARDING v UNITED STATES C A 4th
Cir Certiorari denied Reported below 705 F 2d 446
No 82-6674 MURPHY v UNITED STATES C A 7th
Cir Certiorari denied Reported below 703 F 2d 572
No 82-6679 JONES v UNITED STATES C A llth Cir
Certiorari denied Reported below 703 F 2d 580
No 82-6688 BERGER v UNITED STATES C A 6th
Cir Certiorari denied Reported below 709 F 2d 1511
No 82-6689 SPELLMAN v RIDLEY, ADMINISTRATOR,
LORTON YOUTH CENTER Ct App D C Certiorari
denied
No 82-6691 PAYTON v U S PATENT AND TRADEMARK
OFFICE C A D C Cir Certiorari denied
No 82-6693 BRIGGS v UNITED STATES C A 7th Cir
Certiorari denied Reported below 700 F 2d 408
No 82-6694 Cox v UNITED STATES C A 6th Cir
Certiorari denied Reported below 709 F 2d 1510
No 82-1369 WESTERN COAL TRAFFIC LEAGUE ET AL
v UNITED STATES ET AL C A 3d Cir Motion of Con-
sumer Owned Power Coalition for leave to file a brief as ami-
ORDERS mi
462 U S June 6, 1983
cus cunae granted Certiorari denied JUSTICE POWELL
took no part in the consideration or decision of this motion
and this petition Reported below 691 F 2d 1104
No 82-1527 ASSOCIATED PRESS v BUFALINO C A
2d Cir Motion of New York Times Co et al for leave to file
a brief as amici cunae granted Certiorari denied JUS-
TICE BRENNAN and JUSTICE WHITE would grant certiorari
Reported below 692 F 2d 266
No 82-1593 WARDEN, MARYLAND PENITENTIARY v
ANDERSON C A 4th Cir Motion of respondent for leave
to proceed in forma paupens granted Certiorari denied
Reported below 696 F 2d 296
No 82-1680 MICHIGAN v ANTHONY Ct App Mich
Motion of respondent for leave to proceed in forma paupens
granted Certiorari denied Reported below 120 Mich
App 207, 327 N W 2d 441
No 82-1657 CITY OF ALLEN PARK v ECORSE POLLU-
TION ABATEMENT DRAIN No 2 DRAINAGE DISTRICT ET AL
C A 6th Cir Motion of Greenfield Construction Co , Inc ,
et al for leave to file a brief as amici cunae granted Cer-
tiorari denied Reported below 708 F 2d 722
No 82-1700 CASH ET AL v CITY OF LITTLE ROCK, AR-
KANSAS Sup Ct Ark Motion of Pulaski County Tax Pay-
ers Council, Inc , for leave to file a brief as amicus cunae
granted Certiorari denied JUSTICE BLACKMUN took no
part m the consideration or decision of this motion and this
petition Reported below 277 Ark 494, 644 S W 2d 229
No 82-6208 GREEN v WHITE, SUPERINTENDENT, MIS-
SOURI TRAINING CENTER FOR MEN C A 8th Cir The
order heretofore entered on April 4, 1983 [460 U S 1067], is
vacated and leave to proceed in forma paupens is granted
Certiorari denied Reported below 693 F 2d 45
1112 OCTOBER TERM, 1982
June 6, 1983 462 U S
No 82-6424 GARCIA v NEW MEXICO Sup Ct N M ,
No 82-6466 Ruiz v ILLINOIS Sup Ct 111 , and
No 82-6579 TURNER v MORRIS, SUPERINTENDENT,
MECKLENBURG CORRECTIONAL CENTER Sup Ct Va
Certiorari denied Reported below No 82-6424, 99 N M
771, 664 P 2d 969, No 82-6466, 94 111 2d 245, 447 N E 2d
148
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting
Adhering to our views that the death penalty is m all
circumstances cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments, Gregg v Georgia,
428 U S 153, 227, 231 (1976), we would grant certioran and
vacate the death sentences in these cases
No 82-6686 (A-955) CHANEY v OKLAHOMA Ct Grim
App Okla Application for stay of execution of sentence
of death, presented to JUSTICE WHITE, and by him referred
to the Court, denied JUSTICE BRENNAN would grant the
application Certiorari denied
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting
Adhering to our views that the death penalty is in all
circumstances cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments, Gregg v Georgia,
428 U S 153, 227, 231 (1976), we would grant certioran and
vacate the death sentence in this case
Rehearing Denied
No 81-1120 UNITED STATES ET AL v RYLANDER ET
AL , 460 U S 752,
No 82-1429 TROUT v LEHMAN, SECRETARY OF THE
NAVY, ET AL , 460 U S 1085,
No 82-1467 FROST v UNITED STATES, 460 U S 1070,
No 82-1550 MASON ET AL v PANAMA CANAL Co ET
AL , 460 U S 1086, and
No 82-6210 BURDEN v GEORGIA, 460 U S 1103 Pe-
titions for rehearing denied
ORDERS 1113
462 U S June 6, 13, 1983
No 82-6232 HEREFORD v BRITTAIN, 460 U S 1089
No 82-6249 VELILLA v UTC/HAMILTON STANDARD
DIVISION ET AL , 460 U S 1076,
No 82-6314 THOMPSONS WOODS ET AL , 461 U S 907,
No 82-6431 WHAM v UNITED STATES, 460 U S 1093,
and
No 82-6438 WADE v UNITED STATES, 461 U S 909
Petitions for rehearing denied
No 82-277 SCHWIMMER, DBA SUPERSONIC ELECTRON-
ICS Co v SONY CORPORATION OF AMERICA, 459 U S 1007
and 1189 Motion for leave to file second petition for rehear-
ing denied
No 82-1419 HAYES v SUPREME COURT JUSTICES OF
NEVADA, 460 U S 1085 Petition for rehearing and for
other relief denied
JUNE 13, 1983
Appeals Dismissed
No 82-1701 SCHULZ v ROCKWELL MANUFACTURING
Co Appeal from App Ct 111 , 2d Dist , dismissed for want
of jurisdiction Treating the papers whereon the appeal was
taken as a petition for writ of certiorari, certiorari denied
Reported below 108 111 App 3d 113, 438 N E 2d 1230
No 82-6587 BOYDEN v CALIFORNIA Appeal from Ct
App Cal , 2d App Dist , dismissed for want of jurisdiction
Treating the papers whereon the appeal was taken as a peti-
tion for writ of certiorari, certiorari denied
No 82-1708 JOHNSONS TEXAS Appeal from Ct App
Tex , 2d Sup Jud Dist , dismissed for want of substantial
federal question
No 82-1714 ANGEL ET AL v RENN ET AL Appeal
from Ct App Cal , 4th App Dist , dismissed for want of
substantial federal question
No 82-1727 RICKMAN v GEORGIA Appeal from Ct
App Ga dismissed for want of substantial federal question
Reported below 164 Ga App 366, 296 S E 2d 726
1114 OCTOBER TERM, 1982
June 13, 1983 462 U S
Certiorari Granted — Vacated and Remanded
No 82-56 SIMMONS ET AL v SEA-LAND SERVICES,
INC , ET AL C A 4th Cir Petition for rehearing granted
The order entered October 12, 1982 [459 U S 931], denying
the petition for writ of certiorari is vacated Certioran is
granted, the judgment is vacated, and the case is remanded
for further consideration in light of Pallas Shipping Agency,
Ltd v Duns, 461 U S 529 (1983)
Miscellaneous Orders
No D-360 IN RE DISBARMENT OF TABENKEN It is
ordered that Harry A Tabenken, of Bangor, Me , be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause
why he should not be disbarred from the practice of law in
this Court
No D-361 IN RE DISBARMENT OF MOORE It is or-
dered that John Wright Moore III, of Houston, Tex , be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause
why he should not be disbarred from the practice of law in
this Court
No D-362 IN RE DISBARMENT OF CRANE It is or-
dered that Arnold Herman Crane, of Chicago, 111 , be sus-
pended from the practice of law in this Court and that a rule
issue, returnable within 40 days, requiring him to show cause
why he should not be disbarred from the practice of law in
this Court
No 94, Ong SOUTH CAROLINA v REGAN, SECRETARY
OF THE TREASURY Motion for preliminary injunction de-
nied Motion for leave to file a bill of complaint set for oral
argument in due course
No 81-469 BUSH v LUCAS C A 5th Cir [Certiorari
granted, 458 U S 1104] Motion of respondent for leave to
file a supplemental brief after argument granted
ORDERS 1115
462 U S June 13, 1983
No 81-2110 UNITED BUILDING & CONSTRUCTION
TRADES COUNCIL OF CAMDEN COUNTY AND VICINITY v
MAYOR AND COUNCIL OF THE CITY OF CAMDEN ET AL Sup
Ct N J [Probable jurisdiction noted, 460 U S 1021 ]
Motion of New England Legal Foundation for leave to file a
brief as amicus cunae granted
No 81-2332 NORFOLK REDEVELOPMENT AND HOUSING
AUTHORITY v CHESAPEAKE & POTOMAC TELEPHONE COM-
PANY OF VIRGINIA ET AL C A 4th Cir [Certiorari
granted, 459 U S 1145 ] Motion of the Solicitor General for
divided argument granted JUSTICE POWELL took no part in
the consideration or decision of this motion
No 82-585 ALOHA AIRLINES, INC v DIRECTOR OF
TAXATION OF HAWAII, and
No 82-586 HAWAIIAN AIRLINES, INC v DIRECTOR OF
TAXATION OF HAWAII Sup Ct Haw [Probable jurisdic-
tion noted, 459 U S 1101 ] Motion of Multistate Tax Com-
mission et al for leave to file a brief as amici cunae granted
No 82-818 NATIONAL LABOR RELATIONS BOARD v
BlLDISCO & BlLDISCO, DEBTOR-lN-POSSESSION, ET AL , and
No 82-852 LOCAL 408, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA v NATIONAL LABOR RELATIONS BOARD
ET AL C A 3d Cir [Certiorari granted, 459 U S 1145 ]
Motion of American Federation of Labor and Congress of
Industrial Organizations for leave to file a brief as amicus
cunae granted Motion of the Solicitor General for divided
argument granted, and a total of 15 minutes allotted for oral
argument Motion of petitioner in No 82-852 for divided ar-
gument granted, and a total of 15 minutes allotted for oral ar-
gument Request of petitioner in No 82-852 for additional
time for oral argument denied
No 82-862 CONSOLIDATED RAIL CORPORATION v DAR-
RONE, ADMINISTRATRIX OF THE ESTATE OF LESTRANGB.
