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Full text of "United State Reports Volume 462 Cases Adjudged In The Supreme Court At October Term 1982"

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 I 1 ',. 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> 

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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 BtKttK t (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*. anJ 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 



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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 n f hHl 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 irl Nt * u flunk ' * 1 1 

BankAmenea C orp i rnii*ti st*ti H IJ1* 

Bank of No\a Scotia t muni stuii ^ 1 1 1 * 

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 Phiurtnc<*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 HI 9 

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 HI 8 

Ixme Steer, Inc , Donovan v 1105 

L&rtzv California H 26 

Louisiana, Mooney v IWS 

Louisiana, Tonubbee v 1146 

Lucas, Bush v 367,1114 

Lucas, Gray v H 24 

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 XV n 

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 Workers 7 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 gg 2 

Zant, Wallace t; 1146 

Zar^osa u Arizona 112 4 

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 

US 616 891 

Adams v Williams, 407 U S 

143 232-234, 283, 284, 

702, 706, 709, 713, 715 
Aetna Casualty & Surety Co v 

Anderson, 200 Va 385 317 

Aetna Casualty & Surety Co v 

Flowers, 330 U S 464 581 

Agnello v United States, 269 

TJS 20 293 

Aguilar v Texas, 378 U S 

108 217, 227, 228, 230, 

237-240. 242, 252, 264. 
267, 268, 271-291, 293 
Air Crash Disaster Near Chi- 
cago, In re, 644 F 2d 633 538 
Akron v Akron Center for 

Reproductive Health, Inc , 

462 US 416 478, 

481, 482, 487, 490, 491, 

494, 495, 497. 498, 505. 

508, 511, 516, 518-522 

ALA Schechter Poultry 

Corp v United States, 295 

US 495 985 

Alderman v United States, 394 

US 165 255 

Allen v McCurry, 449 U S 

90 311-313, 322, 323 

Allied Stores of Ohio v Bowers. 

358 US 522 196 

Allied Structural Steel Co v 

Spannaus, 438 U S 234 190-192 
Almeida-Sanchez v United 

States, 413 U S 266 256. 585. 
599, 601, 602, 604, 610 
American Commercial Lines, 

Inc v Louisville & N R Co , 

392 US 571 826 

American Land Co v Zeiss, 

219 U S 47 797, 808 



Page 

American Pipe & Construc- 
tion Co v Utah, 414 U S 
538 348-355, 

654-656, 658, 660-668 

Anchorage Sand & Gravel Co 
v Schubert, 114 F Supp 436 58 

Anderson v Abbott, 321 U S 
349 622, 626, 630 

Andrews v Grand & Toy Al- 
berta Ltd , [1978] 2 S C R 
229 541 

Andrus v Charlestone Stone 
Products Co , 436 U S 604 44. 
59, 62, 63 

Andrus v Shell Oil Co , 446 
US 657 72 

Arizona v California, 373 U S 
546 565, 568, 1003 

Arkansas v Sanders, 442 U S 
753 643, 701, 1050 

Arndt v Griggs, 134 U S 316 796 

Arneil v Ramsey, 550 F 2d 
774 349 

Arnold v State, 236 Ga 534 867. 
878, 886, 896, 904, 906 

Ashwander v TVA. 297 U S 
288 189, 936, 939, 975 

Association of American Pub- 
lishers, Inc v Governors of 
United States Postal Service, 
157 U S App D C 397 834 

Atchison, T & S F R Co 
v WitchitaBd of Trade, 412 
US 800 149 

Atkins v United States, 214 Ct 
Cl 186 958,977,995 

Atkinson v Evans. 46 Wash 
219 45 

Auto Workers v Hoosier Car- 
dinal Corp , 383 U S 696 159, 
160-163, 165, 166, 169, 
174, 175 

Avery v Midland County, 390 
US 474 747 

xxm 



xxrv 



TABLE OF CASES CITED 



Page 



Avery Health Center, Inc , In 

re, SB R 1016 
Bach v Penn Central Transp 

Co, 502 F 2dlll7 
Bailey v Anderson, 326 U S 

203 
Bain, Ex parte, 121 U S 1 



201 
543 



181 
582, 

597, 598 
Baker v Carr, 369 U S 
186 747, 751, 

761, 765, 856, 941-943 
Ballard v Hunter, 204 U S 

241 796, 804 

Banco Nacional de Cuba v 

Sabbatmo, 376 U S 398 622, 634 
Bangor Punta Operations, Inc 
v Bangor & Aroostook R 
Co , 417 U S 703 630, 632 

Bank of Mann v England, 385 

US 99 797 

Bank of United States v Plant- 
ers' Bank of Georgia, 9 
Wheat 904 625 

Bardon v Northern Pacific 

R Co , 145 U S 535 69 

Barenblatt v United States, 
360 US 109 883, 

891, 892, 901, 902 
Barr v Matteo, 360 U S 564 371 
Barrows v Hickel, 447 F 2d 80 58 
Barwise v Sheppard, 299 U S 