1116 OCTOBER TERM, 1982
June 13, 1983 462 U S
C A 3d Cir [Certiorari granted sub nom Consolidated
Rail Corp v LeStrange, 459 U S 1199 ] Motion of the
Solicitor General for leave to participate in oral argument
as amicus cunae and for divided argument granted
No 82-940 HISHON v KING & SPALDING C A llth
Cir [Certiorari granted, 459 U S 1169 ] Motion of the
Solicitor General for leave to participate in oral argument as
amicus cunae and for divided argument granted
No 82-1031 JEFFERSON PARISH HOSPITAL DISTRICT
No 2 ET AL v HYDE C A 5th Cir [Certiorari granted,
460 U S 1021 ] Motion of the Solicitor General for leave to
participate m oral argument as amicus cunae and for divided
argument granted
No 82-914 MONSANTO Co v SPRAY-RITE SERVICE
CORP C A 7th Cir [Certiorari granted, 460 U S 1010 ]
Motion of the Solicitor General for leave to participate in oral
argument as amicus cunae and for divided argument
granted to be divided as follows Counsel for petitioner, 20
minutes, the Solicitor General, 10 minutes JUSTICE WHITE
took no part in the consideration or decision of this motion
No 82-1041 DlCKMAN ET AL v COMMISSIONER OF IN-
TERNAL REVENUE C A llth Cir [Certiorari granted,
459 U S 1199 ] Motion of petitioners for divided argument
denied
No 82-1608 SOUTH-CENTRAL TIMBER DEVELOPMENT,
INC v LERESCHE, COMMISSIONER, DEPARTMENT OF NATU-
RAL RESOURCES OF ALASKA, ET AL C A 9th Cir The
Solicitor General is invited to file a brief in this case express-
ing the views of the United States
No 82-5934 GARCIA v UNITED STATES C A 5th Cir
Motion of petitioner for leave to proceed in forma paupens
denied Petitioner is allowed until July 5, 1983, within
which to pay the docketing fee required by Rule 45(a) and to
ORDERS 1117
462 U S June 13, 1983
submit a petition in compliance with Rule 33 of the Rules
of this Court THE CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR would award respondent damages
pursuant to Rule 49 2
No 82-6145 TATUM v REGENTS OF THE UNIVERSITY OF
NEBRASKA-LINCOLN ET AL , 460 U S 1048 Motion of re-
spondents for damages granted, and damages are awarded to
respondents in the amount of $500 pursuant to this Court's
Rule 49 2 In all other respects, the motion is denied JUS-
TICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS
would deny the motion JUSTICE BLACKMUN took no part in
the consideration or decision of this motion
No 82-6193 ESCOFIL v PENNSYLVANIA Sup Ct Pa
Motion of appellant for leave to proceed in forma paupens
denied Appellant is allowed until July 5, 1983, within which
to pay the docketing fee required by Rule 45(a) and to submit
a jurisdictional statement in compliance with Rule 33 of the
Rules of this Court JUSTICE REHNQUIST and JUSTICE
O'CONNOR would award appellee damages pursuant to Rule
492
No 82-6502 IN RE RUSH Motion of petitioner for leave
to proceed in forma paupens denied Petitioner is allowed
until July 5, 1983, within which to pay the docketing fee re-
quired by Rule 45(a) and to submit a petition in compliance
with Rule 33 of the Rules of this Court THE CHIEF JUS-
TICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR would
award respondents damages pursuant to Rule 49 2
No 82-6728 IN RE GREEN Petition for writ of habeas
corpus denied
No 82-6584 IN RE WEIGANG,
No 82-6598 IN RE GREEN, and
No 82-6662 IN RE KAGELER ET AL Petitions for writs
of mandamus denied
1118 OCTOBER TERM, 1982
June 13, 1983 462 U S
Certiorari Granted
No 82-1186 TRANS WORLD AIRLINES, INC v FRANK-
LIN MINT CORP ET AL , and
No 82-1465 FRANKLIN MINT CORP ET AL v TRANS
WORLD AIRLINES, INC C A 2d Cir Motion of Interna-
tional Air Transport Association et al for leave to intervene
in No 82-1186 denied Alternative request to treat the
brief as a brief amici cumae granted Certioran granted,
cases consolidated, and a total of one hour allotted for oral
argument Reported below 690 F 2d 303
Certioram Denied (See also Nos 82-1701 and 82-6587,
supra )
No 82-1217 MATANKY ET AL v UNITED STATES ET AL
Ct Cl Certioran denied Reported below 231 Ct Cl 1000
No 82-1282 EDDY ET AL v HESS, ADMINISTRATRIX OF
THE ESTATE OF MILANO, ET AL , and
No 82-1423 BRITTON, COMMISSIONER OF BOARD OF
CORRECTIONS OF ALABAMA v HESS, ADMINISTRATRIX OF
THE ESTATE OF MILANO, ET AL C A llth Cir Certio-
ran denied Reported below 689 F 2d 977
No 82-1377 McKAY v UNITED STATES C A Fed
Cir Certioran denied Reported below 703 F 2d 584
No 82-1427 ADAMS ET AL v UNITED STATES C A
9th Cir Certioran denied Reported below 694 F 2d200
No 82-1443 LOMBARD ET AL v UNITED STATES ET AL
C A D C Cir Certioran denied Reported below 223
U S App D C 102, 690 F 2d 215
No 82-1455 ELLISON v KANE COUNTY SHERIFF'S OF-
FICE MERIT COMMISSION ET AL App Ct 111 , 2d Dist
Certioran denied Reported below 108 111 App 3d 1065,
440 N E 2d331
No 82-1464 NOBEL v UNITED STATES C A 3d Cir
Certiorari denied Reported below 696 F 2d 231
ORDERS 1119
462 U S June 13, 1983
No 82-1472 KENT v UNITED STATES C A llth Cir
Certiorari denied Reported below 691 F 2d 1376
No 82-1482 MYRON v TRUST COMPANY BANK LONG-
TERM DISABILITY BENEFIT PLAN ET AL C A llth Cir
Certiorari denied Reported below 691 F 2d 510
No 82-1531 BANK OF NOVA SCOTIA v UNITED STATES
C A llth Cir Certiorari denied Reported below 691 F
2d 1384
No 82-1595 PECORA v UNITED STATES C A 5th
Cir Certiorari denied Reported below 693 F 2d 421
No 82-1597 ELLIS v GEORGIA Ct App Ga Certio-
rari denied Reported below 164 Ga App 366,2968 E 2d
726
No 82-1614 BLAZER CORP v NEW JERSEY SPORTS
AND EXPOSITION AUTHORITY ET AL C A 3d Cir Certio-
rari denied Reported below 707 F 2d 1388
No 82-1654 MARSHALL ET AL v DOE, ON BEHALF OF
DOE, A MINOR C A 5th Cir Certiorari denied Re-
ported below 694 F 2d 1038
No 82-1671 ITT CONTINENTAL BAKING Co , INC ,
HOSTESS CAKE DIVISION v BAKERY SALESMEN, DRIVERS,
WAREHOUSEMEN & HELPERS, LOCAL UNION No 51 C A
6th Cir Certiorari denied Reported below 692 F 2d 29
No 82-1686 KALARIS, ADMINISTRATIVE APPEALS
JUDGE, ET AL v DONOVAN, SECRETARY OF LABOR, ET AL
C A D C Cir Certiorari denied Reported below 225
U S App D C 134, 697 F 2d 376
No 82-1694 COLLIS^ UNITED STATES C A 6th Cir
Certiorari denied Reported below 699 F 2d 832
No 82-1696 RASKY v CITY OF CHICAGO ET AL C A
7th Cir Certiorari denied Reported below 696 F 2d 997
1120 OCTOBER TERM, 1982
June 13, 1983 462 U S
No 82-1697 BOARD OF TRUSTEES OF CARPENTERS PEN-
SION TRUST FUND FOR NORTHERN CALIFORNIA v REYES ET
AL C A 9th Cir Certiorari denied Reported below
688 F 2d671
No 82-1703 RUSH ET AL , TRUSTEES v UNITED
STATES C A 6th Cir Certiorari denied Reported
below 694 F 2d 1072
No 82-1706 CEPPI, EXECUTOR OF THE ESTATE OF
CEPPI v COMMISSIONER OF INTERNAL REVENUE C A
1st Cir Certiorari denied Reported below 698 F 2d 17
No 82-1719 FORUM INTERNATIONAL, LTD , ET AL v
CHER, and
No 82-1740 CHER v NEWS GROUP PUBLICATIONS,
INC , ET AL C A 9th Cir Certiorari denied Reported
below 692 F 2d 634
No 82-1720 Bucci v GRIFFIN ET AL C A 1st Cir
Certiorari denied
No 82-1722 COUNTY OF MONROE ET AL v CONSOLI-
DATED RAIL CORPORATION Sp Ct R R R A Certio-
rari denied Reported below 558 F Supp 1387
No 82-1735 ROKOWSKY v GORDON ET AL C A 1st
Cir Certiorari denied Reported below 705 F 2d 439
No 82-1752 DESRIS ET AL v CITY OF KENOSHA, WIS-
CONSIN, ET AL C A 7th Cir Certiorari denied Re-
ported below 687 F 2d 1117
No 82-1809 BONACCURSO?; PENNSYLVANIA Sup Ct
Pa Certiorari denied Reported below 500 Pa 247, 455
A 2d 1175
No 82-1831 FIERROSETAL v UNITED STATES C A
9th Cir Certiorari denied Reported below 692 F 2d
1291
ORDERS 112i
462 U S June 13, 1983
No 82-1834 SCALISE ET AL v ATTORNEY GENERAL OF
THE UNITED STATES ET AL C A 7th Cir Certioran
denied Reported below 698 F 2d 1226
No 82-1853 LEE, AKA VALENTE v UNITED STATES
C A 7th Cir Certioran denied Reported below 696 F
2d997
No 82-6188 MARKS v ESTELLE, DIRECTOR, TEXAS
DEPARTMENT OF CORRECTIONS C A 5th Cir Certioran
denied Reported below 691 F 2d 730
No 82-6544 BORMEY v HECKLER, SECRETARY OF
HEALTH AND HUMAN SERVICES C A 5th Cir Certioran
denied Reported below 695 F 2d 164
No 82-6549 DEL PRADO v INDIANA Ct App Ind
Certiorari denied
No 82-6561 HINTON v UNITED STATES C A 2d Cir
Certiorari denied Reported below 703 F 2d 672
No 82-6563 SAUNDERS v VETERANS ADMINISTRATION
ET AL C A 3d Cir Certiorari denied Reported below
707 F 2d 1403
No 82-6567 JOHNSON v UNITED STATES C A 6th
Cir Certiorari denied Reported below 708 F 2d 724
No 82-6571 SMITH v UNITED STATES C A 9th Cir
Certiorari denied Reported below 703 F 2d 578
No 82-6586 BRANTNER v ZIMMERMAN ET AL C A
3d Cir Certiorari denied Reported below 696 F 2d 980
No 82-6590 RITTER v RITTER C A 9th Cir Cer-
tiorari denied Reported below 698 F 2d 1232
No 82-6594 CONWAY ET AL v ANDERSON, WARDEN
C A 6th Cir Certiorari denied Reported below 698 F
2d282
No 82-6595 SYNESAEL, DECEASED, BY HER GUARDIAN,
DROOK, ET AL v LING, DIRECTOR OF THE DEPARTMENT OF
1122 OCTOBER TERM, 1982
June 13, 1983 462 U S
PUBLIC WELFARE OF TIPPECANOE COUNTY, ET AL C A
7th Cir Certioran denied Reported below 691 F 2d
1213
No 82-6606 ANTONELLI v UNITED STATES C A 7th
Cir Certioran denied Reported below 703 F 2d 570
No 82-6616 FORD v O'BRIEN C A 6th Cir Certio-
ran denied Reported below 709 F 2d 1502
No 82-6625 STRAND v UNITED STATES C A 9th
Cir Certiorari denied Reported below 703 F 2d 578
No 82-6627 LITTLEJOHN v CLELAND ET AL C A
llth Cir Certiorari denied
No 82-6628 PHILLIPS v ORNDORF ET AL C A 3d
Cir Certiorari denied
No 82-6704 CELESTINE v ESTELLE, DIRECTOR, TEXAS
DEPARTMENT OF CORRECTIONS Ct Grim App Tex
Certiorari denied
No 82-6708 COOK v UNITED STATES C A 4th Cir
Certiorari denied Reported below 707 F 2d 511
No 82-6711 HARDMAN v UNITED STATES C A 4th
Cir Certiorari denied Reported below 705 F 2d 446
No 82-6713 LEE v UNITED STATES, and
No 82-6753 WELLS v UNITED STATES C A 10th
Cir Certiorari denied Reported below 700 F 2d 424
No 82-6715 HILL v EVANS, SHERIFF, TARRANT
COUNTY, TEXAS C A 5th Cir Certiorari denied Re-
ported below 701 F 2d 946
No 82-6717 WAITERS v UNITED STATES C A 6th
Cir Certiorari denied Reported below 709 F 2d 1511
No 82-6724 STERN v DEPARTMENT OF THE ARMY
C A Fed Cir Certiorari denied Reported below 699 F
2d 1312
ORDERS H23
462 U S June 13, 1983
No 82-6725 TIPPINS v UNITED STATES C A llth
Cir Certioran denied Reported below 703 F 2d 580
No 82-6740 FULLER v UNITED STATES C A 6th
Cir Certioran denied Reported below 709 F 2d 1512
No 82-6743 MEDINA v UNITED STATES C A 5th
Cir Certioran denied Reported below 701 F 2d 946
No 82-6745 TAYLOR ET AL v COURT OF COMMON
PLEAS OF DELAWARE COUNTY ET AL C A 3d Cir Cer-
tiorari denied Reported below 696 F 2d 987
No 82-6752 NOLAN v UNITED STATES C A 9th Cir
Certioran denied Reported below 700 F 2d 479
No 82-6762 Cmco v UNITED STATES C A 6th Cir
Certiorari denied Reported below 709 F 2d 1510
No 82-6773 LESANE v UNITED STATES C A 9th
Cir Certiorari denied Reported below 705 F 2d 468
No 82-1490 CARTHAN v UNITED STATES C A 5th
Cir Certiorari denied JUSTICE MARSHALL would grant
certiorari Reported below 696 F 2d 994
No 82-1602 PHOENIX BAPTIST HOSPITAL & MEDICAL
CENTER, INC v SHS HOSPITAL CORP ET AL C A 9th
Cir Certiorari denied JUSTICE O'CONNOR took no part
in the consideration or decision of this petition Reported
below 688 F 2d 847
No 82-1610 MIAMI CONSERVANCY DISTRICT v MARSH,
SECRETARY OF THE ARMY, ET AL C A 6th Cir Certio-
rari denied JUSTICE O'CONNOR would grant certiorari
Reported below 692 F 2d 447
No 82-1738 GRENADA BANK, DBA COAHOMA BANK v
WILLEY ET AL C A 5th Cir Motion of petitioner to
defer consideration of the petition for writ of certiorari
denied Certiorari denied Reported below 694 F 2d 85
1124 OCTOBER TERM, 1982
June 13, 1983 462 U S
No 82-6560 MAGWOOD v ALABAMA Sup Ct Ala ,
No 82-6577 WILLIAMS v GEORGIA Sup Ct Ga ,
No 82-6597 ZARAGOZA v ARIZONA Sup Ct Ariz ,
and
No 82-6611 YATES v SOUTH CAROLINA Sup Ct
S C Certiorari denied Reported below No 82-6560, 426
So 2d 929, No 82-6577, 250 Ga 553, 300 S E 2d 301,
No 82-6597, 135 Ariz 63, 659 P 2d 22, No 82-6611, 280
S C 29, 310 S E 2d 805
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting
Adhering to our views that the death penalty is m all
circumstances cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments, Gregg v Georgia,
428 U S 153, 227, 231 (1976), we would grant certioran
and vacate the death sentences in these cases
Rehearing Granted (See No 82-56, supra )
Rehearing Denied
No 82-1344 CELE v KINNEY ET AL , 460 U S 1070,
No 82-1376 FREEMAN v UNITED STATES, 460 U S
1084,
No 82-6172 GRAY v LUCAS, WARDEN, ET AL , 461