33 194, 195 

Bates v City of Little Rock, 361 

U S 516 463 

Batterton v Francis, 432 U S 

416 930, 986 

Beal v Doe, 432 U S 438 420, 
428, 462, 482 
Beauheu v Elliott, 434 P 2d 

665 544,545 

Beck v Alabama, 447 U S 

625 884 

Beck v Ohio, 379 U S 89 272 

Beedier v Alabama, 389 U S 

35 251 

Beer Co v Massachusetts, 97 

S 25 191, 192 

International, Inc v 
675 F 2d 83 397 

BeS v Hood, 327 U S 678 374 




Page 

Bellotti v Baird, 428 U S 
132 420, 440, 441, 453, 461, 

462, 464, 468, 471, 493 

Bellotti v Baird, 443 U S 
622 420, 428, 43&-441, 443, 

461, 464, 468, 469, 471, 
488, 490-493, 503, 504 

BeirsGapR Co v Pennsylva- 
nia, 134 U S 232 806 

Bennett v Hunter, 9 Wall 
326 211 

Berger v New York, 388 U S 
41 256 

Berkey v Third Ave R Co , 
244 N Y 84 623 

Berman v United States, 302 
US 211 581 

Best v Humboldt Placer Min- 
ing Co , 371 U S 334 58 

Bishop v Wood, 426 U S 
341 314, 655 

Bitzer-Croft Motors, Inc v 
Pioneer Bank & Trust Co , 
82 111 App 3d 1 413 

Bivens v Six Unknown Fed 
Narcotics Agents, 403 U S 
388 224, 298, 299, 

304, 373-378, 390-392 

Black v Cole, 626 S W 2d 397 492 

Blackburn v Blackburn, 526 
S W 2d463 3 

Blackledge v Perry, 417 U S 
21 319, 320 

Blair v United States, 665 F 2d 
500 608 

Block v Commissioners, 99 
US 686 315 

Blonder-Tongue Laboratories, 
Inc v University of 111 
Foundation, 402 U S 313 317 

Blue v Western R of Ala , 469 
F 2d487 540 

Board of Comm'rs v United 
States, 308 US 343 160 

Board of County Comm'rs v 
Good, 44 N M 495 43 

Board of Regents v Tomamo, 
446 US 478 314, 

656-658, 661, 662, 666 

Bob Jones Umv v United 
States, 461 US 574 940, 

975, 998 



TABLE OF CASES CITED 



xxv 



Page 

Bollenbach v United States, 

326 U S 607 915 

Bourget v Government Em- 
ployees Ins Co , 48 F R D 

29 24 

Bowen v USPS, 459 U S 

212 154, 164, 166, 168 

Bowman Transportation, Inc 

v Arkansas-Best Freight 

System, Inc , 419 U S 281 105 
Bowsher v Merck & Co , 460 

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 

335 1141 

Brady v United States, 397 

U S 742 318, 319 

Branti v Finkel, 445 U S 507 500 
Brewer v Williams, 430 U S 

387 224 

Bridger v State, 503 S W 2d 

801 234, 273 

Brmegar v United States, 338 

U S 160 231, 235, 

238, 239, 241, 274, 290 
Brooks v Brooks, 166 Tenn 

255 3, 14 

Brown v Felsen, 442 U S 

127 315, 319, 322 

Brown v Glines, 444 U S 348 304 
Brown v Illinois, 422 U S 

590 256, 260, 263 

Brown v Texas, 443 U S 47 244 
Brown v Thomas, 221 Tenn 

319 3 

Brown v United States, 411 

U S 223 255 

Bryant v Zimmerman. 278 

US 63 247 

Buckley v Valeo, 424 U S 1 931, 

932, 941, 942, 946, 951. 

953, 962, 963, 966, 999 

Bumpus v United States, 325 

F 2d 264 70, 71 

Burke v Southern Pacific R 

Co , 234 U S 669 67, 70 



Page 

Burlington Industries v Exxon 

Corp , 65 F R D 26 27 

Burnett v New York Central 

R Co , 380 U S 424 352, 667 
Burns v Ohio, 360 U S 252 498 
Burns v Richardson, 384 

U S 73 741, 749, 858 

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- 
ers v McElroy, 367 U S 

886 802 

Caldwell v United States, 250 

U S 14 59 

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 

US 450 58 

Campbell v Haverhill, 155 U S 

610 160, 173 

Cannon v University of Chi- 
cago, 441 U S 677 683 
Cardmale v Louisiana. 394 

U S 437 221, 222, 247, 248 

Carey v Population Services 

International, 481 U S 678 428, 

462,463 
Carlson v Green, 446 U S 

14 298, 372, 374, 377, 390, 391 
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- 

zona Tax Comm'n, 448 U S 

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 

Automobile Ins Co , 36 

F R D 37 24 

Chrisman v Miller, 197 U S 

313 58 

Citizens to Preserve Overton 

Park, Inc v Volpe, 401 U S 

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 

v EM, 505 F 2(1180 58 

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- 

tem ? Inc v Democratic 

National Committee, 412 

US 94 465 

Commissioner v Estate of 

Bosch, 387 U S 456 161 

Commissioner of Internal Rev- 

enue See Commissioner 
Commonwealth See name of 

Commonwealth 
Congreso del Partido, I, [1983] 

A C 244 626 

Connecticut v Massachusetts, 

282 US 660 1025, 

1027, 1033, 1036, 1037 
Connecticut v Memllo, 423 

U S 9 420, 430, 447 

Connor v Finch, 431 U S 

407 740, 775, 

842, 845, 850, 852-854 
Consumer Energy Council of 

America v FERC, 218 U S 

App D C 34 960, 977 

Consumer Product Safety 

Comm'n v GTE Sylvama, 

Inc, 447 US 102 975 

Consumers Union v Ameri- 

can Bar Assn , 505 F Supp 

PP 



,, 

Cookson v Knowles, [1979] 

A C 556 541, 546 

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 

States, 664 F 2d 1218 202 

Crowell v Randell, 10 Pet 

368 218 

Crown, Cork & Seal Co v 

Parker, 462 US 345 661 

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 

228 374, 376-578 

Davis v Wallace, 257 U S 

478 1014, 1016 

Deffeback v Hawke, 115 U S 

392 48 

Delaware v Prouse, 440 U S 

648 252, 588-590, 592. 