U S 910,
No 82-6187 STEWART v FLORIDA, 460 U S 1103,
No 82-6194 COPELAND v SOUTH CAROLINA, 460 U S
1103,
No 82-6324 CYNTJE v GOVERNMENT OF THE VIRGIN
ISLANDS ET AL , 461 U S 908,
No 82-6343 SMITH v BORDENKIRCHER, WARDEN,
WEST VIRGINIA STATE PENITENTIARY, 461 U S 908,
No 82-6363 THOMPSONS MEDICAL OFFICER AT HAMIL-
TON COUNTY JAIL, 461 U S 917, and
No 82-6436 IN RE BEHRENS ET AL , 461 U S 925 Pe-
titions for rehearing denied
ORDERS 1125
462 U S June 14, 20, 1983
JUNE 14, 1983
Dismissal Under Rule 53
No 81-1618 WEYERHAEUSER Co ET AL v LYMAN
LAMB Co ET AL, and
No 81-1619 GEORGIA-PACIFIC CORP v LYMAN LAMB
Co ET AL C A 5th Cir [Certiorari granted, 456 U S
981 ] Writs of certioiari dismissed under this Court's Rule
53
JUNE 20, 1983
Appeals Dismissed
No 81-1782 CITY OF VIRGINIA ET AL v NYBERGETAL
Appeal from C A 8th Cir Motion of Legal Defense Fund
for Unborn Children for leave to file a brief as amicus cunae
denied Motion of Alan Ernest to represent children unborn
and born alive denied Appeal dismissed for want of juris-
diction Treating the papers whereon the appeal was taken
as a petition for writ of certiorari, certiorari denied JUS-
TICE WHITE and JUSTICE REHNQUIST would postpone fur-
ther consideration of the question of jurisdiction to a hearing
of the case on the merits JUSTICE O'CONNOR would dismiss
the appeal for want of a properly presented federal question
Reported below 667 F 2d 754
No 82-1729 MILLER v MUNICIPAL COURT FOR THE
COUNTY OF Los ANGELES, PASADENA JUDICIAL DISTRICT
(CALIFORNIA, REAL PARTY IN INTEREST) Appeal from
Sup Ct Cal dismissed for want of jurisdiction Treating
the papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied
No 82-6705 BETKA^ SMITH ETAL Appeal from C A
9th Cir dismissed for want of jurisdiction Treating the
papers whereon the appeal was taken as a petition for writ
of certiorari, certiorari denied
1126 OCTOBER TERM, 1983
June 20, 1983 462 U S
No 82-1747 HAMILTON, ADMINISTRATRIX, ET AL v
STOVER Appeal from Ct App Ohio, Richland County,
dismissed for want of substantial federal question
No 82-1751 MAYNARD v McGuiNESS ET AL Appeal
from Sup Ct Mont dismissed for want of substantial federal
question Reported below Mont , 658 P 2d 1104
No 82-1776 S J GROVES & SONS Co v ILLINOIS, ACT-
ING THROUGH ITS DIVISION OF HIGHWAYS OF THE DEPART-
MENT OF TRANSPORTATION Appeal from Sup Ct 111 dis-
missed for want of substantial federal question Reported
below 93 111 2d 397, 444 N E 2d 131
No 82-6644 LORTZ v CALIFORNIA Appeal from Ct
App Cal , 2d App Dist , dismissed for want of substantial
federal question Reported below 137 Cal App 3d 363, 187
Cal Rptr 89
No 82-6614 SARDOZ ET AL , AS CO-PERSONAL REPRE-
SENTATIVES OF THE ESTATE OF TALAMANTES v KENT
NOWLIN CONSTRUCTION Co Appeal from Sup Ct N M
dismissed for want of properly presented federal question
Reported below 99 N M 389, 658 P 2d 1116
Vacated and Remanded on Appeal
No 82-1188 KERREY, GOVERNOR OF NEBRASKA, ET AL
v WOMEN'S SERVICES, P C , ET AL Appeal from C A
8th Cir Motion of Alan Ernest to represent children unborn
and born alive denied Motion of Legal Defense Fund for
Unborn Children for leave to file a brief as amicus cunae de-
nied Judgment vacated and case remanded for further con-
sideration in light of Akron v Akron Center for Reproductive
Health, Inc , ante, p 416, 442-449 JUSTICE STEVENS
would affirm the judgment Reported below 690 F 2d 667
Certioram Granted — Vacated and Remanded
No 82-438 NATIONAL LABOR RELATIONS BOARD v
BEHRING INTERNATIONAL, INC C A 3d Cir Certioran
ORDERS 1127
462 U S June 20, 1983
granted, judgment vacated, and case remanded for farther
consideration in light of NLRB v Transportation Manage-
ment Corp , ante, p 393 Reported below 675 F 2d 83
No 82-736 NATIONAL LABOR RELATIONS BOARD v
HEARTLAND FOOD WAREHOUSE, A DIVISION OF PURITY
SUPREME SUPERMARKETS C A 1st Cir Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of NLRB v Transportation Manage-
ment Corp , ante, p 393 Reported below 685 F 2d 421
No 82-1054 INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL
No 988 v EDWARDS ET AL C A 5th Crr Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of DelCostello v Teamsters, ante,
p 151 Reported below 678 F 2d 1276
No 82-1105 NATIONAL LABOR RELATIONS BOARD v
BLACKSTONE Co , INC C A 3d Cir Certiorari granted,
judgment vacated, and case remanded for further consider-
ation in light of NLRB v Transportation Management
Corp , ante, p 393 Reported below 685 F 2d 102
No 82-1481 ASTEMBORSKIV SUSMARSKI Sup Ct Pa
Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Pickett v Brown, ante,
p 1 Reported below 499 Pa 99, 451 A 2d 1012
No 82-1549 UNITED STATES v GARCIA ET AL C A
5th Cir Certiorari granted, judgment vacated, and case re-
manded for further consideration in light of United States v
Ross, 456 U S 798 (1982) Reported below 676 F 2d 1086
JUSTICE STEVENS, dissenting
After the Court of Appeals denied the Government's peti-
tion for rehearing in this case, the Government voluntarily
moved to dismiss the indictments On January 12, 1983, the
District Court granted that motion No one has ever chal-
lenged the effectiveness of the District Court's order of dis-
1128 OCTOBER TERM, 1983
June 20, 1983 462 U S
missal, or sought to set it aside, either by a request for re-
hearing in that court or by direct review on appeal It is,
therefore, perfectly clear that this litigation terminated a
long time ago Nothing remains to be decided on the merits
with regard to United States v Ross or any other issue
Miscellaneous Orders
No D-363 IN RE DISBARMENT OF GIGLIOTTI It is
ordered that Francesco Gighotti, of New Castle, Pa , be
suspended from the practice of law in this Court and that a
rule issue, returnable within 40 days, requiring him to show
cause why he should not be disbarred from the practice of
law in this Court
No 81-2332 NORFOLK REDEVELOPMENT AND HOUSING
AUTHORITY v CHESAPEAKE & POTOMAC TELEPHONE COM-
PANY OF VIRGINIA ET AL C A 4th Cir [Certiorari
granted, 459 U S 1145 ] Motion of American Gas Associa-
tion for leave to file a brief as amicus cunae granted JUS-
TICE POWELL took no part in the consideration or decision of
this motion
No 82-15 OLIVER v UNITED STATES C A 6th Cir
[Certiorari granted, 459 U S 1168], and
No 82-1273 MAINE v THORNTON Sup Jud Ct Me
[Certiorari granted, 460 U S 1068 ] Motion of petitioner in
No 82-15 for divided argument granted Motion of peti-
tioner in No 82-1273 for divided argument granted
No 82-660 UNITED STATES v CRONIC C A 10th Cir
[Certiorari granted, 459 U S 1199 ] Motion of respondent
for substitution of counsel granted, and it is ordered that Ste-
ven B Duke, Esquire, of New Haven, Conn , be appointed to
serve as counsel for respondent in this case in place of David
W Duncan, Esquire, of Durango, Colo , who is hereby
discharged
No 82-708 SUMMA CORP v CALIFORNIA EX REL
STATE LANDS COMMISSION ET AL Sup Ct Cal [Certio-
ORDERS 1129
462 U S June 20, 1983
ran granted, 460 U S 1036 ] Motions of Pacific Legal
Foundation and California Land Title Association for leave to
file briefs as amici cunae granted Motion of the Solicitor
General for leave to participate in oral argument as arnica
cunae and for divided argument granted
No 82-940 HISHON v KING & SPALDING C A llth
Cir [Certioran granted, 459 U S 1169 ] Motion of New
England Legal Foundation for leave to file a brief as amicus
cunae granted
No 82-1143 MILLER ELECTRIC Co ETAL v NATIONAL
CONSTRUCTORS ASSN ET AL ,
No 82-1146 NATIONAL ELECTRICAL CONTRACTORS
ASSN , INC , ET AL v NATIONAL CONSTRUCTORS ASSN ET
AL , and
No 82-1147 INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS (AFL-CIO) ET AL v NATIONAL CON-
STRUCTORS ASSN ET AL C A 4th Cir Motion of the
parties to defer consideration of the petitions for writs of
certiorari granted JUSTICE BLACKMUN took no part in the
consideration or decision of this motion
No 82-1432 PULLIAM, MAGISTRATE FOR THE COUNTY
OF CULPEPER, VIRGINIA v ALLEN ET AL C A 4th Cir
[Certiorari granted, 461 U S 904 ] Motion of American
Bar Association for leave to file a brief as amicus cunae
granted
No 82-1633 HOSPITAL BUILDING Co v TRUSTEES OF
REX HOSPITAL ET AL , and
No 82-1762 TRUSTEES OF REX HOSPITAL ET AL v
HOSPITAL BUILDING Co C A 4th Cir The Solicitor
General is invited to file a brief in these cases expressing
the views of the United States
No 82-1651 Nix, WARDEN OF THE IOWA STATE PENI-
TENTIARY v WILLIAMS C A 8th Cir [Certiorari
granted, 461 U S 956 ] Motion for appointment of counsel
1130 OCTOBER TERM, 1983
June 20, 1983 462 U S
granted, and it is ordered that Robert Bartels, Esquire, of
Tempe, Ariz , be appointed to serve as counsel for respond-
ent m this case
No 82-6640 IN RE DAMIANO C A llthCir Petition
for writ of common-law certiorari denied
No 82-6609 IN RE GlFFORD, and
No 82-6719 IN RE CYNTJE Petitions for writs of man-
damus denied
No 82-1742 IN RE FORNEY Petition for writ of prohi-
bition denied
Probable Jurisdiction Noted
No 82-282 MCCAIN ETAL v LYBRANDETAL Appeal
from D C S C Probable jurisdiction noted
No 82-1565 BACCHUS IMPORTS, LTD , ET AL v
FREITAS, DIRECTOR OF TAXATION OF HAWAII, ET AL Ap-
peal from Sup Ct Haw Probable jurisdiction noted Re-
ported below 65 Haw 566, 656 P 2d 724
Certiorari Granted
No 82-958 MCDONOUGH POWER EQUIPMENT, INC v
GREENWOOD ET AL C A 10th Cir Certiorari granted
Reported below 687 F 2d 338
No 82-1643 INTERSTATE COMMERCE COMMISSION ET
AL v AMERICAN TRUCKING ASSNS , INC , ET AL C A
llth Cir Certiorari granted Reported below 688 F 2d
1337
No 81-757 ALLEN v WRIGHT ET AL , and
No 81-970 REGAN, SECRETARY OF THE TREASURY, ET
AL v WRIGHT ET AL C A D C Cir Certiorari
granted, cases consolidated, and a total of one hour allotted
for oral argument Reported below 211 U S App D C
231, 656 F 2d 820
ORDERS 1131
462 U S June 20, 1983
No 82-1260 COPPERWELD CORP ET AL v INDEPEND-
ENCE TUBE CORP C A 7th Cir Certioran granted lim-
ited to Question 1 presented by the petition JUSTICE
WHITE took no part in the consideration or decision of this
petition Reported below 691 F 2d 310
Certiorari Denied (See also Nos 81-1782, 82-1729,
82-6705, and 82-6640, supra )
No 81-1010 PURTILL v HECKLER, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL C A 3d Cir
Certioran denied Reported below 658 F 2d 134
No 82-777 GENERAL DYNAMICS CORP v GARY AIR-
CRAFT CORP C A 5th Cir Certioran denied Reported
below 681 F 2d 365
No 82-1166 ZURN INDUSTRIES, INC v NATIONAL
LABOR RELATIONS BOARD C A 9th Cir Certioran
denied Reported below 680 F 2d 683
No 82-1305 BLACKSTONE Co v NATIONAL LABOR RE-
LATIONS BOARD C A 3d Cir Certioran denied Re-
ported below 685 F 2d 102
No 82-1389 MUNDT v NL INDUSTRIES, INC , and
No 82-1489 NL INDUSTRIES, INC v MUNDT C A
6th Cir Certioran denied Reported below 705 F 2d 456
No 82-1391 SPERLING v UNITED STATES C A 2d
Cir Certioran denied Reported below 692 F 2d 223
No 82-1449 CATTELL v BARRETT ET AL C A 2d Cir
Certiorari denied Reported below 689 F 2d 324
No 82-1458 RAPAPORT v UNITED STATES, and
No 82-1526 INGREDIENT TECHNOLOGY CORP , FOR-
MERLY KNOWN AS SUCREST CORP v UNITED STATES
C A 2d Cir Certiorari denied Reported below 698
F 2d88
1132 OCTOBER TERM, 1983
June 20, 1983 462 U S
No 82-1517 MISSION INSURANCE Co v UNITED
STATES, and
No 82-1541 M/V BIG SAM ET AL v UNITED STATES
C A 5th Cir Certiorari denied Reported below 681
F 2d 432 and 693 F 2d 451
No 82-1615 DIAZ-SALAZAR v IMMIGRATION AND NATU-
RALIZATION SERVICE C A 7th Cir Certiorari denied
Reported below 700 F 2d 1156
No 82-1621 PRING v PENTHOUSE INTERNATIONAL,
LTD , ET AL C A 10th Cir Certiorari denied Re-
ported below 695 F 2d 438
No 82-1639 MARCELLO v IMMIGRATION AND NATURAL-
IZATION SERVICE C A 5th Cir Certiorari denied Re-
ported below 694 F 2d 1033
No 82-1652 GOLDSTEIN v UNITED STATES C A
10th Cir Certiorari denied Reported below 695 F 2d
1228
No 82-1655 HEAD v UNITED STATES C A 4th Cir
Certiorari denied Reported below 697 F 2d 1200
No 82-1674 LEVINE ET ux v COMMISSIONER OF IN-
TERNAL REVENUE C A 2d Cir Certiorari denied Re-
ported below 695 F 2d 57
No 82-1675 CALIFORNIA v UNITED STATES ET AL
C A 9th Cir Certiorari denied Reported below 698
F 2d 1234
No 82-1702 STEVENS ET AL v MAISLIN TRANSPORT
OF DELAWARE, INC , ET AL C A 7th Cir Certiorari
denied Reported below 696 F 2d 500
No 82-1726 TEXAS v SAMUDIO Ct Grim App Tex
Certiorari denied Reported below 648 S W 2d 312
No 82-1733 RASNAKE v GEORGIA Ct App Ga Cer-
tiorari denied Reported below 164 Ga App 765, 298 S E
2d42
ORDERS 1133
462 U S June 20, 1983
No 82-1744 ERZINGER ET AL v REGENTS OF THE UNI-
VERSITY OF CALIFORNIA ET AL Ct App Cal , 4th App
Dist Certiorari denied Reported below 137 Cal App 3d
389, 187 Cal Rptr 164
No 82-1750 BIGGS v TERMINAL RAILROAD ASSOCIA-
TION OF ST Louis App Ct 111 , 5th Dist Certiorari de-
nied Reported below 110 111 App 3d 709, 442 N E 2d
1353
No 82-1757 BUDGET RENT-A-CAR OF WASHINGTON-
OREGON, INC v HERTZ CORP ET AL C A 9th Cir Cer-
tiorari denied Reported below 693 F 2d 84
No 82-1759 T-1740 TRUSTS, MERCANTILE BANK &
TRUST Co , LTD , TRUSTEE, TRANSFERREE v COMMIS-
SIONER OF INTERNAL REVENUE C A D C Cir Certio-
rari denied Reported below 226 U S App D C 211, 701
F 2d222
No 82-1763 MERIDA v TEXAS Ct Grim App Tex
Certiorari denied
No 82-1764 GULF & SOUTHERN TERMINAL CORP v
SS PRESIDENT ROXAS C A 4th Cir Certiorari denied
Reported below 701 F 2d 1110
No 82-1765 KERNS BAKERY, INC v KENTUCKY COM-
MISSION ON HUMAN RIGHTS ET AL Ct App Ky Certio-
rari denied Reported below 644 S W 2d 350
No 82-1773 OREGON PHYSICIANS' SERVICE ET AL v
HAHNETAL C A 9th Cir Certiorari denied Reported
below 689 F 2d 840
No 82-1775 CHAMBERS ET AL v MCLEAN TRUCKING
Co ET AL C A 4th Cir Certiorari denied Reported
below 701 F 2d 163
No 82-1792 DALLAS COUNTY, TEXAS v WILLIAMS^
C A 5th Cir Certiorari denied Reported below
F 2d 1032
1134 OCTOBER TERM, 1983
June 20, 1983 462 U S
No 82-1818 RANK, ACTING DIRECTOR OF THE CALI-
FORNIA STATE DEPARTMENT OF HEALTH SERVICES, ET AL
v BELTRAN C A 9th Cir Certiorari denied Reported
below 701 F 2d 91
No 82-1838 MICHIGAN v ALEXANDER Sup Ct Mich
Certiorari denied Reported below 416 Mich 581, 331
N W 2d 707
No 82-1863 SILANO v UNITED STATES C A 2d Cir
Certiorari denied Reported below 722 F 2d 729
No 82-1865 HAWKINS v UNITED STATES C A 3d
Cir Certiorari denied Reported below 707 F 2d 1404
No 82-1866 FAKTER ET AL v UNITED STATES C A
7th Cir Certiorari denied Reported below 705 F 2d 461
No 82-1902 DOLENZ v ALL SAINTS EPISCOPAL HOSPI-
TAL Sup Ct Tex Certiorari denied
No 82-5201 BROWN v UNITED STATES C A 3d Cir
Certiorari denied Reported below 679 F 2d 1042
No 82-5550 SHOELS v UNITED STATES C A 10th
Cir Certiorari denied Reported below 685 F 2d 379
No 82-5845 BILOTTI ET AL v UNITED STATES C A
3d Cir Certiorari denied Reported below 692 F 2d 750
No 82-6308 PERRY v UNITED STATES C A 8th Cir
Certiorari denied Reported below 694 F 2d 1104
No 82-6337 HENDERSON v UNITED STATES C A
llth Cir Certiorari denied
No 82-6372 STEVENSON v OKLAHOMA Ct Crim
App Okla Certiorari denied
No 82-6375 GRIMSLEY v DODSON, SHERIFF, ET AL
C A 4th Cir Certiorari denied Reported below 696
F 2d303
ORDERS 1135
462 U S June 20, 1983
No 82-6396 SILCOX v UNITED STATES C A 6th Cir
Certioran denied Reported below 701 F 2d 182
No 82-6452 WILLIAMS v UNITED STATES C A 4th
Cir Certioran denied Reported belo\\ 661 F 2d 929
No 82-6499 WOODARD v SOUTHEASTERN PENNSYL-
VANIA TRANSPORTATION AUTHORITY ET AL Sp Ct
R R R A Certioran denied Reported belo\\ 555
F Supp 1382
No 82-6582 COFFIN v OHIO, and
No 82-6706 VETH v OHIO Ct App Ohio, Hamilton
County Certioran denied
No 82-6605 ANTONELLI v MUNCH ET AL C A 7th
Cir Certiorari denied
No 82-6607 FUEYO-FANJUL v IMMIGRATION AND NAT-
URALIZATION SERVICE C A 1st Cir Certiorari denied
No 82-6612 McCLELLAN v McCLELLAN Ct Sp
App Md Certiorari denied Reported below 52 Md App
525, 451 A 2d 334
No 82-6613 STEWART v OKLAHOMA Ct Crim App
Okla Certiorari denied
No 82-6615 BRANTLEY v UNITED STATES C A 2d
Cir Certiorari denied
No 82-6617 BASKIN v MARSHALL C A 6th Cir
Certiorari denied Reported below 708 F 2d 721
No 82-6622 WILLIAMS-EL v TINNEY, WARDEN C A
4th Cir Certiorari denied Reported below 691 F 2d499
No 82-6626 CAVALLARO v WYRICK, WARDEN C A
8th Cir Certiorari denied Reported below 701 F 2d
1273
No 82-6629 MITCHELL v WYRICK, WARDEN C A
8th Cir Certiorari denied Reported below 698 F 2
1136 OCTOBER TERM, 1983
June 20, 1983 462 U S
No 82-6631 POWELL v GARRISON, WARDEN, ET AL
C A 4th Cir Certiorari denied Reported below 705
F 2d445
No 82-6632 WOODYARD v ALABAMA Sup Ct Ala
Certiorari denied Reported below 428 So 2d 138
No 82-6633 McCLAiN v ORR ET AL C A 3d Cir
Certiorari denied Reported below 707 F 2d 1402
No 82-6634 WARGO v ATTORNEY GENERAL OF NEW
MEXICO ET AL C A 10th Cir Certiorari denied
No 82-6635 SELDEN v NEW CASTLE COUNTY BOARD
OF EDUCATION Sup Ct Del Certiorari denied Re-
ported below 461 A 2d 695
No 82-6638 LANCASTER v RODRIGUEZ ET AL C A
10th Cir Certiorari denied Reported below 701 F 2d
864
No 82-6641 MEADOWS v McGiNNis, WARDEN, ET AL
C A 7th Cir Certiorari denied Reported below 698
F 2d 1226
No 82-6646 MULQUEEN v MORRIS, WARDEN C A
9th Cir Certiorari denied Reported below 701 F 2d 185
No 82-6647 Boos v KANSAS Sup Ct Kan Certio-
rari denied Reported below 232 Kan 864, 659 P 2d 224
No 82-6648 VAN POYCK v WAINWRIGHT, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS, ET AL C A
llth Cir Certiorari denied Reported below 704 F 2d
1252
No 82-6650 MILLERS CONTINENTAL GRAIN Co ETAL
C A 4th Cir Certiorari denied Reported below 701
F 2d 166
No 82-6653 BROWNE GARLAND ETAL C A 4th Cir
Certiorari denied Reported below 691 F 2d 493
ORDERS 1137
462 U S June 20, 1983
No 82-6656 ROBINSON v ALABAMA Ct Grim App
Ala Certioran denied Reported below 428 So 2d 148
No 82-6657 COOK v JONES ET AL C A 2d Cir Cer-
tiorari denied Reported below 718 F 2d 1085
No 82-6661 HUERTAS v APELLANIS ET AL Sup Ct
P R Certioran denied
No 82-6681 MCCLAIN v MACK TRUCKS, INC , ET AL
C A 3d Cir Certioran denied Reported below 707
F 2d 1393
No 82-6750 STANLEY v ZIMMERMAN, SUPERINTEND-
ENT, STATE CORRECTIONAL INSTITUTION, ET AL C A 3d
Cir Certiorari denied
No 82-6769 BURNS v UNITED STATES C A 9th Cir
Certiorari denied Reported below 701 F 2d 840
No 82-6788 GASS v UNITED STATES C A 9th Cir
Certiorari denied Reported below 705 F 2d 468
No 82-6795 AGUILAR v UNITED STATES C A 5th
Cir Certiorari denied
No 82-1300 VIRGINIA STATE BAR ET AL v CONSUM-
ERS UNION OF UNITED STATES, INC , ET AL C A 4th Cir
Certiorari denied JUSTICE POWELL took no part in the con-
sideration or decision of this petition Reported below 688
F 2d218
No 82-1301 SUPREME COURT OF VIRGINIA ET AL v
CONSUMERS UNION OF UNITED STATES, INC , ET AL C A
4th Cir Certiorari denied JUSTICE POWELL took no part
in the consideration or decision of this petition Reported
below 688 F 2d 218
CHIEF JUSTICE BURGER, with whom JUSTICE REHNQUIST
joins, dissenting
This petition marks the third occasion this case has been
before us The case arose in 1975 when respondents brought
1138 OCTOBER TERM, 1983
BURGER, C J , dissenting 462 U S
a suit under 42 U S C § 1983 alleging that particular provi-
sions of the State Bar Code promulgated by the Virginia
Supreme Court violated respondents' rights under the First
and Fourteenth Amendments Having prevailed in their
§ 1983 suit for declaratory and injunctive relief against the
Virginia Supreme Court and its chief justice (together, the
"Virginia Court"), the issue now is whether respondent Con-
sumers Union is entitled to attorney's fees from that court 1
under the Civil Rights Attorney's Fees Awards Act of 1976,
90 Stat 2641, 42 U S C § 1988 This was also the issue we
addressed the last time this case came before us, when we
vacated an award of attorney's fees against the Virginia
Court on the ground that it "was premised on acts or omis-
sions for which [the Virginia Court] enjoyed absolute legis-
lative immunity " Supreme Court of Virginia v Consumers
Union of United States, Inc , 446 U S 719, 738 (1980)
(Consumers Union)
On remand, a divided three-judge District Court rein-
stated the award of attorney's fees against the Virginia
Court, Consumers Union v American Bar Assn , 505 F
Supp 822 (ED Va 1981), and a divided panel of the Court
of Appeals affirmed Consumers Union v Virginia State
Bar, 688 F 2d 218 (CA4 1982) Because I believe that
the District Court misinterpreted our opinion in Consumers
Union and erred in reinstating the fee award, I would grant
certioran
I
It is unnecessary to review here at length the prior history
of this case, which is set out in detail in Consumers Union
There, two basic issues faced the Court
"[W]hether the Supreme Court of Virginia (Virginia
Court) and its chief justice are officially immune from
Respondents sued the Supreme Court of Virginia, its chief justice, the
Virginia State Bar, and others Petitioners in this case are the Supreme
Court of Virginia and its chief justice
ORDERS 1139
1137 BURGER, C J , dissenting
suit m an action brought under 42 U S C § 1983 chal-
lenging the Virginia Court's disciplinary rules governing
the conduct of attorneys and whethei attorney's fees
were properly awarded under the Civil Rights Attor-
ney's Fees Awards Act of 1976, 42 U S C §1988,
against the Virginia Court and its chief justice in his
official capacity " 446 U S , at 721
With respect to the first issue, we held that the Virginia
Court was not subject to suit under § 1983 for its legislative
acts — such as promulgating disciplinary rules — any more
than state legislators could be sued for their legislative acts
"[T]he Virginia Court and its members are immune from suit
when acting in their legislative capacity " Id , at 734
However, the Court went on to hold that the Virginia Court
was a proper defendant in a coercive action brought under
§ 1983 because it possessed enforcement powers "As
already indicated, §54-74 [of the Code of Virginia (1978)3
gives the Virginia Court independent authority of its own
to initiate proceedings against attorneys For this reason
the Virginia Court and its members were proper defendants
in a suit for declaratory and mjunctive relief, just as other
enforcement officers and agencies were " Id , at 736
Turning to the second issue, we vacated the award of attor-
ney's fees against the Virginia Court The District Court
had awarded fees against the Virginia Court because "it was
the very authority that had propounded and failed to amend
the challenged provisions of the Bar Code " Id , at 738
This was error because the Virginia Court had legislative
immunity for its acts in promulgating disciplinary rules
"We are unable to agree that attorney's fees should
have been awarded for the reasons relied on by the Dis-
trict Court Although the Virginia Court and its chief
justice were subject to suit in their direct enforcemei^
role, they were immune m their legislative roles
1140 OCTOBER TERM, 1983
BURGER, C J , dissenting 462 U S
the District Court's award of attorney's fees in this
case was premised on acts or omissions for which [the
Virginia Court] enjoyed absolute legislative immunity "
Ibid
We explained that nothing in the legislative history of § 1988
indicated that Congress "intended to permit an award of
attorney's fees to be premised on acts for which defendants
would enjoy absolute legislative immunity " Ibid
We then vacated the award of attorney's fees and re-
manded, presumably to permit the District Court to de-
termine whether the role of the Virginia State Bar — the
Virginia Court's codefendant in the case — in enforcing the
challenged rules justified an award of attorney's fees against
it
On remand, the District Court interpreted Consumers
Union as holding that an award of attorney's fees against the
Virginia Court would be appropriate on the existing record
"based solely on the Virginia Court's enforcement role "
505 F Supp , at 823 The District Court reasoned that be-
cause the Virginia Court's enforcement role rendered it liable
to a coercive suit under § 1983, it was also liable for attorney's
fees under § 1988
"It seems clear that 'in the circumstances of this case, a
sufficiently concrete dispute is made out against the
Virginia Court as an enforcer/ not only for ame-
nability to suit, but also for the purpose of a fee award to
[respondent], the prevailing party " Id , at 823-824,
quoting Consumers Union, supra, at 736, n 15
The District Court quoted Newman v Piggie Park Enter-
prises, Inc , 390 U S 400, 402 (1968), in arguing that § 1988
ordinarily requires an award of attorney's fees against a
party properly sued under §1983 "'unless special circum-
stances would render such an award unjust ' " 505 F Supp ,
at 824 It concluded that no such circumstances existed here
and so awarded fees against the Virginia Court
ORDERS 1141
1137 BURGER, C J , dissenting
One judge dissented, arguing that the Virginia Court's "en-
forcement role" was not established by the record and hence