599, 601, 603-608, 644 
Delaware State College v 

Ricks, 449 U S 250 352, 653 
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 

United States, 233 U S 236 48 



Page 

Dickerson v New Banner Insti- 
tute, Inc , 460 U S 103 832 
Dilhngham v McLaughlm, 264 

U S 370 191 

Dinsman v Wilkes, 12 How 

390 305 

Director, OWCP v Perini 

North River Associates, 459 

U S 297 931 

District of Columbia v Bar- 

riteau, 399 A 2d 563 543 

Doca v Marina Mercante Ni- 

caraguense, S A , 634 F 2d 

30 528, 539, 542, 548 

Doe v Bolton, 410 U S 

179 427, 431, 433, 

434, 438, 441, 448, 449, 
464, 465, 467, 471, 501 
Doe v Renfrew, 451 U S 

1022 720 

Donnelly v Meskill, 345 F 

Supp 962 735 

Douglas v Seacoast Products, 

Inc , 431 U S 265 1030 

Doulm v White, 528 F Supp 

1323 742 

Doulm v White, 535 F Supp 

450 768 

Downes v Bidwell, 182 U S 

244 83 

Drake v Zant, 449 U S 999 916 
Draper v United States, 358 

ITS 307 242-244,269-271, 

274, 280, 281, 290, 294 
Drope v Missouri, 420 U S 

162 116, 119, 120 

Duke Power Co v Carolina 

Environmental Study Group, 

Inc, 438 US 59 936 

Duhng v Ohio, 408 U S 936 911 
Dunaway v New York, 442 

US 200 261. 

648, 710, 714, 718, 719 
Dunn v Blumstein, 405 U S 

330 195 

Duplan Corp v Moulinage et 

Ketorderie de Chavanoz, 487 

F 2d 480 26, 31 

Duplan Corp v Moulinage et 

Ketorderie de Chavanoz, 509 

F 2d730 31 



JLXVili 



TABLE OF CASES CITED 



Page 

Dyer v Sims, 341 U S 22 567 

Eagle, Star & Bntish Domin- 
ions Ins Co v Heller, 149 
Va. 82 317 

Eason v Eason, 204 Va 347 315 

Ecology Action v AEC, 492 
F 2d 998 101 

Eddings v Oklahoma, 455 U S 
104 247, 879 

Edmonds v Compagnie Gen- 
erate Transatlantique, 443 
U S 256 530, 532 

Edwards v Arizona, 451 U S 
477 1041-1056 

Edwards v Kleppe, 588 F 2d 
671 57 

Edwards' Lessee v Darby, 12 
Wheat. 206 130 

Eisen v Carlisle & Jacquehn, 
417 U S 156 351, 352, 797, 805 

Eisenstadt v Baird, 405 U S 
438 427 

Electric Bond & Share Co v 
SEC, 303 U S 419 932 

Elkins v United States, 364 
US 206 259 

Employees v Westmghouse 
Corp , 348 U S 437 161 

Energy Reserves Group, Inc v 
Kansas Power & Light Co , 
459 U S 400 186, 190, 192, 194 

England v Medical Examiners, 
375U S 411 314, 322 

Engie v Isaac, 456 U S 107 510 

Enmund v Florida, 458 U S 
782 1145 

Environmental Defense Fund, 
Inc v EPA, 179 U S App 
D C 43 404 

EPA v Mink, 410 U S 73 23, 32 

EEOC v Joslyn Mfg & Supply 
Co, 706 F 2dl469 675,688 

EEOC v Lockheed Missiles & 
Space Co., 680 F 2d 1243 675, 

w 688 

Ene R Co v Tompkms, 304 
US 64 160,161 

Ernst v Hocfafelder, 425 U S 

r* 185 953 

gstate See name of estate 

Etbyi Corp v EPA, 176 U S 

D C 373 953 



Page 

Evans v Oregon, 444 U S 
380 1038 

Evans v Phillips, 4 Wheat 73 594 

Evans v United States, 153 
US 584 891 

Ex parte See name of party 

Fair v State, 245 Ga 868 886 

Fare v Michael C , 442 U S 
707 1052 

Federal Copper of Tenn , Inc , 
In re, 19 B R 177 26 

FEC v Democratic Senatorial 
Campaign Committee, 454 
U S 27 821, 833 

FMC v Seatram Lines, Inc , 
411 U S 726 148 

Federal Open Market Commit- 
tee v Merrill, 443 U S 340 32 

FPC v Panhandle Eastern Pipe 
Line Co , 337 U S 498 131 

FPC v United Gas Pipe Line 
Co , 386 U S 237 185 

Federal Radio Comm'n v Nel- 
son Bros Bond & Mortgage 
Co , 289 U S 266 985 

Federal Republic of Germany 
v Ehcofon, 358 F Supp 
747 632, 633 

FTC v Bunte Brothers, Inc , 
312 US 349 131 

FTC v Gratz, 253 U S 421 985 

FTC v Ruberoid Co , 343 U S 
470 984 

Feldmanv Allegheny Airlines, 
Inc, 524 F 23384 535.541, 
542, 546, 552 

Fehciano v Puerto Rico 
Aqueduct & Sewer Auth , 93 
P R R 638 655 

Feres v United States, 340 
U S 135 298, 299, 304 

F err ell v Oklahoma ex rel 
Hall, 339 F Supp 73 742 

Fidelity Federal Savings & 
Loan Assn v De la Cuesta, 
458 U S 141 410, 986 

Field v Clark, 143 U S 649 943 

Fields v Wyrick, 682 F 2d 
154 1047 

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 

Trust v First Wisconsin 

Corp , 86 F R D 160 26 

Fisher v District Court, 424 

U S 382 333, 340 

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 

U S 147 733, 734 

Flowers v Local 2602, United 

Steel Workers of America, 

622 F 2d573 157 

Fong Yue Ting v United 

States, 149 U S 698 1002 

Ford Motor Co v Huffman, 345 

US 330 164 

Fortson v Dorsey, 379 U S 

433 749 

Foster v Seaton, 106 U S App 

D C 253 59 

Foti v INS, 375 U S 217 957, 

963, 965 

Franklin v State, 245 Ga 141 887 
Franks v Delaware, 438 U S 

154 264 

Freeport Sulphur Co v S/S 

Hermosa, 526 F 2d 300 528, 546 
Frontiero v Richardson, 411 

U S 677 305, 682 

Frost v Corporation Comm'n of 

Okla,278US 515 1015 

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, 

753, 767, 771, 772, 778. 
780-784, 788, 842, 846 
Gardner v Florida, 430 U S 

349 885, 887, 916 



Page 

Gary Aircraft Corp , In re, 681 

F 2d 365 412, 413 

Gary-Northwest Indiana Wom- 
en's Services, Inc v Bowen, 

496 F Supp 894 433, 455 

Geduldig v Aiello, 417 U S 

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 

Investigation Committee, 

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 

U S 60 290 

GhddenCo v Zdanok,370U S 

530 458 

Glona v American Guarantee & 

Liability Ins Co , 391 U S 73 7 
G M Leasing Corp v United 

States, 429 U S 338 702, 716 
Godfrey v Georgia, 446 U S 

420 867, 878, 909 

Goldlawr, Inc v Heiman, 369 

US 463 353 

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- 
ers, 461 U S 757 164 
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 398 190 r 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 W P 2d276 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 Farmers 7 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 15 332. 

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 

v Kaplan, 185 F 2d 791 208 
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 

United States, 295 U S 495 985 
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 

Corp , 320 U S 344 56 

Segal v American Tel & Tel 

Co , 606 F 2d 842 315 

Segum v Akron Center for Re- 
productive Health, Inc , 456 

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 

U S 1 935, 973 

Sibron v New York, 392 U S 

40 256, 581 

Simopoulos v Commonwealth, 

221 Va 1059 426 

Simopoulos v Virginia, 462 

U S 506 419, 457, 467, 468, 478 
Skeen v Lynch, 48 F 2d 1044 44 
Skolnick v State Electoral Bd 

of IU , 336 F Supp 839 735, 742 
Slavin v Curry, 574 F 2d 

1256 1142 

Sleeman v Chesapeake and 

Ohio R Co , 414 F 2d 305 539, 

540 

Sloan v Lemon, 413 U S 825 472 
Smith v Allwright, 321 U S 

649 459 

Smith v Evening News Assn t 

371 US 195 163 

Smith v Maryland, 442 U S 

735 942 

Smith v New Dixie Lines, Inc , 

201 Va 466 317 

Sohappy v Smith, 529 F 2d 

570 1022, 1031, 1038 



TABLE OF CASES CITED 



XXXIX 



Page 

Sohappy v Smith, 302 F Supp 

899 1022, 1031 

Sonntag v Dooley, 650 F 2d 

904 390 

South Dakota v Opperman, 428 

U S 364 642, 643, 647 

Southeastern Community Col- 
lege v Davis, 442 U S 397 693 
Spinelli v United States, 393 

U S 410 217, 

228-230, 234-240, 242, 

244, 246, 252, 267, 268, 

270-275, 279-291, 293 

Spraigue v Thompson, 118 

U S 90 1014 

Springer v Philippine Islands, 

277 U S 189 963, 965, 966, 999 
Stanley v Illinois, 405 U S 

645 248 

Stanley v State, 19 Md App 

507 229, 230, 233, 236 

State See also name of State 
State v Acqum, 187 Conn 

647 1047 

State v Brezee, 66 Haw 163 1054 
State v Graf, 280 Ala 71 181 

State v Guinn, 555 P 2d 530 545 
State v Irwin, 304 N C 93 873 
State v McCloskey, 90 N J 