could not serve as the basis for an award of attorney's fees
A divided Court of Appeals affirmed, holding that the
award of attorney's fees against the Virginia Court was not
an abuse of discretion The Court of Appeals interpreted
Consumers Union as holding that an award of attorney's fees
would be justified on this record 2
II
The immunity of judges from monetary judgments for then-
actions as judges is deeply embedded in our legal system
E g , Stump v Sparkman, 435 U S 349 (1978), Bradley
v Fisher, 13 Wall 335 (1872), Johnston v Moorman, 80
Va 131, 139-140 (1885) In Pierson v Ray, 386 U S 547,
554-555 (1967), we refused, in the absence of specific statu-
tory language, to presume that Congress intended by enact-
ing § 1 of the Civil Rights Act of 1871, 42 U S C § 1983, to
displace the historic rule of judicial immunity, we held that
the doctrine of judicial immunity was applicable in suits for
damages under that section The principles of Pierson
apply with full force to suits for attorney's fees under § 1988
2 In dissent, Judge Chapman trenchantly pointed out that the ostensible
purpose of this suit — to force the Virginia Supreme Court and Virginia
State Bar to permit respondent Consumers Union to publish a directory of
lawyers — had long been submerged in the quest for attorney's fees
"For the past three years this suit has been nothing but an effort by the
plaintiff's attorneys to establish a theory upon which they could collect a
fee In the spring of 1979 the last possible impediment to gathering the
information and publishing the Attorney's Directory for Arlington County
was removed However, when this case was argued in November 1981
the directory had not been printed or distributed As a result of numerous
questions by the court to the attorneys for Consumers Union, the informa-
tion has been gathered and the directory published A copy of the direc-
tory was forwarded to this court on June 15, 1982 It contains the names
of 78 attorneys in Arlington, Virginia This action has made three trips to
the United States Supreme Court, and is presently on its way back to the
Supreme Court, all to produce 78 names " 688 F 2d 218, 224 (CA4 1982)
1142 OCTOBER TERM, 1983
BURGER, C J , dissenting 462 U S
Nothing in the language or legislative history of the Civil
Rights Attorney's Fees Awards Act of 1976 specifically indi-
cates Congress7 intent to sweep away the historic immunity
of judges from monetary judgments In Pierson, the Court
explained that the purpose of judicial immunity
"'is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose
interest it is that the judges should be at liberty to
exercise their functions with independence and without
fear of consequences ' Imposing such a burden on
judges would contribute not to principled and fearless
decision-making but to intimidation " 386 U S , at 554
(citations omitted)
See also Dennis v Sparks, 449 U S 24, 31 (1980) I fail to
see how an award of attorney's fees is any less of a threat to
judicial independence than an award of damages An inde-
pendent judiciary, uncowed by fears of financial liability for
its official acts, is an integral aspect of state sovereignty and
critical to the security of our freedoms I would not presume
that Congress cast this fundamental rule to the winds in the
absence of specific statutory language rendering judges liable
for attorney's fees No such language is found in § 1988
Although judges are immune from monetary damages
under § 1983 for their official acts, see, e g , Stump v
Sparkman, supra, they are nonetheless subject to suit for m-
junctive and declaratory relief in their administrative capaci-
ties E g , Law Students Civil Rights Research Council,
Inc v Wadmond, 299 F Supp 117, 123-124 (SDNY 1969)
(three-judge District Court) (Friendly, J ), aff 'd on other
grounds, 401 U S 154 (1971) However, it is beyond perad-
venture that the amenability of a judge to suit for equitable
relief for his role in enforcing or administrating a statute does
not render him liable for damages for that same act See,
e g , Slavin v Curry, 574 F 2d 1256, 1264 (CAS 1978),
Louis v Supreme Court of Nevada, 490 F Supp 1174, 1182
(Nev 1980) I do not understand how it can be that a judge
ORDERS 1143
U37 BURGER, C J , dissenting
should be hable for attorney's fees for performing the same
act for which he would be immune from damages Here, the
Virginia Court was held subject to suit for injunctive'and
declaratory relief because it possessed the power to enforce
or administer disciplinary rules against members of the State
Bar Consumers Union, 446 U S , at 736 Such liability
no more entails liability for attorney's fees than it does for
damages
The District Court and Court of Appeals purported to rely
on dictum in Consumers Union stating that a fee award
against the Virginia Court might be proper if made "because
of its own direct enforcement role " Id , at 739 Assuming,
arguendo, that a fee award could be made against a judge
for his acts in an administrative or enforcement capacity, the
District Court still erred
We held in Consumers Union that the Virginia Court was
a proper defendant in a coercive § 1983 suit because it had the
potential power to prosecute attorneys for disciplinary viola-
tions However, there was no evidence in the record that it
had ever exercised its enforcement powers After vacating
the award because it was premised on acts — the promulga-
tion and failure to amend the challenged disciplinary rules —
for which the Virginia Court was entitled to absolute legisla-
tive immunity, we remanded the case If we had thought
that the mere existence of enforcement authority would sup-
port the award, there would have been no need to remand as
to the Virginia Court Thus, we necessarily remanded for
further findings on the Virginia Court's actual exercise of its
enforcement powers, and for consideration of whether such
acts justified a fee award against the court
On remand, the District Court took no evidence as to the
Virginia Court's actual role in enforcing the challenged rule,
m reinstating the award, it relied solely on the mere exist-
ence of disciplinary authority 505 F Supp , at 823-824 In
short, the fee award rests on the same basis now — the Vir-
ginia Court's promulgation of disciplinary rules — that it
1144 OCTOBER TERM, 1983
June 20, 1983 462 U S
before The District Court's reliance on the Virginia Court's
potential "disciplinary enforcement authority" cannot cover
up the utter lack of proof in the record that the Virginia
Court ever did anything to enforce the rule Thus, the fee
award cannot stand
For all the foregoing reasons, I would grant certiorari to
consider the important question of whether an award of
attorney's fees against a judge may be premised solely on
the existence of enforcement authority
No 82-1471 DEPARTMENT OF REVENUE OF MONTANA
v FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF Mis-
SOULA ET AL Sup Ct Mont Motion of Multistate Tax
Commission for leave to file a brief as amicus cunae granted
Certiorari denied Reported below 200 Mont 358, 654
P 2d496
No 82-1631 POTAMKIN CADILLAC CORP v UNITED
STATES C A 2d Cir Certiorari denied THE CHIEF
JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR
would award respondent damages pursuant to this Court's
Rule 49 2 Reported below 697 F 2d 491
No 82-1770 NATIONAL ENQUIRER, INC v SUPERIOR
COURT OF CALIFORNIA, COUNTY OF Los ANGELES (JONES
ET AL , REAL PARTIES IN INTEREST) Ct App Cal , 2d
App Dist Certiorari denied JUSTICE BRENNAN and
JUSTICE MARSHALL would grant certiorari
No 82-6448 HERNANDEZ v TEXAS Ct Grim App
Tex Certiorari denied Reported below 643 S W 2d 397
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting
Adhering to our views that the death penalty is in all
circumstances cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments, Gregg v Georgia,
428 U S 153, 227, 231 (1976), we would grant certiorari and
vacate the death sentence in this case
ORDERS 1145
462 U S June 20, 1983
No 82-6474 SMITHS FLORIDA Sup Ct Fla Certio-
rari denied Reported below 424 So 2d 726
JUSTICE BRENNAN, dissenting
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited bj
the Eighth and Fourteenth Amendments, Gregg \ Georgia,
428 U S 153, 227 (1976), I would grant certiorari and \ acate
the death sentence in this case
JUSTICE MARSHALL, dissenting
Adhering to my view that the death penalty is in all cir-
cumstances cruel and unusual punishment prohibited by the
Eighth and Fourteenth Amendments, I would grant certio-
rari and vacate petitioner's death sentence on this basis
alone However, even if I accepted the prevailing viewr that
the death penalty can constitutionally be imposed under cer-
tain circumstances, I would grant certiorari and vacate the
death sentence on the ground that neither the jury that con-
victed petitioner of murder nor the judge who sentenced him
found that he "kill[ed], attempted] to kill, or mtend[ed] that
a killing take place or that lethal force be employed "
Enmund v Florida, 458 U S 782, 797 (1982) The jury
was instructed that 'liability for first degree murder extends
to all co-felons who are personally present during the com-
mission of the felony" and that "[ujnder the felony murder
rule, [the] state of mind of the defendant is immaterial " Tr
2678 In imposing sentence, the trial judge did not find that
petitioner himself killed, attempted to kill, or intended to
kill Although the Supreme Court of Florida concluded that
"there was sufficient evidence from which the jury could
have found [petitioner] guilty of premeditated murder," 424
So 2d 726, 733 (1982) (emphasis added), neither the jury
nor the judge actually made such a finding Under these
circumstances our decision in Enmund v Florida requires
that petitioner's death sentence be vacated
1146 OCTOBER TERM, 1983
June 20 1983 462 U S
Rehearing Denied
No 82-1386 FIELDS v SUMMIT ENGINEERING, 460
U S 1077,
No 82-1500 COLOKATHIS V WENTWORTH-DOUGLASS
HOSPITAL ET AL , 461 U S 915,
No 82-1534 NEUFELD v BAMBROUGH ET AL , 461 U S
915,
No 82-6141 ADAMS v OKLAHOMA, 461 U S 932,
No 82-6262 WALLACE v ZANT, WARDEN, GEORGIA
DIAGNOSTIC AND CLASSIFICATION CENTER, 460 U S 1103,
No 82-6423 BOLANDER v FLORIDA, 461 U S 939,
No 82-6476 PLYLER v LEEKE, COMMISSIONER, SOUTH
CAROLINA DEPARTMENT OF CORRECTIONS, ET AL , 461
U S 935, and
No 82-6510 SHAO FEN CHIN, INDIVIDUALLY, AND AS
ADMINISTRATOR OF THE ESTATE OF KE-SIEN CHIN v ST
LUKE'S HOSPITAL CENTER ET AL , 461 U S 959 Petitions
for rehearing denied
No 8, Orig ARIZONA v CALIFORNIA ET AL , 460 U S
605 Motion of the Quechan Indian Tribe for leave to file pe-
tition for rehearing denied JUSTICE MARSHALL took no
part in the consideration or decision of this motion
No 82-978 TONUBBEE v LOUISIANA, 460 U S 1081
Motion of petitioner to proceed further herein in forma pau-
pens granted Petition for rehearing denied
INDEX
ABORTIONS See Constitutional Law, III, 1, VI
ADMINISTRATIVE PROCEDURE 4CT See National Environmen
tal Policy Act
AGGRAVATING CIRCUMSTANCES WARRANTING DEATH PEN
ALTY See Constitutional Law, II
AIRCRAFT TITLE CONVEYANCES See Federal Aviation Act of
1958
AIRPORT SEARCHES AND SEIZURES See Constitutional Law,
VIII, 1
AKRON, OHIO See Constitutional Law, III, 1? VI, 2
ALABAMA See Constitutional Law, IV, 1, V, State Oil and Gas
Severance Taxes
"ALASKAN OIL" TAX EXEMPTION See Constitutional La*, X
ALIENS See Constitutional Law, IX, Immigration and Nationality
Act
ANADROMOUS FISH See Fishing Rights
ANONYMOUS INFORMANT'S TIP AS BASIS FOR SEARCH WAR
RANT See Constitutional Law, VIII, 4
ANTITRUST ACTS
Clayton Act— Interlocking corporate directorates— Banks — Precision of
§ 8 of Clayton Act generally prohibiting interlocking directorates of com
peting corporations engaged in commerce, "other than banks," does not
bar interlocking directorates between a bank and a competing insurance
company, "other than banks" clause does not refer solely to interlocks
between banks BankAmerica Corp v United States, p 122
APPORTIONMENT OF FISH BETWEEN STATES See Fishing
Rights
APPORTIONMENT OF LEGISLATURE See Constitutional Law, I,
IV, 3
ARMED FORCES
Suit by enlisted personnel—Immunity of superior officers — Enlisted
personnel may not maintain a suit to recover damages from a superior offi-
1147
1148 INDEX
ARMED FORCES— Continued
cer for alleged constitutional violations, such as respondent Navy enlisted
men's federal court suit alleging that their constitutional rights were vio-
lated when petitioner superior officers discriminated against them because
of their race in making duty assignments and performance evaluations and
in imposing penalties Chappell v Wallace, p 296
ASSISTANCE OF COUNSEL See Constitutional Law, VII
ATTORNEY WORK PRODUCT See Freedom of Information Act
BANK ROBBERY ACT
Interpretation of Act — Proscription of obtaining money under false pre
tenses — Act's provision making it a crime to "tak[e] and carr[y] away/'
with intent to steal, any property or money worth more than $100, belong
mg to or in the possession of any bank, is not limited to common-law lar
ceny but also proscribes petitioner's crime of obtaining money under false
pretenses — petitioner having (1) opened a bank account under his own
name but with a false address, birth date, and social security number, (2)
deposited at another branch a third party's check on which endorsement
was altered to show petitioner's account number, and (3) subsequently
closed his account and received total balance in cash Bell v United
States, p 356
BANKRUPTCY
Reorganization estate — Debtor's property seized by Government for tax
hen — Reorganization estate includes debtor's property that has been
seized by a creditor prior to debtor's filing a petition for reorganization,
and § 542(a) of Bankruptcy Reform Act of 1978 authorized Bankruptcy
Court to order Internal Revenue Service to turn back debtor's personal
property that IRS had seized to satisfy a tax lien shortly before debtor
filed a petition for reorganization United States v Whiting Pools, Inc ,
p 198
BANKS See Antitrust Acts, Bank Robbery Act
BASTARDS See Constitutional Law, IV, 2
BOARDING OF VESSELS BY CUSTOMS OFFICERS See Con
stitutional Law, VIII, 3
BOAT SEARCHES See Constitutional Law, VIII, 3
BURDEN OF PROOF IN ABORTION PROSECUTIONS See Con-
stitutional Law, VI, 1
BURDEN OF PROOF IN ACTION CHALLENGING REAPPOR-
TIONMENT PLAN See Constitutional Law, I
INDEX 1149
BURDEN OF PROOF IN DISPUTE BETWEEN STATES AS TO
FISHING RIGHTS See Fishing Rights
BURDEN OF PROOF IN NATIONAL LABOR RELATIONS BO4RD
PROCEEDINGS See National Labor Relations Board
CAPITAL PUNISHMENT See Constitutional Law, II
CASE OR CONTROVERSY See Immigration and Nationality Act
CENSUS DATA AS AFFECTING CONGRESSIONAL REAPPOR
TIONMENT See Constitutional Law, I
CHILD SUPPORT See Constitutional Law, IV, 2
CIVIL RIGHTS ACT OF 1871
1 Employment discr // w/ oft — Emplojcc^ suits against employer-
Class action as tolling limitations period — Where (1) before expiration of
Puerto Rico's 1 year statute of limitations, a class action was filed m Fed
eral District Court against petitioner Puerto Rican educational officials on
behalf of respondent school employees, asserting claims under 42 U S C
§ 1983 arising out of respondents' demotions, (2) District Court later denied
class certification, and (3) respondents then filed individual § 1983 actions,
each of which was filed more than one year after claims accrued, even ex
eluding period during which class action was pending, but less than one
year after denial of class certification, respondents' actions were timel\
since, under Puerto Rican law, limitations period was tolled during class
action's pendency and began to run anew after denial of class certification
Chardon v Fumero Soto, p 650
2 Guilty plea in state prosecution — Subsequent civil action for alleged
violation of Fourth Amendment — Where respondent pleaded guilty in a
Virginia prosecution for manufacturing a controlled substance and there-
after brought a damages action under 42 U S C § 1983 in Federal District
Court alleging that petitioner police officers had violated his Fourth
Amendment rights in a search of his apartment in connection with criminal
case, § 1983 action was not barred either by collateral-estoppel rules under
applicable Virginia law, or on asserted ground that respondent's guilty plea
admitted legality of search or waived any Fourth Amendment claim Har
mg v Prosise, p 306
CIVIL RIGHTS ACT OF 1964
1 Employment discrimination — Employee's suit against employer—
Class action as tolling limitations period — Where (1) respondent, a
Negro male, filed a discrimination charge with Equal Employment Oppor-
tunity Commission after he was discharged by petitioner employer, (2)
other Negro males formerly employed by petitioner filed a class action
against petitioner in Federal District Court, alleging employment dis-
crimination and purporting to represent a class of which respondent
1150 INDEX
CIVIL RIGHTS ACT OF 1964— Continued
member, (3) respondent then received a notice of right to sue from EEOC
pursuant to § 706(f ) of Title VII of Act, (4) class certification was later
denied in District Court action, and (5) within 90 days thereafter, but al
most 2 years after receiving his notice of right to sue, respondent filed a
Title VII action in Federal District Court, alleging that his discharge was
racially motivated, filing of class action tolled 90-day limitations period for
bringing suit under § 706(f ), and petitioner's suit, filed within 90 days after
denial of class certification, was timely filed Crown, Cork & Seal Co v
Parker, p 345
2 Employment discrimination — Pregnancy hospitahzatwn benefits —
Pregnancy limitation in petitioner employer's health insurance plan,
whereby less extensive hospitahzation benefits were provided for male em-
ployees' spouses than those provided for female employees, discriminated
against males in violation of § 703(a)(l) of Title VII of Act Newport
News Shipbuilding & Dry Dock Co v EEOC, p 669
CIVIL SERVICE COMMISSION See Government Employees
CLASS ACTIONS AS TOLLING LIMITATIONS PERIOD FOR INDI
VIDUAL ACTIONS See Cml Rights Act of 1871, 1, Civil Rights
Act of 1964, 1
CLASSES OF MAIL See Postal Reorganization Act
CLAYTON ACT See Antitrust Acts
COLLATERAL ESTOPPEL See Civil Rights Act of 1871, 2
COLLECTIVE BARGAINING AGREEMENTS See Statutes of
Limitations
COMPACTS BETWEEN STATES See Water Rights
COMPENSATION AWARD AS AFFECTING VESSEL OWNER
EMPLOYER'S LIABILITY TO INJURED LONGSHOREMAN
EMPLOYEE See Longshoremen's and Harbor Workers* Com-
pensation Act
COMPETENCE TO STAND TRIAL See Habeas Corpus
CONGRESSIONAL DISTRICTS See Constitutional Law, I
CONGRESSIONAL VETO OF ADMINISTRATIVE SUSPENSION OF
ALIEN'S DEPORTATION See Constitutional Law, IX, Immi
gration and Nationality Act
CONSENT TO ABORTION See Constitutional Law, VI, 2, 3
INDEX 3151
CONSTITUTIONAL LAW See also Armed Forces, Civil Rights \ct of
1871, 2, Government Employees, Immigration and Nationality \ct,
Water Rights
I Congressional Districts
Reapportionment— Validity ofNen Jersey plan — Ne\v Jerse\ Legisla-
ture's reapportionment plan for State's congressional districts— under
which population of each district, on a\erage differed from "ideal1 figure
by 0 1384% and difference between largest and smallest districts \\as
0 6984% of average district — cannot be regarded per se as product of a
good-faith effort to achieve population equality, as required b\ Art 1^2
of Constitution merely because maximum population deviation among dis
tricts was smaller than predictable undercount in available census data in
suit challenging plan's validity, District Court properly found that (1) plain
tiffs met their burden of showing that plan did not achieve, as nearl> as
practicable, population equality, and (2) defendants did not meet their bur
den of proving that population deviations were necessary to achieve a con
sistent, nondiscriminatory legislative pokey Karcher \ Daggett p 725
II Cruel and Unusual Punishment
Death penalty — Aggravating circumstances — Validity of Georgia lau —
Under Georgia law whereby jury must find at least one statutory
aggravating circumstance before imposing death penalty , such a finding's
limited function of identifying members of class of convicted murderers
eligible for death penalty, without furnishing any further guidance to
jury m exercising its discretion in determining whether to impose death
penalty, does not render Georgia's statutory scheme unconstitutional,
Georgia's capital sentencing statute was not invalid as applied to respond
enty where (1) even though a statutory aggravating circumstance found
by jury was subsequently held to be unconstitutional by Georgia Supreme
Court in another case, jury also found two other statutory aggravating
circumstances, (2) jury was instructed to consider all of evidence and all
mitigating and aggravating circumstances during sentencing proceeding,
and (3) Georgia Supreme Court reviewed respondent's death sentence
to determine whether it was arbitrary, excessive, or disproportionate
Zant v Stephens, p 862
III Due Process
1 Abortions— Disposal of fetal remains— Validity of ordinance — Pro-
vision of Akron, Ohio, ordinance that required physicians performing
abortions to ensure that fetal remains were disposed of in a "humane anal
sanitary manner," a violation thereof being a misdemeanor, violated B^*
Process Clause by failing to give a physician fair notice that his co*|j|gkii,
1152 INDEX
CONSTITUTIONAL LAW— Continued
plated conduct was forbidden Akion \ Akion Center for Reproductive
Health, Inc , p 416
2 Tax sale — Notice to mortgagee — Validitij of Indiana statute — Under
an Indiana statute requn ing that county auchtoi post notice m courthouse
of sale of real property for nonpayment of pioperty taxes, that notice be
published weekly for three consecutive weeks, and that notice by certified
mail be given to property owner — ownei or mortgagee having two years
after tax sale to redeem property, and county auditor being required to
notify former owner of his right to redeem — manner of notice provided to a
mortgagee did not meet requn ements of Due Pi ocess Clause Mennomte
Board of Missions v Adams, p 791
IV Equal Protection of the Laws
1 Oil and gas severance tax — Validity of Alabama statute — Provisions
of Alabama oil and gas severance ta\ statute exempting royalty owners
from tax increase and prohibiting pioduceis from passing on increase to
consumers does not violate Equal Piotection Clause Exxon Corp v
Eagerton, p 176
2 Paternity actions — Validity of Tenne^ee statute of limitations — A
Tennessee statute requiring that a paternity action to enforce support duty
of an illegitimate child's father be filed within two years of child's birth vio-
lates Equal Protection Clause, there being no such restriction on support
rights of legitimate children Pickett v Brown, p 1
3 Reapportionment of state legislature — Validity of Wyoming stat
ute — Wyoming statute reapportionmg State Hoube of Representatives —
resulting in average deviation from population equality of 16% and a maxi-
mum deviation of 89%, and giving Niobrara County, State's least populous
county, one representative even if statutory formula rounded county's
population to zero — did not violate Equal Protection Clause by permitting
Niobrara County to have its own representative Brown v Thomson,
p 835
V Impairment of Contracts
Oil and gas severance tax — Validity of Alabama statute — Provisions of
Alabama oil and gas severance tax statute exempting royalty owners from
tax increase and prohibiting producers from passing on increase to consum
ers does not violate Contract Clause, even though appellant producers pre
viously entered into contracts that provided for allocation of severance
taxes among themselves, royalty owners, and any nonworkmg interests,
and that required purchasers to reimburse appellants for severance taxes
paid Exxon Corp v Eagerton, p 176
VI Right to Abortion
1 Hospitahzatwn requirement — Medical necessity for abortion — Valid
ity of state laws — Virginia statutes and regulations making it unlawful to
perform second trimester abortions outside of licensed hospitals or licensed
INDEX 11H
CONSTITUTIONAL LAW— Continued
outpatient climes are constitutional, statute was not unconstitutionally
applied to appellant physician— who performed a second trimester abortion
on an unmarried minor by an injection of saline solution at his unlicensed
clinic, minor having aborted her fetus 48 hours later while alone in a
motel— on asserted ground that State failed to allege and prove lack of
medical necessity for abortion, where under Virginia law prosecution was
not obligated to prove lack of medical necessity until appellant m\oked
medical necessity as a defense Simopoulas v Virginia, p 506
2 Restrictions— Validity of ordinance — Provisions of Akron, Ohio