18 1047 

State v Moore, 614 S W 2d 

348 874 

State v Newberry, 336 So 2d 

181 181 

State v Pittman, 210 Neb 

117 1054 

State v Scott, 626 S W 2d 

25 1047 

State v Willie, 410 So 2d 

1019 1047 

State ex rel Atkinson v Evans, 

46 Wash 219 45 

State ex rel Highway Comm'n 

v Trtyillo, 82 N M 694 42, 70 
State ex rel McNeal v Dom- 

baugh, 20 Ohio St 167 1016 

State Farm Mut Ins Co v 

Duel, 324 U S 154 218, 219 

State Securities Co v Aviation 

Enterprises, Inc , 355 F 2d 

225 412, 414 



Page 

Stearns Coal & Lumber Co v 
Williams, 164 Ky 618 535 

Steckler v United States, 549 
F 2d 1372 528, 543 

Steele v Louisville & N R Co , 
323 U S 192 164 

Steelworkers v Enterprise 
Corp , 363 U S 593 164 

Steelworkers v Flowers, 451 
U S 965 157 

Stencel Aero Engineering 
Corp v United States, 431 
U S 666 299, 304 

Stephensonv Bmford, 287 U S 
251 193 

Stix Products, Inc v United 
Merchants & Mfrs , Inc , 47 
F R D 334 24 

Stone v Mississippi, 101 U S 
814 191 

Stone v Powell, 428 U S 465 223, 
224, 246, 249, 254, 258, 
259, 262 

Stovall v Denno, 388 U S 293 266 

Street v New York, 394 U S 
576181, 247, 711, 881-884, 
891-893, 897-899, 901 

Stromberg v California, 283 
U S 359 868, 870, 873, 880- 
885, 891-893, 895-898 

Stryckers* Bay Neighborhood 
Council v Karlen, 444 U S 
223 97 

Stull v Bayard, 561 F 2d 429 349 

Stump v Sparkman, 435 U S 
349 1141, 1142 

Sumner v Mata, 449 U S 
539 113, 118 

Supreme Court of Va v Con- 
sumers Union of United 
States, Inc , 446 U S 
719 1138-1141, 1143 

Swann v Adams, 385 U S 
440 731, 740, 741, 843, 845, 856 

Swann v Charlotte Mecklen- 
burg Bd of Ed , 402 U S 1 374 

Syres v Oil Workers, 350 U S 
892 164 

Taenzler v Burlington North- 
ern, 608 F 2d 796 543 

Tagg Bros & Moorhead v 
United States, 280 U S 420 985 



XL 



TABLE OF CASES CITED 



Page 



625 
206 



162 



400 
208 



Tamhn v Hannaford, [1950] 1 

K B 18 
Taubel-Scott Kitzmiller Co v 

Fox, 264 U S 426 
Taylor v Standard Gas Co , 306 

US 307 629 

Taylor v United States, 386 

US 1 293 

Teamsters v Lucas Flour Co , 

369 US 95 
Teamsters v United States, 431 

US 324 693 

TVA v Hill, 437 U S 153 944 

Termimello v Chicago, 337 

U S 1 219, 881, 885, 897 

Terry v Ohio, 392 U S 

1 284, 588, 

700, 702-718, 720-723 
Texas v Brown, 460 U S 

730 716, 722 

Texas Dept of Community 

Affairs v Burdme, 450 U S 

248 
Third Ave Transit Corp ,Inre, 

198 F 2d703 
Thomas v Collins, 323 U S 

516 881-884, 891-893 

Thompson v Hoitsma, 19 

F R D 112 24 

Thompson v Thomson, 344 F 

Supp 1378 838 

Time, Inc v USPS, 685 F 2d 

760 819, 821 

Tobacco and Allied Stocks, Inc 

v Transamenca Corp , 16 

F E D 534 24 

Tollett v Henderson, 411 U S 

258 309, 310, 318-321 

Torres v Puerto Rico, 442 U S 

465 256 

Town. See name of town 
Townsend v Burke, 334 U S 

'736 887, 903 

Trendtex Trading Corp v Cen- 
tral Bank of Nigeria, [1977] 

Q.B 529 
Trimble v Gordon, 430 U S 

762 

Truax v Comgan, 257 U S 

312 
Trasfcees of Dartmouth Collegi 

v Woodward, 4 Wheat 518 



627 

7,8 
552 



629 



Page 

Tucker v State, 245 Ga 68 880 
Turcotte v Ford Motor Co , 494 

F 2d 173 543, 544 

Tutun v United States, 270 

U S 568 1002 

Union Dry Goods Co v Georgia 

Public Service Corp , 248 

U S 372 193 

Union Labor Life Ins Co v 

Pireno, 458 U S 119 148 

Union Oil Co v Oppen, 501 

F 2d558 1030 

Union & Planters' Bank v 

Memphis, 189 U S 71 313 

United Air Lines, Inc v Mahm, 

410 U S 623 251 

United Airlines, Inc v McDon- 
ald, 432 U S 385 348, 352, 353 
United Parcel Service, Inc v 

Mitchell, 451 U S 56 154, 156- 
159, 163-171, 174, 175 
United Parcel Service, Inc v 

USPS, 604 F 2d 1370 821 

United States v Aitken, 25 

Philippine 7 43, 65 

United States v Altobella, 442 

F 2d310 363 

United States v Americana 

Corp , Civ No 388-72 (NJ) 21, 

23 
United States v Arra, 630 F 2d 

836 584 

United States v Babbitt, 104 

US 767 594 

United States v Bess, 357 U S 

51 210 

United States v Brignoni- 

Ponce, 422 U S 873 587, 

588, 592, 599, 602, 603, 
605^-608, 703, 706, 709, 
713, 715 
United States v Brown, 348 