ordinance that (1) require all abortions performed after first trimester to
be performed in a hospital, (2) prohibit a physician from performing an
abortion on any unmarried minor under age of 15, regardless of maturitv ,
unless physician obtains consent of a parent or unless minor obtains court
order for abortion, (3) require that physician give specified, detailed in
formation to patient concerning pregnancy and abortion, and (4) prohibit
physician from performing an abortion until 24 hours after pregnant
woman signs a consent form, are unconstitutional Akron v Akron
Center for Reproductive Health, Inc , p 416
3 Restrictions — Validity of state statutes — Missouri statute requiring
that abortions after 12 weeks of pregnancy be performed in a hospital is
unconstitutional, but statutes requiring (1) pathology reports for each
abortion performed, (2) presence of a second physician during abortions
performed after viability, and (3) minors to secure parental or court
consent for abortions are constitutional Planned Parenthood Assn of
Kansas City v Ashcroft, p 476
VII Right to Counsel
Accused's "initiation" of conversation with police — Incriminating state
ments — Where (1) after being arrested, advised of his Miranda rights,
and asking for an attorney, respondent inquired of a police officer, while
being transferred from police station to jail, "Well, what is going to happen
to me now?", (2) officer answered that respondent did not have to talk to
him and respondent said he understood, (3) a general discussion followed,
leading ultimately to respondent's making incriminating statements, and
(4) respondent's motion to suppress statements was denied by Oregon trial
court, and he was convicted of various charges, Oregon Court of Appeals'
judgment — which held that respondent's inquiry directed to officer while
being transferred to jail did not "initiate" a conversation with officer, and
thus his subsequent statements should have been excluded — was reversed
and case was remanded Oregon v Bradshaw, p 1039
VIII Searches and Seizures
1 Airport seizure of luggage— Subsequent search pursuant to war
rant Seizure of respondent's luggage violated Fourth Amendment,
drugs obtained from subsequent search of luggage were inadmissible, and
respondent's drug conviction must be reversed, where (1) upon his arrival
1154 INDEX
CONSTITUTIONAL LAW— Continued
at an airport, federal officers said that they believed he might be carrying
narcotics, (2) when he refused to consent to a luggage search, officers told
him that they were taking luggage to a federal judge to obtain a search
warrant, (3) officers instead took luggage to another airport where, 90 mm
utes after seizure, luggage was subjected to a "sniff test" by a narcotics
detection dog that reacted positively to one suitcase, and (4) thereafter
officers obtained a search warrant and discovered cocaine upon opening
suitcase United States v Place, p 696
2 Inventory search — Shoulder bag — Wariantless search of respond-
ent's shoulder bag after he was arrested for disturbing peace and was
taken to police station — search resulting in discovery of amphetamine pills
and charge of violating Illinois statute — was a valid inventory search and
did not violate Fourth Amendment Illinois v Lafayette, p 640
3 Vessels — Boarding by customs officers — Action of customs officers in
boarding an anchored sailboat, pursuant to 19 U S C § 1581(a), to exam
me vessel's documentation — one of respondents, who were aboard vessel
when it was rocked violently by a wake from a passing vessel, having been
unresponsive when asked if sailboat and crew were all right, and one
officer having smelled what he thought to be burning marihuana after
he boarded vessel and having seen bales that proved to be marihuana,
more of which was found upon a search of vessel — was "reasonable," and
was therefore consistent with Fourth Amendment United States v
Villamonte-Marquez, p 579
4 Warrant based on informant's tip — Probable-cause determination —
Rigid "two pronged test" for determining whether an informant's tip
establishes probable cause for issuance of a search warrant, involving con
sideration of informant's "basis of knowledge" and his "veracity" or "reli
ability," is abandoned and "totality of the circumstances" approach is
substituted in its place, state-court judge issuing a search warrant had
a substantial basis — arising from an anonymous informant's letter concern
ing respondents' alleged method of transporting drugs from Florida to
their home in Illinois and a police officer's affidavit showing corroboration
of details of informant's tip — for concluding that probable cause to search
respondents' home and car existed Illinois v Gates, p 213
IX Separation of Powers
Immigration and Nationality Act — Administrative suspension of de
portation — Validity of congressional veto — Congressional veto provision
of § 244(c)(2) of Immigration and Nationality Act, which authorizes either
House of Congress, by resolution, to invalidate Executive Branch's admin
istrative decision to allow a particular deportable alien to remain in United
States, is unconstitutional under doctrine of separation of powers INS v
Chadha, p 919
INDEX 1155
CONSTITUTIONAL LAW— Continued
X Uniformity of Taxes
Crude Oil Windfall Profit Tax Act of 1980— "Alaskan oil" exemption —
Tax exemption under Crude Oil Windfall Profit Tax Act of 1980 for certain
"Alaskan oil" (defined in terms of geographic location of ^ ells) does not vio-
late Uniformity Clause's requirement that taxes be "uniform throughout
the United States " United States v Ptasynski, p 74
CONTRACT CLAUSE See Constitutional Law, V
CORPORATE DIRECTORS See Antitrust Acts
COUNTERCLAIMS See International Law
COURTS OF APPEALS See Immigration and Nationality Act
CREDIBILITY OF WITNESSES See Habeas Corpus
CREDITORS' RIGHTS See Bankruptcy
CRIMINAL LAW See Bank Robbery Act, Constitutional La^\, II,
III, 1, VI, 1, VII, VIII, Habeas Corpus
CRUDE OIL WINDFALL PROFIT TAX ACT OF 1980 See Constitu
tional Law, X
CRUEL AND UNUSUAL PUNISHMENT See Constitutional Law, II
CUBA See International Law
CUSTODIAL POLICE INTERROGATIONS See Constitutional
Law, VII
CUSTOMS OFFICERS' BOARDING OF VESSELS See Constitu
tional Law, VIII, 3
DAMAGES See Longshoremen's and Harbor Workers' Compensation
Act
DEATH PENALTY See Constitutional Law, II
DEBTORS' RIGHTS See Bankruptcy
DEPORTATION See Constitutional Law, IX, Immigration and
Nationality Act
DIRECTORS OF CORPORATIONS See Antitrust Acts
DISCHARGE OF EMPLOYEE BECAUSE OF UNION ACTIVITIES
See National Labor Relations Board
DISCLOSURE OF INFORMATION See Freedom of Information
Act
1156 INDEX
DISCRIMINATION AGAINST MALES See Civil Rights Act of 1964,
2
DISCRIMINATION BASED ON RACE See Armed Forces, Civil
Rights Act of 1964, 1
DISCRIMINATION BASED ON SEX See Civil Rights Act of 1964,
2
DISCRIMINATION IN EMPLOYMENT See Civil Rights Act of
1871, 1, Civil Rights Act of 1964
DISPOSAL OF FETAL REMAINS AFTER ABORTION See Con
stitutional Law, III, 1
DISPUTES BETWEEN STATES See Fishing Rights, Water Rights
DOCUMENTATION OF VESSELS See Constitutional Law, VIII, 3
DOGS USED FOR DRUG DETECTION See Constitutional Law,
VIII, 1
DUE PROCESS See Constitutional Law, III
ELECTION DISTRICTS See Constitutional Law, I, IV, 3
EMPLOYER AND EMPLOYEES See Civil Rights Act of 1871, 1,
Civil Rights Act of 1964, Government Employees, National Labor
Relations Board, Statutes of Limitations
EMPLOYMENT DISCRIMINATION See Civil Rights Act of 1871,
1, Civil Rights Act of 1964
ENLISTED PERSONNEL'S RIGHT TO SUE SUPERIOR OFFI
CERS See Armed Forces
ENVIRONMENTAL EFFECTS OF NUCLEAR WASTE STORAGE
See National Environmental Policy Act
EQUALITY OF POPULATION OF LEGISLATIVE DISTRICTS See
Constitutional Law, I, IV, 3
EQUAL PROTECTION OF THE LAWS See Constitutional Law, IV
EXCLUSIONARY RULE See Constitutional Law, VIII, 4
EXEMPTION 5 OF FREEDOM OF INFORMATION ACT See Free
dom of Information Act
FAIR REPRESENTATION OF EMPLOYEES BY UNION See Stat
utes of Limitations
FALSE PRETENSES See Bank Robbery Act
FEDERAL AVIATION ACT OF 1958
Recording aircraft title conveyances — Pre emption of state law — State
laws, such as Illinois law, allowing undocumented or unrecorded transfers
INDEX 11S7
FEDERAL AVIATION ACT OF 195&-Contmued
of interests in aircraft to be valid against innocent third parties \vho do not
have actual notice thereof are pre empted b\ Act particularly ^503<c)
which requires that conveyances or instruments affecting title to cuil air-
craft be recorded with Federal Aviation Administration to be \ahd against
innocent third parties Philko Aviation, Inc \ Shacket p 406
FEDERAL EMPLOYEE APPEALS AUTHORITY See Government
Employees
FEDERAL EMPLOYEE'S RIGHT TO SUE SUPER\ISOR See
Government Employees
FEDERAL RULES OF CIVIL PROCEDURE See Civil Rights Act
of 1964, 1
FEDERAL STATE RELATIONS See Civil Rights Act of 1871 2
Federal Aviation Act of 1958, Indians, State Oil and Gas Sever
ance Taxes
FEDERAL TRADE COMMISSION See Freedom of Information Act
FEDERAL WINDFALL PROFIT TAX See Constitutional Law, X
FETAL REMAINS AFTER ABORTION See Constitutional Law,
III, 1
FIFTH AMENDMENT See Constitutional Law, VII
FIRST AMENDMENT See Government Employees
FISHING RIGHTS See also Indians
Dispute between States— Apportionment offish — Burden of proof — Ida
ho's original action requesting an equitable apportionment against Oregon
and Washington of anadromous fish in Columbia-Snake River system w as
dismissed without prejudice to Idaho's right to bring new proceedings
whenever it appeared that Idaho was being deprived of its equitable share
of fish — Idaho having failed to prove by clear and convincing evidence some
real and substantial injury or damage by over-fishing or mismanagement of
resource by Oregon and Washington Idaho ex rel Evans v Oregon
p 1017
FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 See Inter
national Law
FOURTEENTH AMENDMENT See Constitutional Law, III, IV
FOURTH AMENDMENT See Civil Rights Act of 1871, 2, Constitu
tional Law, VIII
FREEDOM OF INFORMATION ACT
Exemption 5— Attorney work product —Under Act's Exemption 5, at
torney work product is exempt from mandatory disclosure without regard
to status of litigation for which it was prepared, and thus respondent was
1158 INDEX
FREEDOM OF INFORMATION ACT— Continued.
not entitled to disclosure of Federal Trade Commission documents concern-
ing investigation of respondent's subsidiary in connection with Govern-
ment's civil penalty action against subsidiary, even though that action had
been dismissed with prejudice. FTC v. Grolier Inc., p. 19.
FREEDOM OF SPEECH. See Government Employees.
FUTURE INFLATION AND INTEREST RATES AS AFFECTING
DAMAGES. See Longshoremen's and Harbor Workers' Com-
pensation Act.
GEORGIA. See Constitutional Law, II.
GOVERNMENT EMPLOYEES.
Demotion— Suit against supervisor. — Since petitioner's claims that he
was improperly demoted from his position at a Government facility because
of his statements to news media critical of facility, in violation of his First
Amendment rights, arose out of an employment relationship that was
governed by comprehensive procedural and substantive provisions giving
meaningful remedies against United States — involving administrative
review of demotion by Federal Employee Appeals Authority and Civil
Service Commission's Appeals Review Board — regulatory scheme could
not be supplemented with a new nonstatutory damages remedy by means
of a suit by petitioner against his supervisor. Bush v. Lucas, p. 367.
GOVERNMENT LAND GRANTS. See Stock-Raising Homestead Act
of 1916.
GRAVEL AS "MINERAL." See Stock-Raising Homestead Act of
1916.
GUILTY PLEA AS AFFECTING SUBSEQUENT CIVIL SUIT FOR
FOURTH AMENDMENT VIOLATION. See Civil Rights Act of
1871, 2.
HABEAS CORPUS.
Federal relief to state prisoner— Competence to stand trial. — In federal
habeas corpus proceedings by respondent state prisoner, Court of Appeals
erroneously substituted its own judgment as to witnesses' credibility for
that of state courts, contrary to 28 U. S. C. § 2254(d)(8), in concluding that
state trial court improperly denied respondent's motion for appointment of
a commission to determine his competence to stand trial. Maggio v.
Fulford, p. 111.
HARBOR WORKERS. See Longshoremen's and Harbor Workers'
Compensation Act.
HEALTH INSURANCE PLANS. See Civil Rights Act of 1964, 2.
HOMESTEADS. See Stock-Raising Homestead Act of 1916.