U S 110 299, 300, 304 

United States v Brown, 381 

US 437 962 

United States v Caceres, 440 

US 741 256 

United States v Calandra, 414 

U S 338 223, 255, 258, 259 

United States v Campos- 
Serrano, 404 U S 293 581 



TABLE OF CASES CITED 



XLI 



United States v Capitol Serv 

ice, Inc , 89 F R D 578 26 
United States v Castro, 596 

F 2d674 609 

United States v Ceccolmi, 435 

U S 268 223, 249, 256 

United States v Chadwick, 433 

US 1 236, 

643, 644, 649, 701, 707 
United States v Chicago, M , 

St P & P R Co , 282 U S 

311 985 

United States v City and 

County of San Francisco, 310 

U S 16 149 

United States v Clark, 445 

U S 23 7, 8 

United States v Coleman, 390 

U S 599 58, 68 

United States v Cook, 19 Wall 

591 



United States v 

US 411 
United States 

National Corp 

686 
United States v 

528 F 2d428 
United States v Denver & Rio 

Grande R Co , 150 U S 1 
United States v Edwards, 415 

U S 800 
United States v 



54 
Cortez, 449 

231, 703, 706 
v Crocker 
422 F Supjp 

125, 130 
D'Antignac, 



608 
70 



E 



644-646 
I du Pont 

de Nemours & Co , 353 U S 

586 131 

United States v English, 521 

F 2d 63 528, 541, 543 

United States v Ferom, 655 

F 2d 707 358, 366 

United States v Generix Drug 

Corp, 460 US 453 149 

United States v Oilman, 874 

US 507 379,380 

United States v Glen-Archila, 

677 F 2d809 608 

United States v Gordon, 655 

F 2d478 1054 

United States v Green, 671 

F 2d46 608 

United States v Guiffre, 576 

F 2dl26 358 



Page 

United States v Hams, 403 

U S 573 233, 

236, 238, 268, 283, 284 
United States v Hamss, 347 

US 612 452 

United States v Havens, 446 

U S 620 223, 256 

United States v Hmton, 703 

F 2d672 358 

United States v Jackson, 390 

U S 570 895, 931, 1014 

United States v Jams, 428 U S 

433 255, 259, 260 

United States v Johnson, 457 

US 537 257 

United States v Johnson, 575 

F 2d678 358 

United States v Kagama, 118 

US 375 332 

United States v Klein, 13 Wall 

128 999 

United States v Knotts, 460 

US 276 719 

United States v Lee, 106 U S 

196 374 

United States v Lefkowitz, 285 

U S 452 276 

United States v Leggett & 

Platt, Inc , 542 F 2d 655 26, 31 
United States v Little Lake 

Misere Land Co , 412 U S 

580 159 

United States v Lovett, 328 

U S 303 940 

United States v Martmez- 

Fuerte, 428US 543 587-589, 
592, 599, 602, 603, 606, 
607, 610, 648 
United States v Mazurie, 419 

U S 544 332, 340 

United States v Mendenhall, 

446 U S 544 243, 

269, 292, 703, 705, 712 
United States v Midwest Oil 

Co , 236 U S 459 975 

United States v Morrison, 429 

US 1 581 

United States v Mumz, 374 

US 150 299 

United States v Naftahn, 441 

U S 768 148 



TABLE OF CASES CITED 



27 
118 



146 
975 
594 



United States v Nixon, 418 

US 683 
United States v K Tire & 

Rubber Co , 71 F R D 465 
United States v Oregon Medi- 

cal Society, 343 U S 326 
UmtedStatesv Ortiz, 422U S 

891 599, 601-603 

United States v Peltier, 422 

U S 531 256, 257, 259, 260 

United States v Philadelphia 

National Bank, 374 U S 

321 
United States v Price, 361 U S 

304 
United States v Procter & 

Gamble Co, 356 US 677 
United States v Rabmowitz, 

339 U S 56 649, 722 

United States v Ramsey, 431 

U S 606 586, 591 

United States v Robinson, 414 

U S 218 644-646, 649 

United States v Rock Royal 

Co-operative, Inc , 307 U S 

533 987 

United States v Rodgers, 461 

U S 677 210, 211 

United States v Rogers, 289 

F 2d433 358 

United States v Ross, 456 U S 

798 263, 

294, 295, 648, 701, 1050 

United States v Sarmiento- 

Rozo, 592 F 2d 1318 
United States v Schaub, 163 

F &ipp 875 
United States v Sellers, 483 

F 2d 37 233 

United States v Serrano, 607 

609 
Shoels, 685 

358 



581 

58 



F 2dll45 
United States v 

F 2d379 
United States v Simmons, 679 

F 2dl042 358 

United States v South Eastern 

Underwriters Assn , 322 

US 533 146 

United States v Standard Oil 

Co , 332 U S 301 379, 380, 390 
XJtefced Skates ^ Staszcuk, 517 

F 2$5S 362 



Page 

United States v Streifel, 665 

F 2d414 608 

United States v Sullivan, 333 

F 2d 100 211 

United States v Sweet, 245 

US 563 48 

United States v Thierman, 678 

F 2dl331 1047 

United States v Thirty-seven 

Photographs, 402 U S 363 502 
United States v Toole, 224 

F Supp 440 43 

United States v Tucker, 404 

U S 443 887, 902, 903 

United States v Turkette, 452 

US 576 679 

United States v Turley, 352 

US 407 360 

United States v Union Oil 

Co of California, 549 F 2d 

1271 52, 70 

United States v Union Pacific 

R Co , 353 U S 112 59 

United States v U S District 

Court, 407 US 297 263 

United States v Van Leeuwen, 

397 U S 249 705, 717, 718 

United States v Ventresca, 380 

U S 102 235-239, 263, 275, 288 
United States v Villamonte- 

Marquez, 462 U S 579 639 

United States v Vuitch, 402 

U S 62 510, 519 

United States v Washington, 

520 F 2d 676 1030, 1031, 1038 
United States v Wheeler, 435 

US 313 332 

United States v Whitmire, 595 

F 2dl303 609 

United States v Williams, 617 

F 2d 1063 608 

United States v Williams, 622 

F 2d830 254 

United States v Winans, 198 

US 371 337 

United States v Zurosky, 614 

F 2d779 609 

U S Railroad Retirement Bd 

v Fritz, 449 U S 166 958 

United States Trust Co v New 

Jersey, 431 U S 1 190, 192 



TABLE OF CASES CITED 



XLIII 



Upham v Seamon, 456 U S 

37 740, 774, 775 

Vaca v Sipes, 386 U S 171 154, 
158, 163-166, 16S-170, 
173 
Vachon v New Hampshire, 414 

U S 478 219, 247 

Vale v Louisiana, 399 U S 30 293 
Vaughn v Rosen, 173 U S 

App D C 187 832 

Veix v Sixth Ward Bldg & 

Loan Assn , 310 U S 32 194 
VerhndenB V v Central Bank 

of Nigeria, 461 U S 480 622 
Vermont v New York, 417 U S 

270 566, 567, 575 

Vermont Yankee Nuclear 

Power Corp v Natural 

Resources Defense Council, 

Inc , 435 U S 519 91-93, 

95, 97, 100, 101, 107 
Verrue v United States, 457 

F 2d 1202 58 

Village See name of village 
Virginia v West Virginia, 206 

US 290 567, 568 

Walder v United States, 347 

US 62 256 

Walker v City of Hutchmson, 

352 US 112 797, 

799, 801, 802, 805 
Warden v Hayden, 387 U S 

294 716 

Warren Trading Post v Arizona 

Tax Comm'n, 380 U S 685 333, 

336, 338 
Washington v Confederated 

Tribes of Coleville Indian 

Reservation, 447 U S 134 331- 
333, 336, 341, 343 
Washington v Dawson & Co , 

264 US 219 733 

Washington v Oregon, 214 

US 205 575 

Washington v Washington 

State Commercial Passenger 

Fishing Vessel Assn , 443 

U S 658 1022, 1026, 1038 

Washington Game Dept v 

Puyallup Tribe, 414 U S 

44 1031, 1037 



Page 

Waters v State, 248 Ga 355 872 
Watt v Alaska, 451 U S 259 73 
Waugh v Thompson Land & 

Coal Co , 103 W Va 567 43 
Weber v Aetna Casualty & 

Surety Co , 406 U S 164 7 

Weeks v United States, 232 

U S 383 224, 251, 374 

Weinberger v Catholic Action 

of Hawaii/Peace Ed Project. 

454 U S 139 97 

Weinberger v Wiesenfeld, 420 

U S 636 682 

Wemstemv Bradford, 423 U S 

147 820 

Weld v Hornby, 7 East 195 1030 
Wells v Rockefeller, 394 U S 

542 734, 752, 767, 776, 777, 787 
Wenglerv Druggists Mut Ins 

Co , 446 U S 142 683, 684 

Westv Edward Rutledge Tim- 
ber Co , 244 U S 90 48 
Westberry v Sanders, 376 U S 

1 730, 

732, 733, 745-747, 750. 

761, 766-768, 775, 782 
Western Nuclear, Inc v 

Andrus, 475 F Supp 654 41, 72 

Western & Southern Life Ins 
Co v State Bd of Equaliza- 
tion, 451 U S 648 196 

West Virginia Civil Liberties 
Union v Rockefeller, 336 
F Supp 395 740, 742 

West Virginia ex rel Dyer v 
Sims, 341 U S 22 567 

Whalen v Roe, 429 U S 
589 427, 428, 445 

Whitcomb v Chavis, 403 U S 
124 748, 749, 783, 860 

White v Estelle, 459 U S 
1118 119 

White v Miller, 200 N Y 29 43 

White v Regester, 412 U S 
755 733, 742, 749, 780, 

782, 783, 842, 850, 852 

White v Weiser, 412 U S 
783 727, 730, 

731, 733, 738, 740, 742, 

762, 766, 768, 775, 778. 
781, 783, 784, 786, 851 

Whiteley v Warden, 401 U S 
560 228, 272, 275, 283, 293 



XLIV 



TABLE OF CASES CITED 



Page 



Mountain 



Tribe 



Whitfield v Ohio, 297 U S 

431 891 

Whitt v Whitt, 490 S W 2d 159 3 
Wiley v Sinkler, 179 U S 58 374 
Wilkes v Dinsman, 7 How 89 305 
Willeox v Consolidated Gas 