INDEX
1159
HOSPITALIZATION BENEFITS FOR PREGNANCY See Civil
Rights Act of 1964, 2
HOSPITALIZATION REQUIREMENT FOR ABORTIONS See
Constitutional Law, VI
HUNTING REGULATIONS See Indians
IDAHO See Fishing Rights
ILLEGITIMATE CHILDREN See Constitutional Law, IV, 2
ILLINOIS See Federal Aviation Act of 1958
IMMIGRATION AND NATIONALITY ACT See also Constitutional
Law, IX
Administrative suspension of deportation — Constitutionality of con
gresswnal veto — Standing to sue—Junsdiction^-Justiciabihty — Where
(1) House of Representatives passed a resolution vetoing admimstratu e
suspension of an alien's deportation pursuant to § 244(c)(2) of Act, (2)
deportation proceedings were reopened and ultimately Board of Immigra
tion Appeals dismissed alien's appeal from deportation order, and (3) alien
then sought review of deportation order m Court of Appeals, alien had
standing to challenge constitutionality of statute, Court of Appeals had
jurisdiction under Act to review deportation order, a case or controversy,
rather than a nonjusticiable political question, was presented, and this
Court had jurisdiction under 28 U S C § 1252 to entertain Immigration
and Naturalization Service's appeal from Court of Appeals' judgment hold
ing that § 244(c)(2) violated constitutional doctrine of separation of powers
INS v Chadha, p 919
IMMUNITY OF SUPERIOR OFFICERS FROM SUIT BY ENLISTED
PERSONNEL See Armed Forces
IMPAIRMENT OF CONTRACTS See Constitutional Law, V
INCRIMINATING STATEMENTS See Constitutional Law, VII
INDIANA See Constitutional Law, III, 2
INDIANS
Tribal regulation of hunting and fishing— Pre emption of state law —
Application of New Mexico laws to hunting and fishing on respondent In-
dian Tribe's reservation by nonmembers of Tribe is pre-empted by opera-
tion of federal law where federally approved tribal ordinances regulate in
detail conditions under which both Tribe members and nonmembers may
hunt and fish on reservation New Mexico v Mescalero Apache Tribe,
p 324
INFLATION AS AFFECTING DAMAGES See Longshoremen's and
Harbor Workers' Compensation Act
1160 INDEX
INFORMANT'S TIP AS BASIS FOR SEARCH WARRANT See
Constitutional Law, VIII 4
"INITIATION" BY ACCUSED OF CONVERSATION WITH POLICE
See Constitutional Law, VII
INSTRUMENTALITIES OF FOREIGN GOVERNMENTS See In
ternational Law
INTEREST RATES AS AFFECTING DAMAGES See Longshore
men's and Harbor Workers' Compensation Act
INTERLOCKING CORPORATE DIRECTORATES See Antitrust
Acts
INTERNAL REVENUE SERVICE See Bankruptcy
INTERNATIONAL LAW
Suit by Cuban organization — Setoff of value of defendant's assets seized
by Cuba — In a federal court action brought by respondent, which was es
tabhshed by Cuban Government to serve as an official autonomous credit
institution for foreign trade, to collect on a letter of credit issued to it by
petitioner in support of a contract for delivery of Cuban sugar to a buyer m
United States, petitioner was entitled under principles of international law
to a setoff for value of its assets in Cuba that had been seized by Cuban
Government, notwithstanding respondent had been established as a juridi
cal entity separate from Cuban Government First National City Bank v
Banco Para El Comercio Exterior de Cuba, p 611
INVENTORY SEARCHES See Constitutional Law, VIII, 2
JURISDICTION See Fishing Rights, Government Employees, Immi
gration and Nationality Act, Water Rights
JUSTICIABIHTY See Immigration and Nationality Act
LAND GRANTS See Stock Raising Homestead Act of 1916
LARCENY See Bank Robbery Act
LICENSING OF NUCLEAR POWERPLANTS See National Envi
ronmental Policy Act
LIMITATION OF ACTIONS See Civil Rights Act of 1871, 1, Civil
Rights Act of 1964, 1, Constitutional Law, IV, 2, Statutes of
Limitations
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT
Vessel owner acting as own stevedore — Liability to injured longshoreman
employee — A longshoreman, injured while employed by a vessel owner
acting as his own stevedore, may bring a negligence action under § 5(b) of
Act against such owner-employer even though longshoreman has received
INDEX 1161
LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION
ACT — Continued
compensation from owner employer under Act, District Court, in perform
ing its damages calculation m such an action, erred in applying— as a man-
datory federal rule of decision— theory of a Pennsylvania Supreme Court
decision under which future inflation is presumed to be equal to future
interest rates Jones & Laughlm Steel Corp v Pfeifer, p 523
LUGGAGE SEARCHES AND SEIZURES See Constitutional La*
VIII, 1
MAIL RATES See Postal Reorganization Act
MEDICAL NECESSITY FOR ABORTION See Constitutional Law
VI, 1
MENTAL COMPETENCE See Habeas Corpus
MILITARY PERSONNEL'S RIGHT TO SUE SUPERIOR OFFI
CERS See Armed Forces
MINERALS See Stock Raising Homestead Act of 1916
MISSOURI See Constitutional Law, VI, 3
MORTGAGEE'S RIGHT TO NOTICE OF TAX SALE See Constitu
tional Law, III, 2
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION See
Government Employees
NATIONAL ENVIRONMENTAL POLICY ACT
Licensing of nuclear powerplants — Nuclear Regulatory Commission s
rules — Storage of nuclear waste — Nuclear Regulatory Commission com
plied with Act m adopting generic rules whereby licensing boards should
assume that permanent storage of certain nuclear wastes would have no
significant environmental impact and thus should not affect decision
whether to license a particular powerplant, nor was Commission's adoption
of rules arbitrary or capricious within meaning of § 10(e) of Administrative
Procedure Act Baltimore Gas & Electric Co v Natural Resources
Defense Council, Inc , p 87
NATIONAL LABOR RELATIONS ACT See National Labor Rela
tions Board, Statutes of Limitations
NATIONAL LABOR RELATIONS BOARD
Unfair labor practice— Burden of proof— Validity of Board's rule —
Board's rule providing that— after General Counsel has proved by a pre-
ponderance of evidence that an antiumon animus contributed to an employ
er's decision to discharge an employee, m violation of §§ 8(a)(l) and 8(a)(3)
of National Labor Relations Act, because of his union activities— employer
has burden of proving by a preponderance of evidence that employee would
1162 INDEX
NATIONAL LABOR RELATIONS BOARD— Continued
have been fired for permissible reasons even if he had not been involved in
protected union activities, is reasonable and ib conbistent with §§ 8(a)(l)
and 8(a)(3), as well as with § 10(c) of Act, Vvhich piovides that Board must
prove an unfair labor practice by a "pi epondei ance of the testimony",
record supported Board's conclusion that a busdriver would not have been
discharged had respondent employer not considered his protected activi-
ties NLRB v Transportation Management Coi p , p 393
NATURAL GAS ACT See State Oil and Gas Severance Taxes
NATURAL GAS POLICY ACT OF 1978 See State Oil and Gas Sever
ance Taxes
NEW JERSEY See Constitutional Law, I
NEW MEXICO See Indians, Water Rights
NOTICE TO MORTGAGEE OF TAX SALE See Constitutional Law,
III, 2
NUCLEAR REGULATORY COMMISSION See National Environ
mental Policy Act
NUCLEAR WASTES See National Environmental Policy Act
OBTAINING MONEY UNDER FALSE PRETENSES See Bank
Robbery Act
OIL AND GAS TAXES See Constitutional Law, IV, 1, V, X, State
Oil and Gas Severance Taxes
OREGON See Fishing Rights
ORIGINAL JURISDICTION OF SUPREME COURT See Fishing
Rights, Water Rights
PARENTAL CONSENT TO ABORTION See Constitutional Law,
VI, 2, 3
PATENTS TO LANDS See Stock-Raising Homestead Act of 1916
PATERNITY ACTIONS See Constitutional Law, IV, 2
PATHOLOGY REPORTS FOR ABORTIONS See Constitutional
Law, VI, 3
PECOS RIVER COMPACT See Water Rights
PENNSYLVANIA See Longshoremen's and Harbor Workers' Com-
pensation Act
PHYSICIANS' DUTIES CONCERNING ABORTIONS See Constitu-
tional Law, III, 1, VI
POLICE INTERROGATIONS See Constitutional Law, VII
INDEX 1163
POLICE OFFICERS' CIVIL LIABILITY FOR FOURTH AMEND
MENT VIOLATIONS See Civil Rights Act of 1871, 2
POSTAL RATE COMMISSION See Postal Reorganization 4ct
POSTAL REORGANIZATION ACT
Rates for classes of mail— Determination by Postal Rate Commis
sion —Section 3622(b) of Act, which provides that Postal Rate Commission
shall recommend rates for classes of mail in accordance with specified fac
tors, requires attribution of any costs for which source can be identified
but leaves it to Commission to decide initially which methods for identify
mg causal relationships provide reasonable assurance that costs are result
of providing a particular class of service, Commission's two tier approach
one tier based on causation and second tier based on other factors — is a
reasonable construction of statutory language National Assn of Greet
mg Card Publishers v USPS, p 810
POWERPLANTS See National Environmental Policy Act
PRE EMPTION OF STATE LAW BY FEDERAL LAW See Federal
Aviation Act of 1958, Indians, State Oil and Gas Severance Taxes
PREGNANCY DISCRIMINATION ACT See Civil Rights Act of
1964, 2
PROBABLE CAUSE FOR ISSUING SEARCH WARRANT See
Constitutional Law, VIII, 4
PUBLIC DISCLOSURE OF INFORMATION See Freedom of In
formation Act
PUBLIC EMPLOYEE'S RIGHT TO SUE SUPERVISOR See Gov
ernment Employees
PUERTO RICO See Civil Rights Act of 1871, 1
RACIAL DISCRIMINATION See Armed Forces, Civil Rights Act of
1964, 1
RATES FOR CLASSES OF MAIL See Postal Reorganization Act
REAPPORTIONMENT OF LEGISLATURE See Constitutional
Law, I, IV, 3
RECORDING AIRCRAFT TITLE CONVEYANCES See Federal
Aviation Act of 1958
REORGANIZATION OF DEBTOR See Bankruptcy
RIGHT TO ABORTION See Constitutional Law, III, 1, VI
RIGHT TO COUNSEL See Constitutional Law, VII
SEARCHES AND SEIZURES See Civil Rights Act of 1871, 2, Con
stitutional Law, VIII
1164 INDEX
SEIZURE OF ASSETS BY FOREIGN GOVERNMENT See Inter
national Law
SEPARATION OF POWERS See Constitutional Law, IX, Immigra
tion and Nationality Act
SETOFFS See International Law
SEVERANCE TAXES See Constitutional Law, IV, 1, V, State Oil
and Gas Severance Taxes
SEX DISCRIMINATION See Civil Rights Act of 1964, 2
SHOULDER BAG SEARCHES See Constitutional Law, VIII, 2
SOVEREIGN IMMUNITY See International Law
STANDING TO SUE See Immigration and Nationality Act
STATE LEGISLATIVE DISTRICTS See Constitutional Law, IV, 3
STATE OIL AND GAS SEVERANCE TAXES See also Constitu
tional Law, IV, 1, V
Prohibition of passing on tav to consumers — Pne eruption by federal
law — Provision of Alabama oil and gas severance tax statute prohibiting
producers from passing on tax increase to consumei s was pre-empted by
federal law insofar as it applied to sales of gas in interstate commerce, but
not insofar as it applied to sales of gas in mtrastate commerce Exxon
Corp v Eagerton, p 176
STATUTES OF LIMITATIONS See also Civil Rights Act of 1871, 1,
Civil Rights Act of 1964, 1, Constitutional Law, IV, 2
Employee suit against employer and union — Applicable limitations
period — In an employee suit against an employer and a union, alleging em-
ployer's breach of a collective-bargaining agreement and union's breach of
its duty of fair representation by mishandling ensuing grievance or arbitra-
tion proceedings, 6 month limitations period of § 10(b) of National Labor
Relations Act, governing filing of unfair labor practice charges with Na-
tional Labor Relations Board — rather than state limitations periods for
vacating arbitration awards or for legal malpractice — is applicable to claims
against both employer and union DelCostello v Teamsters, p 151
STOCK RAISING HOMESTEAD ACT OF 1916
Reserved "minerals" — Gravel — Gravel found on lands patented under
Act is a "mineral" reserved to United States within meaning of § 9 of Act
Watt v Western Nuclear, Inc , p 36
STORAGE OF NUCLEAR WASTE See National Environmental
Policy Act
SUITCASE SEARCHES AND SEIZURES See Constitutional Law,
VIII, 1
INDEX 1165
SUPPORT OF ILLEGITIMATE CHILDREN See Constrtutional
Law, IV, 2
SUPREME COURT See Fishing Rights, Immigration and National
ity Act, Water Rights
SUSPENSION OF DEPORTATION See Constitutional La*, IX
Immigration and Nationality Act
TAXES See Constitutional Law, IV, 1, V, X, State Oil and Gas Sev
erance Taxes
TAX LIENS See Bankruptcy
TAX SALE NOTICE TO MORTGAGEE See Constitutional Law
III, 2
TENNESSEE See Constitutional Law, IV, 2
TEXAS See Water Rights
TITLE TO AIRCRAFT See Federal Aviation Act of 1958
TOLLING OF STATUTES OF LIMITATIONS See Cml Rights Act
of 1871, 1, Civil Rights Act of 1964, 1
TRIBAL REGULATION OF HUNTING AND FISHING ON RES
ERVATION See Indians
UNFAIR LABOR PRACTICES See National Labor Relations Board,
Statutes of Limitations
UNIFORMITY CLAUSE See Constitutional Law, X
UNION ACTIVITIES OF EMPLOYEES See National Labor Rela
tions Board
UNION'S DUTY TO REPRESENT EMPLOYEES See Statutes of
Limitations
VESSEL OWNER EMPLOYER'S LIABILITY TO INJURED LONG
SHOREMAN EMPLOYEE See Longshoremen's and Harbor
Workers' Compensation Act
VESSEL SEARCHES See Constitutional Law, VIII, 3
VETO BY CONGRESS OF ADMINISTRATIVE SUSPENSION OF
ALIEN'S DEPORTATION See Constitutional Law, IX, Immi
gration and Nationality Act
VIRGINIA See Civil Rights Act of 1871, 2, Constitutional Law, VI 1
WAITING PERIOD FOR ABORTION See Constitutional Law, VI, 2
1166 INDEX
WAIVER OF FOURTH AMENDMENT CLAIM See Civil Rights
Act of 1871, 2
WAIVER OF RIGHT TO COUNSEL See Constitutional Law, VII
WASHINGTON See Fishing Rights
WATER RIGHTS
Pecos Rivet Compact — Dispute as to Feias1 wate? rights — Special Mas
ter's recommendations — In Texas 01 iginal action alleging that New Mex
ico had breached its obligations undei Pecos Ri\ ei Compact — which estab
lished a Commission consisting of one Cornmissionei ft om each State and a
nonvotmg United States Commissionei to administer Compact — to deliver
Pecos River water at state line in a quantity equivalent to that available to
Texas m 1947, Commissionei b having been unable to agree on method for
determining annual shortfalls of state-line waterflow, exceptions to Special
Master's recommendation that either United States Commissioner or some
other third party be given a vote and be empowered to participate in Com
mission deliberations are sustained, Mastei Js recommendation to continue
suit m present posture is accepted since thib Court's original jurisdiction
extends to a suit by a State to enforce its compact with another State, and
exception to Master's recommendation against approval of Texas' motion
to adopt a particular method for determining state line water shortfalls
is overruled Texas v New Mexico, p 554
WINDFALL PROFIT TAXES See Constitutional Law, X
WITNESSES' CREDIBILITY See Habeas Corpus
WORDS AND PHRASES
1 "Minerals " § 9, Stock-Raising Homestead Act of 1916, 43 U S C
§ 299 Watt v Western Nuclear, Inc , p 36
2 "Other than banks" §8, Clayton Act, 15 U S C U9 Bank
America Corp v United States, p 122
3 "Takes and carries away " Bank Robbery Act, 18 U S C
§2113(b) Bell v United States, p 356
WORKERS' COMPENSATION See Longshoremen's and Harbor
Workers' Compensation Act
WORK PRODUCT OF ATTORNEY See Freedom of Information
Act
WYOMING See Constitutional Law, IV, 3
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