Co , 212 U S 19 322 

Willett v Georgia, 608 F 2d 

538 316 

Williams v Lee, 358 U S 

217 333, 334 

Wilhams v New York, 337 U S 

241 899 

Wilhams v North Carolina, 317 

U S 287 881, 896 

Williams v Rhodes, 393 U S 

23 749 

Wilhams v State, 274 Ark 9 873 
Wilhams v United States, 401 

U S 646 257 

Williamson v Lee Optical Co , 

348 US 483 467 

Wilson v Zant, 249 Ga 373 1047 
Winona & St Peter R Co v 

Barney, 113 U S 618 62 

Wisconsin v Illinois, 289 U S 

710 566 

Wiswall v Sampson, 14 How 

52 



WMCA, Inc v Lomenzo, 377 

US 633 

Wolfv Colorado, 338 U S 25 
Wolfe v Stumbo, 519 F Supp 

22 



798 

855 
253 

435 



Wong Sun v United States, 371 
US 471 255 

Wood v Georgia, 450 U S 
645 247 

Woodson v North Carolina, 428 
U S 280 879, 885 



Page 

Wooley v Maynard, 430 U S 

705 472 

Worcester v Georgia, 6 Pet 

515 331 

Worthen Co v Kavanaugh, 295 

US 56 192 

W R Grace & Co v Rubber 

Workers, 461 U S 757 164 

Wright v Rockefeller, 376 U S 

52 759 

Wright v Union Central Life 

Ins Co, 311 US 273 206 

Wurth v Wurth, 313 S W 2d 

161 492 

Wyoming v Colorado, 259 U S 

419 1025, 1033 

Wyoming v Colorado, 298 U S 

573 567 

Wyrick v Fields, 459 U S 

42 1044, 1045 

Yakus v United States, 321 

US 414 953 

Yates v United States, 354 

U S 298 881, 897 

Ybarra v Illinois, 444 U S 85 714 
Yodice v Komnkhjke Neder- 

landsche Stoomboot Maat- 

schappij, 443 F 2d 76 528 

Young, Ex parte, 209 U S 

123 374 

Youngstown Sheet & Tube Co 

v Sawyer, 343 U S 579 953, 
959, 962, 963, 978, 1000 
Zacchim v Scripps-Howard 

Broadcasting Co , 433 U S 

562 252 

Zant v Stephens, 456 U S 

410 866, 870, 890, 893, 913, 916 
Zemel v Rusk, 381 U S 1 975 
Zipesv Trans World Airlines, 

Inc , 455 U S 385 349 

Zobel v Wilhams, 457 U S 55 749 
Zurcher v Stanford Daily, 436 

US 547 266 



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 '" Id 9 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- 

, ^ A 6 , o ^ ab0 Ro8e Funeral H , Jc 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 
action 7 ') 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) 

3 But 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 * 4 all 
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 



1 The 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 peat 73 

'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 laws 4 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 
Allem y 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 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 tiers 2 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 
wa ters 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 powerplant 4 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 (H 2 0), 
as opposed to heavy water (D 2 O), 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, 

M As 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 

tt The 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 Data 1 

[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 

NO X 4 



Hydrocarbons 
CO 

Particulates 
Other gases 

F 



HC1 
Liquids 
SO 4 
N0 4 8 
Fluoride 
Ca+ -f 
Cl 

Na + 
NH 8 
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 
twrnctod^ 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 



13 o 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 , Edwards 9 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 opinion 5 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 



6 E 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 812386 

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 

4 Md 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 

8 N 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 11 325 (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 u to 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, supra t 
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 employees 5 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, however f is the close similarity of 



grass intended the section to be applied In the present context 451 U S , 
at 75-70, and nn 8 f 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 18 f 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 respondents 1 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 



( f onj*VHH ban given un no n*aHm 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 3fo f 71 (1981), I 
believe that in a nuit for a breach of the dulv of fair represen- 
tation, the appropriate M lauj* 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 it f 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 fderml 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 18 t that our practice of borrowing state periods of limitations depends 

largely on this general guide for divining congressional intent See, g , 

Auto Workers v Hooswr Cardinal Corp f 888 U S 696 f 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 Alabama 4 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 

U 0ne 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- 
spondentsdoes 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 restat ed 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 u P 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 Gateses 7 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 i c *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 agree t 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 2d f 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$uilar t 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- 
ceptturning on the assessment of probabilities m particular 
factual contexts not readily, or even usefully, reduced to a 
neat set of legal rules Informants 7 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 " 
Ibid 1 



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 i s 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 * 4 an 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 89 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, 



26 g 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 

26 Bridger\ 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 Aguilar 1 
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 morning 3 are neither unusual 
nor probative of criminal activity 



ir The 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 42 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, 1978 f 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 7 t 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 violation 4 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 17S8 5 

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 that f 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, 3HH f 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, irpm 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, 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^e t 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&gte, 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 prtcluivt effect In a latar action was con- 
firmed by the court in Attna Casualty & Suraty Co v Antfamon, upra t 
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 484 f 488^42 (1959) Since a { 1983 action 
IB not a suit to ^recover the fruit" of the plaintiff's crimt f the cmtrt below 
reasonably concluded that, under Virginia law f 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 
3sijfy 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 



l See 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 development 6 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 Congress 9 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 Congress 7 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 



lf The 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 



ir The 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) 

s See, 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- 



2 The 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 remedy 8 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 



w InMarbury 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 42 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), 1 but 
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 

2 U 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) 

S H 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 

^ 4 IL 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 Congress 7 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- 
re T P d 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&erD 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 
ni8 9 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